R v Tye - [2007] NZCA 330

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA86/07
[2007] NZCA 330
THE QUEEN
v
MURRAY KENNETH TYE
Hearing:25 July 2007

Court:Chambers, Keane and MacKenzie JJ
Counsel:B J Hart and A J Trenwith for Appellant

K Raftery for Crown

Judgment:3 August 2007 at 11.30 am

JUDGMENT OF THE COURT

A Leave to appeal is granted, but the appeal is dismissed.
BFor the avoidance of doubt, the order is made under s 344A of the Crimes Act 1961 that the result of the appellant’s positive evidential breath test (753 micrograms of alcohol per litre of breath) is admissible at his trial.

REASONS OF THE COURT
(Given by Chambers J)
Table of Contents
Para No

Drink-driving charge  [1]
District Court ruling on disputed evidence  [4]
Issues on this appeal  [8]
Should Alo be overruled?  [17]
Does this case come within the criteria of Alo as to when suspects
           must be advised of the existence of the PDLA scheme?  [22]
Is it unfair for the evidence to be admitted when existing police
practice in other parts of the country involves telling
drink-drive suspects of the existence of the PDLA scheme?             [30]

Result[34]
Postscript: evidence of preliminary hearings in drink-drive cases [36]

Drink-driving charge
[1]       At 4.05 am on 19 November 2005, the police stopped Murray Tye, the applicant, at a roadside checkpoint. Constable Shannon Miles administered the standard initial breath-screening test, which Mr Tye failed. Constable Miles then asked Mr Tye to get out of the car he was driving and to accompany him to the “booze bus” nearby. Mr Tye did that. Subsequently Constable Miles administered an evidential breath test. It was positive: a result of 753 micrograms of alcohol per litre of breath was obtained. (The legal limit is 400 micrograms of alcohol per litre of breath.)
[2]       Later, the constable asked Mr Tye whether he wished to take a blood test. Mr Tye declined.
[3]       Mr Tye was then charged under s 56(1) of the Land Transport Act 1998 with driving a motor vehicle in contravention of the specified breath-alcohol limit. Because Mr Tye already has, the Crown says, at least two convictions for drink-driving, he is potentially subject, if convicted on this occasion, to the special penalty imposed under s 56(4), namely imprisonment for up to two years. Mr Tye has elected trial by jury.
District Court ruling on disputed evidence
[4]       Mr Tye’s lawyers, by letter dated 16 November 2006, advised the Crown that Mr Tye challenged the admissibility of the result of the breath test. One of the grounds of challenge related to whether the police had properly and adequately given Mr Tye his rights under the New Zealand Bill of Rights Act 1990. This prompted the Crown to apply under s 344A of the Crimes Act 1961 for an order that “the result of [Mr Tye’s] positive evidential breath test (753 micrograms of alcohol per litre of breath) be admitted at [Mr Tye’s] trial”.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tye

Details

AGLC: R v Tye [2007] NZCA 330
Case: [2007] NZCA 330
Decision Date: 3 August 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v Tye involved Murray Kenneth Tye who was charged with driving a motor vehicle in contravention of the specified breath-alcohol limit. The primary legal issue was whether the result of Tye's evidential breath test, which showed a high level of alcohol, could be admitted as evidence at his trial. This hinged on whether Tye's rights under the New Zealand Bill of Rights Act 1990 were properly observed during the test procedure. Specifically, the court needed to determine if the police had adequately informed Tye about his right to consult and instruct a lawyer without delay and in private, and if they should have additionally informed him about the Police Detention Legal Assistance scheme (PDLA) offering free legal advice.

The court evaluated Tye's arguments in light of the recent decision in R v Alo, which had set out criteria for when police must inform suspects of the PDLA scheme. Tye's counsel argued that Alo should be overruled or, at least, that the criteria in Alo were met in this case. However, the Court of Appeal rejected these arguments, affirming that Alo correctly represented the law for police questioning prior to 1 August. They also found that the specific circumstances of Tye's case did not trigger the need for police to inform him of the PDLA scheme, as Tye had already been adequately informed of his rights under the Bill of Rights. Additionally, the Court of Appeal dismissed the argument that it was unfair to admit the evidence given the inconsistent police practice regarding informing suspects about the PDLA scheme. The court concluded that the evidence was properly obtained and admissible under the Evidence Act.

Orders