Rae v Police - [2000] NZCA 156

IN THE COURT OF APPEAL OF NEW ZEALAND

CA99/00

BETWEEN	HEATHER MURDOCK RAE
Appellant

AND	THE POLICE
Respondent

Hearing:	5 July 2000
Coram:	Richardson P Thomas J Keith J Blanchard J Tipping J
Appearances:	J H M Eaton and A Shaw for Appellant A S Butler for Crown
Judgment:	10 August 2000

JUDGMENTS OF THE COURT

Judgments

Paras No

Richardson P, Thomas, Keith, Blanchard JJ [1] – [62]
Tipping J [63] – [77]

RICHARDSON P, THOMAS J, KEITH J AND BLANCHARD J (DELIVERED BY BLANCHARD J)

Introduction

With leave of the High Court under s144 of the Summary Proceedings Act 1957, Ms Rae appeals against the dismissal in that Court of her appeal against conviction in the District Court at Christchurch on a charge of driving a motor vehicle on a road while the proportion of alcohol in her breath exceeded 400 micrograms of alcohol per litre of breath (s56(1) of the Land Transport Act 1998).
The questions of law concern the application of s23(1)(b) of the New Zealand Bill of Rights Act 1990 (the right to consult and instruct a lawyer without delay and to be informed of that right) after a positive evidential breath test and before an election is made to undergo a blood test. It is common ground that an election to undergo a blood test is irrevocable (Auckland City Council v Haresnape [1983] NZLR 712, 715).

Factual background

On the evening of 15 June 1999 Ms Rae was driving a vehicle in Shands Road, Christchurch. She was stopped by Constable Holbrook. A breath screening test under s68 of the Land Transport Act (“the Act”) proved positive. She was, in the usual way, taken to the Hornby Police Station for evidential testing. After being advised of her rights and signing a form acknowledging accordingly, Ms Rae made contact by phone with a lawyer and, in a private conversation, received advice. She then underwent an evidential breath test which produced a positive result of 445 micrograms of alcohol per litre of breath.
The appellant was then given written advice of the result of that test and signed another acknowledgement that she had been told:
3. If you do not within 10 minutes request a blood test, the test you have just undergone could, of itself, be sufficient evidence to lead to your conviction for an offence against the Land Transport Act 1998.
4. If you wish to undergo a blood test you must request one within 10 minutes.
5. If you in fact undergo a blood test the result of the evidential breath test cannot be used in court proceedings to support a charge of driving or attempting to drive with excess breath alcohol concentration;
BUT the result of the blood test may be used to support a charge based on an analysis of your blood alcohol concentration.
The appellant was also advised again of her right to consult and instruct a lawyer, and she signed another form acknowledging this advice.
There is no issue…

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.

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Details

Case: [2000] NZCA 156
Decision Date: 10 August 2000

CaseChat Overview and Summary

Rae v Police was an appeal against the dismissal in the High Court of an appeal against conviction in the District Court for driving with a high concentration of alcohol in the breath. The appeal involved questions of law concerning the application of the right to consult and instruct a lawyer without delay and to be informed of that right after a positive evidential breath test and before an election is made to undergo a blood test. The Court held that the right to counsel and the obligation to facilitate the exercise of that right continued throughout the breath and/or blood testing procedures. The Court also held that the 10 minute period for requesting a blood test could be extended to accommodate the right to take legal advice. The appeal was allowed and the matter was remitted to the High Court for determination of whether Ms Rae's rights under s23(1)(b) had been breached.

Orders