Ramsay v Police

[2014] NZHC 2560

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000143 [2014] NZHC 2560

BETWEEN

JOSHUA CLAYTON BRADBURY

RAMSAY Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	20 October 2014
Appearances:	S D Cullen for the Appellant M R Walker for the Respondent
Judgment:	20 October 2014

JUDGMENT OF GILBERT J

This judgment is delivered by me on 20 October 2014 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

RAMSAY v NEW ZEALAND POLICE [2014] NZHC 2560 [20 October 2014]

Introduction

[1]      On 23 August 2013, the appellant was convicted in the District Court at

North Shore of the following offences:

(a)      Refusing  to  accompany  an  enforcement  officer  to  undergo  an evidential breath test or a blood test in breach of s 59 of the Land Transport Act 1998.

(b)Refusing to permit a blood specimen to be taken when required to do so by an enforcement officer in breach of s 60 of the Land Transport Act.

(c)      Failing  to  give  identifying  particulars  when  required  to  do  so  in breach of s 33 of the Policing Act 2008.

(d)Refusing  to  comply  with  an  enforcement  officer’s  direction  to surrender  the  keys  to  his  vehicle  in  breach  of  s 52  of  the  Land Transport Act.

[2]      The appellant filed an appeal against his conviction on each of these charges. However, he abandoned his appeal in relation to the first two of these convictions.

Brief facts

[3]      At about 11.40pm on 16 February 2013, the appellant was observed driving towards a Police check point.  The appellant stopped his car about 50 metres away and then reversed into a parallel parking space on the side of the road.   He was approached by two Constables who had been stationed at the check point.  One of the Constables requested the appellant to undertake a breath screening test after smelling alcohol on his breath.  The appellant refused as a result of which he was arrested and taken in a Police car to the nearby roadside breath screening facility. The District Court Judge described the appellant’s behaviour as “obstinate and aggressive”.  The Judge said that the appellant refused to follow any directions given by the Police or to co-operate with any of the procedures they required him to

undergo.  The Judge found that the appellant also refused to produce his car keys or give his details, as directed.

Failing to provide identifying particulars

[4]      Section 33 of the Policing Act empowers a Constable to detain a person in order to take their identifying particulars when  two criteria are met.   First, the Constable  must  have  good  cause  to  suspect  that  the  person  has  committed  an offence.  Second, the Constable must intend to bring proceedings against the person in respect of that offence by way of summons.  An offence is committed if a person fails to comply with the Constable’s directions after being cautioned.

[5]      Mr Walker responsibly concedes that there was no evidence in this case to establish  these  elements  and  that  the  conviction  for  this  offence  cannot  stand. I agree.  There was no evidence that the appellant was cautioned.  Nor was there any evidence that the Constable had any intention of proceeding against the appellant by way of summons.  On the contrary, he was already under arrest.

[6]      This charge was laid under the wrong section.  The appeal against conviction for this offence must be allowed.

Failing to surrender keys

[7]      Section 121 of the Land Transport Act empowers an enforcement officer to require a person to deliver the keys to a vehicle in various circumstances.   In this case, the prosecution needed to prove beyond reasonable doubt that:

(a)      the  appellant  was,  because  of  his  physical  or  mental  condition, incapable of having proper control of his vehicle; and

(b)in all the circumstances, the direction that the appellant surrender the keys to his car was necessary in the interests of the appellant or of any other person or of the public.

[8]      There was no evidence that the appellant did not have proper control over his vehicle, for example that he was driving erratically.   The Constables observed the appellant stop his car and then reverse into a parallel parking space.  There was no suggestion that he did not execute this manoeuvre competently.   One of the Constables smelt alcohol on the appellant’s breath but that is not sufficient on its own to prove beyond reasonable doubt that the appellant was incapable of having proper control of his vehicle.  There was no evidence to justify a finding that it was necessary, in the interests of the appellant or the public, to require the appellant to surrender the keys.

[9]      Mr  Walker  conceded  that  there  was  little  or  no  evidence  to  support  a conclusion that these elements of the charge were proved beyond reasonable doubt. The Judge did not refer to either of these elements in his decision, nor did he refer to any evidence that could substantiate them.  I accept Mr Cullen’s submission that this aspect of the appeal must also be allowed.

Result

[10]     The appeals against conviction for refusing to accompany an enforcement officer and refusing to permit a blood specimen to be taken were abandoned.  Those appeals are accordingly dismissed.

[11]     The appeals against conviction for failing to supply identifying particulars and refusing to deliver keys to an enforcement officer are allowed.  The convictions

in relation to those two offences are quashed.

M A Gilbert J