Re Solicitor-General

[2020] NZCA 330

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA397/2020
 [2020] NZCA 330

BETWEEN SOLICITOR-GENERAL
Applicant

Court:	Miller and Gilbert JJ
Counsel:	R K Thomson for Applicant
Judgment: (On the papers)	5 August 2020 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to refer a question of law to this Court is granted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

1. The Solicitor-General seeks leave under s 313 of the Criminal Procedure Act 2011 to bring a reference for this Court’s decision.

2. The reference arises from four proceedings in which charges of driving with excess breath alcohol were dismissed for a defect in compliance with procedures under the Land Transport Act 1998.[1]

   [1]Police v Stewart [2020] NZDC 11392; Police v Thakoor [2020] NZDC 10980; Police v Yang [2020] NZDC 10304; and Police v Taylor [2020] NZDC 12166.

3. The reference is in the following terms:

   Question 1

   Was the Judge in each case correct to find there had been non-compliance with ss 77(3)(a) and (3A) of the Land Transport Act 1998 (“the Act”), by reason of the wording of Block J on the Police Procedure Sheet POL515 09/19?

   Question 2

   If the answer to question 1 is yes, was the Judge in each case correct to find as a result there had not been reasonable compliance with ss 77(3)(a) and (3A), in terms of s 64(2) of the Act, such that evidence of the Evidential Breath Test (EBT) result was inadmissible?

4. Leave is granted.  Pursuant to s 314(4) the Registrar is to appoint counsel to assist the Court and is to set the matter down for an oral hearing.  The hearing should be convened as a matter of urgency.

Solicitors:
Crown Law Office, Wellington for Applicant