Re Solicitor-General

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)

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

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to decide whether to grant leave to the Solicitor-General to refer a question of law arising from four proceedings where charges of driving with excess breath alcohol were dismissed. The dismissals were due to a defect in compliance with procedures under the Land Transport Act 1998. The Court granted leave under s 313 of the Criminal Procedure Act 2011, allowing the Solicitor-General to bring the reference for the Court’s decision.

The primary legal issues in the reference were whether the Judge in each case was correct to find non-compliance with sections 77(3)(a) and (3A) of the Land Transport Act 1998, and if so, whether this non-compliance justified the exclusion of evidence from an Evidential Breath Test (EBT). Specifically, the reference questioned whether the wording of Block J on the Police Procedure Sheet POL515 09/19 constituted a procedural defect, and if such a defect meant that there was no reasonable compliance under s 64(2) of the Act, making the EBT evidence inadmissible.

The Court found that the questions raised were of sufficient importance to warrant an appeal and granted leave for the reference. It instructed the Registrar to appoint counsel to assist the Court and to schedule an oral hearing with urgency. The Court’s decision ensured that the questions would be thoroughly examined and resolved, providing clarity on the procedural requirements and their implications for the admissibility of EBT evidence in similar future cases.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established