Legal Research
Cases
S v Police

S v Police

Case [2018] NZHC 1582 28 June 2018

Criminal Liability

Mens Rea & Intention

Breach of Contract

Unconscionable Conduct

Appeal

Specific Performance

Admissibility of Evidence

Criminal Law

No judgment structure available for this case.

Type to search within this case.

FOR A COURT READY (FEE REQUIRED) VERSION PLEASE FOLLOW THIS LINK

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI 2018-463-3

[2018] NZHC 1582

BETWEEN
S

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 March 2018

Counsel:

A Haskett for the Appellant O M Salt for the Respondent

Judgment:

28 June 2018

JUDGMENT OF DUFFY J

[1] On 15 December 2017, the appellant was convicted of driving with excess blood alcohol content1 in the Thames District Court.2 He was sentenced to a fine of
$800.3

[2]The appellant now appeals against his conviction.

Factual background

[3] Judge Harding detailed the factual background of the appellant’s conviction in his oral judgment. A summary of this background is as follows.

1      Land Transport Act 1998, s 56(2); the maximum penalty for which is three months’ imprisonment or a fine of $4,500.
2      [redacted].
3      [redacted].

S v NEW ZEALAND POLICE [2018] NZHC 1582 [28 June 2018]

[4] On 28 May 2017 the appellant was driving along [redacted]. He was going to collect his daughter from a party, which had apparently gone awry.

[5] The appellant arrived at a police breath and alcohol checkpoint. He was waved over by Constable Collingwood and asked if he had been drinking. The appellant replied that he had had a stubbie.

[6] A passive breath test determined the existence of alcohol on the appellant’s breath. A breath screening test then produced a reading of more than 400 micrograms of alcohol per litre of breath.

[7] Constable Collingwood requested that the appellant accompany him to the “booze bus” which was at the checkpoint. The appellant agreed.

[8] At a certain point, the appellant advised Constable Collingwood that he needed to go to the bathroom. The constable said in evidence that from the time of this first request he knew the appellant wanted to defecate. However, Constable Collingwood did not accommodate this request and the pair proceeded to the “booze bus.”

[9] Once inside the “booze bus” the appellant underwent an evidential breath test which produced a result of 587 micrograms per litre.4 The appellant elected to have a blood test.5 A nurse was summoned to administer this test.

[10] Throughout the time the appellant was in the “booze bus” awaiting the blood test procedure he repeatedly asked Constable Collingwood for access to a bathroom. No access was provided. Instead, Constable Collingwood assured the appellant that the process would not take long, and that he would be able to use the bathroom in due course. The constable’s tone in deferring the appellant’s requests appears to have been gentle yet unswerving.

4 Section 56(1) of the Land Transport Act 1998 makes it an offence for a person to drive with an excess of 400 micrograms of alcohol per litre of breath.
5 Section 70A of the Land Transport Act 1998.

[11] Unfortunately for the appellant, he was unable to maintain control of his bowels and defecated in trousers. Judge Harding commented…

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 S v Police

Details

AGLC: S v Police [2018] NZHC 1582
Case: [2018] NZHC 1582
Decision Date: 28 June 2018

CaseChat Overview and Summary

In this case, the appellant appealed against his conviction for driving with excess blood alcohol content. The appellant argued that his New Zealand Bill of Rights Act 1990 (NZBORA) rights were breached when he was denied access to a bathroom during the testing process. The appellant submitted that the denial of access to a bathroom constituted a breach of his right not to be subjected to cruel, degrading, or disproportionately severe treatment or punishment under s 9 of the NZBORA, as well as a breach of his right to a reasonable search and seizure under s 21 of the NZBORA. The appellant also argued that the denial of access to a bathroom breached his right to be treated with humanity under s 23(5) of the NZBORA. The Court found that the appellant's treatment did not reach the level of breaching s 9 of the NZBORA. However, the Court found that the denial of access to a bathroom constituted a breach of s 21 of the NZBORA, as it was a significant infringement of the appellant's privacy and dignity. The Court also found that the denial of access to a bathroom constituted a breach of s 23(5) of the NZBORA, as it revealed a lack of respect for the appellant's dignity. The Court found that the evidence obtained through the denial of access to a bathroom was improperly obtained, and that the exclusion of this evidence was proportionate to the gravity of the Police impropriety. The Court allowed the appeal and set aside the conviction for driving with an excess blood alcohol limit. The Court also granted a suppression order to prevent the publication of the appellant's identity.

Orders