Selwyn v Police - [2015] NZHC 3185

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2015-419-38 [2015] NZHC 3185

BETWEEN
ANARU PHILLIP SELWYN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 December 2015

Counsel:

S Mills for Appellant
J E Tarrant for Respondent

Judgment:

15 December 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 15 December 2015 at 11:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Lance Lawson (Rotorua) for Appellant
Almao Douch (Hamilton) for Respondent

SELWYN v POLICE [2015] NZHC 3185 [15 December 2015]

Introduction

[1] The appellant, Mr Selwyn, was convicted in the Huntly District Court on

3 July 2015 on one charge of driving whilst disqualified and one charge of refusing to provide a blood specimen.1 The hearing took place on 17 June 2015 before Judge GS Collin. Both charges were heard together as one Judge-alone trial.

[2] Mr Selwyn was sentenced on 11 September 2015. Judge Collin ordered that his motor vehicle be confiscated and he received an indefinite disqualification. He was also disqualified for a finite period of six months, fined $500 and ordered to pay Court costs of $130.00.

[3] Mr Selwyn now appeals his conviction and sentence. The sentence appeal depends on the outcome of the appeal against the charge of driving while disqualified.

[4] Mr Selwyn’s case is that he was not driving at the relevant time and so should

not have been convicted.

Factual background

[5] Mr Selwyn is the owner of a black 2009 Holden Cruze motor vehicle with the number plate FCR681.

[6] On 16 February 2014 at about 7:56 am, that car was driven south on State Highway One at speed and in an erratic manner. A witness, Mr Rowe, described the vehicle as trying to overtake him, as driving dangerously close, and after dropping behind him coming up again at speed. The car eventually passed him and Mr Rowe observed it pull over on the side of the road. He rang 111 and reported that location to the Police.

[7] The Police located the car about four minutes later at 8:03 am in the region described by Mr Rowe. Mr Selwyn was alone in the vehicle, reclined in the front passenger seat. The Police attempted to get his attention, but he remained

unresponsive. Police Sergeant Alderton used a baton to break the back rear window of the vehicle. At this point Mr Selwyn got out of the car. He was clearly affected by alcohol.

[8] After exiting the car, Mr Selwyn was requested to undertake a breath screening test at 8:35 am. He refused to do so. He was therefore requested to accompany Senior Constable Missen to the Huntly Police Station for the purposes of undertaking the breath or blood test procedures.

[9] At 9:07 am, Mr Selwyn was given his Bill of Rights which were read to him from the Breath and Blood Alcohol Procedure sheet. Mr Selwyn elected to consult a lawyer, but chose not to consult one from the list provided by…

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 Selwyn v Police

Details

AGLC: Selwyn v Police [2015] NZHC 3185
Case: [2015] NZHC 3185
Decision Date: 15 December 2015

CaseChat Overview and Summary

Mr Selwyn was convicted by Judge Collin of one charge of driving a motor vehicle while disqualified from holding or obtaining a driver’s licence and one charge of refusing to provide a blood specimen. Mr Selwyn appealed both convictions, arguing that the Judge erred in law by treating the description evidence as identification evidence and failing to give himself an identification warning. He also argued that there was no good cause to require a breath screening test and that he did not refuse to give a blood specimen. In response, the Crown submitted that the Judge correctly treated the evidence of Mr Rowe as description evidence and the evidence was sufficient to allow a reasonable person to conclude that Mr Selwyn was the driver. The Crown also submitted that there was good cause to require a breath screening test and that Mr Selwyn refused to give a blood sample.

The Court rejected the appellant’s arguments. The Judge did not treat the evidence of Mr Rowe as identification evidence and there was no need for an identification warning. There was good cause to require a breath screening test as the vehicle was in the appellant’s name, he was the only person in the vehicle, he smelt of alcohol and the vehicle was found in the location reported by Mr Rowe. The appellant refused to give a blood specimen and the Judge was entitled to find that the refusal was a conscious, definite decision on the part of the appellant. The appeal against conviction was dismissed.

Orders