Smith v Police HC Auckland CRI-2011-404-000216

[2011] NZHC 1155

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000216

BETWEEN  HIMIONA JAMES SMITH Appellant

ANDPOLICE Respondent

Hearing:         30 August 2011

Appearances: K K Harding for Appellant

Z R Johnston for Respondent

Judgment:      27 September 2011

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on

27 September 2011 at 12.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

K K Harding, PO Box 105 590, Auckland

SMITH V POLICE HC AK CRI-2011-404-000216 27 September 2011

[1]      This is an appeal against conviction on a charge of driving with excess breath alcohol.    The appellant challenged the conviction on the basis that the contemporaneous notes  dealing with the implementation of the EBA procedures record that the appellant was given only two minutes to decide whether to take a blood test.  If that is what in fact happened, it is accepted by the New Zealand Police that that would be a substantial breach of the statutory requirement under s 77(3) of the Land Transport Act 1998 to allow the appellant at least ten minutes to consider this option.

[2]      The appeal is complicated by the fact that the District Court is unable to provide a transcript of the proceedings in that Court or the notes of reasons for the District Court’s decision to convict.   The appellant complains that he has  been severely prejudiced by this as the basis for conviction rested on the evidence of the constable that the appellant was afforded 12 minutes to make up his mind.

[3]      The  appellant’s  concerns  have  merit  on  their  face.    A  finding  that  the appellant was given 12 minutes not two minutes to make a decision is not easily reconcilable with the contemporaneous notes.  It would be somewhat dangerous to disregard that evidence on an appeal when it concerns an important step which provides protection in the EBA process.

[4]      The respondent helpfully suggested the following potential responses:

7The absence of the notes of evidence and transcript of the Judge’s decision presents some  difficulty for this  Court on appeal.   The respondent submitted the following options are available in such a circumstance:

(a)       Adjourn  the  hearing  of  the  appeal  and  request  that  the District Court provide any written notes that are available, and/or request a memorandum from the Judge who presided over the defended hearing;

(b)       The High Court may exercise its discretion to rehear the evidence of Constable Burns in the High Court (as provided for by s 119(2) Summary Proceedings Act 1957);

(c)      Set the conviction aside and order a rehearing in the District

Court;

(d)       Set the conviction aside and decline to order a rehearing in the District Court;

(e)       Determine  the  appeal  on  the  basis  of  the  summary  of evidence given by the appellant in the notice of appeal, and submissions filed by counsel.

[5]      I am not attracted to the suggestion at paragraph 7(c) as that would prolong an already elongated procedure.  The matter was first set down for a status hearing on 21 September 2010.  It was then deferred to 15 November 2010, at which point it was set down for hearing on 1 February 2011.   On 1 February it was a back-up fixture only and did not go ahead.  It was finally heard on 16 May 2011.  In these circumstances, it would not serve the interests of justice to have this matter fully relitigated because the District Court transcription services failed.

[6]      Nor am I attracted to the option of hearing the constable’s evidence again.

That would in effect constitute a full rehearing with associated cost and delay.

[7]      While Ms Harding pressed me to set aside the conviction and/or determine the matter on the basis of the papers before me, I am not satisfied that there is a proper basis for doing so.   The interests of justice are not one-sided in a context where the administrative error lies with the District Court.  Both the Crown and the accused have an interest in seeing justice achieved.  Dismissing the Crown’s case in sole reliance on the contemporary notes would hardly serve the wider public interest in the fair administration of criminal justice.

[8]      In those circumstances I am going to adjourn this matter to allow the District Court Judge to provide written reasons for the decision to convict.   Within this, I seek an indication from the Judge as to whether there was any direct evidence in this case that the constable afforded more than ten minutes to this accused to make a decision in accordance with s 77(3) of the Land Transport Act.  If there was direct evidence, I further seek clarification as to the form of that direct evidence.

[9]      Once  I  have  the  Judge’s  reasons,  I  will  call  upon  counsel  to  provide

submissions for the purposes of resolving the position one way or another.

[10]     Orders accordingly.

Whata J