Solicitor-General's Reference (no 2 of 2020)

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA491/2020
[2020] NZCA 466

IN THE MATTER OF

SOLICITOR-GENERAL’S REFERENCE (NO 2 OF 2020) FROM CRI-2018-004-708, DISTRICT COURT AT AUCKLAND

Court:	Kós P and Collins J
Counsel:	C A Brook and R K Thomson for Referrer
Judgment: (On the papers)	1 October 2020 at 2 pm

JUDGMENT OF THE COURT

ALeave is granted to the Solicitor-General to refer the following question of law to this Court:
Was the Judge correct to find that the evidential blood sample obtained following the procedure in Police Procedure Sheet POL515 09/19 was inadmissible by reason only of the wording of Block J?

BThe reference is to be heard in conjunction with Solicitor-General’s Reference CA397/2020 on 22 October 2020.
CThe registry is to appoint counsel to assist the Court, being the same counsel assisting with respect to Solicitor-General’s Reference CA397/2020.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

On 5 August 2020, this Court granted leave to the Solicitor-General to refer two questions of law concerning the admissibility of evidential breath tests in circumstances where the advice given to motorists under s 77 of the Land Transport Act 1998 differed from the statutory language.[1] That reference, Solicitor-General’s Reference CA397/2020, is to be heard by this Court on 22 October 2020, and counsel assisting has been appointed as contradictor.
[1]Re Solicitor-General [2020] NZCA 330 [Solicitor-General’s Reference CA397/2020].
The Solicitor-General now seeks leave to refer a further question under s 313(1) of the Criminal Procedure Act 2011, arising from the decision of Judge Gibson in the District Court at Auckland in Police v Neutze.[2] The question posed is:
Was the Judge correct to find that the evidential blood sample obtained following the procedure in Police Procedure Sheet POL515 09/19 was inadmissible by reason only of the wording of Block J?
[2]Police v Neutze [2020] NZDC 12815.

We are satisfied the criteria for leave under s 313(1) are met. The reference raises a related but distinct question to those being considered in Solicitor-General’s Reference CA397/2020. Leave to refer is granted.
We direct that the reference is to be heard in conjunction with Solicitor‑General’s Reference CA397/2020 on 22 October 2020. The registry is to appoint counsel to assist the Court,[3] being the same counsel assisting with respect to Solicitor-General’s Reference CA397/2020.
[3]Pursuant to s 314(4) of the Criminal Procedure Act 2011.
Bearing in mind its interest in the earlier reference, a copy of this judgment is to be sent to the Defence Lawyers Association of New Zealand Inc.

Solicitors:
Crown Law Office, Wellington for Referrer

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard a case brought by the Solicitor-General concerning the admissibility of an evidential blood sample obtained in a criminal case. The case originated from the District Court at Auckland, where Judge Gibson ruled that a blood sample taken following the procedure outlined in Police Procedure Sheet POL515 09/19 was inadmissible due to the wording of Block J. The appeal was brought under section 313(1) of the Criminal Procedure Act 2011, raising a question about the correctness of the Judge's finding.

The legal issue before the Court was whether the Judge was correct to deem the blood sample inadmissible solely because of the wording in Block J of the procedure sheet. The Court was tasked with reviewing the decision made by Judge Gibson and determining if it was in line with the relevant legal standards. This required the Court to examine the procedure outlined in the Police Procedure Sheet and the specific wording of Block J to assess its impact on the admissibility of the evidence.

In granting leave for the reference, the Court found that the criteria under section 313(1) of the Criminal Procedure Act 2011 were satisfied. The question raised by the Solicitor-General was deemed to be distinct from the issues considered in a related reference, Solicitor-General’s Reference CA397/2020. The Court concluded that the matter warranted further examination and decided to hear the reference alongside the earlier case on 22 October 2020. Counsel assisting with the earlier reference was appointed to assist with this matter as well, ensuring continuity and efficiency in the legal proceedings.

The Court also directed that a copy of the judgment be sent to the Defence Lawyers Association of New Zealand Inc, given their interest in the related reference. The Crown Law Office, Wellington, represented the referrer in the proceedings. This case underscores the importance of precise procedural wording and its potential impact on the admissibility of evidence in criminal cases.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established