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

[2020] NZCA 466

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)

1. 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].

2. 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.

1. 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.

2. 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.

3. 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