Sullivan v Police - [2018] NZCA 336

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA166/2018
[2018] NZCA 336

BETWEEN	STRUAN ANTHONY SULLIVAN Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 August 2018
Court:	Kós P, French and Miller JJ
Counsel:	T J Jackson for Applicant M J Lillico for Respondent
Judgment:	31 August 2018 at 11 am

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Mr Sullivan was convicted of driving with excess blood alcohol following a defended hearing in the District Court before Judge Maze.[1] Mr Sullivan appealed his conviction to the High Court. The appeal was dismissed by Davidson J.[2]
[1]Police v Sullivan [2017] NZDC 25905 [DC decision].
[2]Sullivan v Police [2018] NZHC 397 [HC decision].
Dissatisfied with that outcome, Mr Sullivan now wishes to appeal to this Court. Because it would be a second appeal, leave is required under s 237 of the Criminal Procedure Act 2011.

Background

Police stopped a vehicle being driven by Mr Sullivan and administered a breath alcohol test. The result indicated he was over the limit. He then accompanied the officer to the police station. After advising him of his rights, police administered an evidential breath test which was also positive.
Mr Sullivan was advised of the test result at 22.23 and told pursuant to s 70A of the Land Transport Act 1998 that he had 10 minutes in which he could elect to have a blood test. He was advised of his right to seek legal advice. He indicated at 22.23 that he wished to speak to a lawyer. There was an argument about signing an acknowledgment he had been advised of his rights. At 22.26 he again said he wanted to speak to a lawyer. At 22.34, with the officer’s permission, he left the station to go to his vehicle to get his lawyer’s contact details.
The officer told him he must return within 10 minutes if he wanted to have a blood test taken. It was common ground this was incorrect advice because of established authority that any time reasonably taken in the exercise of the right to consult a lawyer should be excluded from the calculation of the 10 minutes.[3]
[3]Rae v Police [2000] 3 NZLR 452 (CA) at [53].
After speaking to a lawyer, Mr Sullivan returned to the station at 22.59 and requested a second evidential breath test. When this was declined, he asked for a blood sample to be taken. At 23.05, the officer again read him his rights and although the officer considered the 10 minute time period had expired he was prepared to accede to the request for a blood test. Mr Sullivan was then driven to the hospital where a sample of blood was taken.
At trial, the officer testified that he despatched the sample to ESR for analysis. The prosecution produced a certificate of analysis from ESR stating that the sample contained 134 plus or…

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 Sullivan v Police

Details

AGLC: Sullivan v Police [2018] NZCA 336
Case: [2018] NZCA 336
Decision Date: 31 August 2018 at 11 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Struan Anthony Sullivan, the applicant, sought leave to appeal against his conviction for driving with excess blood alcohol. Sullivan had previously appealed his conviction to the High Court, which was dismissed. Sullivan now sought to appeal to the Court of Appeal. The court had to decide whether to grant Sullivan leave to appeal, given that it would be a second appeal and required leave under s 237 of the Criminal Procedure Act 2011.

The legal issues were whether the proposed grounds for appeal involved a matter of general or public importance or that a miscarriage of justice had occurred or may occur unless the appeal was heard. Sullivan argued that there was too much uncertainty about when the 10-minute election period began, was suspended, and ended, and that his right to an uncluttered election was or may have been compromised. Sullivan further argued that there was non-compliance with s 70A because he was not under direct supervision or observation when he went to his car and therefore ceased to be detained. Sullivan also argued that the failure to provide an occupation on the certificate of analysis meant the sample was unable to be attributed to him. However, the Court was not persuaded that these matters justified granting leave to appeal.

The Court of Appeal declined Sullivan's application for leave to appeal. The court found that the calculation of the 10-minute period was case-specific and not of general importance. The court also found that both the District Court and the High Court had found the election was made within 10 minutes. Even if the time period was longer than 10 minutes, there had been no prejudice to Sullivan, and thus no risk of a miscarriage. The court found that the exclusion of s 76 from s 64(2) did not affect the curative powers of s 64(2) as the presumption in s 76 relates to a certificate given under s 75, which is expressly covered by the reasonable compliance provision. The court found that the reasoning in Moore v Police gave a straightforward construction to the words of the statute and accorded with the underlying policy that defendants should not escape convictions for drink driving on unmeritorious technicalities.

The Court of Appeal declined Sullivan's application for leave to appeal.

Orders