Sullivan v Police - [2009] NZCA 174

IN THE COURT OF APPEAL OF NEW ZEALAND
CA711/2008
[2009] NZCA 174
BETWEENMARK THOMAS SULLIVAN

Applicant

ANDNEW ZEALAND POLICE

Respondent

Hearing:4 May 2009

Court:Glazebrook, Potter and Venning JJ
Counsel:Z K Mohamed for Applicant

M A Woolford for Respondent

Judgment:7 May 2009 at 4.00 pm

JUDGMENT OF THE COURT

THE APPLICATION FOR SPECIAL LEAVE TO APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
[1]       Mr Sullivan was convicted of refusing to permit a blood specimen to be taken after having been required to do so: s 72 of the Land Transport Act 1998. The conviction followed a defended hearing before Judge Clarkson in the District Court at Manukau on 14 May 2008.
[2]       Keane J dismissed an appeal against conviction on 2 October 2008. Mr Sullivan then sought leave to appeal to this Court. Keane J dismissed that application on 31 October 2008. Mr Sullivan now seeks special leave under s 144(3) of the Summary Proceedings Act 1957 to appeal to this Court.
Factual background
[3]       The charge on which Mr Sullivan was convicted followed an incident late on the night of 10 January and in the early hours of 11 January 2008.
[4]       Two police constables, Brookbanks and Bhatt, stopped a car driven by Mr Sullivan. They formed the view he had been drinking. At 12.05 am Constable Bhatt required Mr Sullivan to undergo a breath screening test. The result was ‘failed general’. Constable Bhatt immediately required him to accompany her to the nearest police station for a breath or blood test or both. Mr Sullivan was at first unwilling but finally got into the patrol car under protest.
[5]       When they arrived at the Manurewa Police Station, Mr Sullivan was first unwilling to get out. When he did get out he continued to protest. Constable Bhatt said at 12.13 am she told Mr Sullivan he had enjoyed his last chance. She was obliged to arrest him. She said he effectively invited her to arrest him. That is what she did. At 12.20 am Constable Bhatt cautioned Mr Sullivan and advised him of his rights under the New Zealand Bill of Rights Act 1990 (the Bill of Rights), including his right to legal advice. She read out to him the standard caution and advice that is now set out in written forms found in police stations. Mr Sullivan said he did wish to speak to a lawyer. He was told he would be able to do so within the police station.
[6]       Mr Sullivan was taken initially to a holding cell. He remained there for as long as 25 minutes. That was partly accounted for by the time Constable Brookbanks took to make a computer check on Mr Sullivan. Constable Bhatt was herself preoccupied with completing the EBA check sheet. Constable Brookbanks then took over dealing with Mr Sullivan about the right to advice. Mr Sullivan wanted a pen and paper. Constable Bhatt was unwilling to provide the paper and pen because she did not want…

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 [2009] NZCA 174
Case: [2009] NZCA 174
Decision Date: 7 May 2009

CaseChat Overview and Summary

Mark Thomas Sullivan was convicted of refusing to permit a blood specimen to be taken after having been required to do so under s 72 of the Land Transport Act 1998. Sullivan appealed to the High Court, but the appeal was dismissed. Sullivan sought special leave to appeal to the Court of Appeal of New Zealand. The key issues in this case were whether the police officers breached Sullivan's rights by delaying the provision of a lawyer and pen and paper, and whether the arrest was lawful. The Court of Appeal found that the questions Sullivan raised were not questions of law, but rather issues of fact. The court concluded that the police officers had acted reasonably in trying to assist Sullivan's request for access to a lawyer, and that the refusal to provide a pen and paper did not impede Sullivan's right to access a lawyer or to prepare a defence. The Court of Appeal dismissed Sullivan's application for special leave to appeal.

The Court of Appeal held that the questions raised by Sullivan did not raise any question of law, let alone one of general or public importance. The Court found that the police officers had acted reasonably in trying to assist Sullivan's request for access to a lawyer, and that the refusal to provide a pen and paper did not impede Sullivan's right to access a lawyer or to prepare a defence. The Court concluded that the arrest was lawful and that the findings of the lower Courts were not erroneous. The Court of Appeal dismissed Sullivan's application for special leave to appeal.

Orders