Sullivan v Police - [2018] NZHC 397

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE TIHI-Ō-MARU ROHE

CRI-2017-476-000014 [2018] NZHC 397

STRUAN ANTHONY SULLIVAN

v

NEW ZEALAND POLICE

Hearing: 23 February 2018

Appearances:

T Jackson for Appellant
A R McRae for Respondent

Judgment:

12 March 2018

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1] Mr Sullivan was convicted on one charge of driving with excess blood alcohol in the District Court on 3 October 2017.1 He appeals the conviction on the grounds
that the blood test on which he was convicted should not have been admitted as evidence.

Background

[2] On 15 March 2017, Police stopped the vehicle driven by the appellant, and administered a breath alcohol test. The result indicated he was over the limit, and he

1 Police v Sullivan [2017] NZDC 25905.

accompanied the officer to the station. His rights were read to him and he elected not to seek legal advice. An evidential breath test was then administered. On the officer’s evidence it started at 22:13, but the print out from the testing device recorded 22:12. At 22:19 the officer advised the appellant the test was positive.

[3] The officer then advised the appellant that he had 10 minutes in which he could elect to have a blood test. According to the officer, at 22:23 the appellant refused to sign the record that he had been so advised. His rights were repeated and he elected to speak to a lawyer. At 22:26 he again refused to sign the acknowledgment that he had been advised of his rights. Mr Sullivan had contact details of his lawyer in his vehicle. The officer agreed he could get them, but said he must return within
10 minutes if he wanted to have a blood sample taken. According to the officer the appellant left the station at 22:34, and the 10 minute period began again.

[4] At 22:59 the defendant returned and asked for a second evidential breath test to be taken. When this was declined, he asked for a blood sample to be taken. At 23:05 the officer again read him his rights, and took the appellant to hospital for the sample to be taken.

[5] The officer couriered the sample to ESR, the customer portion of the tracking label reading E20-76614465. The Certificate of Analysis dated 20 March 2017 certifies that the blood sample delivered by NZ Couriers 2TDAE20 7661446527, taken from Struan Anthony Sullivan of 63 King Street Temuka, occupation not stated, contained 134 plus or minus 6 milligrams of alcohol per 100 millilitres of blood.

District Court decision

[6] Before Judge Maze, it was argued on Mr Sullivan’s behalf that the discrepancies between the customer tracking label and the certificate, and the failure to include the appellant’s occupation, amounts to sufficient ‘proof to the contrary’ under ss 75 and 76 of the Land Transport Act (“the Act”) to render the certificate without evidential value. It was also argued that the evidence failed to prove…

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] NZHC 397
Case: [2018] NZHC 397
Decision Date: 12 March 2018

CaseChat Overview and Summary

Struan Anthony Sullivan appeals against his conviction for driving with excess blood alcohol, arguing that the blood test on which he was convicted should not have been admitted as evidence. The District Court found that the test was properly taken and that the officer complied with the statutory requirements for its admission. The appeal to the High Court concerns the admissibility of the blood test result. The appellant argues that the time within which he could elect to have a blood test was not properly observed, and that the ESR certificate was defective. The Court rejects both arguments. It holds that the appellant was given a reasonable period to contact his lawyer, and that the officer did not err in allowing him to leave the station for that purpose. It also holds that the ESR certificate was properly admitted because the defect in it was cured by the reasonable compliance provision. The Court finds no miscarriage of justice, and dismisses the appeal.

Orders