Tallentire v Police - [2012] NZHC 1546

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-019-000112 [2012] NZHC 1546

BRETT JASON TALLENTIRE
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 25 June 2012

Counsel: RD Mulgan and AL Simpson for Appellant
W Fotherby for Respondent

Judgment: 2 July 2012

JUDGMENT OF ASHER J

This judgment was delivered by me on Monday, 2 July 2012 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/counsel:
RD Mulgan, 51 Pembroke Crescent, Glendowie, Auckland 1071. Email: mulgan@xtra.co.nz
AL Simpson, 1/11 Freeman Way, Manukau 2104. Email: thesimpsons@paradise.net.nz
Crown Solicitor, DX CP24063, Auckland 1140. Email: William.fotherby@meredithconnell.co.nz

TALLENTIRE V NZ POLICE HC AK CRI-2011-019-000112 [2 July 2012]

[1] On 19 October 2011, the appellant, Brett Tallentire, was convicted of refusing to provide a blood specimen after having been required to do so under s 72 of the Land Transport Act 1998. He appeals that conviction and the sentence imposed.

[2] Mr Tallentire had been observed driving a vehicle erratically after leaving a hotel. He crossed over the centreline and drove down the middle of the road for a period. When he was stopped, his vehicle was positioned half on the road and half on the grass verge. The policeman involved, Sergeant Pabst, described him as being grossly intoxicated. Mr Tallentire admitted having drunk about three jugs of beer.

[3] Mr Tallentire failed a breath screening test. He was asked by Sergeant Pabst to accompany him to the Rangiora Police Station to undertake an evidential breath test, blood test or both.

[4] The Sergeant set out for Mr Tallentire his rights under the New Zealand Bill of Rights Act 1990 (NZBORA). There was an exchange, which will be dealt with in greater detail later in this judgment, that led to Sergeant Pabst taking the view that Mr Tallentire had refused to undertake a blood test.

[5] Mr Mulgan for Mr Tallentire stated on appeal that the Judge erred in finding that:

(a) The Police adequately facilitated Mr Tallentire’s right to contact a

lawyer of his choice; and

(b) Mr Tallentire by his actions had refused to provide a blood sample.

The District Court decision

[6] The Judge set out Sergeant Pabst’s evidence in detail and defence counsel’s criticism of that evidence. He summarised the relevant case law. He concluded that Mr Tallentire had been provided with a reasonable opportunity to contact a lawyer.

In any event, the Judge stated that he would not have excluded the evidence under s

30 of the Evidence Act 2006 as this would be disproportionate to the breach of the right. He then went on to consider the submission that there was no refusal to give a blood sample. He determined that, in the circumstances, the requirement by Mr Tallentire to be provided with the name of the doctor was not reasonable and there had been a refusal.

[7] It is now necessary to consider the points raised on appeal in detail.

Failure to provide access to lawyer of choice – relevant facts

[8] When…

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.

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Details

Case: [2012] NZHC 1546
Decision Date: 2 July 2012

CaseChat Overview and Summary

In Tallentire v Police, the appellant, Brett Tallentire, appealed against his conviction and sentence for refusing to provide a blood specimen after being required to do so under section 72 of the Land Transport Act 1998. The appeal focused on two main issues: whether the Police adequately facilitated Mr Tallentire's right to contact a lawyer of his choice under section 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) and whether there had been a refusal to provide a blood sample. Mr Tallentire had been arrested for driving erratically and was asked to provide a blood specimen at the police station. He requested to contact a lawyer, Mary Shanahan, but the police were unable to find her contact details. Mr Tallentire argued that the police did not do enough to facilitate his right to consult a lawyer of his choice.

The Court considered whether the police took reasonable action to facilitate Mr Tallentire's exercise of his right under section 23(1)(b) of the NZBORA. The Court noted that while the police did attempt to find Ms Shanahan's contact details, Mr Tallentire's aggressive and threatening behavior made it reasonable for the police to be cautious about leaving him unattended. The Court concluded that the police had taken reasonable action to facilitate Mr Tallentire's exercise of his right under section 23(1)(b) of the NZBORA, and this ground of appeal failed. Regarding the refusal to provide a blood sample, the Court found that Mr Tallentire's request for the name of the doctor made an unreasonable condition on his consent, amounting to a refusal under section 60(1)(a) of the Land Transport Act. Therefore, this ground of appeal also failed. The appeals against conviction and sentence were dismissed.

Orders