Tamaira v Police - [2018] NZHC 3380

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI 2018-454-13

[2018] NZHC 3380

BETWEEN
MARCUS KONRAD WELBY TAMAIRA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 November 2018

Counsel:

P L Murray for Appellant

M G Wilkinson and S P Poulton for Respondent

Judgment:

18 December 2018

JUDGMENT OF SIMON FRANCE J

[1] Following a motor vehicle accident involving a car which he was driving, Mr Tamaira was located at a petrol station. He had walked there in order to ring a taxi. It was apparent he had been drinking. Breath alcohol procedures were initiated. The ultimate outcome was a blood alcohol reading of 243 mg of alcohol per 100 ml of blood, nearly five times the legal limit.1 Mr Tamaira was duly convicted.2

[2] On appeal Mr Tamaira renews a challenge to the process by which that blood alcohol reading was obtained. It is claimed that in the early stages of the process there was non-compliance with statutory procedures, and a short period of unlawful detention, the consequence of which should have been exclusion of the blood alcohol evidence.

1 Land Transport Act 1998, s 56(2) and (2A).
2 New Zealand Police v Tamaira [2018] NZDC 18334.

TAMAIRA v POLICE [2018] NZHC 3380 [18 December 2018]

[3]The procedural route to the blood alcohol test, was:

(a)a passive screening test that recorded the presence of alcohol;

(b)a breath screening test that gave a reading over the statutory limit;

(c)an evidential breath test which did likewise; and

(d)as requested by Mr Tamaira, a blood alcohol test.

[4]Two challenges are made here:

(a)first, it is submitted it was not established on the evidence that the second step of a breath screening test was done at all; and

(b)second, if it was, the method by which it was done is said to have involved an unlawful detention requiring exclusion of evidence as a response.

Was there a breath screening test?

[5] Mr Tamaira was located by police at the petrol station where he had gone to ring a taxi. The police officer had in his hand an alcohol screening device. This device performs two functions. A passive screening test can be done by requiring the driver merely to speak into the device. It will read positive or not to the presence of alcohol. The device can also be used for the breath screening process but this requires a plastic tube to be fitted to it. The driver then blows into it and an actual reading is obtained, although it will only be something such as “over 400” (the previous limit).

[6] CCTV footage of the incident appears to show that inside the petrol station the device being carried by the police officer did not have a tube attached, nor did the officer appear otherwise to be carrying one. Consistent with this, the officer testified that he keeps the tubes in the police car. Mr Tamaira can be seen to speak at the…

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: [2018] NZHC 3380
Decision Date: 18 December 2018

CaseChat Overview and Summary

The case of Tamaira v Police concerned a challenge to the process by which a blood alcohol test was obtained after the appellant was involved in a motor vehicle accident. The appellant claimed that non-compliance with statutory procedures and unlawful detention during the process should have led to the exclusion of the blood alcohol evidence. The court was required to decide whether there was a breath screening test conducted, and if so, whether it was lawful. The court found that the evidence established a breath screening test was conducted, despite discrepancies in the officer's notebook and the CCTV footage. The court also found that any brief period of unlawful detention did not warrant the exclusion of evidence under s 30 of the Evidence Act 2006, as the detention was minimal, and the exclusion of evidence would have been a disproportionate response. The appeal was dismissed. The court acknowledged the potential for appellate attention in the area of detention powers under the Land Transport Act 1998, but found that the evidence in this case did not warrant exclusion under s 30 of the Evidence Act 2006.

Orders