Tatarzycki v Police - [2022] NZHC 1465

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000079

[2022] NZHC 1465

BETWEEN
ANDREW RICHARD TATARZYCKI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 June 2022

Counsel:

A J Haskett for Appellant

P E Hayward for Respondent

Judgment:

27 June 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 27 June 2022 at 12 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Auckland. A J Haskett, Auckland.

TATARZYCKI v POLICE [2022] NZHC 1465 [27 June 2022]

The appeal

[1] This appeal again raises what is known as the “Block J” warning, an aspect of a form used by Police in the context of suspected drink-drive offending. It concerns events of two and a half years ago.

The offending

[2] Andrew Tatarzycki was driving in or about Auckland late on the evening of 24 January 2020. He had earlier drunk “four beers”.1 At midnight, Senior Constable Matthew Wickens stopped Mr Tatarzycki for apparent speeding. The officer noticed Mr Tatarzycki’s speech was slurred, his eyes were bloodshot, and he smelt of alcohol.2

[3] Senior Constable Wickens required Mr Tatarzycki to undergo an evidential breath screening test. Mr Tatarzycki blew more than 400 micrograms of alcohol per litre of breath. The officer then required Mr Tatarzycki to accompany him to the Orewa Police Station for an evidential breath test, blood test or both; and told Mr Tatarzycki of his right to counsel.3

[4] Once at the station, the officer again told Mr Tatarzycki of his right to counsel. He then conducted an evidential breath test. Mr Tatarzycki blew 575 micrograms of alcohol per litre of breath. Senior Constable Wickens told Mr Tatarzycki unless he requested a blood test within 10 minutes, the evidential breath test “he had just undergone could of itself be [conclusive] evidence in a prosecution against him under the Land Transport Act 1998”. He also told Mr Tatarzycki if he underwent a blood test, the evidential breath test “cannot be used in court proceedings to support a charge of driving … with excess breath alcohol … but the result of the blood test may be used to support a charge based on analysis of the blood alcohol concentration”. The officer gave Mr Tatarzycki a form recording both pieces of advice, which Mr Tatarzycki signed.

[5]Mr Tatarzycki did not elect to have a blood test.

1      Exhibit 1 in the District Court, p 1.
2      The officer circled the “YES” box for each on the form he made at the time.
3      New Zealand Bill of Rights Act 1990, s 23(1)(b).

[6] Mr Tatarzycki was charged with speeding and driving with excess breath alcohol. In relation to the latter, he pleaded not guilty. Mr Tatarzycki’s defence to that charge is best explained after brief discussion of the applicable law.4

The law

[7] Section 77 of the Land Transport Act 1998 provides an evidential breath test is conclusive evidence of the alcohol in the defendant’s breath in relation to a…

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 Tatarzycki v Police

Details

AGLC: Tatarzycki v Police [2022] NZHC 1465
Case: [2022] NZHC 1465
Decision Date: 27 June 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Andrew Tatarzycki appealed against his conviction and sentence for driving with excess breath alcohol. The court was required to decide whether the prosecution had established that Mr Tatarzycki understood he was at risk of conviction when he made the election not to seek a blood specimen. The court also needed to determine whether the police had reasonably complied with their obligations under the relevant statutory provision. Downs J held that the prosecution had established that Mr Tatarzycki was aware he was at risk of conviction at the material time. The court found the evidence of Mr Tatarzycki to be unreliable, given the circumstances identified above. The court concluded that this case afforded an obvious instance of reasonable compliance. The appeal was dismissed.

The court ordered that the appeal be dismissed.

Orders