Tebbs v Police - [2013] NZHC 423

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-000250 [2013] NZHC 423

STEPHEN ROSS TEBBS
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 5 March 2013

Counsel: R D Mulgan and D MacLaurin for the Appellant
K Francis for the Respondent

Judgment: 6 March 2013

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 6 March 2013 at 4.30 pm
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Distribution:
R D Mulgan: 09 575 4440
K Francis: Kim.francis@meredithconnell.co.nz

TEBBS V POLICE HC AK CRI 2012-404-000250 [6 March 2013]

[1] Mr Tebbs seeks leave to appeal my reserved judgment dated 18 December

2012.

[2] In that judgment, I upheld a decision of Judge N R Dawson sitting in the District Court, in which he found that Mr Tebbs was guilty of driving with excess blood alcohol pursuant to s 56(2) of the Land Transport Act 1998. I held that the presumption contained in s 77(2) of the Act is concerned with timing, and that the subsection does not go so far as to suggest that tests carried out by ESR for the police, or tests carried out by a private analyst for the accused, are presumed to be correct. Further, I held that the use of glass bottles with plastic screw tops for the storage of an accused’s blood prior to analysis complied with the then relevant statutory provisions, and did not preclude the blood from being a “blood specimen” in terms of the Act.

[3] Mr Tebbs seeks to raise three questions for the opinion of the Court of

Appeal. The questions suggested by counsel for Mr Tebbs are as follows:

(a) Is the conclusive presumption in s 77(2) a bar to the Court considering evidence that bears on the reliability of a blood result taken under the Land Transport Act 1998?;

(b)Is a sample of blood taken with a needle and syringe a blood specimen within the meaning of the Land Transport Act 1998?; and

(c) Is a sample of blood in a screw top bottle a blood specimen within the meaning of the Land Transport Act 1998?

[4] The application is opposed by the Crown.

[5] Mr Mulgan for Mr Tebbs submitted that each of the questions that Mr Tebbs wishes to take to the Court of Appeal are questions of law, and further, that they are questions of general or public importance such as to warrant submission to the Court of Appeal. He submitted that I should take the view that the questions ought to be submitted to the Court of Appeal, and grant leave accordingly.

[6] Mr Francis for the police submitted that the first and third questions are not of general or public importance, given changes to the relevant statutory provisions, and that the second question was not determined by me in my judgment. He further argued that any appeal is unlikely to succeed, and that the first question in particular is not dispositive of 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.

Continue reading Tebbs v Police

Details

AGLC: Tebbs v Police [2013] NZHC 423
Case: [2013] NZHC 423
Decision Date: 6 March 2013

CaseChat Overview and Summary

Tebbs sought leave to appeal against the High Court's decision upholding a District Court finding of guilt for driving with excess blood alcohol. The legal issues centered around the interpretation of the presumption in s 77(2) of the Land Transport Act 1998, whether a blood sample taken with a needle and syringe or in a screw top bottle constituted a "blood specimen" under the Act, and the compliance of using glass bottles with plastic screw tops for blood storage. The Court of Appeal was asked to determine if the questions posed by Tebbs warranted further consideration due to their general or public importance. The Crown opposed the application, arguing that some questions were of historical interest due to legislative changes and that others were not decided in the initial judgment. The High Court found that two of the proposed questions were suitable for appeal, specifically concerning the effect of the presumption in s 77(2) and the compliance of using glass bottles with plastic screw tops for blood storage. Leave to appeal was granted on the condition that Tebbs filed a notice of appeal within ten working days and proceeded with all reasonable expedition.

Orders