The Queen v Allen - [2006] NZCA 77

IN THE COURT OF APPEAL OF NEW ZEALAND
CA15/06
THE QUEEN
v
DAVID RICHARD ALLEN
Hearing:11 April 2006

Court:William Young P, Chambers and O'Regan JJ
Counsel:D J Allan for Appellant

A M Powell and J D Sutton for Crown

Judgment:4 May 2006

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
REASONS
(Given by O’Regan J)
Admissibility of evidence of an evidential breath test
[1]       The appellant was convicted after a jury trial at the Hamilton District Court on one count of driving while the proportion of alcohol in his breath exceeded 400 micrograms per litre of breath, having been convicted at least twice previously of such an offence (s 56(1) and (4) of the Land Transport Act 1998). He was sentenced by the trial Judge, Judge MacLean to imprisonment for a term of 12 months. He now appeals against his conviction, on the basis that the Judge made an error of law in admitting as evidence a printout obtained from the evidential breath-testing device used to test the appellant. He argued that the Judge ought to have excluded it under a residual discretion to rule unsafe evidence of a positive evidential breath test inadmissible where the validity of the test is in doubt.
[2]       The police officer who conducted the breath test gave evidence that he stopped the vehicle driven by the appellant just after midnight on New Years Day 2005. The appellant underwent a passive breath test which he failed, and was then asked to undergo a breath screening test. He refused. The principal factual issue at the trial was whether the appellant had in fact refused this test, but the jury obviously found that he had. If he had not, there would have been no proper basis for the subsequent actions taken by the police officer.
[3]       The appellant was taken to the police station for an evidential breath test. This was undertaken using a Seres Ethylometre machine. The test was conducted in accordance with clause 10 of the Transport (Breath Tests) Notice (No 2) 1989 and appropriate cautions were given. The result was an evidential breath reading of 509 micrograms of alcohol per litre of breath.
[4]       There were two unusual aspects of the test, however. The first was that the appellant made six unsuccessful attempts to generate adequate samples of breath, and one successful subject test was taken. Normally the machine records a positive evidential breath test from the lower of two successful tests. The second was that the card on which the machine prints the result of the evidential breath test jammed. Consequently, the printed card did not include the serial number of the testing machine or the complete record of the steps taken in reaching the evidential breath test result. The device normally produces a results card which records both of these matters. The police officer noticed at the time that the card did not record the device’s serial number and hand wrote the serial number on the card.
Submissions
[5]       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 The Queen v Allen

Details

AGLC: The Queen v Allen [2006] NZCA 77
Case: [2006] NZCA 77
Decision Date: 4 May 2006

CaseChat Overview and Summary

In the case of The Queen v Allen, the appellant, David Richard Allen, was convicted by a jury in the Hamilton District Court of driving while the proportion of alcohol in his breath exceeded 400 micrograms per litre of breath, having been convicted at least twice previously of such an offence. He was sentenced to imprisonment for a term of 12 months. Allen appealed against his conviction, arguing that the Judge made an error of law in admitting as evidence a printout obtained from the evidential breath-testing device used to test him. He contended that the Judge ought to have excluded it under a residual discretion to rule unsafe evidence of a positive evidential breath test inadmissible where the validity of the test is in doubt.

The legal issues the court was required to decide included whether the Judge had a residual discretion to rule the evidence of the breath test inadmissible and whether the evidence relating to the refusal to take the roadside breath screening test and all the details of the manner in which the evidential breath test was taken at the police station should have been heard by the Judge alone. The court also considered whether the manner in which the trial was conducted raised another issue, which was not referred to by counsel, and whether a miscarriage of justice resulted from this.

The court held that the Judge did not err in admitting the evidence of the breath test, as there is no discretion to exclude as evidence the card recording the result of an evidential breath test on the basis that the result may be affected by a malfunction of the breath testing device. The court further held that while some residual discretion as to admissibility of evidence may remain, it could not accept the submission that in appropriately rare cases the court has a residual discretion to rule unsafe evidence of a positive evidential breath test inadmissible, where the validity of the test is in doubt. The court dismissed the appeal against conviction.

The final orders of the court were that the appeal against conviction is dismissed.

Orders