Torres-Calderon v Police - [2018] NZHC 722

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-200

[2018] NZHC 722

BETWEEN
LEE OMAR TORRES-CALDERON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 November 2017

Counsel:

H Leabourn for Appellant M Mortimer for Respondent

Judgment:

19 April 2018

JUDGMENT OF DUFFY J

This judgment was delivered by me on 19 April 2018 at 11 am pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:
H Leabourn, Barrister, Auckland Meredith Connell, Auckland

TORRES-CALDERON v NEW ZEALAND POLICE [2018] NZHC 722 [19 April 2018]

[1] Following a Judge-alone trial in the Auckland District Court the appellant, Mr Torres-Calderon, was found guilty of driving with excess breath alcohol.1 At sentencing he sought a discharge without conviction. However, he was convicted and sentenced to pay a fine of $650, Court costs of $130, and was disqualified from holding or obtaining a driver’s licence for six months.

[2] Mr Torres-Calderon appeals against the conviction and the Judge’s refusal to grant a discharge without conviction.

Facts

[3] Mr Torres-Calderon is from Peru. In January 2016, he was living at Rannoch House as an artist in residence. At around 1 am on 11 January 2016 Mr Torres- Calderon was driving home when his vehicle collided with the rock wall at the entrance to Rannoch House, 77 Almorah Road, Epsom, Auckland. He injured his knee but was still able to make his way on foot into Rannoch House. Once inside he complained about the pain in his knee. Another person who was residing at Rannoch House called the St John Ambulance. The Police also went to Rannoch House. It is not clear to me from the evidence if this was the result of someone at Rannoch House calling the Police or whether the call to the St John Ambulance prompted Police attendance as well. Constable Skelton, who was the police officer who attended this incident said he was called to attend a vehicle collision in Almorah Road.

[4] Rannoch House is owned by the Wallace Arts Trust. Graeme Burton is a film producer for Wallace Productions Limited and an arts liaison for the Wallace Arts Trust. In the latter role, he has access to security film footage of passages in Rannoch House. By the time of the trial the film footage of 11 January 2016 had been wiped. However, Mr Burton recalled seeing Mr Torres-Caldron on film in the entranceway to Rannoch House at between 12.20 am and 12.30 am.

[5] Thomas Price, who was also residing at Rannoch House at the time, said in evidence that he gave Mr Torres-Calderon a large glass of red wine before the arrival

1 Land Transport Act 1998, ss 56(1) and 56(3)(a); the maximum sentence for which is three months’ imprisonment or a fine not exceeding $4,500.

of either the St John Ambulance or Constable Skelton. Mr Price said that he thought the collision had occurred on the way into the driveway of Rannoch House…

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 722
Decision Date: 19 April 2018

CaseChat Overview and Summary

The appellant, Lee Omar Torres-Calderon, was convicted in the Auckland District Court of driving with excess breath alcohol, contrary to the Land Transport Act 1998. The appellant appealed against his conviction and the judge's refusal to grant a discharge without conviction. The key issues in the appeal were whether the breath screening test was lawfully obtained and whether the conviction should be set aside on the basis that the consequences of a conviction would be out of proportion to the gravity of the offence. The High Court found that the breath screening test was unlawfully obtained as the police officer had no lawful basis to enter the appellant's bedroom. The Court also found that the appellant did not imply consent to the officer's presence in his bedroom. The unlawful basis for requiring the breath screening test undermined the legitimacy of the later steps of the breath testing regime. The unlawful breath tests could not be admitted under s 30 of the Evidence Act, and the conviction could not be saved. The Court found that the consequences of a conviction would be out of proportion to the gravity of the offence due to the potential impact on the appellant's visa and ability to receive therapeutic assistance in New Zealand. The appeal against conviction was allowed, and the conviction was set aside.

Orders