Tule v Police - [2012] NZHC 2565

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-000104 [2012] NZHC 2565

BETWEEN ARANUI JENNIFER TULE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 18 September 2012

Appearances: J A Hope for Appellant
S N Cameron for Respondent

Judgment: 4 October 2012

JUDGMENT OF VENNING J

This judgment was delivered by me on 4 October 2012 at 11.00 am, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Crown Solicitor, Hamilton
Copy to: J A Hope, Hamilton

TULE V NZ POLICE HC HAM CRI-2011-419-000104 [4 October 2012]

Introduction

[1] Following a defended hearing in the District Court at Thames the appellant was convicted on one count of refusing to provide a blood sample and one count of, with intent to intimidate, threatening.1

[2] On 31 October 2011 Judge Connell sentenced the appellant to a total of 40 hours community work and disqualified her from holding or obtaining a driver’s licence for a period of six months.2 The appellant has served her sentence and the period of disqualification but maintains her appeal against conviction.

Background

[3] I take the background from the Judge’s decision and the notes of evidence I have reviewed. On 7 August 2010 Constable Clark was on duty in the Whitianga area in a marked patrol car. At about 9.50 pm he saw a Subaru station wagon turn right from Kupe Drive into South Highway towards him. As he watched, the vehicle crossed both lanes and mounted the concrete kerb up onto the grass verge before turning into the road. Constable Clark was immediately concerned the driver was intoxicated. He made a u-turn to follow the Subaru and activated his blue and red lights. As he followed the Subaru he observed it had damage to the rear right bumper and the bumper was covered in mud. After carrying on for approximately
200 metres the Subaru stopped outside a party that was going on at 141 Robinson

Road.

[4] Constable Clark stopped immediately behind the Subaru. The appellant was the driver. She got out of the driver’s door, moved around the front of the vehicle and went on to the property towards the house at 141 Robinson Road. The officer got out of his patrol car, called to the appellant (whom he recognised) and asked her to stop. The appellant ignored him and went to run up the driveway. The officer ran to catch her. He took hold of her by her left arm and advised her that he required her
to undergo a breath screening test. The appellant immediately became aggressive

1 Police v Tule DC Thames CRI-2010-75-836, 28 October 2011.
2 Police v Tule DC Thames CRI-2010-75-836, 31 October 2011.

and verbally abusive. She turned and punched the officer in the face with her right fist. She threw her arms around and attempted to kick him. The officer took her to the ground, applied handcuffs and then, with some difficulty, returned her to his patrol car and placed her in the rear seat.…

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 Tule v Police

Details

AGLC: Tule v Police [2012] NZHC 2565
Case: [2012] NZHC 2565
Decision Date: 4 October 2012

CaseChat Overview and Summary

Aranui Jennifer Tule appealed against her convictions in the District Court for refusing to provide a blood sample and threatening a police officer with intent to intimidate. Tule was convicted following a defended hearing. She was sentenced to 40 hours of community work and disqualified from holding or obtaining a driver’s licence for six months. Tule maintained her appeal against conviction. The central issue was whether the police officer had lawful grounds to stop Tule and require her to undergo a breath screening test. The High Court found that the officer had good cause to suspect Tule had been drinking and was entitled to require her to undergo a breath screening test. The officer was entitled to require her to stop and remain stopped for that purpose. Tule’s failure to comply with this request amounted to an offence under the Land Transport Act 1998. The High Court found that the officer’s actions did not amount to unlawful detention. The Court also found that the officer had followed the correct process leading up to the request for blood from Tule. The appeal against conviction on both charges was dismissed.

Orders