Urlich v Police - [2019] NZHC 457

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2017-470-000035

[2019] NZHC 457

IN THE MATTER OF an appeal against District Court decision

BETWEEN

CORY ALEXANDER URLICH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:
5 February 2019

[Further submissions received 19 and 21 February 2019]

Counsel:

T D Clee for the Appellant

A J Pollett for the Respondent

Judgment:

15 March 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 15 March 2019 at 11.30 am, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Counsel: T D Clee, Auckland

Solicitors: Pollett Legal (Office of the Crown Solicitor), Tauranga

URLICH v POLICE [2019] NZHC 457 [15 March 2019]

Introduction

[1] In late 2016, Mr Urlich pleaded guilty to one charge of driving while under the influence of a controlled substance.1 Subsequently, Mr Urlich applied to set aside his guilty plea. That application was declined by the Community Magistrate,2 and the appeal from that decision was also dismissed by the District Court.3 Mr Urlich seeks leave to file a second appeal.

[2] Mr Urlich claims that an ambulance officer breached the Health Information Privacy Code 1994 (the Code) by passing on to police her suspicion that Mr Urlich was under the influence of drugs. Mr Urlich had earlier admitted to the ambulance officer that he had consumed cannabis that day. He argues that this breach by the ambulance officer would have led to the exclusion of the evidence underpinning the charge. Mr Urlich says that his lawyer failed to advise him of this possible defence, and had he known of it, he would not have pleaded guilty.

[3] The respondent opposes leave on the grounds that there is no question of general or public importance, and no risk of a miscarriage of justice. The respondent says that there was no breach of the Code because any disclosure fell within one of two exceptions to the general prohibition on disclosure of health information. In the absence of a breach, the respondent says there was no tenable defence available that the evidence underpinning the charge would be excluded, and no miscarriage of justice would result if the guilty plea was not set aside.

Key events

[4] The charge arose out of a car crash on 5 April 2016. Mr Urlich was driving his car just after noon that day when he crashed into another vehicle. Police and ambulance officers were called to the scene.

[5] The other driver involved in the crash was unhurt. Mr Urlich received attention from ambulance officers for minor injuries. One of the ambulance officers questioned

1      Land Transport Act 1988, s 57A (1).
2      Police v Urlich DC Tauranga CRI-2016-070-002921, 6 March 2017.
3      Urlich v Police [2017] NZDC 18762

Mr Urlich about his drug and alcohol use that day. He initially denied using drugs, but eventually admitted he had consumed a “bong” that morning. Mr Urlich did not want…

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 Urlich v Police

Details

AGLC: Urlich v Police [2019] NZHC 457
Case: [2019] NZHC 457
Decision Date: 15 March 2019

CaseChat Overview and Summary

Cory Urlich, the appellant, seeks leave to file a second appeal against the decision of the District Court to decline his application to set aside his guilty plea to a charge of driving while under the influence of a controlled substance. Urlich argues that the ambulance officer who attended the scene of the accident breached the Health Information Privacy Code 1994 by disclosing to police her suspicion that he was under the influence of drugs. He claims that had the District Court found that the evidence obtained by the police was improperly obtained, the evidence would have been excluded and he would not have pleaded guilty. The respondent, the New Zealand Police, opposes the application on the grounds that there is no question of general or public importance, and no risk of a miscarriage of justice. The High Court held that Urlich failed to meet either limb of the test for leave to appeal. The Court held that the disclosure by the ambulance officer did not breach the Code as it was necessary to prevent or lessen a serious threat to public safety. The Court also held that even if there was a breach of the Code, it would not have resulted in the exclusion of the evidence underpinning the charge. Therefore, the application for leave to appeal was dismissed.

The Court did not consider it necessary to address the argument that the District Court erred in finding that Mr Urlich did not have a tenable defence based on breach of the Code. It was sufficient to conclude that the ambulance officer's disclosure was necessary to prevent or lessen a serious threat to public safety, and therefore did not breach the Code. The Court also held that even if there was a breach of the Code, it would not have resulted in the exclusion of the evidence underpinning the charge. The Court held that exclusion would not be proportionate to the extent of any impropriety (if proved). Therefore, the application for leave to appeal was dismissed.

Orders