The appeal ..............................................................................................................[1] Background facts....................................................................................................[2]

District Court decision. ..........................................................................................[9] Grounds of Appeal ...............................................................................................[13] Timeliness of the appeal.......................................................................................[14] Approach to appeal ..............................................................................................[18] Approach to appeal against sentence ...................................................................[24] Appellant’s submissions .......................................................................................[27] Respondent’s submissions....................................................................................[32] Relevant legislation ..............................................................................................[37] Analysis ................................................................................................................[43] The appeal against sentence .................................................................................[58] Result....................................................................................................................[60]

The appeal

[1] Ms Alexandra Arahi Waretini appeals against her conviction and sentence for refusing to permit a blood sample to be taken.

Background facts

[2] Judge Marshall summarised the background facts to this matter in his judgment. What I set out is a short summary of the matters that he recorded in his judgment. That is because there is, in essence, no criticism of Constable Malloy who was the police officer involved. He followed the correct procedures as far as the Land Transport legislation is concerned. As the Judge said, the matter comes back to the issue of whether Ms Waretini was entitled to have a constable present who was a Maori Liaison Officer or a Maori Warden.

[3] The events commenced at approximately 12:56 am on 26 January 2014 in Pollen Street, Thames. Constable Malloy observed a car being driven by Ms Waretini pull into a park outside the Imperial Hotel. He spoke with her. He observed her speech was slurred and so he then required her to undergo a roadside or passive test that was positive. He then asked her to undergo a breath screening test pursuant to s 68(1)(a) of the Land Transport Act 1998. Initially, that was unsuccessful. On the third occasion it gave a positive reading, indicating a level over 400. He asked Ms Waretini to accompany him to the Thames Police Station for the purpose of undergoing an evidential breath test or blood test or both. That was pursuant to s 69(1)(ab). She reluctantly agreed. She was advised of her Bill of Rights Act rights, her right to remain silent, and the fact that she did not have to give a statement or answer any questions, and the right to consult a lawyer for free.

[4] Right from the outset she referred to wanting Constable Chase, the Maori Liaison Officer or a Maori Warden to be present. At the Thames Police Station she was again advised of her Bill of Rights Act rights and read from a form which was produced regarding her Bill of Rights Act rights. She declined to sign the form. Constable Malloy then required her to undergo an evidential breath test with an approved device. Ms Waretini said she did not want to undertake the test without the presence of Constable Chase or a Maori Warden. There was…

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 Waretini v Police

Details

AGLC: Waretini v Police [2014] NZHC 2669
Case: [2014] NZHC 2669
Decision Date: 29 October 2014

CaseChat Overview and Summary

In Waretini v Police, Alexandra Arahi Waretini appeals against her conviction and sentence for refusing to permit a blood sample to be taken. The case was heard by Faire J in the High Court of New Zealand. Waretini argues that her rights as a Maori person and under the Human Rights Act and Bill of Rights Act were denied, and that her consumer rights were also breached. The District Court found that Waretini's request for a Maori Liaison Officer or Maori Warden to be present during the administration of the tests was not required by the legislation and did not invalidate the tests. Waretini was convicted of refusing to permit a blood specimen to be taken and sentenced to six months' disqualification from driving. The High Court dismissed the appeal against conviction and sentence, finding that the District Court correctly applied the Land Transport Act and that the sentence imposed was appropriate. The court rejected Waretini's arguments that her rights were denied or that the sentence was manifestly excessive.

Orders