Wiri v Police - [2014] NZHC 2460

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000033 [2014] NZHC 2460

ROBERT KINGI JAMES WIRI Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 2 October 2014

Appearances:

Zahir Mohamed for the Appellant
Andrew Hill for the Respondent

Judgment:

7 October 2014

RESERVED JUDGMENT OF MOORE J [Appeal against conviction]

This judgment was delivered by on 7 October 2014 at 3:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

WIRI v NEW ZEALAND POLICE [2014] NZHC 2460 [7 October 2014]

Introduction

[1] Mr Wiri was convicted by Judge Cooper in the Rotorua District Court on

10 June 2014 on a charge of driving with excess blood alcohol.

[2] The conviction arose out of events in late 2013 when Mr Wiri’s erratic driving brought him to the attention of a passing Police patrol. His car was pulled over and a passive breath screening test was administered. This was positive resulting in the administration of a breath screening test which also returned a positive result. As a consequence Mr Wiri was required to accompany the officer to the Rotorua Police station where an evidential breath test was carried out. That too returned a high positive reading. Mr Wiri was advised of his right to a blood test. He elected a blood test which returned a high reading of 245 milligrams of alcohol per 100 millilitres of blood.

[3] Mr Wiri’s appeal is narrow in focus. He advances four grounds of appeal,

namely:

(a) the Judge erred in admitting and/or relying upon the analyst certificate;

(b) the Judge erred in applying s 64(2) of the Land Transport Act 1998

(“the LTA”);

(c) the Judge ignored the large number of discrepancies in the constable’s

evidence and documents; and

(d) the prosecutor’s conduct amounted to prosecutorial misconduct.

[4] The first three grounds are inter-related. In essence, the claim is that the Judge erred in admitting as evidence the analyst’s certificate because under s 76(1)(a) the LTA certificate may only be relied on if it names a person having the same name, address and occupation as the defendant as the person from whom the specimen of blood was taken.

[5] In this case there is a discrepancy between the two key documents. The charging document and summons which Mr Wiri answered refers to Robert Kingi James Wiri whilst the analyst’s certificate which was used to prove the blood/alcohol level refers to Kingi Robert James Wiri. Thus there is a transposition of the first or Christian name of the person. In other words, there is not a perfect alignment or correspondence between the name recorded on the charging document and the name recorded on the s 75 evidential certificate.

[6] Mr Mohamed, for the appellant, goes further and submits that this defect is so fundamental it is incapable of being cured by resort to the reasonable compliance provision contained in s 64(2) of the LTA and, in any event, such were the number of discrepancies in the constable’s evidence and the documentation…

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: [2014] NZHC 2460
Decision Date: 7 October 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Robert Kingi James Wiri appealed against his conviction for driving with excess blood alcohol, which arose from events in 2013. Wiri's appeal was narrow in focus and advanced four grounds: the Judge erred in admitting and/or relying upon the analyst certificate; the Judge erred in applying s 64(2) of the Land Transport Act 1998; the Judge ignored the large number of discrepancies in the constable’s evidence and documents; and the prosecutor’s conduct amounted to prosecutorial misconduct. The Court held that the discrepancy in Wiri’s name was minor and did not result in prejudice. The Court held that the Judge correctly applied s 64(2) to cure the defect. The Court also held that the prosecutor’s conduct did not amount to prosecutorial misconduct. The appeal was dismissed.

Orders