Wood v Police - [2024] NZHC 1825

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-45

[2024] NZHC 1825

BETWEEN
SIMON LUKE WOOD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 July 2024

Appearances:

K Jefferies for the Appellant

B Wilkins and M Story for the Respondent

Judgment:

5 July 2024

JUDGMENT OF GORDON J

This judgment was delivered by me on 5 July 2024 at 3 pm

Registrar/Deputy Registrar Date:

Solicitors:
Crown Solicitor, Wellington Jefferies Law, Wellington

WOOD v NEW ZEALAND POLICE [2024] NZHC 1825 [5 July 2024]

Introduction

[1] Mr Wood was convicted of one charge of driving with excess breath alcohol (EBA)1 by Judge J A R Johnston in the Wellington District Court on 23 May 2024. 2 He appeals against his conviction.

[2] The sole issue raised by the appeal is whether the Police constable allowed Mr Wood an uninterrupted 10 minute period to consider the election of blood pursuant to s 70A of the Land Transport Act 1998 (the Act) following a failed evidential breath/alcohol test.

Background

[3] At approximately 5.20 pm on 24 May 2023 Mr Wood was stopped at an alcohol screening point on Adelaide Road, Berhampore, Wellington. Constable Fuller conducted a breath screening test with a result of over 400 micrograms of alcohol per litre of breath. The Constable then required Mr Wood to accompany him to his patrol vehicle and read him his rights. He advised Mr Wood that he was required to undergo an evidential breath test without delay. At approximately 5.33 pm the evidential breath test commenced and at approximately 5.39 pm Constable Fuller advised Mr Wood of a positive result of 533 micrograms of alcohol per litre of breath.

[4] Constable Fuller then advised Mr Wood that he could elect to complete a blood test within 10 minutes in place of his evidential breath test result. Mr Wood acknowledged this.

[5] Then, for approximately 12 minutes between 5.47 pm and 5.59 pm, Constable Fuller sat next to Mr Wood in the back of the patrol vehicle. Mr Wood was on the passenger side, and the Constable was on the driver’s side. Although the length of the election period was accepted, one event during the election period was in dispute.

[6] Constable Fuller gave evidence that for the entire election period, he sat with Mr Wood in the back of the patrol vehicle in silence.

1 Land Transport Act 1998, s 56(1).
2 Police v Wood [2024] NZDC 3653.

[7] Mr Wood contends that during the election period another officer knocked on the window beside the Constable. The window was wound down, and for approximately 30 seconds words were exchanged between the officers to the effect of: “I’ve finished up here, I’m going back to base, will see you back there”. Mr Wood said this interaction was a “distraction” that was “more intrusive” than a passing car or the radio being on. During cross-examination it was put to Mr Wood that this did not affect or…

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: [2024] NZHC 1825
Decision Date: 5 July 2024

CaseChat Overview and Summary

In this case, Mr. Simon Luke Wood appeals his conviction for driving with excess breath alcohol. The sole issue is whether the police allowed him an uninterrupted 10-minute period to consider the election of a blood test as required by s 70A of the Land Transport Act 1998. On 24 May 2023, Mr. Wood was stopped by Constable Fuller, who conducted a breath screening test which showed a positive result. Mr. Wood was then informed of his right to elect a blood test within 10 minutes. The issue arose from an alleged interruption during this period by another officer who knocked on the patrol car window. The District Court found there was no interruption and upheld the conviction. The appeal hinges on whether the presence of the Constable in the back of the vehicle during the election period constituted an interruption.

The court examined the purpose of the uninterrupted election period, emphasizing it as a reflection period free from undue interruption. The court considered that brief interruptions such as casual conversations between police officers and the suspect or a break to use the bathroom may not breach the requirement. The court accepted the Constable's evidence that there was no interruption and that the conversation, if it occurred, would not have distracted Mr. Wood from considering his election for the blood test. The court also noted that the subject matter of the alleged conversation did not involve Mr. Wood.

The appeal court found that the Constable's presence in the back of the vehicle did not constitute an interruption as it did not unduly influence or distract Mr. Wood. The court distinguished this case from previous cases where the interruption was more substantial and directly affected the defendant’s ability to consider their election. Given that the election period was silent and uninterrupted, the court held that Mr. Wood had sufficient time to make an informed decision.

The appeal is dismissed.

Orders