Woods v Police - [2017] NZHC 2593

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000121 [2017] NZHC 2593

IN THE MATTER OF an appeal against conviction and sentence

BETWEEN

TIFFANY KATISHA WOODS Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 September 2017 and 19 June 2017

Counsel:

A J Haskett for the Appellant
G A Campbell for the Respondent

Judgment:

24 October 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 24 October 2017 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

WOODS v POLICE [2017] NZHC 2593 [24 October 2017]

Solicit ors : Legal Defence Service Ltd, Auckland
Meredith Connell, Auckland

Introduction

[1] Ms Woods was convicted of one charge of driving with excess blood alcohol1 following a judge alone trial in the District Court.2 She appeals that conviction on the grounds that:

(a) The Judge erred in finding that there was an election to undertake a blood test; or

(b)If there was an election, it was not valid as there was non-compliance with the requirements of s 72(1)(b)(ii) of the Land Transport Act 1998 (Act). That section requires any election to be made within 10 minutes of being advised of the matters set out in s 77(3) of the Act.

[2] Crown counsel says that there was a valid election, and that to the extent there was non-compliance it is saved by s 64(2) of the Act because there was “reasonable compliance” with the requirements of s 72(1)(b)(ii).

[3] The key questions on appeal are:

(a) Did the Judge err in finding that there was an election?

(b) Does s 64(2) apply?

(c) If so, has there been reasonable compliance?

Legislative framework

[4] To understand the arguments on appeal, it is first necessary to understand the relevant legislative provisions.

1 Land Transport Act 1998, s 56(2).
2 New Zealand Police v Woods [2017] NZDC 9692.

[5] The charge was brought under s 56(2) of the Act, which provides:

56 Contravention of specified breath or blood-alcohol limit

…

(2) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.

…

(emphasis added)

[6] Section 56(2) refers to a blood specimen taken from a person under s 72. Section 72(1) lists the circumstances in which a person must give a blood specimen. The relevant subsection in this case is subs (1)(b), which provides:

72Who must give blood specimen at places other than hospital or surgery

(1) A person must permit a … medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—

…

(b) The person has undergone an evidential breath test under section…

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: [2017] NZHC 2593
Decision Date: 24 October 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Woods appealed against her conviction for driving with excess blood alcohol. The appeal hinged on whether there was a valid election for a blood test within the required timeframe. The court found that while there was an election, it was made before the required advice was given and outside the 10-minute period, which was in non-compliance with statutory requirements. The court considered whether the non-compliance could be saved under the reasonable compliance provision, but concluded that the non-compliance was significant and there was no reasonable explanation for it. The non-compliance undermined the purpose of the statutory requirements and posed a risk of injustice. Consequently, the appeal was allowed, the conviction was quashed, and the charge was dismissed.

Orders