Young v Police - [2017] NZHC 1642

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000151 [2017] NZHC 1642

BETWEEN
FREDERICK YOUNG

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 July 2017

Counsel:

RR Roy for Appellant
CP Howard for Respondent

Judgment:

18 July 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 18 July 2017 at 11 am.

Registrar/Deputy Registrar

Solicitors:
Public Defence Service, Manukau.
Kayes Fletcher Walker Ltd, Manukau.

YOUNG v POLICE [2017] NZHC 1642 [18 July 2017]

The issue

[1] The appellant was convicted of reckless driving and refusing a blood specimen, both contrary to the Land Transport Act 1998. He pleaded guilty to the first, but defended the second. He appeals conviction on the basis the evidence could not sustain the offence of refusing a blood specimen.

Background

[2] On 12 September 2015 the appellant was driving towards Auckland. He passed a car, forcing other drivers to take evasive action. One called Police. The appellant continued to drive poorly, drifting in and out of lanes and almost hitting the pole of a street light. Police stopped the appellant near the Karaka motorway exit.

[3] Constable Dawson said the appellant was unstable on his feet, smelt slightly of alcohol and had glassy eyes. The appellant refused to give the officer his details. The appellant refused to say whether he had been drinking, and refused both the passive drink/drive test and breath screening test. Constable Dawson required the appellant to accompany him to the Manukau Police Station for an evidential breath or blood test. The appellant agreed to do so.

[4] En route, the appellant fell asleep. Once at the Police Station, the appellant refused to comply with the evidential breath testing procedure. He declined to sign a written acknowledgement of the administration of his rights. Constable Dawson said:

OK, so Mr Young was sitting next to the desk where the evidential breath testing machine was placed so I gave him his Bill of Rights again which he did not acknowledge at all. He just kept staring straight ahead. I asked him to sign the form to say that he had received his Bill of Rights caution. Once again, he refused to do that. So from there I turned on the machine, let it go through its warm-up procedure. It was indicating time to do the breath test. I put a tube on the end of the hose and asked him to blow into the machine for the purposes of an evidential breath test. He still refused to even look at me, just looked straight ahead so I asked him several times. Then I placed the hose with a tube on it next to him and but he didn’t pick up just as before, looked straight ahead and refused even to acknowledge me and then eventually the time on the machine lapsed so producing a, well not producing, a result from the test, so I carried on through the form again. Yeah, so once again I gave him his Bill…

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 Young v Police

Details

AGLC: Young v Police [2017] NZHC 1642
Case: [2017] NZHC 1642
Decision Date: 18 July 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Frederick Young, contested his conviction for reckless driving and refusal to provide a blood specimen under the Land Transport Act 1998. He pleaded guilty to the reckless driving charge but contested the refusal to provide a blood specimen. The primary issue for the court was whether the evidence sufficiently supported the conviction for refusing to provide a blood specimen. The appellant argued that the evidence did not establish a refusal or failure on his part to permit a blood sample to be taken. Instead, he contended that his silence and inaction should not be construed as a refusal.

The court considered the statutory language of the Land Transport Act, which proscribes failure or refusal to permit a blood specimen to be taken after being required by an enforcement officer. The court referenced several legal principles, including that the offence is complete once a final refusal to provide a sample is made, that some vacillation is permissible if it is part of a genuine decision-making process, and that whether the defendant has failed or refused to permit a sample is a question of fact based on the totality of the defendant's conduct. The court also noted that a refusal to grant permission can arise in various ways, including by simply not granting the permission sought.

Applying these principles to the facts, the court found that the appellant's conduct, including his refusal to answer questions, complete any form of breath test, acknowledge the administration of his rights, conduct an evidential breath test, and engage with the police officers, supported the conclusion that he had failed or refused to permit a blood specimen to be taken. The court rejected the appellant's argument that his silence should be viewed as exercising his right to silence, emphasizing that the statutory obligation to provide a blood sample does not criminalise silence. Therefore, the court dismissed the appeal.

Orders