Yu v Police

[2025] NZHC 1402

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-151

[2025] NZHC 1402

BETWEEN

JI SUK YU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

20 May 2025

Appearances:

J Yi for the appellant

O Kazmierow for the respondent

Judgment:

30 May 2025

JUDGMENT OF BLANCHARD J

[Appeal against conviction]

This judgment was delivered by me on 30 May 2025 at 2.00 pm Registrar/Deputy Registrar

Solicitors:

Pohutukawa Chambers, Auckland Meredith Connell, Auckland

YU v NEW ZEALAND POLICE [2025] NZHC 1402 [30 May 2025]

[1]    Mr Yu appeals against a conviction for driving with excess breath alcohol (third or subsequent).1 He was convicted after a two-day judge-alone trial in the District  Court  at  North  Shore  before  Judge  C  Bennett  in  a  decision  dated      6 December 2024.2

District Court decision

[2]    On 9 June 2020, Mr Yu was stopped by Police driving a motor vehicle in Albany in Auckland. He underwent an evidential breach alcohol test and was found to have a reading of 523 micrograms of alcohol per litre of breath. The legal limit is 400 micrograms of alcohol per litre of breath.

[3]    Mr Yu’s defence at trial was that he was not properly advised that he was required to elect whether to have a blood test within the 10-minute period referred to in ss 70A, 72, and 77 of Land Transport Act 1998. Mr Yu says that he was not told he needed to make his election within the 10-minute period. Rather, he was told that he had 10 minutes to consider his election and, once the 10-minute period expired, he had to make his election.

[4]    It was (and is) common ground that, if Mr Yu was not properly advised of his right to elect to have a blood test, then he did not have an effective election.3 The issue at trial was whether, as a matter of fact, Mr Yu was advised properly.

[5]    Mr Yu’s defence was rejected by the Judge. The Judge did not accept Mr Yu’s evidence on the advice he was given about the 10-minute period. The Judge preferred the evidence of the Police officers. The Judge did not accept Mr Yu’s evidence because his “recall of events some years earlier was far from optimal.” She said he conceded his recall was not clear. She also considered that his recall would have been impaired by the alcohol he had consumed. The Judge also noted that Mr Yu’s evidence was contradictory in a number of respects. On the other hand, the Police

1      Land Transport Act 1998, s 56(1).

2      New Zealand Police v Yu [2024] NZDC 24652.

3      Neiman v Police HC Wellington CRI-2006-485-125, 14 February 2007.

officers struck the Judge as “witnesses of the truth” and she put weight on the fact that

they were not affected by alcohol.4

The appeal

[6]    Mr Yu appeals on the same basis that he defended the charge at trial. He repeats his argument that he was not properly advised of the requirement that he elect to have a blood test within the 10-minute period.

Discussion

[7]    The decision of the Judge does not make it clear that the specific argument that Mr Yu made at trial was that he was misadvised regarding his right to elect a blood test because the Police officer who was brought in to act as a Korean interpreter, Constable Shin, mistranslated the written advice contained in the second advice of block J5 in the POL515 Breath and Blood Alcohol procedure sheet (blood test advice). Constable Shin was brought in to assist by the  officer  in  charge,  Constable Coombridge. The blood test advice reads:

If you do not within 10 minutes request a blood test, the evidential breath test you have just undergone could, of itself, be conclusive evidence in a prosecution against you under the Land Transport Act 1998.

[8]    Although the Judge did not mention the issue of translation, it does not follow that an error was made by the Judge. It is implicit in what the Judge said in her decision that she accepted the evidence of Constable Shin that he translated the advice correctly.

[9]    Mr Yi places particular reliance on the following passage in the cross- examination of Constable Shin:

Q.       I put to you, you translated the second advice in J5?

A.       Yep.

Q.To the effect that you will be given 10 minutes to think about whether you want to take a blood test or not, is that correct?

A.       Yes.

4      New Zealand Police v Yu, above n 2, at [18] and [20]–[21].

[10]   Mr Yi for Mr Yu says this passage of the cross-examination supports the position that Constable Shin advised Mr Yu that he would be given 10 minutes to think about whether he wanted to take a blood test,  and that, after the expiry of the         10 minutes, he had to make his election.

[11]   If this portion of the notes of evidence is looked at isolation, it may appear as if Constable Shin failed to translate the blood test advice correctly. But, when Constable Shin’s evidence is considered as a whole, it is clear that his evidence was that he told Mr Yu that he must make his election within the 10-minute period.

[12]   Mr Yi also says that, immediately after Constable Coombridge told Mr Yu that the 10-minute period was over, Mr Yu asked why he had not been told he had to elect to have a blood test within the 10-minute period. He says that the fact that Mr Yu asked this question is consistent with his position that he was misadvised by Constable Shin as he claims.

[13]   Ms Kazmierow for the Police does not accept that the evidence shows that  Mr Yu asked this question immediately after he was told that the 10-minute period was over. She refers to the evidence of Constable Coombridge. His evidence was clear that it was not until Constable Coombridge served Mr Yu with a summons, which was around 13 minutes after the ten-minute period had ended, that Mr Yu asked the question.

[14]   Mr Yi submits that Constable Shin gave evidence that was inconsistent with Constable Coombridge’s evidence in this regard. Mr Yi says that Constable Shin’s evidence was that, immediately after the expiry of the 10-minute period, Mr Yu had asked why he had not been told that he needed to make his election within the period. Mr Yi relied on the following part of Constable Shin’s evidence in chief:

Q.When Constable Coombridge gave him that paperwork, did the defendant make any reply?

A.The defendant – I can’t remember the exact words but he refused to take the summons and the Road Safety Directive.

Q.       Did he say why?

A.       He stated that we didn’t tell him the 10 minute period was over.

…

Q.       But you had told him the 10 minute period was over?

A.       Sorry?

Q.       But you had told him the 10 minute period –

A. Yes,  Constable Coombridge did.  Sorry,  so he stated that the police  didn’t tell him that he has to elect a blood test within the 10 minute period.

[15]   As I have said, Mr Yi submits that this evidence by Constable Shin shows that Mr Yu asked the question immediately after he was told the 10-minute period was over. But the passage of evidence relied upon by Mr Yi is ambiguous. It is not clear when Constable Shin was saying Mr Yu asked the question. Ms Kazmierow submits that Constable Shin could well have been referring to when the summons was served. The point was not clarified.

[16]   In any case, I do not think that it matters whether Mr Yu asked the question after the summons was served or earlier when he was told the 10-minute period had ended. Either way, he made the election too late. That is common ground. And, even if we assume that Mr Yi is correct and Mr Yu asked the question immediately after the 10-minute period expired, it does not follow that he failed to elect within the 10-minute period because he was misadvised by Constable Shin.

[17]   I have carefully considered all the evidence relied upon by Mr Yi in his submissions. I cannot see any error made by the Judge. The conclusion the Judge reached was not wrong.

Result

[18]The appeal is dismissed.

Blanchard J