Zhao v Police - [2017] NZHC 195

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-356 [2017] NZHC 195

BETWEEN
YAN ZHAO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 February 2017

Appearances:

H Laubscher for Appellant
D M A Wiseman for Respondent

Judgment:

20 February 2017

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 20 February 2017 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

ZHAO v NEW ZEALAND POLICE [2017] NZHC 195 [20 February 2017]

[1] Mr Zhao was charged with driving a motor vehicle with excess breath alcohol and careless use of a motor vehicle. He pleaded guilty to the charge of carelessly using a motor vehicle, but not guilty to the charge of driving with excess breath alcohol. Following a defended hearing involving evidence that spanned two days, Judge P J Sinclair found Mr Zhao guilty of that charge in a decision delivered on
18 November 2016.1 Mr Zhao appeals against conviction on the charge of driving

with excess breath alcohol.

[2] The appeal raises two issues. The first is that Mr Zhao’s limited grasp of the English language meant that he did not fully understand crucial aspects of the breath testing procedure and his legal rights in respect of that procedure. The second ground of appeal is that Mr Zhao was not given an uninterrupted ten minute period within which to decide whether or not to provide a blood sample for the purposes of analysis.

Background

[3] The events giving rise to both charges occurred on 26 July 2015. In the early hours of that day the police became aware of an incident in which the motor vehicle driven by Mr Zhao had collided with a parked vehicle on East Coast Road. Two police officers, Constables Takuira and Chueh, were despatched to deal with the incident.

[4] When they arrived at the scene, the officers found Mr Zhao standing beside his vehicle. After ascertaining that he was not injured, Constable Chueh required Mr Zhao to undergo a breath screening test. When this returned a positive result, Constable Chueh required Mr Zhao to accompany him to the North Shore Policing Centre for an evidential breath test, a blood test or both.

[5] After arrival at the police station, Constable Chueh required Mr Zhao to undergo an evidential breath test. Before doing so, Constable Chueh advised Mr Zhao of his rights under the New Zealand Bill of Rights Act 1990. These
included the right to obtain legal advice without delay and in private. Constable

1 New Zealand Police v Zhao [2016] NZDC 21447.

Chueh took Mr Zhao’s response to indicate that Mr Zhao did not wish to obtain the services of a lawyer. The evidential breath test that was then undertaken produced a result of 560 micrograms of alcohol per litre of breath.

[6] Mr Zhao subsequently declined to provide a sample of his blood. As a result, the prosecution relied on the result of the evidential breath test…

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 Zhao v Police

Details

AGLC: Zhao v Police [2017] NZHC 195
Case: [2017] NZHC 195
Decision Date: 20 February 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Zhao v Police involved an appeal by the appellant, Mr Zhao, against his conviction for driving with excess breath alcohol. Mr Zhao had pleaded guilty to careless use of a motor vehicle but not guilty to the charge of driving with excess breath alcohol. Following a hearing, Judge P J Sinclair found Mr Zhao guilty on this charge. The appeal raised two issues: whether Mr Zhao’s limited grasp of English meant that he did not fully understand crucial aspects of the breath testing procedure and his legal rights, and whether Mr Zhao was given an uninterrupted ten-minute period within which to decide whether to provide a blood sample for analysis.

The court found that Mr Zhao was not given an uninterrupted ten-minute period within which to decide whether to provide a blood sample. The evidential breath test result indicated that Mr Zhao had 560 micrograms of alcohol per litre of breath, meaning he had the right to elect to provide a blood sample to assess the proportion of alcohol in his blood within ten minutes of being advised of his right to do so. However, the ten-minute period was interrupted when Mr Zhao asked to use the bathroom and subsequently telephoned his father in China for advice. When Mr Zhao returned from the bathroom, Constable Chueh restarted the ten-minute period, but Constable Takuira began talking to Mr Zhao about the circumstances of the collision, further interrupting the period. This interaction effectively deprived Mr Zhao of the benefit of the uninterrupted ten-minute period prescribed by the statute, leading to the conclusion that the appeal must be allowed.

Regarding the second issue, the court noted that while it was not necessary to reach a firm conclusion, it would have been reluctant to interfere with the Judge’s conclusion that Mr Zhao had sufficient command of English to understand the advice given to him by Constable Chueh. The court observed that Constable Chueh, who also speaks Mandarin, did not consider it necessary to resort to Mandarin to ensure Mr Zhao understood what he was saying. However, the court highlighted the need for the police to take care when dealing with individuals for whom English is a second language.

The appeal against conviction was allowed, the conviction was quashed, and the fine and order for disqualification imposed by the Judge were set aside.

Orders