IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-Ā-KAHU ROHE

CRI 2018-463-3
[2018] NZHC 1582

BETWEEN

S
Appellant

AND

NEW ZEALAND POLICE
Respondent

[…]

JUDGMENT OF DUFFY J

[1] On 15 December 2017, the appellant was convicted of driving with excess blood alcohol content in the Thames District Court. He was sentenced to a fine of $800.3

[2] The appellant now appeals against his conviction.

[…]

Appellant’s submissions

[22] The appellant appeals his conviction on the grounds that the inclusion of his blood test result as evidence resulted in a miscarriage of justice.

[23] The appellant submits that being denied access to a bathroom during the testing process breached his rights under NZBORA. The appellant accepts Judge Harding’s finding that his s 23(5) right was breached. However, he submits that the Judge erred in not finding that ss 9 and 21 were also breached.

[…]

[88] An effective and credible system of justice would not countenance the breaches which have occurred here, nor let them go unanswered and without remedy. In this regard I note that in R v Pratt the Court of Appeal was of the view that evidence obtained from a strip search in a public place should be excluded. I also find it of concern that the respondent was prepared to argue, up to the time of the appeal hearing, that an adult male in the appellant’s circumstances should have been able to exercise sufficient self-control to avoid soiling himself. This suggests to me that the respondent has failed to recognise the enormity of what has occurred here.

[89] Accordingly, I am satisfied the blood test sample evidence must be excluded, which means there is no evidence to support the conviction. Thus, the appeal is allowed and the conviction is set aside.

Full judgment: HCSvNZPolice.pdf

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