THE QUEEN v MALCOLM EDWARD LARSEN [2000] NZCA 11 (16 February 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 477/99

THE QUEEN

V

MALCOLM EDWARD LARSEN

Hearing:	16 February 2000
Coram:	Richardson P Heron J Panckhurst J
Appearances:	W M Johnson and S J F Coxhead for Applicant J C Pike for Crown
Judgment:	16 February 2000

judgment of the court delivered by RICHARDSON P

[1] The applicant, Malcolm Edward Larsen, was convicted in the District Court on an excess of breath alcohol driving charge under s56(1) of the Land Transport Act 1998.It was based on a test carried out in accordance with the Transport (Breath Tests) Notice (No 2) 1989.His appeal to the High Court failed.He was refused leave to appeal to this court.He now seeks special leave to appeal from this court under s144 of the Summary Proceedings Act 1957, contending that the question of law involved in the proposed appeal is one which by reason of its general or public importance or for any other reason ought to be submitted to this court for decision.

[2] We are satisfied that the question of law does not meet that high threshold and, further, that there is no substance in the proposed appeal.

[3] The proposed point concerns the validity of the 1989 NoticeIt was gazetted by the Minister of Transport, who was the relevant Minister under the earlier legislation.The Minister of Police is the relevant Minister under the 1998 Act.The general definition provision, s2(1), is prefaced by the usual words, "In this Act, unless the context otherwise requires", and the definitions of "breath screening test", "evidentiary breath test", "breath screening device" and "evidentiary breath testing device" all refer to the prescriptions by the Minister of Police by notice in the Gazette.And s218 expressly provides in subs (2) that that particular 1989 Notice is "to be treated as" a notice under s2.

[4] The point sought to be argued against is a simple, straightforward question of statutory construction.The three Judges who have considered the point all reached the sensible conclusion that s218(2) provides specific statutory recognition for the Notice even though there has been a change in the relevant Minister.Its obvious purpose, as Ellis J said in dismissing the appeal to the High Court, was to continue the legal life of the 1989 Notice.It could serve no other purpose.Whether under subs (3) both Ministers, or only one Minister, may amend the 1989 Notice, does not require consideration in this case.

[5] Leave is refusedThe Crown sought a modest award of costs on the application and they are fixed at the sum of $150.

Solicitors

W M Johnson, Wellington, for applicant

Crown Law Office, Wellington