Solictor-General [2020] NZCA 330 (5 August 2020)

Last Updated: 12 August 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA397/2020 [2020] NZCA 330

BETWEEN

SOLICITOR-GENERAL Applicant

Court:	Miller and Gilbert JJ
Counsel:	R K Thomson for Applicant
Judgment: (On the papers)	5 August 2020 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to refer a question of law to this Court is granted.
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REASONS OF THE COURT

(Given by Miller J)

• [1] The Solicitor-General seeks leave under s 313 of the Criminal Procedure Act 2011 to bring a reference for this Court’s decision.
• [2] The reference arises from four proceedings in which charges of driving with excess breath alcohol were dismissed for a defect in compliance with procedures under the Land Transport Act 1998.^[1]
• [3] The reference is in the following terms:

Question 1

Was the Judge in each case correct to find there had been non-compliance with ss 77(3)(a) and (3A) of the Land Transport Act 1998 (“the Act”), by reason of the wording of Block J on the Police Procedure Sheet POL515 09/19?

Question 2

If the answer to question 1 is yes, was the Judge in each case correct to find as a result there had not been reasonable compliance with ss 77(3)(a) and (3A), in terms of s 64(2) of the Act, such that evidence of the Evidential Breath Test (EBT) result was inadmissible?

• [4] Leave is granted. Pursuant to s 314(4) the Registrar is to appoint counsel to assist the Court and is to set the matter down for an oral hearing. The hearing should be convened as a matter of urgency.

Solicitors:
Crown Law Office, Wellington for Applicant

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^[1] Police v Stewart [2020] NZDC 11392; Police v Thakoor [2020] NZDC 10980; Police v Yang [2020] NZDC 10304; and Police v Taylor [2020] NZDC 12166.