MARK ANTHONY MCKINNEY v NEW ZEALAND POLICE [2021] NZSC 68

MARK ANTHONY MCKINNEY v NEW ZEALAND POLICE [2021] NZSC 68 [21 June 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 30/2021[2021] NZSC 68BETWEEN MARK ANTHONY MCKINNEYApplicantAND NEW ZEALAND POLICERespondentCourt: O'Regan, Ellen France and Williams JJCounsel: A J Haskett for ApplicantR K Thomson for RespondentJudgment: 21 June 2021JUDGMENT OF THE COURTA The application to adduce evidence in support of theapplication is dismissed.B The application for leave to appeal is dismissed.____________________________________________________________________REASONSLeave sought[1] The applicant seeks leave to bring a leapfrog appeal against a decision of theHigh Court.1 In that decision, the High Court allowed an appeal by the police againsta decision of the District Court dismissing a charge against the applicant for driving avehicle while the proportion of alcohol in his breath exceeded 400 mcg of alcohol perlitre of breath.2 The District Court Judge had dismissed the charge on the basis thatthere had been non-compliance with s 77 of the Land Transport Act 1998.1 New Zealand Police v McKinney [2021] NZHC 330 (Powell J) [HC judgment].2 New Zealand Police v McKinney [2020] NZDC 20169 (Judge Field) [DC judgment]. Theproportion of alcohol in the applicant's breath was 562 mcg of alcohol per litre of breath.The Block J issue[2] When a motorist fails a breath test, he or she may elect to undergo a blood test.Under s 77(1), it is to be conclusively presumed that the proportion of alcohol in adefendant's breath at the time of the alleged offence was the same as the proportion ofalcohol in the defendant's breath indicated by the breath test. A similar presumptionapplies in relation to blood tests under s 77(2). Where a motorist has failed a breathtest but elected to undergo a blood test, evidence of the breath test is inadmissible, sohis or her guilt or innocence is determined exclusively by the blood test.[3] Relevantly for the present appeal, s 77(3) provides that the result of a positiveevidential breath test is inadmissible if the person who underwent the breath test is notadvised by an enforcement officer that the test was positive and as to the consequencesshould he or she not request a blood test within 10 minutes of being informed of thepositive breath test. The point at issue in the present case relates to the nature of thewarning required to be given under s 77(3). Under s 77(3A)(a), the consequences ofwhich the motorist must be warned are "that the positive [breath] test could of itselfbe conclusive evidence to lead to that person's conviction for an offence against [theAct]" if the test indicates that the proportion of alcohol in the person's breath exceedsthe permissible limit.[4] The procedure adopted by police officers undertaking breath tests involves theuse of a Police Procedure Sheet (POL515 09/19). Block J of the sheet sets out theform of the warning given in the circumstances arising under s 77(3). At the time ofthe applicant's breath test, the text of that warning applicable to him was:If you do not within 10 minutes request a blood test, the evidential breath testyou have just undergone could, of itself, be conclusive evidence in aprosecution against you under the Land Transport Act 1998.[5] In the District Court, the Judge found that this wording did not meet therequirements of s 77(3A) because it refers to conclusive evidence in a prosecution,rather than conclusive evidence to lead to a conviction.33 DC judgment, above n 2, at [6]–[7].Solicitor-General's Reference (No 1 of 2020)[6] The adequacy or otherwise of the wording used in Block J was the subject ofa Solicitor-General's Reference to the Court of Appeal. In Solicitor-General'sReference (No 1 of 2020), the Court of Appeal ruled that the wording of Block J thatapplies in the applicant's case conveys the sense and effect of the warning required bys 77(3A)(a) and therefore complies with the requirements of s 77.4 The reference to"sense and effect" comes from earlier decisions of the Court of Appeal, in which ithad been held that it is essential only to convey the "sense and effect" of the statutorylanguage to a motorist, avoiding any real risk of misunderstanding, rather thanrequiring any specific formula.5[7] In allowing the appeal against the District Court judgment, the High Courtapplied the law as set out in Solicitor-General's Reference (No 1 of 2020).6The present application[8] The applicant wishes to appeal directly to this Court from the High Courtdecision essentially as a means to challenge in this Court the decision of the Court ofAppeal in Solicitor-General's Reference (No 1 of 2020). The applicant wishes to arguethat the Court of Appeal was wrong to apply the "sense and effect" approach adoptedin Barr v Ministry of Transport and other cases.7 The applicant's counsel describesthat approach as "outdated and inapt".[9] The applicant argues that leave to appeal should be granted because asubstantial miscarriage of justice may have occurred and also because the matter isone of general and public importance.8 The applicant acknowledges that a directappeal from the High Court to this Court also engages s 75 of the Senior CourtsAct 2016, which provides that this Court must not give leave for a direct appeal unlessthe Court is satisfied there are exceptional circumstances justifying such an appeal.4 Re Solicitor-General's Reference (No 1 of 2020) [2020] NZCA 563.5 At [30], citing Boyd v Auckland City Council [1980] 1 NZLR 337 (CA) at 341–342;Barr v Ministry of Transport [1983] NZLR 720 (CA) at 722; Sherry v Ministry of TransportCA99/84, 28 September 1984; and Suluy v Ministry of Transport [1986] 2 NZLR 380 (CA).6 HC judgment, above n 1, at [15].7 Barr v Ministry of Transport, above n 5.8 Senior Courts Act 2016, s 74(2)(a) and (b).[10] The Court of Appeal has undertaken a thorough examination of the argumentsrelating to the Block J issue in Solicitor-General's Reference (No 1 of 2020). Itsdecision applies the "sense and effect" approach that has applied in New Zealand sincethe 1980s.9 The decision has resolved what was a significant issue affecting numerousprosecutions.[11] We accept that the Block J issue affects a large number of prosecutions andmay therefore give rise to a matter of general or public importance. However, we donot consider that the interests of justice would be served by what would effectively bea repeat of the exercise already undertaken by the Court of Appeal inSolicitor-General's Reference (No 1 of 2020). We do not see the arguments theapplicant wishes to raise as having sufficient prospects of success to justify areconsideration of that exercise. Nor do we accept any miscarriage of justice arises,for the same reason. We accept that, if the leave criteria had been met, it would havemade sense to allow for a direct appeal to this Court from the High Court decision inthe present case. This is because Solicitor-General's Reference (No 1 of 2020)provides this Court with a clear enunciation of the Court of Appeal's approach to theissue.[12] The applicant sought leave to adduce evidence in support of the application.This was a copy of an affidavit that the respondent sought to adduce at the hearing ofSolicitor-General's Reference (No 1 of 2020) in the Court of Appeal. That Courtdeclined to receive it because it was not relevant to the questions it was addressing.We decline leave to adduce it for the same reason.[13] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent9 See also Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].