The Queen v Fenton

[2007] NZCA 315

IN THE COURT OF APPEAL OF NEW ZEALAND

CA105/07 [2007] NZCA 315

THE QUEEN

KENNETH FENTON

Hearing:         28 June 2007

Court:            Wilson, Rodney Hansen and Ronald Young JJ
Counsel:         W M Johnson for Appellant

S B Edwards for Respondent

Judgment:      27 July 2007 at 12pm

JUDGMENT OF THE COURT

Leave to appeal is refused.

REASONS OF THE COURT

(Given by Rodney Hansen J)

[1] The appellant faces a charge in the District Court at Wellington of driving with excess breath alcohol (third or subsequent offence) under s 56(1) of the Land Transport Act 1998.  He has elected trial by jury. The Crown applied under s 344A

R V KENNETH FENTON CA CA105/07 [27 July 2007]

of the Crimes Act 1961 for the Court to determine whether the breath test was administered legally. Judge J M Behrens QC made an order that the legality of the testing procedure be determined by a Judge alone prior to trial. The appellant seeks leave to appeal against his decision.

[2] Following the filing of the appeal, O'Regan J directed counsel for the appellant to file a memorandum outlining the basis on which he considered this Court to have jurisdiction to hear the appeal. After considering memoranda filed in response, he directed that, in the first instance, a hearing should take place confined to the question of jurisdiction.

[3] Before us, Mr Johnson sought to argue that this Court has jurisdiction to entertain the appeal under s 379A(1)(aa) of the Crimes Act which gives a right of appeal by leave of this Court:

(aa)Against the making of an order under section 344A of this Act, or against the refusal of a Judge to make such an order.

Mr Johnson submitted that Judge Behrens' direction should be treated as a refusal to make an order under s 344A.

[4] The argument is untenable. The Judge was not making or refusing to make an order as to the admissibility of evidence. He was giving directions for the purpose of a hearing to address the issue of admissibility. This Court authoritatively determined in R v Livingston [2001] 1 NZLR 167 (CA) that no question of admissibility arises in such circumstances and the Court has no jurisdiction under s 379(1)(aa) to grant leave to appeal from such directions. In McGrath v R [2005] NZSC 50 the Supreme Court confirmed that, unless the issue raised is in substance one of admissibility of evidence, there is no jurisdiction to hear an appeal under s379A(1)(aa).

[5] Mr Johnson sought to argue in the alternative that, even if the Court had no jurisdiction to hear an appeal, it should nevertheless take the opportunity to offer guidance as to the respective roles of judges and juries in breath/blood alcohol cases

in order to resolve what he described as an inconsistency between Livingston and the decision of this Court in R v Allen CA 15/06 4 May 2006.

[6] We are not prepared to hear the application on that basis, given the direction of O'Regan J to confine the hearing to the issue of jurisdiction. We observe, however, that, as the discussion in Allen makes clear, the respective roles of judge and jury in breath and blood alcohol cases was materially changed by the legislative amendments which followed the decision in Livingston.

1. Leave to appeal is refused.

Solicitors: Crown Law Office