IN THE Court of Appeal OF New Zealand	
CA375/2012
[2013] NZCA 3	

BETWEEN	NEW ZEALAND POLICE
Appellant	

AND	SIMON MCGRATH
Respondent	

CA463/2012	

AND BETWEEN	SIMON MCGRATH
Appellant	

AND	NEW ZEALAND POLICE
Respondent	

Hearing:	31 October 2012	

Court:	Arnold, Randerson and Wild JJ	

Counsel:	A J Haskett for Mr McGrath
A Markham for the Crown	

Judgment:	7 February 2013 at 11.30 am	

JUDGMENT OF THE COURT

A	The appeal by the police in CA375/2012 is allowed.

B	The conviction entered against the respondent in the District Court, but quashed by the High Court, is reinstated.

C	The sentence imposed on the respondent in the District Court is also reinstated.

D	The cross-appeal by Mr McGrath in CA463/2012 is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)
Introduction
[1]	The ultimate question on these appeals is whether the conviction of the respondent and cross-appellant, Mr McGrath, for drink driving, should be reinstated.  
[2]	Mr McGrath was convicted of driving with excess alcohol in his blood by Judge Davis in the District Court at Auckland on 22 November 2010, following a defended hearing in September that year.
[3]	Mr McGrath appealed successfully to the High Court.  In a judgment he delivered on 20 December 2011, Allan J quashed Mr McGrath’s conviction. 
[4]	The police sought leave to appeal further to this Court on two questions of law.  Mr McGrath responded by applying for leave to cross-appeal on four questions of law.  Allan J heard the two leave applications together on 3 April 2012.  In a second judgment delivered on 15 May 2012 he granted leave to appeal on the following  questions of law:
On the police application
(1)	Was the blood specimen in this case taken in accordance with normal medical procedures in terms of ss 2 and 73 of the Land Transport Act 1998 (the LTA)?
(2)	If not, should the evidence be excluded as a matter of law?

On Mr McGrath’s application
(3)	Was Mr McGrath’s blood taken in breach of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA)?
(4)	If so, is exclusion the proportionate remedy under s 30 of the Evidence Act 2006?
(5)	Is non-compliance with s 77(3)(a) of the LTA a defence to a charge of driving with excess blood alcohol brought pursuant to s 56(2) of that Act?
(6)	Should the prosecution in this case have been dismissed or stayed as a matter of law, as a result of the answers to questions (3), (4) or (5)?
(We have re-numbered these issues sequentially.)
Factual background
[5]	In the very early hours of 24 April 2009 Mr McGrath was stopped at a random checkpoint established by the police on Tamaki Drive in Auckland.  He failed the breath screening and evidential breath tests, and elected to give a blood specimen, which was taken in the “booze bus” parked at the checkpoint.  On analysis that specimen showed 118 milligrams of alcohol per 100 millilitres of blood, significantly over the legal limit of 80/100.
[6]	Mr McGrath defended the charge subsequently laid against him for an offence under s 56(2) of the LTA.
[7]	At the defended hearing in the District Court the police produced and relied on a certificate completed pursuant to s 75(2) of the LTA.  The s 75 certificate was admissible in evidence pursuant to s 75(1) because no order declaring it inadmissible had been made under s 79.  Mr McGrath had not made an application under s 79.  Section 75(1) and s 79(1) provide, respectively:
75	Certificates in blood-alcohol proceedings
(1)	Except as provided in section 79, production of a certificate to which this section applies in proceedings for an offence against this Part is sufficient evidence, in the absence of proof to the contrary, of such of the matters as are stated in the certificate and of the sufficiency of the authority and qualifications of the person by whom the certificate is made and, in the case of a certificate referred to in subsection (5), of the person who carried out the analysis.
…
79	Circumstances in which certificate not admissible in proceedings
(1)	No certificate referred to in subsection (2) or subsection (3) or subsection (4) of section 75 (which certificates relate to the taking of a blood specimen by a medical practitioner or medical officer) is admissible in evidence in proceedings for an offence against this Act if the court, on application made by the defendant not less than 14 days before the hearing, orders that the medical practitioner or medical officer who gave the certificate ought to appear as a witness at the hearing. 
…
[8]	At the hearing before Judge Davis the police called only Constable Holmes, who had conducted the breath testing procedures on Mr McGrath, culminating in Mr McGrath agreeing to the Constable’s request to provide a specimen of blood.  For the defence, Mr McGrath gave evidence.
Issue 1:  Was the blood specimen in this case taken in accordance with normal medical procedures in terms of ss 2 and 73 of the LTA?
[9]	This first issue arises because the s 56(2) offence that Mr McGrath was convicted of requires that the proportion of alcohol in the offender’s blood be “ascertained from an analysis of a blood specimen subsequently taken from the person under s 72 …”.  “Blood specimen” is defined in s 2 of the LTA as “a specimen of venous blood taken in accordance with normal medical procedures”.
[10]	Allan J was thus correct to hold that the “blood specimen” must be one taken in accordance with normal medical procedures. 

[11]	That point was not directly decided by Judge Davis.  The Judge recorded:
A blood specimen was taken and duly sent for testing at ESR and following analysis a proportion of 118 milligrams of alcohol per 100 millilitres of blood was found in the specimen.  An approved analyst certificate under s 75(5) of the Land Transport Act 1998 was tendered into evidence as Police Exhibit 7.
[12]	The Judge then stated “[Mr McGrath] takes umbridge with … the manner in which the blood sample was taken from him”.  He noted Mr McGrath’s view that the taking of blood ought to have been done “in a medical facility or somewhere a little bit more sterile”.  The Judge then set out parts of Mr McGrath’s evidence including the following exchange in evidence-in-chief:
Q	Well when you were introduced to this person as being the medical officer, what were you thinking at that stage?
A	Well I was very, um, upset with the fact that I believed that I was going to have my blood taken on the bus, um, I wasn’t aware of it, that that was going to happen, it was a medical procedure, I presumed, again it’s my first time, I would have presumed it would have been done in some sort of medical facility or somewhere a little bit more sterile or a bit more of a private environment, um, especially based on the fact that I had a private phone conversation with a lawyer that this was all happening before you go on the bus.
Q	Well what was the environment if you like on the booze bus itself?
A	It was a very unstable base, I think Constable Holmes referred to it, you know, you walk up the bus or the stairs and it rocks, um, there was quite a few people around, three or four officers, a couple of people being, um, processed.  There was a guy opposite me who was quite, um, aggressive in his nature towards the officer who was processing him, um, there was another woman in front of me who was fairly intoxicated.  Just a lot of things happening on the bus. 
[13]	Judge Davis then made these findings:
[23]	Based on the evidence that I have been presented [with] I am satisfied beyond a reasonable doubt that the defendant drove a motor vehicle on a road namely, Tamaki Drive.  Secondly, I am satisfied that the defendant drove the vehicle while the proportion of his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood in that it was 118 milligrams of alcohol per 100 millilitres of blood.
That was the extent to which Issue 1 featured directly in the District Court decision.  
[14]	The remainder of Judge Davis’ judgment dealt with the defences raised:  delay; right to consult a lawyer; lack of privacy and (raised only in written submissions after the hearing) breaches of the NZBORA and of ss 72 and 77(3) of the LTA.  In rejecting the lack of privacy defence, Judge Davis said this:
…  There is nothing in the evidence to suggest that Mr McGrath was placed in harm’s way by the blood sample being taken from him rather it is more a situation where he was uncomfortable with the surroundings that he found himself in and thought it appropriate that blood be taken from him in a sterile environment or a medical lab.  In my view this ground of defence must also fail.
[15]	Arguing Mr McGrath’s appeal to the High Court, Mr Haskett advanced what Allan J termed “a multi-layered argument” that the blood specimen had been obtained unlawfully.  At the forefront of this argument was a submission that the result of the blood test was not admissible because the specimen of blood had not been taken in accordance with normal medical procedures.  Allan J accepted that argument and rejected the police submission that the blood sample had been taken in accordance with normal medical procedures.  Allan J said this:
[17]	…  I disagree.  I consider that the evidence discloses a somewhat alarming situation in which, as a matter of logical inference, there must have been more than a negligible risk of injury or medical mishap of some sort to the appellant or to those nearby, including the medical officer charged with taking the blood specimen.
[18]	For present purposes, however, the immediate question is whether the blood specimen was taken in accordance with normal medical procedures.  I do not think it was.  Normal medical procedures do not involve the taking of blood in circumstances where the physical environment is unstable.  Mr McGrath gave some evidence as to his expectation of what a normal medical procedure would entail, but I consider I am entitled to take judicial notice of the fact that blood specimens are normally taken in doctor’s rooms, or diagnostic centres, or laboratories, or in some similar environment where physical stability can be guaranteed.
[19]	In the present case, the undisputed evidence is that this particular booze bus rocked when persons moved on the bus, and particularly when a person boarded or alighted from it, to the point where it was necessary for the medical officer taking the blood sample to shout “taking blood” in an effort to limit the extent of instability at the crucial moment.  In my view, that procedure does not accord with normal medical procedures. 
…
[22]	… I consider that the specimen of blood obtained by the police in the present case was not taken in accordance with normal medical procedures, and that it was not therefore admissible against the appellant.
[16]	In defending the s 56(2) blood alcohol charge, ss 75 and 79 of the LTA gave Mr McGrath these alternatives:
(a)	to apply for an order under s 79 that the certificate was not admissible in the proceeding; or  
(b)	to call evidence aimed at proving that the blood specimen had not been taken from Mr McGrath in accordance with normal medical procedures.  Section 75 then placed the onus on Mr McGrath, to disprove what was certified in the s 75 certificate.  
[17]	Had Mr McGrath opted for the first alternative, and obtained an order under s 79, the police would have had the onus of establishing to the criminal standard that the blood specimen had been taken from Mr McGrath in accordance with normal medical procedures.  The police could only have discharged that onus by calling Ms Campbell, the registered nurse who took the blood specimen.  Ms Campbell would presumably have stated that she took the blood specimen from Mr McGrath in accordance with normal medical procedures.  Mr Haskett would have been able to challenge that evidence in cross-examination.  He would have been obliged to put to Ms Campbell the gist of any evidence the defence proposed calling that Ms Campbell had not followed normal medical procedures
[18]	The key differences between the alternatives are the onus and standard of proof, and the fact that the medical practitioner or medical officer who took the blood specimen would only be called as a witness under alternative (a).  
[19]	Mr McGrath took alternative (b).  The consequence was that Judge Davis had evidence from three sources.  First, the s 75(2) certificate.  We do not have that.  We assume it was signed by Ms Campbell as the medical officer who took the blood specimen.  It certified that she had taken the blood specimen from Mr McGrath in accordance with the blood specimen collecting procedure – that is, in accordance with normal medical procedures.  That evidence was unchallenged in that:
(a)	Ms Campbell was not a witness, so there was no opportunity to challenge or test in cross-examination what she had certified.
(b)	No evidence was called for Mr McGrath from any witness qualified to express a view as to what constituted normal medical procedures, and in particular as to whether Ms Campbell had followed them.
[20]	Secondly, the evidence of Constable Holmes.  She told the Court that the standard procedure was that only motorists being dealt with directly by the police were allowed on the booze bus.  She recalled that Ms Campbell, before she took the blood specimen from Mr McGrath, had called out “taking blood”.  Asked what she could remember of the conversation at that time she answered:
No, um, possibly around everybody at a standstill on the bus so it didn’t disrupt the needle going in.
She added that she could not remember exactly what had been said at the time.  
[21]	The Constable could not recall whether there were any other motorists on the bus at the time Ms Campbell took the blood specimen from Mr McGrath, but allowed that was possible.  She accepted that when people step on and off the bus it moves – rocks back and forth.  She confirmed that she considered it was appropriate to do the blood test on the booze bus.
[22]	Thirdly, the evidence of Mr McGrath, who told the Court he ran a travel consultancy business.  He then described to the Court what had happened on the booze bus.  We have set out the nub of his evidence in [12] above.  He repeated much the same thing under cross-examination.
[23]	In chief he confirmed that Ms Campbell, when taking the blood specimen, had said “taking blood”, he presumed “so everyone would keep still”.  He stated that he had thought the bus “was just an unsafe environment”.  He repeated this in cross-examination:
Well there was a lack of privacy but there was also the unsafeness in the fact that the mach – the truck, the booze bus rocks, it’s not a stable thing, there’s people coming up and down the stairs, there were numerous people in the bus.  Like I said there was the aggressive driver next to me who, you know, could have easily got out of control, um, the medical officers telling everyone basically to not move as the needle’s going in.
[24]	Mr McGrath’s evidence, confirmed in some respects by Constable Holmes, did not come close to discharging the onus on Mr McGrath of proving that the blood specimen had not been taken in accordance with normal medical procedures, as certified by Ms Campbell.  At most, it established that the booze bus was unstable if people were moving around in it, or getting on or off.  But both the witnesses confirmed that Ms Campbell had called out “taking blood” before inserting the needle, obviously to ensure stability.  The evidence established that there was a risk had the bus moved while the specimen was taken.  But there was no suggestion in the evidence that that risk had eventuated.
[25]	It is unfortunate that the existence of the s 75(2) certificate was not drawn to Allan J’s attention.  The result, readily accepted by Mr Haskett, was that the Judge did not dealt with the evidential force of the certificate.  He considered only the evidence of Constable Holmes and Mr McGrath.  We reiterate our view that that evidence fell well short of discharging the onus Mr McGrath carried of proving that what Ms Campbell had certified to was probably wrong.  It follows that we do not consider the finding made by Allan J in [22] of his judgment (set out in [15] above) was open to him.  We accordingly answer this issue ‘Yes’. 
Issue 2:  If ‘No’ to Issue 1, should the evidence be excluded as a matter of law?
[26]	Given our answer to Issue 1, we need not answer this issue.
Issue 3:  Was Mr McGrath’s blood taken in breach of s 21 of the NZBORA?
[27]	Section 21 of the NZBORA provides:
21 	Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
[28]	Allan J dealt with this issue by considering some of the case law, then the evidence heard in the District Court, and then counsel’s arguments.  One of those arguments, for the police, was that Parliament had deliberately chosen to limit the period of detention of a motorist, rather than providing any express entitlement to privacy when the specimen of blood is taken.  Counsel for the police had contrasted s 53 of the Criminal Investigations (Bodily Samples) Act 1995, which requires that a bodily sample be taken in a situation affording reasonable privacy. 
[29]	Allan J then said this:
[44]	There is some force in that argument, but the absence of an express provision in the legislation is not decisive.  I would not rule the result of the blood test to be inadmissible in this case on privacy grounds alone.  But I consider the relative absence of privacy as described by both Constable Holmes and the appellant in evidence, to add weight to the appellant’s earlier safety argument, which I have upheld.  In other words, the appellant’s proximity to other suspected offenders, and particularly one who was aggressive, the total number of people in the bus, and the fact that activities in the vehicle could be seen from outside the bus, all combined to exacerbate the appellant’s predicament.  He says that he felt unsafe.  I consider that he was in fact unsafe.  The inherent instability of the bus was exaggerated by the pedestrian traffic within it, and by a complete lack of privacy.
[30]	We endorse the Judge’s view that the result of the blood test could not be ruled inadmissible on privacy grounds alone.  Allan J saw the privacy argument as adding weight to Mr McGrath’s safety argument – that is, to his argument that the blood specimen had not been taken in accordance with normal medical procedures.  We have ruled against Mr McGrath on that issue, disagreeing with Allan J.  It follows logically that we answer this issue ‘No’.
[31]	We add that Mr Haskett objected to the admissibility on this appeal of three affidavits filed by the police in the High Court in support of its application for leave to appeal to this Court.  One of those affidavits was from Ms Campbell, the medical officer who took the blood specimen from Mr McGrath.  For the police, Ms Markham took the position that those affidavits were part of this Court’s record.  If we were to read them, then she had no objection to our reading a bulletin board instruction issued internally by the police on 21 December 2011, as a consequence of Allan J’s decision in this case delivered the previous day.  Mr Haskett had included that instruction in his casebook.
[32]	This judgment takes no account of the content of those affidavits and bulletin board instruction.  They were not in evidence before the District Court.  When a party applies under s 144(2) or (3) of the Summary Proceedings Act 1957 (SPA) for leave for a second appeal to this Court, there can be no objection to the leave Court receiving affidavits addressing the criteria for a second appeal set out in each of s 144(2) and (3).  But there can be real difficulties in this Court taking those affidavits into account when deciding the appeal substantively, unless that is done by consent.  That is because there is invariably no opportunity for cross-examination upon those affidavits when the leave application is heard (and there was none in this case), and this Court is not the appropriate venue for cross-examination upon contested evidence.  Furthermore, an issue can arise (and has previously arisen in this Court) as to whether proper discovery or disclosure has been made, relevant to the content of the affidavits.  The proper course for a party wishing to adduce further evidence on an appeal such as this is to apply under r 12B of the Court of Appeal (Criminal) Rules 2001.
Issue 4:  If ‘Yes’ to Issue 3, is exclusion the proportionate remedy under s 30 of the Evidence Act 2006?
[33]	As we have answered Issue 3 ‘No’, we need not answer this issue.
[34]	We merely note the decision of MacKenzie J in Vosseler v New Zealand Police.  The police permitted a television film crew to film throughout while Mr Vosseler was being processed on a booze bus.  Mr Vosseler maintained he had not consented to the filming.  The Judge held that even if that had breached some privacy right of Mr Vosseler, upon a s 30 Evidence Act balancing exercise, that would not justify the exclusion of the evidence.
Issue 5:  Is non-compliance with s 77(3)(a) of the LTA a defence to a charge of driving with excess blood alcohol brought pursuant to s 56(2) of that Act?
[35]	Section 77(3)(a) requires an enforcement officer to advise the person who has undergone the evidential breath test, without undue delay after the result of the test is ascertained, that the test was positive. 
[36]	Mr Haskett argued that the “combined machinery” of ss 72(1)(b) and 77(3) require the advice in s 77(3)(a) to be given without delay in a blood alcohol prosecution under s 56(2), as in Mr McGrath’s case.  He contended the s 77(3)(a) requirement is not confined to an excess breath-alcohol charge under s 56(1) of the Act.
[37]	It would be pointless, indeed wrong, for us to consider that argument and answer this issue unless the evidence heard in the District Court establishes undue delay.  We think it does not.
[38]	The evidence is best summarised in a tabular chronology.  We include in this chronology only the times that Constable Holmes took from her wrist watch, or estimated.  We set out separately in [39] the times on the printout from the evidential breath testing device:
Time	Source of time	Evidence	Reference in notes of evidence	
12.07	Constable’s watch.	Constable stops Mr McGrath’s Volkswagen car and carries out a passive breath test on Mr McGrath.	2/6-15	
12.08 approx	Constable’s watch?	Constable requires Mr McGrath to undergo a breath screening test.  Constable assembles the device (a Dräger Alcotest 6510).	2/22-31	
12.10	Constable’s watch.	Result of breath test is fail general.  Constable advises Mr McGrath.  Reads to him verbatim the entire first Bill of Rights form.  In response to Constable’s question Mr McGrath says he does not wish to speak to a lawyer.  	3/3-16
7/10-7/11
8/30	
Between 12.10 and 12.18	Constable’s estimate – she did not record this time.	Constable requires Mr McGrath to accompany her to the mobile breath testing unit (ie to the booze bus) for the purpose of an evidential breath test or blood test or both.  Assembles the evidential breath testing device (a Seres Ethylometre 679ENZ) and administers the test.	3/18-28 8/25-31	
12.22 approx	Constable’s watch.	Constable reads Mr McGrath the result of the positive evidential breath test and advises him of his right to elect a blood test.  Mr McGrath signs the form acknowledging that he understood his right.	4/4-9	
[39]	The following times are recorded on the printout from the evidential breath testing device – the Seres Ethylometre 679ENZ:
12.08	Printout from evidential breath testing device.	Start time of evidential breath test.	9/18-21	
12.09	Ditto.	First sample or first blow into device.	9/22
20/22-23	
12.09	Ditto.	Second sample or blow into device.	9/24-25	
[40]	It is evident that the Constable’s watch and the evidential breath testing device were not synchronised.  The Constable made that point when she was asked about the printout times, although she did not say what the time difference was:
Q	And the second blow or sample was 12.09?
A	According to that, not according to my watch.
[41]	This evidence establishes quite a lot happening in the 15 minutes between 12.07 and 12.22 am.  The Constable administered the passive breath test and then the breath screening test.  She then read Mr McGrath the first Bill of Rights form verbatim.  In cross-examining the Constable Mr Haskett put it to her that that document is “quite a long document … quite comprehensive …”.  The Constable agreed.  Mr McGrath then accompanied the Constable on to the booze bus where Mr McGrath undertook the evidential breath test, after the Constable had assembled the device.  The Constable did not record the exact time at which she required Mr McGrath to undergo the evidential breath test – she said it would have been between 12.10 and 12.18.  She did record that she started advising Mr McGrath of the result of that test, and his consequential rights, at 12.22.  So, based on the times the Constable noted from her watch, the time lapse between the request to undergo the evidential breath test and the advice of the result was in the range four to 12 minutes.
[42]	We think the following exchange in the cross-examination by Sergeant Sarah of Mr McGrath demonstrates that he was confused as to the sequence of events:
Q	…  Now after you were read those rights on the roadside, you were then read the first Bill of Rights form, weren’t you?
A	No.
Q	And that was at approximately 12.10 am?
A	That’s when I was read the rights but that was secondary after doing the breath test into the machine on board the bus, but your time is right, yes.
Q	I’m going to put it to you that that was before the evidential breath test?
A	No it was afterwards.
[43]	In his evidence-in-chief, Mr McGrath was asked what happened after the evidential breath test was taken.  This was his answer:
Ah, I was left there for approximately 10 minutes, the constable went somewhere, um, then she came back with the evidential breath test result and then told me that was a fail and, ah, then read me my second Bill of Rights.
[44]	That suggested 10 minute absence by the Constable was put to her twice by Mr Haskett in the course of cross-examination.  On both occasions she adamantly denied that that had occurred.  Mr McGrath’s version of events, which we think was confused, was put to the Constable:
Q	The defence case is that the first step was a Mr McGrath did the evidential breath test, then he was sat down, the first Bill of Rights form was completed and then you went away for about 10 minutes before coming back with the advice of positive evidential breath test from?  Your answer to that is?
A	That is not a possibility.
[45]	As Ms Markham points out, Allan J did not decide this issue.  He explained:
[71]	Much of Mr Haskett’s detailed argument came in written form by way of reply, pursuant to leave granted at the conclusion of the hearing.  Ms Johnston has had no opportunity to respond to Mr Haskett’s detailed review of the cases.
[72]	In my opinion it would not be right to express a concluded view without further argument.  Given that the appeal succeeds on other grounds in any event, I make no ruling on this aspect of the appellant’s argument.
[46]	We consider it more likely that the time lapse between the request to undergo the evidential breath test and the advice to Mr McGrath of the result was closer to the four minutes end of the range we refer to at the end of [41].  We base that on the fact that the Constable, during that period, had to assemble the device and administer the test, her firm rejection of the proposition that she had gone away and left Mr McGrath for 10 minutes, and the confusion as to the course of events evident in Mr McGrath’s evidence.  For those reasons our view is that the evidence does not establish undue delay by the Constable in advising Mr McGrath of the result of the evidential breath test.  
[47]	It is for that reason that we need not answer Issue 5.  It is best left to a case where it needs to be decided.  That is particularly so because, as both counsel acknowledged, the case law is not consistent on this issue.  While this Court’s decision in Ministry of Transport v Beattie held that the predecessor of s 77(3)(a) applies to a blood alcohol charge, this Court’s decision in Falesiva v Ministry of Transport is arguably to opposite effect.
Jurisdiction to cross-appeal
[48]	The police submitted that Mr McGrath, having succeeded in having his conviction quashed by the High Court, could not cross-appeal to this Court under s 144(2) of the SPA.
[49]	The police relied on this Court’s decisions in R v Terry and Department of Corrections v Hall, the latter applying the approach taken by the Supreme Court in Colman v Police.  Ms Markham contended that Boyd v Auckland City Council was distinguishable.  Boyd was the judgment of this Court relied on by Allan J in granting leave for the cross-appeal.  Ms Markham contended that, subsequent to Boyd, this Court has taken a more restrictive approach to s 144, as exemplified by Police v Tatana.
[50]	Mr Haskett’s first response was to point out that counsel for the police had accepted in the High Court that leave should be granted on Issue 3, because it was tied to Issue 1.  He submitted that that grant of leave should not now be overturned.  Alternatively, he invited this Court to grant Mr McGrath special leave on that question, treating his submission as an application under s 144(3).
[51]	Mr Haskett submitted that the wording of s 144(1) permitted Mr McGrath to seek leave, because it encompassed “either party”.  He argued that the section left scope for a successful appellant to the High Court to cross-appeal once the unsuccessful respondent had been granted leave.  At that point the rejected or undecided grounds of appeal became an adverse part of the determination permitting a cross-appeal against the determination on a question of law arising in the general appeal.  He distinguished Candy v Auckland City Council and Tatana because the proposed question of law was either not asked, or did not arise in the general appeal.
[52]	A further point made by Mr Haskett was that r 20A of the Supreme Court Rules 2004, not referred to in Colman, suggests that s 144A allows a cross-appeal in a case such as this.  If that is correct, then there must be jurisdiction for the present cross-appeal under the broader provisions of s 144.
[53]	Lastly, Mr Haskett pointed out that Issue 5 had also not been decided by Allan J.  He took issue with the Judge’s observation that much of Mr Haskett’s detailed argument had come in his written submissions after the hearing, giving the police no opportunity to respond.  And he pointed out that three of the cases referred to by Allan J had not been referred to by counsel.
[54]	We think the relevant result of all the cases we have referred to is drawn together in this Court’s decision in Hall at [30]–[33].  These are the points made there:
(a)	The word “determination” in s 144(1) refers to the outcome of the Court process, in the form of a conviction, sentence or an order of the Court.  It does not refer to the intermediate steps in the Judge’s reasoning leading to those orders.
(b)	Consistent with the general scheme of the SPA, rights of appeal are confined to matters which may affect the ultimate outcome of the matter under appeal.
(c)	Thus, unless an appellant seeks to overturn an adverse consequence (whether through error of law or otherwise) an appeal under s 144(1) to this Court will not lie. 
[55]	Mr Haskett is correct in submitting that Issues 3 and 5 on which Mr McGrath was granted leave to appeal were not determined in his favour in the High Court.  So he can submit that the converse is true, they were determined adversely against him.  If either or both of those issues could afford Mr McGrath a defence to the s 56(2) charge he faced, then he should be given leave to cross-appeal to this Court.
[56]	For the reasons we have explained, we have been able to determine both those issues.  If we had not been able to do that, we would have remitted the case to the High Court so that the potential defences could be determined there.  We view that as consistent with this Court’s powers under s 144B of the SPA on this appeal. 
[57]	In summary, we consider there was jurisdiction for the cross-appeal, and it is for that reason that we have dealt with the issues on the cross-appeal.
Result
[58]	Given our answers to the questions on which leave was given, we allow the appeal and reinstate the conviction entered in the District Court against Mr McGrath.  It follows from the reinstatement of that conviction, that the sentence imposed on Mr McGrath in the District Court is also reinstated.

Solicitors: 
Crown Law Office, Wellington for the Appellant in CA375/2012 and Respondent in CA463/2012
Legal Defence Service Ltd, Auckland for the Respondent in CA375/2012 and Appellant in CA463/2012