Random breath tests legal says Judge

Press, 25 February 1978, Page 1

Random breath tests legal says Judge

PA Auckland Random breath tests are legal, according to a Judge of the Supreme Court who declares that he is not going to be told how to do his job by politicians.

Mr Justice Chilwell, in an oral judgment given at the Supreme Court at Auckland, has said there is nothing in the Transport Act which requires as “condition precedent” that a constable or traffic officer must have some reason for stopping a motorist. Commenting on Ministerial statements declaring that random breath testing was not condoned and the statute was not to be used for that purpose, Mr Justice Chilwell says in the judgment: “Perhaps one day Ministers of the Crown will accept the views of the Courts that the law is that which is laid down by Parliament. “There is,” he says, “a tendency in this country for Ministers of the Crown

to place themselves above the law. It is a tendency to be deplored. I, for one, deplore it. “I am not prepared to be told by any Minister of the Crown how to interpret any Act of Parliament. Indeed, if I yield in this respect I would be false to my judicial oath. “Furthermore, the issue,” he says, "is one of fundamental constitutional importance. “This ' statute quite clearly says that where a constable or traffic officer has good cause to suspect that any person has committed an offence against the section relating to alcohol limits then, that constable or traffic officer may require the person concerned to provide forthwith a specimen of his breath,” says his Honour.

“There is nothing in the act which requires as a condition nrecedent that the constable or traffic officer must have some reason for stopping the motorist.” After quoting a precedent, his Honour says: “Hence it follows from the decision that the police and traffic officers have the statutory right to conduct random breath testing. That exists as a matter of law.” He made the comments when dismissing an appeal against a lower court blood alcohol conviction made by Neil Norman Felton after a prosecution brought by the Auckland Citv Council. He says the basic point in the appeal is whether the breath testing provisions of the Transport Act 1962 should be used in what he calls a “random situation.” Dismissing the appeal and dealing with costs, his Honour says it is his judgment that the appeal was properly brought before the Court. “I say that,” he says, “in view of the Ministerial pronouncements . regarding random testing. Had this been an appeal against the Minister of Transport it would have been a proper case for costs against the Ministry in order to bring home, to the Minister of Transport that the courts apply the law and not his ex-cathedra statements.”