Show breath-tester manual, say judges

By SCOTT INGLIS

The police must reveal secret information about controversial breath-testing machines after a landmark High Court ruling yesterday.

Two High Court judges upheld an Otahuhu District Court judge's decision that the technical manual for the Intoxilyzer 5000 breath-testing machine be produced in a drink-driving case.

The ruling affects more than 100 other drink-driving cases where the manual is sought by defence lawyers and has wider implications over defendants' access to sensitive information in the criminal courts.

Police said last night that they had not yet studied the ruling and could not say how it might affect future breath tests.

The case now moves back to the district court. The Crown has to hand over the manual in accordance with the judge's instructions, go to the Court of Appeal or withdraw the charges.

Yesterday's judgment, delivered by Justice Tony Randerson in Auckland, is the latest chapter in the case of a man accused of driving while nearly three times over the legal breath-alcohol limit.

Jeremy Brown, a self-employed contractor, was stopped by police on October 23 last year. His breath-alcohol level was found in an Intoxilyzer 5000 test to be 1157 micrograms The legal limit is 400 mcg.

His lawyer, Chris Reid, requested the Intoxilyzer's technical manual so that defence experts could test the machine's accuracy and reliability. The defence contended that the machine used to test Brown was 12 years old and unreliable.

The police refused, arguing the manual was not relevant and was not in their power or control. The manual is held by the Institute of Environmental Science and Research (ESR) on behalf of the manufacturer so that the institute can maintain the machines.

The manufacturer claimed the manual contained commercially sensitive information.

In the Otahuhu District Court in May, Judge Josephine Bouchier ruled that the manual be produced, but the manufacturer be heard over issues of confidentiality.

The Attorney-General, on behalf of the police, then went to the High Court for a judicial review.

One of the core issues was the status of the manual because it was held by the ESR on behalf of the manufacturer.

The High Court decision addressed the issue of discovery (access to information) at common law and under the Bill of Rights Act.

The judges ruled that Judge Bouchier "had exercised her discretion appropriately in accordance with the law ... We see no ground upon which ... we could or should intervene."

They said it was implicit in Judge Bouchier's decision that the defence would or might be prejudiced by a refusal to hand over the manual, and that disclosure was relevant and would be of help to the defence.

It was up to the district court judge to determine the nature and strength of any intellectual property or confidential information.

The judges said strict conditions should be considered, including disclosure in the first instance only to an identified expert who promised not to show the documents to anyone other than the lawyers concerned.

Grant Illingworth, an Auckland barrister specialising in constitutional law who appeared with Mr Reid, said the judgment was an important precedent.

"What this judgment does is to say that subject to certain conditions, even information which is regarded as trade secrets and intellectual property can be the subject of a disclosure order."