The Solicitor-General's bid to challenge five district court decisions throwing out drink-driving charges could be itself open to challenges, claims one defence lawyer.
Photo: RNZ
In a rarely used proceeding, the Solicitor-General has sought a review of five cases, in which alleged drink drivers escaped conviction due to the wording of the police script, known as "Block J".
It said a failed test could be used in "a prosecution" against them - but according to the legislation, the motorist must be warned the test could lead to their "conviction".
Criminal defence lawyer Alastair Haskett, who won the first three cases, said the Court of Appeal judgement "may not resolve the point".
None of the lawyers who acted in the lower court will be represented at the hearing because it is not an adversarial hearing.
Haskett said his clients' acquittals remain "regardless of what the Court of Appeal" decides - so they do not have any standing, even though it concerns their cases.
A lawyer, known as an "amicus curiae", will be appointed to assist the court, but is not representing the interests of motorists.
"Is there going to be presented all the information known to experienced lawyers like myself? If not, the Court of Appeal decision may not be binding, or resolve the point at all."
The "very unusual" procedure is adopted from the British system of Attorney General references, which does give standing to parties "where reference is taken".
In New Zealand however, Parliament has left it to the discretion of the Court of Appeal whether to involve the original parties.
"So you've got something of a closed system, where you've got the Solicitor-General, who's putting the argument forward on behalf of the government, trying to persuade the court, which is a branch of government, that police, which is a branch of government, did not break the law."
The review is set to be heard in the Court of Appeal on 22 October.