A v Police HC Auckland CRI-2005-404-385

[2006] NZHC 140

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-404-385

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 February 2006

Appearances: Appellant in Person

Ms A R Longdill for Respondent

Judgment:      28 February 2006

JUDGMENT OF FRATER J

To:            Mr I M A   113A Eskdale Road Birkenhead Auckland (Appellant)

Solicitors:    Meredith Connell P O Box 2213 Auckland for the Respondent

A V POLICE HC AK CRI-2005-404-385  28 February 2006

[1]      This is an appeal against conviction and sentence.

[2]      On  26  October  2005,  after  a  defended  hearing  in  the  District  Court  at North Shore before His Honour Judge Deobhakta, Mr  A    was  found guilty of one charge of driving with excess breath alcohol, convicted, and fined the sum  of  $700  and  ordered  to  pay  Court  costs  of  $130.    In  addition,  he  was disqualified from holding or obtaining a driver’s licence for a period of six months from 27 October 2005.    Enforcement of these penalties, including the disqualification, has been suspended pending determination of this appeal.

[3]      Mr A   did not have legal representation at either the substantive hearing or for the conduct of the appeal before me.

Issues

[4]      The issues on appeal concerned:

i)Whether Mr A   was advised of his rights under the New Zealand Bill of Rights Act 1990 at any time after he was stopped  by the  Police  –  whether  at  the  roadside  or  at  the Police Station where he was taken.

ii)Whether the Judge improperly denied him the right to legal representation at the substantive hearing by declining his application for an adjournment.

iii)Whether the Judge erred in reaching the decision that he did on the facts.

iv)      The sentence imposed.

[5]      I shall deal with the second matter first.  Points (i), and (iii) can be dealt with together.

[6]      Mr A   claimed that, when his case was called on 26 October, he asked the Judge for an adjournment to enable him to obtain legal advice but that the application was declined on basis that he had had ample opportunity to do so, having previously appeared in Court on 4 July and 18 July and again on 25 August, which was the first date allocated for a defended hearing.

[7]      As the Information does not record any such  request being made and/or declined, and there is no reference to it in either the transcript of the hearing, or Judge Deobhakta’s  Judgment,  I asked  the  Registrar  of  the  District  Court  at  the North Shore to check the Court records for 25 August and have any other exchanges between the appellant, the Judge and/or prosecutor that day, transcribed.  In response I have received the following:

NOTES OF DISCUSSION PRIOR TO COMMENCEMENT OF HEARING BEFORE JUDGE A.G. DEOBHAKTA:

MR  A:    I do  wish  to  see  if  I can  make  a  request  to Sergeant as to I did not have time to consult a lawyer due to some circumstances that my house got burnt down three or four weeks ago and it has been a depressing time for me, I did not have time to consult a lawyer and I wish to request Your Honour’s permission to adjourn my matter until such time, as Your Honour pleases.

THE COURT:  This has been going on for quite some time, you were in the Court on 25th of August and it could not be reached because there were lots of other cases and it was adjourned till today.   Have he got previous convictions?

THE PROSECUTOR: Yes Sir.

THE COURT:  I will give you another time but it will –

THE PROSECUTOR:  Your Honour, they go back quite some time, they’re

’83 Sir for excess breath alcohol, 1983.

THE COURT:  You’ve got a witness?

THE PROSECUTOR:  The Constable.  If I can assist the Court, Sir, I was actually in the Court on 25th of August and everything was ready to go and he had advised the Court that he didn’t want a lawyer at that stage.

THE COURT:  He wanted a lawyer? THE PROSECUTOR: No he didn’t.

THE COURT:  He did not want a lawyer.  Well look, this has been going on for quite some time since July and you have had one opportunity before, I think it would be futile to adjourn now because you won’t get another date until about December, perhaps January.

MR A:  All right, I’m quite happy to do it now. THE COURT:  Okay, take a seat.

[8]      While this passage confirms that Mr A   made the request, it also shows that, in the end, he agreed to proceed without a lawyer.   Having made that decision, he cannot now complain about lack of legal representation.

Conflict of evidence

[9]      Two of the other points on appeal concern the way in which the Judge dealt with  clear  conflicts  in  the  evidence  –  between  the  only  prosecution  witness, Senior Constable Pritchard, who dealt with the appellant on the night in question, and Mr A   himself.

[10]     Senior Constable Pritchard’s evidence was that, following a complaint from a member of the public about the appellant’s driving, he stopped his vehicle and spoke with him.   On doing so he noticed that he had been drinking.   Accordingly, he administered a breath-screening test, which the appellant failed.  He was informed of the result, and asked to accompany the officer to the Takapuna Police Station for the purpose of undergoing an evidential breath test, blood test or both, which he agreed to do.  He was also informed of his right to consult and instruct a lawyer, in terms of the New Zealand Bill of Rights Act 1990, and told that that could be done as soon as reasonably practicable after they got to the Police Station.   Following their arrival there, the officer read the first Bill of Rights form to the appellant, which he refused to sign.  Although he said that he did not want to call a lawyer, he was told that he could do so at any stage throughout the procedure.  He was then required to undergo an  evidential  breath  test,  which  he  did.    This  produced  a  test  result  of  844 micrograms of alcohol per litre of breath.  The officer then completed and read to the appellant an “advice of positive evidential breath test” form, which the appellant also declined to sign, as he did in respect to the second Bill of Rights form read to him. After the 10 minute period elapsed, the appellant advised that he did not want to give

a blood sample.   Accordingly he was issued with a traffic offence notice and summons and driven, by the officer, to his home.

[11]     In cross-examination, Mr A   put to Senior Constable Pritchard that, contrary to his evidence, he did not give him any advice whatsoever about his rights under the Bill of Rights Act.  The officer was adamant that he had.

[12]     Mr  A    also  put  to  the  officer  that,  on  4  July,  when  he  first appeared, he was told by the duty solicitor that there was nothing on the Police file; in particular, none of the documents which were produced as exhibits, including the first and second Bill of Rights forms, were on the file. The appellant said:

He came down, he look at your file and there was nothing and he come down to me and said you are right, you were not given the caution.  Had I been given that caution I would have seeked legal advice because as you’re aware  sir,  I  told  you  I  had  (inaudible)  4  or  5  (inaudible)  ‘til  5  in  the afternoon.

[13]     Senior Constable Pritchard was quite sure that the information was given.  He said:

... that information was given to you on the night.  Those forms were read out to you on the night.  When I put the file in for your first appearance in court, all those forms were on the file.   I have a check sheet which I go through before the file is submitted.  I have been a constable for 28 years doing breath alcohol.   I don’t make mistakes of not giving Bill of Rights forms.

[14]     The appellant elected to give evidence.  In the course of it he repeated that he was not:

... given any caution of any rights whatsoever.  I was not told of any rights that I am entitled to under the NZ Bill of Rights Act 1990.

[15]     He also denied that he was given the option of having a blood test taken. Given that he had only had four or five beers in the course of the preceding six or seven hours, as well as having a big dinner and a rest, he was sure that he would have opted for the blood test.  He denied being drunk, saying that the apparent erratic driving that brought him to notice was as a result of him getting something in his only eye which has any sight.  This caused him considerable discomfort.

[16]     The Judge was obviously concerned about the advice issue because he asked the appellant whether, after he had entered a not guilty plea, he was given any documents by the Police;   in particular, whether he received copies of the Bill of Rights documentation.  He replied that the officer said that he would drop some at his house.  Then, in answer to a question from the Judge as to whether he did so, Mr A   answered:

Well yes he probably did, they’re probably still in my house.   If it burnt down they would probably burn with it.

[17]     In his succinct oral judgment the Judge directly addressed the appellant’s claims that the officer never advised him about his right to consult a lawyer, that the relevant forms were not given to him at the time and also that he was not given the opportunity to undertake a blood, as distinct from a breath, test.

[18]     Judge Deobhakta did not accept the appellant’s version of events.  He said:

[6]       I have listened to your complaints with care.  I have also watched the officer give evidence about all these matters.   I am sorry I cannot really accept your contention in regard to the matters, which you have raised, in the face of the officer’s evidence to the contrary.  He is an experienced officer of some years work.  He is not a new fellow dealing with the breath and blood alcohol matters.  With the document before me that has been produced with the specific times given and then with the notation that you did not wish to sign them, on the fact of that I cannot really accept your contention in regard to these matters.   I prefer the evidence of the officer and I hold that the information is proved.

[19]     Whereupon, the Judge proceeded to impose sentence upon the appellant.

[20]     Mr A   does not see how the Judge could possibly have reached this decision on the evidence.  Nor does he understand why this Court, on appeal, should not interfere with it.

[21]     However, it is well settled that an appellate Court will not interfere with a decision by a trial Judge on the facts, provided there is evidence on which he or she could reach that decision.

[22]     As Lord Atkin said, in a passage quoted by Stanton J in Gillard v Cleaver Motors Ltd [1953] NALR 885 and adopted by McGregor J in Toomey v Police [1963] 699,701:

The Court has to rehear, in other words has the same right to come to decisions on the issues of fact as well as law as the trial Judge.   But the Court is still a Court of Appeal, and, in exercising its functions is subject to the inevitable qualifications of that position.  It must recognise the onus upon the appellant to satisfy it that the decision below is wrong:  it must recognise the  essential  advantage  of  the  trial  Judge  in  seeing  the  witnesses  and watching their demeanour.  In cases which turn on the conflicting testimony of witnesses and the belief to be reposed in them an appellate Court can never recapture the initial advantage of the Judge who saw and believed.

See also Rae v International Insurance Brokers (Nelson Marlborough Ltd) [1998] 3

NZLR 190 where Thomas J said:

In  a  case  which  depends  on  an  opinion  as  to  conflicting  testimony  an appellate Court will not interfere unless it can be shown that the trial Judge has failed to use or has palpably misused his advantage; it ought not to reverse the conclusions at which he has arrived merely from its own comparison and criticisms of the witnesses and its own view of the probabilities of the case; SS Hontestroom v SS Sagaporack [1927] AC 37,

47. Thus an appellate Court will interfere where the evidence accepted by the trial Judge is inconsistent with facts incontrovertibly established by other

evidence or is patently improbable; Edwards (Inspector of Taxes) v Bairstow
[1956] AC 14, 39; Brunskill v Sovereign Marine & General Insurance Co

Ltd (1985) 62 ALR 53.

[23]     There  is  no  suggestion  that  the  Judge  in  this  case  abused  his  position. Mr A  ’s sole complaint is that he should have believed him.  However, I can understand why Judge Deobhakta did not.

[24]     I accept that an officer with many years experience in this type of work is unlikely to omit to give the requisite Bill of Rights advice, not just once, but at all. And where, as in this case, he can support his recollection of giving the advice by producing forms he completed at the time, which the appellant acknowledged having received, at least belatedly, the strength of his evidence is even greater.

[25]     The Bill of Rights forms spell out a suspect’s rights.  They state:

YOU ARE ADVISED THAT YOU HAVE THE RIGHT TO CONSULT AND INSTRUCT A LAWYER WITHOUT DELAY AND TO CARRY OUT THAT RIGHT IN PRIVACY.  YOU ALSO HAVE THE RIGHT TO REFRAIN FROM MAKING A STATEMENT.

These rights will continue throughout the breath / blood alcohol procedures. A telephone will be made available for that purpose as soon as practicable and before you undergo an evidential breath test, blood test or both.   You will have a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you.  If you do not have your own lawyer a list will be provided of on call lawyers for you to choose from.   These lawyers are available to give advice free of charge.

[26]     Having had those forms read out to him the appellant could have been in no doubt what his rights were.

[27]     By comparison the credibility of the appellant’s evidence is weakened by the fact that he had a recorded breath alcohol level of over twice the legal limit – which, whatever he may say, is likely to have affected his functioning at the time, and his subsequent recall of events.

[28]     Accordingly, I can find no basis for setting aside the Judge’s decision on the facts.

Sentence appeal

[29]     The appellant’s concern about the sentence appeared to be with the period of disqualification imposed, rather than the fine.

[30]     Mr A   was right not to query the fine.  Given the breath alcohol reading, a fine of $700 is certainly at the lower end of the scale.  I also note that in fixing the penalty the Judge appears to have disregarded (although he not specifically say so) the fact that Mr A   has a previous conviction, albeit from 1980, for driving with excess breath alcohol.   In normal circumstances, a previous conviction would warrant either a higher fine or a sentence of community work.  He is fortunate that the Judge took the generous and realistic approach that he did by treating it as so long ago as to be inconsequential.

[31]     The same comment can be made with regard to the period of disqualification. The penalties for first and second offences for driving with excess breath alcohol are set out in s 56(1) and (3) of the Land Transport Act 1998, as follows:

56       Contravention of specified breath or blood-alcohol limit

(1)       A person commits an offence if the person drives or attempts to drive a motor vehicle  on  a road  while the  proportion  of  alcohol in  the person’s breath, as ascertained by an evidential breath test subsequently undergone  by the  person  under  section  69,  exceeds  400  micrograms  of alcohol per litre of breath.

...

(3)       If  a  person  is  convicted  of  a  first  or  second  offence  against subsection (1) or subsection (2),—

(a)       The  maximum  penalty  is  imprisonment  for  a  term  not exceeding 3 months or a fine not exceeding $4,500; and

(b)       The court must order the person to be disqualified from holding  or  obtaining  a  driver  licence  for  6  months  or  more. (Emphasis added.)

[32]     Given the previous conviction and the breath alcohol level, another Judge might, quite justifiably, have imposed a longer period of disqualification.

[33]     However, there is no discretion for a Judge to impose less than the minimum, or to enquire into whether, notwithstanding his breath alcohol reading, the appellant was actually drunk.

[34]     As  Ms  Longdill  pointed  out,  the  only provision  which  could  have  been invoked on behalf of the appellant to reduce the period of disqualification or indeed, not to impose one at all, is s 81(1) of the Act which states that:

If any provision of this Act (other than s 63) requires a Court to disqualify a person from holding or obtaining a driver’s licence for a period not less than the  specified  minimum period,  the  Court  must  order  that the  person  be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.

[35]     In the absence of a special reasons argument, there can be no challenge to the period of disqualification.

Conclusion

[36]     For these reasons both the appeal against conviction and that against sentence are dismissed.

[37]     The fines and costs orders stand.

[38]     To enable Mr A   sufficient time in which to receive this decision, the six month period of disqualification will not commence until Monday, 6 March

2006.

M A Frater J