A v Police HC Auckland CRI 2007-404-174

[2007] NZHC 1202

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-000174

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 October 2007

Appearances: G W Wells for Appellant

A R Longdill for Respondent

Judgment:      6 November 2007

JUDGMENT OF KEANE J

This judgment was delivered by Justice Keane on 6 November 2007 at 12pm pursuant to Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

G W Wells, Albion Chambers, Auckland

Crown Solicitor, Auckland

A V POLICE HC AK CRI 2007-404-000174  6 November 2007

[1]      On  23  May  2007  A    was  convicted  in  the  District  Court, Auckland, of driving on 14 July 2006 with an excess breath alcohol level. It was 904 micrograms. He was fined $1,500 and disqualified for ten months commencing on the day of sentence.

[2]      A  single point  was  taken,  unavailingly,  in  his  defence.  The  officer  who conducted the evidential breath test did not, it was contended and the Judge found, comply with s 77(3)(a) of the Land Transport Act 1998. The officer did not advise Mr A   of the positive result of the test ‘without delay’. The Judge, however, excused that delay under s 64(2) as still within the bounds of reasonable compliance. The entire process, he held, had been accomplished quite shortly and without prejudice to Mr A  .

[3]      Mr A   appeals his conviction again on a single ground. To conclude that the result of the evidential breath test was admissible against him, despite the delay, he says, the Judge needed to know why there had been the delay. That could only have come from the officer. Implicit in that ground is a second. Absent any challenge from the defence in cross-examination, the Judge held, reasonable compliance could safely be inferred. Whether that was correct, I considered, needs also to be resolved.

Officer’s evidence

[4]      At 9.10 pm on Friday 14 July 2006, the officer said in his evidence in chief, he had Mr A   undergo breath screening test at a checkpoint on New North Road, Mt Albert; and, when Mr A   failed the test, immediately required him to go to a breath testing bus nearby. That, according to the officer’s digital watch, happened at

9.32 pm; a time that differed from that on the device itself, to what degree he could not say. In any event the officer’s evidence in chief relevant to this appeal begins with this exchange:

Your evidence a few minutes ago indicates that you signed the Bill of Rights form at 21.28 and that he underwent the breath test a few minutes later at

21.32. So the 21.32 time when he underwent the breath test, is that according to your watch or according to the machine time? … It’s according to my

watch.

The machine time indicates 21.31 as the time when the machine kicked in, so to speak? … Right.

Would that be recording your time or the machine time? … It would be the machine time.

[5]      Then, after the officer had produced the evidential breath test printout and the certificate of compliance, there was this exchange:

Following that result, did you tell the defendant the result, did you say that you did? … Yes, I did, I advised him of the result of the test which was at

21.44 hours.

What did you do then? … I then completed and read to the defendant the advise (sic) of a positive evidential breath test printout. The defendant read and signed the form at 21.44 hours.

Have you got that form with you? … Yes, I do.

Hold it up and show it to His Honour. That’s the form headed up, Advice of

- ? … Positive Evidential Breath Test.

Just in relation to this form, Officer, whose writing’s on the top of the form in relation to the defendant’s details? … That’s my writing, yes.

Whose  writing  is  in  the  bottom,  down  the  bottom  block  here,  person advised? … That’s my writing.,

Whose signature is on the form? … The defendant’s.

Which part of that form was read to the defendant? … All the applicable parts.

Who crossed out the option here? … I did.

You have indicated, you just said in evidence you read out the whole form to the defendant. Is that correct, did you say you read out the form to the defendant or the applicable parts? … Yes.

When you read it out to the defendant did you read it in a position so he could follow what you were reading or did you point to it or did you read it and then turn it around for him to read? … From memory I read it facing him.

Any questions arising from that form? … Not from the defendant

EXHIBIT 4 PRODUCED – POSITIVE EVIDENTIAL BREATH TEST

What happened next? … At 21.45 hours I noted the beginning of the compulsory 10 minute period. I remained with the defendant and at no time between then and 21.56 hours did he advise me that he wished to have a blood sample taken. …

[6]      The officer was not cross-examined by Mr A  ’s counsel and Mr A   elected not to give evidence. Instead his counsel took the point advanced on this appeal, which the Judge rejected.

Decision under appeal

[7]      The Judge accepted that, when account was taken of the discrepancy between the officer’s watch and the device, 9 – 11 minutes might have passed before the officer advised Mr A   of the test result. That span, the Judge thought, could well have been overstated. The officer might well have conveyed the result of the test within the span. But, and rightly, the Judge did not found his decision on that. As to that he was at paragraph [4] explicit:

… The officer says that he gave that advice at 21.44 which is a gap, as I say, between 9 and 11 minutes depending on the time taken, and then filled in the advice of the evidential breath test, which was also entered at 9.44. So presumably, there would have been some time involved in the completing of that form, and it may be that the advice occurred earlier than 9.44, but of course that is his evidence.

[8]      The Judge, also rightly, accorded the words ‘without delay’ their strict natural meaning. At paragraph [6] he said this:

‘Without delay’ must have some meaning and must equate to what has been referred in other provisions of the Act in earlier occasions ‘forthwith’ and it would seem to indicate a relatively instant advice after the result is achieved.

[9]      In concluding inevitably, as he did, that the officer had delayed and was in breach of his s 77(3)(a) duty, unless excused under s 64(2), the Judge excused the breach on two bases:

… on the face of it I am bound to come to the view that the advice has not been given without delay. The only issue then becomes whether or not that failure is saved by the reasonable compliance provisions. As to that, of course, there was no challenge to any of the process in cross-examination. The officer said that the defendant co-operated and everything proceeded relatively smoothly, and indeed the times reflect that. From go to woe you are looking at only half an hour or 40 minutes or so.

Finding the evidence as a whole otherwise sufficient, the Judge found the charge proved and entered the conviction appealed.

Unexplained delay

[10]     On this appeal Mr A   relies, and at first relied exclusively, on a decision of this Court to which the Judge was not referred, in which this very point arose: Kavanagh v Police HC CHCH CRI 2005-409-000231 27 February 2006, Fogarty J. In that case there had been a delay of some nine minutes and Fogarty J held that, absent the reason why, that delay had to be fatal.

[11]     Fogarty J accepted that s 64(2) applies when a requirement has not been complied with strictly or at all; that the discretion is to be exercised liberally and turns significantly on the presence or absence of prejudice: Police v Tolich (2003) 20

CRNZ 150; Coltman v MOT [1979] 1 NLZR 330; Aualiitia v MOT [1983] NZLR

727. Nevertheless, Fogarty J said, why there had been the failure to comply was important. In Coltman that went to whether the officer had acted with reasonable care; in Aualiitia, to whether there had been prejudice.

[12]     The duty on the officer under s 77(3)(a) to advise the result of an evidential breath test without delay, Fogarty J said, was far from formal. The motorist, just tested, remained subject to a mandatory process one purpose or effect of which was to elicit evidence to his or her prejudice. That ought to extend no longer than was requisite. That the motorist was unprejudiced could not be a complete answer. Why the delay happened went to reasonableness. He concluded at paragraph [13]:

It is one thing to find reasonable compliance on the grounds that the delay can  be  explained.  The  police  may  be  able  to  explain  that  the  officer concerned was diverted by an urgent phone call or an accident. To test reasonable  compliance  solely on  prejudice,  as  the  Judge  did  here,  is  to substitute the reasonable compliance test with a prejudice test. … The prejudice consideration is part of the examination …

[13]     In this Fogarty J distinguished McCarthy v Police (HC WN AP 312/02, 19

February 2003), in which Chisholm J held that a delay of ten minutes was capable of being excused. There within four minutes the officer had shown the motorist the positive evidential breath test result. In Kydd v Police (HC CHCH, CRI 2007-409-

134, 136, 29 June 2007), where the delay was eight to ten minutes, Chisholm J in turn distinguished Kavanagh. There again the officer conveyed the result before giving  the  full  advice.  The  inference  was  also  open  from  the  EBA  checklist

produced, and cross-examination, that some part of the time that passed was taken completing the list.

[14]     In the spectrum this case sits with Kavanagh rather than McCarthy or Kydd. The officer said nothing in evidence in chief as to why there was a nine – eleven minute delay. He did not produce the EBA checklist and he was not cross-examined. Whether the Judge was right to hold that there had been reasonable compliance depends then on whether, to assert that there was not, Mr A   had first to advance his challenge in cross-examination.

Absence of cross-examination

[15]     The  effect  of  the  three  decisions  to  which  I  have  referred,  though  they differed in their result, is that the prosecution must justify the delay; that the defence is under no duty to put the prosecution on notice that delay is in issue, let alone any to round out the prosecution case by inviting the officer to explain the delay. As to that Chisholm J was explicit in Kydd at paragraph [17]. In Kavanagh, at paras [12] – [15], Fogarty J heightened it to a policy consideration. He not merely set aside the conviction. He declined a rehearing.

[16]     At  the  hearing  of  this  appeal  I  invited  counsel  to  consider  how  those decisions reconciled with those to the opposite effect, which the Judge seemingly had in mind; those where an absence of challenge in cross-examination may deprive the defence of the right to challenge at all.

[17]     In Auckland City Council v Scale [1985] 1 CRNZ 544 the Court of Appeal held at 546 – 547 that where an officer says in evidence that he or she has conducted a breath screening or evidential breath test as the related Gazette notice prescribes, but omits a detail when cross-examined, the defence may be unable to rely on the omission unless that was brought home by challenge. The Court said:

… it may nevertheless be open for the Court to draw an inference that any such  unchallenged  omission  from  the  description  was  accepted  by  the defence as being inadvertent and unimportant, and to conclude that there had been proper compliance with that step. That is a risk defence counsel must

face if they fail to follow up a general question with a further question drawing attention to an omission.

[18]   In Police v Aylwin (HC AK, CRI 2005-404-440, 14 September 2006), Baragwanath  &  Heath  JJ  went  further.  They  held  that  where  an  officer  gives evidence that he or she has adhered to the process for the conduct of a test specified by Gazette notice, and the defence wishes to challenge that, the defence is under an evidentiary burden. It must bring home the point by cross-examination before it can begin to do so by submission.

[19]     These cases are confined, however, to a single context. They rest on the officer’s assertion in evidence in chief that he or she has complied with the process prescribed for the conduct of the test by the relevant notice. I asked counsel therefore to make a wider survey to see whether the principle applied more widely. Neither has since found any other instance of the principle applied elsewhere. I have found only one. It is in this immediate context and it is consistent with the Judge’s conclusion in this case. But that does not assist Mr A  .

[20]     In  Horne  v  Police  HC  CHCH  A5/02  27  March  2002,  Panckhurst  J,  the defence argued that there had been a delay of five to six minutes for which there was no explanation. Panckhurst J rejected that. He held that on a natural reading the evidence was consistent with advice having been given immediately as s 77(3)(a) requires. Unsurprisingly, he also remarked that an absence of cross-examination did not assist the defence. He did not suggest that to be the governing consideration.

[21]     The principle that governs is, I consider, that endorsed in the three more recent cases to which I have referred and that for two reasons. It is consistent, I consider, with the fundamental, indeed definitive, principle that the onus of proof rests on the prosecution, to prove elements of the offence beyond reasonable doubt and the elements of the process to the balance of probabilities: R v Livingstone [2001] 1 NZLR 167. Secondly, I consider, when s 64(2) is invoked, the evidentiary onus identified in Aylwin cannot begin to apply.

[22]     Where the issue is whether an officer has conducted a test in accord with the process prescribed by Gazette notice, it has been held since Auckland City Council v

Scale, an officer may satisfy the onus of proof to the balance of probabilities by asserting quite generally that he or she has. Then it is open to the Court to infer that each step prescribed has been adhered to unless there is some challenge founded on evidence. Nothing less will serve.

[23]     Once the testing is complete, however, and the officer comes under the duty imposed by s 77(3)(a) to inform the tested motorist of the result ‘without delay’, I consider, that must be established affirmatively in fact. Where the time at which the result is given and the advice conveyed coincide, or nearly so, the onus will be met. Where time passes before the officer conveys the test result, where there is delay, the onus will not be met. Then the officer will be in breach of s 77(3)(a). The evidential breath test will become inadmissible unless the breach is excused under s 64(2).

[24]     In such a  pass only the prosecution has an interest in the discretion given by s 64(2) being exercised and it must make out a case for that to happen. The officer must explain his or her delay sufficiently to satisfy the Court that, despite the delay, he or she has complied reasonably with the duty imposed.  In no sense can the defence be thought to share in that responsibility. To the contrary. If the prosecution fails to lead such evidence the defendant is entitled at the close of the prosecution case to claim the benefit.

Result

[25]     For  these  reasons  the  appeal  will  be  allowed  and  the  application  for  a rehearing denied. To allow a rehearing would be to dilute the policy consideration that Fogarty J sought to bring home in Kavanagh – that to succeed in a prosecution the police must anticipate any want of compliance calling for the exercise of s 64(2)

and bring home their application on sufficient evidence.

P.J. Keane  J