Andrews v Police

[2014] NZHC 141

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-000302 [2014] NZHC 141

BETWEEN  JACKO ANDREWS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   10 February 2014

Appearances:           S Blake for the Appellant

B Hamlin for the Respondent

Judgment:                13 February 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 13 February 2014 at 9.00 am

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

ANDREWS v POLICE [2014] NZHC 141 [13 February 2014]

Introduction

[1]      The appellant, Mr Andrews, challenges a conviction entered against him on

15 October  2013,  following  a  defended  hearing  for  driving  with  excess  breath alcohol contrary to s 56(1) of the Land Transport Act 1998.   Mr Andrews was sentenced to 90 hours’ community work, nine months’ supervision, nine months’ disqualification and indefinite disqualification with leave to apply for a zero alcohol license under s 65B of the Land Transport Act.  This latter order was made because Mr Andrews’ conviction was his third for the same offence.  The Court considered that it was required to make the order pursuant to s 65B.

[2]      Mr Andrews initially appealed against both conviction and sentence.   The appeal against sentence asserted that 65B of the Act was not in force at the time of the offending and that the Judge had erred in applying it retrospectively.  However, when the appeal was called, Mr Blake accepted the Crown’s submission that the section was in force at the relevant time and that there had been no retrospective application of the provision.  He withdrew the appeal against sentence.

[3]      Accordingly, the only appeal before me relates to Mr Andrews’ conviction.

In brief, the issues can be stated as follows:

(a)       When was the result of the evidential breath test ascertained?;

(b)Was  s  77(3)  of  the Act  complied  with  so  as  to  make  the  result admissible?;

(c)       If not, was there reasonable compliance sufficient to invoke s 64(2)?

Factual Background

[4]      At about 10.30 pm on Saturday, 5 October 2012, Mr Andrews was driving erratically.  He was stopped by an enforcement officer, Constable Zander.

[5]      Mr Andrews    immediately    admitted    that    he    had    been    drinking. Constable Zander administered a passive alcohol breath test.   It registered a pass

result.  Mr Andrews then told the officer that “the machine must be broken, because [he had] been drinking”.  The officer recalled that the evening was windy but that Mr Andrews smelt strongly of alcohol.  He also gave evidence that Mr Andrews was slurring his words as he spoke and that his eyes were bloodshot.

[6]      Constable Zander then required Mr Andrews to undertake a breath screening test, using an approved device.   This test indicated that Mr Andrews had a breath alcohol level of more than 400 micrograms per litre of breath. Mr Andrews was formally detained and he was given a Bill of Rights warning at the roadside.  He was then required to accompany the constable to the Papakura Police Station for further testing.

[7]      Mr Andrews and Constable Zander arrived at the Papakura Police Station at approximately 10.51 pm (according to Constable Zander’s watch).  At the station, the constable gave Mr Andrews his rights again.  Mr Andrews did not want to speak to a lawyer.

[8]      Mr Andrews  was  then  required  to  undergo  an  evidential  breath  test. According to the constable’s watch, the test commenced at 10.53 pm.  Two breath samples were tested.  The machine used was an approved device and a certificate of compliance was produced for it.  Constable Zander gave evidence that he carried out the test pursuant to the Land Transport (Breath Tests) Notice 2009.

[9]      At 10.55 pm, the machine displayed the results of the testing, but for some reason, it did not print out a record of those results.  It should have done so.  The first sample given by Mr Andrews had produced a reading of 632 micrograms of alcohol per litre of breath.  The second sample had produced a reading of 606 micrograms of alcohol per litre of breath.   Constable Zander did not further attempt to extract a printout from the machine at that time.  He did not know how to do so.  He gave evidence that Mr Andrews was seated beside him and that he showed Mr Andrews the  screen  on  the  machine  when  the  breath  test  results  were  displayed  on  it. According to Constable Zander, when he showed the display screen on the machine to Mr Andrews, he told Mr Andrews that  that  was the evidential result that the machine had produced.  It seems from the evidence that the result was displayed on

the machine’s screen for a relatively short time, probably a little less than a minute.

The machine then recalibrated itself and the reading on the display returned to zero.

[10]     At 10.59 pm (according to Constable Zander’s watch), the officer filled out the standard procedure sheet entitled “Advice of Positive Evidential Breath Test”. He then read that sheet to Mr Andrews.  It recorded that Mr Andrews had given an evidential  breath  test,  that  the  testing  machine  had  given  a  positive  result  of

606 micrograms of alcohol per litre of breath, and that if Mr Andrews did not, within

10 minutes, request a blood test, the test could, of itself, be conclusive evidence leading to his conviction for an offence under the Land Transport Act.   It also advised that if Mr Andrews wished to undergo a blood test, he had to request one within 10 minutes.  It advised him that if he underwent a blood test, the evidential breath test could not be used in court proceedings to support a charge of driving or attempt to drive with excess breath alcohol concentration, but the result of the blood test could be used to support such a charge.  It also advised him that if he chose not to have a blood test, it was no defence to any proceedings that there was or may have been an error in the result of the breath screening test or the evidential breath test.

[11]     Mr Andrews signed an acknowledgement recording that Constable Zander had advised him of these matters at 10.59 pm.

[12]     The  officer  then  says  that  he  gave  a  further  Bill  of  Rights  warning  to Mr Andrews and that at 11.03 pm, he told Mr Andrews he had 10 minutes to request a blood test.  At 11.15 pm, he spoke again to Mr Andrews and Mr Andrews told him that he did not want a blood test.

[13]     Constable  Zander  then  found  another  officer,  and  obtained  his  help  in extracting  the  printout  from  the  breath  test  machine.    This  was  completed  in Mr Andrews’ presence.  The printout recorded:

(a)       that the first sample provided by Mr Andrews was tested at 22.51;

(b)that it produced a result of 632 micrograms of alcohol per litre of breath;

(c)       that the second test was undertaken at 22.52; and

(d)that it produced a result of 606 micrograms of alcohol per litre of breath.

The result recorded was 606 micrograms of alcohol per litre of breath.  Mr Andrews was given a copy of the printout.  This was done before notice of suspension was served on Mr Andrews. The precise timing was not however given in evidence.

[14]     Mr Andrews  denied  the  resulting  charge  of  driving  with  excess  breath alcohol,  and  on  7  May 2013,  he appeared  in  the Papakura  District Court  for a defended fixture in relation to the charge.

[15]     Evidence in relation to all of the above matters was given by Constable Zander.   He was cross-examined particularly about timing and the procedures he followed.  At the conclusion of the respondent’s case, counsel for Mr Andrews made the submission that there was no case to answer, based on two assertions, first, that there had been a delay between the evidential test and the resulting printout, and secondly, that Mr Andrews had not been given the mandatory advice pursuant to s 77(3) of the Act at the required time.

[16]     The Court held that there was a case to answer.  Mr Andrews then elected not to call or give evidence.

[17]     The  matter  was  then  adjourned  to  enable  legal  submissions  to  be  filed. Defence submissions were filed on 10 May 2013.   Submissions were filed by the respondent on 25 June 2013.

[18]     In a reserved decision delivered on 15 October 2013, Judge D J McNaughton found   that   the   charge   had   been   proven.      Mr Andrews   was   sentenced   by Judge C Ryan on that day.

District Court Judge’s Decision

[19]     Judge  McNaughton  set  out  the  relevant  facts  as  noted  above.    He  also recorded  counsels’  submissions.     He  considered  that  there  was  a  completed evidential breath test undertaken, albeit that the test was completed not at 10.55 pm as asserted by the officer, but rather, sometime after 11.15 pm, when the printout was obtained from the machine.  The Judge nevertheless considered that the officer had advised Mr Andrews that the evidential breath test had produced a positive result. The  Judge  accepted  that  there  was  a  minor  delay  between  the  time  when Mr Andrews was advised of the evidential breath test result and the time when he was advised of his right to elect a blood test.  He considered that it was clear from the evidence that the officer’s watch and the clock on the evidential breath test device were not synchronised.   At worst, he found that the delay was some four minutes but that it was probably a lesser period and that at least part of this time was taken up by the reading of the advice, which he considered would have taken a minute or two.   He was satisfied that there was no significant delay in advising Mr Andrews of the result of the positive evidential breath test.

[20]     The Judge noted s 77(3) of the Land Transport Act.  He observed that, as a matter of law, an evidential breath test is not admissible unless a defendant is advised without delay that the test was positive, and does not request a blood test within the prescribed 10-minute period.  He considered that both of these requirements follow only after the result is ascertained and not before.  He found that the test was only complete once the printout was obtained.   He considered that when the machine failed to produce the printout, the officer could have requested another evidential breath test or, alternatively, a blood sample.   He commented that the officer had rejected those alternatives in favour of utilising the original evidential breath test result and that, as a consequence, he should have repeated the advice of the positive evidential  breath  test  when  the  printout  was  finally obtained,  and  then  allowed Mr Andrews  another  10  minutes  in  which  to  request  a  blood  test.    The  Judge considered that the mandatory requirements of s 77 had not been complied with and that the resulting evidential breath test was inadmissible.

[21]     Judge McNaughton then referred to s 64(2) of the Act.  He considered that the non-compliance was as a result of a mechanical fault in the machine and not any failing on the part of Constable Zander.   He considered that Mr Andrews had not been prejudiced in any way, that he had been fully advised of his rights throughout and that there was nothing to indicate that his decision not to elect a blood test would have been any different if the option had been given afresh after the printed result card was obtained.

[22]     The Judge considered that there was no reasonable doubt as to any ingredient of  the  offence  and  that  Constable  Zander  had  acted  reasonably  and  treated Mr Andrews fairly throughout.  He considered that the evidential breath test result was saved by reasonable compliance and that the charge had been proved.

Submissions

[23]     Mr Blake, on behalf of Mr Andrews, argued that there was no evidential breath test until the printout was obtained and the results of the tests were recorded in acceptable evidential form.  He argued that the test was only completed once the form was produced, which was at some unspecified time shortly after 11.15 pm.  He submitted that the advice required by s 77(3)(a) of the Act can only be given after the result is ascertained and not before and that the advice required by the section was not given by Constable Zander after the printout was extracted from the machine. He  also  argued  that  there  was  no  partial  compliance  sufficient  to  constitute reasonable compliance under s 64(2) of the Act because, on Constable Zander’s evidence, Mr Andrews was simply shown the display panel on the evidential breath testing device, and told that that was his evidential result.  Mr Blake submitted that this did not meet the requirements of s 77(3)(a), particularly given that the result was only  visible  for  a  limited  period  of  time.    He  also  argued  that  there  was  no explanation for the non-compliance advanced by the informant and that it could not be assumed that non-compliance was the result of a mechanical fault in the machine. He submitted that there was no evidence of a mechanical fault produced by the informant; rather, a certificate of compliance was produced in Court under s 75A of the Act.   He also argued that there was no explanation advanced as to why the s 77(3)(a) advice was not given once the printout had been obtained and that, for that

reason alone, s 64(2) of the Act could not apply.  He submitted that the conviction should be quashed.

[24]     Mr Hamlin, appearing for the Crown, noted that there is no dispute that Mr Andrews was driving on 5 October 2012 or that his breath alcohol was above the legal limit.  He referred to the decision of the Supreme Court in Aylwin v Police,1 and suggested that the arguments  advanced for Mr Andrews  were technical and unmeritorious.   He noted that Judge McNaughton accepted that the result of the evidential breath test was shown to Mr Andrews and that the advice of positive required  evidential  breath  test  was  then  read  out  to  him.    He  also  noted  that Mr Andrews was given a 10-minute period to elect whether or not to obtain a blood

test.   He accepted that the Judge was required, on the basis of various authorities decided in this Court, to find that the evidential breath test was not “completed” until the machine had printed out the result and that the advice of the positive evidential breath test was therefore given before, rather than after the result was obtained.  He also accepted that it followed that, technically, s 77(3)(a) was not complied with. However he argued that s 64(2) was satisfied because there was reasonable compliance with the Act.  He argued that the non-compliance was explained because the machine did not initially print out the result obtained from the testing.  He argued that non-compliance arose without any fault by Constable Zander and that it did not call  into  question  the  accuracy  of  the  result.    He  submitted  that  there  was  no prejudice to Mr Andrews and that the police acted in good faith and in the spirit of the legislation.   He argued that Judge McNaughton was right to find that s 64(2) applied and that in substance, the requirements of s 77(3)(a) were met.

Analysis

[25]     I start by observing, as did Brewer J in a recent decision,2 that the onus was on the respondent to prove its case, and that that onus was not confined to the elements of the offence.  Rather, it extended to all matters upon which the Judge, as the trier of the facts, was required to be satisfied before he was entitled to find the charge proved.

[26]     Section 56(1) makes it an offence to drive a motor vehicle on a road while the proportion of alcohol in the driver’s breath, as ascertained by an evidential breath test carried out under s 69, exceeds 400 micrograms of alcohol per litre of breath. Pursuant to s 69, an enforcement officer may require a person to accompany him or her to a place where that person can undergo an evidential breath test, or a blood test, if the person has undergone a breath screening test under s 68 and it appears to the officer that the proportion of alcohol in the breath of the person who underwent the test exceeds 400 micrograms of alcohol per litre of breath.

[27]     It follows, that in order to establish a charge under s 56(1), the prosecution is required to establish:

(a)       that a breath screening test was conducted; (b) that an evidential breath test was conducted; (c)         the results of those tests; and

(d)      that the defendant was advised of his or her right to have a blood test.3

[28]     Here, there is no dispute that a breath screening test was conducted on the roadside.  Further, there is no dispute that that test indicated that Mr Andrews had a breath alcohol level of more than 400 micrograms per litre of breath.  Further, it is clear that Mr Andrews provided a positive evidential breath test pursuant to s 69.

[29]     A  defendant  has  the  right,  within  10  minutes  of  being  advised  by  an enforcement officer of the matters specified in s 77(3)(a), to elect to have a blood test to assess the proportion of alcohol in his or her blood.4   Was Mr Andrews advised of this right as required by the Act?

[30]     Section 77(3)(a) provides as follows:

Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—

(a)      the person who underwent the test is not advised by an enforcement officer, without delay after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes,—

…

[31]     Section 77(4) is not in issue in the present case.  What is in issue is when the result of Mr Andrews’ positive evidential breath test was ascertained, and therefore when Constable Zander was required to give the advice required by s 77(3)(a).

[32]     The word “test” used in s 77(3)(a) must refer back to the words “positive evidential breath test” used in the introductory words in the section.  An “evidential breath test” is defined in the Act as meaning a test carried out by means of an evidential breath testing device in a manner prescribed in respect of that device by the Minister of Police by notice in the Gazette.5

[33]     Here, the machine used by Constable Zander was a Seres Ethylometre model

679ENZ.  The  applicable  procedure  for  such  machines  is  set  out  in  the  Land Transport (Breath Tests) Notice 2009.6    Clause 8 of that notice details a three-step process.  Step 1 relates to the start of the testing sequence, step 2 to the taking of the evidential breath tests and step 3 to the results of the test.  Step 3 provides that the results of the various steps in the testing sequence will be shown on the result card or printout, including the evidential breath test result.

[34]     The third step concerns the recording of the results for evidential purposes. Until  the  results  are  recorded  in  acceptable  evidential  form,  the  test  is  of  no evidential value.7   It has been observed as follows:8

…As the whole purpose for which the device is designed is evidential, the record of result is an integral part. Without such a result, recorded in prescribed form, the testing procedure must be regarded as incomplete or not carried out. Whilst it is correct that a police officer is able to observe and

5      Section 2.

6      Land Transport (Breath Tests) Notice 2009, cl 3, definition of “Seres”.

7      Henderson v Police HC Wellington CRI 2005-485-14, 8 March 2005.

make his or her own record of the lowest of the two scores displayed on the screen of the device, that does not constitute a result in the prescribed form.

[35]     There is ample authority for this observation.9   It is clear that, unless a result is obtained on a result card or printout in a manner which can be read and proven in evidence, an evidential breath test is not complete.

[36]     In my view, Judge McNaughton was correct when he found that the breath test procedure had not been completed, and that a result had not been ascertained until such time as the machine produced the printout.  On the evidence, this was at some unspecified time, shortly after 11.15 pm.

[37]     Constable Zander did not give the advice required by s 77(3)(a) after the printout was obtained, and the test was completed.  Rather, he gave the advice before the printout was available.

[38]     While Mr Blake made extensive submissions as to the meaning of the words “without delay” contained in s 77(3)(a), I do not consider that it is necessary to address those submissions for the simple reason that no advice at all was given after the printout was produced and the evidential breath test was completed.  Questions of delay do not arise.

[39]     Again, it follows that, in my view, Judge McNaughton was correct when he held that the requirements of s 77(3)(a) were not met.  It follows that the result of the positive evidential breath test provided by Mr Andrews was not admissible pursuant to s 77(3) unless it was saved by a proviso in the Act.

[40]     Relevantly, s 64(2) provides as follows:

64       Defences

…

(2)       It  is  no  defence  to  proceedings  for  an  offence  that  a  provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there

9      Ministry  of  Transport  v  Masters  [1992] 1 NZLR 645; Stoves  v  Police  HC  Christchurch AP171/94, 10 August 1994; Duell v Ministry of Transport [1993] 1 NZLR 13; Hardy v Police HC Auckland CRI-2005-404-394, 5 May 2006.

has been reasonable compliance with such of those provisions as apply.

…

[41]     In my view, this provision applies.  There was substantial compliance with s 77(3)(a).      Mr Andrews  was  shown  his  results  on  the  display  screen  on  the machine, and he was given formal advice by Constable Zander of the consequences of the result and his right to seek a blood test.  Further, he was given a copy of the printout as soon as it could be obtained.   All steps required by s 77(3)(a) were undertaken, albeit they were undertaken before the evidential breath test was completed, rather than after it was completed by production of the printout.

[42]     Mr Blake submitted that there was no explanation for the constable’s failure to give the required  advice after the printout  was obtained.   He pointed to the decision in Ariki v Police,10  where it was held that if the police wish to claim the benefit of reasonable compliance under s 64(2), they must first explain why there has been non-compliance.  He argued that if no explanation for non-compliance is put forward, s 64(2) cannot be relied on by the police.

[43]     When s 64(2) is relied on, I accept that is the incumbent on an informant to explain why there has not been strict compliance, or indeed any compliance, with the relevant statutory provisions.  The reasonable compliance provision is not intended to excuse the police from complying with the procedural requirements set out in the Act, nor is it intended to relieve the informant of the burden of proof which rests on it.  Rather, it is intended, in the defined circumstances, to facilitate the reasonable application of the legislation.   If non-compliance cannot be explained by evidence which a court accepts, the non-compliance will not be reasonable.

[44]     In the present case, I am satisfied from the evidence that there was a good explanation given in evidence for the non-compliance and that the non-compliance was reasonable.

[45]     It is clear from Constable Zander’s evidence that the machine used to test

Mr Andrews’ blood did not initially print out the results.  Constable Zander could not

10     Ariki v Police HC Auckland CRI-2007-404-171, 6 November 2007.

explain why this had occurred.   He said it was for some unknown reason.   This malfunction explains why the advice was not given at the appropriate time.  It is also clear that Constable Zander showed the display panel to Mr Andrews prior to the advice being given and that that panel recorded the quantity of alcohol in his breath. Constable Zander then completed the advice of positive breath test form, and he read it  out  to  Mr Andrews.    Constable  Zander  explained  in  evidence  that,  when  the machine failed to produce a printout, he:

continued with the procedure going on the fact that the machine displayed the result.

It was put to him that, at the time he gave the advice to Mr Andrews, he had no idea whether or not the machine would produce a printout.  He stated as follows:

The device showed me his result, so at that time the defendant was shown that result and that is the result that I was going with because I didn’t know whether the machine was ever going to be able to print out a result.

It was put to him that, at the time he gave the advice, the procedure had not been adhered to because he did not have a print out.  He stated as follows:

I wasn’t aware that the breath test notice specified when that card was to be obtained.

In my judgment, the reasons for the constable’s failure to give the s 77(3)(a) advice

at the required time have been adequately explained.

[46]     The required advice should have been given after the evidential breath test was completed and the printout obtained.  There can, however, be no suggestion that the failure to comply with s 77(3)(a) at the required time gives rise to any reasonable doubt as to the correctness of the result ascertained.  That is a central question in

assessing   reasonable   compliance.11      Nor   is   there   anything   to   suggest   that

Mr Andrews has suffered unfairness or injustice as a result of the failure to comply with s 77(3)(a).12    The correct steps were followed by the police, albeit not at the

right time.

11     Coltman v Ministry of Transport [1979] 1 NZLR 330 (CA); Soutar v Minister of Transport

[1981] 1 NZLR 545 (CA).

12     Aualiitia v Ministry of Transport [1983] NZLR 727 (CA).

[47]     It  follows  that  once  again   I  agree  with  the  conclusion  reached  by Judge McNaughton.  Section 64(2) applies.  There was reasonable compliance with s 77(3)(a),  and  the  result  of  Mr Andrews’  evidential  breath  test  was  properly admitted by the Court.

[48]     The various matters which the prosecution was required to prove beyond reasonable doubt were made out.   In my judgment, the Court did not err when it entered the conviction against Mr Andrews.

[49]     The appeal against conviction is dismissed.

Wylie J