B v Police HC Auckland CRI 2006-404-55

[2006] NZHC 872

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-55

BETWEEN  B

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 July 2006

Counsel:         C P Comesky for Appellant

A Longdill for Respondent

Judgment:      27 July 2006

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Auckland
Counsel:

C P Comesky, Auckland

B V NEW ZEALAND POLICE HC AK CRI 2006-404-55 27 July 2006

Introduction

[1]      Mr B   was convicted in the District Court at Auckland on one charge of failing to accompany an enforcement officer when required to do so under s69 of the Land Transport Act 1998 (the Act) and one charge of refusing to permit a blood specimen to be taken, having been required to do so under s72 of the Act.

[2]      The convictions arose out of an incident that occurred on 15 October 2005 when Mr B   was driving along the Great South Road in the South Auckland area.

[3]      Following a defended hearing over two days, Judge Gittos gave judgment orally on 29 January 2006.   The judgment contains an admirable summary of the relevant facts on which I propose to draw for the purposes of this decision.

Competing arguments

[4]      Mr Comesky, for the appellant, submits that the District Court Judge erred in finding that the requisite intent had been established on each charge.  He submits that the  evidence  went  no  further  than  to  demonstrate  that  Mr  B    was  in  a confused state and anxious to ensure he understood legal rights before complying with directions from the enforcement officers.  In those circumstances, Mr Comesky submits that the convictions ought to be set aside as no intent to commit either offence was proved beyond reasonable doubt.

[5]      Ms Longdill, for the Crown, supports the decision of the District Court Judge. She submits that the inference of intent drawn by the Judge on each charge was open to him on the evidence, especially once he had indicated a clear preference for the evidence given by police officers over that given by Mr B  .

[6]      Ms Longdill has also helpfully provided to the Court authorities that do not appear to have been placed before the District Court.  Those authorities have assisted me in reaching a decision.

The failure to accompany charge

[7]      The  first  charge  on  which  Mr  B    was  convicted  was  failing  to accompany the enforcement officer.  The offence is created by s59(1)(b) of the Act which provides:

59     Failure or refusal to remain at specified place or to accompany enforcement officer

(1)    A person commits an offence if the person—

…

(b)     Fails or refuses to accompany without delay an enforcement officer to a place when required to do so under section 69; or

….

[8]      In  Cameron  v  Ministry  of  Transport  (1987)  2  CRNZ  646,  Tipping J considered the mens rea element of the offence in the context of s 59’s predecessor in the Transport Act 1962.  The Judge accepted that the prosecution had the onus of proving beyond reasonable doubt that the person charged appreciated that he was being requested to accompany the enforcement officer.  Failure to accompany could not arise unless there were a conscious appreciation of the request being made. Tipping J added that once there is proof of a request to accompany, in circumstances in which any normal person would appreciate that he or she was being requested to accompany the enforcement officer, that is sufficient material, in the absence of other evidence, on which a Judge may act to draw an inference of intent beyond reasonable doubt.

[9]      The  relevant  facts  in  relation  to  the  failure  to  accompany  charge  are summarised fully in the District Court Judge’s decision.

[10]     Initially, Mr B   submitted to a passive breath screening test.  That test indicated there was alcohol on his breath.

[11]     The officer required Mr B   to submit to a breath screening test.  No issue was taken either to the device used nor its assembly.

[12]     Constable Goodale gave evidence that the breath testing device was proffered to Mr B   at the roadside.  Instructions were given as to what was required in terms of blowing into the mouthpiece.   Mr B   was seen to inhale upon the machine rather than to exhale into it.  The officer noticed this from hearing “sucking noises” and observing Mr B  ’s depressed cheeks while he undertook that task.

[13]     Having been used in that way, the breath screening test result was plainly inconclusive.  It was re-programmed and Mr B   was again told what to do with the machine.   Once again, Mr B   inhaled rather than exhaled into the machine.

[14]     At that point, Constable Goodale informed Mr B   that he was required to accompany him to the Mt Wellington police station for the purpose of taking an evidential breath test, a blood test or both.   There is no contest that that was the appropriate advice to give and followed the language of the statute.

[15]     What might loosely be described as a conversation followed.   Initially, Mr B   sought advice as to whether he was under arrest.   Constable Goodale explained to him that he was not under arrest but that he was required by law to accompany him to the police station for the purposes he had outlined.  The constable also explained to Mr B   why that was so.

[16]     On a number of occasions, Judge Gittos said about four, the same questions and  answers  were  put.    Constable  Goodale  determined  that  Mr  B    was refusing or failing to accompany him.

[17]     There is some dispute over whether Mr B   was told that if he did not accompany the constable, he would be arrested.   I accept that although there have been failures in the recording of some of the evidence taken in the District Court, Ms Longdill invited me to rely on evidence of the accompanying constable to demonstrate that that was said.  However, I prefer to leave the point to one side as I do not see it as determinative of the appeal.

[18]     Mr B   was then arrested and taken to undergo an evidential breath test.

[19]     In those circumstances, was the District Court Judge entitled to draw an inference of failure to accompany of the type discussed by Tipping J in Cameron? In my view, he was.  Indeed, I cannot see an alternative inference on the material available to me.

[20]     The conduct of Mr B   can only be described as a deliberate attempt to frustrate the process.  That is evident from the nonsensical exchange of the question whether he was under arrest and the firm and correct answers given by the officer. No attempt was made by Mr B   at this stage of the proceeding to seek legal advice.  Yet, he chose to ask the constable consistently whether he was under arrest rather than to comply with the direction to accompany.

[21]     The inference of intent being open to the Judge, the appeal against conviction on this charge must fail.

Refusing to permit a blood sample to be taken

[22]     The second charge is one of refusing to permit a blood sample to be taken having been required to do so by an enforcement officer.  The legal basis for this charge is set out in s60(1)(a) of the Act, which provides:

60    Failure or refusal to permit blood specimen to be taken

(1)    A person commits an offence if the person—

(a)      Fails or refuses to permit a blood specimen to be taken after having been required to do so under section 72 by an enforcement officer; or

[23]     In Quilter v R (CA175/03, 3 July 2003), the Court of Appeal made it clear that it was not incumbent on an enforcement officer to advise the consequences of a refusal.   The enforcement officer need go no further as a matter of law than to provide the information required by the statute.

[24]     In order to establish an offence of this type the intention to refuse must be proved beyond reasonable doubt.  The nature of the intent to be proved was made clear in Duell v Ministry of Transport (1992) 8 CRNZ 382 (CA).

[25]     Gault J  made the point  that,  once a  deliberate  refusal  to  permit  a  blood specimen to be taken was proved beyond reasonable doubt, it could not assist the appellant  to  say that  was  based  on  a  mistake  of law:  at  389.    That  point  was underlined by Cooke P, who made the comment that it is no excuse for a defendant to refuse blood when he or she has failed to provide an adequate breath test.  As the President said:

At best it amounts to a mistake of law which is no defence: s25 Crimes Act

1961.  (at 383)

[26]     Judge Gittos summarised the steps taken when the evidential breath test was attempted.  Initially, while travelling to the place at which the evidential breath test was to be taken, Mr B   had expressed a desire to give blood, remarking that a blood test was more accurate than a breath test.  It was made clear that the legislation had to be followed.

[27]     Mr B   was given an opportunity, which he took, to speak to a lawyer by telephone in private.  In fact he spoke with the lawyer on a number of occasions throughout this process.

[28]     When the evidential breath test device was assembled, he was required to blow into it.  However, he simply sat by the machine making no attempt to do so. Unsurprisingly, an insufficient breath reading resulted.   On re-programming, Mr B   was again asked to blow into the machine and was told what to do.  Again, no steps were taken to comply with those directions.   An incomplete test was the result.

[29]     At that point, Mr B   was told that he was required to give a blood sample.   The relevant documentation was provided to him.   After further conversations with a lawyer, Mr B   was told he was required to give a blood

test.  His response was that he understood the evidential breath testing procedure had to be complied with first.

[30]   Once again, an interchange of words loosely resembling a conversation occurred.  It appears that the officers explained what was required of him while Mr B   kept repeating his position with regard to the evidential breath procedure.

[31]     Judge Gittos concluded that, from Mr B  ’s conduct, it was clear that Mr B   refused to permit a blood sample to be taken.  Accordingly, he found the charge proved.

[32]     Was that inference open to the Judge?  With respect, it was.

[33]     The inference of refusal can be drawn substantially from the conduct of Mr B   whilst being processed through the evidential breath and blood test procedure.   It was reinforced by his earlier conduct in relation to the failure to accompany charge.

[34]     I can see no other way of describing Mr B  ’s conduct on the day than one designed to frustrate the overall processes involved.

Result

[35]     For those reasons, the Judge was entitled to draw  relevant  inferences  of intent.

[36]     It follows that the appeal against conviction on both charges is dismissed.

Addendum

[37]     Mr Comesky informs me that the disqualification order made in the District Court in consequence of the convictions has been suspended, pending determination of this appeal.

[38]     The suspension will cease at midnight tonight.   In effect, Mr B   is

disqualified from driving for a period of six months from 12.01am tomorrow.

P R Heath J