B v Police HC Auckland CRI-2010-404-0042

[2010] NZHC 649

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-0042

CRI-2010-404-0043

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 May 2010

Appearances: Mr M Harte for Appellant

Ms S Earl for Respondent

Judgment:      4 May 2010 at 3 pm

JUDGMENT OF LANG J

[on appeals against conviction and sentence]

This judgment was delivered by me on 4 May 2010 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

Mr M Harte, Auckland
Crown Solicitor, Auckland

B V NEW ZEALAND POLICE HC AK CRI-2010-404-0042  4 May 2010

[1]      On 3 February 2010 His Honour Judge Wade convicted Ms B   after a defended hearing on charges of driving with excess breath alcohol and dangerous driving.   On the charge of driving with excess breath alcohol, the Judge fined Ms B   $1000 and disqualified her from holding or obtaining a driver’s licence for 12 months.   On the charge of dangerous driving, the Judge convicted Ms B   and disqualified her from driving for the same period.

[2]      Ms B   now appeals to this Court against her conviction on the charge of driving with excess breath alcohol and against the period of disqualification that the Judge imposed on the charge of dangerous driving.

[3]      During the hearing counsel for Ms B   abandoned the appeal so far as it challenged the conviction on the charge of dangerous driving.  He also abandoned the appeal against sentence on the charge of driving with excess breath alcohol.

The facts

[4]      Both charges arose from an incident that occurred in Central Auckland in the early hours of 25 October 2008.  On that date Ms B   was driving down Ponsonby Road in a northerly direction at approximately 2.06 am.   When she reached the intersection of Ponsonby Road and Franklin Road, she turned right into Franklin Road.   This manoeuvre meant that she crossed in front of two vehicles travelling towards her in the opposite direction.

[5]      Unfortunately for Ms B  , one of those vehicles was a marked police car driven by Constable Nicholas Lewa.  His evidence was that Ms B  ’s manoeuvre caused the vehicle travelling in front and to the left of his vehicle to swerve to the right in order to avoid colliding with Ms B  ’s car.  This, in turn, meant that the constable was forced to brake heavily in order to avoid colliding with that vehicle.

[6]      The constable then turned into Franklin Road and followed Ms B  ’s car. When he stopped Ms B  ’s vehicle and went to the driver’s window, he could smell alcohol within the vehicle.   As a result, he required Ms B   to undergo a passive breath screening test in order to determine whether or not she had been

consuming alcohol.  This test revealed the presence of alcohol on Ms B  ’s breath. The constable therefore required Ms B   to undergo a breath screening test using an approved device.  The result of that test was “Fail-General”.  After showing Ms B   that result, the constable required her to accompany him to the Auckland Central Police Station for the purpose of providing an evidential breath test, a blood test, or both.  After making that requirement the constable gave Ms B   her rights under the New Zealand Bill of Rights Act 1990.

[7]      Constable Lewa then travelled with Ms B   to the Auckland Central Police Station, where she underwent an evidential breath test.   The print-out from the device showed that the level of alcohol on Ms B  ’s breath was 920 micrograms of alcohol per litre of breath.  The permissible legal limit is 400 micrograms of alcohol per litre of breath.

[8]      The  prosecution  alleged  that  Ms  B    declined  to  exercise  her  right  to request that a specimen of her blood be taken for the purposes of analysis.  For that reason she faced a charge of driving with excess breath alcohol based on the result of the evidential breath test.

The issue on appeal

[9]      Sections 68 to 79 of the Land Transport Act 1998 prescribe matters relevant to drink driving offending.   They prescribe the procedures that enforcement authorities must follow when a driver is tested for the presence of alcohol in his her breath and/or blood.  They also create presumptions that apply whenever a driver is prosecuted based on test results obtained using those procedures.

[10]     There is no dispute in the present case that the constable acted in accordance with the relevant provisions of the Land Transport Act 1998 up until the point at which he obtained the print-out from the evidential breath testing device.  Thereafter, however, counsel for Ms B   submits that the constable failed to adhere to the prescribed procedure.  Alternatively, counsel argues that the constable acted unfairly in his dealings with Ms B  .  As a result, he contends that the prosecution was not

entitled to rely upon the result of the evidential breath test at the hearing in the

District Court.

[11]     In order to understand the basis for this argument it is necessary to have regard to the relevant provisions of the Evidence Act 2006 and the Land Transport Act 1998.

Evidence Act 2006

[12]     Ordinarily, an evidential breath test result will be admissible in a prosecution for driving with excess breath alcohol because it will satisfy the fundamental test of relevance prescribed by s 7 of the Evidence Act 2006.  There is usually no prospect, either, of such evidence being excluded under s 8 of the Act on the basis that it will have  an  unfairly  prejudicial  effect  on  the  proceeding  or  that  it  will  needlessly prolong the proceeding.

[13]     Section 7 is, however, subject to s 30 of the Act, which relates to improperly obtained evidence.   The trial Judge has an obligation under s 30(4) to exclude evidence  that  is  improperly  obtained  if  he  or  she  is  satisfied  that  that  is  a proportionate response to any impropriety that is proved in relation to the means by which the evidence was obtained.   Evidence will be improperly obtained if it is obtained in breach of any enactment, or in circumstances that the court considers to be unfair: s 30(5)(a) and (c).    In determining whether exclusion is a proportionate response the Judge must have regard to the factors listed in s 30(3) of the Act.

Land Transport Act 1998

[14]     Section 77(3) of the Land Transport Act 1998 governs the procedure that enforcement  authorities  must  follow  if  they wish  to  rely upon  the  result  of  an evidential breath test.  It provides as follows:

77       Presumptions relating to alcohol-testing

…

(3)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,—

(i)      In  the  case  of  a  positive  test  that  indicates  that  the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be [conclusive] evidence to lead to that person's conviction for an offence against this Act; or

(ii)     In  the  case  of  a  positive  test  that  indicates  that  the proportion of alcohol in the person's breath exceeds 150 but does not exceed 400 micrograms of alcohol per litre of breath, the test could of itself, unless the person is 20 or older, be [conclusive] evidence to lead to that person's conviction for an offence against this Act; or

(b)     The person who underwent the test—

(i)Advises  an  enforcement  officer,  within  10  minutes  of being advised of the matters specified in paragraph (a), that the person wishes to undergo a blood test; and

(ii)     Complies with section 72(2).

[15]     The combined effect of these provisions is that, provided the enforcement officer follows the procedure prescribed by s 77(3) after an evidential breath test has produced a positive result and does not act unfairly in doing so, the result of the test will be properly obtained.   It will then be admissible in a prosecution for driving with  excess  breath  alcohol.    In  most,  if  not  all,  cases  that  result  will  also  be conclusive evidence of the fact that the defendant was driving with excess breath alcohol.

[16]     It is therefore necessary to determine whether Constable Lewa followed the procedure prescribed by s 77(3), and whether he acted fairly in doing so.

Did Constable Lewa follow the procedure prescribed by s 77(3)?

[17]     The constable’s undisputed evidence at the hearing in the District Court was that he obtained and read the result of the evidential breath test to Ms B   at 2.38

am.    He  then  provided  her  with  a  standard  form  headed  “Advice  of  Positive

Evidential Breath Test”.  That form contained the following clauses:

2.The  evidential  breath  test  you  have  just  undergone  has  given  a positive result of 920 micrograms of alcohol per litre of breath.

3.If you do not within 10 minutes request a blood test, the test you have just undergone could, of itself, be conclusive evidence to lead to your conviction for an offence against the Land Transport Act 1998.

4.If you wish to undergo a blood test you must request one within 10 minutes.

[18]     Ms B   signed the form and the prosecution produced it as an exhibit at the hearing.   The form contains an entry confirming that the constable conveyed the advice in the form to Ms B   at 2.38 am.

[19]     The constable said that he advised Ms B   at 2.41 am that she had ten minutes within which to decide whether to request a blood test, and that she would need to advise him within that ten minute period if she wished to avail herself of that option.   He said that the ten minute period commenced at 2.41 am, and that Ms B   did not request a blood test within the following ten minutes.  As a result, he advised her at 2.53 am that the ten minute period had expired.  He also told her that, because she had not asked to give a blood sample within the ten minute period, the evidential breath test result would be used as evidence.

[20]     Ms B   gave evidence and did not dispute the fact that the constable had told her that she had ten minutes within which to request a blood sample.  She said that, immediately after the constable advised her of that right, she told him that there was no need for her to wait for ten minutes, and that she wanted to provide a blood sample immediately.   She said that at that point the constable told her to remain sitting where she was for the ten minute period.  As a consequence, she contended that the constable effectively refused to allow her to provide a blood sample notwithstanding her specific request.  That request was made at the beginning of the ten minute period contemplated by s 77(3).

[21]     An appeal against conviction proceeds by way of rehearing based on the evidence given in the Court below.  For that reason this Court is required to reach its

own conclusions as to matters of fact, giving due deference where that is required to any advantages that the court at first instance may enjoy by virtue of the fact that it has seen and heard the witnesses: Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 at 146 and 147.

[22]     If the constable’s evidence regarding the sequence of events that occurred between 2.38 am and 2.53 am is accepted, he clearly followed the procedure prescribed by s 77(3).  The constable said that he orally advised Ms B   of the fact that she had ten minutes within which to request a blood test.

[23]     The form that Ms B   signed contained advice to similar effect.   The clauses set out at [17] expressly advised Ms B   of the fact that the evidential breath test was positive.   It also told her that, if she did not request a blood test within the next ten minutes, the evidential breath test result could of itself be conclusive evidence that could lead to her conviction for an offence under the Land Transport  Act  1998.    Those  matters  encompass  the  advice that  an  enforcement officer is required to provide in terms of s 77(3).

[24]     Judge Wade had the benefit of seeing and hearing both Constable Lewa and Ms B   give evidence.  That is an advantage that this Court does not share.  I see no  reason,  in  any  event,  to  question  the  truthfulness  of  the  evidence  that  the constable gave.

[25]     To the extent that the constable’s evidence was in conflict with that of Ms B  , the reasons that the Judge gave for preferring the constable’s evidence were as follows:

[12]      So there is a direct conflict in the evidence for me to resolve.  In the circumstances I have assessed the evidence of the police officer in question. He is obviously an experienced officer in the way that he gave his evidence without a moment’s hesitation and he is obviously very experienced in this area.

[13]      In those circumstances, I do not believe that the officer, if he had been told positively by the defendant that she wanted to give blood, would have done anything other than call the nurse.  At the end of the day, I have to resolve a conflict in the evidence between a perfectly sober police officer who was on duty on the one hand, compared with a motorist who, on her own account, had consumed well over twice the permitted limit of alcohol

on the other.   Not surprisingly, I unhesitatingly prefer the evidence of the police officer. I consider that the Judge’s reasoning provides a rational basis for his decision that the evidence of the constable should be preferred to that of Ms B  , and I see no basis for departing from that decision.

[26]     Counsel for Ms B   does not directly challenge this aspect of the Judge’s decision on appeal.   I consider, in any event, that the passages cited above demonstrate  that  the  Judge  had  a  rational  basis  for  preferring  the  constable’s evidence to that given by Ms B  .  There is no justification for this Court reaching a different view.

[27]     When the information on the form that Ms B   signed is combined with the constable’s oral evidence, I have no doubt that there was sufficient evidence to establish that the constable followed the procedure prescribed by s 77(3).

Did Constable Lewa act unfairly towards Ms B  ?

[28]     This issue arises because Ms B  ’s unchallenged evidence was to the effect that she was not wearing a watch on the night in question, and there were no clocks in the room in the police station to which Constable Lewa had taken her after completing the evidential breath test.   The constable also accepted that Ms B   asked at one stage him how she would know when the ten minute period was at an end.

[29]     Counsel  for  Ms  B    submitted  that  this  evidence  established  that  the constable clearly knew that Ms B   had no readily available means of telling the time.  For that reason it was not sufficient for the constable to tell her that she needed request a blood sample within the next ten minutes.  Instead, it was necessary for the constable to go further, and to advise Ms B   when the ten minute period was about to expire.   Because he did not take that step, Ms B   had no means of knowing how long she had left to decide whether or not to request a blood sample. The constable therefore unfairly deprived Ms B   of the opportunity to make that request within the time allowed by the legislation.

[30]     I consider that this issue is effectively answered in favour of the respondent by the manner in which Ms B   ran her case before the Judge in the District Court.

[31] As I have already indicated at [20], Ms B advanced her defence in the District Court on the basis that she had expressly requested a blood sample during the ten minute period given to her by the constable. She said that the constable ignored that request and told her instead to remain seated where she was and to be quiet for the duration of that period. The Judge rejected that evidence for the reasons I have set out at [25].

[32]     The position may have been different if, for example, Ms B   had given evidence that she was still in the process of deciding whether or not to give a blood sample at the point when the officer told her that the ten minute period had expired. If her evidence had been to that effect, the fact that she had no means of knowing when the ten minute period was to expire would be of obvious relevance.  In those circumstances the constable’s failure to give Ms B   advice that the ten minute period was about to expire might well have amounted to unfairness.

[33]     Ms B  ’s evidence was not, however, to that effect.  She said that she heard the constable tell her that she could request a blood sample to be taken at any stage during the next ten minutes.   She also gave evidence about an earlier incident in which she had been involved.  During that incident she had asked to give blood after returning a positive breath test, and the level of alcohol in her blood had been found to be significantly lower than the level of alcohol in her breath.  It was for that reason that Ms B   said that she wanted to provide a sample of her blood immediately after the constable had advised her of her right to make that request.

[34]     The fact that the Judge preferred the evidence of the constable on material issues does not mean that Ms B  ’s  evidence is to be ignored  completely in determining the appeal.  Her evidence demonstrates, in my view, that she was well aware of the fact that she was entitled to request a blood sample to be taken.  She was also aware that she could make that request at any stage during the ten minute period that the constable gave her.  That entitlement was also clearly set out in the form that she signed.

[35]     The issue of whether or not Ms B   had the ability to know when the ten minute period was about to expire was essentially irrelevant to the way in which Ms

B   chose to defend the charge.  For this reason no element of unfairness arises in relation to that issue.

[36]     In reality, the case for Ms B   rested squarely upon her evidence that the constable effectively denied her express request to give blood.   Once the Judge rejected that evidence, he was left with the constable’s evidence that Ms B   made no request to give blood at any stage during the ten minute period that he allowed her.  At that point conviction was inevitable. The fact that this Court has no basis for interfering with the Judge’s assessment of the weight to be given to the evidence of the witnesses is similarly fatal to her appeal.

The appeal against sentence

[37]     Counsel for Ms B   submitted that an order disqualifying Ms B   from driving for a period of twelve months on the charge of dangerous driving was manifestly excessive.  He submitted, and counsel for the respondent agreed, that the circumstances of that offending, if viewed alone, would attract a period of disqualification of no more than six to nine months.

[38]   Counsel confirmed that both periods of disqualification will be served concurrently.  As a result, Ms B   will only be disqualified from driving for a total period of twelve months even if both remain intact.  As noted above at [3], counsel for Ms B   abandoned her appeal against the period of disqualification imposed on the charge of driving with excess breath alcohol during the hearing.   Even if the present appeal is successful, therefore, Ms B   will remain disqualified from driving for a period of twelve months.

[39]     The explanation for the Judge’s decision to impose a sentence of twelve months disqualification on the charge of dangerous driving may lie in a passage from his sentencing remarks in which he said that he did not propose to impose any additional penalty on the charge of dangerous driving.   That decision may have prompted the Judge to impose the same period of disqualification on both charges.

[40]     I accept, however, that the period of disqualification needed to reflect the culpability of the particular charge in respect of which it was being imposed.  The argument for Ms B   therefore has merit in terms of principle even it does not alter the practical outcome for her.

Result

[41]     The appeal against conviction on the charge of driving with excess breath alcohol is dismissed.

[42]     The appeal against sentence on the charge of dangerous driving is allowed. The period of disqualification on that charge is reduced from twelve months to seven months.

Lang J