B v Police HC Dunedin CRI-2006-412-000046

[2006] NZHC 1575

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2006-412-000046

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 December 2006

Counsel:         D More for Appellant

M J Grills for Respondent

Judgment:      14 December 2006

JUDGMENT OF PANCKHURST J

An attempt to drive

[1]      Mr B   was charged that he attempted to drive a motor vehicle while having an excess breath alcohol concentration.  He was found by police officers in the early hours asleep at the wheel of his car, with the engine running.  However, the vehicle was correctly parked in a designated street carpark and did not appear to have been moved.

[2]      Judge  O’Dwyer  decided  that  an  attempt  to  drive was  established  on  the evidence.  The present appeal represents a challenge to that conclusion.  Whether the facts  constitute  an  attempt  is  the  sole  issue,  there  being  no  appeal  against  the

sentence imposed, namely a fine but no disqualification.

B V NZ POLICE HC DUN CRI-2006-412-000046  14 December 2006

The facts in greater detail

[3]      The appellant is a musician.  On Wednesday, 12 July 2006 he was engaged to provide background music at a restaurant.  Mr B   was to accompany a singer on piano.

[4]      During the course of the evening he had a good deal to drink.   At about

9.00pm he telephoned his home and spoke to his daughter.  A tentative arrangement was made for his daughter to collect him, should that be necessary on account of concerns as to Mr B  ’s fitness to drive.   But she could not do this until about

2.00am when her partner was due home from shift work.  At that point she could leave her child in order to collect her father.  In order to action the arrangement it was necessary for Mr B   to telephone, or text, his daughter and confirm his need for a lift.  He did not do so.

[5]      The two musicians left the restaurant at about 1.00am or shortly thereafter. The singer, Mr Mutch, offered the appellant a lift home.  However, as he explained in  evidence,  Mr  B   declined  that  offer,  saying  that  he  had  arranged  for  his daughter to collect him.

[6]      At about 2.35am acting on information received, Constables Kirk and Tait, found Mr B   parked in Moray Place in central Dunedin, asleep at the wheel. Constable Kirk opened the driver’s side door.  At first Mr B   did not wake up. The constable noted that Mr B   was in the driver’s seat with his seat belt fastened. There was a strong smell of alcohol.  The constable woke Mr B   up and told him to turn the engine off.

[7]      A breath screening test was conducted.   Mr B   was over the limit.   He agreed to accompany Constable Kirk to the police station.   En route, he said in answer to a question that he had been intending to drive home but that he had not got that far.  An evidential breath test produced a reading of 526 micrograms of alcohol per litre of breath.

[8]      Subsequently Constable Kirk moved the appellant’s car to a less busy area. In doing so he  found no need to adjust the position of the driver’s  seat.    The constable considered that the seat was not in a reclined position.

[9]      Mr B   gave evidence in the District Court.   His account was consistent with that of his daughter and Mr Mutch concerning events before he reached his car in Moray Place.   With reference to that aspect he said that he had no memory of starting the engine, or of putting a seat belt on.  He said that on reaching the car he threw a briefcase containing sheet music in, put the driver’s seat back and went to sleep. The next thing he recalled was the interaction with the constable.

The decision of the Judge

[10]     Judge O’Dwyer at an early point in her oral decision identified the need for the informant to establish two elements.  First, that the appellant had an intention to drive while under the influence of alcohol.  Second, that the appellant took real and substantial steps towards the commission of an act of driving.  After a close review of the evidence the Judge found the facts as I have set them out above.  She noted that the only conflict was as to whether the driver’s seat was reclined or not.  She preferred the evidence of Constable Kirk because he was unaffected by alcohol on the night and, when he came to drive the vehicle, had every reason to notice the position of the driver’s seat.

[11]     With reference to her conclusion on the essential issue, whether Mr B   had actually attempted to drive his vehicle, the Judge said this:

[13]      I accept Mr B  ’s evidence and Ms B  ’s evidence that earlier in the evening a conversation occurred and that at that time Mr B   did not intend  to  drive  home.    I fully  accept  his  evidence  that  at  that  time  he intended to be collected by his daughter.  However, the evidence persuades me  that  his  intention  changed,  no  doubt  whilst  under  the  influence  of alcohol.  His evidence is that he intended to wait in the car for what would have been over one hour on a winter’s evening for his daughter to arrive. There is no evidence that he called his daughter on getting into the motor vehicle at 1.15am or thereabouts, in order to set a time for her to collect him. I find it wholly implausible that Mr B   would have sat in his motor vehicle on a winter evening for over an hour if he had not intended to attempt to drive home.  It is quite certain that his daughter could not collect him until after 2am and there was no intention for her to come and find him. I find the suggestion that he would have waited for over an hour implausible.

[14]      There is no evidence that he formed the intention to put the car engine on in order to heat the car and I find in all the circumstances that Mr B   entered the car, took the preparatory steps to drive and then no doubt under the influence of alcohol, fell asleep.

Do the facts disclose an attempt to drive?

The legal principles

[12]     The offence of attempting to drive a motor vehicle with an excess breath alcohol concentration is created by s56(1) of the Land Transport Act 1998.   The commentary in Brookers Law of Transportation at LT 56.04 includes this:

As the offence is of attempting to drive in the proscribed conditions created by this section of the LTA 1998, s72(1) Crimes Act 1961 does not apply. However,  decisions  concerning  criminal  offences  which  examine  the meaning of “attempts” are relevant.

Mr More submitted that this observation was wrong.  An “offence” is defined in s2 of the Crimes Act 1961 to include convictions in a summary context.   Hence, he said, the attempt section (s72) covered all offences and therefore applied equally to the present offence.

[13]     I agree.   The basis of the observation contained in Brookers is not readily apparent.  This offence section simply provides that a person commits an offence if they drive or “attempt to drive …”.  There is no definition of an attempt.  Without resort to s72, therefore, there are no principles to guide a decision as to whether particular conduct constitutes an attempt, or not.

[14]     Because of its importance I set out s72 of the Crimes Act in full:

Attempts

(1)   Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

(2)   The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

(3)   An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

The arguments

[15]     Mr More contended that even accepting the facts as found by the Judge there was no evidence to establish to the required standard either an intention to drive, or the commission of an act constituting an actual attempt.  Counsel referred to Police v Graham [2002] DCR 922, a case involving somewhat similar facts, in which the Judge ruled that the defendant’s actions did not go far  enough to constitute an attempt.

[16]     Mrs  Grills  supported  the  conclusion  reached  in  the  District  Court.    She argued that the Judge was entitled to act upon the concession made by the appellant to Constable Kirk that it was his intention to drive home.   The act of starting the engine, while positioned in the driver’s seat with a seat belt on, was said to be an act immediately and proximately connected with the intended offence, such as to be an attempt.

Two relevant authorities

[17]     Unlike Judge O’Dwyer I have enjoyed the benefit of submissions directed to two cases which I consider are of some assistance.  The first is R v Wilcox [1982] 1

NZLR  191  (CA).    Its  facts  are  dissimilar.    It  concerned  attempted  aggravated robbery.   Wilcox, and another, were stopped by the police en route to a suburban post office in possession of firearms and other items suitable for commission of a robbery while in disguise.  They made admissions as to their purpose, but the issue was whether the offenders’ proved actions constituted an attempt.  The appeal was allowed, albeit on the basis that the trial Judge’s attempt directions were in error.

[18]     Woodhouse  P,  in  delivering  the  judgment  of  the  Court,  said  this  with reference to the interpretation of s72 at 193:

It is elementary that before anyone can be found to be guilty of the completed offence of an attempt to commit some crime it must be shown

both that he had the necessary criminal intent and also that the intent had been accompanied by an act or omission done “for the purpose of accomplishing his object”.  Those last words are taken from s 72(1) of the Crimes Act 1961.  So much was made clear to the jury by reference to the subsection itself when the Judge directed them upon this aspect of the law. But  of  course  not  every  act  or  omission  done  for  the  purpose  of accomplishing the criminal object will be sufficient to lead to a conviction. The italicised words are so general by themselves that they would include acts of mere preparation.   So that subs (1) must be read subject to the statutory limitation put upon them by the succeeding subsections of s 72.  It must be shown that the criminal intent has been accompanied by an act or omission which is “immediately or proximately connected with the intended offence” (subs (3)); not simply that it is activity which is “only preparation for the commission of that offence, and too remote” (subs (2)).

[19]     Later in the decision reference was made to the decision of the Supreme Court of Canada in Henderson v The King (1948) 91 CCC 97, which likewise concerned attempted robbery after the offenders were apprehended a short distance from a bank. Woodhouse P quoted from the judgment of Taschereau J, seemingly with approval although that judgment was a dissent, at 195:

Here, the trio were seen in an automobile in the direction of the bank; but the plot was frustrated by the presence of the police.   There was nothing done by the trio, no overt act immediately connected with the offence of hold-up and robbing.  Although it may be said that no one could doubt the express purpose of the bandits, I do not believe that it can be held that the mere fact of going to the place  where the contemplated  crime  is  to  be committed, constitutes an attempt.  There must be a closer relation between the victim and the author of the crime; there must be an act done which displays not only a preparation for an attempt, but a commencement of execution, a step in the commission of the actual crime itself (9) CCC 97,

105). (emphasis added)

To my mind the concept that an attempt requires “commencement of execution, a step in the commission of the actual crime itself” is both apt and helpful.

[20]     The second case is Police v Graham.   The defendant was found at night, parked, asleep at the wheel and with a seat belt and lights on and the engine running. When asked, Mr Graham denied an intention to drive anywhere and said he did not know why his seat belt, lights and engine were on.   In giving evidence he gave a modified account, namely that he realised he was under the influence, but decided to remain in the car to protect it.  Why the engine was running and the lights were on he did not know.  Judge Hubble, in dismissing the charge, said at para [21]:

… he had been passed out for some period of time at the wheel, and it could no longer in justice be fairly assessed what his true intention was at the time he belted up and turned on the engine and the lights.

Therefore, the Judge was not satisfied that the charge was proved beyond reasonable doubt.

My analysis of this case

[21]     I begin with two preliminary observations.  First, the offence of attempting to drive is necessarily one which is momentary in nature.  Unlike, for example a bank robbery, an attempt to drive requires actions which occur within a period of seconds. A bank robbery typically necessitates entry into premises, menacing behaviour and a demand,  before  the  completed  offence  of  robbery will  be  consummated  by the obtaining of money.   A reasonably appreciable period of time may be involved before the crime is completed, and actions immediately before the money is obtained will invariably constitute an attempt.  By contrast, the actions necessary to constitute the actual driving of a motor vehicle are typically momentary.  At a minimum they comprise getting into the vehicle, starting the engine and its engagement in order to achieve forward motion.  The dividing line between an attempt, and commission of the actual offence of driving, is necessarily fine – essentially one merges into the other as the vehicle is mobilised over a few seconds.

[22]     Second, the inquiry whether particular acts constitute an attempt or not is necessarily fact specific.  For example, it is one thing for the police to apprehend an intoxicated person as they turn the engine on seconds after entering their vehicle on the one hand, as compared to an apprehension where the suspect has been asleep in the car for an appreciable time on the other.  In the former case the circumstances speak strongly as to the person’s intention, and it is a short step to the conclusion that turning on the engine is an action beyond mere preparation.  But where the person is found  asleep  any interpretation  of  their  earlier  actions  lacks  the  same  sense  of immediacy, so that inferential proof may be less obvious.

[23]     To my mind the factual issue in this case can be reduced to the following propositions.  Can it be inferred that in starting the engine Mr B   had commenced

to drive?   Or, is there reasonable doubt as to that issue, for example because he started the engine without any conscious intention to set the vehicle in motion?  By a small margin I think the proper answers to these questions are “No” and “Yes”, respectively.

[24]     Essentially for the same reasons as commended themselves to Judge Hubble in Police v Graham, I find the facts sufficiently equivocal as to deny proof to the requisite standard.  It probably was the case that shortly after 1am Mr B   had an intention  to  drive,  and  to  that  end  he  started  the  engine  (being  an  action “immediately or proximately connected” with setting the vehicle in motion).   But because he remained in a parked position over an hour later I do not think that this is the only rational conclusion available.   The circumstances also permit of the reasonable construction that he started the engine without any conscious design to set the vehicle in motion.

[25]     For these reasons I am satisfied that the appeal must be allowed.

Result

[26]     The appeal against conviction is allowed with the result that the conviction is quashed.

[27]     In this event the appellant sought costs.  However I do not consider an award is appropriate.  Mr B  ’s conduct invited the prosecution.  Whilst he has won in the end, the result reflects a fine judgment call.  The criteria in the Costs in Criminal

Cases Act 1967 weigh against an award in this case, rather than the reverse.

Solicitors:

David More Barrister, Dunedin for Appellant

Wilkinson Adams Lawyers, Dunedin for Respondent