B v Police HC Napier CRI 2007 441 37

[2008] NZHC 362

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2007 441 000037

BETWEEN  B

Appellant

ANDPOLICE Respondent

Hearing:         4 March 2008

Counsel:         P Ross for Appellant

Nicola Graham for Crown

Judgment:      20 March 2008 at 2:00pm

RESERVED JUDGMENT OF WILLIAMS J.

This judgment was delivered by

Hon. Justice Williams on

20 March 2008 at 2:00pm

pursuant to R 540(4) of the High Court Rules

……………………………..

Registrar/Deputy Registrar

Date: ……………………..

A.The appeal against conviction for driving with excess breath-alcohol is dismissed.

B.The appellant’s sentence of 100 hours Community Work, including her disqualification   for  9   months,   is   to   commence   immediately   after midnight on the day after delivery of this judgment.

Solicitors:

Crown Solicitor, Napier

Copy for:

Philip Ross, Napier

Judge Adeane, High Court Napier.

B V POLICE HC NAP CRI 2007 441 000037  20 March 2008

Issue

[1]      On 2 November 2007, the appellant, Ms B  , was convicted following a defended hearing in the Napier District Court on one charge of driving a motor vehicle   on   the   road   whilst   the   proportion   of   alcohol   in   her   breath   was

615 micrograms of alcohol per litre of breath against a limit of 400 micrograms of alcohol per litre.

[2]      On the same date, she was ordered to serve 100 hours community work and was disqualified from holding or obtaining a driver’s licence for nine months.

[3]      She has now appealed to this Court against conviction.  Her disqualification has been suspended pending determination of her appeal.

Ground of appeal

[4]      The principal ground on which the appeal is based is that factual findings made in the District Court were so patently improbable it was not open to Judge Adeane to conclude the elements of the offence had been proved beyond reasonable doubt.

[5]      Mr Ross, counsel for Ms B  , was at pains to endeavour to distinguish between that basis for appeal – something he submitted was open to reversal in this Court – and a finding on credibility by a fact-finder who had the opportunity of seeing and hearing the witnesses.

[6]      Ms Graham, on the other hand, for the Crown, submitted Judge Adeane made a credibility finding having evaluated the conflicting evidence before him, and accordingly this was an appeal essentially governed by the Supreme Court’s decision in Owen v R [2007] NZSC 102 paras [13]-[17].

Facts

[7]      About 10:45 pm on 26 July 2007, Constable Andrew stopped Ms B   at an alcohol checkpoint in Napier. She failed a passive breath test administered by a Dragar Alcotest 6510, calibrated for six months on 27 June 2007, that being a device approved by the Ministry of Transport by “Gazette” notice.

[8]      He required Ms B   to park nearby for a breath screening test. She did that. He tested her after assembling the Dragar device in accordance with the Transport (Breath Tests) Notice (No. 2) 1989. She failed.  He showed her the result and then required her to accompany him to a Police facility – commonly known as a “booze bus” – some 30 metres away for the purpose of an evidential breath test, blood test, or both.

[9]      On the way to the facility, Constable Andrew said he advised Ms B   of her rights to legal advice under the New Zealand Bill of Rights Act 1990 and to refrain from making a statement and warned her as to the consequences if she chose not to avail herself of that right.  He finished doing that at the door of the “booze bus” and said Ms B   acknowledged understanding her rights.

[10]     Inside the facility, he read aloud to her the Police Bill of Rights form which includes the following:

YOU ARE ADVISED THAT YOU HAVE THE RIGHT TO CONSULT AND INSTRUCT A LAWYER WITHOUT DELAY AND TO CARRY OUT THAT RIGHT IN PRIVACY.  YOU ALSO HAVE THE RIGHT TO REFRAIN FROM MAKING A STATEMENT.

These rights will continue throughout the breath / blood alcohol procedures.  A telephone will be made available for that purpose as soon as practicable and before you undergo a breath or blood test. You will have a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you.   If you do not have your own lawyer, a list will be provided of on call lawyers for you to chose  from.    These  lawyers  are  available  to  give  advice  free  of charge.

[11]     Ms B   declined to sign the form.  She said she did not wish to speak to a lawyer.

[12]     She was then required to undergo an evidential breath test without delay using a Seres Ethylometer Model 679ENZ which was calibrated to 16 May 2008. The Constable assembled the device and administered the test in accordance with regulatory requirements.  It gave a reading of 615 micrograms of alcohol per litre of breath.

[13]     Ms B   was informed of the result and a second Bill of Rights advice was read to her a few minutes later. She acknowledged she understood the rights but again refused to sign the form.

[14]     At 2311 hours she was advised she had ten minutes to decide whether to opt for a blood test.  She declined so to do at 2322 hours but declined to sign a form to that effect.

[15]     Because it was central to Mr Ross’s submissions, it is pertinent to note the timing of those steps as given in evidence based on the Police “breath and blood alcohol procedure sheet” and other documents.  They show:

a)       The stopping at 2246 hours with a note of the last consumption of alcohol at 2215 hours.

b)After notification of the passive test and the requirement to undergo a breath screening test, the form showed the breath screening test as occurring at 2246 hours, the same time as the request to accompany.

c)       The first Bill of Rights advice was timed at 2252 hours both in the procedure sheet and in the cited Bill of Rights form with the requirement to undergo the evidential breath test at the same time on the machine and three minutes later on the officer’s watch.

d)The result of the evidential breath test was noted.   The evidential breath test printout gave the test time as 2257 hours and the form noted Ms B   being advised of the result timed at 2302 hours.

e)       The advice of the positive evidential breath test was noted at 2308 hours in both the procedure sheet and the Police advice form for such tests.

f)        The second Bill of Rights advice was timed at 2310 hours both in the procedure form and on the Bill of Rights form with the ten minute period commencing one minute later and concluding at 2322 hours.

[16]     Cross-examination of the Constable established the number of people who tested that night and the omission of details of Ms B  ’s vehicle from the forms she completed.  Then, in an effort to show the Constable had either dealt with the

required steps out of sequence or omitted at least one, Mr Ross asked:

Q.	Constable,  you’ve  identified  the  time  my  -  the  defendant  was
stopped as 22.46.  You’ve identified the breath screening time test
also was taken at 22.46.  Now according to the evidence that you’ve
given in Court today you stopped the defendant at 10.46 – i.e. 22.46.
You administered a passive breath test.   You advised her that she
failed.   You asked her to park nearby, which she did.   You then
administered a breath screening test and all of these things took
place at 22.46.  Is it possible, Constable, you were mistaken about
A.	the sequence of events? No.
[17]	The	Constable  specifically  denied  the  proposition  he  may  only  have

administered one test or omitted the Bill of Rights advice.  Various other possible deficiencies put to the Constable were also denied.   However, during cross- examination the Constable volunteered additional evidentiary detail. Examples were recalling Ms B   declining to sign the various forms because she said it was “illegal to sign documents when you are drunk”, and explaining the omissions from the documents as resulting from the appellant’s argumentative and belligerent response to the Police.

[18]     Ms B  ’s evidence confirmed failing the passive breath test but claimed there was no Bill of Rights advice or caution given on the way to the “booze bus” after she had parked, and nothing was said to her before she saw the reading on the evidential breath test machine.   She claimed the Constable then told her that she “would have a chance to wait ten minutes and have a blood test”, after which he

busied himself with paperwork.  Though she later accepted that he might have told her it was for her decision after ten minutes, she immediately told him she would not have a blood test because of a dislike of injections.  She acknowledged saying “I’ve had a drink, isn’t it illegal to sign when you’ve been drinking?”, as a result of which she declined to sign on the one occasion she was requested.  She specifically denied in cross-examination being advised of her rights and cautioned about statements on two occasions and claimed she was unaware of her rights to a lawyer until after she had left the “booze bus”.

District Court judgment

[19]     Judge Adeane began by summarising the contrasting evidence, including the appellant’s assertion of being required to undergo the evidential breath test without a prior breath screening test, coupled with her assertion she was only required to blow into the breath test machine once and was not advised of her rights under the New Zealand Bill of Rights Act.  The Judge noted the Constable’s additional recollection of detail under cross-examination before observing:

[8]      So  here,  unprompted,  is  an  example  of  a  not  insignificant ability on the part of the Constable, to call up matters of detail of which he has not got written notes and repeat them in a way, entirely conforming to  the recollection  of  the  defendant.   Put  shortly,  his recollection cannot all be bad when that is the case and of course that is not the only example of such a  thing because he was challenged to say why Mrs B   declined a blood test and he recalled that she had said she did not want a blood test, she did not like injections and Mrs B   told me exactly the same thing.   Another example of the Constable unprompted being able to recall from his memory, matters which did in fact take place on the night, but of which no record was made.

[20] Then, after reminding himself of the burden and standard of proof, the Judge held, in relation to the Bill of Rights evidence, that “there can be no dispute about that given Mrs B ’s evidence that the Constable asked her to sign a document for him but she declined to do so for exactly the same reasons that he says she declined”: at para [10]. That, the Judge opined, would be “almost fanciful doubt conjured out of thin air to think that this was not accompanied by the contents of that form being advised to the defendant”: at paragraph [11].

[21]     After  noting  the  appellant’s  recollection  may  have  been  affected  by  her ingestion of alcohol, the Judge arrived at the view that her condition could not assist the appellant:

[12]     … in the face of a clear prosecution case in which a constable has given evidence that every step required of him under the Land Transfer  Act  and  the  Notices  promulgated  under  it,  have  been correctly carried out.   Moreover, that the advices required to be communicated by the New Zealand Bill of Rights Act have been communicated, …

with the Judge going on to conclude:

[13]     nevertheless, I have seen and heard the Constable.   I bear in mind the possibility first of all that Mrs B  , to some extent, was affected by liquor and to some extent was affected by stress.   Her recollection that the evidential breath testing process was a single step one is plainly mistaken and of course it opens the way to conclude that so to is her evidence that the breath screening test was a one step procedure.  It likewise explains reasons why, despite the Constable’s best efforts, she may not have fully taken notice of what he was telling her about her rights under the New Zealand Bill of Rights Act. I am quite satisfied that the Constable gave the advice which he has referred to in his evidence and did what he could to facilitate Mrs B   in understanding that.   Whether that misunderstanding is because of her emotional state, or because of some reconstruction of events it is not up to me to decide.  I am satisfied on the evidence I have heard from the Constable.

[14]     These kinds of fractured recollection on the part of suspects are commonplace in cases of the kind, but having seen and heard the Constable give his evidence and having seen and heard him recollect various other matters, with considerable accuracy and very much in keeping with the evidence of the defence, I am satisfied where the evidence   of  himself   and   Mrs   B     parts   company,   that   the Constable’s evidence should and must be preferred.  And it is.

[15]     Accordingly, the procedures having been correctly carried out and the advice of rights duly given, the charge is proved.

Submissions

[22]     Mr Ross carefully analysed the evidence to found a repeat of the submission which Judge Adeane declined to accept, namely that it would be impossible for all the steps noted in the procedure sheet as having occurred at 2246 hours to have been completed within that one minute.  He also submitted that the appellant’s evidence as to the other deficiencies raised in the District Court was such that it was patently improbable that the Constable’s evidence was accurate.

[23]     Mr Ross submitted that the following passage from a case where there was a dispute as to whether Bill of Rights advice had been given in a “refusing to accompany” case remained good law despite the decision in Owen.   The case is Hoopersmith v Police HCWANG AP1/00 28 August 2000, where the following appears:

[30]     That is not however the end of the matter in the circumstances of this case because the appellant’s underlying argument is that the discrepancy between the officer’s evidence and his contemporaneous notes was such that the Judge could not properly be satisfied to the criminal standard that the charge was proved.   This issue arises regularly in jury trials when the standard direction is that if the jury do not believe the accused as a witness, his or her evidence is disregarded and attention must be directed to whether the Crown case has been proved beyond reasonable doubt.  Looked at in this way, the Judge had the evidence of the officer tested against his more or less contemporaneous notes, which the officer agreed were an incorrect or inaccurate record of what he said in evidence had in fact been.  Added to that were the circumstances that the officer had had a routine exercise turn into a struggle on the ground with the driver while he resisted arrest, had received no help from the recruit with him, an event that stayed in his mind sufficiently for him to speak to another officer about it, was subjected to a very angry and threatening behaviour by the accused up to the stage when he got him to the Police Station, and difficult behaviour from him thereafter.

[31]     The officer may well have been correct in his oral evidence that he gave the necessary advice when he said he did, but with respect to the view of the Judge to the contrary, I am not persuaded that it could be said that that was established beyond reasonable doubt when the circumstances at the roadside (which the officer himself described as a very confused situation) and the contents of the notes are considered.  That finding must in my view be set aside.

[24]     As a subsidiary point, Mr Ross again raised the admissibility of a breath and blood alcohol procedure sheet relating to another case which he had endeavoured to adduce as an exhibit in the District Court to demonstrate that the steps in the appellant’s case all said to have taken place within a minute, took, in that case, several minutes.   The document had been rejected in the District Court and, notwithstanding the provisions of s 144(1)(b) of the Land Transport Act 1998, the Court’s view is that it is of no evidentiary moment in this case and should similarly be rejected.

[25]     Had the appellant wished to adduce evidence in the District Court as to the time customarily taken by Police officers for the various steps under challenge it would have been a simple matter to subpoena an experienced Police  officer  or

former Police officer to give evidence on that topic.  Without knowing something of the circumstances of the stoppage which gave rise to the proffered procedure sheet, the sheet can be of no assistance in the determination of this appeal.

[26]     Ms Graham, as mentioned, relied on Owen and submitted that the argument advanced for the appellant that the necessary explanation for the numbered steps said to have been taken within a 60 second time frame being impossible was that at least one or  more steps  had  been  omitted  was  simply untenable and  contrary to  the evidence in the District Court.

Discussion and decision

[27]     Despite Mr Ross’s careful submissions to the contrary, this must be regarded as an appeal against the factual finding in a case where there were conflicting version of events in evidence.   Owen (and its approval of R v Munro [2007] NZCA 510) accordingly applies. In para [13] of Owen, the Supreme Court said:

[13]     …

(a)The appellate court is performing a review function, not one of substituting its own view of the evidence.

(b)Appellate  review  of  the  evidence  must  give  appropriate weight to such advantages as the jury may have had over the  appellate  court.      Assessment   of  the   honesty  and reliability of the witnesses is a classic example.

(c)       The weight to be given to individual pieces of evidence is essentially a jury function.

…

(e)Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.

[28]     Constable Andrew gave evidence that every single one of the steps required to  be  performed  by him  as  a  prelude  to  issuing  the  information  on  which  the appellant was convicted were taken and in the correct order.   He maintained that view despite detailed cross-examination on the topic.  For the reasons set out in his careful review of the facts, the Judge accepted Constable Andrew’s evidence despite

the appellant’s evidence to the contrary. The Judge was entitled to take that view and there was an evidential foundation for the findings he made.

[29]     While the timing on the procedure sheet of the stopping, administration of the passive test, administration of the breath screening test and the request to accompany all within a minute might be seen as, perhaps, rapid, the Constable insisted he was not mistaken in his timing and in the sequence of his performing all of the required steps.  And the Judge accepted his version of events.  However, even if the timing of those events may have been incorrectly recorded – and the evidence to the contrary was,  as  just  noted,  accepted  in  the  District  Court  –  it  is  the  sequence  of administration of all the various required steps which is more important than their timing.  The only statutory or regulatory time requirement in the sequence is the ten minutes for a person who has returned a positive evidential breath test to decide on the options available.  And the Judge also held that step of the procedure had been satisfactorily proved.

[30]     Overall, this was essentially a factual conflict.  It was resolved by the Judge in favour of the prosecution.  There was an evidential basis for the Judge’s finding. In terms of Owen, the Judge, having heard and seen the witnesses, had a substantial advantage in a credibility contest over this Court and the weight he gave to the contrasting evidence was appropriate.

Result

[31]     In the result, no basis has been made out to disturb Judge Adeane’s finding. [32]     The  appeal  is  dismissed  and  the  appellant’s  sentence,  including  her

disqualification,  is  to  commence  immediately  after  midnight  on  the  day  after delivery of this judgment.

………………………………..

WILLIAMS J