Blair v Police
[2012] NZHC 2649
•11 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2012-404-249 [2012] NZHC 2649
BETWEEN CLINTON ATHOL BLAIR Appellant
ANDTHE POLICE Respondent
Hearing: 17 September 2012
Appearances: A Haskett for appellant
A Longdill for respondent
Judgment: 11 October 2012
JUDGMENT OF ALLAN J
This judgment was delivered by me on 11 October 2012 at ..4:00pm
pursuant to Rule 11.5 of the High Court Rules.
...................................
Registrar/Deputy Registrar
Solicitors:
A Haskett, Legal Defence Service Ltd, Auckland [email protected]
Crown Solicitor Auckland [email protected]
BLAIR V THE POLICE HC AK CRI 2012-404-249 [11 October 2012]
[1] The appellant was convicted in the Auckland District Court on 25 July 2012 on one charge of driving with excess breath alcohol, an offence against s 56(1) of the Land Transport Act 1998 (LTA). He was ordered to pay a fine of $650, together with Court costs of $132.89, and was disqualified from holding or obtaining a driver’s licence for a period of six months. He now appeals against conviction. There is no appeal against sentence.
[2] The grounds of appeal are:
(a) The result of the evidential breath test upon which the conviction was founded was inadmissible because the advice required to be given to the appellant under s 77(3)(a) of the LTA was not given without delay;
(b)The procedure adopted was unfair for the purposes of s 30 of the Evidence Act 2006, in that the result of the evidential breath test was not advised to the appellant until after he had taken legal advice.
Factual background
[3] This case is unlike many s 77(3)(a) appeals in that here there is agreement as to the precise sequence of events. Mr Haskett accepts that the following summary provided by counsel for the respondent is correct:
(a) Appellant stopped driving motor vehicle at 10.56 pm.
(b) Officer speaks to appellant, who admits alcohol consumption;
(c) Officer conducts breath screening test at 10.58 pm. Result is a fail general;
(d) Officer requires appellant to accompany him to Auckland Central Police Station for a breath test, blood test or both at 10.59 pm. Provides Bill of Rights advice;
(e) Travel to Auckland Central Police Station. Upon arrival, provided Bill of Rights advice again. Appellant telephones lawyer (Tracy Spencer) at 11.19 pm, and speaks to her for approximately three minutes, until 11.22 pm;
(f) Officer requires appellant to undergo evidential breath test without delay at 11.24 pm;
(g) Test takes two minutes to complete (refer timing on evidential breath test result card – part of exhibit 1);
(h) Test is completed at 11.26 pm. Officer advises appellant of positive result at 11.26 pm;
(i) Appellant cuts officer off and asks to speak to lawyer again. Officer facilitates this, and appellant speaks to Tracy Spencer for approximately five minutes;
(j) Officer reads Advice of Positive Evidential Breath Test part of form to appellant. Appellant signs the form to acknowledge having read it at 11.34 pm;
(k) Officer provides full Bill of Rights advice again to appellant at 11.35 pm. Appellant does not wish to speak to lawyer;
(l) Officer commences 10 minutes period at 11.36 pm; (m) Officer terminates 10 minute period at 11.48 pm;
The law
[4] Fundamental to the outcome of this appeal is the proper application of s 77(3)
of the LTA which relevantly provides:
(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; …
[5] Section 64(2) of the LTA provides that it is no defence to proceedings for an offence that a provision forming part of s 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with that provision.
The District Court judgment
[6] Judge Kiernan found that Mr Blair was advised without delay that the evidential breath test had produced a failed result and that it was “not good news” but she held that there was a delay in advising Mr Blair of the actual reading of his positive breath test, the delay being explained by Mr Blair’s telephone call to a lawyer.
[7] There were two such calls. The first preceded the evidential breath test, but followed the giving of advice to Mr Blair of his entitlement to legal advice. The second call, which interrupted the police officer’s advice to the appellant of the result of the test, was made at a time when Mr Blair knew he had failed the test, but not the precise arithmetical reading.
[8] Judge Kiernan considered that to be sufficient compliance with s 77(3), holding that the officer had advised the appellant without delay after it was ascertained that the test result was positive. However, in case she was wrong, she went on to consider whether the provisions of s 64(2) were engaged. She noted that the overall delay in advising Mr Blair of the actual reading from the print out was
10 minutes or less, that about half of that period was taken up with the second phone call between Mr Blair and his lawyer, and that most of the rest of the time was occupied in the completion of the relevant paperwork.
[9] The Judge concluded that any delay in advising the precise reading of the breath test did not result in any actual prejudice to Mr Blair, who had the opportunity to speak again to his lawyer once he knew the arithmetical result of the breath test. The Judge considered that s 64(2) could properly be applied, and that there was reasonable compliance with the statutory scheme.
Advice of positive test
[10] Mr Haskett submits that the advice which must be conveyed by a police officer to a person detained for the purposes of an evidential breath test includes, not only the fact that the test has produced a “positive” result in the sense that the
reading is over the limit, but also the precise reading and the extent to which it exceeds the legal limit. He submits that a motorist must be told not only that the test has been failed, but also be provided with figures that indicate the extent to which the reading exceeds the legal limit. Only with that information can a motorist make an informed decision about whether to elect a blood test. That approach also properly reinforces the importance, Mr Haskett submits, of the s 70A right to a blood
test, recognised as fundamental by the Supreme Court in Aylwin v Police.1
[11] Mr Haskett is critical of Judge Kiernan’s judgment, which he takes to rule that it is sufficient that a motorist be told whether he or she has passed or failed the test, the simple provision of a numerical figure after the testing sequence has been completed being unlikely to assist motorists, most of whom would be unaware of the precise legal limit.
[12] In my opinion there is substance in Mr Haskett’s argument. Secdtion 77(3) requires that a motorist be told that the test is “positive”, or at least that the motorist has failed the test.2 But in order to make an informed decision as to whether or not to consult a lawyer or elect a blood test, a motorist must be aware not only of the result of the evidential breath test, but also of the arithmetical reading produced by the evidential breath test, measured against the legal limit. I accept therefore that the obligation of a police officer to advise a motorist that a test was positive “without delay” incorporates an obligation to advise the motorist of the evidential breath test
reading.
[13] Mr Blair was told immediately that he had failed the evidential breath test. The police officer was unable to go on to provide details of the reading without delay because it is common ground that Mr Blair interrupted by demanding that he speak by telephone once more to the lawyer whom he had consulted minutes earlier. The second telephone call lasted about five minutes. At its conclusion, the officer read to Mr Blair the “Advice of Positive Evidential Breath Test”, being part of the EBA check list form routinely used by police officers. At the conclusion of that reading
the appellant signed the form to acknowledge having had it read to him. At that stage he knew what the reading was.
[14] In summary therefore, the evidential breath test was completed at 11.26 pm. The police officer advised the appellant of a positive (or failed) result at that time. The appellant then cut the officer off and asked to speak to his lawyer again. That legal discussion took about five minutes. At about 11.31 pm the officer resumed reading the advice form to the appellant. That advice included detail of the arithmetical reading produced by the evidential breath test. The reading concluded at 11.34 pm, at which time the appellant signed the form. The officer provided further Bill of Rights advice to the appellant at 11.35 pm, but the appellant did not wish to speak a third time to his lawyer.
[15] Accordingly, of the 10 minute period which elapsed between the completion of the evidential breath test and the conclusion of the s 77 advice, about five minutes was occupied by Mr Blair’s second discussion with his lawyer, and three or four minutes by the completion of the form and the giving of the s 77 advice.
[16] Against that background, Mr Haskett submits that the advice to which Mr Blair was entitled under s 77 was not given “without delay”, and that the result of the evidential breath test was therefore inadmissible.
“Without delay”
[17] In Kydd v Police, Chisholm J held that the expression “without delay” in s 77(3) was synonymous with “forthwith” or “immediately”.3 That seems to me to be a necessary implication of the language and purpose of the subsection.
[18] As was said by Fogarty J in Kavanagh v Police:4
[12] The requirement on the part of the enforcement officer to inform the driver of a positive result of the blood test without delay is long standing. It can be traced back to s 7 Transport Amendment Act (No.3) 1978. The purpose of that enactment was to reduce the
delays associated with blood tests, by substituting a second evidential breath test. Obviously, it is a mandatory requirement by Parliament inserted in a context where that person is being detained by the police while the police go through processes endeavouring to obtain evidence upon which to prosecute that person. But for statutory authority, a person would not be obliged to co-operate and could go on his way. The obligation to provide the information without delay is thus sensitive to the principle that the liberties of that person are being constrained during this process, and that should be no longer than necessary. Implicitly a negative test result should also be communicated without delay.
[19] In Kavanagh, Fogarty J held that without a proper explanation or reason for a delay of some nine minutes, the delay was fatal to the prosecution. In McCarthy v Police, Chisholm J accepted that a delay of 10 minutes did not meet the requirements of s 77(3).5 Likewise in Kydd, Chisholm J found that a delay of eight to 10 minutes did not satisfy the subsection, and in Ariki v Police, Keane J regarded a delay of nine to 11 minutes as failing to meet the requirements of s 77(3).6
[20] In the present case there was a delay of about 10 minutes before Mr Blair became aware, not only of the fact that he had failed the test, but also of the extent of that failure. I consider that the respondent failed to comply with the requirements of s 77(3), in that the necessary advice was not conveyed to Mr Blair without delay.
Reasonable compliance
[21] The provisions of s 64(2) extend well beyond the issues in this case. They apply to a number of enforcement sections under the LTA. In Police v Tolich, the Court of Appeal noted a line of authority which authorised a liberal approach to the reasonable compliance section before concluding that there has been reasonable compliance.7 Having said that, the Court will ordinarily expect to conduct an inquiry as to the reason for the failure to comply with the strict requirements of the principal section before concluding that there has been reasonable compliance.8 An inquiry as
to the use of reasonable care by the prosecuting authority may also be appropriate.9
5 McCarthy v Police HC Wellington AP312/02, 19 February 2003
6 Ariki v Police HC Auckland CRI-2007-404-174, 6 November 2007.
7 Police v Tolich (2003) 20 CRNZ 150 (CA) at [24].8 Aualiitia v Ministry of Transport [1983] 1 NZLR 727 at 730;
[22] In R v Fenton, a pre-trial appeal, the accused had immediately been advised of the fact that the test was positive, and of the arithmetical reading.10 But the consequences of not requesting a blood sample within 10 minutes were not explained for some time. The District Court Judge held that, the greater the extent of non-compliance, the less appropriate it would be to apply s 64(2). He referred to the fact that the positive result had been conveyed to the accused without delay and
noted that there was no apparent prejudice, although observing that an absence of prejudice could not of itself excuse non-compliance. In that case, the detaining constable was engaged in his first excess breath alcohol procedure. A delay of about nine minutes overall arose from the time he took to complete his notebook entries and the EBA check list. At the time he was acting under guidance from two other constables. The decision of the District Court Judge to invoke s 64(2) and to hold that there had been reasonable compliance was considered by the Court of Appeal to
be “unassailable”.11
[23] In McCarthy, a breath test was conducted at 11 pm. The result was conveyed at 11.04 pm, and the balance of the appellant’s rights to a blood test were explained to him at 11.10 pm. Chisholm J considered it had been open to the District Court Judge to conclude that s 64(2) applied. The officer had shown the appellant the result of the evidential breath test and given him a copy of the result about four minutes into the delay.
[24] Conversely, in Kavanagh, Fogarty J allowed an appeal against conviction where there was a delay of nine minutes, essentially unexplained. The Judge observed that an appropriate explanation might, for example, take the form of the police officer’s need to take an urgent telephone call, or to attend an accident.
[25] In Kydd Chisholm J held that s 64(2) applied where a delay of between eight and 10 minutes was explicable on the basis that most of the period was taken up with
the completion of the EBA check list.
10 R v Fenton [2008] NZCA 163.
11 At [28].
[26] Conversely, in Ariki, Keane J regarded as determinative the fact that the respondent had adduced no evidence at all as to why there was a nine to 11 minute delay. To the same effect is the decision of Duffy J in Wheeler v Police.12
[27] Here, there is an explanation for the delay. It lies in the police officer’s decision to accede to Mr Blair’s apparently peremptory demand that he be able to speak to a lawyer for a second time. That second call took about five minutes and comprised more than half of the period of delay.
[28] Mr Haskett correctly submits that the officer ought not to have permitted the second phone call until the s 77(3) advice to the appellant had been completed. That would carry the added practical advantage that the appellant would have been able, during the second phone call, to advise the solicitor in detail of the outcome of the test. As it was, he had only the fact of the failed test to tell the lawyer.
[29] Mr Haskett submits, again correctly, that Mr Blair’s entitlement to speak to a lawyer without delay under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 was at that stage of the relevant procedure trumped by the requirements of the LTA which directed the police officer to complete notification to the appellant of the complete result of the evidential breath test and the resulting legal consequences.
[30] He also submits that it was grossly careless of the constable to permit Mr Blair to extend the delivery of the s 77(3) advice in the manner he did. Mr Haskett is further highly critical of the constable’s concession in evidence that he did not know the law as to the required timing of information to be given to a motorist under s 77(3).
[31] Prejudice to a motorist will be a relevant consideration when considering whether there is reasonable compliance for the purposes of s 64(2), but it will not be determinative. Mr Haskett submits that, putting aside the question of prejudice, it is not open to the Court to find here that there was reasonable compliance, because the delay was not “necessary” and the constable was ignorant of his duty when
exercising coercive powers.
12 Wheeler v Police HC Auckland CRI-2009-404-150, 31 August 2009 at [11].
[32] In my view neither of these considerations, taken separately or together, constitutes a reason to hold that there has been no reasonable compliance. To require the delay to result from some “necessary” alternative activity of the police officer is to put the test too high. The requirements of s 77(3) in large measure are based upon the desirability of ensuring that a person detained under the Act be restrained for as short a period as possible. Here, the period of detention was lengthened because the appellant demanded to speak to his lawyer when advice of the result of the test and its consequences was being conveyed. In other words, the delay is to be laid principally at the door of the appellant, rather than that of the respondent. The delay occurred for the appellant’s benefit. No doubt the police officer acceded to the request for further legal advice in order to assist the appellant through what would undoubtedly have been a stressful situation.
[33] This case is quite different from those in which there was no satisfactory explanation at all for the delay. It is closer to those in which s 64(2) has been applied where a lengthy delay has arisen by reason of the unduly long period taken to complete the necessary paperwork. Neither do I consider it appropriate to exclude s 64(2) simply by way of disciplinary sanction, as Mr Haskett asks me to do. The police officer ought not to have permitted the appellant to interrupt the process by speaking to his lawyer for a second time. No doubt also, the police officer ought to have had a better grasp of the legislation during cross-examination in the District Court. But these failings are not, in my view, serious enough to warrant a finding against the respondent.
[34] Mr Haskett submits in addition that, Mr Blair did in fact suffer actual prejudice, by reason of the procedure adopted by the constable. His first ground is that the period of detention was unnecessarily extended. However, having regard to the fact it was initiated by the appellant himself, I do not regard that as a factor of any significant weight.
[35] Second, Mr Haskett submits that the advice conveyed during the first two telephone calls cannot have been effective because the lawyer was never made aware of the actual reading from the evidential breath test. While that is no doubt correct, it is not safe to conclude that the advice must have been unsatisfactory or limited.
Neither, I consider, is the Court justified in holding that Mr Blair has necessarily been prejudiced because he did not speak to the lawyer after he was in possession of all of the relevant information. He was obviously comfortable about telephoning the lawyer. He had done so on two previous occasions and had been told by the lawyer that he was welcome to do so again. It was his choice not to make a third call. His decision not to do so does not, in my view, amount to relevant prejudice.
[36] I consider that Judge Kiernan was right to hold, in the alternative, that the police officer had reasonably complied with the requirements of s 77 and for that reason to declare the print out of the evidential breath test admissible at the hearing of the prosecution in the District Court.
Unfairness
[37] In a quite separate argument, not directly related to the reasonable compliance question, Mr Haskett submits that, in all the circumstances, the evidential breath test result was obtained unfairly and ought to be excluded pursuant to s 30 of the Evidence Act 2006. He argues that the appellant clearly wanted legal advice about a blood test. That is why he asked for and spoke to a lawyer immediately after been told he had failed the evidential breath test.
[38] Having been given that opportunity (before the precise arithmetical result of the test was known), he declined a blood test. Mr Haskett submits that the proper inference is that he had received uninformed legal advice at that point, because the lawyer could not possibly have known the exact result of the test. He further argues that, had the second phone call to a lawyer not been permitted before the police officer fully complied with s 77(3), the second phone call to the lawyer would have taken place at a time when the appellant had all of the relevant details, including the print out relating to the evidential breath test. In those circumstances, he could be expected to have received fully informed legal advice.
[39] In support of his submission Mr Haskett refers to the judgment of Woodhouse J in Muggeridge v Police.13 There the appellant, having failed an evidential breath test, elected not to contact a lawyer but asked the police officer what she should do. She was told that, although it was not for the constable to influence her decision, blood test results were generally higher than evidential breath test results. The appellant’s evidence in that case was that advice played a part in her
eventual decision not to elect a blood test. Woodhouse J allowed the appeal against conviction. He said:14
[21] The Judge also said that it was reasonable for the police officer to provide the information that was provided so that the appellant could be fully informed. This touches, to an extent, on the question of the police officer’s motive or intention which I have already said is not the central inquiry in my judgment. But the Judge’s reference to fully informing the appellant points to another difficulty. Once a police officer goes beyond giving the statutory advice, limited to the provisions of the Act itself, following the advice form, the difficulty which this case presents will begin to arise. The fact is that in this case the appellant was only partially informed, if not misinformed. The appellant’s own evidence, accepted by the Judge, was that she could see no point in electing to provide the blood sample. But as the Court of Appeal made clear in R v Aylwin there is a lot of point for a motorist in electing to provide a blood sample. In this case the appellant was given some information providing a reason not to provide a blood sample. But she was not told, for example, that on the other hand if she gave a blood sample she would be able to do something which she could not do with the breath test; that is, get an independent analysis. It may be that if the discussion had got into this sort of detail the appellant’s decision would have been the same as what it was in fact. But that is a matter of speculation.
[22] In my judgment s 64(2) is not relevant. In this case it is accepted, and in any event clear from the evidence, that the officer did comply with the provisions of s 77. The issue here does not concern a matter of compliance with the statutory provision but steps taken outside the statute altogether. In my opinion those steps resulted in unfairness to the appellant, notwithstanding that there is no question as to bone fides of the police officer.
[40] I consider this case to be quite different from Muggeridge. There, the appellant was actively misled by the police officer who provided advice beyond that required by s 77, and in so doing misled the appellant by referring to one particular matter which had the effect of dissuading the appellant from electing the blood test.
Nothing like that arises here.
13 Muggeridge v Police HC Tauranga CRI-2008-463-57, 2 December 2008.
14 At [21]-[22].
[41] When the appellant ultimately received all the information to which he was entitled under s 77(3) (following the second phone call to a lawyer and the subsequent completion of the EBA check list), he was in a position to make a decision about whether to elect a blood test, untrammelled by what had gone before. In particular, he remained free to call the lawyer once more, and to discuss with her the detail of the print out. Mr Blair said that the lawyer had made it clear that she was happy for him to call back for further advice if he needed it, so there was already an established telephone relationship between the two and no suggestion that there was any technical or other difficulty in the way of a third call. Mr Blair simply decided he did not need further legal advice.
[42] Mr Haskett submits that the appellant:
… was influenced away from providing a blood specimen. While he was influenced by the legal advice, that advice can only be taken as being deficient or affected by the failure of the Constable to provide the s 77(3) advice in a timely and full manner.
[43] I do not accept that submission. There is nothing to suggest that the appellant was dissuaded from providing a blood specimen. The detail of the legal advice Mr Blair obtained is not before the Court. Neither is the Court warranted in finding the legal advice Mr Blair obtained during the two phone calls was deficient.
[44] Mr Blair chose to interrupt the s 77 procedure in order to call the lawyer on a second occasion. He did not say he felt inhibited in his decision not to call for a third time. He does not say, for example, that he did not want to trouble the lawyer yet again. On the contrary, his own evidence was that the lawyer had indicated a readiness to provide further advice if he wished to call back.
[45] In those circumstances, no question of unfairness arises.
Result
[46] While I accept Mr Haskett’s argument that s 77(3) was not strictly complied with, I have held that there was reasonable compliance for the purposes of s 64(2). The appellant’s unfairness argument is rejected. Judge Kiernan was correct to hold
that the evidential breath test print-out was admissible. The appeal fails and is dismissed accordingly.
C J Allan J