Braid v Monk HC Dunedin CRI 2010-412-12

[2010] NZHC 2171

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2010-412-000012

IN THE MATTER OF     an appeal from a determination of the

District Court at Dunedin

BETWEEN  JASON WILLIAM BRAID Informant

ANDJORDAN MCGREGOR MONK Defendant

Hearing:         2 September 2010

Appearances: R P Bates for Informant

J A Westgate for Defendant

Judgment:      17 November 2010

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      Section   68(1)(c)(i)   of   the   Land   Transport   Act   1998   empowers   an enforcement officer to require the driver of a vehicle involved in an accident to undergo a breath screening test.

[2]      In this case, there was a nine-hour interval between the accident and the officer purporting to exercise his powers under s 68(1)(c).  The District Court Judge held the nine-hour delay was fatal to the police case and dismissed the information.

[3]      On  appeal  by  way  of  case  stated,  I  have  been  asked  to  determine  the following questions:

BRAID V MONK HC DUN CRI-2010-412-000012  17 November 2010

i)Where an enforcement officer relies upon s 68(1)(c) of the Land Transport Act as authority for requiring a driver to undergo a breath screening test following an accident, was the District Court Judge correct to find that the exercise of that power  could  be  precluded  by  a  sufficient  lapse  of  time between the accident and the time at which the request was made?

ii)If the answer to question i) is ‘yes’, in considering whether exercising that power was precluded in this case, was the District Court Judge correct to disregard the agreed fact that the defendant had consumed no alcohol between the time of the accident and the time of the request for a breath screening test?

Factual background

[4]      Sometime after 9 p.m. on Friday 14 November 2008, Mr Monk was driving his Subaru motor vehicle on Portobello Road, Dunedin.   He lost control of the vehicle and it crashed into the harbour basin.  He removed the number plates, left them beside the car and then walked home, a distance of some 4.5 kilometres.

[5]      Several hours later, at approximately 3.43 a.m. on Saturday 15 November

2008, the vehicle was discovered partially submerged in the harbour.  Police were called to the scene.

[6]      Subsequent enquiries by the police established that Mr Monk was the owner of the vehicle.  They arrived at his address at 4.50 a.m.

[7]      Mr Monk admitted being the driver of his vehicle at the time of the crash. Police then required him to undergo a passive breath test at 5  a.m.   That was followed by a breath screening test at 5.26 a.m.  A subsequent blood sample taken at

6.38 a.m. revealed a level of 91 milligrams of alcohol per 100 millilitres of blood.

[8]      Mr Monk admitted consuming alcohol between 4 p.m. and 9 p.m. on the Friday, i.e. prior to driving his vehicle on Portobello Road.  He also admitted that he did not drink any further alcohol after the crash and before the breath and blood tests were undertaken.

[9]      He was  charged  with  careless  driving  and  driving with  an  excess  blood alcohol level of 91 milligrams of alcohol per 100 millilitres of blood.

[10]     The defended hearing proceeded by way of agreed facts, the only issue for the District Court Judge being whether under s 68(1)(c)(i) the police had the power to require Mr Monk to undergo the initial breath test.  Apart from challenging the officer’s jurisdiction to require the initial breath test, Mr Monk took no other issue with the breath or blood alcohol testing procedures.

The District Court decision

[11]    In his decision, the Judge identified the key statutory provisions for consideration as being s 68 and also s 77 of the Land Transport Act. Section 77 creates a presumption that deems the alcohol level in a defendant’s breath or blood as indicated by the tests to be the level at the time he or she was driving.  Obviously, the longer the period between the driving and the administration of the test, the less likely the test results will in fact be an accurate representation of the level at the time of the driving.  However, the presumption is a conclusive one and, as noted by the Judge, it has been held that delay of itself can never be a reason for refusing to apply the presumption: see Gasson v Andrews HC Dunedin CRI-2009-412-000031, 19

November 2009 at [11].

[12]      Having identified the relevant statutory provisions, the Judge then undertook an analysis of s 68, noting that on a literal reading of s 68(1)(c)(i) anyone who is the driver of a vehicle involved in an accident can be tested, regardless of how long ago the accident has occurred.

[13]     However, in the Judge’s view, a literal interpretation could lead to absurd results, especially when combined with the effect of the presumption in s 77.  The

Judge stated that intervening events such as the consumption of alcohol after the accident could render the presumption “a nonsense.” He agreed with  comments made in Police v Hazlett DC Upper Hutt CRN07078000010, 25 May 2007, to the effect that there must come a point when, depending on the facts of the particular case, it is no longer legitimate for a test to be required and continued:

[29]     In my view there must be some proximity between a defendant’s driving and any subsequent request for a breath test. In this case I have reached the view that up to nine hours is simply too long a period of time for the  Court  to  hold  that  there  is  “proximity”  between  driving  and  breath testing.

[30]     I have not been provided with any cases that come anywhere near such a gap that have held that such a time period is proximate. My own researches have also not revealed any cases.

[31]     While I acknowledge that the parties agree the defendant has not consumed alcohol between the crash and the subsequent breath test, I do not believe that is the appropriate issue in this case. The issue turns on the question of proximity and my decision is that on the evidence before me the time between driving and breath test is not sufficiently proximate to permit the officer to request a sample of the defendant’s breath at 5.00 am. Consequently there has been a breach of s 68(1)(c).

[14]     Having found that the blood test result was obtained in breach of s 68(1)(c), the Judge then considered the application of s 30 of the Evidence Act 2006.   The Judge held that although the officer had acted in good faith, the exclusion of the improperly obtained evidence was proportionate to the impropriety and that the lack of proximity meant it was appropriate to exclude the evidence of the blood test. Alternatively, the Judge said he would have been prepared to dismiss the charge under s 64 of the Land Transport Act on the basis there had not been reasonable compliance with s 68(1)(c) due to delay.

[15]     The careless driving charge was also dismissed on the grounds of insufficient proof, the only evidence being Mr Monk’s explanation that he sped up to avoid another car hitting him and “lost it”.

[16]      The appeal relates solely to the drink/driving charge. No issue has been taken with the Judge’s decision on the careless driving charge.

Arguments on appeal

[17]     Counsel for the police explained that the reason the appeal has been brought in relation to the drink/driving charge is because of concern about the road safety implications  of  the  decision.    Police  are  apprehensive  the  decision  will  put  a premium on drivers involved in accidents deliberately avoiding police for as long as possible.    They  are  also  concerned  that  the  imposition  of  a  time  bar  creates uncertainty and therefore practical difficulties in enforcement.   The uncertainty is said to arise because of difficulties in identifying the cut-off point – as Mr Bates put it, is it four hours or five hours or what?

[18]     The police accept there must be what Mr Bates described as a “probative connection” between the test results and the charge, but argue that the connection cannot as a matter of logic or principle be determined solely by the passage of time, especially in circumstances where the driver admits he has not consumed any alcohol since the accident.  On the facts, the blood test result clearly established that at the time of the accident Mr Monk was driving with an excess blood alcohol level. Despite  the  length  of  time involved,  there  were no  intervening factors  between accident  and  test  as  a  result  of  which it  could  be  said  there  was  no  probative connection between the test result and the charge.   The probative connection was clear and there was accordingly no reason why the test should not have stood.

[19]     Essentially, the argument is that the Judge was wrong to define proximity solely by reference to time.   The correct approach was for there to have been an assessment of all the relevant factors in determining whether there was a sufficient probative connection.  The Judge is said to have given time a status or primacy that was not warranted by either the plain wording of the legislation or the case law.

[20]   Mr Bates accepted that given this was the argument, the question for determination would have been more appropriately worded with the insertion of the word “solely” so as to read:

Where an enforcement officer relies upon s 68(1)(c) of the Land Transport Act as authority for requiring a driver to undergo a breath screening test following an accident, was the District Court Judge correct to find that the

exercise of that power could be precluded solely by a sufficient lapse of time between the accident and the time at which the request was made?

[21]      For  his  part,  counsel  for  Mr  Monk,  Mr  Westgate  submitted  that  police concerns about the decision are more imagined than real.  In his submission, the case turned on its own unusual facts and will not create a precedent.

[22]     Mr Westgate did however agree that as a matter of principle and authority, the Judge had asked himself the wrong question.  Mr Westgate submitted that a more sophisticated analysis was required.  The issue was not whether nine hours was too long but  whether  there  had  been  an  abuse  of  process.  Time  alone  may not  be determinative of that question although eventually with the passage of time it may be

– for example if the test had been requested a week later.

[23]     Ultimately, both counsel agreed  that my answer to the first question (as amended) should be ‘no’ and that the answer to Question 2 was also no.

Discussion

[24]     Section 68(1) provides:

(1)      An enforcement officer may require any of the following persons to undergo a breath screening test without delay:

(a)A driver of, or a person attempting to drive, a motor vehicle on a road:

(b)A person whom the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:

(c)      If an accident has occurred involving a motor vehicle,—

(i)       The driver of the vehicle at the time of the accident;

or

(ii)      If the enforcement officer is unable to ascertain who the driver of the motor vehicle was at the time of the accident, a person whom the officer has good cause to suspect was in the motor vehicle at the time of the accident.

[25]     Under s 68(1) there are four pre-conditions to the requirement to undergo a breath screening test, the structure of the section being as follows:

•    Paragraph (a) is concerned with whether a person is a driver of a motor vehicle on a road at the time the officer requires the breath screening test.

•    Paragraph (b), on the other hand, is concerned with past conduct.

•    Paragraph (c) with the situation at the time of an accident.

– Wynn-Williams v Police CA400/03, 15 June 2004 at [25].

[26]     Unfortunately, there is very little authority directly on point.  Wynn-Williams

was concerned with s 68(1)(a) and did not address s 68(1)(c).

[27]     Some support for the view taken by the District Court in this case and Hazlett can be found in Police v Wallis HC Dunedin AP30/01, 22 May 2002.   In Wallis, John Hansen J expressed surprise that no point had been taken about a delay of one hour 50 minutes, stating at [25] “the delay in requesting the breath screening test would almost certainly have led to it being found fatally flawed if that submission had been made.”

[28]     However, the comments were only made in passing and the basis on which delay would have been considered fatal is not articulated.

[29]     After  very careful  consideration,  I have  come  to  the  conclusion  that  the decision was erroneous in point of law.  In my view, delay may well be relevant to the application of s 68(1)(c)(i) but not on the basis propounded by the District Court Judge.  In my view, the Judge has effectively misinterpreted s 68(1) (c) by implying or importing an absolute temporal limitation or time bar that is simply not there and was never intended.

[30]     I have come to that conclusion for the following reasons:

i)The clear wording of s 68(1)(c)(i) which requires only the fact of an accident and the identification of the driver.

ii)The existence of temporal limitations in s 68(1)(a) and (b) – “driver of a motor vehicle on the road”, “recently committed an offence” – indicating that the absence of any similar qualification in s 68(1)(c) was a deliberate choice.

iii)Recognition in the authorities that any hardship or injustice created by the s 77 of presumption must be accepted as the price to be paid in the interests of road safety: see Transport Ministry v Poskitt [1976] 1 NZLR 153. This recognition militates against implying a temporal limitation simply because of the effect of the presumption.

iv)The underlying policy and purpose of the legislation, which is to promote road safety.  Parliament would have intended that where there has been an accident, those considerations must be particularly to the fore.

v)The  existence  of  other  controlling  mechanisms  to  prevent absurd and draconian results.  Even if the condition precedent to the exercise of the power to request the breath screening test is satisfied (i.e. the fact of an accident and the identity of the driver), the Court still retains a measure of control.  It has the ability to intervene if the power has been used for a purpose other than that for which it was given or if it is shown that the exercise of the power amounted to an abuse of its processes: see Parker v Ministry of Transport [1982] 1 NZLR 209 (CA).

[31]     In Parker, McMullin J stated at 215:

… the use of the words "may require" confers on an enforcement officer a power which is exercisable once the conditions precedent to its use have been established. When they have been established the officer may exercise the power without further encumbrance. Those considerations of administrative law which control the exercise of a discretion by an administrative tribunal have no application to blood/breath alcohol testing which more often than not will be performed at the roadside in the hours of darkness. It matters not whether the power to test is exercised as a result of an inflexible practice, fixed policy, or direction from a superior. But the

Court still retains a measure of control over the exercise of the power. It will, however, be limited to cases where a condition precedent to its exercise has not been shown to exist, or if the Court is satisfied that the power was used for a purpose other than that for which it was given, or if it is shown that the exercise of the power amounted to an abuse of its processes.

[32]     Following Police v Bradley [1974] 1 NZLR 113 (CA), Poskitt and Police v Cashell (1988) 3 CRNZ 232, an example of a situation where the power could be held to have been used for a purpose other than for which it was given is where testing is initiated at a point in time so remote from the suspected offence its result could have no probative connection with the charge as laid.

[33]     It follows from all of the above that in my view, counsel are correct and the approach that should have been taken in this case was not to inquire whether nine hours was too long as if that were a self-contained question to be viewed in isolation without any reference point, but rather whether in all the circumstances there had been an abuse of process or whether the power had been exercised for a purpose other than that for which it was given because there could not have been any or sufficient probative connection between the testing and the charge.  The fact of the nine hour delay was relevant to those wider considerations but not necessarily determinative.

[34]     Had the correct inquiry been undertaken, then it is likely the Judge would have come to a different conclusion.

[35]     Mr Monk admitted to driving his car at the time of the crash and admitted he had  been  drinking  alcohol  prior  to  the  crash  but  not  afterwards.  Police  acted promptly once being notified,  attending the scene in  a timely fashion  and  then conducting investigations which led them to Mr Monk’s address. Testing was initiated within ten minutes of approaching Mr Monk.

[36]     Having regard to all the circumstances, the Judge is likely to have been satisfied on the facts there was no abuse of process and that the power was exercised for the purpose for which it was intended.  The evidence of the test results should have been admitted and Mr Monk convicted of driving with an excess blood alcohol level.

Outcome of appeal

[37]     I find that the determination was erroneous in point of law and to that extent the appeal is allowed.

[38]     Because of the approach I have taken, my answers to the questions as worded do not permit of a straightforward ‘yes’ or ‘no’.

[39]   The first question is therefore answered as follows: the exercise of an enforcement officer’s powers under s 68(1)(c) may be precluded by a sufficient lapse of time in circumstances where the exercise of the power involves an abuse of process or the power was used for a purpose other than that for which it was given.

[40]     The  second  question  is  answered  as  follows:  the  Judge  was  wrong  to disregard the agreed fact that Mr Monk had consumed no alcohol between the time of the accident and the time of the request for a breath screening test.

[41]     Given this conclusion, one option would be to remit the matter back to the District Court for re-hearing.  However, the police did not actively seek a retrial. The events at issue took place two years ago and, as Mr Bates responsibly acknowledged, it would be somewhat unfair to Mr Monk to prolong the matter still further. I agree and have decided not to take that course of action. The Judge’s decision dismissing the information will therefore remain in place.

Solicitors:

Crown Solicitor’s Office, Dunedin

J A Westgate, Dunedin