Brannigan v Police

[2013] NZHC 1926

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000053 [2013] NZHC 1926

BETWEEN  STUART WILLIAM BRANNIGAN Plaintiff

ANDNEW ZEALAND POLICE Defendant

Hearing:                   25 July 2013

Appearances:           J Angland for Appellant

MAV Raj for Respondent

Judgment:                1 August 2013

JUDGMENT OF D GENDALL J

Introduction

[1]      This is an appeal against conviction.

[2]      The appellant was convicted on one charge of driving with excess breath alcohol in a reserved decision of His Honour Judge P Moran in the District Court dated 22 April 2013.  A sentence of $950 plus court costs, disqualification for three months and an alcohol interlink licence disqualification pursuant to s 65A(2) of the Land Transport Act 1998 was imposed.  The appellant had two previous convictions for driving with excess breath alcohol.

[3]      The appellant now appeals his conviction on the basis that an error of law occurred.   This error of law is said to be that the District Court Judge did not correctly apply s 64(2) of the Land Transport Act 1998 in deeming that there was reasonable compliance by the police constable in allowing the appellant less than

10 minutes to decide whether he wished to undergo a blood test.  The appeal is also

based on the suggestion that the District Court Judge made a material error of fact in

BRANNIGAN v NEW ZEALAND POLICE [2013] NZHC 1926 [1 August 2013]

finding that, although the minimum 10 minute period was not allowed, the police constable’s watch did not record seconds (when in fact it did) and, therefore, following the decision in Brown v Police, the charge should have been dismissed.1

[4]       On this, before me, the respondent accepted that there was an error of fact in the District Court Judge holding that the police constable’s watch did not record seconds when actually it did.  The respondent submits that notwithstanding this, the issue before me must be determined under the reasonable compliance provisions of s

64(2), and the Judge’s decision here should be upheld, given the legislative intent of this provision.

Background facts

[5]      This incident arose when the appellant crashed his vehicle on Leeston Road on the evening of Sunday 4 November 2012.  No one was injured in this crash.  The police constable in question was directed to the vehicle crash and, it appears, was informed by other emergency services that the appellant had admitted to drinking all day.  The constable spoke with the appellant driver and noticed he was affected by alcohol. The appellant failed a breath screening test.

[6]      The appellant then accompanied the officer to the Rolleston Police Station for an evidential breath test.

[7]      The evidential breath test recorded an alcohol reading of 643 micrograms of alcohol per litre of breath. The legal limit is 400. After being told of the result of the evidential breath test the appellant was told that, if he wished to undergo a blood test, he must request one within 10 minutes.   At the end of what was said to be the

10 minute period the appellant declined his option to have a blood sample taken. And, he had apparently declined to speak to a lawyer at any stage of the process.

[8]      The sole issue on this appeal is whether the appellant was given a full uninterrupted 10 minute period to make up his mind whether he wished to undergo a

blood test or whether the period was shorter than 10 minutes, such that the evidence

1      Brown v Police [2012] NZHC 1192.

of the result of the evidential breath test here is inadmissible in terms of s 77(3) of the Land Transport Act 1998.

[9]      In this case, the undergoing by the appellant of the evidential breath test procedure was recorded on video tape. About five minutes into the 10 minute period the appellant was permitted to go to the toilet.  He was absent for just over a minute. During his absence the running of the 10 minute was not suspended.  It is submitted on behalf of the appellant that upon his return from the toilet, the 10 minute period in question should have been re-started, but in his judgment the District Court Judge did not agree.

[10]     As to the time allowed for the appellant to make an election to have a blood test here, the District Court Judge found that it was possible that this period started at

1939.59 hours and ended at 1949.01 hours.   The result of this, according to the District Court Judge, was that the total time allowed to the appellant was only nine minutes and two seconds, being 58 seconds short of the 10 minute period.  Thus, the appellant’s position is that he was given less than the required 10 minute period to make this decision, that there has not been reasonable compliance with the s 77 requirement to allow him a full 10 minutes to make this decision and, therefore, his conviction cannot stand.

[11]     Under cross-examination before the District Court Judge, the police constable accepted that her watch did have a second hand but in this case she did not record the seconds.  It seems there was a difference between the time on the constable’s watch and the time on the DVD which recorded the interaction with the appellant.   The constable said that her usual practice was to give somewhere between 11 and 13 minutes to a person to make a decision as to whether they might seek a blood test.  In this case, however, she could not say why she had deviated from her usual practice.

[12]     As I have noted above, the District Court Judge found in his decision that, given the constable did not record the seconds on her watch as he said this was not possible (which was incorrect), at the very extreme it is likely the appellant was only allowed nine minutes and two seconds, to consider his decision here.

[13]     Notwithstanding this, the District Court Judge held in terms of s 64(2) of the Land Transport Act 1998 that there was reasonable compliance by the constable, so the evidence of the evidential breath test result was admissible and the conviction followed.

The legislation

[14]     In this case the police constable ultimately required the appellant to undergo an evidential breath test (which recorded 643 micrograms of alcohol per litre of breath) pursuant to s 69(1) of the Land Transport Act 1998.   This is permissible where, as here, the appellant had undertaken a breath screening test under s 68 which revealed more than 400 micrograms of alcohol per litre of his breath.

[15]     Under s 70A of the Land Transport Act 1998, motorists have the right in all cases where an evidential breath test result that exceeds the limit has been obtained to elect to undergo a blood test.

70A     Right to elect blood test

(1)       If the result of a person's evidential breath test appears to be positive, the person has the right, within 10 minutes of being advised by an enforcement  officer  of  the  matters  specified  in  section  77(3)(a) (which sets out the conditions of the admissibility of the test), to elect to have a blood test to assess the proportion of alcohol in his or her blood.

(2)      This section is for the avoidance of doubt.

[16]     Under s 77(3)(a) of the Land Transport Act 1998 a person, like the appellant here, must be informed 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,  the  test  could  of  itself  be  conclusive  evidence  for  the  purposes  of conviction for an offence under the Act.  The election to undergo a blood test must be made within 10 minutes of being advised of these matters.

[17]     S 64 of the Land Transport Act 1998, which provides for defences, states in s 64(2):

(2)       It  is  no  defence  to  proceedings  for  an  offence  that  a  provision forming part of sections 68 to 75A, and 77 has not been strictly

complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.

[18]     The effect of s 64(2) is to preclude the appellant here from defending the prosecution if there had in fact been reasonable compliance.  As to this s 64(2), the Court of Appeal has stated on several occasions a need for a liberal approach to be taken to this provision.   In Shaw v Police2  Cooke P noted two previous Court of Appeal judgments and held that:

The judgments in both cases emphasise the need for a liberal approach to the reasonable  compliance  section,  the  extent  of  any  non-compliance  and whether there is any reasonable possibility of prejudice to the defendant being highly material.

[19]     And, in Lawrence v Ministry of Transport3 the Court of Appeal held that the purpose of the statutory period of 10  minutes was to enable a suspect to have adequate time without undue pressure within which to make up his or her mind about  a blood  test.   In  addition,  in  Butterworth  v Police4   the Court  found  that whether  the  circumstances  disclose  undue  interruption  of  the  time  period  is  a question of fact and degree.

[20]     In R v Aylwin5 the Court of Appeal reiterated that the reasonable compliance provision applies to s 77 noted above.  Further, at [41] the Court stated that the test as to whether there has been reasonable compliance has been seen as involving a consideration of two questions:

(a)       The first question is whether the extent of the non-compliance gives rise to a reasonable doubt about the correctness of the result; and

(b)The  second  question  is  whether  there  is  a  risk  to  the  defendant suffering injustice or unfairness.

2      Shaw v Police CA212/95, 21 September 1995.

3      Lawrence v Ministry of Transport [1982] 1 NZLR 219 at 221.

4      Butterworth v Police [2000] 18 CRNZ 122 at [8].

5      R v Aylwin [2008] 24 CRNZ 87 at [40].

[21]     On further appeal of this decision, the Supreme Court commented in  Aylwin v Police:6

Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable. The great majority of drivers comply with their obligations in this respect.   A small minority do not. Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences.   The Courts must give full effect to that clear parliamentary indication.

[22]     As to all these matters, in Hutchinson v Police7 the appellant had appealed his excess breath alcohol conviction on various grounds, including the finding that he had received the 10 minute period as provided for in the Act.   In that case the appellant was given a total period of 11 minutes and 6 seconds to decide whether to undertake a blood test, but during that period he had called his lawyer and the call may have lasted up to three or four minutes.   (The police officer concerned was unaware of the phone call being made).  In that case, Wylie J held that if the time spent talking to the lawyer was discounted, it meant the appellant had seven minutes and 51 seconds to consider his position rather than the full 10 minute period.

[23]     Notwithstanding  this,  Wylie  J  held  at  [39]  that  it  was  clear  that  having precisely a 10 minute period was not sacrosanct.   In Rae v Police8  the Court of Appeal had noted that some elasticity was permitted in the requirements of the Act. His Honour further held that the way in which the appellant chose to spend the time given to him and make his decision was for him.   It was noted that the time spent  on  the telephone to  people other than his  lawyer was  not  required  to  be deducted.  In that case, it appeared the appellant had spent most of his time on the telephone  to  other  people.    The  Judge  noted  this  and  also  that  there  was  no

suggestion that the appellant was prejudiced by the non-compliance and, in any event, the non compliance was relatively minor.

[24]     In his decision at [45] Wylie J held that the breath alcohol provision should not be considered to be a legislative code under which a procedural error should lead

to automatic exclusion. On this he stated:

6      Aylwin v Police [2008] NZSC 113 at [17].

7      Hutchinson v Police HC Rotorua CRI-2010-463-109, 3 September 2001.

8      Rae v Police [2000] 3 NZLR 452 (CA) at 53.

Broadly  worded  provisions  such  as  s  64(2)  militate  against  any  such argument.

[25]     His Honour concluded that there was reasonable compliance and dismissed the appeal.

[26]     In Dowling-Mitchell v Police9  the appellant argued that the full 10 minute period for consideration was not provided by the police because there were two extraneous paragraphs in the written advice provided under s 77 which would have occupied the appellant in reading for part of the statutory 10 minute period.   The evidence before the Court was that the appellant had been allowed 12 minutes, but Asher J observed that it was clear that minor interruptions in the 10 minute period were not considered to be sufficient distraction from the sanctity of the 10 minutes. Whilst a driver is entitled to have 10 minutes without undue pressure, interruptions such as a driver being photographed or being asked if he has money for his family’s taxi fare are not sufficient.

[27]     Asher J, in that case, also held at [25] that the extent of the interruption of the

10 minute that any reading would involve would always be a matter of fact and degree and there could be no binding rules.

[28]     And in Tautari v Police10  the appellant appealed on the basis that the Judge was wrong to conclude that although the statutory 10 minute period had not been allowed, there had been reasonable compliance.  During the period in question the constable had reiterated the appellant’s right to advice and had held discussions, it seems, relating to the appellant’s former partner which the District Court  Judge described as very minor interruptions.  On that appeal, Keane J held that the Judge was right to conclude that a period of around nine minutes, under the circumstances prevailing there, amounted to reasonable compliance.

[29]     Against all of these authorities, counsel for the appellant here referred me to the recent decision in Brown v Police11 which he contended was on all fours with the

present case.  That case, it appears, was one where the processing officer could have

9      Dowling-Mitchell v Police HC Hamilton CRI-2006-419-52, 1 June 2006.

10     Tautari v Police HC Whangarei CRI-2007-488-72, 7 May 2008.

11     Brown v Police [2002] NZHC 1192.

calculated seconds on his watch but did not do so.  As a result, the time allowed to the appellant to choose whether to request a blood test was something less than

10 minutes, assumed to be, as I understand it, nine minutes and one second.   The constable stated in his evidence that he did not count or record the seconds on the police check sheet.  In cross-examination the constable stated that his watch did have a second display but he did not count the seconds and determined the start and end of the 10 minute period solely by reference to the time as it was displayed in minutes. His evidence was that this was what he always did and also that he intended to give the appellant the bare 10 minutes and no more than that.  Peters J, on appeal, held that  this  was  most  unusual  and  she  considered  procedurally  insufficient  in calculating a measurement of the bare 10 minute period.   In doing so Peters J referred to the failure to record seconds in circumstances where they were available as “the critical feature of the present case” and she considered there was not reasonable compliance with the Act.  It was suggested that the constable should have either read the second display on his watch or allowed an additional minute or two to cover any shortfall, which did not occur.

[30]     In the present decision  on appeal, the District  Court Judge distinguished Brown which was referred to him in consequence of the error of fact.  In essence the appellant’s position here is a contention that the failure by the constable in this case to read the second hand amounted to a flaw which, in terms of the decision in Brown, cannot be ignored within the ambit of s 64(2) by way of reasonable compliance.

[31]     On this, with respect I take a different view on the particular circumstances of the present case before me from that which was reached by Peters J on the particular facts in Brown.  In Brown, Peters J found a considerable degree of sloppiness on the part of the constable and that there “the officer had brought it on his own head”.  She noted the constable’s evidence that he  always ignored the seconds in calculating the

10 minute period and he deliberately chose to give the appellant the bare 10 minutes and no more.  This was seen to be “most unusual as the practice is to allow a little more than the 10 minute period so as to cover the very eventuality which [had] arisen”.

[32]     By  way  of  contrast,  in  the  appeal  before  me,  however,  the  constable’s evidence was that her usual practice was to give somewhere between 11 and 13 minutes to a driver to make his or her blood test election.  In the present case, she could not explain why inadvertently this had not happened and she had seemed to deviate from her usual practice.  Unlike Brown, she had not deliberately chosen to give what was thought to be only the bare 10 minutes.   It is my view that the circumstances prevailing in the present case are quite different from those that were seen in Brown, being extreme and unusual sloppiness on the part of the police officer such that he deliberately ignored the requirement incumbent on him to do his best to comply with the provisions of the Act.

[33]     I do not regard the inadvertent failure by the constable here to record the seconds on her watch, although these may have been available, as a fatal flaw.  I find also that the non-compliance, which has occurred in a situation where there could be a maximum non-compliance of less than one minute, cannot be said in any way to affect the correctness of the result, given that the appellant’s evidential breath test reading showed 643 micrograms of alcohol per litre of his breath.

[34]     In  my view  there is  also  no  risk  of the  defendant  suffering injustice  or unfairness here through, what I consider could be seen as a purely technical and largely unmeritorious defence.  This is clearly what the Supreme Court had in mind when it made the comments in Aylwin noted at paragraph [21] above.

Conclusion

[35]     Although the appellant here may have had under 10 minutes to consider whether he would elect to have a blood test the shortened period was less than one minute.  As I see the position, the vast majority of the authorities in this area, some of which I have outlined above, support the view that in the particular facts of the present case, a finding of reasonable compliance under s 64(2) is inescapable.   I conclude the respondent has shown on the balance of probabilities that there has been reasonable compliance here in terms of s 64(2) and the conviction was properly entered.

[36]     The appeal is accordingly dismissed.

Solicitors:

Ronald W Angland & Son, Leeston

Raymond Donnelly, Christchurch