Brett v Police
[2016] NZHC 201
•17 February 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2015-419-000041 [2016] NZHC 201
RUSSELL PATRICK BRETT
v
NEW ZEALAND POLICE
Hearing: 10 February 2016 Appearances:
A Haskett for Appellant
T A Needham for RespondentJudgment:
17 February 2016
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 17 February 2016 at 4.30pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:……………………………….
Solicitors/counsel:
A Haskett, Auckland
Crown Solicitors, Hamilton
BRETT v NEW ZEALAND POLICE [2016] NZHC 201 [17 February 2016]
[1] On 3 July 2015, following a Judge alone trial held on 3 June 2015, the appellant, Mr Brett, was found guilty by Collin DCJ in the District Court at Hamilton of driving with excess breath alcohol. On 20 October 2015, Mr Brett was sentenced to six months’ disqualification from driving and fined $750. He was also ordered to pay $130 in Court costs, $80 for medical fees and $109.25 for the analysis fee.
[2] Mr Brett appeals his conviction. He submits that a miscarriage of justice has occurred because:
(a) the prosecution did not offer sufficient admissible evidence to prove that he made a valid election to undertake a blood test;
(b)even if the blood test was requested by him, the prosecution did not prove that any such request was made after he had been given the advice required by s 77(3) of the Land Transport Act 1998; and
(c) Collin DCJ did not give adequate reasons for rejecting his evidence and accepting the evidence advanced by the informant.
Relevant facts
[3] The prosecution called one witness, a Constable Daltrey. The prosecution case can be summarised as follows:
(a) On 17 October 2014 Constable Daltrey was patrolling on State Highway 3. He observed a motor vehicle travelling away from him on Te Kawa Road. The vehicle was swerving across both lanes. The constable activated his flashing lights and siren, and the vehicle pulled over. He then approached the vehicle and found Mr Brett in the driver’s seat, drinking water from a large bottle. The constable observed a half empty box of beers in the vehicle and a number of empty bottles. Mr Brett was unsteady on his feet when he got out of his vehicle. Mr Brett was aggressive from the outset and he accused
the constable of stealing his water bottle. Mr Brett was required to
undergo a breath screening test. The result was “over 400”.
(b)Constable Daltrey required Mr Brett to accompany him to the Te Awamutu police station for an evidential breath test. At the police station, Mr Brett was given his rights as required by the New Zealand Bill of Rights Act 1990 and he was given the opportunity to and did speak to a lawyer. He was then directed to the evidential breath test room. Mr Brett continued to be argumentative. The constable asked another officer to remain in the room with him while he conducted the evidential breath test procedure, but the officer could only stay for a short time because he was called away. At one point Constable Daltrey turned around to see Mr Brett advancing on him. He pushed Mr Brett back and advised him he would restrain him if he did not calm down. The constable then asked a second officer to come into the room and remain there while Mr Brett underwent the evidential breath test. When the second officer was in the room, Mr Brett calmed down.
(c) Constable Daltrey conducted the evidential breath test. Mr Brett returned a positive reading of 597 micrograms of alcohol per litre of breath.
(d)Constable Daltrey told Mr Brett of the result and advised him of the various matters detailed in s 77(3) and (3A) of the Land Transport Act
1998. He did so by reading a section – section J – from a standard police document – the Breath and Blood Alcohol Procedure Sheet. Immediately after the constable gave Mr Brett this advice, he requested a blood test.
(e) Constable Daltrey then moved into what is known as Section K of the Breath and Alcohol Procedure Sheet. He gave Mr Brett his rights afresh. Mr Brett then asked to speak to a different lawyer. He was given that opportunity and he spoke to another lawyer in private.
(f) Constable Daltrey did not commence the 10 minute period referred to in s 77(3)(b)(ii) because Mr Brett had elected to give a blood test immediately after he was advised of his right to do so.
(g)After Mr Brett had spoken to the second lawyer, he confirmed that he still wanted to undergo a blood test. The standard police blood specimen form was then completed. It recorded that Mr Brett had consented to the taking of a specimen of his blood. Mr Brett refused to sign the form.
(h)A blood test was subsequently carried out by a nurse. The blood taken was analysed. It gave a reading of 145 milligrams of alcohol per 100 millimetres of breath.
[4] Mr Brett gave evidence on his own behalf. He said that he had been driving slowly prior to being pulled over and that he was not drunk at the time. Upon arriving at the police station he was placed in a room for approximately 20 minutes, and not allowed to go to the toilet or have a drink of water. He accepted that after he had completed the evidential breath test, he was advised of the results and told of the various matters detailed in s 77(3) and (3A). He said to the constable, “can I request blood and can I speak to another lawyer?” At this point, Constable Daltrey told him “yes, you’ve got 10 minutes”. Mr Brett took this to mean that he had 10 minutes to speak to a lawyer. He did speak to a second lawyer. Constable Daltrey then required him to give blood, telling him that it was an offence not to do so. He said that, faced with this advice, he agreed to give blood and that the nurse subsequently arrived and took a blood sample from him.
District Court Hearing/Decision
[5] At the conclusion of the prosecution case, it was submitted for Mr Brett that there was no case to answer, because the 10 minute period had not been afforded to Mr Brett. Collin DCJ reserved that issue and continued to hear the case.
[6] At the conclusion of the evidence, Judge Collin indicated that he was going to reserve his decision. He gave the parties the opportunity to make brief
submissions. Mr Haskett, appearing for Mr Brett, noted that he had asked Mr Brett in the course of his examination in chief whether he requested for a blood test and that his answer was “no”. He asserted that Mr Brett was not challenged on that issue. The prosecuting Sergeant responded by saying that it was for the Court to decide the credibility of Constable Daltrey and Mr Brett. Judge Collin replied that he could not decide credibility if the matter had not been put to Mr Brett. He reserved any finding until he could consider the transcript.
[7] In his reserved decision, Judge Collin recorded the charge and the facts. He summarised the evidence in some detail, and noted that Constable Daltrey was extensively cross examined by Mr Haskett appearing on Mr Brett’s behalf. He noted that under cross examination, the Constable stated that as soon as Section J of the Positive Evidential Breath Test Section of the sheet had been read out, Mr Brett indicated that he wished to take a blood test. He noted that the constable said that Mr Brett had consented to the blood test and that, because Mr Brett wanted a blood test, the 10 minute period was not afforded to him. He noted that Constable Daltrey had rejected any suggestion that Mr Brett did not freely consent to or want a blood test and also rejected the proposition that Mr Brett had said to him “can I have a blood test and can I speak to a lawyer?”
[8] The Judge also referred to Mr Brett’s evidence. He noted the evidence Mr Brett gave to the effect that he was assaulted by the Constable while being held in the cells, and his evidence about asking whether he could speak to a lawyer and give a blood test. He said that Mr Brett said that the Constable then said to him, “yes you have 10 minutes”. He noted that Mr Brett said that he understood that the 10 minutes was in relation to talking to a lawyer, and denied that he in fact consented to the giving of blood. He noted that Mr Brett asserted that he had never freely agreed to give blood, but felt compelled to do so because he was told that it was an offence not to. He noted that Mr Brett acknowledged in evidence that he had purchased a box of beer and parked up in the car by himself and consumed about five bottles. He observed in the cross examination that Mr Brett said that there may have been four or five bottles left in the car when he was stopped by Constable Daltrey. He noted that having consumed the alcohol, Mr Brett immediately proceeded to drive home and that it was while doing so that he was apprehended by Constable Daltrey.
[9] The Judge rejected Mr Brett’s evidence that he was driving his car slowly but otherwise without error, and he accepted the evidence of Constable Daltrey that Mr Brett’s driving came to his attention because his vehicle was weaving from side to side. He also accepted the Constable’s evidence that Mr Brett appeared to be intoxicated when the Constable first approached him, and he rejected Mr Brett’s evidence that Constable Daltrey was aggressive towards him.
[10] The Judge’s assessment was that Mr Brett was not a reliable witness. He preferred the recollection of events described by Constable Daltrey. In particular he preferred the evidence of Constable Daltrey as to the giving of consent to the taking of blood. He rejected Mr Brett’s version that he never consented but only asked “can I give blood, can I speak to a lawyer”. He considered that Mr Brett had given consent freely and immediately after the advice referring to the option of giving blood was read to him. He also accepted that the constable acted at all times in good faith and in accordance with the consent given and that as a consequence he arranged for the taking of Mr Brett’s blood.
[11] The Judge then canvassed the legal issues. He noted that Mr Haskett relied on what he submitted was the conflicting evidence of Mr Brett and Constable Daltrey. He noted that Mr Haskett had argued that the apparent consent on which the police relied had been framed by Mr Brett as a question. He noted the submission by Mr Haskett that any inference advantageous to Mr Brett should be drawn. The Judge recorded that while he preferred the evidence of Constable Daltrey, he did not consider that there was a conflict in the evidence, nor any doubt as to whether Mr Brett’s consent had been freely given. He did not consider that Mr Brett was in any way compelled to provide blood but instead provided it freely in accordance with the request made by him after he was advised of the positive evidential breath test.
[12] The Judge distinguished an authority1 relied on by Mr Haskett. Rather he relied on the decision in Police v Gracie2 where the election to give blood was made while the required advice was still being read, but before the 10 minute period
commenced. He noted that Judge Burns in that case held that to suggest that an
1 Neiman v Police HC Wellington CRI-2006-485-125 14 February 2007.
2 Police v Gracie DC, NSD, CRI-2007-044-00835, 12 August 2009.
officer has to start the 10 minute period, and then within a few seconds conclude it when an election has already been made, would be artificial and not what the legislation intended. The Judge adopted this reasoning and found that the requirements of s 77(3)(a)(i), (ii) and (3)(b)(i) and (ii) were complied with by Constable Daltrey. He made this finding because he considered that Section J was read and explained to Mr Brett by Constable Daltrey and that, during the process, Mr Brett requested a blood test. He noted that the commencement of the 10 minute period was never communicated to Mr Brett, but he was satisfied Mr Brett had been made clearly aware that if he did not give blood, the breath test would be conclusive evidence of the commission of the offence and that as a consequence, Mr Brett made the clear decision to undertake a blood test. He also found that Mr Brett was made aware of the result of making that decision, namely that the blood test would be conclusive, not the breath test. He did not find it fatal that Constable Daltrey did not actually start the 10 minute period and then conclude it. He considered that the election made by Mr Brett was sufficient compliance. He made a further finding that any non compliance was saved by s 64(2) of the Act. He convicted Mr Brett of driving with excess blood alcohol.
Submissions
[13] Mr Haskett referred to s 56(2) of the Land Transport Act. He noted that an offence is only committed under that section if a person drives or attempts to drive a motor vehicle while the proportion of alcohol in a person’s blood, as ascertained from a blood specimen subsequently taken from that person under s 72 or s 73 of the Act, exceeds 80 milligrams of alcohol per 100 millilitres of blood. He argued that the prosecution had the burden of proving that a blood specimen was taken under s
72. Relevantly he referred to s 72(1)(b) which provides that a person must permit a medical practitioner to take a blood specimen when required to do so by an enforcement officer if, inter alia, the person has undergone an evidential breath test, and, within 10 minutes of being advised by the enforcement officer of the matters specified in s 77(3)(a), the person advises the officer that he or she wishes to undergo a blood test. He argued that a person can only be required to provide the blood specimen under s 72(1)(b) if:
(a) that person advises that officer that he or she wishes to undergo a blood test; and
(b)any such request is made after being advised of the matters detailed in s 77(3).
[14] Mr Haskett argued that these are matters to be determined by a Judge, and that the subjective opinion of the police officer in attendance is irrelevant. He argued that there was no adequate admissible evidence from which Judge Collin could properly conclude that Mr Brett communicated a valid request to undergo a blood test. He said that if a valid election was not proven, then the police had no power to require the giving of a blood test under s 72(1)(b), and that Mr Brett’s blood sample was not taken pursuant to s 72 as required by s 56(2). Further he argued that even if there was a request for a blood test by Mr Brett, it was not an election that qualified under s 72(1)(b), because the prosecution did not prove that the police gave the advice required by s 77(3) before the request was made.
[15] Mr Haskett also argued that Judge Collin did not give appropriate reasons for preferring the evidence of Constable Daltrey over Mr Brett, and that there were a number of matters which the Judge did not consider or weigh adequately when considering the defence evidence.
[16] Ms Needham, for the Crown, argued that there was no miscarriage of justice. She argued that Judge Collin was entitled to prefer the evidence of Constable Daltrey to that of Mr Brett. She submitted that Judge Collin gave reasons for his findings on credibility, and that matters of credibility and unreliability were entirely open to the Judge on the evidence that was before him. Ms Needham accepted that the 10 minute period detailed in s 72(1)(b)(ii) was not given. She accepted that, read strictly, s 77 had not been complied with. However she argued that s 64(2) applied, and that there had been reasonable compliance with the Act’s provisions. Specifically she submitted that there is nothing to suggest that the blood test result was compromised and that such non compliance as occurred did not create any risk of unfairness for the appellant, or raise the possibility of injustice.
Analysis
[17] Mr Brett was charged with breaching s 56(2) of the Land Transport Act. It provides as follows:
56 Contravention of specified breath or blood-alcohol limit
…
(2) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.
[18] It is not in dispute that Mr Brett was driving his motor vehicle on the night in question. What is in issue is whether or not the blood specimen taken from him, which when analysed gave a result showing that the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood, was properly taken in accordance with s 72 of the Act.
[19] Section 72 provides as follows:
72Who must give blood specimen at places other than hospital or surgery
(1) A person must permit a medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—
…
(b) the person has undergone an evidential breath test under section 69(4), and—
(i) it appears to the officer that the test is positive; and
(ii) 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), the person advises the officer that the person wishes to undergo a blood test…
[20] Here Mr Brett had undergone an evidential breath test. It appeared to
Constable Daltrey that that test was positive. The evidence established, and Mr Brett
did not dispute, that Constable Daltrey advised him of the matters specified in s
77(3)(a) of the Act by reading section J of the applicable police procedure sheet. [21] Mr Haskett tried to pick holes in Constable Daltrey’s evidence.
[22] For example, he argued that Constable Daltrey did not initially say that Mr Brett elected to undergo a blood test in his evidence in chief. He referred to a passage in Constable Daltrey’s evidence in chief where he recited the advice that he gave Mr Brett in relation to the matters detailed in s 77(3)(a) of the Act. He argued that in giving that recital, the Constable did not say that Mr Brett requested to undergo a blood test. He pointed out that it was only later in his evidence in chief that Constable Daltrey said that Mr Brett asked for a blood test.
[23] I do not accept Mr Haskett’s submissions in this regard.
[24] In considering the answer given by the constable, reference has to be made to the question asked. Constable Daltrey was asked about the result of the evidential breath test. He stated what that result was. The question then posed to him was as follows: “And once you got that result, what did you [do]?” Constable Daltrey then recited the advice that he gave to Mr Brett. Amongst other things, he explained that he told Mr Brett that he was entitled to speak to a lawyer, and that Mr Brett asked to do so. It was only a little later in his evidence that Constable Daltrey stated that Mr Brett had asked for a blood test “to start with”.
[25] The constable’s evidence is clear from other passages in the transcript. When
he was cross examined by Mr Haskett, the following exchange took place:
Q. And on your evidence is the very next thing you [do] is after that’s completed, that’s read to my client is you read the, the next section, section K of the Bill of Rights again. Is that right?
A. That’s correct because he asked for a blood test.
Q. Sorry?
A. He asked for a blood test.
Q. All right well where’s it written down here that he asked for a blood test?
A. Well after I’d given him the rights with regards to the blood test in section J, he said “I want a blood test”, so I went on to read section K which is advising him that he’s detained for the purpose of a blood test.
Mr Haskett and Constable Daltrey came back to the issue a little bit later:
A. …After, as soon as I’d read out the advice positive breath testing
section J, the defendant asked for a blood test. Q. Yeah but what I’m asking -
A. It’s because he’s requested it within, well before the 10 minutes had even started I just went straight onto the next section and informed him there.
Q. But after the passage of time since it occurred, you can’t recall the
exact words that may have been used by my client?
A. Oh I don’t recall the exact words. I just, he asked for a blood test.
…
A. The words were either, “I want a blood test” or words to that effect.
They weren’t ambiguous. He asked for a blood test. He’s perfectly
within his rights to have a blood test so I just carried on the -
Mr Haskett returned to the issue yet again and the following discussion ensued:
Q. All right and after that what do you say occurred? A. Then he requested a blood test.
Q. But you can’t say what words he used exactly?
A. Something in the region of, “I want a blood test”.
Q. Did he say anything else?
A. He did say that he wanted to speak to a lawyer.
…
A. No that was after I read him section K and offered him to speak to a lawyer again and then offered him the same list as before and he requested a different lawyer this time.
A little later again the following question and answer were given:
Q. And are you are saying my client immediately said something that you took as being an election to do a blood test so that would’ve been at 8.23 would it?
A. Correct.
[26] There was other evidence that Mr Brett confirmed his decision to undergo a blood test, and that later, when he was presented with the blood specimen form, he confirmed his earlier choice. The following exchange took place in re-examination:
Q. What did you say to him at the time when you showed it to him?
A. I asked him if he was going to consent to a blood test. He said,
“yes”.
Q. Just in relation to that, after he consented to the taking of a blood specimen, the word “yes” is written in there. Who wrote that in there
A. I did.
Q. At what stage?
A. After I asked the defendant if he consented to having a blood specimen taken.
…
A. He appeared to read it. I asked him if he consented to a blood specimen taken and I put “yes”, and then I put “refused” when he refused to sign it.
[27] There was clearly admissible evidence to the effect that Mr Brett advised
Constable Daltrey that he wished to undergo a blood test.
[28] Mr Haskett tried to bolster his argument by referring to the timing of events given in evidence by Constable Daltrey. He noted that Constable Daltrey said that he advised Mr Brett of the result at 20:22 hours, that he advised him of the matters set out in s 77(3)(a) at 20:23 hours, and that Mr Brett asked to speak to a lawyer at
20:26 hours. Mr Haskett submitted that this timeframe was implausible, and that
Judge Collin failed to take this into account.
[29] I agree with Mr Haskett that the timeframe put on matters is tight. The s
77(3)(a) advice would have taken more than a few moments to read out, but I do not consider that the timeframe given by Constable Daltrey was so tight as to be impossible. In any event, the timing of events does not go to the key question – whether or not Mr Brett elected to undergo a blood test.
[30] Mr Haskett next argued that the Constable did not make a note of what Mr Brett said when he stated that he wanted to undergo a blood test. He argued that the Constable failed to comply with r 5 of the Practice Note on Police Questioning2007, which inter alia requires that any statement given by a defendant in custody or in respect of whom there is sufficient evidence to charge, should either be recorded by video, on audio tape or in writing. The Practice Note requires that the person making the statement have the opportunity to review it, and to correct any errors. When a statement is recorded in writing, the person must be asked if he or she wishes to confirm that written record is correct by signing it.
[31] I do not agree that the Practice Note has been breached. Constable Daltrey gave evidence that he advised Mr Brett of the information required by s 77(3)(a). He said that he asked Mr Brett to sign an acknowledgement that those rights had been given, but that Mr Brett refused to do so. He said that he gave Mr Brett his rights as required by the New Zealand Bill of Rights Act 1990, and that again he asked Mr Brett to sign an acknowledgement that those rights were given. Again, Mr Brett refused. He said that Mr Brett said that he wished to undergo a blood test. He recorded that election on the Breath and Blood Alcohol Procedure Sheet. The Constable prepared a blood specimen form which recorded that Mr Brett had consented to the taking of a specimen of his blood. Again, the Constable gave evidence that Mr Brett was asked to sign that form, but he refused to do so.
[32] In my judgment, the Constable did record, albeit cryptically, Mr Brett’s election to undergo a blood test, but Mr Brett refused to sign the form recording that advice.
[33] Mr Haskett pointed out that Mr Brett denied electing to give a blood test. It
was Mr Brett’s version of events that:
A. Um, well it, the machine spat out the results and he said, “oh”, he pretty much said, “you’ve blown over. It’s, um, your result’s over”, and I said to him “can I request blood and can I speak to another lawyer?” and he said, “yes you’ve got 10 minutes”.
Q. So you asked, “can I request blood and can I speak to another lawyer?”
A. Yeah.
Q. He’s replied, “yes”?
A. “Yes you’ve got 10 minutes”.
Mr Brett also stated as follows:
Q. Well at any time during the night did you actually voluntarily elect or request a blood test? A.
No, I said, “can I request blood and can I speak I speak to another lawyer?” that’s what I said and he said, “yes, you’ve got 10 minutes”.
Q.
Now you’ve referred to after the evidential breath test that you asked Constable Daltrey a question or is it double barrel question really saying, “Can I request a –
A.
Yeah I, I said, “Can I,” I said, “Can I request blood and can I speak to another lawyer?” I wanted to speak to another lawyer after the assault. That was the main –
Q.
So you’ve asked that double barrel question and he’s replied –
A.
“Yes you’ve got 10 minutes:.
Q.
- “Yes you’ve got 10 minutes”?
A.
Yeah.
Q.
What was your understanding the 10 minutes to be referring to?
A.
The lawyer, I don’t know. I just wanted to go to the toilet at that
point.
Q.
You’ve heard evidence today from the constable about you being advised that you had 10 minutes with him which you could choose or elect to do a blood test or evidence to that effect. What was your understanding on the night about any time you would or would not have to make any –
A.
Well, well there was none. He said to me, um, after I asked if I – um, I said, “can I request if I can see a lawyer?” He said, “yeah you’ve got 10 minutes”, and that was pretty much the end of that conversation. Nothing else really happened after that. I spoke to the lawyer and I was stuck back in the room until the nurse turned up.
[34]
The
prosecuting sergeant cross examined Mr Brett briefly about
this
evidence. The following exchange took place:
Q. So you said in your evidence the words that, “10 minutes”, did get
said to you by Constable Daltrey?
A. Yeah, he said to me, he told me that I’d blown over on the machine, um, and I said to him, “can I request blood and can I speak to another lawyer”, ‘cos I wanted to speak to another lawyer and he said, “yes, you’ve got 10 minutes”.
Q. So you said at that stage you wanted blood to be taken.
A. No, I said, “can I request blood and can I speak to another lawyer”, that’s what I said.
A further exchange took place a few moments later:
Q. And you had a read through and he asked, “do you consent to the taking of a specimen of blood”, do you recall him asking that and you said, “yes”?
A. He said to me that it was an offence if I didn’t consent, that’s what
he told me.
Q. But you concede that you did say, “yes”.
A. Yeah, I did.
[35] Mr Haskett criticised the prosecuting sergeant and argued that he did not cross examine Mr Brett in relation to his assertion that he did not consent to the giving of a blood specimen. I disagree. It is clear from the above questions that cross examination did occur, albeit relatively briefly. I do not consider that the prosecuting sergeant breached the cross examination duties set out in s 92 of the Evidence Act 2006, which requires that a party cross examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness can reasonably be expected to be in a position to give evidence on those matters.
[36] Mr Brett did concede that he said “yes”, albeit at a late stage when he was
asked to sign the relevant form.
[37] Whether or not Mr Brett elected to give a blood test is a question of fact, and as such it falls to be ascertained objectively and with regard to all surrounding
circumstances.3
3 Davis v The Ministry of Transport (1987) 2 CRNZ 426 (HC) at 430.
[38] While there is a conflict as to the answer given, that conflict is one which fell to be determined by Judge Collin. He saw and heard the witnesses. He could observe their demeanour. The Judge preferred the evidence of Constable Daltrey to that of Mr Brett. Indeed he found that Mr Brett was not a reliable witness. Such findings are not normally overturned on appeal. An appellate Court is aware of the advantage the Court at first instance enjoys in seeing the witnesses, and in observing their demeanour when they give evidence. An appellate Court will generally conclude that findings of credibility, and the weight to be attached to evidence, are matters for judicial discretion, and it will not lightly disturb a lower Court’s findings
in this regard.4
[39] In the present case it cannot be said that there was no evidence on which Judge Collin could properly make the factual findings made by him. Which version of events he preferred was a matter for him.5 This is not one of those exceptional cases where an appellate Court should interfere with the trial Judge’s factual findings.6
[40] Mr Haskett criticised Judge Collin and argued that he did not give reasons for
preferring Constable Daltrey’s evidence.
[41] I do not accept that assertion. A trial Judge is of course under a duty to give reasons.7 Judge Collin did so. He recorded that he had taken into account the amount of alcohol Mr Brett, even on his own evidence, had consumed that day. He also said that he had had regard to the way in which Constable Daltrey gave his evidence. He noted that Constable Daltrey was cross examined at some length regarding what Mr Brett claimed to have said, and that he did not waiver from his position that consent to provide blood was given in clear terms.
[42] Finally, I turn to the 10 minute period.
4 Walker v Police HC Auckland CRI-2004-404-362, 17 August 2005 at [16].
5 Reid v Police HC Palmerston North CRI-2004-454-81, 23 September 2004 at [10].
6 Rae v International Insurance Brokers (Nelson and Marlborough) Ltd [1998] 3 NZLR 190 (CA).
7 Criminal Procedure Act 2011, s 106.
[43] No 10 minute period was provided in this case. Therefore there has not been strict compliance with the requirements of s 77.
[44] I am not persuaded however that this non compliance was significant. Mr Brett was given the required information on which to make an informed decision as to whether or not he wished to undergo a blood test. He elected to give blood immediately after the information was given to him. There is nothing to suggest he was pressured into making a premature decision. In most cases it will of course be important to ensure that a defendant is given the full 10 minutes within which to make his or her decision, but here Mr Brett made it clear from the outset that he wanted to undergo a blood test. His decision should be respected. There is nothing to suggest that Mr Brett subsequently changed his mind. Rather it is notable that the initial election was subsequently confirmed, and after Mr Brett had spoken with the second lawyer. Constable Daltrey was doing no more than complying with Mr Brett’s wishes.
[45] I note the provisions of s 64(2) of the Land Transport Act. While the 10 minute period was not given, I am satisfied that there was reasonable compliance with the statutory provisions. The failure to give the 10 minute consideration period does not give rise to any reasonable doubt as to the correctness of the result obtained from the analysis of Mr Brett’s blood, nor does it create a risk that Mr Brett has
suffered an injustice or unfairness.8 In cases where non compliance does not create
the possibility of likelihood of error, it should be saved by reasonable compliance.
[46] The appeal is dismissed.
Wylie J
8 Constable v Police [2014] NZHC 1970 at [24]-[25]; Aylwin v Police [2008] NZCA 154 at [41].