Brown v Police

[2012] NZHC 1192

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-70 [2012] NZHC 1192

BETWEEN  GRANT KIMBER BROWN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 May 2012

Appearances: M Harte for Appellant

R E Savage for Crown

Judgment:      30 May 2012

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 30 May 2012 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:

Meredith Connell, Crown Solicitors, Auckland: [email protected]

Counsel:

M Harte, Barrister, Auckland:  [email protected]

BROWN V POLICE HC AK CRI-2012-404-70 [30 May 2012]

Introduction

[1]      The  Appellant  appeals  against  his  conviction  in  the  District  Court  at Auckland on 5 March 2012 on a charge brought pursuant to s 56(1) of the Land Transport Act 1998 (“the Act”), namely that he drove a motor vehicle while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath.[1]

[1] Police v Brown DC Auckland CRI-2011-004-012381, 5 March 2012.

[2]      The issue that arises on the appeal concerns s 64(2) of the Act, namely whether there was reasonable compliance with particular provisions of the Act.  The case in the District Court and on appeal proceeds on the basis that, having returned a positive evidential breath test, the Appellant was given less than 10 minutes in which to elect to take a blood test.  For reasons set out below, it was and is to be assumed that the Appellant was given 9 minutes and 1 second to make his election.   The District Court Judge determined that there had been reasonable compliance with the provisions of the Act and convicted the Appellant accordingly.

Facts

[3]      The Appellant was stopped by a Police Officer in Parnell, Auckland in the early  hours  of  2  July  2011.    The Appellant  failed  a  breath  screening  test  and accompanied the Officer to a nearby Police Station.  There the Appellant completed an evidential breath test and returned a reading of 780 micrograms of alcohol per litre of breath, substantially in excess of the maximum permitted level of 400 micrograms.

[4]      The effect of the positive result was to give the Appellant the right to elect to have a blood test to assess the proportion of alcohol in his blood.  The Appellant was required to communicate that election within 10 minutes of being advised of certain matters.  In the absence of the Appellant being given 10 minutes in which to make

that election, the positive result of the evidential breath test would be inadmissible.[2]

[2] Land Transport Act 1998, ss 70A(1) and 77(3).

[5]      The purpose of the 10 minute period is to allow the person concerned a period in which to consider whether or not to take the blood test.  It is open to the person to take legal advice if they wish and any reasonable period spent taking that advice should be excluded when calculating the 10 minute period.[3]   It is also worth bearing in mind the legislative history of the relevant provisions of the Act, as to which see the Court of Appeal’s decision in R v Aylwin.[4]

[3] Rae v Police [2000] 3 NZLR 452 (CA); and Lawrence v Ministry of Transport [1982] 1 NZLR 219 (CA).

[4] R v Aylwin [2008] NZCA 154 at [46] onwards. See also Police v Tolich (2003) 20 CRNZ 150 (CA)

at [2].

[6]      In this case, the Officer gave evidence that, on obtaining the result of the evidential breath test, he informed the Appellant of his right, within 10 minutes, to elect to take a blood test, failing which the result of the evidential breath test would be relied upon for the purposes of prosecution.  The Officer’s evidence was that he commenced the 10 minute period at 02:06 am, and that he stayed in the room with the Appellant until his watch showed 02:16 am.  The Officer said that he showed the Appellant the face of his watch from time to time during this period.  The Officer’s evidence was that at 02:16 am he advised the Appellant that the 10 minute period was  over and  that  the Appellant  would  be charged  on  the basis  of “the breath reading”.

[7]      The Officer also gave evidence that he took all times from his digital wrist watch.  Although the watch displayed minutes and seconds, the Officer said that 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.    The  Officer’s evidence was that this was what he always did.  The gist of the Officer’s evidence was that he was intended to give the Appellant 10 minutes, and no more than that. “The officer deliberately chose to give the bare 10 minutes” was how the Judge put it.  The Judge considered this most unusual, as the practice is to allow a little more than the 10 minute period so as to cover the very eventuality which has arisen in this case.

[8]      The Appellant  did  not  give  evidence.    The  Officer’s  evidence  as  to  the

Appellant’s conduct at the Police Station was that the Appellant spoke to a lawyer

before taking the evidential breath test.  The Appellant declined the opportunity to take legal advice before the Officer commenced the 10 minute period.  There is no suggestion in the notes of evidence that the Appellant did anything to indicate to the Officer that he did not require the full 10 minutes to elapse, or that he had decided not to have a blood test.

[9]      Given the Officer’s evidence, the Judge determined that the Appellant had been allowed between 9 minutes and 1 second and 10 minutes and 59 seconds to make his election.   It seems improbable that the Appellant was given as much as

10 minutes and 59 seconds because the Judge thought it likely that the Officer had told the Appellant that the 10 minutes had expired promptly after the minutes display turned over to 02:16 am.  The Judge proceeded on the basis that the Appellant had been allowed 9 minutes and 1 second, and I propose to do likewise.

Reasonable compliance

[10]     The Judge accepted a submission for the Police that, although there had not been strict compliance with the relevant provisions of the Act because the Appellant was presumed to have been given less than 10 minutes to make his election, nevertheless there had been “reasonable compliance” within the meaning of s 64(2). The effect of s 64(2) was to preclude the Appellant from defending the prosecution if there had, in fact, been reasonable compliance.

[11]     Section 64(2) of the Act reads as follows:

64       Defences

(1)      ...

(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.

[12]     The Judge was referred, as was I, to the decision of this Court in Hutchinson v Police.[5]    On the basis of that authority, the Judge concluded that there had been reasonable compliance with s 70A(1) and that the result of the evidential breath test was admissible.

[5] Hutchinson v Police HC Rotorua CRI-2010-463-109, 3 September 2010.

Discussion

[13]     It is for the Police to establish, on the balance of probabilities, that there was reasonable compliance with the requirement to allow the Appellant a 10 minute period in which to make his election.[6]

[6] Wheeler v Police HC Auckland CRI-2009-404-150, 31 August 2009 at [21]; R v Aylwin [2008] NZCA 154 at [40].

[14]     Counsel for the Appellant submitted that the only reason that the Appellant is to be taken not to have received the 10 minutes to which he was entitled was that the Officer did not read the second hand on his watch.  In counsel’s words “the Officer brought it on his own head”.   Crown counsel did not dispute that submission but maintained that the Judge’s decision was correct because there had been reasonable compliance with the provisions of the Act.  Crown counsel relied on Hutchinson.

[15]     Hutchinson was another case in which the time allowed in which to elect a blood test was in issue.  Mr Hutchinson was given more than 11 minutes in which to make his election.  Unbeknownst to the officer, however, Mr Hutchinson used more than 3 minutes of the time to talk to his legal adviser on the telephone. The officer in Hutchinson terminated the election period without knowing of the telephone call. The Judge decided that, in the circumstances, there had been reasonable compliance with the provisions of the Act.  The Judge took account of several matters, including but not limited to the officer’s ignorance of the telephone call.  The Judge concluded that the time allowed, being 7 minutes and 51 seconds net of the telephone call, constituted reasonable compliance.

[16]     In my view, the critical feature of this present case is the matter referred to in

[14]. I consider that at the very least it was incumbent upon the Officer to do his best to comply with the provisions of the Act, and that in turn required the Officer to

read the second hand on his watch.   The alternative was to allow an additional minute or two to cover any possible shortfall.  There being no other relevant factual circumstance, in my view there was not reasonable compliance with the provisions of the Act.

Result

[17]     I allow the appeal and quash the conviction and sentence accordingly

..................................................................

M Peters J