Carson v Police

[2013] NZHC 1129

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-0096 [2013] NZHC 1129

BETWEEN  PETER DAVID CARSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 May 2013

Appearances: D P Hoskin for Appellant

L C A Farmer for Respondent

Judgment:      17 May 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 17 May 2013 at 10.30 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

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

Solicitors:

Steindle Williams Legal Limited, Auckland:  [email protected]

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

CARSON V POLICE HC AK CRI-2013-404-0096 [17 May 2013]

Introduction

[1]      The Appellant appeals against conviction on a charge of driving a motor vehicle  on  a  road  whilst  the  proportion  of  alcohol  in  his  breath  exceeded

400 micrograms of alcohol per litre of breath, being an offence pursuant to s 56(1) Land Transport Act 1998 (“Act”).[1]   The offence was alleged to have been committed on 3 March 2012.  The Appellant was convicted following a defended hearing before Judge Wade in the District Court at North Shore on 25 March 2013.[2]    The Judge disqualified  the Appellant  from  driving  for  seven  months,  fined  him  $660  and ordered him to pay court costs of $132.89.[3]

Background

[1] Police v Carson DC North Shore CRI-2012-044-1350, 25 March 2013 (Oral Judgment).

[2] Police v Carson DC North Shore CRI-2012-044-1350, 25 March 2013 (Notes on Sentencing).

[3] Ibid, at [3].

[2]      There  is  no  dispute  that  the  Appellant  was  given  an  evidential  breath screening test and that the result of the test was that the proportion of alcohol per litre of breath was 511 micrograms.  It is an offence to drive whilst such proportion exceeds 400 micrograms of alcohol per litre of breath.

[3]      Given that result, the Appellant had the right to elect to have a blood test within 10 minutes of his being advised of the matters specified in s 77(3)(a) of the Act. That right is conferred by s 70A(1) of the Act, which provides as follows:

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.

[4]      No  issue  arises  as  to  whether  the Appellant  was  advised  of  the  matters specified in s 77(3)(a) of the Act.  The issue is whether the result of the evidential

breath test was admissible.  This is because the Appellant’s case before Judge Wade

was that he did in fact seek to elect to have a blood test within the 10 minute period, but a blood test was not administered.  The Judge found as a fact that the Appellant did not make, nor seek to make, such an election.  The Appellant’s case on appeal is that that finding was not open to the Judge.   The Crown opposes the appeal and submits that the finding that the Judge made was open on the evidence.

Evidence

[5]      There is no dispute that the Constable (being Constable Russell) informed the Appellant of his right to elect a blood test within the 10 minute period and the consequences of his failing to make such an election.

[6]      The findings that the Judge made on what occurred during the 10 minute period are as follows:[4]

[4] Above n 1, at [9] to [12].

[9]       The 10 minute period procedure was then undergone and the crucial dispute here is that part-way through the 10 minute period Mr Carson had come to the conclusion in his mind that he would exercise the option to give blood and started to ask the officer about that by using words such as, “So what about,” or possibly, “So when may I,” when the officer cut him off mid-sentence by holding his hand up and telling him, “I cannot converse with you during the 10 minute period.”

[10]      The officer, for his part is adamant that that did not occur.

[11]     For myself, I cannot see why any officer would possibly cut off a defendant as it were, in mid-sentence, without establishing whether the question or the statement was exercised in the option to give blood or not. Obviously, if the defendant starts to talk about something immaterial then the officer should, and in this case did, possibly tell the defendant we cannot talk about this while the 10 minute period is running.   But, I reject the suggestion here by the defendant that in fact the officer declined to allow him even to exercise the option by cutting him off mid-sentence.

[12]      I am satisfied, beyond a reasonable doubt, that it was only after the

10 minute period had expired did the defendant in fact then seek to exercise his right to give blood and of course that right had expired with the expiry of the 10 minute period.

[7]      Counsel for the Appellant submits that the Judge erred in stating that the

Constable was “adamant” that the Appellant’s account was incorrect and submits that the evidence was equivocal.

Discussion

[8]      Counsel for the Appellant relied on the following matters.

[9]      First, the Appellant’s evidence was that he sought to make the election within the 10 minute period but that the Constable held up his hand to signal the Appellant to stop, saying words to the effect that the Appellant could not talk during the

10 minute period and that he was to keep silent.  Counsel for the Appellant submits that the action attributed to the Constable was consistent with what the Constable referred to as his “golden rule”, a matter to which I refer below.

[10]     Secondly, the Constable’s evidence was that he had no recollection of the Appellant trying to speak to him during the 10 minute period.  Given that lack of recollection, Counsel for the Appellant submits the Appellant’s evidence should be preferred.

[11]     Thirdly, it was common ground at the hearing that, having been informed that the 10 minute period had elapsed, the Appellant asked the Constable when he would be given the blood test and said he wanted the blood test.  The Constable told him it was too late.   Counsel for the Appellant submits that this is consistent with the Appellant having made a request within the 10 minute period.

[12]     With respect to counsel I do not find these submissions persuasive.

[13]     A fair reading of the evidence is that the Constable does not allow a person to engage him in conversation about peripheral matters during the 10 minute period, for instance about sport or motorcycles, but that he does not stop them from speaking altogether.  That is for the very reason that the person might be electing to have a blood test.  The “golden rule” which the Constable said he follows is not to discuss matters unrelated to the procedures.

[14]     I  accept  the  submission  of  Crown  counsel  that  it  is  not  surprising  the Constable was unable to recall his precise dealings with the Appellant, given that almost a year has passed since the offence and the hearing.  That lack of recollection

did not preclude the Judge from preferring the Constable’s evidence as to how the

Constable would have proceeded.

[15]     I also accept that it is clear the Appellant made his choice known to the Constable after the 10 minute period.  That is not determinative however of the point in issue, namely whether the Appellant sought to elect at an earlier time.

[16]     For these reasons, I am satisfied that the finding the Judge made was open to him on the evidence and I dismiss this appeal.

[17]     It is necessary to mention one further matter, even though there is no appeal against sentence.  In his sentencing note the Judge said:[5]

[5] Above n 2, at [1].

[1]       Mr Carson, for the reasons I have already articulated, my practice is that those motorists who do not plead guilty but take drink driving cases to a defended hearing, are not punished by having a lengthier sentence of disqualification imposed on them for that reason, it is just simply a case of motorists who take matters to a defended hearing do not get any discount. Because the statutory minimum disqualification is six months, it follows that those cases ought to be reserved for motorists who do plead guilty at the first opportunity.

[18]     Section 56(3)(b) of the Act requires the Court to order a person convicted of a first or second offence against s 56(1) to be disqualified from holding or obtaining a driver’s licence for six months or more.  In my view, and as Crown counsel accepted, the Judge erred in saying that only a person who pleads guilty at the first opportunity may receive the statutory minimum disqualification of six months.  There is no such limitation in the provision and nor is one to be implied.  To do so would constitute a fetter on the Judge’s discretion.   A person who delays pleading guilty or who is convicted following a defended hearing is eligible for the six month period of disqualification.

[19]     This is appeal is dismissed.

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

M Peters J