Collier v Police
[2013] NZHC 2273
•3 September 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-201 [2013] NZHC 2273
BETWEEN DENNIS GARY COLLIER Appellant AND
NEW ZEALAND POLICE Respondent
Hearing: 19 August 2013 Counsel:
S Blake for the Appellant
B Hamlin for the RespondentJudgment:
3 September 2013
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 3 September 2013 at 1:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Mr S Blake, Barrister, Papakura
Mr B Hamlin, Meredith Connell, Office of the Crown Solicitor, Auckland
COLLIER v POLICE [2013] NZHC 2273 [3 September 2013]
[1] The appellant appeals against his conviction, and one aspect of his sentence, for an excess blood alcohol offence against the Land Transport Act 1998 (the Act).1
Appeal against conviction
[2] The appeal against conviction arises from the fact that, after the appellant had failed an evidential breath test conducted in a police bus on the roadside, he elected to provide a blood specimen and was taken to another location for that purpose. The respondent, as prosecutor, was required under s 72(3) of the Act to establish that it was not practicable for the blood specimen to be taken in the bus. The appellant submits that the respondent failed to do so.
The facts
[3] The essence of the background facts is as follows. The appellant was driving a car on a road in Papakura when he was stopped at a police compulsory breath testing checkpoint. This was at 7:15 pm. He failed a passive breath test and a breath screening test. He was then required, pursuant to s 69(1) of the Act, to accompany the police officer to the bus, which was nearby, for an evidential breath test. The test was conducted. The reading was 623 mg of alcohol per litre of breath. The appellant was advised of his right to undergo a blood test. At 8:01 pm he confirmed in writing his election to undergo a blood test. He was then told by the police officer that he was required to go with him to what is called the “EBA suite” in Manukau for the blood test. They got there at 8:30 pm. A registered nurse took a blood sample at
8:45 pm. Subsequent analysis established that there was 167 mg of alcohol per 100 ml of blood. No issues arise in relation to those events.
[4] The police officer was asked in cross-examination why the blood sample had not been taken on the bus. A blood specimen must be taken by a “medical practitioner or a medical officer”. The essence of the officer’s evidence was that there was no medical practitioner or medical officer on the bus. He said that a nurse had been contacted by another police officer and the nurse said to the other officer
that she was coming from Auckland City. A decision was then made that it would
1 Police v Collier DC Papakura CRI-2012-055-000271, 30 May 2013 (conviction) and 9 July
2013 (sentence).
involve less time for completion of the blood test if the nurse went from Auckland to Manukau and the appellant was taken from Papakura to Manukau. The evidence establishes that no arrangements had been made for a medical practitioner or a medical officer to be on the bus or to be immediately available if required. No issue arises from this fact.2
Discussion: evidence of practicability
[5] Section 72(3) is as follows:
If it is not practicable for a blood specimen to be taken from a person by a … medical practitioner or medical officer at a place where the person has been required under this section to permit the taking of a blood specimen, the person must accompany an enforcement officer to any other place where it is likely that a blood specimen can be taken from the person by a … medical practitioner or medical officer if the officer requires the person to do so.
[6] The onus is on the informant to establish, on the balance of probabilities, that it is not practicable for the test to be taken at the place to which the motorist has been taken.3 For the appellant, Mr Blake submitted that there was no admissible evidence that it was not practicable to take the blood specimen on the bus. He submitted that the only relevant evidence was the evidence that the nurse was in Auckland and this was hearsay. He further submitted that there was no admissible evidence on other
matters bearing on the decision to go to Manukau, such as the time required for the nurse to travel from Auckland to the bus in Papakura compared with other travelling times of relevance.
[7] I am satisfied that the prosecution did establish by admissible evidence that it was not practicable to conduct the test on the bus.
[8] “Not practicable” has been defined as meaning “not capable of being carried out or … not feasible in the circumstances”.4 Impracticability involves something
more than inconvenience.5 What is practicable at the place to which the driver has
2 See Rhind v Police HC Auckland CRI-2011-404-324, 21 October 2011 at [20].
3 R v Beck [2008] NZCA 283 at [20].
4 Tere v Police HC Auckland A209/99, 7 March 2000 at [11]. Approved in R v Beck, above n 3, at
[20].
5 Hecker v Police HC Christchurch CRI-2007-409-33, 4 May 2007 at [21]. Approved in R v Beck, above n 3, at [20].
first been taken does need to be assessed in relation to the fact that the person is subject to statutory detention and such should not be unduly prolonged or become arbitrary.6
[9] On the hearsay issue the Judge said:
[12] In subsequent submissions a hearsay objection was raised to the replies given under cross-examination over the availability of the registered nurse.7 As defence counsel elicited this information under cross- examination and failed to control the witness’s reply to avoid the introduction of hearsay, I find that the provisions of s 22(1) of the Evidence Act 2006 do not apply. However, if I be wrong in that assessment, then I would dispense with those requirements as the information was elicited under cross-examination and became available evidence. In terms of [ss] 7 and 8 of the Act, I find that evidence relevant, probative, substantially helpful and of little prejudicial effect.
[10] The notice requirements in s 22 of the Evidence Act can be dispensed with under subsection (5) which provides:
The Judge may dispense with the requirements of subsections (2), (3), and
(4) if,—
(a) having regard to the nature and contents of the statement, no party is substantially prejudiced by the failure to comply with the requirements; or
(b) compliance was not reasonably practicable in the circumstances; or
(c) the interests of justice so require.
There was ample evidence justifying dispensation pursuant to paragraph (b) or (c). I am satisfied there was no appealable error by the Judge in the exercise of his discretion to admit this evidence.
[11] The hearsay issue is, in any event, not of central importance. Mr Blake submitted, in effect, that there had to be admissible, direct evidence of objective facts establishing all of the factors which led to the police officer’s conclusion that it was not practicable for the blood specimen to be taken on the bus. This was submitted to relate not only to direct evidence from the nurse about the fact that she was in
Auckland, but the other facts earlier adverted to, such as the time required for the
6 R v Beck, above n 3, at [23].
7 Section 22(1) of the Evidence Act 2006.
nurse to travel from Auckland to Papakura compared with other travelling times of relevance, the distances for the alternative routes, and even such matters as road conditions and traffic volumes.
[12] I do not consider that proof of impracticability requires the informant to produce a range of direct, admissible evidence of objective facts capable of being independently assessed as reliable. Section 72(3) has to be given sensible effect. An enforcement officer has to make a decision, at the time, as to whether or not it is practicable for the blood specimen to be taken at the first location. The decision cannot be an arbitrary one. It must be based on information available to the enforcement officer at the time. It is likely, often enough, that the enforcement officer will base the decision, at least in part, on information provided by others. The relevant enquiry consists of two stages: what the enforcement officer genuinely believed and whether that belief objectively establishes that it was not practicable to take a blood specimen. The point may be illustrated by reference to the evidence about the nurse. That evidence did not have to be admitted to prove that the nurse was in fact still in Auckland. If it did it would be hearsay if it did not come from the
nurse.8 However, the evidence was admissible to establish what information the
officer relied on. There was no suggestion that the enforcement officer in this case did not have the information that he said he relied on, or that he did not rely on that information, or that the information, with the other considerations, was insufficient on an objective appraisal to justify the move to Manukau.
[13] For these reasons I am satisfied that the respondent, as informant, did establish that it was not practicable for a blood specimen to be taken on the bus.
Reasonable compliance
[14] In the District Court, and on this appeal, the respondent submitted that, if the respondent had not established impracticability under s 72(3), there had been
reasonable compliance in terms of s 64(2). Section 64(2) provides:
8 Evidence Act 2006, s 4 – definition of “hearsay statement”.
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.
[15] The Judge did not consider it necessary to determine this question. Because of the conclusion I have reached on the first point, it is also not strictly necessary for me to consider whether there was reasonable compliance on the assumption that the respondent’s evidence fell short of establishing impracticability. However, Mr Blake conceded that it was difficult to argue on the facts of this case that there had not been reasonable compliance. That was a responsible and proper concession. As a matter
of law, s 64(2) applies to s 72(3).9 I am satisfied that the reasonable compliance
provision does apply if it is necessary to apply it.
Appeal against sentence
[16] This was the appellant’s third conviction for an excess breath or blood alcohol offence. The Judge was therefore required by s 65 of the Act to disqualify the appellant from holding or obtaining a driver licence until the New Zealand Transport Agency removes the disqualification under s 100. This is conveniently referred to as “indefinite disqualification”.
[17] Disqualification under s 65 is subject to s 65A (amongst other qualifying provisions). Section 65A is an alternative to mandatory disqualification under other provisions, including s 65. Section 65A makes provision for what is called an “alcohol interlock licence disqualification”. An alcohol interlock licence enables the offender to drive a vehicle provided, amongst other things, an alcohol interlock device is fitted to the vehicle. The device is part of the starting system of the vehicle and uses breathalyser technology to determine whether the starting system should
start the vehicle.10
[18] The relevant provisions of s 65A are as follows:
9 R v Beck, above n 3, at [24]-[25]. And see Atkinson v Police HC Christchurch CRI-2008-409-
106, 28 August 2008; Lawson v Police HC Wellington CRI-2011-485-46, 26 July 2011.
10 Definition of “alcohol interlock device” in s 2 of the Act.
65A Alcohol interlock requirements for repeat offences or certain first time offences involving use of alcohol
…
(2) If this section applies, the court must, if the court imposes a sentence for an alcohol interlock licence disqualification,—
(a) disqualify the person from holding any driver licence for a period of 3 months; and
(b) make an order that—
(i) authorises the person to apply for an alcohol interlock licence at the end of the 3-month disqualification period; and
(ii) requires the person, while holding an alcohol interlock licence, to—
(A) drive only a vehicle or vehicles to which an alcohol interlock device is fitted; and
(B) apply for a zero alcohol licence, which the Agency may issue only on successful completion of the criteria specified in subparagraph (iv); and
(iii) provides that the person may apply for any other driver licence (including, but not limited to, a limited licence) only if the person has obtained, and has satisfied the requirements of, the alcohol interlock licence; and
(iv) provides that the alcohol interlock device in the person's vehicle may be removed only if the person—
(A) has held the alcohol interlock licence for at least 12 months; and
(B) has not violated any of the requirements of the alcohol interlock licence during the 6- month period preceding the date on which the alcohol interlock device is removed, or has completed an assessment and has not violated any of the requirements of the alcohol interlock licence during the 3-month period preceding the date on which the alcohol interlock device is removed; and
(v) ends the person's disqualification under section 65, if the person was disqualified under section 65.
(3) The imposition of a mandatory disqualification under this section is subject to section 81.
(4) A person who is subject to an order under subsection (2) and does not apply for an interlock licence is to be treated as a person with a licence of no effect.
[19] The appellant applied for an order under s 65A. This was not opposed and the Judge was satisfied the application should be granted. The appeal against sentence is directed to the way in which the Judge applied s 65A. He said:
[12] … In terms of your disqualification I am granting the application for you to obtain an alcohol interlock device to be installed in your motor vehicle and in terms of the High Court’s decision in Nanai11 counsel and the police should file a joint memorandum within 10 days containing a draft order in respect of s 65A(2)(a).
[13] What happens under the alcohol interlock legislation, Mr Collier, is that I am going to impose a minimum term of disqualification of 12 months and one day. When you are ready or able or want to apply for the alcohol interlock device to be attached to your vehicle you are entitled to do so. Provided you comply with the regulation then the maximum term of disqualification you have to serve is three months. Then you are entitled to apply to have the alcohol interlock device fitted to your car, which means you will not be able to drive unless you have got that device in the car. If you attempt to drive on any other type of licence, other than an alcohol interlock disqualification licence, you will be deemed to have no licence at all. You will be driving whilst disqualified and committing a further offence.
[14] A copy of the order which explains this to you in writing will be given to you today and then the draft order will be filed later today.
[20] Mr Blake submitted that the Judge was in error in two respects: in imposing the order of disqualification of 1 year and 1 day, and in requiring a joint memorandum to be filed containing a draft order in respect of s 65A(2)(a).
[21] It is doubtful that an appeal can be brought against a direction that a memorandum be filed. I also consider that it was, with respect, a sensible and understandable direction. As the Judge noted, a similar direction had been made by this Court in Nanai v Police12 when the appeal was allowed in that case to enable the appellant to apply for an interlock licence under s 65A. There are also some apparent problems in the drafting of s 65A, which I will come to, and the drafting of
an order can be seen as a means of trying to address these problems. It is
11 Nanai v Police [2013] NZHC 155.
12 Nanai v Police, above n 11, at [32] and Nanai v Police (No. 2) [2013] NZHC 293.
unnecessary to make a formal determination on the appeal against the direction because, as explained below, it can be dealt with in a different way.
[22] The answer to the main point on appeal is less straight forward. As noted above, if an order had not been made under s 65A, the Court was required to make an order of indefinite disqualification under s 65. And s 65 is not subject to s 81 which permits a court to disqualify a person for less than a mandatory period that would otherwise apply.13 Because the application under s 65A was granted, and given that there had not earlier been an order for indefinite disqualification under s 65, the only other period of disqualification provided for is 3 months pursuant to s 65A(2)(a).
[23] The appellant’s offence was against s 56(2). Section 56(4)(b) provides that a person convicted for a third or subsequent offence against s 56(2) must be disqualified for more than 1 year. This may have been the basis for the order of disqualification imposed by the Judge, but it was precluded by s 56(4A) which provides, in effect, that s 56(4)(b) is subject to s 65.
[24] It may also be, as Mr Hamlin submitted, that the Judge imposed the disqualification of 1 year and 1 day to cover a possible gap in the legislation noted in Nanai. Cooper J said:14
There may be a gap in any event, as the legislation is silent as to what should happen if a person applies for an alcohol interlock licence but, for some reason, is unsuccessful. As the application has been made, s 65A(4) will not apply. Yet the Court will have made a mandatory order under s 65A(2)(b)(v) ending the person’s disqualification under s 65 (where there was a previous disqualification under that section).
13 In Shadlock v Police HC Nelson AP13/00, 19 February 2001 Doogue J held that s 81 does not apply to s 65. The Judge held that the words used s 81(1) make clear that the provision applies only to mandatory disqualification for fixed minimum periods, not an indefinite or indeterminate disqualification, with this conclusion supported by the history of the legislation. It may also be noted that all but two of the sections prescribing mandatory disqualification for a minimum fixed period expressly record that the imposition of the mandatory disqualification under the section is subject to s 81. The exceptions are ss 63 and 65B. Similarly, s 65 is not stated to be subject to s 81.
14 Nanai v Police, above n 11, at [24] fn 7. At [16]-[19] the Judge had noted two other aspects of s 65A which indicate there may be some gaps in the drafting of this legislation.
[25] Mr Blake submitted that this is unlikely to give rise to any practical difficulty because, as he put it in effect, an application for an alcohol interlock licence is bound to be granted. I am not sure that that will necessarily follow. There is an incentive to apply because otherwise, pursuant to subsection (4), the person will be unable lawfully to drive. And if an appropriate application is made in compliance with the regulations it may be that the grant of the licence will in most cases be a formality (unless there are impediments arising for reasons unrelated to s 65A). However, there are possible financial barriers to completing an application, or at least to maintaining the licence. There is an application fee of $200 and an installation fee of
$150 to $175. More significantly, there is a rental fee for the mandatory 12 month period of between $1,800 and $2,100. There may be other reasons, practical or otherwise, for an application to be unsuccessful or which result in an alcohol interlock licence not being maintained for the requisite 12 months.
[26] The possible gap was noted in Nanai in relation to indefinite disqualification that would otherwise have been imposed and continued to apply under s 65. However, paragraph (v) in s 65A(2)(b) can be interpreted in a way which covers the gap that would arise if an application is made but the application does not succeed. Paragraph (v) requires an order that “ends” the indefinite disqualification under s 65, but does not state when that disqualification ends. One straightforward way of interpreting the verb “ends” is that the disqualification ends upon the order being made. However, the operative part of the paragraph (v) provides that the Court is to “make an order that ends the person’s disqualification”. This might equally be interpreted to enable the Court to make an order of indefinite disqualification under s 65, and then make a further order pursuant to s 65A(2) that the order of indefinite disqualification will end if an application is made under subsection (2)(b)(i) and if that application is successful. This would mean that the indefinite disqualification, from the date of the order, would run in conjunction with the mandatory 3 month disqualification under subsection (2)(a). That would not appear to give rise to any conflict, in relation to disqualification, even if it is somewhat cumbersome.
[27] This interpretation will enable the gap to be covered in cases where s 65 applies because of the express provision in paragraph (v) of s 65A(2)(b). But it would not enable a gap to be covered if a person is disqualified under any of the
other sections which require disqualification in excess of 3 months. It is unnecessary in this case to consider whether the gap might be covered by other means. However, the apparent difficulties that do arise from the drafting of this legislation, including some other matters noted in Nanai v Police, may warrant legislative consideration. There is also a question as to whether s 65B applies to Mr Collier. Section 65B requires the Court to make an order for a zero alcohol licence that will have effect for 3 years in cases where a person is convicted of at least two relevant offences within 5 years. This provision came into effect with s 65A and its application is not entirely clear. However, as no order under s 65B was made in the District Court, neither party raised the issue on this appeal, and the application to Mr Collier is not self evident, it is not appropriate to make any determination on s 65B on this appeal.
[28] Because of these issues in relation to ss 65A and 65B I request that a copy of this judgment be forwarded to the New Zealand Transport Agency.
[29] For the reasons discussed I am satisfied that there was no jurisdiction for the Judge to impose disqualification for 1 year and 1 day, although the objective was entirely understandable. Given the Judge’s decision to grant the application under s 65A, the alternatives are to make an order in the clear terms of s 65A(2) without any order of indefinite disqualification under s 65, leaving the possible gap, or make an order in the terms of s 65A(2) with the alternative interpretation of sub-paragraph (v). The alternative interpretation does not appear to involve judicial legislation and is the cautious approach. It is also a result which would not appear to result in any injustice to the appellant.
[30] I will set out the terms of the order following from this conclusion but grant leave to both parties to submit alternatives in case there are problems in the draft. This is leave to make submissions on matters of drafting. It is not leave to reopen the substantive issues.
Result
[31] The appeal against conviction is dismissed.
[32] The appeal against the order disqualifying the appellant is allowed and that order is quashed.
[33] There are orders as follows:
(a) Subject to order (d) there is an order pursuant to s 65 of the Land Transport Act 1998 (the Act) disqualifying the appellant from holding or obtaining a driver licence until the Agency removes that disqualification under s 100 of the Act with this disqualification commencing from 9 July 2013.
(b)There is an order pursuant to s 65A(2)(a) of the Act disqualifying the appellant from holding any driver licence for a period of 3 months commencing on 9 July 2013.
(c) There is an order in terms of s 65A(2)(b) (i) to (iv) of the Act.
(d)Pursuant to s 65A(2)(b)(v) of the Act there is an order that order (a) above pursuant to s 65 of the Act ends upon the appellant’s obtaining an alcohol interlock licence under s 65A(2)(b) and order (c) above.
[34] The parties have leave to apply by memorandum to seek variation of the preceding orders if the orders as drafted give rise to difficulties of implementation.
Woodhouse J
5