Cullen v Police

[2014] NZHC 1252

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000320 [2014] NZHC 1252

BETWEEN	RAYMOND LESLIE CULLEN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 November 2013
Appearances:	S C Blake for Appellant K C Francis for Respondent
Judgment:	5 June 2014

JUDGMENT OF KEANE J

This judgment was delivered by me on 5 June 2014 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Blake Law, Auckland

Meredith Connell, Auckland

CULLEN v POLICE [2014] NZHC 1252 [5 June 2014]

[1]      On 30 October 2013 Raymond Cullen was  convicted of driving with an excess breath alcohol level on 29 March 2012.   His level was 578 micrograms of alcohol per  litre of breath.  His offence was in the aggravated category.  He was sentenced to 80 hours community work and six months community detention and disqualified indefinitely. He appeals his conviction and sentence.

[2]      On  his  appeal  against  conviction,  Mr  Cullen  contends,  the  Judge  who convicted him, Judge C S Blackie, could not on the evidence conclude that, after the evidential breath test proved positive, the officer ‘without delay’ advised him of his right to elect to have a blood sample taken for analysis, or that he advised him of that right fully.  He also contends that the officer failed at that point to re-advise him of his NZBORA rights.

[3]      As to his sentence, Mr Cullen contends, the sentencing Judge, Judge Andrée

Wiltens,  could not impose on him a zero alcohol licence.  His offence date was 28

July 2012.  The power to impose a zero alcohol licence did not come into force until

10 September 2012.

Prosecution evidence

[4]      Sergeant Painter, the sole witness for the prosecution, said that at 12.57 am on 29 July 2012, as he was entering Great South Road, Manurewa, he saw a car travelling past at a slightly excessive speed.  He signalled it to stop and he had the driver, Mr Cullen, undergo a breath screening test the result of which was ‘failed general over 400’.

[5]      Sergeant Painter said that he showed Mr Cullen the result and required him to accompany him to a nearby ‘booze’ bus for an evidential breath test, blood test or both.  As he was then detaining Mr Cullen, Sergeant Painter said, he gave him his NZBORA rights.

[6]      At the bus, Sergeant Painter said, he began to complete the standard police breath/blood alcohol procedure sheet.  He recorded that at the roadside Mr Cullen had told him that he had been drinking at a sports club and when he had his last

drink.   Sergeant Painter then repeated to Mr Cullen his NZBORA rights and Mr

Cullen agreed that he had received those rights by signing the form of advice.

[7]      Sergeant Painter said that he had Mr Cullen undergo an evidential breath test, using an approved device into which   Mr Cullen blew twice.   The lower of Mr Cullen’s two readings was 578 micrograms of alcohol per litre of breath; and when the device printed three copies of the result, he gave one to Mr Cullen.

[8]      Sergeant Painter said that he next showed to Mr Cullen, and read out to him, the standard police form ‘Advice of Positive Evidential Breath Test’, the effect of which was that Mr Cullen had 10 minutes within which to decide to accept the breath test result, or to elect to have a blood sample taken.  He asked Mr Cullen to sign this form also, to confirm he understood that advice. Mr Cullen did so.

[9]      Sergeant Painter said that he started the 10 minute period at 1.32 am.  But because Mr Cullen asked a lot of questions, he delayed the start until 1.34 am.  He concluded the  10  minute period at  1.46  am,  allowing Mr  Cullen an  extra two minutes.  Within those 12 minutes, he said, Mr Cullen did not elect to have a blood sample taken and so he issued Mr Cullen with a summons for driving with an excess breath alcohol level.

[10]     At  the end  of  his  evidence in  chief Sergeant  Painter produced  only the certificate of compliance for the evidential breath-testing device.  He did not, as is usual, produce the police breath/blood procedure sheet he had completed, or the evidential  breath test result print out, or the advice of a positive evidential breath test, which Mr Cullen had signed.

[11]      Mr Cullen’s counsel, Mr Blake, only cross examined Sergeant Painter about two notices he had served on Mr Cullen, each timed at 1 am, a note impounding the car Mr Cullen was driving, and a notice suspending Mr Cullen’s licence.  He asked Sergeant Painter on what ground he was able to issue those notices before Mr Cullen had completed a positive evidential breath test.   Sergeant Painter said he had completed and issued both notices after testing, but deemed them to have been issued at 1 am.

[12]    Mr Blake had Sergeant Painter produce the impound notice but not the suspension notice.  That completed Sergeant Painter’s evidence and the prosecution case. Mr Blake then submitted that Mr Cullen had no case to answer.

The critical evidence

[13]     Mr Blake’s focus, when he made that submission, was on the following

passage of Sergeant Painter’s evidence in chief:

Q:       Then did you conduct the evidential breath test procedures? A:     I did.

Q:       Take us through that, what was the result of that test?

A:       He blew twice and the machine, to be fair I assume, gives the lowest of two readings and his result was 578 micrograms of alcohol per litre of breath.

Q:       And what device did you use?

A:       I used a Draeger 9510NZ machine, serial number 5001. Q: And does that spit out the result?

A:       It prints out three copies of the result, yeah. Q:     And what did you do with that result?

A:       I gave – well I put one into this sheet [the Breath and Blood Alcohol

Procedure Sheet] and I would have given one to the defendant.

Q:       Did you give one to the defendant? A:     I believe I did, yes.

Q:       Did you show him what the result was? A: Yes.

Q:       Then after you showed him the result what you then do?

A:       Once he’s been given the result and shown it to him I then read another passage which is called ‘advice of positive evidential breath test’ at which time I – it basically states that he has 10 minutes to consider whether he wants to take a blood test or whether he wants to stay with the breath test that he’s just had and then at the end of that he, he has signed to say that he understood what I’ve told him.

[14]     In that passage of evidence, Mr Blake contended then and contends on this appeal, Sergeant Painter left out what was most critical; the precise times at which the events in the sequence he described happened.  Without those times, Mr Blake submitted, this evidence was then, and remains now, devoid of probative effect.

No case to answer submissions

[15]     In then contending that there was no case to answer, Mr Blake submitted that to prove that, after the positive evidential breath test, Sergeant Painter had complied with his duty under s 77(3)(a) and conveyed ‘without delay’ to Mr Cullen his right to have a blood specimen taken, the prosecution had to demonstrate by precise times an uninterrupted sequence. It had not done so.

[16]     In immediate response the prosecutor accepted that Sergeant Painter had not been specific, or produced the forms in which those times were recorded.  But, she submitted, Sergeant Painter had said that, when the device printed out the result, he gave one copy to Mr Cullen.  Then, he said, he advised Mr Cullen of his right to elect to have blood taken, as set out in the ‘advice of positive evidential breath test form’.  On his unchallenged evidence there was no delay.

[17]    In submissions in writing the following day Mr Blake went further.   He contended that in failing to prove that Mr Cullen had been advised ‘without delay’ to have a blood specimen taken, the prosecution had failed to prove beyond reasonable doubt  an  element  of  the  offence;  and  the  evidential  breath  test  result  was inadmissible.

[18]     In reply, the prosecutor contended, Sergeant Painter’s compliance with that duty was not an element of the offence.  It was a matter of procedure, to be proved to the balance of probabilities.   To do that the prosecution did not have to lead the precise times.  All it had to do was to lead evidence plainly inconsistent with any delay.

Decision under appeal

[19]     In his decision the Judge began by contrasting those competing submissions, beginning with Mr Blake’s submission that, on the evidence, the prosecution had not proved that Sergeant Painter had complied with his duty to advise Mr Cullen of his right ‘without delay’, even reasonably under s 64(2); and that the prosecution could not rely on the absence of challenge by the defence, or resort to s 30 of the Evidence Act 2006.

[20]     The prosecution, the Judge said by way of contrast, contended that Sergeant Painter’s evidence did demonstrate that he had complied reasonably with his duty under s 64(2).    On  his  evidence there could be  no  reasonable doubt  about the accuracy of the evidential breath test result; or any question of Mr Cullen having suffered any injustice or unfairness.1

[21]     The Judge accepted the prosecution’s submission that it need only prove to the balance of probabilities that Sergeant Painter had complied with his duty under s 77(3)(a); and he remarked that it could easily have done so by having Sergeant Painter produce the standard police breath/blood alcohol procedure sheet he had completed in which the times were evidently recorded.

[22]     On the cases to which he had been referred, the Judge said, the ‘without delay’ duty s 77(3)(a) imposed did not compel a ‘race against time’.   Nor did s

77(3)(a) itself require evidence of the precise relative times. All that it required was cogent evidence inconsistent with delay.  The Judge rejected Mr Cullen’s defence as technical and unmeritorious.

Status of requirement

[23]     Mr Cullen’s offence, under s 56(1) of the Land Transport Act 1998, lay in driving while the proportion of alcohol in his breath ‘as ascertained by an evidential breath test … under s 69, exceeds 400 micrograms of alcohol per litre of breath’.

[24]     In  Aylwin  v  Police,2   to  which  the  Judge  referred,  the  Supreme  Court confirmed  that  to  prove  an  offence  against  s  56(1)  the  prosecution  need  only establish:

(a)       The fact that a breath-screening test was conducted; (b)     The fact that an evidential breath test was conducted; (c)         The results of these tests; and

(d)       That (the motorist) was advised of his right to have a blood test.

[25]     In that analysis, the Supreme Court did not say that they are each elements of the offence to be proved beyond reasonable doubt.  Nor did it say that some are procedural and need only be proved to the balance of probabilities.  What the Supreme Court did say is that those four elements are both necessary, and sufficient, to establish the offence.

[26]     In identifying the fourth matter, the Supreme Court did not need to describe it in any detail because it was not in issue on the appeal.  But plainly as one of the four matters essential to a conviction it is of more than merely procedural significance; and that has to be so because s 77(3)(a), from which it derives, renders a positive evidential breath test inadmissible unless the officer advises the motorist:

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.

[27]     Section 64(2) spares the prosecution having to prove that the officer strictly complied with that duty, as long as he or she complied with it reasonably.  Section

64(2) says:

It is no defence to proceedings for an offence that a … section ( ) … 77 has not  been  strictly  complied  with  or  has  not  been  complied  with  at  all, provided that there has been reasonable compliance …

[28]     But what is ‘reasonable’ under s 64(2) must be set against the purpose of s 77(3)(a)(i), which is to ensure that the motorist is informed ‘without delay’ of his or her ultimate safeguard.  As the Supreme Court recognised in Aylwin, a motorist’s

right to have a blood sample taken, and thus to displace the positive breath test with the resulting analysis of that specimen, protects the motorist ‘against the consequences of an error in a breath screening test or an evidential breath test’.3

[29]     Finally, as the Supreme Court later said in Birchler v NZ Police,4 the statutory breath/blood alcohol testing process  contains a series of ‘preconditions’.  If they are not complied with strictly, or reasonably in the extended sense that s 64(2) speaks of, there may be ‘no lawful basis’ for the process continuing, as in that case; or, as here, for the positive breath test result becoming admissible.  Section 30 of the Evidence Act 2006 does not apply.

Relevant cases

[30]     The decisions of this Court relating to the interplay of ss 77(3)(a) and 64(2) are consistently confined in scope and in Ariki v New Zealand Police,5 having reviewed the preceding cases on this issue, I accepted and adopted Fogarty J’s analysis in Kavanagh v Police.6

[31]     In that case Fogarty J held that an unexplained nine minute delay had to be fatal.  The motorist was subject to a  mandatory process, one purpose or effect of which was to elicit evidence to his or her prejudice.  The motorist ought not to be detained longer than was essential.   The possibility that the motorist was unprejudiced could not be a complete answer.  That would be to substitute a without prejudice test for the reasonable compliance test. Prejudice was simply one factor.

[32]     In Ariki itself I held that an 11 minute unexplained delay was fatal and that the appellant was not under any duty to put delay in issue or cross examine on it.  It was for the prosecution to prove affirmatively that the officer had strictly complied with s 77(3)(a) or that, despite any delay, he had complied with it reasonably under

s 64(2).  If the prosecution did not do so the appellant was entitled to the benefit.

3 At [11].

4      Birchler v NZ Police [2010] NZSC 109, [2011] 1 NZLR 169 at [17].

5      Ariki v New Zealand Police HC Auckland CRI-2007-404-174, 6 November 2007.

6      Kavanagh v Police HC Christchurch CRI-2005-409-000231, 27 February 2006.

[33]     In Wheeler v New Zealand Police,7 where the time in issue could have been seven or 17 minutes, Duffy J held that the prosecution had to account for the discrepancy and explain any delay.   In the absence of evidence she was left with equal competing inferences she could not reconcile.  She also held that the defence was under no duty to put delay in issue or cross examine on it.  In that case, there was no evidence to explain such delay as there was.

[34]     In Blair v Police8 Allan J held that an 11 minute delay was not fatal because it was explained at least as to half by the appellant’s apparently peremptory demand that he be able to speak to a lawyer a second time; a call from which he clearly derived benefit.  That, Allan J said, distinguished that case from any where the delay was not satisfactorily explained at all.9

[35]     The first of the two other cases in point is Leota v New Zealand Police.10

There it was not in issue that, if seven minutes had elapsed between the time when the evidential breath test procedure began and the appellant was advised of his right to elect a blood sample, there was no delay.  The issue was whether there might have been a 19 minute delay able to be reasonably explained.

[36]     Ellis J accepted that there was no delay at all.  But she said, if there had been a 19 minute delay, and even if it were not fully explained, it might still be excusable under s 64(2).   That delay could not compromise the accuracy of the evidential breath test result and any prejudice to the appellant was arguable.  She gave priority to the Supreme Court’s injunction in Alwyn to give short shrift to technical and unmeritorious defences; the injunction the Judge took literally in this case.

[37]     Ellis J’s detailed analysis was not to the forefront of the submissions made on this appeal, and because it was not essential to her decision I do not have to express any concluded view about it.   In Talwar v New Zealand Police, the final case to which I need to refer,  Brewer J said, and I agree that,11 ‘the reasonable compliance

shelter afforded by s 64(2) cannot be entered without an explanation which shows

7      Wheeler v New Zealand Police HC Auckland CRI-2009-404-000150, 31 August 2009.

8      Blair v Police [2012] NZHC 2649.

9 At [34].

10     Leota v New Zealand Police HC Auckland CRI-2009-404-373, 4 March 2010.

11     Talwar v New Zealand Police [2013] NZHC 315, [2013] NZAR 291 at [29].

the delay to be reasonable.   There is a positive obligation on the prosecution to

provide that explanation’.  In that case it had not done so.

Conclusions

[38]     In   this  case,  I  accept,  Sergeant  Painter  might  have  given  evidence demonstrating that he had complied with his s 77(3)(a) duty, certainly reasonably. The problem is that he did not.  He said he apprehended Mr Cullen at 12.57 am and at 1.32 am, then finally two minutes later, allowed him 12 minutes within which to consider whether to elect to have a blood sample taken.  He did not give the times at which he took any intermediate step.

[39]    The fact that just over half an hour elapsed between the time when he apprehended Mr Cullen, and allowed him to decide whether to elect to have a blood sample taken, might suggest the intermediate steps were taken without delay, including that under s 77(3)(a).   Sergeant Painter’s evidence, general as it was, is consistent with that inference.  But that cannot suffice to discharge the onus the prosecution carried, even if only to the balance of probabilities, to prove that the s

77(3)(a) precondition to admissibility was satisfied.

[40]     There  may  well  be  power  to  remit  the  case  to  the  District  Court  for rehearing.12   But the evidence required to prove a s 56 offence is very well settled. Officers can and must equip themselves to give that evidence by keeping and producing the standard record of what they do, and by completing and producing the documents essential to  the process, all  of  which  are explicit as  to  time.   That evidence could have been given in this case. Inexplicably it was not.

[41]     As I said in Ariki, and as other Judges have said in the cases to which I have referred, when a prosecution falls short as this one did, it is undesirable, as a matter of policy, to allow the prosecution a second chance by way of rehearing.  To do so would be to encourage loose police work and loose prosecuting, to the prejudice of

those charged with these offences.

12     Ludemann v R [2013] NZCA 531.

[42]     I grant Mr Cullen’s appeal and quash his conviction and sentence.  I do not, as a result, have to resolve his appeal against sentence as it relates to the zero alcohol licence imposed on him, and it is undesirable that I express any opinion about it.  It is a complex ground, which was only raised in outline. It is better reserved for a case

where it is fully argued.

P.J. Keane J