D v Police HC Auckland CRI 2007-404-97
[2007] NZHC 846
•3 September 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-404-97
BETWEEN D
Appellant
AND NEW ZEALAND POLICE Respondent
Hearing: 3 September 2007
Appearances: Stephen Mitchell for Appellant
Samuel Wimsett for Respondent
Judgment: 3 September 2007
JUDGMENT OF HARRISON J
SOLICITORS
SJ Mitchell (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
D V POLICE HC AK CRI 2007-404-97 3 September 2007
Introduction
[1] Mr D appeals against his conviction in the District Court at Waitakere on one charge of driving while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath.
[2] Judge Lisa Tremewan delivered a comprehensive reserved decision answering each of the five discrete submissions made by Mr D ’s counsel, Mr Stephen Mitchell. Nevertheless, on appeal this afternoon, Mr Mitchell has sought to rehearse or repeat the same arguments, except for one, which were dismissed by Judge Tremewan. I regret to say that his submissions reveal a failure to evaluate the findings made in the District Court; it is as if they were never made.
[3] While, of course, Mr Mitchell is entitled to follow that course, his failure to discriminate suggests a misunderstanding of the appellate process. It was not until oral argument, and then only in an ad hoc fashion, that Mr Mitchell attempted to identify errors at first instance, primarily of a factual nature, which would provide a foundation for an appeal.
Facts
[4] The material facts are not in dispute. Mr D was found asleep in the driver’s seat of an Isuzu 4 x 4 vehicle on Amriens Road, Taupaki at 4 am on
8 December 2005. The vehicle was on the side of the road, according to the Judge
‘half in a ditch’. The headlights were still on and the keys remained in the ignition. When police officers arrived, including Constable Heem, ambulance personnel were there. Both the ambulance and police officers smelled alcohol on Mr D .
[5] Constable Heem required Mr D to undergo a breath screening test at the scene which he was unable to complete. She then took him to the Henderson Police Station. She informed him of his rights under the New Zealand Bill of Rights Act 1990. She completed a form of acknowledgement of his rights which he refused to sign. This stage completed at 5.27 am.
[6] Nevertheless, despite his refusal to sign the form, Mr D availed himself of his right to speak to a lawyer. This request was made at 5.33 am. Constable Heem arranged for him to consult with an on-call lawyer. Their discussion lasted for eight minutes until 5.41 am.
[7] Constable Heem required Mr D to undergo an evidential breath test without delay. After an initial failure, Mr D activated the machine. The result from the procedure was a reading of 1121 micrograms of alcohol per litre of breath recorded at 5.44 am.
[8] Next the officer filled out the ‘Advice of Positive Evidential Breath Test Form’ and showed it to Mr D . Among other things the form advised ‘if you wish to undergo a blood test you must request one within 10 minutes’. On request Mr D signed it, recording his acknowledgement. This step occurred at
5.53 am.
[9] Mr D signed a second form under the NZBORA at 6 am. Constable Heem inquired whether Mr D would like to speak with a lawyer again. He replied affirmatively. He conferred with a solicitor between 6.03 am and 6.07 am. Constable Heem then treated Mr D ’s 10 minute right of election to undergo a blood test as commencing from 6.09 am. The officer concluded the process at
6.22 am without a request from Mr D for a blood test. She advised
Mr D that he was under arrest for driving with an excess breath alcohol level. [10] Against that background Mr Mitchell raises four grounds of appeal.
Decision
[11] First, Mr Mitchell submits that there was no evidential foundation for the Judge’s finding of a prima facie case that Mr D was driving the vehicle with the recorded breath alcohol level at the relevant time.
[12] The offence is defined in this way: s 56(1) Land Transport act 1998:
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 breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.
[13] Mr Mitchell emphasises, as he did in the District Court, that there were no eye witnesses. However, that factor is neither decisive nor in this case relevant. The question is whether there was the necessary evidential foundation for the Judge’s conclusion that the police had established a case that Mr D had in fact driven the vehicle while the proportion of alcohol in his breath was at the requisite level. She relied on these factors:
(1) Mr D was the sole occupant of the vehicle;
(2) The vehicle was found at the side of the road, partly in a ditch, with the lights on and the keys in the ignition; and
(3) Mr D was in the driver’s seat without any evidence of the presence of another person in the vehicle.
[14] I am in no doubt whatsoever that these undisputed facts provided a sufficient evidential foundation for the Judge’s conclusion. She might have added the validating fact of Mr D ’s high breath alcohol count. Any other finding would have required the Judge to recognise a reasonable or realistic possibility, unsupported by evidence, that Mr D had by chance come upon an abandoned, stationary vehicle in darkness, climbed inside while the lights were on and the ignition running, and fallen asleep – all of this when the car was on a distinct angle.
[15] I reject Mr Mitchell’s submission that the Judge’s conclusion was guesswork. To the contrary, it was the inexorable result of the judicial process of drawing logical inferences from proven facts. It has been said in similar circumstances that a Judge is not required to surrender her common sense: Mehrtens v Police HC AK CRI
2005-404-051 18 July 2005. To that I would respectfully add that nor is she expected to take leave of her senses. This ground must fail.
[16] Second, Mr Mitchell submits there is no evidential nexus between Mr D ’s consumption of alcohol and the accident; that the Judge could not exclude the reasonable possibility that, assuming Mr D was the driver of the vehicle before it came to a stop in the ditch, he had consumed alcohol thereafter; and that Mr D ’s breath reading is neither referable nor linked to the driving. He raises the spectre that the vehicle may have been in the ditch for several hours, allowing reasonable time for Mr D to drink sufficient to elevate his breath reading above the statutory level.
[17] Again, a degree of common sense is required. Mr D ’s reading was nearly three times the statutory limit. Acceptance of Mr Mitchell’s argument demands recognition of the reasonable possibility that Mr D had consumed what could only be called a vast quantity of alcohol on his own after the vehicle stopped and while he was in an angular position. Mr Mitchell’s hypothesis only has to be raised to be dismissed. Additionally, of course, there was no evidence of the presence of empty bottles.
[18] The facts that the engine was still running and the lights were on support an inference that the vehicle had not stopped long before it was found. In my judgment the evidential nexus between the discovery of Mr D in the vehicle and the conduct of driving is overwhelming. This ground must also fail.
[19] Third, Mr Mitchell submits that the Judge failed to exclude a possible breach of what is known as the 10 minute rule – that is, the time within which a suspect must elect to require a blood test after advice of a positive evidential breath test: s 77(3). Mr Mitchell did not initially link his submission to its statutory foundation. However, he says the Judge erred in accepting that Constable Heem gave the requisite advice.
[20] The provision is as follows: s 77(3)(a)(i):
Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—
(a) the person who underwent the test is not advised by an enforcement officer, 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,—
(i) in the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be conclusive evidence to lead to that person's conviction for an offence against this Act; …
[21] It is common ground that the statute does not stipulate a starting time for the
10 minute period and that such a period necessarily excludes any time spent by the suspect in discussion with a lawyer. In this case Mr Mitchell submits that Mr D ‘would have been entitled to assume that in the time he spent talking to a lawyer he would have exhausted the 10 minute period’; that ‘any lay person would have been left with a false impression that by the end of the consultation the time would have been spent’; and that it was incumbent both in common sense and justice for the officer to spell out to Mr D that she was recommencing the 10 minute period following his consultation with a lawyer which concluded at 6.09 am.
[22] Yet again some factual context is necessary. Constable Heem gave Mr D advice of his entitlement to request a blood test within 10 minutes, if he wished to take that course, by reading the form to him at 5.53 am. She did not conclude the period until 6.22 am, some 29 minutes later. Within that time she allowed generously for Mr D ’s discussion with a lawyer. On a conservative calculation, he had about 25 minutes, excluding the discussion, within which to request a blood test.
[23] With respect to Mr Mitchell, his submission only has to be recited to spell its end. It depends for success upon speculation. It is without a scintilla of an evidential basis. It requires acceptance of an hypothesis about what was or may have been in Mr D ’s mind in circumstances where he did not give evidence.
[24] Mr D was, of course, entitled to remain silent at trial. But the price of exercising that right in circumstances which call for an explanation is that it cannot justify a speculative submission about whether or not Mr D was confused about his rights during the relevant 29 minute or net 25 minute period. The officer’s evidence that she read and Mr D signed the form, including the words ‘if you
wish to undergo a blood test you must request one in 10 minutes’ was unchallenged. The only available inference is that he understood what he heard and signed. In terms of s 77(3)(a)(i) Mr D failed to request a blood test within the 10 minute limit of being advised of his right to request one. This ground is also without merit.
[25] Fourth, and finally, Mr Mitchell repeats a submission made before Judge Tremewan that the officer began breath testing procedures before ambulance staff had concluded attendances upon Mr D . However, he was unable to identify any error in the Judge’s conclusion that there was no evidence to this effect and that Mr D was simply asleep and awoken by the ambulance and police officers when his uninjured state became apparent. Again this ground must fail.
Costs
[26] In the circumstances the appeal is dismissed. It was plainly devoid of any merit. On any objective evaluation all the grounds of appeal were hopeless. In the circumstances the police are entitled to an award of costs under the Costs in Criminal Cases Act 1967. I fix them at $500, and order Mr D to pay them within
28 days.
[27] I did not need to call on Mr Wimsett but I acknowledge the quality of his written synopsis.
Rhys Harrison J
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