D v Police HC Hamilton CRI-2006-419-52
[2006] NZHC 615
•1 June 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2006-419-52
D
Appellant
v
NZ POLICE
Respondent
Hearing: 30 May 2006
(Heard at Hamilton)
Appearances: SJ D for the Appellant
C Shannon for Respondent
Judgment: 1 June 2006
JUDGMENT OF ASHER J
Solicitors:
SJ D , 6 Daphne Street Gisborne
Almao Douch, PO Box 19-173 Hamilton
D V NZ POLICE HC HAM CRI-2006-419-52 1 June 2006
[1] The appellant, D , appeals against his conviction in the District Court at Hamilton of a charge of driving while the proportion of alcohol on his breath exceeded the permitted limit. The permitted proportion is
400 micrograms of alcohol per litre of breath. Mr D ’s proportion was 597 micrograms. H was fined $550.00, ordered to pay Court costs of $130.00, and disqualified from driving for six months. There is no appeal against sentence.
The decision
[2] An oral judgment was given on 10 March 2006. Nothing turned on the facts as they related to the driving. Rather, the judge in the District Court faced a number of submissions which he recorded were all resolved save for one matter. That matter was whether the charge had not been proven because the Constable, in referring to the “evidential breath testing device”, had wrongly referred to the device as being one that was approved by the “Commissioner of Police” rather than by the “Minister of Police”.
[3] The judge relied on two cases: Police v Bruce [2005] DCR 751 and Levis v Police (High Court Hamilton, CRI-2004-419-45, 28 June 2004, Ronald Young J). He concluded that he was satisfied that the correct device was being referred to by the Constable and had been used, despite an error in referring to the Commissioner rather than the Minister. He was in no doubt that the Constable had made a simple error or mistake on the point.
Submissions for the appellant
[4] Mr D challenged the decision, ultimately on two issues (despite some further references in the points on appeal). First, he submitted that Levis v Police was distinguishable because rather than the Police Officer omitting to identify the Notice that was approved by the Minister, the Officer had in this case made a positive error in referring to the Commissioner. He submitted there was a reasonable possibility that in fact the wrong device had been used.
[5] He also submitted that, although this was not a point raised before the District Court judge, the full ten-minute period for consideration of the option of a blood test under s 77 of the Land Transport Act 1998 was not provided by the Police because of two extraneous paragraphs in the written advice provided under s 77, which would have occupied the appellant in reading for part of the ten-minute period.
Decision
First point of appeal – incorrect reference to Commissioner
[6] Section 56(1) of the Land Transport Act 1998 provides that a person commits an offence if the person drives or attempts to drive a motor vehicle on a road with an excessive portion of alcohol:
… as ascertained by an evidential breath test subsequently undergone by the person under section 69 …
[7] Under s 2 of the Land Transport Act 1998 “evidential breath test” is defined as meaning:
… a test carried out by means of an evidential breath-testing device in a manner prescribed in respect of that device by the Minister of Police, by notice in the “Gazette”. [Emphasis added]
[8] At no stage in his evidence did the Police Officer refer to an evidential breath-testing device approved by the “Minister of Police”. Rather, he referred to a device approved by “the Commissioner” throughout. He did this on a number of occasions in his evidence, presumably referring to the Commissioner of Police. This is best seen in the following portion of his evidence-in-chief:
Q. Now you also said earlier that you carried out that test in accordance with the notice.
A. Yes.
Q. Tell us the full name of that notice.
A. The Transport Breath Test Notices 1989. Now the breath notice is number 2.
Q. Sorry (inaudible) altogether on one sentence.
A. I’m sorry.
Q. There’s no hurry. A. Transport.
Q. Tell us the full name of the notice?
A. Transport Breath Test Notices No. 2 1989.
Q. Now you said that the Seres Efflometre 679 ENZ was also an approved device?
A. Yes.
Q. Who approved that device? A. The Commissioner also.
Q. And what’s the name of the notice used to carry out that test? A. That’s also the Transport Breath Test Notices No. 2 1989.
The Commissioner of Police in fact has no role in relation to approving evidential breath testing devices. It was a matter initially for the Ministry of Transport, and latterly for the Minister of Police.
[9] I accept Mr D ’s submission that the “reasonable compliance” provisions of s 64 of the Land Transport Act 1998 do not apply, as these relate to procedural and evidential requirements, and not a basic issue such as proof of use of the correct device. Mr Shannon for the Crown does not argue to the contrary. The real issue is whether the error made by the Police Officer means that the Police failed to prove beyond reasonable doubt that the correct device had been used. Mr D submitted that it was reasonably possible that the Constable was referring to a completely different Notice and therefore a different sort of device to that which is referred to in the Land Transport Act, despite the name given.
[10] In Levis v Police it was held that all that was necessary was to identify the device used by name as an approved device. Further information as to the relevant Transport Breath Test Notice and approval by the Minister was “superfluous”: para [17]. I accept Mr D ’s submission that this case is distinguishable because there was only an omission to identify the device as fully as might have been possible in that case, rather than an actual error in part of the identification of the
device as it is alleged occurred here. However, the case is of some significance in that it does indicate that a relatively robust approach is taken to proving the device used. The key issue is the correct identification of the device.
[11] Mr Shannon for the Crown also relied on Auckland City Council v Scale (1985) 1 CRNZ 544, where it was held that the omission of a relevant item of detail which was not pursued by further questioning was not fatal to the Prosecution case. It was held that any omission from the description of a breath testing device that was unchallenged could be regarded as accepted by the Defence as being inadvertent and unimportant, and that a Court could conclude that there was proper compliance.
[12] Again, I accept Mr D ’s submission that Scale is not exactly on point, because it deals with an omission rather than a mis-description.
[13] The real question is whether there was sufficient evidence before the District Court judge, taking into account the erroneous reference to “the Commissioner”, for him to be satisfied beyond reasonable doubt that the correct evidential breath testing device was used.
[14] In the extract of evidence that I have quoted, the Police Officer specifically referred to the correct breath Notice (the Transport Breath Test Notices No. 2 1989) and the correct device (the Seres Efflometre 679 ENZ). Rule 2(1) of the relevant Notice, the Transport (Breath Test) Notice (No. 2) 1989, lists the Seres Efflometre model 679 ENZ and states that this includes any device having the tradename “Seres”. Rule 7 provides that this device so defined is approved for evidential breath tests. Mr D has not made anything of the reference in the transcript to an “Efflometre” rather than a “Ethylometre”, and I do not consider this error to be significant. It may indeed be a transcript error.
[15] It is, in my view, impossible for there to be another device which has the same “Seres” name and is approved by the same 1989 Notice, but which is actually different and is approved by the Commissioner of Police rather than the Minister. There is no reasonable possibility of the existence of a different sort of device of the same name. Despite Mr D ’s valiant attempts to persuade me otherwise, the
proposition is entirely far fetched and must be rejected. Such a “reasonable possibility” would mean that there is a different, incorrectly approved, device with the same “Seres” name and the same “679” number in existence. As a matter of commonsense that is highly unlikely.
[16] Rather, the only reasonable conclusion to be reached on any consideration of the evidence is that the Constable made a relatively minor and understandable mistake, in referring to the Commissioner instead of the Minister. Both are persons of authority who undoubtedly issue documents that Constables have to obey. He got the name wrong.
[17] This indeed was the conclusion reached by the District Court judge. He found the Constable’s reference to be a “simple mistake or error” rather than a reference to some entirely different Notice of which he was unaware and which had not been mentioned or raised in evidence.
[18] It must be said that if the appellant had wished to pursue as a reasonable possibility the fact that there might be another device which had the same name and which was referred to in the same Notice, but which was in fact a different device which was not correctly approved, then he could have pursued that by way of cross- examination. He did not do so, and cannot now seek to put forward a highly unlikely hypothesis, which could have been proven if it were to be seriously pursued by the asking of a few simple questions.
[19] I do not consider that there has been any error by the District Court judge in relation to this point.
Second point of appeal – the ten-minute period
[20] In relation to the second point of appeal Mr D relies on s 77(3) which provides that the result of a positive evidential breath test is not admissible if the person was not given ten minutes within which to request a drug test. He submitted that the form for giving advice of a positive evidential breath test contained two clauses that contained information that did not have to be there under s 77, and
which, because they would take a driver extra time to read, would result in there not being a clear ten minutes available for consideration of the blood test option.
[21] The two extra clauses occupy nine lines of print. They are not strictly required in terms of s 77, but are important and useful advice to a driver that if the driver undergoes a blood test the evidential breath cannot be used by the Police, but the blood test may be, and that if a blood test is not chosen it is “no defence” that there “was or may have been” an error in the result of the breath screening test or evidential breath test.
[22] The facts of this case do not support a submission that a reading of the form resulted in there being anything less than a full ten minutes or more for the compulsory consideration of the blood test option in terms of s 77. This is because the transcript of evidence discloses that the appellant read the positive evidential breath test form and signed it before the ten-minute period started to run. The Officer specifically stated that he started the ten minute period after the reading and signing had been completed. He further advised the District Court in his evidence that rather than there being a ten-minute period allowed for, in fact 12 minutes was allowed to pass by before the appellant was required to advise whether he wished to have a blood test.
[23] Thus it was established as a matter of fact that 12 clear minutes, excluding reading time, were available to the appellant, and this point fails.
[24] I should, however, observe that I do not consider that the submission would have had merit in this case, even if the form had to be read within the ten-minute period. It is clear that minor interruptions in the ten-minute period are not considered to be a sufficient distraction from the “sanctity” of the ten minutes. While a driver is entitled to have ten minutes without undue pressure (Lawrence v Ministry of Transport [1982] 1 NZLR 219, 221), interruptions such as a driver being photographed, or being asked if he had money for his family’s taxi fare, are not sufficient: Haslam v Auckland City Council (High Court Auckland M 934/85,
20 September 1985, Barker J), James v Auckland City Council (High Court
Auckland AP 283/86, 1 April 1987, Barker J). The addition of nine lines to the form cannot be seen as significant in those circumstances.
[25] The extent of the interruption of the ten-minute period that any reading would involve would always be a matter of fact and degree. There can be no rules. However, generally there would need to be some satisfactory evidence that the extent of the reading constituted a more than minor interruption of the process of consideration that is required by s 77(3). There is, of course, given that the reading was done outside a period which was in fact 12 minutes, no such evidence here.
[26] The appellant therefore fails on the second point of appeal.
Further point raised
[27] In the course of submissions I raised with counsel the reference in s 2 to the evidential breath-testing device being a device of the kind approved by “the Minister of Police”. In fact the Minister of Police has not issued any Gazette Notices contemplated by the definitions. The relevant 1989 Notice relied on by the Crown was issued by the Minister of Transport.
[28] After consideration Mr Shannon for the Crown referred to s 218(2) which specifically provides that the Transport (Breath Tests) Notice (No. 2) 1989 (SR1989/189) is “to be treated as (a Notice) under section 2”.
[29] Section 219 provided that s 218(2) expired with the close of 1 July 2005, but that has been amended and it is now stated to expire with the close of 1 July 2009.
[30] Mr D argued that s 218(2) was not enough to remedy the problem, because s 218(2) does not state that the definition of evidential breath test includes the 1989 Notice. He also submitted that it goes too far to interpret s 218 as implicitly amending the reference to the Minister of Police to a reference to the Minister of Transport.
[31] While s 218 only states that the 1989 Notice is to be treated as a Notice under s 2 of the Land Transport Act 1998, this must have the effect of including with
Notices falling under the definition of “evidential breath-testing device”, the 1989
Notice. The reference to “the Minister of Police” in s 2 must be treated as relating to a Notice issued under the 1998 Act different to the 1989 Notice. The 1989 Notice was issued by the Minister, and it would defeat the obvious intention to continue the
1989 Notice as a valid Notice, to impose a requirement that it must have been approved by a Minister who had not approved it. That would defeat the obvious purpose of s 218. I regard the phrase “evidential breath-testing device” as including a device of the kind approved for the purpose of evidential breath tests by the Minister of Transport by the 1989 Notice.
[32] This was the approach of Ellis J in Larsen v NZ Police (High Court
Wellington AP 269/99, 29 October 1999). It was stated at para 12:
In my view the meaning of s 218(2) is that the 1989 Notice is to be treated as a notice as defined in s 2, that is a notice approving the devices in question and prescribing the manner of conducting the tests. The words “treated as under section 2” may be open to different interpretations. I prefer the one that gives effect to the obvious legislative intention to continue the legal life of the 1989 Notice. The 1989 Notice made by the Minister of Transport is to be treated as the same as one made by the Minister of Police. On that basis, tests conducted under sections 68 and 69 pursuant to the 1989 Notice are in compliance with those sections, and so construct the elements of the offence charged.
[33] The purpose of s 218(1) and (2) appears to be to have been to provide for certain specific regulations and notices enacted under the previous Transport Act
1962 to apply to the procedures of the new Act, when specified. To treat this Notice as invalid because it was issued by the Minister of Transport rather than the Minister of Police would be to defeat that purpose.
Conclusion
[34] The appeal is dismissed.
……………………………… Asher J
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