D v Police HC Wellington CRI-2010-485-61

[2010] NZHC 2031

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-61

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 August 2010

Counsel:         K I Jefferies for Appellant

I R Murray for Respondent

Judgment:      27 August 2010 at 10.30am

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 10.30am on the 27th day of August 2010.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The appellant appeals against his conviction following a defended hearing for driving with excess breath alcohol.  The appeal is advanced on the grounds first that the appellant was not provided with an uninterrupted 10 minute period to decide whether to elect a blood test and second, that  the defended hearing was unfair because of non disclosure of the certificate of compliance in respect of the evidential

breath testing device.

D V NEW ZEALAND POLICE HC WN CRI-2010-485-61  27 August 2010

[2]      The appellant was stopped while driving on 4 October 2009 and failed a breath screening test.   He was requested to accompany the officer to the police station  where  an  evidential  breath  test  produced  a  result  of  708 micrograms  of alcohol per litre of breath.   The evidence of the officer was that he advised the appellant of the positive reading and then went through the form in giving the appellant advice that he was entitled to make a request within 10 minutes to elect to give blood.  The appellant refused to sign the form.  The officer’s evidence was that he commenced the 10 minute timing at 6.25am and concluded it at 6.40am.  Towards the beginning of that period, the officer took a photograph of the appellant holding a number  or  name  in  front  of  him  and  asked  him  for  his  driver’s  licence.    The appellant did not elect to have a blood test.

[3]      At the defended hearing before Judge Grace, the prosecutor did not produce the certificate of compliance in respect of the evidential breath testing requirement as required by s 75A of the Land Transport Act 1998.  After the prosecution case had closed, counsel for the appellant noted that failure.  The prosecutor then sought leave to admit the certificate.   The Judge admitted the certificate over the objection of counsel.

[4]      On the matter which is now raised as the first ground of appeal, namely the interruption of the 10 minute period, the Judge in convicting the appellant said:

[11]The second area relates to the interruption during the 10 minute period during which the photograph was taken.  Minor interruptions such as photographing suspects are not usually to be considered as impinging  on  the  10  minute  period.    That  has  been  decided  in Haslem v Auckland City council (unreported, M934/85, September

1985,  HC  Auckland,  Barker  J),  also  in  James  v  Auckland  City

Council (unreported, AP283/86, 1 April 1987, Barker J) where the District Court was upheld, finding that neither the appellant being photographed, nor him being asked by another traffic officer if he had money for his family taxi fare home constituted an extraneous distraction.   The prosecution have also referred to the decision of Butterworth v Police (2000) 18 CRNZ 122 where a very similar result was achieved.

[12]In this situation, the defendant has elected, as his right, not to give evidence, but, of course, all the officer has been asked, in my view, is did he take a photograph of the defendant, which he says he did, and did he ask for details of the defendant’s driver’s licence, which he did.  It is a question of fact in each particular case, and there is no evidence that those were lengthy events, that the photographing went

on for a lengthy period of time or that there was a lengthy discussion over the licence. The officer says it all took a couple of minutes, and notwithstanding that, the time period for the 10 minutes actually went on for a total of 15 minutes.  So, in my view, there has been compliance.   If I am wrong in that, the reasonable compliance provisions of the Act apply to a situation such as this.

[5]      Mr Jefferies for the appellant notes the right conferred by s 70A of the Act to be given a 10 minute period in which to elect to have a blood test taken.  He submits that the interruption in the 10 minutes was more than trifling and that in that period the appellant was photographed and required to produce licence details.  He submits that this is a substantial incursion that would have eroded significantly the 10 minute period.

[6]      I am satisfied that this ground of appeal must fail.  The 10 minute period is to elapse without undue interruption.   Whether the circumstances disclose undue interruption is a question of fact and degree.[1]   That is a question for the trial Judge. The Judge’s finding, on the evidence, was that the taking of the photograph and asking for details of the licence took a couple of minutes out of a period which actually went on for a total for 15 minutes.   That was a finding of fact which the

Judge was entitled to make.  This Court should not interfere with the factual finding that there has been compliance.

[1] Butterworth v Police (2000) 18 CRNZ 122

[7]      As to the production of the certificate of compliance, Mr Jefferies submits that the way the certificate was put into evidence fell well short of the standard required to ensure a fair hearing.  He submits that it was not previously disclosed to the defence and that the permission to produce the certificate of compliance was given over the objection of the defence.  He submits that as a minimum to ensure a fair hearing and to satisfy the Bill of Rights requirement the certificate at least should have been produced via a police witness from the witness box and under oath where there would be an opportunity for the defence to cross-examine in respect of the certificate.  He submits that the method of producing the certificate is a too dramatic departure from fundamental hearing rules and requirements as to fairness and as such

cannot be saved by Aylwin v Police.[2]

[2] Aylwin v Police [2009] 2 NZLR 1

[8]      I am satisfied that this ground of appeal must also fail.  The requirement of s 75A is that the certificate of compliance must be produced to the Court.  There is no requirement that a witness who is able to depose to the matters certified be called to produce the certificate.  Such a requirement would frustrate the essential purpose of the certification process, which is to avoid the need for such persons to give evidence.   The production of the certificate in the way it was did not deprive the appellant  of  an  opportunity  to  cross-examine  as  to  the  matters  certified.    The statutory scheme does not envisage that such an opportunity will generally be available.

[9]      As to whether the certification should have been admitted after the close of the case the Judge said:

Over  the  objection  of  Mr Jefferies,  I  have  admitted  that  certificate  of compliance.  I regard the fact that the Police relied on the decision of Aylwin v Police as significant.  I do not think it appropriate to allow a technicality such as that to defeat the course of justice.  In those circumstances I have admitted the evidence and I record Mr Jefferies’ objection.

[10]     I consider that that course was fully open to the Judge.   It appropriately reflected the approach directed by the Supreme Court in Aylwin v Police, that the Court must give full effect to the clear Parliamentary indication that alcohol impaired drivers should not escape responsibility through technical and unmeritorious defences.

[11]     For these reasons the appeal is dismissed.

Solicitors:           Jefferies & Raizis, Wellington for Appellant

Crown Solicitor, Wellington for Respondent

“A D MacKenzie J”