Dibben v New Zealand Police HC Gisborne Ap14/01

[2002] NZHC 154

IN THE HIGH COURT OF NEW ZEALAND
GISBORNE REGISTRY AP14/01

BETWEEN KENNETH CONRAD DIBBEN
Appellant

AND NEW ZEALAND POLICE
Respondent

Hearing: 27 February 2002

Counsel: D D Rishworth for Appellant
A M Simperingham for Crown

Judgment: 1 March 2002

RESERVED JUDGMENT OF PATERSON J

Solicitors:
Rishworth Wall & Mathieson, P O Box 55, Gisborne
Woodward Iles & Co, P O Box 347, Gisborne

[1] This is an appeal from a judgment of a District Court Judge given on 8 October 2001 convicting Mr Dibben of the offence of driving a motor vehicle with a proportion of alcohol in his breath exceeding 400 micrograms of alcohol per litre of breath. An evidential breath test (EBT) showed that Mr Dibben had 607 micrograms of alcohol at the relevant time. The point on appeal was that the police did not establish beyond reasonable doubt that the EBT was administered in accordance with the Transport Breath Test Notice No. 2 1989. This point has been conceded by Crown counsel who has requested that the appeal be allowed and the matter remitted back to the District Court for rehearing. A rehearing is opposed by Mr Dibben’s counsel.

Background

[2] The evidence of the police officer who prosecuted was that the Intoxyliser was:

“. . . assembled in accordance with the Transport Breath Notice No.1989, the defendant was required to undergo the test and a conclusive result of 607 micrograms of alcohol per litre of breath was obtained.”

[3] His Honour concluded that the only sensible inference which could be drawn from this statement of the police officer was that it constituted adequate proof of the administration of the test in accordance with the Transport Breath Notice. He held that while there may be some quibble with the fullness of the ritual recital used, the quibble was not sufficient to create any reasonable doubt concerning the administration of the process in question in accordance with the statutory notice in question. No issue was raised in cross-examination as to the manner in which the test was administered.

[4] In his sentencing notes the Judge noted that this was a routine drunken driving charge and that Mr Dibben did not have any significant recent history and co-operated in all respects.

[5] Mr Dibben’s co-operation, which is a point relied upon by Mr Rishworth in submitting that the Court should not exercise its discretion and remit, was noted by the policeman in evidence. When stopped at a road-check Mr Dibben acknowledged that he had recently consumed a few beers. Consequently he was required to undergo without delay a breath screening test. The Alcotech AR 1005 was used for this test and Mr Dibben failed indicating that he had in excess of 400 micrograms of alcohol per litre of breath. The policeman asked Mr Dibben to go to the Gisborne Police Station and gave him his rights. He noted that Mr Dibben was co-operative. The policeman’s evidence concluded with this statement:

“Throughout the procedure the defendant was very co-operative and I can only say a pleasure to deal with, he was not a problem at all.”

Law

[6] The Crown relies upon Morgan v Ministry of Transport [1980] 1 NZLR 432. The headnote to that case states:

“There were strong indications in the Summary Proceedings Act that Parliament considered that there would be occasions in relation to summary prosecutions when the public interest would be best served by allowing the prosecution a second chance to cure evidential deficiencies: s 68 empowered a Magistrate to dismiss an information without prejudice and s 36 to permit the prosecution to withdraw an information. These powers were obviously directed to situations where some defect had become apparent in the prosecution case and could be exercised where evidence of a technical or formal nature had been inadvertently overlooked. In the present case the Magistrate could have ruled that there was no case to answer, and the traffic officer could have been recalled to give the additional evidence as to the breath test. Or the Magistrate could have dismissed the prosecution without prejudice. In these circumstances it was open to the Judge to make use of his discretionary power to direct a rehearing in order to bring about a situation which the Magistrate could have achieved by other means had he ruled that the prosecution evidence was incomplete.”

[7] This Court undoubtedly has power to remit the matter back to the District Court for a rehearing under s 131 of the Summary Proceedings Act 1957. In R J Inglis v Ministry of Transport High Court Auckland AP211/91 18 October 1991 Thomas J. while acknowledging this right in a case which has similarities to the present case, determined that he would not remit the matter back to the District Court. What finally weighed with him was the fact that in his view it was not the Court’s practice to do so. He noted however that “in future there is every possibility that an appeal which succeeds on a point such as the one at issue in this case will be remitted back to the District Court for rehearing.”

[8] Counsel in their respective submissions referred to cases where this Court has declined to remit back to the District Court and other cases where they have done so. There are further cases not referred to counsel which are relevant. It is difficult to discern any particular trend in the cases apart from the usual observation that each case depends upon its own facts. If there is any particular trend it would appear to be that if the case does not appear to be a very serious one the Courts do not normally exercise the discretion and remit the matter back. In cases which are more serious particularly where the breath of blood alcohol levels are high the matter is likely to be remitted back.

[9] Cases where the Courts have not remitted the matter back include Burgess v The Police HC Wellington Registry AP169/99 Wild J 28 July 1999; Court v The Police HC Wellington Registry AP307/96 18 November 1996 Doogue J; Ryan v The Police HC Auckland Registry AP 106/91 2 November 2001 Chambers J; and the Inglis case referred to. Cases where there has been a remission back to the District Court include Piper v Police HC Wanganui Registry AP16/96 26/8/96 Fisher J; Jackson v Ministry of Transport CA103/89 12/9/89; Mallia v The Ministry of Transport HC Wellington Registry AP 190/88 3/11/88 Ellis J. and Wheatcroft v The Ministry of Transport [1988] 2 NZLR 764. In the Piper case the matter was remitted back because the defect could not have been predicted by the police while in Jackson the Court of Appeal upheld a remission back because the High Court Judge had a discretion to do so to resolve confusion caused by a general misunderstanding, and he exercised that discretion properly. In those cases where the Judge has declined to remit back the factors taken into account are the relative triviality of the offence, unfairness if there has been several prior court appearances both in the District Court and the High Court. there has been a reasonable lapse of time since the alleged offence and the fact that the defendant is a first offender.

Submissions

[10] In this case Mr Simperingham for the police submits that this is an appropriate case to be submitted back because:

[a] The evidence establishes that Mr Dibben admitted he had recently consumed a few beers;

[b] The Alcotech AR 1005 breath screening test indicated that Mr Dibben’s breath contained in excess of 400 micrograms of alcohol per litre of breath;

[c] The question of the administration of the intoxiliser 500 device was not subject to any cross-examination;

[d] The prosecutor at first instance was not a barrister or a solicitor;

[e] The first instant hearing was relatively recently, namely 8 October 2001 with the alleged offending occurring on 10 August 2001;

[f] This was not a case of a technical blunder by the District Court Judge. He turned his mind to the issue and ruled erroneously on it. Had the Judge’s recollection of the evidence been better he could have dismissed the information about prejudice or allowed the prosecution to withdraw it to allow the prosecution a second opportunity to lead evidence regarding the breath testing procedure.

[g] The oversight makes this case precisely the type to which it was intended that s 131 should apply.

[11] Mr Rishworth submitted that this was a case similar to Burgess and Inglis and that Mr Dibben had obviously been very co-operative with the police. In all the circumstances the police should not be given a second bite of the cherry.

Decision

[12] Although I do not have the specific details it does appear as though Mr Dibben has previously offended. He was initially charged with having at least on two previous occasions being convicted of an earlier offence. However this portion of the information was deleted when the police failed to provide evidence of the earlier offences. While the EBT reading in this case is not much higher than in the Burgess case it was higher and in my view the offence if established can not be said to be trivial. The time span between the hearing and the date of the offence is far shorter than in some of the other cases referred to. This is the type of case which s 131 is intended to cater for and in my view it is appropriate in the circumstances to remit the matter back to the District Court.

Decision

[13] The decision of the District Court Judge is quashed and the matter is remitted back to the District Court for rehearing.