Dollimore v Police
[2015] NZHC 1797
•10 August 2015
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2015-443-22 [2015] NZHC 1797
BETWEEN ROBERT CHARLES DOLLIMORE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 27 July 2015 Counsel:
J M Woodcock for Appellant
N L Laird and S J Simpkin for RespondentJudgment:
10 August 2015
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, Robert Charles Dollimore, was found guilty by Judge Roberts on one charge of refusing to undergo a compulsory impairment test (CIT) (third or subsequent).1 The Judge sentenced Mr Dollimore to 125 hours of community work, disqualified him from driving for one year and one day and made an order for the confiscation of his vehicle.2
[2] Mr Dollimore now appeals against his conviction. He says he cooperated with the police and agreed to take the CIT. He should not, therefore, have been convicted of the offence of refusal.
1 Land Transport Act 1998, s 60(1)(d).
2 New Zealand Police v Dollimore [2015] NZDC 7953 and 7960 District Court, New Plymouth, 1
May 2015.
DOLLIMORE v NEW ZEALAND POLICE [2015] NZHC 1797 [10 August 2015]
Facts
[3] In the early evening of 1 December 2014, following a traffic complaint of failure to give way, Constable Broughton located Mr Dollimore sitting in the driver’s seat of his stationary vehicle outside the Old Railway Hotel in Waitara. Constable Broughton’s evidence was that Mr Dollimore was at that point:
All at sea really is the best way to describe him. He was hard to understand, didn’t present as your typical intoxicated driver which is – which I am familiar with.
[4] Constable Broughton contacted Constable Keen, who was patrolling in the area in a highway unit. Constable Broughton asked Constable Keen to help him with a compulsory impairment test. Constable Keen had the required training, Constable Broughton did not. Constable Broughton took Mr Dollimore to the Inglewood Police Station, where Constable Keen joined them. Constable Keen began a compulsory impairment test.
[5] A compulsory impairment test has three substantive parts: an eye assessment, a walk and turn assessment and a one leg stand assessment. The Land Transport (Compulsory Impairment Test) Notice 2009 (the Notice) sets out in considerable detail the individual elements of each of those three steps. It provides that if any one of those steps of those is not completed, or is not completed satisfactorily, the testing officer must record that fact on the prescribed form (the Form).
[6] Constable Keen was using a new Form for the first time. The Form had, in fact, only been released for use on and from that date. The Form consists of a number of panels or “Blocks”, lettered “A” through “O” and each headed by reference to a stage in the CIT process. For example, Block A is headed “Drove or attempted to drive motor vehicle” and provides a record, which the enforcement officer can complete, of the evidence of that pre-condition to the administration of a CIT.
[7] Constable Keen carried out the eye assessment. He recorded that
Mr Dollimore had not completed it satisfactorily.
[8] Constable Keen then began the walk and turn assessment. The walk and turn assessment is described in the Notice as follows:
7 Walk and turn assessment
(1) Step 1: Preliminary action
(a) The testing officer must direct the person being tested—
(i) to stand and place his or her left foot on the ground, and place the right foot in front of the left foot, with the heel of the right foot against the toe of the left foot; and
(ii) to place his or her arms by his or her sides and to stay in that position until further directed.
(b) The testing officer must then—
(i) explain and demonstrate to the person being tested the requirements of the walk and turn assessment in Step 2; and
(ii) ask the person being tested whether he or she has understood the explanation and demonstration and, if necessary, repeat either the explanation or the demonstration, or both; and
(iii) explain that once the assessment has commenced it must be continued until the completion of Step 2.
(2) Step 2: Walk and turn assessment
(a) The person must, when directed by the testing officer, take 9 heel to toe steps long the line.
(b) When those steps are completed, and at the direction of the testing officer, the person must turn by keeping the toes of his or her front foot on the line and taking a series of small steps with the other foot.
(c) When the person has turned 180 degrees, he or she must take
9 steps back along the line.
(d) The person must, at the direction of the testing officer, count aloud each heel to toe step with the first step starting at 1 and the return heel to toe steps starting at 1.
(e) The person must, throughout the assessment,—
(i) keep his or her arms by his or her sides; and
(ii) watch his or her feet at all times.
[9] That assessment was not completed. Part way through that assessment, Mr Dollimore said he wanted to be taken to hospital. At that point, Mr Dollimore was asked for, and agreed to provide, a blood sample.
[10] Some time later, Constable Keen came to the conclusion that he and Constable Broughton had been wrong to ask Mr Dollimore to provide a blood sample on the basis that he had not satisfactorily completed the CIT. Rather, Mr Dollimore should have been charged with refusing to undergo the CIT. Mr Dollimore was subsequently charged with that offence, and his blood sample was not analysed. He pleaded not guilty and, accordingly, faced trial in the summary jurisdiction before Judge Roberts.
Appeal
[11] This appeal is on the single point of whether or not, as a matter of law, the evidence given at trial was sufficient to found a finding of guilt by the Judge. Implicit in such an appeal is not only the question of the adequacy of the evidence but also the logically prior question of whether, in considering the evidence, the Judge correctly identified the legal elements of the offence. To address those questions it is necessary to consider the relevant statutory context.
Statutory context
[12] Part 2 of the Land Transport Act 1988 imposes a series of general and particular responsibilities on drivers and participants more generally in the land transport system. Subsequent Parts of the Act then create offences for failures to discharge those responsibilities. For example s 5 provides that a person may not drive a motor vehicle without, or in contravention of the conditions of, a current
driver licence,3 and ss 31(1)(a) and (b) of Part 5 create the corresponding offences of
driving a motor vehicle on a road without a current driver licence and contrary to the conditions of a driver licence respectively.
[13] Sections 11 and 12 of Part 2 legislate responsibilities concerning the use of alcohol or drugs. For a considerable period of time s 12 has created the
3 All sections referred to in this judgment are sections of the Land Transport Act.
responsibility of not driving under the influence of alcohol or drugs “to such an extent as to be incapable of having proper control of the vehicle”. It is an offence under s 58 of Part 6 to contravene the general prohibition found in s 12.
[14] More specifically s 11 has since 1968 established the responsibility that persons are not to drive or attempt to drive while in excess of specific alcohol limits. Section 56 sets out the offences of contravening specified breath or blood alcohol limits. Those offences are, in turn, supported by the well-known enforcement methods of breath screening tests, evidential breath tests and blood tests (ss 68–72).
[15] A series of “to fail or refuse” offences are found in ss 59 (failure or refusal to remain at a specified place or to accompany an enforcement officer) and 60 (failure or refusal to permit blood specimen to be taken).
[16] More recently there have been concerns about a perceived increased incidence of drug-affected drivers. The “incapable of having proper control” requirement was a comparatively high threshold to meet, and also required establishing that the cause of the incapacity was illegal drugs.4 In response to those concerns the Land Transport Act was amended to introduce what might be called a “drug driving” regime. As from 1 November 2009 the Act has provided:
(a) In s 11A (the responsibility), that a person may not drive or attempt to drive a motor vehicle while impaired and while that person’s blood contains evidence of the use of a qualifying drug.5
(b) In s 57A (the offence), that:
(1) a person who drives or attempts to drive a motor vehicle on a road commits an offence if—
(a) the person does not complete a compulsory impairment test in a manner satisfactory to an enforcement officer, who is trained to give the test, when required to do so by an enforcement officer under s 71A; and
4 McMullen v New Zealand Police [2012] NZHC 2597 at [19].
5 Qualifying drugs are set out in s 2 of the Act and include various drugs specified in schedules to the Misuse of Drugs Act 1975 as well as a list specific to the Act. The definition includes prescription medication, but excludes drugs exempted by regulation.
(b) the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken under ss 72 or 73, contains evidence of the use of a qualifying drug.
(c) In s 71A (the enforcement method), for an enforcement officer to require a driver to undergo a CIT where the enforcement officer has good cause to suspect the driver has consumed a drug or drugs.
(d)In s 72 (1)(c) (the enforcement method), that a person must permit the taking of a blood specimen if that person does not complete a CIT satisfactorily when lawfully required to do so.
(e) In s 60(1)(d) (the supporting offence), that it is an offence to “fail or refuse” to undergo a CIT.
[17] Non-completion of a CIT may constitute one of the two elements of an offence under s 57A (the offence) or an offence itself under s 60(1)(d) (the supporting offence). There is an important distinction between (i) not completing a CIT satisfactorily, and (ii) failing or refusing to undergo a CIT.
[18] The first is not by itself an offence. But it allows for a blood sample to subsequently be taken compulsorily. The presence of a qualifying drug in that sample may provide evidence of an offence under s 57A. There are two distinct elements of that offence: the fact of impairment as evidenced by the CIT having not been satisfactorily completed, and the presence of the qualifying drug.
[19] But the second — failing or refusing to undergo a CIT — is by itself an offence. The question in this case is: what amounts to failure or refusal to undergo a CIT, and in what way does that differ from not completing satisfactorily a CIT? Analysis of the alcohol-related provisions will assist with answering that question.
[20] It is not an offence, in and of itself, to fail or refuse to undergo a breath screening test when required to do so under s 68. Rather, a person who so fails or refuses may subsequently be required to undergo an evidential breath test (s 69(c)), just as if they had undergone the breath screening test and the results indicated
250 milligrams of alcohol per litre of breath (s 69(c) and (ab)). It is the evidential test which may then provide evidence of a substantive offence involving a breach of the statutory limit.
[21] Neither is it an offence to fail or refuse to undergo an evidential breath test when required to do so. Rather, again, such a person may subsequently be required to provide a blood specimen for testing (s 72(a)). That blood specimen may also provide evidence of a substantive “limit” offence.
[22] The alcohol “limit” offences, in contrast to the drug-driving offence, have only one element: driving with breath or blood alcohol content in excess of the relevant limit. In that context, a breath screening test is a procedural step, and the results of that test have no evidential value. So in both of the cases discussed above at [21] and [22], a failure or refusal is a procedural precondition to a further test, and does not constitute by itself an offence. That is, the “failure or refusal” — not having undergone the test — is not an element of the substantive limit offence.
[23] Whether or not someone has “failed or refused” to undergo a breath screening test or an evidential breath test also needs to be established to sustain a conviction based on a subsequent evidential breath test or a blood specimen test. That is because it is that failure or refusal that mandates the subsequent tests which may then sustain a conviction.
[24] The meaning of the words “to fail or refuse” are different in the two contexts of the “limit” offences found in s 566 and of the “fail or refuse” offences found in ss 59 and 60.7
[25] Convictions based on the results of a compulsory blood test, or the failure to provide a blood sample have been challenged on the basis that a person had not
failed or refused to undertake an earlier, procedural step. Significantly for present
6 Section 56(2B).
7 I note – albeit without argument on the point – that the two-part structure of the drug-impaired driving offence has unnecessarily been carried over to s 56(2B). It is not clear what a failure or refusal adds to that offence of exceeding a particular blood alcohol limit.
purposes, in that context (i.e. of a procedural step), mens rea is not a required element of a failure or refusal.
[26] In Duell v Ministry of Transport,8 the challenge was to a conviction for failing or refusing to permit a blood specimen to be taken. The argument on appeal was that, at the breath screening stage, the appellant had not “failed or refused”. Finding that it was a case in which “an obviously intoxicated driver, given a reasonable opportunity to provide samples, failed to blow adequately” Cooke P observed:
There was therefore a failure and a blood test was properly sought. It is immaterial whether the appellant failed deliberately. As Macarthur J held long ago, failure in this context does not have to be culpable: Transport Department v Taylor [1971] NZLR 622.
[27] Similarly, York v Police involved a challenge to a drink-driving conviction based on the results of an evidential breath test a driver was required to undergo because he had failed or refused to undergo a breath screening test.9 Wild J emphasised that failure or refusal in that context was a question of fact to be decided on the evidence:
[28] Whether a person has properly undertaken the test, or has failed or refused to do so, is a question of fact to be decided on the evidence. A failure to undergo a breath test might occur where a person has bad asthma, or some lung deficiency disabling them from blowing enough air into the device to provide a specimen of breath sufficient for analysis. Obviously, where a person simply refused outright to undergo the breath screening test there is a refusal. By pretending to blow breath into the machine, but actually sucking ambient air into it, the appellant at least failed, in my view probably also refused, to undergo the test.
[28] By contrast, it is well established that mens rea it is an essential ingredient of the substantive “fail or refuse” offences (ss 59 and 60).10 In that context, the words “failure” (which, by ordinary definition does not necessarily include an element of fault) and “refusal” are to be read as importing fault.
[29] In Tikao v Ministry of Transport Holland J explained:11
8 Duell v Ministry of Transport [1993] 1 NZLR 13 (CA).
9 York v Police HC Napier AP10/01, 2 July 2001 per Wild J.
10 See, for example, Transport Department v Taylor [1971] 1 NZLR 622.
11 Tikao v Ministry of Transport (1986) 2 CRNZ 703 at 705.
If the appellant knew and understood that he was being asked to permit a specimen of blood to be taken his refusal or failure to permit the specimen to be taken creates the offence unless it can be shown that that refusal or failure was not an act of his own volition. The onus, however, remains on the Crown to prove beyond reasonable doubt that the refusal was a conscious deliberate decision of the appellant but the Court is not concerned at the reasoning process which persuaded the appellant to reach that conclusion.
[30] The authors of Becroft and Hall’s Transport Law expressed the view that there is no reason in principle why the same approach as to the necessity to prove mens rea should not apply for offences under s 60(1)(d) as it does to the alcohol- related provisions. As a matter of initial principle, I agree. But the way the drug- impaired-driving provisions are structured requires a different approach to the question of what constitutes a failure or refusal.
[31] The s 57A offence requires both impairment (a failure to satisfactorily complete a CIT) and presence in the blood of a qualifying drug. It would be inconsistent with the structure of that provision if a failure to satisfactorily complete a CIT because of impairment were to by itself permit conviction under s 60(1)(d).12
It would make the requirement of the presence of a qualifying drug redundant. That would be the effect of not requiring mens rea for the “failure or refusal” offence under s 60(1)(d).
[32] Failure occasioned by impairment cannot constitute failure for the purposes of s 60(1)(d). The purpose of s 60(1)(d) and other “failure or refusal” offences is not to criminalise impairment, but to make it pointless to refuse to undergo a test. That is why a different approach to the concept of failure or refusal is called for in the context of CITs, compared to those discussed above.
[33] The offence of “failure or refusal” in my view in this context means that the driver, when requested, does not in a cooperative way enter into the various tests called for by a CIT so that, accordingly, it is not possible for an enforcement officer to make a rational decision on the basis of the administration of the CIT that a driver is or is not impaired. If, however, a person does cooperatively enter into the process,
but is unable to or does not complete it because of impairment, the scheme of the
12 The available penalties are the same.
sections is for a compulsory blood test then to be taken to establish whether the second of the two elements of the offence is present.
[34] There will, of course, be questions of degree. Here, as elsewhere, the question of whether there has been a “failure or refusal” will be a factual matter. Clearly mens rea will be required. The enforcement officer would be required to exercise his judgment. In the words of Cooke P in Duell,13 “If he does so reasonably and has treated the person fairly, the Court is highly likely in the event of subsequent challenge to endorse his appreciation of the facts”.
[35] But a failure to complete a test because of impairment will not constitute a failure or refusal for the purposes of the s 60(1)(d) offence. That is in distinction to a failure to complete a breath screening test because of intoxication.14
[36] As Venning J noted in McMullen v New Zealand Police,15 the impairment test involves a suitably trained enforcement officer being satisfied the person has either not completed the CIT at all, or not completed it satisfactorily. I do not think, therefore, that for an officer to be able to reach a conclusion of impairment a driver must be taken through all three steps in their entirety. That conclusion is, in my view, reinforced by the detailed requirements of the second element of the test, namely the walk and turn assessment. As a matter of common sense, a person who is unable to complete a walk and turn assessment must, in my view, be capable of being determined to be impaired at that point. They may, for example, simply not be able to stand up steadily. It would make little sense, in that context, if the officer nevertheless had then to move onto the third element of the test, namely the one-leg stand assessment.
[37] Against that background, I turn to the evidence and the Judge’s reasoning.
13 Duell v Ministry of Transport, above n 8, at 15–16
14 See above at [27]–[28].
15 McMullen v New Zealand Police [2012] NZHC 2597.
Evidence
[38] The police accepted that Mr Dollimore did undergo the first step of the CIT: that is, the eye assessment. There is no challenge to Constable Keen’s conclusion that Mr Dollimore failed to satisfactorily complete that part of the test.
[39] Constable Broughton gave evidence first. He said he had observed Constable Keen conducting the eye assessment and moving on to the walk and turn assessment. Constable Broughton’s evidence in cross-examination at this point was:
Q. And you observed – and that part of the test involves a person walking heel to toe in a straight line?
A. Yes it does.
Q. And that involves a demonstration to the person as to how to do that,
doesn’t it?
A. Yes, I do recall Constable Keen demonstrating that there.
11.30
Q. And Mr Dollimore tried to do that didn’t he? He tried to do what
was being demonstrated to him when asked? He gave it a go?
A. Yes he did.
Q. Yep, and he was stopped by Constable Keen because he wasn’t
doing it properly was he?
A. I recall where there was, was some trouble, but he was, he was trying I have to say.
Q. Was trying? A. Mmm.
Q. You recall Constable Keen stopping Mr Dollimore and asking –
trying to show him how to do it properly?
A. I recall him correcting or coaching. Correcting him as to how to do it correctly.
Q. It’s fair to say he wasn’t able to do what was being demonstrated
was he, from your observations?
A. Well from my – from what I saw of Constable Keen’s demonstration of the walk, let’s call it “the walk”, um, the defendant’s result wasn’t the same.
Q. He couldn’t do it could he?
A. Not to the same standard as Constable Keen’s.
Q. And so it’s fair to say Mr Dollimore at that point wasn’t able to do what Constable Keen was trying to show him to do, he wasn’t able to do it?
A. Like I said, the standard was very different.
Q. And at that point Mr Dollimore said to you, said to both of you that
he wanted to go to hospital didn’t he?
A. Yes.
Q. So after Mr Dollimore said he wanted to go to hospital the testing procedure was stopped?
A. I believe so.
[40] It was at that point, the Constables determined that the appropriate procedure was to require Mr Dollimore to provide a blood sample as he had not completed the compulsory impairment test in a manner satisfactory to a trained officer.
[41] Block N of the form is headed “Agrees to compulsory impairment test”. If the driver agrees to undergo the CIT, the text in the Block instructs the officer to conduct the CIT. If the driver refuses to undergo the CIT, the text in the Block instructs the driver to warn of the offence of refusal (s 60(1)(d)) and directs the officer to go to Block P, which is an aide memoir for the charging decision. As relevant, the aide memoir suggests a s 60(1)(d) charge where the driver has, at that point, refused or failed to undergo a CIT.
[42] Constable Keen completed Block N by circling the answer “Yes”, thereby recording Mr Dollimore’s agreement to undergo the CIT.
[43] The Blocks for the eye assessment were completed, recording an unsatisfactory outcome.
[44] The “Walk and turn assessment” Block was completed in the following manner:
2025 Refuses to complete impairment test as walk and turn demonstrated to unable to complete instruct/demo. Refuses to undergo test further. Confirm and explain refuses, states “I just want to go to hospital”.
Does not stand for instructions or demonstrations.
[45] Block O, headed “Compulsory Impairment Test Conclusion” was completed by Constable Keen encircling the answer “No” to the statement “Compusory Impairment Test completed in a manner satisfactory to a trained officer. Constable Keen also recorded, in that Block, “Advised that he has refused to undergo test”.
[46] Blocks Q and R recorded the fact that Mr Dollimore had been required, and had consented, to the taking of a blood specimen.
[47] Constable Keen’s evidence-in-chief was that Mr Dollimore made no attempt at all to undertaken the walk and turn assessment, rather he said he just wished to be taken to the hospital.
[48] In cross-examination Constable Keen confirmed that it was a fair assessment of Mr Dollimore to say that he was in a bit of a mess that night. He repeated his evidence-in-chief that Mr Dollimore had not attempted to try the walk and turn assessment: he had interrupted the Constable’s demonstration of what was required, staying he wanted to go to the hospital. Constable Keen declined, however, to say that Constable Broughton was wrong in his recollection of events. He confirmed that Mr Dollimore had not said to him he did not want to take the test: rather what he had said was that he wanted to go to the hospital. Constable Keen said that he then advised Mr Dollimore that he could be charged with refusing the test and that Mr Dollimore confirmed he wanted to go to the hospital.
[49] Mr Dollimore did not give evidence.
[50] In his oral decision, the Judge recognised the conflict of evidence between the two Constables as regards whether or not Mr Dollimore had attempted the walk and turn part of the assessment. Central to the Judge’s finding that guilt had been established is the following analysis:
[14] We have this issue, too, about any involvement or participation in the second stage of the assessment, the heel and toe walk, one witness saying there was participation, the other saying there was none.
[15] Where, however, the two witnesses are consistent the indication was certainly conveyed to both of them by Mr Dollimore that he was not going to continue. Whether he started the test after Constable Keane’s demonstration or whether he did not is not a matter of great consequence. The fact of the matter is that he did not complete it and he did not perform it.
[16] Mr Dollimore did not give evidence. He did not have to do so, but that left me with but the evidence of the two police officers on which to focus. These two are largely consistent with the words they attribute to the defendant at the point they consider he is withdrawing. Broughton, “I can’t do this anymore. I just want to go to hospital.” Keane, he too attributes a
refusal and a desire to go to hospital. The second witness, Keane, claimed also to draw out, as I say, confirmation of his refusal and in answer to a question I put he told Mr Dollimore that there was still a third process to be undertaken.
[17] While Mr Dollimore subsequently gave blood, while he was, on the acknowledgement of the police officers, in other respects generally compliant and while he initially agreed to undertake the process, I am satisfied to the requisite standard that he did convey to both police officers there present that he did not wish to complete the test. That, in the circumstances, constituted a refusal and that the refusal as such was a deliberate one. (Emphasis added)
Analysis
[51] In my view the Judge erred in law when he said that “whether he started the test after Constable Keen’s demonstration or whether he did not is not a matter of great consequence. The fact of the matter is that he did not complete it and he did not perform it”. In this context, not completing and not performing are not coextensive with failing or refusing to undergo.
[52] That conclusion is reinforced by the requirements of the walk and turn assessment. As can be seen, Step 1(a)(i) itself requires a degree of coordination and control. The driver must place their right foot directly in front of their left foot, with the heel of the right toe against the toe of the left foot. They must place their arms by their side and they must stay in that position “until further directed”. On Constable Broughton’s evidence, what would appear to have happened is that Mr Dollimore tried but was unable to even achieve that, so that Constable Keen was not able to go on and “explain and demonstrate” the requirements of the walk and turn assessment in Step 2.
[53] Constable Keen’s evidence itself is not unequivocal. He said he had been unable to complete the demonstration: that would tend to suggest that the very first part of the test had been embarked on, namely the requirement for Mr Dollimore to stand in the required position whilst the Constable demonstrated.
[54] Moreover, Constable Keen confirmed that Mr Dollimore had not said he did not want to complete the test: what he said was that he wanted to go to hospital.
[55] In my view, in these circumstances, it is not possible to be satisfied beyond reasonable doubt that Mr Dollimore had failed or refused to undergo a CIT. The reasonable possibility remains that he had been unable to complete such a test.
[56] That conclusion is supported by the common sense observation that Mr Dollimore cooperated throughout the procedure. Most importantly, he agreed to a specimen of his blood being taken. It would make little sense for Mr Dollimore to fail or refuse, in the relevant sense, to undergo the CIT but then agree to the more intrusive process of providing a blood specimen.
[57] I therefore allow Mr Dollimore’s appeal, quash his conviction and the associated disqualification and confiscation orders. As is obvious, this is not a situation in which a retrial is called for or would be appropriate.
[58] I make the following observations. As I have noted, Constable Keen’s evidence was that this was the first time the new Form was being used. The Form was detailed. Moreover, the Block P, the aide memoire for the charging decision, prompts a charge under s 60(1)(d) where the driver “Fails or refused to complete part of the compulsory impairment test due to impairment”. If I have understood the law correctly, that prompt is incorrect.
“Clifford J”
Solicitors:
Crown Solicitor, New Plymouth for Respondent
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