E v Police HC Christchurch CRI 2009-409-6

[2009] NZHC 363

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2009-409-000006

E

Appellant

v

POLICE

Respondent

Hearing:         18 and 23 March 2009

Counsel:         Appellant in Person

C B Persson (Assisting Appellant) D L Elsmore for Respondent

Judgment:      26 March 2009

JUDGMENT OF FOGARTY J

[1]      The   appellant   appeals   against   convictions   entered   by  Judge   Bisphan following a defended hearing and reserved judgment.  The appellant was convicted of four charges of refusing to accompany a police officer, escaping lawful custody, reckless driving and resisting the police.

[2]      The appellant and a female companion were in the central city in the early hours of a Friday morning.   The appellant had had a few drinks but as it later transpired was driving within the lawful blood alcohol limits.  He was observed by a police  sergeant  going  through  a  roundabout  slightly  quicker  than  the  sergeant

considered normal so he decided to stop the vehicle for the driver to go through a

E V POLICE  HC CHCH CRI 2009-409-000006  26 March 2009

random breath test.   The appellant spoke towards the passive breath tester which registered alcohol.  The sergeant then had to go on and do a breath screening test. He assembled a Dräger 6510 breath tester and asked the defendant to blow through the mouth piece, a tube.  He did but there was nothing registered.  The machine was faulty.

[3]      The sergeant went back to his car, replaced the tube with another tube and then went back to the defendant and asked him to undergo the test.   There was a dispute on the facts as to whether or not on this second occasion the appellant blew once and the machine was still faulty but in any event it is clear that from that point on he refused to blow into the machine.  An argument developed between his female passenger and the sergeant, she saying that the appellant was not required to do anything.

[4]      In the midst of this argument it would appear the appellant said very little but the sergeant interpreted him as refusing to complete the breath test and refusing to accompany him, the sergeant having asked him to accompany him.  It would appear at some point the sergeant then made a judgment that he was refusing to accompany him after being warned twice and that he was then under arrest.  The appellant was at this stage still seated in his vehicle.   There was no physical contact between the sergeant and the appellant.

[5]      After being told he was under arrest the sergeant then opened the door and told him to get out.  The appellant did so and as they walked back to the patrol car the appellant was complaining that he had completed the breath test.  His companion was still talking and giving instructions.

[6]      The appellant then went back to his Landcruiser car and got into the seat and closed the door.  He was being chased by the sergeant.  He started the vehicle and went to drive off and at this point the sergeant tried to grab the keys out of the ignition.   After the vehicle moved a couple of metres the sergeant let go of the vehicle and ran back to his patrol vehicle.  He radioed communications and said he had a runner and then he followed the vehicle down the road observing it reach speeds of in excess of 70 kilometres an hour, turned on his siren and lights and the

vehicle pulled over about 900 metres further down the road.  Shortly after these two vehicles another police car arrived with two constables and there was a melee, the result  of  which  was  that  the  appellant  ended  up  on  the  ground  and  the  three policemen on top of him.  He was taken to the police station where further testing was done and found to be within the legal limits.

[7]      There is no doubt that the machine failed on the first time.   There is some doubt as to whether it was in working order the second time and overall there is no doubt that this unhappy narrative of events was contributed to by the intervention of the female passenger.

[8]      Two points were essentially taken on appeal.   The first was that the police had not proved that the Dräger had been activated pursuant to the procedures contained in Clause 6B of the Transport (Breath Tests) Notice (No 2) 1989.

[9]      The second point taken on appeal is that the findings as to credibility by the

Judge preferring the police evidence over the defence evidence were not sustainable.

[10]     The first point was dealt with in the oral judgment of Judge Bisphan on

29 April when answering a submission that there was no case to answer.  Essentially Judge Bisphan found that there  was  no  doubt  that  the  sergeant  was  asking the appellant to blow into a Dräger 6510 device.  The Judge who gave an oral judgment at the end of the day obviously thought there was no merit in this point.   I agree. The sergeant did not give detailed evidence of how he activated the device on the second occasion and what he observed on the display panel.  He was cross-examined on that to a degree but Mr Persson said he did not pursue whether or not the display panel showed “ready” on the second occasion because he thought that was an obligation for the Crown to prove.

[11]     The defendant was charged with failing to accompany the officer under s 69 of the Land Transport Act 1998.   That section enables an enforcement officer to require a person to accompany the officer where the person has failed to refused to undergo a breath screening test without being required to do so by the officer under s 68.

[12]     Apart from the qualification as to whether or not he may have breathed in on the second occasion once, there is no doubt that substantially the appellant did refuse to undergo a breath screening test on the officer’s return to the car from the point of time when his passenger started arguing with the police sergeant.

[13]     Therefore this legal point taken is wholly technical.  It is a submission that a person cannot fail to refuse to undergo a breath screening test until it is proved that before he was asked to undergo the breath screening test the machine had been properly  activated   and   its   display  panels   correctly  observed   by  the   police enforcement officer pursuant to the aforesaid Regulation 6B.

[14]     Mr Persson relied on a decision of the Court of Appeal in R v Livingston and Kenner CA232/00 and CA233/00 12 October 2000.   In this case a Court of five heard applications for leave to appeal involving various issues which arise when blood or breath alcohol charges are tried before a Judge and jury.   The appellants were  each  charged  with driving while  the  proportion  of  alcohol  in  their  breath exceeded 400 milligrams.  One of the elements of the offence was that the evidence was “ascertained by an evidential breath test undergone under s 69”.   Relevantly, the Court said:

[8]       The concept of the proportion of alcohol being “as ascertained by an evidential breath test subsequently undergone under s69” contains two discrete ingredients.   First, there must have been an evidential breath test; second, it must have been undergone under s69.   The first ingredient can itself  be  further  broken  down.    Whether  there  has  been  a  qualifying evidential breath test depends (a) on whether the test was carried out by a device of a kind approved for the purpose of the Minister of Police by notice in the Gazette; and (b) on whether the test was carried out in a manner prescribed, in respect of the device used, by the Minister of Police by notice in the Gazette.  In short, the device used must be of an approved kind, and must be operated in an approved manner.

[9]       When a devise of  an  approved  kind  is  operated in  an  approved manner, the statutory intent must be that the result is generally presumed to be reliable.  Parliament cannot have intended the person accused to be able to challenge the general reliability of approved devices, or the general reliability of approved methods of operating them.  In saying this we have not overlooked Police v McKay [1995] 1 NZLR 303, 305 (CA). There Cooke P in an oral judgment appeared to accept a concession of counsel in these terms:

There are two safeguards.  First, the Minister may always revoke an approval if satisfied that a particular model of a device is defective

or unreliable.   Secondly, if there is in any case evidence raising a reasonable doubt as to the accuracy of the results produced by the model, when properly used as prescribed by the Breath Tests Notice or the instructions on or with the machine, then that device cannot be treated as within the ministerial approval.   Mr Pike unhesitatingly accepted the existence of both safeguards.

That statement should not be read as permitting a general attack on the reliability  of  tests  when  an  approved  device  has  been  operated  in  an approved manner.  That would undermine the whole purpose of the statutory approval regime.

[15]     As is apparent from these extracts from the Court’s decision the Court was focussing here on proof of the number of micrograms.

[16]     I do not think that these two paragraphs can be used, as Mr Persson seeks, to contend that proof of the essential element of failing or refusing to undergo a breath screening test depends on whether or not the test would have been carried out in the manner prescribed by Regulation 6B.   To be sure, the device has obviously to be activated before a person blows into it and in normal circumstances will have been switched on at the time the police officer requests a person to blow into the tube.

[17]     In my view Parliament cannot have intended a person to have a defence of failing to accompany a police officer if the police and the prosecution have not proved the niceties of turning on the device prior to the person refusing to undergo a breath screening test.

[18]     The need to prove that the device has been operated in a manner prescribed becomes relevant when the reliability of the reading of the machine is being put to proof.  There is no merit in this point.

[19]     I turn now to the question of the Judge’s findings of fact based on credibility.

[20]     Paragraph 2 of the reserved judgment of Judge Bisphan reads:

[2]       Credibility  is  a  significant  issue  in  the  case  as  there  are  direct conflicts in the evidence.  Having seen and heard the witnesses I accept the evidence of the Police officers and I reject the evidence of the defendant where it conflicts with that evidence.  The defendant became agitated on the night and I find gave a watered down version of some of the events.

[21]     In lengthy submissions over two separate hearings Mr E   in this respect represented himself.  (Somewhat unusually Mr Persson who was not legally aided argued the legal point pro bono and I allowed him to assist his client to run the factual arguments.)  Mr E   critiqued the findings of Judge Bisphan by essentially relying on some discrepancies in the police evidence arguing that these discrepancies undermined the whole of the police evidence.   For example, he said the police sergeant’s evidence was that he had driven on for about one and a half kilometres before he had stopped but that he had measured the distance and it was actually 900 metres.

[22]     That kind of incorrect detail is not consequential to the issues made material by the offences for which he was charged.  The fact that a police officer might get some details wrong does not mean that the whole of his evidence is wrong.  Nor does an incorrect detail mean that his evidence is less reliable than that of the accused.

[23]     I was impressed by a strong sense of grievance on the part of the appellant. He obviously believes that he was unfairly treated by the sergeant and by the result of the District Court trial.

[24]     I agree that the fact that the machine did not work the first time and that his female passenger got involved coming between he and the sergeant were unhappy events to which he has no culpability.   They were events which I think contributed significantly to the sergeant becoming quite short of temper and that is likely also to have contributed to the way the events unfolded.   It would have been better if the officer had reinforced, in the course of his argument with the female passenger, while speaking to the accused, that he wanted him to accompany him by asking him to get out of the car before attempting to place him under arrest.   Furthermore, the three police officers appear to have significantly over-reacted at the time when he was apprehended after stopping the car again.  Judge Bisphan said in his sentencing remarks:

[6]       … You probably got dealt to in a sense at the time because I think there were a couple of policemen who arrived to finally contain you and I think those matters have got to be taken into account as well.

[25]     This was said in a context where the Judge was considering what the penalty should be.   The appellant’s version of events is that he had stopped the car in response to the siren and lights.  This is indisputable.  That he did get out of the car voluntarily and that there is no particular reason why he had to be brought to the ground by three officers.  He disputed that he was resisting them.  The Judge found against him on that matter but obviously had a residue of sympathy for how his resistance had been “dealt” with.

[26]     As I explained to Mr E   on a number of occasions, an appellate Judge can only reverse a finding of fact by a trial Judge when there is good reason to do so. When, as here, credibility as to the detail of a set of broadly indisputable facts is an issue wherein the appellate Judge is inevitably at a significant disadvantage.

[27]     It is regrettable that the police witness  called  to  reinforce the sergeant’s evidence on the resisting charge did not make any written report of the incident which, according to the police case, involved both physical resistance of arrest and bodily contact on the part of the appellant and in response by the police officers. The constable who gave evidence said in evidence that he had made such a report. I am satisfied from information provided on appeal that no job sheet was completed by this constable relating to this incident.   Again, the fact that the constable was inaccurate in saying in evidence that he had prepared a job sheet does not mean that his description of what happened has to be rejected.

[28]     At the end of the day I was simply not satisfied that there were grounds for overturning the findings of fact made by Judge Bisphan.  It follows that this second aspect of the appeal fails.   Accordingly no basis has been shown for setting aside the convictions.

[29]     The appeal is dismissed.

Solicitors:

C Persson, Christchurch (Assisting Appellant)

Raymond Donnelly & Co, Christchurch, for Respondent cc:      P D E