Edwards v Police

[2012] NZHC 2778

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000197 [2012] NZHC 2778

NATHAN GRAHAM EDWARDS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 October 2012

Counsel:         A Comeskey for Appellant

A Longdill for Respondent

Judgment:      23 October 2012

JUDGMENT OF WOOLFORD J [as to appeal against conviction]

Solicitors/Counsel:

Mr A Comeskey, Barrister, Auckland

Crown Solicitor, Auckland

EDWARDS V NZ POLICE HC AK CRI-2012-404-000197 [23 October 2012]

[1]      Mr  Edwards  was  charged  driving  with  excess  blood  alcohol  after  being stopped and tested on 24 March 2010.  A District Court Judge found the information proved and convicted Mr Edwards on 2 February 2012.[1]     It was his fifth such offence.  On 13 June 2012, the Judge disqualified Mr Edwards for a year and a day and imposed a sentence of 10 weeks home detention.

[1] Police v Edwards DC Waitakere CRN-1009-000-3145, 2 February 2012.

[2]      Mr Edwards applied to defer the start date of his disqualification pending his appeal  to  this  court.     That  application  was  declined  by  the  District  Court. Mr Edwards subsequently appealed that refusal to defer.  The appeal was heard by Katz J.  In a judgment 10 September 2012 she dismissed the appeal.[2]

[2] Edwards v Police [2012] NZHC 2320.

[3]     The appellant’s substantive appeal against his conviction remains to be determined in this proceeding.  It centres on the propriety of the manner in which the breath alcohol testing was carried out.

Factual background

[4]      The facts of this case are not in dispute.   On 24 March 2010, at around

3.00 am, Constable Cattanach stopped Mr Edwards in the Ranui area.  The constable administered a passive breath test, the purpose of which was to detect whether there was any presence of alcohol in Mr Edwards’ breath.  That device showed a positive result.

[5]      The Constable then administered a breath screening test which was designed to show whether Mr Edwards was over the breath alcohol limit.   This is not an evidential breath test.  Mr Edwards also failed this test.

[6]      Constable Cattanach required Mr Edwards to go with him to the Henderson

Police Station for the purposes of an evidential breath test and/or a blood test.  The evidential breath alcohol test showed a level of 493 micrograms of alcohol per litre

of breath.  Of particular importance in this case is the fact that Mr Edwards was only asked to blow into the device a single time.

[7]      Having taken the opportunity to speak to a lawyer, Mr Edwards then opted to take a blood test.  That test ultimately showed that Mr Edwards had a blood alcohol level of 114 milligrams of alcohol per 100 millilitres of blood.

District Court Decision

[8]      In the District Court the appellant submitted that the testing procedure had been invalidated by the fact that he had only blown into the evidential breath testing device once.  As a result, it was said there was no evidential breath test carried out and the prosecution was, therefore, fundamentally flawed.

[9]      The District Court Judge considered a number of cases and the wording of the relevant subordinate legislation.  While inclining to the view that there had not been  a  breach,  Judge  Gibson  was  nonetheless  satisfied  that  the  reasonable compliance provisions of the Act would be sufficient to cure the defect.  The Judge also concluded that the reading taken from the blood sample, which Mr Edwards had chosen to give, was decisive and that any possible error in the evidential breath testing process was, therefore, rendered moot.

Submissions

For the appellant

[10]     The appellant sets out a number of questions raised by the appeal. The first is whether there was, in fact, a result obtained by the test for the purposes of the legislation.  As a consequence, if there was no result, Mr Comesky submitted that there were no grounds for taking a blood specimen in the presence of this “non- result” and, therefore, presumably the blood and breath results were inadmissible. These errors were not, in his submission, cured by the various statutory mechanisms in s 64 as those required a result to actually have been achieved.

[11]     Ms  Longdill,  for  the  respondent  supported  the  District  Court  Judge’s reasoning.  Her submissions suggested that the test did produce a result, even if in the circumstances, full compliance with the Notice could not have been achieved. The submissions for the appellant were unmeritorious and did not address the effect of s 64(5) and the Supreme Court’s decision in Aylwin v Police.[3]

[3] Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.

Principles

Statutory scheme

[12]     The relevant statutory provisions are those of the Land Transport Act 1998. Section 56 has the effect of creating the offence with which Mr Edwards is charged.

[13]     Section 68 is the opening provision of the testing regime.  It allows a police officer  to  require  a  person  to  undergo  both  a  passive  breath  test  and  a  breath screening test. The passive breath test is not mandatory.

[14]     Section 69 provides the police officer with power to require a person to undergo an evidential breath test if it appears that that person is over the legal limit. The police officer may require the person to accompany the officer to a testing site and undergo an evidential breath test.  Section 70 provides for the retaking of the test if it fails to produce a result.

[15]     Under  s  70A a  person  whose  evidential  breath  test  result  appears  to  be positive has the right to a 10 minute window in which to consider their options. They may opt to accept the evidential breath test result, in which case that result may

be used in evidence against them under s 77.

[16]     Under s 70A the person may, however, opt to have a blood test taken.  If that occurs then, under s 77, the evidential breath test result is no longer admissible. The blood specimen is used to prove the charge.

[17]     Section 2 of the Act also has relevance in that it provides the following definitions:

evidential breath test means 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

...

evidential breath-testing device means a device of a kind approved for the purpose of evidential breath tests by the Minister of Police, by notice in the Gazette

Evidential Breath testing regime

[1]     Paragraph 8 of the Land Transport (Breath Tests) Notice 2009 provides:[4]

[4] (SR 2009/386)

8         Manner  of  carrying  out  evidential  breath  tests  by  means  of

Dräger 9510NZ, Intoxilyzer 5000, or Seres

Evidential breath tests carried out by means of a Dräger 9510NZ, an Intoxilyzer 5000, or a Seres must be carried out in the following manner:

(a)       Step 1: Start of testing sequence

The officer must depress the button for starting the test. (b) Step 2: Evidential breath test

The   officer   must   carry   out   the   testing   sequence   in accordance with the instructions appearing on the display panel on the device, and—

(i)      the officer must attach a new mouthpiece to the breath inlet tube and instruct the person being tested to blow through the mouthpiece; and

(ii)   the person being tested must blow through the mouthpiece to provide a subject breath specimen sufficient for analysis, when instructed by the officer; and

(iii)    Step 2(i) and Step 2(ii) must be repeated, as required, until the testing sequence is completed.

(c)      Step 3: Results of test—

(i)        The  results  of  the  various  steps  in  the  testing sequence  will  be  shown  on  the  result  card  or printout, including the Evidential Breath Test Result (which must be taken to indicate the number of micrograms of  alcohol  per  litre  of  breath  of  the person tested).

(ii)      If the Evidential Breath Test Result is “Incomplete

Test”, the test has been unable to be carried out.

Section 64

[18]     Section 64 of the Act is an important one in that it provides that certain matters are not defences to charges under the Act:

64 Defences

...

(2)       It  is  no  defence  to  proceedings  for  an  offence  that  a  provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.

...

(5)       It is no defence to proceedings for an offence against this Act in respect of the proportion of alcohol in a person's blood—

(a)       That there was or may have been an error in the result of the breath screening test or evidential breath test; or

(b)       That the occurrence or likely occurrence of any such error did not entitle or empower a person to request or require an evidential breath test or a blood test.

Discussion

[19]     It is my view that the issue in this case can be disposed of relatively shortly by reference to two authorities.

[20]     In Falesiva v Ministry of Transport[5] the Court of Appeal was considering the interpretation of a similar provision in the Transport Act 1962.  A similar argument was deployed in that case where it was alleged that the Crown could not benefit from the saving affect of the equivalent provision to s 64(5) because a prerequisite to the use of that section was an evidential test validly producing a result.  As the Court of Appeal put it:[6]

Mr Hogan for the appellants contends that s 58(5) does not apply unless there has been a valid evidential breath test. That view would leave the subsection with little scope. It would be confined to cases where, although the evidential breath test has been carried out with strict or reasonable compliance with the requirements of the 1978 Notice, the result contains or may contain an error. Parliament is unlikely to have troubled to enact s 58(5) merely to deal with that situation. It is a situation which one would expect to be rare, because if the evidential test has been carried out strictly or with reasonable compliance the result is likely to be correct. Moreover even an error or possible error in the result would not then affect the validity of a subsequent blood test, because if the evidential breath test has been validly conducted a positive or intermediate result will justify a blood test under the Act even if that result happens to be erroneous. It is difficult to believe that this caused any concern to Parliament.

[5] Falesiva v Ministry of Transport [1987] 1 NZLR 275.

[6] At 279.

[21]     The  Court  of  Appeal’s  conclusion  was  that  where  there  was  an  error sufficiently invalidating an evidential test, the provision could not be read as if “result” could only mean the result of a validly conducted evidential breath test.  To do so would be self-defeating. As the Court of Appeal said:[7]

[7] At 279.

In our opinion s 58(5) should be held to apply to errors or possible errors in the results of preceding evidential breath tests, howsoever occurring. The cause of the error or possible error is immaterial. For example the officer may have made a mistake in endeavouring to follow the steps in the Notice or may even have inadvertently omitted a step. Or the device may have malfunctioned. These examples are not meant to be exhaustive. The legislature has evidently acted on the view that a blood test, taken by a registered medical practitioner with the result scientifically analysed, is the motorist's ultimate protection and a reliable basis for a conviction. If the procedure has reached that stage it does not matter that there may have been some  defect  in  the  earlier  administration  of  the  evidential  breath  test possibly vitiating the result of that test. One has to bear in mind also that from the outset there has been the added safeguard of a breath-screening test.

This means that in s 58(5) the words "the evidential breath test" are not limited to such tests carried out correctly or substantially correctly. Naturally the definition of evidential breath test in the interpretation section, s 57A, contemplates a test carried out by a duly approved evidential breath-testing device and in a manner prescribed; but, like other statutory definitions, that one is expressed to apply "unless the context otherwise requires". We think that  the  context  of  s  58(5)  in  the Act  and  the  evident  purpose  of  that subsection do require a wider interpretation there. Section 58(5) should be held to refer to evidential breath tests carried out in fact and in good faith, even though to a degree which may be considerable they fail to comply with the correct procedure.

Let it be repeated that if there has been a defect in the carrying out of the evidential breath test but not such a serious one that in consequence there is or may have been an error in the result, that defect is highly likely to be protected by the reasonable compliance provisions. While it is trite to say that every case must turn on its own facts and one cannot make sweeping generalisations in a judgment without the precaution of any qualification whatever, it can safely be said that a shortcoming in a test having no bearing on the result is prima facie the very type of non-compliance which s 58E is apt to cover. Section 58(5) has now strengthened the provisions of the Act directed against technical defences by ensuring that the blood test result stands even if for any reason the evidential breath test result may have been wrong.

[emphasis added]

[22]     The conclusions of the Court of Appeal are mirrored by the Supreme Court’s decision in Aylwin v Police.[8]    In that case the alleged error was in the manner of carrying out the breath screening test leading to an argument that the subsequent step of  requiring  Mr Aylwin  to  submit  to  an  evidential  screening  test  was  invalid. Reliance was placed on s 64(4) which reads:

[8] Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.

(4)       It is no defence to proceedings for an offence against this Act in respect of the proportion of alcohol in a person's breath—

(a)       That there was or may have been an error in the result of the breath screening test or evidential breath test; or

(b)       That the occurrence or likely occurrence of any such error did  not  entitle  or  empower  a  person  to  request  or  require  an evidential breath test.

[23]     The Supreme Court’s reasoning was:

[11]      The legislative intent is clear: the subsection precludes any challenge to the result of a breath screening test or an evidential breath test, and any claim that an evidential breath test should not have been undertaken because

of an error in a prior test. It is irrelevant whether the error was a machine error or an operator error. The right of election to have a blood test and the right to be advised of that right, conferred by s 70A, must be regarded as providing effective  protection  against the consequences  of  an error in a breath screening test or an evidential breath test.

[24]     In my view, that reasoning holds equally strongly in a situation where the blood alcohol test is alleged to be consequent on an error in the administration of the evidential breath test and accords with the intention of Parliament in enacting these subsections.[9]

[9] Aylwin v Police at [17].

[25]     I have not had to consider whether the reasonable compliance provision in s 64(2) would apply in this situation as well.  However, it seems likely that it would apply.

Result

[26]     While   I   have   considerable   sympathy   for   the   personal   matters   that Mr Edwards has raised, and would encourage him to explore whether a limited licence is available, his appeal must be dismissed.

[27]     I direct that Mr Edwards home detention sentence commence on Monday,

29 October 2012.  On that date he is to be present at the home detention address to await the arrival of a representative of the monitoring company and a Department of Corrections officer.

……………………………….

Woolford J