F v Police HC Rotorua CRI-2010-463-20

[2010] NZHC 792

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-20

BETWEEN  F

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         31 May 2010

Counsel:         A Burns for the appellant

S-L Wootton for the respondent

Judgment:      31 May 2010

(ORAL) JUDGMENT OF POTTER J

Solicitors:           Crown Solicitor, P O Box 740, Rotorua 3040

Copy to:            A Burns, P O Box 366, Rotorua 3040

F V NEW ZEALAND POLICE HC ROT CRI-2010-463-20  31 May 2010

[1]      The appellant Mr F   was convicted following a defended hearing in the

District Court at Rotorua on 22 March 2010 of two charges:

a)        That he drove a vehicle while under the influence of alcohol pursuant to s 56(2) of the Land Transport Act 1988;

b)       That he trespassed pursuant to the relevant sections of the Trespass

Act 1980.

[2]      Only the first of those two convictions is the subject of appeal.

[3]      The ground of appeal is that the finding of the District Court Judge was against the weight of evidence and that the prosecution failed to prove the offence under s 56(2).

[4]      The  facts  as  they  relate  to  the  offence  that  is  appealed  can  be  briefly summarised.    Constable  Billett  was  called  to  17A  Glenfield  Road,  Rotorua  in relation to a trespass incident at 1.56 p.m. on 8 July 2009.  The constable spoke with the appellant and noticed that he was unsteady on his feet.  Constable Billett made the following entry in his notebook:

States he was at this address for about five minutes prior to police arrival. States he drove to the address, smells of alcohol, unsteady on feet.  States he had a few wines.   At 1403 therefore, shortly thereafter, a passive test was undertaken and then a screening test at 1404, fail general.  He was then taken to the police station and at 1421, his Bill of Rights form was read to him and he asked to speak to a lawyer.  He first of all phoned one lawyer in town, but then that person was not available so at 1431 he spoke to another lawyer for eight minutes.   After that conversation, then they moved to an evidential breath test and at 1446 he was advised of the positive test and the form was read to him.  At 1453 again, he spoke to a lawyer for another four minutes until 1457.  At that point in time, he requested a blood test and blood was drawn and matters concluded.

[5]      The blood test reading showed that he had 182 milligrams of alcohol per 100 millilitres of blood.  That is over twice the legal limit.

[6]      There is no dispute that the matters that must be proved for an offence under s 56(2) of the Land Transport Act are as defined in R v Livingston and Kenner.1   The offence has the following elements:

a)        driving or attempting to drive, b)         on a road,

c)        while the proportion of alcohol in the breath exceeds 400 micrograms of alcohol per litre of breath,

d)       as ascertained by evidential breath test undergone under s 69. [7]      Only elements a) and b) are in contention in this appeal.

[8]      Judge  Weir  referred  to  the  evidence  of  Constable  Billett2   which  can  be

summarised as follows.  The constable noticed that the appellant smelled of alcohol and was unsteady on his feet.  The appellant told him he had driven to the property. The constable observed that the appellant’s general demeanour was quite cocky and he was clearly intoxicated.  The appellant told him he had drunk a couple of wines. The appellant had his car keys in his hand.  The appellant failed the breath test which the constable required him to undertake.  He was arrested and the blood specimen subsequently taken was as I have previously stated.

[9]      The Judge referred to the appellant’s version of events.3     The explanation given by the appellant, as summarised by the Judge, was that he had been around to his friend’s place at the address 17A Glenfield Road, that no-one was at home so he had then gone to the Owhata Marae.  He had met someone there and had some wine. He said a couple of glasses of homemade wine.   Then he had walked back to the house.  It was subsequent to that point that Constable Billett arrived at the property in response to a complaint by the occupant.

1      R v Livingston and Kenner CA232/00 12 October 2000.

2      At [13]-[17].

[10]     Having considered all the evidence in the case including that of the appellant, the Judge found the appellant’s explanation was “inherently unbelievable”,4 and that the explanation the appellant gave Constable Billett in the first instance was clearly the more correct one.   He said it supported the explanation given to the Police constable that the appellant “had just arrived there five minutes beforehand”.5

[11]     The nub of the appeal, as articulated by Mr Burns in his written submissions, is  that  there  is  a  factual  error  implicit  in  the  Judge’s  finding,  namely  that  the appellant “arrived” and “drove” to the address at the same time.  It is the appellant’s submission that the evidence did not disclose facts upon which the inference drawn by the Judge could reasonably be drawn, on the basis of the prosecution case.  The submissions for the appellant referred to various extracts from the notes of evidence. In examination-in-chief the constable said:

A.His  vehicle  was  parked  out  the  front  of  the  address,  he  –  he described his vehicle to me which I saw out the front of the address. He had the keys with him and he had stated that he had driven to the address about five minutes prior to my arrival.

[12]   The appellant says that in giving that evidence the constable made an assumption that the appellant had driven to the address.  Mr Burns referred to cross- examination of the constable:

Q.       You asked him if he’d driven there? A.     Yep.

Q.       Told you yes? A. Yep.

Q.That  that  was  a  separate  question  and  independent  of  the  other question of when he had arrived there wasn’t it?

A.       Sorry say that again.

Q.        There were two separate questions.  One was “did you drive to this address?”

A.       Yes.

Q.       The other was “when did you arrive at the address?”

4 At [24].

A.       - yeah –

Q.       - two separate questions and they weren’t necessarily one after the other?

A.       Well yeah I’ve recorded them in my notebook as one after another.

Q.You assumed that he had driven there five minutes prior, didn’t you?”

A.Yeah well he had his keys in his hand and his vehicle was out the front.

Q.But you failed to ask him if he had driven there five minutes prior, didn’t you?

A.       Yeah I didn’t actually ask him if he had driven there.  He just told me he had arrived there.

Subsequently Mr Burns put to the constable:

Q.But you say that you do have no evidence at all for the Court that he was driving after he consumed alcohol?

A.       No I don’t have an eye witness whose seen him driving.

Q.So  I put  it  to  you  that  he  hadn’t  been  driving  after  consuming alcohol?

A.       Well I have no idea if has been.

[13] Mr Burns also referred to the subsequent explanation provided by the appellant, which I have briefly summarised at [9] above.

[14]     It is quite clear, as Constable Billett answered in cross-examination to Mr Burns, that there is no evidence the appellant was actually seen driving his motor car on the road after he had consumed alcohol.  It is a matter of inference.  The Judge rejected the appellant’s version of events as inherently unreliable.  That leaves the evidence of Constable Billett as the basis for the prosecution case.  What inference could properly be drawn from Constable Billett’s evidence?

[15]     The critical facts from his evidence are that:

a)        The appellant told him he drove to the address;

b)The appellant told him he arrived at the address five minutes before the Police;

c)        Constable Billett saw his car at the address;

d)       Constable Billett saw the appellant had his keys in his hand;

e)       Constable Billett observed the appellant to be unsteady on his feet and smelling of alcohol (his intoxication level being subsequently confirmed by the breath and blood tests).

[16]     There is available on the basis of that evidence an inference that the appellant had driven to the address about five minutes prior to Constable Billett arriving at the address.   Alternatively, there is available an inference that he had arrived at the address five minutes before the constable arrived by some means other than driving. But that alternative inference was rejected by the Judge in roundly rejecting the appellant’s evidence.  That leaves the first of the inferences I have referred to: that on the basis of what the appellant told Constable Billett as recorded in his notebook and what the constable observed as told to the Court in evidence, the appellant had arrived at the address about five minutes earlier by driving his motor car to the address.

[17]     I  consider   that   is   a   reasonable   and   logical   inference   which   in   the circumstances of this case was capable of providing proof beyond reasonable doubt of the charge.  The appeal will therefore be dismissed.