Faiva v Police
[2016] NZHC 128
•10 February 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-369 [2016] NZHC 128
IN THE MATTER of an appeal against conviction pursuant to
s 229 Criminal Procedure Act 2011
BETWEEN
ONEONE FAIVA Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 February 2016 Appearances:
T M Saseve for Appellant
N W Dobbs for RespondentJudgment:
10 February 2016
JUDGMENT OF M PETERS J
This judgment was delivered by Justice M Peters on 10 February 2016 at 4.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Saseve Solicitors, Papatoetoe
Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau
FAIVA v POLICE [2016] NZHC 128 [10 February 2016]
[1] The Appellant appeals against conviction for driving while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath (“mcg/l”).1 The conviction followed a Judge-alone trial before Judge Bouchier in the District Court at Manukau on 14 October 2015.2
Approach on appeal
[2] The Appellant has a general right of appeal against conviction.3 To succeed, the Appellant must persuade the Court that there has been an error or irregularity or occurrence affecting the trial that has created a real risk that the outcome of the trial was affected or resulted in a trial that was unfair or a nullity.4
[3] The essence of the appeal is that the Judge erred in admitting evidence of the result of the Appellant’s positive evidential breath test. The case for the Appellant is (and was at trial) that the constable who administered the evidential breath test failed to advise the Appellant of essential matters “without delay”, as provided for in s 77(3) Land Transport Act 1998 (“LTA”).
[4] In a case such as the present, s 77(3) provides that the result of an evidential breath test is inadmissible unless the person undergoing the test is advised “without delay after the result of the test is ascertained” that the result was positive and that the test could itself be conclusive evidence leading to the person’s conviction if they
do not request a blood test within 10 minutes. “Without delay” means “forthwith”.5
[5] The relevant provisions are:
77 Presumptions relating to alcohol-testing
(3) ... the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against [s 56(1)] if —
(a) the person who underwent the test is not advised by an enforcement officer, without delay after the result of the test is ascertained,—
1 Land Transport Act 1998, ss 11(a) and 56(1).
2 Police v Faiva [2016] NZDC 528.
3 Criminal Procedure Act 2011, s 229(1).
4 Section 232.
5 See Twiss v Police HC Christchurch AP81/00, 7 July 2000; and McCarthy v Police HC Wellington AP312/02, 19 February 2003.
(i) that the test was positive; and
(ii) of the consequences specified in subsection (3A), so far as applicable, if he or she does not request a blood test within 10 minutes; or
(b) ...
(3A) The consequences referred to in subsection (3)(a)(ii) are—
(a) that the positive test could of itself be conclusive evidence to lead to that person’s conviction for an offence against this Act if—
(i) the test indicates that the proportion of alcohol in the person’s breath exceeds 400 micrograms of alcohol per litre of breath; or
(ii) the person is younger than 20 ...; or
(iii) the person holds an alcohol interlock licence ...
[6] The inadmissibility of the result brought about by a failure to comply with s 77(3) may only be overcome by the prosecution satisfying the Court that, regardless, there had been “reasonable compliance” within the meaning of s 64(2) LTA. For reasons set out below I do not need to address that provision.
[7] The Judge found as a fact that the Appellant was given the required information without delay, and so the challenge to the admissibility of the test result failed. The issues on appeal are whether that finding of fact was open to the Judge on the evidence and, if not, whether there had been “reasonable compliance” so as to render the result admissible in any event.
Facts
[8] At 11:42 pm on 9 August 2014, the Police stopped the Appellant, who was driving on Kolmar Road in Papatoetoe, and administered a “breath screening” test.
[9] The test gave a positive result, at which point the constable and Appellant went to the Manukau Police Station where the Appellant undertook an evidential breath test. The evidence as to what was then done and when derived from the constable himself and from a “Breath and Blood Alcohol Procedure Sheet” (“sheet”) that the constable completed during the course of the evening.
[10] On the face of the sheet the constable:
(a) required the Appellant to undergo an evidential breath test “without delay” at 00:25. The constable took the time from his wristwatch and all concerned have been willing to proceed on that basis;
(b)advised the Appellant of the result of the test at 00:43. The result of the test was 1061 mcg/l and so was more than twice the permitted maximum of 400 mcg/l; and
(c) advised the Appellant that the test had given a positive result of
1061 mcg/l and of the other matters referred to in s 77(3)(a)(ii) LTA at
00:46. The Appellant signed the form as confirmation that he was so
advised “when my evidential breach test result was obtained”.
[11] Because it is relevant to what follows, the matters referred to in (a) and (b)
above are in Box I of the sheet and the matters referred to in (c) are in Box J.
[12] A print out from the testing device showed that the test took seven minutes to complete. The time on the device was incorrect as it showed the test commenced at
20:31, but nothing turns on that for present purposes.
[13] The Appellant declined the opportunity to undergo blood alcohol testing procedures. Accordingly, he was charged and the matter went to trial on the basis of the result to which I have referred.
Delay in informing of a positive result
[14] It is apparent from the above that 18 minutes elapsed between the time the Appellant was required to undergo the test and the time at which he was told the result was positive; that administering the test took up seven of those minutes; and that the required advice was given three minutes after the Appellant was told the result.
[15] The first issue at trial therefore was whether the time at which the test was completed could be ascertained, so as to determine how much time elapsed between obtaining the result of the test and 00:43.
[16] The Appellant’s case was that 11 of the 18 minutes between 00:25 and 00:43 were unaccounted for and that the result of the test may have been known as early as, say, 00:33 in which case it could not be said that the necessary advice – given at
00:46 – was given without delay.
[17] The Judge did not accept this submission. Her view was that the delay must have been in commencing the test, as the constable gave evidence that the Appellant was “co-operative, but slow, due to his intoxication”.6 There is some substance in counsel for the Appellant’s submission that this evidence on its own was insufficient for the finding the Judge made.
[18] However, the Judge also referred to evidence given by the constable that he advised the Appellant of the result of the test “immediately” at 00:43. On that basis the Judge appears to have concluded that the result came to hand at 00:43 or shortly before, in which case there was only a lapse of three minutes in communicating the other essential matters.7
[19] I have reviewed the notes of evidence on the point. The relevant part is as follows:8
Q. So once you had received the print out from that machine, what did you do then regarding the defendant?
A. Showed the defendant the result and got the recorded time and the result was taken.
Q. Okay, so again just coming back to [the sheet] are we now looking at box I?
A. Yes.
Q. And then over the page and just to page 3 box J, what did you do regarding that particular box?
6 Police v Faiva, above n 2, at [27].
7 At [27].
8 Notes of Evidence dated 14 October 2015 at 7.
A. I put the results of 1061 and once again read the … defendant’s Bill of Rights and if he elected to take blood that he was required 10 minutes, read him his Bill of Rights.
[20] I consider it follows from the first two questions and answers that the constable received the print out, told the Appellant the result and completed Box I on the sheet largely at the same time, that is at 00:43 or very shortly before, ie that the result was both received and communicated at 00:43. The Appellant was then informed of the other necessary matters by 00:46.
[21] The Appellant does not contend anything turns on the three minute period between 00:43 and 00:46. The issue was whether there may have been a significant lapse of time between completing the test and 00:43. On the basis of the evidence at trial, I am satisfied that the Judge was correct in finding that there was no significant lapse and that the result was admissible accordingly.
[22] Given that, I do not need to consider the issue of “reasonable compliance”. [23] I dismiss this appeal.
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M Peters J
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