Freeman v Police
[2018] NZCA 480
•7 November 2018 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA365/2018 [2018] NZCA 480 |
| BETWEEN | RODNEY ALLEN FREEMAN |
| AND | NEW ZEALAND POLICE |
| Hearing: | 25 October 2018 |
Court: | Brown, Courtney and Katz JJ |
Counsel: | A S P Tobeck for Applicant |
Judgment: | 7 November 2018 at 10.30 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
The applicant Mr Freeman was convicted in the District Court at Tokoroa on 1 November 2017 of driving with excess breath alcohol.[1] His appeal to the High Court was dismissed.[2]
[1]Police v Freeman [2017] NZDC 23561 [DC judgment].
[2]Freeman v Police [2018] NZHC 1248 [HC judgment].
Mr Freeman seeks leave under s 237 of the Criminal Procedure Act 2011 for a second appeal to this Court. Section 237(2) provides that the Court must not give leave for a second appeal unless satisfied that:
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
The legislative context
The proposed appeal concerns the interpretation of the Land Transport (Breath Tests) Notice 2015 (the 2015 Notice). The predecessor to that notice, the Transport (Breath Tests) Notice (No 2) 1989, provided for the results of an evidential breath test from various breath screening devices as follows:
10Manner of carrying out evidential breath tests by means of DataMaster, Dräger 7110, Intoxilyzer 5000, or Seres
…
(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 print‑out, and will include the Evidential Breath Test Result which shall 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.
In Henderson v Police, where the device failed to print out a result of the evidential breath test in hard copy form, it was held that, as the whole purpose for which the device was designed was evidential, the record of result was an integral
part.[3] Without such a result recorded in the prescribed form the testing procedure had to be regarded as incomplete. Goddard J stated:[4]
Whilst it is correct that a police officer is able to observe and make his or her own record of the lowest of the two scores displayed on the screen of the device, that does not constitute a result in the prescribed form.
[3]Henderson v Police [2005] DCR 569 (HC).
[4]At [8].
To address such an outcome a new provision was introduced in the 2015 Notice:
9Manner of carrying out evidential breath tests by means of Dräger 7510NZ or Dräger 9510NZ
…
(c) Step 3: Results of test
(i) The result of the Evidential Breath Test (which, under section 77(1) of the Land Transport Act 1998, it is to be conclusively presumed indicates the number of micrograms of alcohol per litre of breath of the person tested) will appear on the display panel of the device.
(ii)If the Evidential Breath Test Result is “Incomplete Test”, the test has been unable to be carried out, and Step 2 can be repeated.
Also relevant to the proposed appeal is s 64(2) of the Land Transport Act 1998 (the Act) which provides:
(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.
Relevant background
On 18 January 2017 Mr Freeman was pulled over when driving. A breath‑screening test was conducted on the roadside showing a result of over 400 micrograms. Mr Freeman was then taken to the police station where a breath test procedure was undertaken.
The evidential breath test was administered in accordance with the 2015 Notice. The result of the breath test was 0954. It was recorded by the police sergeant in his handwriting on the procedure sheet and a copy of the printout result from the device was stapled to the procedure page. Mr Freeman did not elect a blood test.
Mr Freeman argued that the 2015 Notice requires the prosecution to prove the result that was shown on the display, and that a printout of the result from the machine was insufficient. At a defended hearing in the District Court at Tokoroa the police sergeant was cross-examined as follows:
Q.See at the bottom there, you’ve got, it’s printed on the form, “Result obtained?”
A.Yes.
Q.And you’ve written in there, “0954?”
A.Yes.
Q.That’s being the, as you say, the micrograms of alcohol per litre of breath?
A.Yes.
Q.Now that figure there, you’ve got from the printout sheet attached to the back?
A.Generally that’s written on the machine itself when the machine comes up with a result, I’ll write it but yes that is the result shown on the, on the receipt from the machine.
Q.And that’s where you’ve got the result from wasn’t it?
A.Yes from the machine.
Judge MacKenzie accepted that the prosecution had established that the reference to “from the machine” could only mean the display panel of the device. However the Judge added that even if the police sergeant’s evidence had been silent as to the display panel she would have found the charge proved for the same reasons as in Police v Tolcher,[5] namely that it would be nonsensical to suggest that the Court was unable to rely on the printout from the device Mr Freeman blew into unless accompanied by direct evidence of what was actually displayed on the device panel.[6] In those circumstances the Judge did not find it necessary to consider the application of s 64 of the Act.
[5]Police v Tolcher [2016] NZDC 11890.
[6]DC judgment, above n 1, at [34]; and Police v Tolcher, above n 5, at [26].
On appeal Brewer J considered that the evidence was equivocal as to whether the sergeant had noted the result from the display panel or from the printout.[7] However, Brewer J observed that there is no prescription in the 2015 Notice as to the evidential form for the reporting of the test result as displayed on the panel, suggesting that options might include memorisation, manual recording or photographing the display panel.[8] The Judge accepted that the printout from the device, unimpeached as to accuracy, would suffice as proof of the result that appeared on the display panel of the device.[9] Mr Tobeck’s submission for Mr Freeman that s 64(2) applies only to provisions of the Act and not to Notices made pursuant to authority delegated under the Act was rejected.[10]
Discussion
[7]HC judgment, above n 2, at [19].
[8]At [14].
[9]At [20]–[21].
[10]At [18].
Mr Tobeck submitted that the proposed appeal raised two matters of general or public importance:
· Under the 2015 Notice what is the evidential status (if any) of a printout from an evidential breath testing device?
· Does s 64(2) apply only to the specified sections of the Act or does it extend to regulations made under the authority of the Act?
In addition he submitted that there had been an irregularity in the way in which the matter had progressed through the court system, namely that because, so it was said, there was no fully reasoned decision in the District Court the proposed second appeal was in substance a first appeal from the High Court on the issue. Consequently if leave to appeal was not granted a miscarriage of justice may occur.
With reference to the first proposed matter, we agree with the submission of Ms Max for the respondent that the 2015 Notice is wider than previous Notices in that it does not prescribe the evidential form of the result of the breath test procedure. There is no requirement that the result on the display screen be proven only with reference to the display screen. We consider that the prosecution is entitled to establish the result on the display panel in the various ways described by Brewer J and by reference to the printout. We agree with Ms Max that any other reading would be overly narrow and inconsistent with the purpose of the Act as explained by the Supreme Court in Aylwin v Police.[11]
[11]Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].
So far as the second proposed matter is concerned, both ss 69 and 77, being sections referred to in s 64(2), make reference to the evidential breath test procedure. An evidential breath test is defined in s 2(1) of the Act to mean 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. The 2015 Notice was given pursuant to s 2. In our view the provisions of the 2015 Notice also fall within the ambit of s 64(2) given that those provisions are contemplated by sections specifically referred to in s 64(2).
Consequently neither of the grounds of appeal proposed by Mr Tobeck involves a matter of general or public importance.
We consider that the decision of the District Court Judge was thorough and sound. No issue of a miscarriage of justice could be said to arise in the manner suggested by Mr Tobeck.
Result
The application for leave to bring a second appeal is declined.
Solicitors:
CT Legal, Hamilton for Applicant
Crown Law Office, Wellington for Respondent
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