Freeman v Police
[2018] NZHC 1248
•31 May 2018
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE
CRI-2018-463-33
[2018] NZHC 1248
BETWEEN RODNEY ALLEN FREEMAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 May 2018 Counsel:
A S P Tobeck for Appellant M S Jenkins for Respondent
Judgment:
31 May 2018
JUDGMENT OF BREWER J
This judgment was delivered by me on 31 May 2018 at 10:00 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
CT Legal (Hamilton) for Appellant Gordon Pilditch (Rotorua) for Respondent
FREEMAN v POLICE [2018] NZHC 1248 [31 May 2018]
Introduction
[1] Mr Freeman appeals his conviction for driving with excess breath alcohol.1 There is a single issue:
Was there sufficient evidence of the result of the evidential breath test?
[2] This issue comes from the wording of clause 9 of the Land Transport (Breath Tests) Notice 2015:
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.
[3] The case for Mr Freeman is that the evidence given to Judge MacKenzie in the District Court was not of the result that appeared on the display panel of the device. Instead, it was the result which appeared on the printout from the device recording the result.
[4] My task is to decide whether Judge MacKenzie erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred. A miscarriage of justice means that something has gone wrong to the extent there is a real risk the outcome of the trial was affected or the trial was otherwise unfair.
Background
[5] I do not need to set out the narrative which led to Mr Freeman undergoing an evidential breath test. It suffices to note he was legally obliged to undergo an evidential breath test, and he did. It was administered in accordance with the law, and in particular in accordance with the 2015 Notice. The prosecution case was that the result of the evidential breath test was 0954 and this was recorded by the testing officer by hand in the procedure sheet. The Dräger device used to administer the evidential
1 Police v Freeman [2017] NZDC 23561.
breath test produces a printout result and in this case it was stapled by the officer to the last page of the procedure sheet.
[6] The relevant evidence of the testing officer is set out in Judge MacKenzie’s judgment:
[13]In his evidence-in-chief, Sergeant Peat said this about the result:
I then began the evidential breath test. Noted the time down there at 0812. The serial number and the calibration date is there for the, the Drager 9510 device that I was using. Followed the device, followed the procedure sorry on the device and also the check sheet and the result of that evidential breath test was 0954 micrograms of alcohol per litre of breath.
[14] The issue was addressed in cross-examination by Mr Tobeck as follows:
Q. You have a copy of exhibit 1 with you?
A. Yes I do, yes.Q. If you can go to (inaudible 11:21:25)?
A. Yes.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.
Discussion
[7] There are four matters the prosecution is required to prove to make out a charge of driving with excess breath alcohol.2 The Supreme Court stated them in Aylwin v Police:3
(a)The fact that a breath screening test was conducted;
(b)The fact that an evidential breath test was conducted;
2 The relevant statutory provisions are ss 56(1) and (4) Land Transport Act 1998 (LTA).
3 Aylwin v Police [2008] NZSC 113 at [14].
(c)The results of these tests; and
(d)That [a defendant] was advised of his rights to have a blood test.
[8] As I have said, in this case, the challenge is to whether the prosecution proved the result of the test.
[9] Put simply, Mr Tobeck’s submission on behalf of Mr Freeman is that Sergeant Peat’s evidence does not establish he recorded the result which appeared on the display panel of the device. In Mr Tobeck’s submission, the evidence of Sergeant Peat is at best equivocal. The sergeant might have been referring to recording the result “written on the machine itself” or he could have been saying he took the result “from the machine”, meaning the receipt (printout) from the machine. The onus was on the prosecution to prove the result of the test beyond reasonable doubt.
[10] This is what is known as a technical point. The law in relation to establishing evidential breath test results or evidential blood test results contains hundreds of cases where the fertile minds of counsel conceived technical challenges to procedures adopted by testing officers. Quite often, they were successful. Parliament attempted to limit the scope for technical defences in relation to evidential breath test results by enacting s 64(2) of the LTA:
(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.
[11] Further, from time to time the Notices setting out procedures for administering tests have been updated, partly (it is logical to infer) to respond to tricky new points.
[12] The Land Transport (Breath Tests) Notice 2009 required the result of an evidential breath test to be taken from the printout produced by the testing device. But what happened if the device malfunctioned so that, even though the result could be read on the display panel, it could not be taken from the printout due to the malfunction? It was just such a case that came before Wylie J in Andrews v Police.4 In that case, because of the malfunction, the testing officer showed Mr Andrews the
4 Andrews v Police [2014] NZHC 141.
display panel on the testing device when the breath test result was displayed on it. He told Mr Andrews that that was the evidential result that the device had produced. Justice Wylie held:
[34] The third step concerns the recording of the results for evidential purposes. Until the results are recorded in acceptable evidential form, the test is of no evidential value. It has been observed as follows:
… As the whole purpose for which the device is designed is evidential, the record of result is an integral part. Without such a result, recorded in prescribed form, the testing procedure must be regarded as incomplete or not carried out. 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.
[35] There is ample authority for this observation. It is clear that, unless a result is obtained on a result card or printout in a manner which can be read and proven in evidence, an evidential breath test is not complete.
(Footnotes omitted)
[13] However, the malfunctioning device had eventually produced a printout and the printout had been shown to Mr Andrews. But that was after he had been given the statutory 10 minutes to reflect on whether he would elect to have an evidential blood test. Since he had not been shown the printed result by then, it followed that he was never, technically, given the mandated 10 minute period. The evidence of the result of the evidential breath test was not admissible against him. Nevertheless, Wylie J concluded that s 64(2) applied. In all the circumstances, there had been reasonable compliance. Accordingly, Mr Andrews’s appeal against conviction failed.
[14] It appears the 2015 Notice has taken account of the difficulties which might arise if a testing device malfunctioned in the way which occurred in Andrews v Police. Or perhaps it is intended to simplify the procedure. In any event, the reference is no longer to the printout but to the display panel. The Notice is silent, also, on how the result appearing on the display panel should be recorded. There is no longer a stipulated acceptable evidential form. I suppose options might include memorisation, manual recording, or photographing the display panel.
[15] The Notice does not mention the printout. Under the 2009 Notice it was the required record of the result for evidential purposes.
[16]Judge MacKenzie held:
[31]Accordingly, I am satisfied beyond reasonable doubt that the police have proved the result for the following reasons:
(a)When Sergeant Peat was challenged about the circumstances in which he handwrote the result, his evidence made it clear that the result is generally written on the machine itself (referring to the Drager). More specifically, he said that he got the result “from the machine”. That can only mean the display panel of the device, given Sergeant Peat’s explanation that it is “written on the machine itself.”
(b)For the result to be recorded on the printout, it is axiomatic that it must have appeared on the display panel of the machine.
(c)There is no suggestion that the evidential breath test was administered otherwise than in accordance with the 2015 notice as per the procedure sheet.
[17] Her Honour added that even if she were wrong about the effect of Sergeant Peat’s evidence, she would have found the charge proved for reasons set out in a decision of the District Court, Police v Tolcher.5 In that case, the District Court Judge held the critical point was proof that the result comes from the device used. Given that the Notice does not specify the evidential form in which the result must be presented, there is no reason why the printout cannot be the evidence which records the result which was displayed on the panel.
[18] In my view, s 64(2) of the LTA makes it clear that Parliament does not intend technical points in this area of the law to provide a defence. Mr Tobeck submits s 64(2) applies only to provisions of the LTA and not to Notices made pursuant to authority delegated under the LTA. I disagree. The greater includes the lesser. However, as appears below, I do not find this to be an issue germane to this case.
[19] In this case, the evidence is equivocal as to whether Sergeant Peat noted the result from the display panel or from the printout. I do not agree with Judge MacKenzie on this point. The former is more probable, but I cannot exclude the reasonable possibility that it is the latter.
5 Police v Tolcher [2016] NZDC 11890.
[20] However, I agree with the view, adopted by Judge MacKenzie, expressed in Police v Tolcher. 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. There is no evidential challenge to the accuracy of the printout. There is no suggestion in the evidence that the printout might be at variance with the display on the panel, and it would be against all common sense to think it might be given it was, under the 2009 Notice, the required form of evidence of the result.
[21] I conclude that under the 2015 Notice the prosecution must prove beyond reasonable doubt, by whatever means can suffice, the result that appeared on the display panel of the device. The printout from the device, unimpeached as to accuracy, will suffice.
[22] I conclude also that if, alternatively, Sergeant Peat’s note of the result came from his observation of the display panel, then that also, unimpeached as it was, will suffice.
[23] I find that Judge MacKenzie was correct in her conclusion. The result of the evidential breath test was recorded by the testing officer and was properly conveyed to the Court. There was no miscarriage of justice.
Decision
[24]The appeal is dismissed.
Brewer J
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