Freeman v Police - [2018] NZHC 1248

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Freeman v Police

Details

AGLC: Freeman v Police [2018] NZHC 1248
Case: [2018] NZHC 1248
Decision Date: 31 May 2018

CaseChat Overview and Summary

Rodney Allen Freeman appeals his conviction for driving with excess breath alcohol. The sole issue before the court is whether there was sufficient evidence of the result of the evidential breath test. This issue arises from the wording of clause 9 of the Land Transport (Breath Tests) Notice 2015, which stipulates that the result of the evidential breath test will appear on the display panel of the device. The appellant contends that the evidence presented to the District Court did not reflect the result that appeared on the display panel of the device, but rather the result from the printout. The court's task is to determine if the judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred.

The court considers the four matters the prosecution must prove to make out a charge of driving with excess breath alcohol, namely the fact that a breath screening test was conducted, that an evidential breath test was conducted, the results of these tests, and that the defendant was advised of their rights to have a blood test. In this case, the challenge is whether the prosecution proved the result of the test. The court finds that the evidence presented by the testing officer was equivocal, leaving room for doubt as to whether the result was taken from the display panel or the printout. However, the court agrees with Judge MacKenzie's view that there is no prescription in the 2015 Notice as to the evidential form for reporting the test result as displayed on the panel. Therefore, the unimpeached printout from the device will suffice as evidence of the result.

The court concludes that Judge MacKenzie was correct in her conclusion, as the result of the evidential breath test was recorded by the testing officer and properly conveyed to the court. There was no miscarriage of justice. The appeal is dismissed.

Order: The appeal is dismissed.

Orders