G v Police HC Auckland CRI 2008-404-312

[2008] NZHC 2038

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-312

BETWEEN  G

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 December 2008

Appearances: P L Borich for the Appellant

G Kayes for the Respondent

Judgment:      16 December 2008

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on 16 December 2008 at 3.30 p.m. pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date: …………………………

Solicitors:
P L Borich, Rice Craig, P O Box 72 440, Papakura, 1703. Fax: [phone]

G Kayes, Meredith Connell & Co, P O Box 2213, Auckland 1140 Fax: [phone]

G V POLICE HC AK CRI 2008-404-312  16 December 2008

The Issue

[1]      Around 9.30 pm on 21 February 2008 the appellant, Ms G  , was driving her motor vehicle on the outskirts of Pukekohe in an intoxicated state.

[2]      At 11.05 pm a sample of her blood was taken at the Pukekohe Police Station. Analysis revealed that the proportion of alcohol in the appellant’s blood was 184 mg per 100 ml of blood.  Such a blood alcohol level is more than double the permitted maximum of 80 mg of alcohol per 100 ml of blood.  As a result the appellant was prosecuted for breach of s 56(2) of the Land Transfer Act 1998.

[3]      The appellant pleaded not guilty.  A defended hearing ensued in the District

Court at Manukau.  An oral judgment was delivered by Judge Mahony on 3 October

2008.  The Judge convicted the appellant and imposed a six month disqualification period, a $700 fine, and ordered payment of $130 costs.

[4]      This appeal solely challenges the conviction.

[5]      Approximately an hour before the blood sample was taken from the appellant a police officer had informed her, were she not to volunteer a sample, she could be arrested.  The appellant then had a telephone conversation with a lawyer (her second such conversation that evening).   She then consented to the blood sample being taken.

[6]      The sole issue is whether the police officer raising the possibility of the appellant being arrested provides her with a technical defence, thereby avoiding the inevitable consequences of driving her motor vehicle whilst intoxicated.

Relevant facts

[7]      On the evening of 21 February 2008 the appellant had been observed driving her motor vehicle erratically.  She was stopped.  She smelt of alcohol.  A passive breath test detected alcohol on her breath at approximately 9.35 pm.  There followed

three failed attempts by the appellant to blow into the standard breath screening device.  No result was obtained.

[8]      As a result of these failures the appellant was required to accompany the police officer to the Pukekohe police station for an evidential breath test, a blood test, or both.  She was given the standard Bill of Rights advice and warnings at 9.48 pm and signed the relevant form.

[9]      Two minutes later the appellant exercised her right to speak to a lawyer.  An

11 minute telephone conversation followed concluding at 10.01 pm.

[10]     Between approximately 10.03 pm and 10.05 pm the appellant was required to carry out the standard evidential breath test.  She made six attempts to blow into the machine (the standard request requires two blows).  They were all unsuccessful.  The appellant’s attempts to blow varied.  Sometimes her exhalations were not sufficient. Sometimes she sucked rather than blew.  Sometimes she blew along the side of the device rather than into it.  In any event the attempts failed completely with the result that the machine printed out an “incomplete test” result because no breath sample resulted.

[11]     The police officer then provided the appellant with a standard “Advice of Positive Evidential Breath Test” form which showed under the second paragraph, where normally a positive result is recorded, the handwritten words “incomplete test”.   It is common ground that this form was the incorrect form to use in the circumstances.  The appellant was asked to sign it at approximately 10.05 pm.  She refused.

[12]     At 10.09 pm the appellant was shown a standard blood specimen form on which the police officer had filled in her name, address, and date of birth.  She was asked to sign the form to indicate she consented to a blood sample being taken.  The appellant refused.   At that stage the police officer advised her that if she did not consent to the step of providing a blood sample she could be arrested for refusing the request.  The police officer noted in his notebook that he had “warned of arrest for blood refusal”.  Five minutes later the appellant was given her second Bill of Rights

advice which she understood and signed.   She then asked (at 10.15 pm) to speak again to a lawyer.  There was a second telephone conversation to the same lawyer, which occupied 20 minutes.  Two minutes later, at 10.37 pm, the police officer again requested the appellant to give a blood sample.  She agreed and signed the consent form.

[13]     A medical practitioner was asked to come to the Police Station.  The doctor duly arrived.  The blood sample was taken at 11.05 pm.  Fifteen minutes later the appellant was released.

District Court Judgment

[14]     Central to the defence raised by the appellant is the Court of Appeal decision Auckland City Council v Dixon [1985] 2 NZLR 489. I discuss that in greater detail below.

[15]     The appellant made two submissions to Judge Mahony, both of which were to be repeated on appeal.  The first submission was that the police officer wrongly introduced the “Advice of Positive Evidential Breath Test” form.  The Judge rejected that submission.  He was satisfied on the evidence before him that the form, although not being used for its normal purpose, was used “solely to have a written acknowledgement of the incomplete test which the defendant refused to provide”. The Judge was satisfied that the introduction of the form did not interrupt or invalidate the required testing process.   Nor was it used to introduce the option to elect to have a blood test.

[16]     The second submission related to Dixon.   The Judge considered that the relevant dictum of the Court of Appeal (again, discussed below) did not amount to an exclusionary rule to be applied without regard to the circumstances of each case.

[17]     Having discussed and reviewed Dixon and two other authorities, the Judge found  the  police  officer  indeed  referred  to  the  fact  that  the  appellant  could  be arrested.  He had not referred, in that context, to the possibility of bail.

[18]     The Judge found the police officer was not pressing the appellant for her consent.  He referred to the 20 minute telephone conversation by the appellant with the lawyer and her subsequent consent.   He observed the appellant had not given evidence “… and thereby avail herself of the opportunity to say that she had been induced to sign that form by the earlier reference to arrest”.

[19]     The Judge concluded there was no evidence to support an inference that the appellant’s consent was improperly obtained and no basis for excluding the evidence of the blood test and its result.  This last finding of the Judge, and his refusal to draw the inference the appellant’s consent had been improperly obtained, is central to the appeal.

Discussion

[20]     Nothing, in my judgment, hangs on the police officer’s deployment of the wrong form (“Advice of Positive Evidential Breath Test”), at 10.05 pm when the appellant had failed to conclude the evidential breath tests.  Mr Borich accepted that the use of this form neither added to nor detracted from his principal appeal point.  In his submission the incorrect form showed confusion on the part of the police officer and was the prelude to inappropriate pressure.

[21]     There was unchallenged evidence from the police officer’s notebook and from the evidence he gave at the hearing that immediately after the appellant refused to provide a blood sample at 10.09 pm, the police officer informed the appellant she could be arrested for refusing the request for blood.  His evidence was:

Initially when I said to her did she consent she said no and I advised her that if she didn’t consent to this step in the form that she could be arrested for refusing my request.  She appeared to understand that and that is when we move to the next stage of speaking to the lawyer so that I can make sure she completely understood the process.

[22]     There was no challenge to this evidence.  It was not explored further in cross- examination.   The appellant did not give evidence and so what effect, if any, the police officer’s remark had on her that evening was unknown.

[23]     Regardless  of  the  context,  tone,  or  effect  of  the  police  officer’s  words, advising a blood/alcohol suspect that arrest is a possibility is inaccurate.  For obvious policy reasons, refusal to provide a blood sample (when that stage of the procedure has been reached), is itself an offence under s 60 of the Land Transport Act 1998.  It is an offence which carries a maximum penalty (for a first or second offence) of three months imprisonment.   That maximum certainly renders refusal to supply a blood specimen an arrestable offence.  In most cases, however, an arrest will not be made.   Rather the offending will be prosecuted by the subsequent laying of an information.

[24]     In some situations where a suspect is extremely drunk, or where his or her safety may be an issue, or where behaviour verging on belligerence or obstruction is evident, then an arrest would be good police practice.  There is no evidence this was the case here.  The appellant’s conduct, based on her nine unsuccessful attempts to complete roadside breath screening tests and evidential breath tests, might well have been  described  as  passively  uncooperative.    But  her  arrest  would  not,  in  my judgment, have been seriously contemplated or justified.

[25]     It is on that basis that the principles enunciated by the Court of Appeal 23 years ago in Auckland City Council v Dixon assume importance.

[26]     The prosecution in Dixon of driving with excess blood alcohol arose at a time when some New  Zealand territorial  authorities maintained transport departments staffed by traffic officers to enforce the Transport Act 1962.  The District Court had rejected a defence that the blood specimen in question had been obtained by duress. On appeal to the High Court it was held that the defence should have been allowed. Prichard J relied on evidence from the traffic officer that he told the defendant he would be arrested and taken to a police station if he failed to provide a blood sample. The High Court Judge saw this as a blatant threat made in terrorem and an abuse of power.

[27]     Cooke J delivering the Court of Appeal’s judgment (special leave to appeal having been granted) stated at 490:

We do not think that anything should turn in such a context on distinctions between  “will”  or  “may”,  “would”  or  “could”.    As  far  as  reasonably possible, the administration of blood alcohol law should be kept free of linguistic refinements.   And a fine shading of language  is  not likely to diminish any sense of threat in the mind of the motorist who has just undergone an evidential breath test producing a marginal reading – as was the case here (400 micrograms of alcohol per litre of breath).

[28]     Counsel for the Auckland City Council accepted that to inform a suspect who refused a blood sample without more that he might be arrested would “create a wrong impression”.  The Court went on to say (at 492):

The present case should be approached on the footing that the District Court Judge found that the officer did not expressly mentioned "holding over" or "locking up". But we do not think that it makes any difference. In general, whenever the possibility of arrest is mentioned in dealing with suspects in breath or blood alcohol cases and whether or not it is mentioned in answer to a question from the suspect, the officer should also mention the possibility of bail. No particular form of words is necessary, but unless the person is made aware that bail may be available there is a plain risk that consent to a blood specimen will be extracted by what is tantamount to misrepresentation. That the Courts could not countenance. And on this ground alone we hold that Prichard J reached a conclusion open to him in law in excluding the blood specimen from evidence here as having been obtained by a wrong inducement.

[29]     Hence the expectation that if for some reason a police officer does use the “arrest word” in a breath or blood alcohol context then the word must be tempered by mention of the possibility of bail.

[30]     Finally, in the context of a discussion about statutory powers of arrest without warrant being exercisable, the Court of Appeal said (at 493):

What we can say is that an officer should never exercise the power without being satisfied that it is necessary in the particular circumstances to take this serious  step.  If,  apart  from  the  mere  refusal  of  a  blood  test,  he  is subsequently unable to point to features of the case which led him to make the arrest, he will be at risk of a finding of abuse of power.

[31]     It seems that in Dixon the defendant gave evidence in the District Court. There is reference to “conflicting evidence” (at 490). The District Court Judge had rejected evidence the traffic officer had told the defendant she would be or could be held overnight but found the defendant had been told by the officer he could be arrested and taken to Auckland Central Police Station.

[32]     This Court of Appeal judgment led, unsurprisingly, to a spate of appeals involving “the Dixon formula” (see Flower v MOT (HC AK AP 64/89, 31 October

1989, Robertson J).  A comprehensive and compelling analysis of the authorities was conducted by Eichelbaum CJ in Ellicock v Courtney (1992) 8 CRNZ 390.  The Chief Justice considered Dixon had perhaps been applied indiscriminately without proper attention being paid to its “philosophical or pragmatic foundation” (at 393).

[33]     Dixon was based on some credible narrative that evidence had been obtained unfairly.   Importantly the reasonable possibility of a causative link between the question, words, or conduct and the obtaining of evidence was the proper focus.

…I am unable to accept the automatic vitiation theory developed in the High Court decisions purporting to follow Dixon. Where the evidence discloses a credible narrative of material capable of supporting the conclusion that consent (whether to accompany, or to take an evidential test, or to give a blood sample) was obtained unfairly, the prosecution must exclude that proposition as a reasonable possibility. Unfairness may include misrepresentation, coercion, improper pressure, or an inducement. The ultimate question is whether there is a reasonable possibility of a causative link between the words or conduct complained of and the particular evidence relied upon, usually the result of the evidential breath test, or the blood test.

…

In  relation  to  any  situation  under  the  breath/blood-alcohol  legislation, whether relevant evidence should be excluded on grounds of unfairness in the obtaining of consent has to be decided on the particular facts. Failure to refer to bail when informing the driver that he or she will or may be arrested should  not  automatically  lead  to  exclusion  of  evidence  subsequently obtained. The ultimate issue is whether there is a reasonable possibility of a causative  link  between  the  words  or  conduct  complained  of,  and  the evidence in question.  [398 – 399]

[34]     The clearly articulated policy reasons lying behind the Court of Appeal’s Dixon judgment and the analysis of Eichelbaum CJ in Ellicock are critical.  What is central to the inquiry is whether a consent to provide a blood specimen is a product of unfairness or improper pressure.  This element is totally separate from the burden on a prosecutor to prove the essential ingredients of or prerequisites to an offence beyond reasonable doubt.

[35]     If, in the proof of a breath or blood alcohol offence, a prosecutor fails to establish identity or fails to lead evidence about the type of device used, or fails to complete the evidential chain of passage of a blood specimen in a secure way to the

analyst, or matters of that type, then there is a flaw.  Defence counsel are perfectly entitled to sit mute until the prosecution case closes then point to the flaw.

[36]     But unfairness or improper pressure is not something which a prosecutor necessarily has to deal with as part of the proof of a blood alcohol offence.   As Eichelbaum CJ observed in Ellicock (supra [33]), where the evidence discloses a credible narrative which might support a conclusion that (in this case) the consent to give a blood sample was unfairly obtained, then the prosecution must exclude that proposition as a reasonable possibility.

[37]     Addressing that issue, but in a slightly different fashion, Mr Borich submitted that the police officer’s comment about arrest must lead to the conclusion that the appellant’s subsequent consent was obtained unfairly.  Up to that point, submitted counsel, the appellant had been non-compliant throughout most of the procedure. She had failed the roadside breath screening test three times.  At the police station she had failed six attempts to provide an evidential breath test.  She had refused to sign the “Advice of Positive Evidential Breath Test” form, and she had initially refused to supply a blood sample.

[38]     The police officer’s “threat” of arrest followed this non-cooperation.  There was no reference,  as Dixon required, to bail.   Although a 20 minute telephone conversation with the lawyer followed, there was no evidence about the advice the appellant had been given (and nor could there be unless privilege were waived).

[39]     Thus,  submitted  Mr  Borich,  the  inevitable  inference  was  the  appellant’s ultimate consent to supplying a blood sample, being a marked change from her previous non-compliant conduct, was a result of the police officer’s arrest comment. The comment was unfair and was still effective and operative.

[40]     As to the Judge’s comment the appellant had not given evidence, she had no obligation  to  do  so.    It  was  not  permissible  for  the  Judge  to  call  into  aid  the appellant’s failure to give evidence in this area.

Decision

[41]     The mention of arrest by the police officer set out above (supra [21]) was the only evidence on the topic.  There was no cross-examination by counsel on whether or not there was mention of bail. There was no cross-examination of the police officer at all.

[42]     The context is important.   The police officer’s overall concern, which was unchallenged, was that he wanted to make sure the appellant completely understood the process.  The police officer went on to state in evidence in chief that he and the appellant:

… were chatting about the process.   Between the whole thing we  were chatting about various different things. The conversation was quite open.

[43]     The appellant’s understandable strategy at the District Court hearing was to rely on the police officer’s volunteered comment about arrest and the absence of any evidence to a reference to bail as a ground to advance the Dixon  “formula” to seek an acquittal.

[44]     But in my judgment much more than that would be necessary if the element of unfairness and its causative consequences were to come into play.  There would have to be some evidence that the mention of the “arrest word” demonstrably startled the appellant, or that her demeanour changed, or that she became unexpectedly compliant.   There was no such evidence.   There was evidence, however, of an immediately proximate 20 minute telephone conversation with a lawyer.  What the appellant said during that conversation and what advice she was given is, of course, privileged.  It would be mere speculation to conclude that the appellant’s decision to sign the consent form flowed from the advice she had received.  So too would it be mere speculation to conclude that the possibility of the appellant being influenced by the inappropriate comment about arrest was still an operating factor when her conversation with the lawyer ended.  We just do not know.

[45]     Returning to the analysis set out in Ellicock, I see no evidence disclosing a credible narrative to support the conclusion that the appellant’s consent was obtained

unfairly.  The evidence in my judgment falls far short of raising that proposition as a reasonable possibility which the prosecutor had to exclude.

[46]     Had there been some cross-examination of the police officer about how his mention of an arrest was received by the appellant, then the position might have been different.  There was evidence that at the end of the second telephone conversation the lawyer conveyed a request to the police to record that the appellant, who was of Chinese ethnicity, appeared to have a limited understanding of English.  That was not the police officer’s perception, but the lawyer’s request was actioned.  The fact that English was not the appellant’s first language is another factor to place in the mix.  Her ability to understand the subtle differences between “arrest” and “charge” and the mention of “arrest” with or without a concomitant reference to bail was not the subject of evidence.

[47]     The Judge’s findings, he having had the benefit of hearing from the police officer, were:

a)       That the blood specimen form had been read to the appellant which set out the consequences of refusing.

b)The  officer  read  the  form  to  the  appellant  so  that  she  could  be informed before speaking to a lawyer.

c)        He was not pressing for consent at that stage.

d)       The appellant went on to speak to her lawyer at length.

e)       The appellant elected not to  give evidence to avail herself of the opportunity to say she had been induced to sign the form by the earlier reference to arrest.

[48]     On the basis of those findings the Judge concluded that there was no evidence to support an inference that a consent was improperly obtained and no basis for excluding the blood test evidence.

[49]     In the circumstances of this particular case I am satisfied that the Judge’s findings were correct.   The mere mention by the police officer of an arrest in the context that he made it, and the absence of any evidence as to whether or not the appellant and the police officer discussed the Dixon formula of bail, were not, in the circumstances of the case, sufficient to bring causative unfairness into play.

[50]     If I were to be wrong on that and evidence of the blood sample had flowed from the improper pressure of the police officer’s comment, then an analysis under s 30 of the Evidence Act 2006, as described by the Court of Appeal in R v Williams (2007) 23 CRNZ 1, would be required.

[51]     The first difficulty would be to get to the point of finding under s 30(2)(a) on the balance of probabilities, that the evidence was improperly obtained.   Like the Judge I have difficulties on the evidence making such a finding.  But assuming that threshold were crossed, the proportionate balancing exercise mandated by s 30(2)(b) would be necessary, which in turn involves consideration of s 30(3) factors.

[52]     The importance of the right being breached (s 30(3)(a)) was, in Mr Borich’s submission, an important right since an obligation to provide a blood sample was highly invasive  physically.    For  my  part  I  do  not  put  the  right  quite  so  high. Certainly citizens have a right to refuse to provide a blood sample if that stage has been reached in the breath/blood alcohol procedural chain.  But the exercise of the right to refuse automatically creates a comparable offence.

[53]     On other s 30(3) factors, my assessment would be:

•  There is no evidence (s 30(3)(b)) that the police officer was acting recklessly, or in bad faith, or in a deliberate and calculating way to force compliance.  He only used the “arrest word” in the context he described in evidence.

•  The “nature and the quality” of the blood sample obtained led to a conviction.   But the evidence can properly be regarded as one of two alternative routes to comparable offences.

•  In a road transport context, and in terms of societal seriousness and protection, driving motor vehicles whilst intoxicated can be regarded as reasonably serious and lying towards the top end of driving offences.

•    Other s 30(3) factors do not strike me as being engaged.

[54]     Turning to the s 30(2)(b) balancing exercise and the s 30(4) requirement to exclude improperly obtained evidence if such exclusion is proportionate to the impropriety, my judgment is that the balance of the scales tips decisively against exclusion.   The impropriety, if that was what it was, was minimal and transitory. There was no oppression and certainly no sustained pressure.  There is an evidential void as to what effect if any the “arrest word” had on the appellant.  To exclude the blood test and its result in those circumstances would in my judgment be inconsistent with an effective and credible system of justice in the breath/blood alcohol area.  To exclude would also be disproportionate to the alleged impropriety.

[55]     So, were s 30 of the Evidence Act to be relevant, I would rule in favour of admitting the blood sample as evidence against the appellant.

[56]     At some future date there might be merit in the Court of Appeal revisiting the broadly cast dicta in Auckland City Council v Dixon.   In the intervening 23 years there have been significant changes.  First the important concepts of unfairness and improper pressure have received a large degree of codification in the Evidence Act

2006.    Secondly  the  constitutional  need  to  deal  with  different  procedures  and different standards in the area of traffic law enforcement has diminished somewhat with the replacement of transport departments run by territorial authorities by the New Zealand Police.   Thirdly, the equipment and procedures used to screen and detect offending drivers has improved dramatically.  Lastly, and importantly, there is today a much lower degree of societal tolerance of drinking and driving than was the case 23 years ago.   This is a shift to which a different generation of judges undoubtedly should be alert.

Result

[57]     The appeal is dismissed.

Deferred Disqualification

[58]     The disqualification ordered by Judge Mahony was deferred under s 107(2) of the Land Transport Act.  Counsel requested a two working day period of grace in the event of the appeal being dismissed.   Accordingly the appellant’s ordered disqualification will  become  operative  at  2359  hours  on  Friday the  19th   day of December 2008.

..........................................… Priestley J