G v Police HC Wellington CRI-2008-485-115

[2008] NZHC 1890

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-115

G

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 November 2008

Counsel:         W M Johnson for appellant

M S Anderson for respondent

Judgment:      2 December 2008

RESERVED JUDGMENT OF DOBSON J

[1]      This is an appeal from conviction on a charge of refusing to permit a blood specimen to be taken after having been required to do so under s 72 of the Land Transport Act 1998 (“the Act”).

[2]      As  to  the  factual  background,  on  18  November  2007  the  appellant  was observed driving erratically from Lower Hutt to Wellington by two separate civilian witnesses.  The observations by the first witness related to the appellant driving from an area near Melling on the Hutt Motorway towards Wellington, swerving dangerously,  changing  lanes  without  indicating,  tailgating  other  motorists  and

knocking over road cones in an area of roadworks.   The first civilian witness lost

G V NEW ZEALAND POLICE HC WN CRI-2008-485-115  2 December 2008

sight of the appellant once she travelled at a speed in excess of 100 kilometres per hour.    That  first  witness  was  sufficiently concerned  to  immediately make  a statement by telephone to the Central Police Station.

[3]      Shortly   thereafter,   a   second   civilian   witness   observed   the   appellant continuing down the Hutt Road towards Wellington near Ngauranga Gorge.   The appellant’s car swerved, almost hitting this witness and knocking off a road sign fixed to a median barrier.  This second civilian witness, Mr Foulkes, observed the appellant drive into the premises of Harbour Tow & Salvage, located on the Hutt Road.  Mr Foulkes also called the Police and remained in view of the Harbour City Tow & Salvage premises until a Police officer arrived.  The officer who attended, Constable Andrews, initially interviewed the appellant at the Harbour City Tow & Salvage premises.  He noticed that she smelt very strongly of alcohol, and asked her to undergo a passive breath test and a breath screening test, both of which she refused.

[4]      The officer then asked the appellant to accompany him for the purposes of an evidential breath test, which she did after becoming aware that she would be arrested if she did not.  An evidential breath test was attempted at Wellington Central Police Station.  Although producing readouts of 1556 and 1576 micrograms of alcohol per litre of breath, both tests were treated by the testing device as “incomplete”.   The officer was concerned that the testing device might be malfunctioning and, after seeking advice from one of his superiors, requested that the appellant accompany him to either the Johnsonville or Kilbirnie Police Stations for a further test.   The appellant refused to go to another Police Station.  She was then requested to indicate her consent to the taking of a blood specimen.  She refused that request twice and was subsequently arrested for refusing to permit the taking of a blood specimen.

[5]      As a result of these events, the appellant was charged with dangerous driving, in addition to the charge of refusing to permit a blood specimen to be taken and, after a defended hearing on 10 April 2008, was convicted on both charges in a reserved decision on 30 May 2008.

[6]      The appeal is pursued against the conviction for refusing to permit a blood specimen on two grounds:

a)       First, that there was no evidence that the arresting officer had good cause to suspect that the appellant had recently committed an offence against the Act that had involved the driving of a motor vehicle, that being the relevant pre-condition of the officer’s entitlement to require a breath screening test to be taken under s 68(1)(b).

b)Secondly, that there was no evidence on which the Judge could be satisfied  beyond  reasonable  doubt  that  when  the  requirement  to provide a blood specimen was conveyed to the appellant, she was advised that the specimen would be taken by a medical practitioner or a medical officer, as required by s 72 of the Act.

“Good cause to suspect”

[7]      The law on this requirement is well settled.   It is a procedural requirement which is not required to be proven beyond reasonable doubt but on the balance of probabilities: Police v Anderson [1972] NZLR 233. The information available to the officer at the time he or she forms that view does not have to constitute admissible evidence and, in particular, justification for good cause to suspect can rely on what would be hearsay statements to the officer: Police v Cooper [1975] 1 NZLR 216.

[8]      In this case, the second civilian witness, Mr Foulkes, gave evidence that he had phoned in a complaint to the Police Station whilst observing the appellant.  He then gave evidence that when the Police arrived, he told them what he had seen in the previous 10 minutes and where he believed the appellant was at the time of the discussion.

[9]      In the course of the arresting officer’s evidence-in-chief, the officer was about to describe his discussion with Mr Foulkes at the time the officer arrived at the business premises which had been entered by the appellant, when Mr Johnson prematurely objected, initially on the basis that what the officer was about to say had

not been put to the civilian witness and “that witness gave no evidence” is how it is recorded in the transcript.  After a number of exchanges with the Judge, Mr Johnson clarified that he was objecting to the arresting officer giving evidence as to what the civilian witness had said to him.  That objection stopped the officer giving evidence in the form he had apparently been contemplating, as to the full circumstances of what he knew at the time might have contributed to good cause to suspect.  Instead, he referred globally to “I saw a woman come out and from information I received I went over to the premises and there was a woman inside what looked to be an office”.  The officer’s evidence proceeded that he observed she smelt of alcohol very strongly, and it is clear from his evidence that the person he was interviewing was the person who had been described to him by Mr Foulkes as an erratic driver, and further described in the request from the Police Station that he attend at the premises.

[10]     Given this evidence, it was entirely appropriate for the Judge to find that the officer had good cause to suspect, sufficient to request the appellant to undergo a breath test.  Accordingly, the first ground of the appeal must fail.

Evidence on request to provide a blood specimen

[11]     The earlier of two recent decisions cited on behalf of the appellant in support of this, her primary ground of appeal, was Gillespie v New Zealand Police HC AK CRI-2006-404-104 31 July 2006.    In that case,  Lang J  treated  the  need  for  an enforcement officer to convey that a blood specimen would be taken by a medical practitioner or medical officer, in the following terms:

[21]      …It is part of the requirement under s 72 that any blood specimen that may be taken under s 72 will be taken by a medical practitioner or medical officer.  Although no particular wording need be used, nevertheless the person to whom the requirement is addressed must be able to consider the requirement in the knowledge that the blood specimen will be taken not by the police officer, or by some other unqualified person, but by a medical practitioner or medical officer.  The reason for this is obvious, namely that any person in that position must at least have the comfort of knowing that the blood specimen will be taken by a person who is properly qualified to carry out such procedures.

[12]     That approach was adopted in the more recent decision of Andrews J in

Netten v New Zealand Police HC HAM CRI-2007-419-19 23 May 2007 where the

argument had focused on the absence of production of a form used by Police officers to confirm they had followed the requirements of s 72 when notifying a suspect of a requirement to give a blood specimen.  The point was dealt with by Her Honour in the following terms:

[22]      It is not, in my view, an answer to the challenge on appeal to say that the District Court Judge would have known what was on the form.   That would be, as Mr Harte submitted, an inference that should not properly be made in a criminal prosecution.  The Crown was required to prove beyond reasonable doubt that Ms Netten was required to give a blood specimen and refused to do so.

[23]     That is not to say that it will be necessary in all cases to produce a form that is read to the person being required to give a blood specimen.  In this case, had the Constable given evidence that he had required Ms Netten to give a blood specimen to be taken by a medical practitioner or medical officer, there could have been no challenge on appeal.

[13]     Given the terms in which these authorities recognise the requirement, it was argued that the Judge was wrong to find that the prosecution had established beyond reasonable doubt that the requirement to give a blood specimen was conveyed in terms that the procedure would be undertaken by a medical practitioner or medical officer.  I will need to return to the somewhat unusual circumstances in which this was dealt with on the evidence, but the critical reasoning under attack is the following:

[42]      While the standard wording on the blood specimen form contains the formal advice required by s 72, and there is no direct evidence that that part of the form was read out prior to Ms G   being asked for her consent, having seen Constable Andrews give evidence I think it is highly unlikely that he would have omitted to provide that advice.  After all he said he had “formally requested” that she give blood which implies the proper advice was given.   However even on the assumption that he did not provide any background to his request for consent, I hold that in the circumstances there was either compliance with the practical effect of s 72 or that any non- compliance was of no consequence capable of cure under s 64(2).

[14]     Mr Johnson’s argument, which he happily acknowledged was an entirely technical one, was that there was no sufficient evidence on which the Judge could be satisfied that the requirement to give blood was conveyed in terms including the advice that the specimen would be taken by a medical practitioner or medical officer.

[15]     From a review of the transcript of evidence in the District Court, it appears that the prosecution proceeded on the assumption that certain formal elements requiring to be proven would be established by the production of Police documents. The prosecutor attempted to have the arresting officer formally produce, as a bundle, an  alcohol  breath  testing  procedure  checklist  and  the  blood  specimen  form. Mr Johnson objected to the two documents being produced as an exhibit.  As to the first, the Judge accepted it was simply an aide memoire and could not be produced without consent, which was not forthcoming.   At that point, the transcript records Mr Johnson as volunteering:

Since, with respect, since apparently she’s refused to have everything that this would sort of pale into insignificance, I would have thought.

[16]     From a reading of the transcript, that statement suggests a lack of evidentiary relevance in respect of the documents the prosecuting sergeant had sought to have the witness produce.  However, Mr Johnson was adamant in argument before me that the comment related only to the checklist form.

[17]     The evidence-in-chief of the arresting officer continued by reference to the contents  of  the  blood  specimen  form,  establishing that  the  appellant  was  asked whether she would consent on two occasions, to which she replied that she would not, and that the form had been signed both by the officer and by someone else.  In respect of the second signature, the arresting officer said:

It’s been signed I believe by the defendant from memory.   I can’t tell the signature unfortunately.

[18]     There was no further attempt to produce the blood specimen form during the evidence-in-chief but in light of references to the blood specimen form by both prosecution  and  defence,  the  Judge  subsequently  sought  to  have  it  produced. Mr Johnson  renewed  his  objection  and  persisted  with  an  argument  that  it  was inadmissible, although before me on argument of the appeal he said that the real reason for objecting to the Judge seeking the production of the document was that it was  inappropriate  for  the  Judge  to  be  “entering  the  arena”,  in  the  sense  of  an initiative  that  could  supplement  the  prosecution  case.    The  exchanges  between Mr Johnson and the Judge that followed included the observation from Mr Johnson:

Well it makes no odds anyway, I mean it’s –

[19]     The immediate context of that comment is in relation to whether there had been proof of the appellant’s signature on the form or not, but again, in the context of a review of the evidence as a whole, it tends to signal a stance on behalf of the appellant that the document was not relevant to the defence being run.  The Judge was ultimately persuaded not to require the form to be produced to him.  Mr Johnson argued before me that it was still open to the prosecuting sergeant to attempt to produce the form in re-examination, but that is somewhat unrealistic given the exchanges that had just preceded the re-examination, as I have described them.

[20]     At the conclusion of the evidence, the Judge invited written submissions and the point about absence of proof that the arresting officer conveyed to the appellant that any blood specimen would be taken by a medical practitioner or medical officer was relied on prominently.   Mr Johnson volunteered a copy of the specific blood specimen form as an appendix to his written submissions.  The relevant part of the form provides as follows:

You are advised that you are required under the Land Transport Act 1998 to permit a registered medical practitioner or medical officer to take for the purposes of analysis a specimen of your venous blood in accordance with normal medical procedures.

Do you consent to the taking of a specimen of blood?

[21]     It is not apparent from the terms of the judgment whether the District Court Judge was familiar with the blood specimen form from its being a standard part of this  particular  Police  procedure,  or  whether  he  relied  on  the  specific  form volunteered after the close of evidence in the case.  In either circumstance, having heard the arresting officer’s evidence and the impression thereby gained of him, together with the references that were made to the form, the Judge satisfied himself that the witness’ reference to having “formally requested” that the appellant give blood established that the terms used in the blood specimen form had been conveyed so as to satisfy this requirement of s 72 of the Act.

[22]     Given the importance attaching to the requirement that a suspect know blood would be taken by a medical practitioner or medical officer  as reflected in the

Gillespie and Netten decisions with which I respectfully agree, I am bound to accept Mr Johnson’s submission that the inference drawn by the Judge was not a sufficient basis to establish this requirement beyond reasonable doubt.   Whilst the inference might have seemed a reasonable one given the way the case had been run, the reference to the blood specimen form and to the terms of the request being “formal” are not of themselves enough to establish beyond reasonable doubt that this material element was conveyed to the appellant.

[23]     Paragraph [42] of the District Court judgment quoted in [13] above includes a fallback position.  In the event that the Judge was wrong to draw the inference about proof of the appellant being advised that any blood specimen would be taken by a medical  practitioner  or  a  medical  officer,  then  the  Judge  considered  that  the deficiency in the proof on this element was an element of non-compliance of no consequence,  capable  of being cured  under  s 64(2)  of  the  Act.    That  provision provides that it will not be a defence to proceedings for breach of, inter alia, s 72 of the Act that the requirements of the section had not been strictly complied with, or not complied with at all, “provided there has been reasonable compliance with such of those provisions as apply”.

[24]     However, in the Gillespie decision, Lang J took the view that conveying to a suspect that any blood specimen would be taken by a medical practitioner or a medical officer was an essential element of the requirements, and not one that could be saved by the reasonable compliance provision in s 64(2) of the Act if the identity of the proposed taker of the blood specimen was not broached at all.

[25]     Here, the only thing that could be added to the arresting officer’s description of his request as being a “formal” one, in the context of a form which was not produced at the hearing, was a reference earlier in his evidence to having made an internal call within the Police Station requiring that the Police doctor be called.  In the reasonable compliance context, it might possibly be argued that the appellant would appreciate, in the context of a request for a blood specimen to be taken, that that was the purpose for the doctor’s attendance and hence that any specimen she consented to being taken would be taken by the doctor.   However, as with the principal inference drawn by the Judge, I consider that reliance on this additional

piece of evidence to draw the inference of an awareness by the appellant as to the reason why a doctor was being called is speculative.  Accordingly, consistently with the  approach  adopted  by Lang  J,  I would  not  be  satisfied  that  the  “reasonable compliance” saving in s 64(2) could avail here.

[26]     Accordingly, the second ground for the appeal is made out.   However, as traversed at some length with Mr Johnson during the argument of the appeal, I am left distinctly uneasy about the circumstances in which this technical point was argued on behalf of the appellant.   If I reached this point, the submissions on the appeal for the Police were that it would be “completely inequitable” to allow the appeal where defence counsel pursued the objection, and prevented the Judge having the form as a matter of evidence in circumstances where the prosecution did not appreciate the critical reliance that would be placed on the omission.  Mr Johnson denied that the comments made by him were deliberately intended to mislead either the District Court Judge or the prosecuting sergeant.  He said that the omission was one that “arose in the heat of battle” and the point was argued because of his obligation to take all points open to the appellant.  If the Court considered that the failure to prove this element of the offence, if made out, had been contributed to by any  misleading  by  him,  then  Mr  Johnson  indicated  that  he  would  he  disavow reliance on the point.

[27]     I do consider that the course of objections pursued by Mr Johnson, and the comments volunteered by him in relation to the documents, did have a material impact on the totality of the evidence available to the Judge.  I can understand in the circumstances of the way the prosecution had proceeded, why the Judge felt comfortable drawing the critical inference that he did.

[28]     In finding that the element only established by the drawing of that inference is too important not to be the subject of direct proof, I do not intend any criticism of the Judge.   Nor do I criticise the course of Mr Johnson’s conduct in putting the Police to proof on this element.

[29]     However, the relevant reservations as to how that arose mean that this is not a case in which the conviction ought simply to be quashed.  The options open to the

Court on the appeal include the power to direct a re-hearing of the Information under s 131 of the Summary Proceedings Act 1957, and that is the course that I propose in the present case.

[30]     That also means that I quash the sentence of disqualification pursuant to s 65 of the Act, and disqualification from holding or obtaining a driver’s licence until the Director of Transport removes that disqualification.  There was a direction that the appellant was to attend an assessment centre as an element of the sentence on this conviction, and that is set aside as well.

[31]     I  direct  a  re-hearing  on  the  Information  of  refusing  to  permit  a  blood specimen pursuant to s 72 of the Act, being CR No 07085008833.

Dobson J

Solicitors:

W M Johnson, Wellington for appellant

Luke Cunningham & Clere, Wellington for respondent