G v Police HC Whangarei CRI 2007-488-66

[2008] NZHC 622

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2007-488-66

G

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 May 2008

Appearances: K R Thomas for Appellant

Respondent in person

Judgment:      5 May 2008

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Whangarei

G V POLICE HC WHA CRI 2007-488-66  5 May 2008

[1]      On 3 October 2007 G   was convicted of driving with an excess breath alcohol proportion. A charge that he had failed to accompany was dismissed.

[2]      On this appeal Mr G  , who represents himself, has taken a single point. It is that the officer who conducted the evidential breath test did not comply with s

77(3)(a) of the Land Transport Act 1998. He did not advise Mr G   of the positive result of the test without delay. The delay that Mr G    identifies,  one  of  13 minutes, he contends is incapable of being excused under s 64(2) as within the bounds of reasonable compliance.

[3]      This was not a point taken before the Judge who entered the conviction at the defended hearing. It is,  nevertheless, open and I have reviewed the evidence with Mr G  ’s assistance and that of counsel to see whether it can be sustained. If there were an unexplained delay of 13 minutes, and no such explanation was given in evidence, that would have been a failure to comply with s 77(3)(a) and the result of the evidential breath test would have been inadmissible.

[4]      On an analysis of the evidence as a whole, however, it appears to me that far from there having been a 13 minute delay, Mr G   was given advice as to the result of the evidential breath test immediately or nearly so. The discrepancy is explained rather as one between the time fixed on the evidential breath testing device and the officer’s watch.

Time discrepancy

[5]      The evidential breath test print-out shows that the test was taken at 2328, that is to say 11.28 pm. The officer said, without referring to that time recording, that he conveyed the result, a reading of 580 micrograms per litre of breath, to Mr G   at

11.42 pm. If each was to a consistent time sequence the discrepancy was real. But it is obviously not real when set against the complete sequence of times that the officer recorded.

[6]      The officer’s evidence is that at 11.25 pm he conveyed to Mr G   his right to advice, both orally and in writing, and he recorded the latter on the standard form

of advice that he then issued to Mr G  . When Mr G   elected to take advice, the officer attempted to contact five solicitors and he did that, according to his note, between 11.26 pm and either 11.32 pm, or perhaps earlier at 11.30 pm. (There is a discrepancy in his evidence.) That was when he spoke to the solicitor to whom Mr G   had recourse, Mr Sayes.

[7]      Mr G   did then take advice, as Mr G   says briefly, and the officer recorded that this ceased at 11.37 pm. After that, the officer’s evidence was that he required Mr G   to undergo the evidential breath test. He assembled the device. He administered the test. The result was as I have given it and he advised Mr G   of that result at 11.41 pm.

[8]      As will be apparent, the time given by the device as the time the test was completed, 11.28 pm, cannot be reconciled with that sequence, or with that contrasting end point, 11.41 pm. There was clearly a discrepancy between the officer’s watch and that given by the device. I can only conclude that the officer’s evidence, which the Judge accepted as scrupulous and accurate, is to be preferred.

Conclusion

[9]      There was no delay in conveying the result of the evidential breath test. There was no failure to comply with s 77(3)(a). The breath test result was admissible and

the Judge was entitled to found a conviction on it. The appeal must be dismissed.

P.J. Keane  J