Gill v Police
[2016] NZHC 1790
•4 August 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-150 [2016] NZHC 1790
BETWEEN HARKARAT SINGH GILL
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 18 July 2016 Counsel:
S Blake for Appellant
I S Ko for RespondentJudgment:
4 August 2016
JUDGMENT OF DUFFY J
This judgment was delivered by me on Thursday, 4 August 2016 at 12 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Manukau. S Blake, Auckland.
GILL v POLICE [2016] NZHC 1790 [4 August 2016]
[1] Mr Gill was found guilty of driving with excess breath alcohol (1190 mg of alcohol per litre of breath)1 following a Judge-alone trial in the District Court at Manukau. He appeals against his conviction on two grounds.
[2] First, Mr Gill submits that there was an unacceptable delay between the time when the result of his evidential breath test became available and the time when he was informed of his right to request a blood test, in breach of s 77(3) of the Land Transport Act 1998 (“LTA”).
[3] Secondly, Mr Gill submits that the results of his evidential breath test were improperly obtained and therefore inadmissible under s 30 of the Evidence Act 2006.
District Court decision
[4] The decision includes a summary of the events leading up to the evidential breath test. This factual account is not disputed.
[5] Briefly stated, on 29 December 2014 at approximately 3.30 pm, Mr Gill was the driver of a motor vehicle travelling on Takutai Avenue in Bucklands Beach, Auckland. Constable Patel was on patrol that day and had received instructions to carry out area inquiries for the driver of a vehicle who was believed to be heavily intoxicated. Mr Gill’s vehicle was eventually located and the Police activated red and blue flashing lights. Mr Gill pulled into the driveway of his home and the Police followed. When spoken to by Police, Mr Gill smelt of and admitted to consuming alcohol prior to driving. Breath testing procedures were carried out, returning a reading of more than 400 mg of alcohol per litre of breath, and Mr Gill was informed that he was required to accompany Constable Patel to the Ormiston Police Station for the purposes of an evidential breath test or blood test or both.
[6] At this stage, it appears that Mr Gill may have attempted to leave and move back inside his home. He was subsequently handcuffed and taken to Ormiston Police Station. Although Constable Patel described his behaviour as being generally
cooperative, Mr Gill was kept in handcuffs for the duration of the journey, which
1 Land Transport Act 1998, s 56(1).
was estimated to be between 15 and 20 minutes. He was not given his rights at this stage. All parties accept that this was an unlawful detention and a breach of s 22 of the New Zealand Bill of Rights Act 1990 (“NZBORA”), which protects individuals from arbitrary arrest or detention.
[7] Once he had arrived at the Ormiston Police Station, Mr Gill undertook an evidential breath test, which returned a reading of 1190 mg of alcohol per litre of breath. He was informed of the result and was also advised of his right to undertake a blood test.
[8] However, there is some controversy regarding the timing of these events. In oral evidence, Constable Patel said that he had commenced the evidential breath test at 4.10 pm and that Mr Gill was advised of the result at 4.20 pm. Relying on a breath and blood alcohol procedure sheet (“procedure sheet”) that was recorded at the time of the accident, Constable Patel then stated that Mr Gill was advised of his right to take a blood test at 4.24 pm. However, the printout from the evidential breath test (“printout”) indicated that the test was commenced at 4.08 pm and completed at 4.15 pm. Mr Gill elected not to take a blood test and charges were laid accordingly.
Decision regarding undue delay
[9] Judge McNaughton considered whether there had been an undue delay in informing Mr Gill of the result of his evidential breath test. He noted that Constable Patel claimed the test had taken 10 minutes, while the printout indicated that the test had occupied seven minutes. The Judge concluded that if the test had been commenced at 4.10 pm and the test had taken seven minutes to complete, then it must have been concluded by 4.17 pm. He noted that the defence had not challenged Constable Patel’s oral evidence that Mr Gill was informed of the result at 4.20 pm. On that basis, the Judge determined that at most, there had been a three minute delay between the result of the test and its notification to Mr Gill. He therefore held that there was no unreasonable delay in terms of s 77(3) of the LTA.
[10] The Judge relied on the time recorded by Constable Patel on the procedure sheet to prove that he informed Mr Gill of his right to take a blood test at 4.24 pm.
Constable Patel gave oral evidence that the statutory period required under s 177(3)(ii) for Mr Gill to consider if he would request a blood test began at 4.26 pm (taken from Constable Patel’s watch) and was recorded as finished at 4.38 pm.
[11] Regarding the further delay of four minutes between 4.20 pm and 4.24 pm, Judge McNaughton held that at least part of that time would have been required in order to actually read the lengthy advice; but that in any case, he was not satisfied that there had been an unreasonable delay.
Decision regarding breach of the New Zealand Bill of Rights Act 1990
[12] Judge McNaughton found that Mr Gill had been unlawfully detained in contravention of the NZBORA. However, he noted that s 30 of the Evidence Act defined improperly obtained evidence to mean evidence obtained “in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New
Zealand Bill of Rights Act 1990 applies”.2 The Judge held:
[18] The evidential breath test result was not obtained in consequence of the handcuffing of the defendant. He had already failed a breath screening test. He had been lawfully required to accompany the police and the evidential breath test was an inevitable next step in the procedure whether the defendant was handcuffed or not. The evidence which is challenged was not obtained in consequence of a breach of the New Zealand Bill of Rights Act and there is no jurisdiction to exclude it.
[13] On that basis, the Judge found that the appropriate remedy in respect of the
NZBORA breach was of a civil nature, rather than the exclusion of evidence.
Jurisdiction for appeal
[14] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge alone trial.
[15] Under s 232, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of
2 Evidence Act 2006, s 30(5)(a) (emphasis added).
the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”:
232 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a) in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
[16] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.3 The error or irregularity must lead to either of the consequences listed in s 232(4)(a) or (b).
[17] A “real risk” that the outcome was affected exists when “there is a reasonable
possibility that a not guilty (or more favourable) verdict might have been delivered if
nothing had gone wrong.”4 This standard means that “an appellant does not have to
3 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”:
Matenga v R [2009] NZSC 18 at [30].
4 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
establish a miscarriage in the sense that the verdict actually is unsafe” but that there
is a real possibility the verdict would be unsafe.5
First ground of appeal: unreasonable delay
[18] Mr Gill contends that there was an unacceptable delay between the time when the result of his evidential breath test became available and the time when he was informed of his right to request a blood test, in breach of s 77(3) of the Land Transport Act 1998 (“LTA”). That subsection provides:6
Except as provided in subsections (3B) and (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—
(a) the person who underwent the test is not advised by an enforcement officer, without delay after the result of the test is ascertained,—
(i) that the test was positive; and
(ii) of the consequences specified in subsection (3A), so far as applicable, if he or she does not request a blood test within
10 minutes; or
(b) the person who underwent the test—
(i) advises an enforcement officer, within 10 minutes of being advised of the matters specified in paragraph (a), that the person wishes to undergo a blood test; and
(ii) complies with section 72(2).
[19] Another relevant provision of the LTA is s 64(2), which provides that, so long as the prosecution can show that there has been “reasonable compliance” with the requirements of s 77(3), then a failure to strictly comply with those requirements will not be fatal to the admissibility of evidence obtained from the evidence breath test.
[20] Mr Gill contends that the Judge erred in finding that there was at most a four minute delay between the results of the test becoming available and the time when
Mr Gill was informed of his right to undertake a blood test. However, this
5 At [110].
6 Emphasis added. Subsection (3B) provides that subs (3) does not apply if the result of an evidential breath test indicates that the proportion of alcohol in a person’s breath is between 250 and 400 micrograms of alcohol per litre of breath. Subsection (4) provides that subs (3)(a) does not apply if a person who undertakes an evidential breath test fails or refuses to remain at the place where the person underwent the test until the person can be advised of the result of the test.
contention is founded on a misapprehension as to what occurred at the defended hearing. On Mr Gill’s view of what transpired at the defended hearing, the prosecution adduced no evidence to prove when Mr Gill was advised of the right to take a blood test. This view of what took place is based on the fact that Constable Patel gave no oral evidence about advising Mr Gill of his right to take a blood test. Instead what occurred was that the procedure sheet which Constable Patel completed at the time Mr Gill was at the Ormiston Police Station came before the Judge. It records that the advice was given at 4.24 pm.
[21] The Judge reserved his decision and it was not until the written decision was delivered that Mr Gill would have known the procedure sheet was before the Judge.
[22] The notes of evidence do not explicitly identify the procedure sheet as an exhibit produced during the course of the hearing. They show that the prosecution produced three exhibits: (a) exhibit 1 certificate of compliance; (b) exhibit 2 instrument of authorisation; and (c) exhibit 3 evidential breath test print out. Immediately before the production of exhibit 3 the prosecutor asked Constable Patel:
QThen did you also attach a copy of the evidential breath test print out to the breath and blood alcohol procedure sheet?
A Yes I did
Q Obviously you have that original document in front of you? A Yes
Q If that can be produced as exhibit 3?
[23] It is easy to see from the above questions that the reference to a “copy” of the evidential breath test print out being attached to the procedure sheet followed by a question about whether the “original” document was present in Court led Mr Gill’s counsel to believe that the document being produced as exhibit 3 was the original evidential breath test print out. Mr Gill’s counsel had received documentary information relevant to the defended hearing as pre-trial disclosure. This included copies of the evidential breath test print out and the procedure sheet. Seemingly the prosecutor never thought to provide Mr Gill’s counsel with copies of the actual documents at the time they were produced as evidence. If he had done, Mr Gill’s
counsel would have realised immediately that the procedure sheet was in evidence before the Judge in the form of exhibit 3.
[24] At the appeal hearing there was some discussion regarding whether the procedure sheet was admissible. I accept that had Constable Patel given oral evidence about the timing and content of his advice to Mr Gill regarding the latter’s right to undertake a blood test, the procedure sheet would have constituted a prior consistent statement which would not be admissible, unless it could come within one of the exceptions provided in s 35 of the Evidence Act. The prosecution did not attempt to rely on any of those exceptions.
[25] Prior to enactment of the Evidence Act, the procedure sheet would have been characterised as a hearsay statement and therefore inadmissible. However, under the definition of “hearsay” in s 4 of the Evidence Act it no longer constitutes hearsay evidence. Therefore, it is admissible to prove the truth of its contents.
[26] Without the procedure sheet, the prosecution would have had no evidence to prove that Mr Patel was informed of his right to take a blood test, let alone the timing of that advice. It would follow that the prosecution had failed to prove its case against Mr Gill and the charge should then have been dismissed. However, this essential evidence was produced and in an admissible form. Thus the prosecution cannot fail for want of proof.
[27] The prosecution’s failure to bring the contents of exhibit 3 to the attention of Mr Gill’s counsel is regrettable. On the other hand, it is incumbent on defence counsel to check on documents being produced by prosecuting counsel. Failure to do so can result in outcomes like the present. This is not something that would warrant me setting aside the conviction and sending the matter back for rehearing in the District Court.
[28] The discrepancies between the procedure sheet and the evidential breath test print out are not fatal to the prosecution’s case. Taking 4.20 pm as the time when Constable Patel informed Mr Gill of the result of the breath test, the advice regarding the right to a blood test was given four minutes later at 4.24 pm. Even if the time on
the evidential breath test print out is relied on, this shows the test was completed at
4.15 pm, which is nine minutes before 4.24 pm. It is not clear from the evidence whether Constable Patel recorded the time of 4.24 pm immediately before he advised Mr Gill of his right to take a blood test or immediately after the advice was given. If it is the latter the advice would have taken up some of the time between 4.20 pm and
4.24 pm. If no allowance is made for time spent giving the advice, this is at most a nine minute period before the advice was given.
[29] In Wheeler v Police the delay between advising Mr Wheeler of his right to take a blood test was unclear and may have been as much as 17 minutes.7 Further in Wheeler the defendant was never explicitly advised that his evidential breath test was positive. In Kavanagh v Police a delay of “some nine minutes” was fatal to the prosecution.8 In McCarthy v Police, Chisholm J found that a delay of 10 minutes did
not meet the requirements of s 77(3).9 In Kydd v Police, Chisholm J found that a
delay of eight to 10 minutes did not satisfy s 77(3).10 In Ariki v Police, Keane J would not accept a delay of nine to 11 minutes met the requirements of s 77(3).11 In Talwar v Police, Brewer J found a delay of 10 minutes did not meet the requirements of s 77(3).12
[30] In the present case the delay is between four minutes and nine minutes depending on the records taken by the different time devices. Why the Police have difficulty synchronising their time devices is difficult to understand. A variation in times depending on the particular time device is a feature of decisions under s 77(3). The presence of this variation leaves room for a defence, like the present, which could easily be excluded through synchronised time keeping.
[31] I consider this case is finely balanced as it lies at the cusp of what constitutes advice being given “without delay after the result of the test is ascertained”. What distinguishes it from the relevant case law to which I have referred is the fact that
here, the nine minute period is at the outer end of the potential time frame whereas in
7 Wheeler v Police HC Auckland CRI-2009-404-150, 31 August 2009.
8 Kavanagh v Police HC Christchurch CRI-2005-409-000231, 27 February 2006.
9 McCarthy v Police HC Wellington AP312/02, 19 February 2003.
10 Kydd v Police HC Christchurch CRI-2007-409-134, 29 June 2007.
11 Ariki v Police HC Auckland CRI-2007-404-000174, 6 November 2007.
12 Talwar v Police [2013] NZHC 315.
the other cases, the nine minute timeframe was either approximate or the start of or somewhere within a longer time frame. Here, nine minutes is the cut-off period.
[32] I consider that a period of between four to nine minutes rests at the threshold of what is acceptable under s 77(3), but it does not cross over into the territory of unacceptable delay.
[33] For completeness, I note that in my view, s 64(2) would not have saved the prosecution had I found the advice was not given without delay. Before a Court can be satisfied there has been reasonable compliance with the requirements of s 77(3), it requires evidence to establish such compliance. In the present case no explanation was given by Constable Patel for why it took between four and nine minutes to provide Mr Gill with the advice regarding his right to request a blood test.
Decision regarding breach of NZBORA
[34] The initial evidence that Mr Gill was driving with an excess alcohol limit came from the failed breath screening test. That evidence was obtained before the breach of the NZBORA. This test failure triggered a series of mandatory statutory consequences under the LTA, which led to evidence of an offence under that Act being obtained. Judge McNaughton’s analysis of the legal consequences of the breach of the NZBORA is correct. There is no basis for finding that the evidential breath test results should be excluded as improperly obtained evidence under s 30 of the Evidence Act.
[35] Mr Gill attempted to draw an analogy with a passage set out in Leota v Police. Ellis J referred to Lawrence v Ministry of Transport13 and, in particular, the observations of Woodhouse P regarding s 58(4) of the Transport Act
1968, a predecessor to s 77(3), which required advice on the right to request a blood test to be given forthwith. Ellis J held, citing Lawrence:
The purpose of the statutory period of 10 minutes and the use of the word “forthwith” is to enable a suspect to have adequate time without undue pressure within which to make up his mind about a blood test. Provided
13 Leota v Police HC Auckland CRI-2009-404-373, 3 March 2010, citing Lawrence v Ministry of
Transport [1982] 1 NZLR 219 (CA) (emphasis added).
that period is allowed to run and is closely related in time to the result of the test ... then the purpose of s 58(4) has been discharged.
[28] It seems to me that the logic of this is unassailable. If a person has already been unreasonably detained prior to receiving the result of his breath test and being advised of his right to elect a blood test, there is a real risk that he might be motivated to refuse that blood test simply because he wishes the process to end as soon as possible. Such a scenario necessarily results in the purpose of the 10 minute reflection period being undermined.
[36] Mr Gill argued that similar concerns arise here because if a defendant has been subject to false arrest in terms of the NZBORA, he or she might equally be concerned, once at the police station and after taking an evidential breath test, to bring the process to an end and so lose the benefit of the 10 minutes of unpressured time s 77(3) intends for consideration of whether to request a blood test or not.
[37] I acknowledge that in principle, someone who has been falsely arrested may wish to leave the police station as soon as possible, and so fail to take proper advantage of the 10 minute reflection period afforded by s 77(3). However, whether that was so in this case cannot be determined in an evidential vacuum. Before that conclusion could be drawn I consider some evidence to support it would be required. Mr Gill did not give evidence. There can be a number of reasons for a defendant to refuse to request a blood test. I am not prepared to infer from the circumstances as known to me that the false arrest of Mr Gill led to him deciding not to request a blood test.
Result
[38] The appeal against conviction is dismissed.
……………………………..
Duffy J
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