H v Police HC Auckland CRI-2005-404-394
[2006] NZHC 568
•25 May 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2005-404-394
H
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 5 May 2006
Appearances: Mr M L Wotherspoon for appellant
Ms A Longdill for respondent
Judgment: 25 May 2006 at 10 am
JUDGMENT OF LANG J [on appeal against conviction]
Solicitors:
Crown Solicitor, P O Box 2213, Auckland
Counsel:
Mr M L Wotherspoon, P O Box 3905, Auckland
H V NZ POLICE HC AK CRI-2005-404-394 25 May 2006
[1] Mr H was stopped at a police vehicle checkpoint on the North Western motorway in the early hours of Sunday 3 April 2005. He failed a passive breath- screening test and was then required to undergo a breath-screening test. He failed this test as well, and was required to accompany the officer to a nearby “booze bus” for the purpose of an evidential breath test, blood test or both.
[2] When the officer went to carry out the evidential breath test she put the result card in the device back to front. She realised her mistake after Mr H had blown in the device once. Upon realising her mistake the officer elected to abort the breath test procedure by ignoring instructions on the display panel of the device that required a second sample of breath to be provided. She then waited for the machine to complete its cycle so that she could recommence the procedure and obtain a result with the card inserted correctly.
[3] Given that Mr H had only provided one sample of his breath, the officer expected the device to produce a printout reading “Incomplete Test” or “Failed Test”. To her surprise, however, the device did not do so. Instead, it printed out a reading of 520 micrograms of alcohol per litre of breath, albeit on the wrong side of the result card.
[4] The reading that was produced as a result of the aborted breath test was recorded on the back of the result card because of the fact that the card had been placed in the device back to front. As a result, it can only be read if the card is held in front of a mirror or if it is turned over and the back of the card is read.
[5] Notwithstanding the printing of the result on the rear of the card, the officer required Mr H to undergo a second evidential breath test. The second evidential breath test was administered in accordance with the Transport (Breath Tests) Notice (No 2) 1989 (“the Notice”). That test produced a printout on the correct side of the card confirming that Mr H ’s breath contained 503 micrograms of alcohol per litre of breath. As a result, Mr H was charged with driving with excess breath alcohol.
[6] Mr H was convicted at the conclusion of a defended hearing before His
Honour Judge J R Callander in the District Court at Auckland on 23 November
2005. He now appeals against that conviction on the basis that the learned District Court Judge was wrong to allow the result of the second evidential breath test to be admitted as evidence in support of the charge brought against him.
Grounds of appeal
[7] Mr H takes no issue with the events that occurred up until the point at which the police officer realised that the result card had been placed in the machine back to front. There is no dispute that the earlier breath screening tests had been carried out appropriately, or that Mr H received the appropriate caution and advice. There is no dispute, either, that the second evidential breath test was carried out in terms of the Notice.
[8] The sole ground of the appeal is that the first breath test produced a valid result in terms of the Transport (Breath Tests) Notice (No 2) 1989, and that the officer was not entitled thereafter to require Mr H to undergo a second evidential breath test.
Did the first test produce a “result” in terms of the Transport (Breath Tests) Notice (No 2) 1989?
[9] This issue can be answered at two levels. The first is whether, as a matter of fact, the reading of 520 micrograms can be said to be a result at all. The second is whether, as a matter of law, the reading amounted to a result in terms of the Notice.
Was the reading a result at all?
[10] Both evidential breath tests were carried out using the Seres Ethylometre Breath Testing device. That device is an approved device in terms of the Notice, and there is no dispute that it was properly calibrated.
[11] The manner in which breath tests are to be administered using this device is prescribed in paragraph 10 of the Notice. I set out paragraph 10 in full later in this
judgment (See para [17]). For present purposes, however, it is sufficient to refer to paragraph 10(c) which provides as follows:
Step 3 (results of test):
(i) The results of the various steps in the testing sequence will be shown on the result card or printout, and will include the Evidential Breath Test Result which shall be taken to indicate the number of micrograms of alcohol per litre of breath of the person tested:
(ii) If the Evidential Breath Test Result is “Incomplete Test”, the test has been unable to be carried out.
[12] Mr H ’s argument proceeds on the basis that the reading of
520 micrograms was shown on the result card or printout, and was therefore a result in terms of Step 3(i). That result was also to be taken, in terms of Step 3(i), to indicate the number of micrograms of alcohol per litre of Mr H ’s breath. Given the fact that the device did not produce a result saying “Incomplete Test”, Mr H contends that the Court cannot hold that the first test was unable to be carried out in terms of Step 3(ii).
[13] I take the view, however, that the result card is that side of the card upon which the officer wrote Mr H ’s details. The result, such as it was, was not printed on that side of the card. It was printed on the other side of the card. Moreover, it is unintelligible without the use of a mirror or without turning the card over. I therefore do not consider that the result was in fact shown on the result card or printout.
[14] I do not need to decide the appeal on this basis, however. In my view there is a more fundamental reason why the reading that was obtained at the conclusion of the first test cannot be said to be a result in terms of the Notice. This conclusion flows from an enquiry as to whether or not, in law, it could amount to such a result.
Was the reading a result in terms of the Notice?
[15] The starting point in this enquiry is the empowering legislation, which in this case is the Land Transport Act 1998. Section 69(4) of that Act empowers an enforcement officer to require a person to undergo an evidential breath test. The
term “evidential breath test” is defined in s 2 of the Act as “a test carried out by means of an evidential breath testing device in a manner prescribed in respect of that device by the Minister of Police by notice in the Gazette”.
[16] There is no dispute that the device that was used in this case was an approved evidential breath-testing device. The issue is whether the first evidential breath test was a test carried out in the prescribed manner.
[17] As I have already indicated, any evidential breath test carried out using the Seres device needed to be carried out in accordance with the procedure prescribed by paragraph 10 of the notice. It provides as follows:
10 Manner Of Carrying Out Evidential Breath Tests By Means Of
Datamaster, Dräger 7110, Intoxilyzer 5000, Or Seres
Evidential breath tests carried out by means of [ ] a Dräger 7110, an
Intoxilyzer 5000, or a Seres shall be carried out in the following manner:
(a) Step 1 (start of testing sequence): The enforcement officer shall depress the button for starting the test:
(b) Step 2 (evidential breath test): The enforcement officer shall carry out the testing sequence in accordance with the instructions appearing on the display panel on the device; and—
(i) The enforcement officer shall attach a new mouthpiece to the breath inlet tube and instruct the person being tested to blow through the mouthpiece; and
(ii) The person being tested shall blow through the mouthpiece to provide a subject breath specimen sufficient for analysis, when instructed by the enforcement officer; and
(iii) Step 2(i) and Step 2(ii) shall be repeated, as required, until the testing sequence has been completed:
(c) Step 3 (results of test):
(i) The results of the various steps in the testing sequence will be shown on the result card or printout, and will include the Evidential Breath Test Result which shall be taken to indicate the number of micrograms of alcohol per litre of breath of the person tested:
(ii) If the Evidential Breath Test Result is “Incomplete
Test”, the test has been unable to be carried out.
[18] As can be seen from the wording of Step 2, one of the requirements of paragraph 10 is that the enforcement officer must carry out the testing sequence “in accordance with the instructions appearing on the display panel on the device”. Moreover, the fact that more than one breath sample may be required is expressly contemplated by sub-paragraph (iii) in Step 2. In the present case the display panel repeatedly required a further breath sample to be provided. It read “Please blow again”. The officer did not follow that instruction because she wanted to abort the test. As a consequence, I do not see how it can be said that the testing sequence in the present case was carried out in accordance with the instructions appearing on the display panel.
[19] The circumstances of the present case also suggest that, despite the reading that was obtained, the evidential breath test was never completed.
Was the evidential breath test completed?
[20] Mr Wotherspoon relied principally on the decision of Savage J in Ministry of Transport v Christie (HC Wn M567/83 6 June 1984) as authority for the proposition that an enforcement officer is not entitled to require a suspect to provide a second sample once a final result has been achieved. That case was decided under the Transport Act 1962 and the Transport (Breath Tests) Notice 1978, both of which have now been repealed. The Transport (Breath Tests) Notice 1978 prescribed a breath testing process that is completely different from that referred to in paragraph
10 of the current notice.
[21] In Christie Savage J held (at p 7) that the question of whether or not the test had been completed was crucial, because the enforcement officer had power to require a suspected person to undergo one evidential breath test only. In saying this he noted that “both counsel appeared to accept that if the first test had been completed then the second test was unlawful, presumably on the basis that the Traffic Officer had no power to require the defendant to undergo a second test”.
[22] Importantly, Savage J went on to say (at pp 9-10):
The question then is whether the failure to perform step 3 by the traffic officer, when all the other steps had been carried out properly, meant that the evidential breath test had not been completed. I have somewhat hesitantly come to the conclusion that it does not. I think the issue is a matter of degree, to be decided on the facts of each case. The question must be asked whether what had been done amounted to a substantial performance of the test or whether it was so defective that it did not really amount to a performance of the test at all. I think the proper performance of steps 1, 2 and 4 meant the test had been completed, though no doubt its performance was improper or defective; on the other hand, as Boyle’s case and others have held, if the device is defective there is no real or substantial completion of the test at all.
[23] It is obvious from the passage to which I have referred that Savage J considered that it was a matter of fact and degree as to whether or not there had been a real or substantial completion of the test.
[24] In Ministry of Transport v Masters [1992] 1 NZLR 645 the Court of Appeal considered the consequences flowing from the situation in which the device yields an “ incomplete result” . The Court held that in such circumstances an enforcement officer is entitled to require the suspect to undergo a second evidential breath test. McKay J said (at 649):
Section 58B(4) empowers an enforcement officer to require a person in certain circumstances ‘to undergo an evidential breath test’. As a matter of common sense that must mean an attempt which is completed to the stage of reaching a result. If an attempt to conduct the test fails for any reason, then the requirement has not been fulfilled and the test must still be undergone. If the first attempt fails for any reason, whether machine failure or human error in the procedure adopted, one would expect a second attempt in order that the test could be completed. If one’s car does not start the first time one turns the key, one usually turns it a second time before deciding that the car will not start at all.
[25] Similarly, in Stoves v Police (HC Chch AP171/94 19 September 2004
Williamson J) the breath testing device returned a blank result card, because the carbonated copies of the card were missing. The appellant argued that the test had produced a result, albeit one that could only be read under special oblique lighting conditions. Like Mr H , he contended that the police were not entitled to request him to produce a further sample of his breath. Williamson J rejected this argument and said (at [4] to [5]):
The argument for the appellant proceeds on the basis that the test is complete if a result can be ascertained from imbedded impressions read with the help
of special lighting. Since step 3 provided in clause 10 (of the Transport Breath Tests Notice No 2 1989) states that the results will be shown on the result card or print out, I conclude that a failure of the machine to show those results in accordance with those steps would amount to an incomplete test …
In the present case the enforcement officer did not obtain a result which was shown on the result card or print out in any manner which could be read by him. It follows that as a matter of common sense, the test was not completed and accordingly it was appropriate for him to require the appellant to undergo a further test. For these reasons I hold against the arguments of the appellant.
[26] Ms Longdill also drew my attention to the recent judgment of Goddard J in Henderson v Police [2005] DCR 569. In that case the evidential breath test had been carried out correctly, but no result card was printed out because of the fact that the roll of paper in the device had been incorrectly installed. The device did, however, display the alcohol level (444), and the enforcement officer had recorded this reading. As the officer considered that no result had been produced, a further evidential breath test was conducted at another police station. That test led to a positive result, and the appellant was subsequently convicted of driving with excess breath alcohol. On appeal Goddard J rejected the appellant’s attempt to distinguish the reasoning in Masters and subsequent cases. She said:
The first two steps [in Clause 10 of the Transport (Breath Tests) Notice No 2
1989] prescribe the process to be undertaken in capturing and analysing a breath sample for evidential purposes. The third step concerns the recording of results for evidential purposes. Unless and until the results are recorded in acceptable evidential form the test is of no evidential value. As the whole purpose for which the device is designed is evidential, the record of result is an integral part. Without such a result, recorded in the prescribed form, the testing procedure must be regarded as incomplete or not carried out. Whilst it is correct that a police officer is able to observe and make his or her own record of the lowest of the two scores displayed on the screen on the device, that does not constitute a result in the prescribed form.
…
As both Williamson J and Hardie Boys J found, it is ‘ a matter of common sense’ that an evidential breath test is not complete unless a result is obtained on a result-card or print-out in a manner which can be read and proven in evidence. In this regard there is no material distinction between a failure of the device to print out the results of the various steps in the testing sequence on a result card or print-out (as per cl 10(c)(i) or to complete the test (as per cl 10(c)(ii). The distinction that Mr Lithgow sought to make about each lack of outcome is without a difference.
Conclusion
[27] Following the reasoning in these cases I do not consider that the first evidential breath test could be said to have been carried out or completed at all, let alone in accordance with paragraph 10 of the notice. The reading that was produced on the back of the result card therefore did not amount to an evidential breath test result in terms of that paragraph. The inevitable consequence of this finding is that the enforcement officer was entitled to require Mr H to undergo the second evidential breath test.
[28] I reach this conclusion despite Mr Wotherspoon’s submission that it would create practical difficulties for enforcement officers. Ms Longdill did not accept that this would be the case, and for my own part I do not see how it could. In most cases it should not be difficult for an enforcement officers to ensure that evidential breath tests are carried out in accordance with the instructions displayed on the device.
[29] A requirement that officers comply with the instructions on the display panel of the device works both ways. In the present case it has not assisted Mr H , but it may assist suspects in other situations. If Mr H ’s argument in the present case was upheld, it may potentially permit an enforcement authority to rely on the result of a breath test even where an officer has deliberately carried out the test in contravention of the instructions contained in the display panel of the device. It cannot realistically be suggested that results in those circumstances would be admissible.
[30] All of these matters persuade me that Mr H ’s argument has no merit. The result of the second evidential breath test was plainly admissible, and the learned District Court Judge was entitled to take it into account in convicting Mr H on the charge of driving with excess breath alcohol.
The effect of s 70 of the Land Transport Act 1998
[31] There was no express provision in the Transport Act 1962 permitting enforcement officers to attempt more than one evidential breath test. As I have already noted, that did not prevent the courts from holding that in certain
circumstances a second test could be undertaken, and that the results of that test would be admissible.
[32] The position has now changed, because the Land Transport Act1998 contains a provision expressly permitting a second test to be carried out if for any reason an evidential breath test fails to produce a result.
[33] Section 70 of the Act provides:
70 Person may be required to undergo further evidential breath test if initial test fails to produce result
(1) If for any reason an evidential breath test carried out under section 69 by an enforcement officer fails to produce a result, the enforcement officer may, at his or her discretion, either require the person to undergo without delay a further evidential breath test or proceed as if section 72(1)(c) applies.
(2) A requirement made under subsection (1) is deemed to be a requirement under section 69(4).
[34] Given that I have already found that the first evidential breath test failed to produce a result in terms of the Notice, I have no doubt that s 70 permitted the enforcement officer in the present case to require Mr H to undergo a further evidential breath test. The respondent’s position in the present case would therefore have been protected in any event by s 70.
An alternative approach?
[35] In Waring v Police (HC Ak CRI 2004-404-101 24 August 2005) Simon France J considered the consequences of a police officer omitting to give evidence that he had conducted a breath-screening test in a manner prescribed by the Notice. Counsel for the appellant had argued that the officer’s failure to give evidence regarding the process that he had followed, or to say that he had conducted the test in the manner prescribed by the Notice, was fatal to the prosecution.
[36] Simon France J concluded that the wording of the present legislation, and in particular the existence of s 64(4), is such that, so long as subsequent procedures are carried out properly, any flaws in the earlier breath screening process will not provide a defence to a charge of driving with excess breath or blood alcohol. At the
conclusion of his judgment, however, he noted (at [35]) that there was “ value in trying to put the proceedings in what [he saw] as their proper context” . He then said:
[36] Although seldom articulated in this manner, the purpose of a challenge to the breath screening process must have been to assert that, as a consequence of a flaw in that process, the evidential breath test is inadmissible. It would be inadmissible because the earlier flaw meant the officer was not authorised to take the evidential breath test. In traditional terms, it can be said that the evidential breath test was therefore unlawfully obtained. This must be the rationale of the challenge because otherwise there is before the Court probative compelling evidence (the evidential breath test) that an offence has been committed against s 56(1)(a) of the Land Transport Act 1998. A Court is bound to convict, faced with such evidence. Accordingly, it must be an argument that the compelling evidence is inadmissible.
…
[41] In my view neither the common law nor the Bill of Rights jurisprudence would support the type of analysis contended for here by the appellant – namely, that a possible procedural error in a preliminary step leads to automatic exclusion. Support for such a strict approach to admissibility is usually found in the concept of a legislative code, such as was originally said to exist in the area of the taking of DNA samples (R v T [1999] 2 NZLR 602, but see Shaheed (above) and R v Hanna [2004] 2
NZLR 301 (CA), at para [33]). However, it is very difficult to suggest with the alcohol impaired driving offences that Parliament could be said to have
enacted a code, the failure to comply with which must lead to exclusion of
evidence. Rather, the history of the legislation suggests quite the opposite with provisions such as s 64 carrying the message that cogent real evidence
of driving with excess alcohol should not be rejected and convictions should
be entered unless there is a reasonable doubt that the result on which the prosecution is based is valid.
[37] These factors led the Judge to conclude (at [42]) that there was no rule of automatic exclusion and that the Court was left with a “traditional exclusion of evidence analysis”. In the case before him, the Judge in the District Court had held that an approved screening device had been used, that a result was obtained and that a procedurally correct evidential breath test result had also been obtained. That result was obtained in circumstances where the officer had been attempting to follow the correct process. He therefore found that it was impossible to say, in terms of a traditional exclusion of evidence analysis, that the Court had erred in the exercise of its discretion to admit the evidence of the evidential breath test.
[38] I consider that this reasoning applies equally in the present case. Mr H was only required to undergo the second evidential breath test because the officer had aborted the first test. She had done that because she had realised that she had put the card in the device the wrong way round. It is obvious that the officer was endeavouring to ensure that the test was carried out using the correct process. There is no suggestion that the officer acted in bad faith or so as to deliberately circumvent the prescribed procedures. In those circumstances I do not see how it could be said that the learned Judge in the District Court erred in the exercise of his discretion to admit the evidence of the evidential breath test.
Result
[39] The appeal is accordingly dismissed.
Lang J
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