H v Police HC Auckland CRI 2008-404-254

[2008] NZHC 1723

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000254

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Appearances: H Juran for Appellant

A Longdill for Crown

Judgment:      7 November 2008

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            H Juran, Auckland

H V NEW ZEALAND POLICE HC AK CRI 2008-404-000254  7 November 2008

[1]      The appellant was convicted for driving with excess breath alcohol as the third or subsequent offence following a defended hearing before Judge Epati in the Manukau District Court on 3 March 2008.  He appeals against that conviction.

Background

[2]      At about 3.30 in the morning of 20 December 2006 the appellant was stopped by a police patrol because he was driving at speed.   The police officer, Constable Knight, noticed the appellant had a strong smell of alcohol about him and required him to undergo a breath-screening test.   The  appellant  failed  that  test  and  was required  to  accompany the  officer  back  to  the  Manurewa  Police  Station  for  an evidential breath test.  The constable said the appellant was abusive and threatening while in the patrol car and when the officer was completing the preliminary paper work at the station.  The disturbance was sufficient to attract the attention of another officer, Constable Hoyes.  He went into the evidential breath suite at the Manurewa Police Station and assisted Constable Knight to remove the appellant from that room and place him in a holding cell.

[3]      The appellant was left in the holding cell for approximately a half-hour after which he was returned to the evidential breath suite and the evidential breath test was carried  out.    The  appellant  initially  failed  to  supply  sufficient  breath.     Two subsequent tests were taken, one with a reading of 589 and the other a reading of

548.  The appellant was given the election but declined a blood test.

[4]      Subsequently  the  appellant  was  charged  with  the  excess  breath  alcohol charge.  He filed a complaint with the Police Complaints Authority alleging that he had been assaulted by Constable Knight while at the police station that night.  Later, in about April 2007 the appellant saw the constable at a bakery in Manurewa.  The appellant indicated to the constable that he would not pursue the complaint against the constable if the constable was to withdraw the charge.  The constable reported the matter to a superior and made a file note.

[5]      Though the hearing was on 3 March this year the Judge called for further written submissions.   On receipt of those further submissions on 27 May 2008 he recorded that he was satisfied the charges had been proved and entered a conviction. The appellant was then sentenced on 22 August 2008.  Reasons for the conviction were not delivered until 14 October 2008.

[6]      In those reasons the Judge identified two issues that the appellant had relied upon:

•   first, that the breath-testing machine had not been properly identified;  and

•    second, that Constable Knight had assaulted the appellant prior to undertaking the breath alcohol procedures thereby rendering the evidence inadmissible.

[7]      The Judge ruled against the appellant on both issues.  He found that on the evidence there was only one breath-test machine at the Manurewa Police Station, and that the certificate of compliance obtained produced in evidence was for a device with the serial number 2365, and that the device used produced a print-out with the serial number 2365 so that he was satisfied it was the same as that from which the constable had obtained the serial number and which had been used in testing the appellant.

[8]      On the alleged assault by the constable the Judge noted it was an issue of credibility.  He did not accept Constable Knight had assaulted the appellant.

The appeal

[9]      Mr Juran, who was counsel in the District Court, submits on appeal the two same points, namely:

•    the evidential breath-testing machine was not properly identified by its serial number and therefore was unable to be supported by the certificate of compliance

as was required by s 75A of the Land Transport Act 1998.  The prosecution or conviction was fundamentally flawed, and in the alternative

•   that the appellant had been assaulted by the arresting officer and that there were such a gross impropriety and breach of the appellant’s rights that the evidence of the breath-test taken from the appellant that followed the assault should be rejected as inadmissible.  He submitted that the Judge’s reasons given for finding in favour of the police on the issue were insufficient.

The identification of the breath-test machine

[10]     I deal with the evidential breath-testing machine point first.

[11]     The short point advanced by Mr Juran was that Constable Knight at no time gave evidence of the serial number of the breath-testing machine used by him on the night.  Mr Juran submitted that was fatal to the prosecution and that the certificate of compliance could not be relied upon to support the requirement of s 75A of the Land Transport Act 1998.

[12]     There are two responses to that submission.

[13]     First, the constable gave evidence that there was only the one breath-testing machine in the evidential breath-testing suite at Manurewa Police Station at the relevant time.  He said that he had used the machine on six occasions.  He also gave evidence that on either the day after or in the days after the test he obtained a serial number from the machine and requested the file preparer to obtain the certificate of compliance.  Significantly, Constable Knight produced in evidence the printout from the machine that night.  The Judge, after referring to the Court of Appeal decision of R v Munro CA432/05 23 February 2006 found that there was only one breath-testing device at the station.  He was satisfied that the certificate of compliance obtained and produced in evidence was for the same machine as the one that the constable had obtained the serial number from after this test and had requested the certificate of compliance for.

[14]     I accept that there was sufficient evidence before the District Court Judge for him to have come to that conclusion.  That is sufficient to dispose of the first ground.

[15]     The matter is put beyond doubt by the second point in any event.   Section

2(4) of the Land Transport Act 1998 as relevant for present purposes reads:

In the absence of proof to the contrary, a device is to be treated as bearing or being associated with a particular ... number if that ... number ...

(b)      Is printed out by the device on ... paper.

[16]     The printout produced by Constable Knight is headed:  “Seres Ethylometre. Model 679ENZ, S/N 2365, Date:   20/12/2006 04:40”.   It is, on the evidence, a printout on paper produced from the machine used by the constable on the night.  It bears a number, 2365, preceded by S/N.   In terms of s 2(4) and in the absence of proof to the contrary the machine is to be treated as being associated with that number.  There is no evidence or proof to the contrary.  The printout referred to the machine used by the constable on the night and the requirement for a certificate of compliance relating to that machine were satisfied on this basis also.

The alleged assault

[17]     I turn to the second point of the appeal.  Mr Juran submitted that the Judge’s reasoning in his reasons for judgment given on 14 October are insufficient to deal with the disputed evidence of the appellant and Constable Knight.  It was accepted in the District Court, and there is no issue taken on appeal by counsel for the police, that if the appellant had been assaulted in the way he said then the subsequent evidence of the breath-test would have been obtained unfairly and would have been inadmissible.

[18]     The appellant’s evidence about the incident was that when he was in the evidential breath suite he was asked a series of questions by the officer.   He was asked how many drinks he’d had to which he replied “four or five”.  He was then asked where he had been that evening.  He replied:

what’s with all the questions, I have the right to remain silent and I wish to exercise my right to remain silent.  Immediately after I’d said that he got up

off the chair that he was sitting on on the other side of the table and he grabbed hold of me and threw me out into the hallway and I landed on the ground, and to be honest Your Honour it was a bit of blur ...

And later:

Q.        You say that you landed on the ground.  Where was that?  Was that in the EBA Suite or not?

A.       Immediately outside EBA Suite Sir. Q.     Okay.  And then what occurred?

A.        I got a bit of a hiding, quick and brief.  I – it’s a bit of a blur but I

think I was probably hit about three or four times. Q.       How?

A.        Punched, kicked.

Q.       And this is by who? A.    Constable Knight.

[19]     There was a direct conflict of evidence.  When it was put to Constable Knight that he had assaulted the appellant, he denied that:

Q.        And you told the defendant that he must answer, he answered “no I

don’t have to”.  And you got angry with the defendant? A. No, no.

Q.       You deny that conversation ever took place? A.     Yeah, I can’t recall that ever being said.

Q.        And when the defendant replied like that to you, you got angry, you got up and you walked around the table, and you grabbed the defendant with both hands on his shoulders, and you got him up out of his chair or bench?

A.        No, no didn’t happen like that at all.

Q.        You took him out of that room, and there’s a hallway just outside that room before you get to the cells isn’t there?

...

Q.        That you pushed the defendant out into that corridor or hallway, with such force that he fell over, and then you kicked him?

A.        And then I sorry?

Q.       And the you kicked him? A.        No, no that’s not true.

Q.        I mean these allegations are not a surprise to you are they, you’ve heard them before because of the Police Complaints review procedure?

A.        Yeah, yeah and apparently – well can I elaborate as well, apparently

I punched him as well. Q. Yes.

A.        It’s  totally  untrue.    Didn’t  happen  like  that,  there  was  another

Constable with me.

...

Q.        And you’re aware that it’s the defendant’s position that you kicked him several times while he was on the floor?

A.        I believe he’s made a statement to that effect, however it is untrue.

Q.        And then you put the defendant in the cell, that’s correct?   You agree on that?

A.        Yeah, myself and Constable Hoyes put the defendant into the Police holding cell after he was arrested.

[20]     There was also the evidence given by Constable Hoyes in support of the prosecution.  He gave evidence of being at the Manurewa Police Station that evening processing a prisoner of his own when he heard a large amount of yelling and abuse coming from the EBA suite and went to investigate.  He says he went into the EBA suite.  There was a short struggle where the appellant refused to get off the bench seat and he helped Constable Knight remove the appellant from the EBA suite and place him in a holding cell.   He described the appellant’s behaviour as very aggressive, struggling and very antagonistic.

[21]     There was a direct conflict between the evidence before the Judge of the constables and the appellant as to what occurred.

[22]     The Judge in his reasons said:

[11]     On the issue of credibility the Police argued that neither Constable Knight nor Constable Hoyes had any reason to assault the defendant.  Even if the defendant had not complied with the request for the breath test he could simply be charged with refusing to do so.  The defendant on the other

hand, argued the Police, had a motivation to fabricate the assault – to have the charge dismissed.  The Police reinforces this argument of fabrication by referring to the evidence of a meeting between Constable Knight and the defendant at a bakery on 26 April 2007.  In that meeting the defendant said to the Constable that if this charge of drink driving were to go away he would drop his assault allegation against the Constable.  The defendant also admitted a previous conviction for bribing the Police in a similar way in

1986.

[12]      I find in favour of the Police on this issue.  The two Constables gave their evidence in a direct manner and there is nothing to indicate to me that they are dishonest or unreliable.  The defendant on the other hand admitted to attempting to bribe Constable Knight to drop the charge.  The refusal by the  Constable  to  do  so  adds  credibility  and  honesty  to  the  Constable’s general evidence.  I do not need to refer to the 1986 bribery conviction and I do not take that into account in this consideration.

[23]     Mr Juran criticised the reasoning and said it did not support the adverse findings against the appellant.  He submitted first the Judge was wrong when he said there was nothing to indicate that the constables were dishonest or unreliable.   He submitted that Constable Knight’s evidence was unreliable in that there was a degree of difference between his notes from the night and his oral evidence as to whether the appellant had been arrested for threatening or had been arrested for resisting arrest.  He submitted that if indeed the appellant had threatened the constable as the constable gave evidence of, it was surprising no charge was laid.  He submitted that the evidence was consistent with the appellant becoming aggressive at the station whereas the constable had given evidence that the appellant had become aggressive in the car on the way to the station.

[24]     He also submitted the Judge was wrong to place emphasis on the appellant’s attempt to bribe the constable and submitted that that did not assist the Judge on any credibility finding and should not have been used in that way.  He submitted that the last matter relied upon by the Judge that a refusal by the constable to drop the charge could not be said to add credibility and honesty to the constable’s general evidence and was rather circular.  He also noted that having said that there was no need to refer to the 1986 bribery conviction the Judge had in fact already done that.

[25]     I accept that the Judge could and should have expressed his reasons for preferring the evidence of the constable to that of the appellant in a clearer way.  But as Ms Longdill submitted the Court of Appeal have confirmed that while provision

of sufficient reasons for decision in summary proceedings is highly desirable what is appropriate must depend on the nature of the case and the issues involved.  In some cases a sentence or two will be sufficient:  R v Jefferies [1999] 3 NZLR 211.

[26]     In the recent Supreme Court decision of Austin, Nichols & Co Inc v Stichting

Lodestar [2007] NZSC 103 the Supreme Court confirmed that on appeal:

The appeal court must be persuaded the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important.   Such caution when facts found by the trial judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) and Rangatira Ltd v Commissioner of Inland Revenue [1997] 1 NZLR 129 (PC).

The Supreme Court recognised in that passage that where issues of credibility were involved the Judge at first instance hearing the evidence does have advantages over an appellate court.

[27]     There  was  a  direct  conflict  of  evidence  between  the  evidence  of  the constables and the appellant in this case.  The Judge was clearly aware of that direct conflict.  He identified it and referred to it at para [8] of his decision.

[28]     This was not a case where the Judge could be left in any doubt about the matter.  Either the Judge accepted the appellant’s evidence or that of the constables.

[29]     For the Judge to have rejected Constable Knight’s evidence, he would also have had to reject Constable Hoyes’ evidence.  Constable Hoyes’ evidence, despite cross-examination  by Mr  Juran,  was  not  seriously challenged.    His  evidence  is entirely consistent with that of Constable Knight.   It is consistent with Constable Hoyes responding to hearing noise and abuse coming from the evidential breath suite at the station.  Mr Juran submitted that that was perhaps more consistent with the evidence of the appellant than Constable Knight because Constable Knight had said the appellant had been difficult and abusive in the car on the way to the station but the appellant’s evidence was that in the evidential breath suite he was simply exercising his right of silence in refusing to answer questions and Constable Knight attacked him without reason.

[30]     But Constable Hoyes’ evidence is that there was an altercation and he heard abuse.   That is more consistent with Constable Knight’s version of the incident. There is also, importantly, Constable Hoyes’ evidence that he went into the EBA suite and helped Constable Knight remove the appellant from the suite.   On the appellant’s  evidence  he  was  picked  up  by  Constable  Knight  at  a  time  when Constable Knight was alone in the room and thrown into the hallway and assaulted there. The two versions cannot be reconciled.

[31]     There is also the general background that the Judge was obviously aware of. Both constables were at work.  Constable Knight only dealt with the appellant this night.  He also had reason to remember the matter later because of the complaint to the Police Complaints Authority.  The appellant on the other hand had been drinking. Although the reading was not particularly high he was affected by alcohol.   The appellant had reason to be concerned about his arrest.  He was facing a possible third conviction for drink driving offending.   His vehicle containing valuable work equipment was, initially at least, left by the side of the road.  He had reason to be concerned and upset by the situation rather than the constable.

[32]     There was ample evidence before the District Court Judge even on the record, without this Court having had the advantage of seeing the witnesses, for the Judge to have preferred the evidence of the constables to the appellant on this issue.

[33]     For those reasons the second ground of appeal must also fail.  The appeal is dismissed.  The appellant is to serve his sentence.

Venning J