Hedley v Police
[2022] NZHC 714
•8 April 2022
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2021-425-000016
[2022] NZHC 714
BETWEEN CLINTON WILLIAM HEDLEY
Appellant
AND
NEW ZEALAND POLICE
Respondent
CRI-2021-425-000017 BETWEEN
PETER WILLIAM BULLEID
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 28 March 2022 Appearances:
A S P Tobeck for the Appellant Hedley S D Cullen for the Appellant Bulleid R W Donnelly for the Respondent
Judgment:
8 April 2022
JUDGMENT OF NATION J
Introduction
[1] The appellants, Mr Hedley and Mr Bulleid, were both convicted by Judge Garland of one charge of driving with excess breath alcohol1 after consecutive Judge- alone trials.2 Together, they appeal their convictions.
1 Land Transport Act 1998, s 56(1); maximum penalty three months’ imprisonment.
2 Police v Bulleid [2021] NZDC 11767; and Police v Hedley [2021] NZDC 11772.
HEDLEY & BULLEID v POLICE [2022] NZHC 714 [8 April 2022]
Facts
[2]The facts were not disputed.
[3] On 17 July 2020 at approximately 8:00 pm, Constable Watkinson observed a white ute pull out of a driveway on the north side of the road at speed. The Constable stopped the vehicle and spoke to the driver, asking if he had been drinking. The driver, Mr Hedley, acknowledged he had consumed a couple of drinks. He was required to complete a breath test without delay. This gave a result of over 400 micrograms per litre of breath. The Constable read Mr Hedley his rights and completed the breath test procedure per the POL 515 (Breath and Blood Alcohol Procedure Sheet).
[4] The Constable advised Mr Hedley of his rights by reading from Block H on the sheet:
H. BORA ACT 1990 – EVIDENTIAL BREATH TEST ADVICE - MOBILE ROAD SAFETY BUS/STATON ACTION • “You have been detained for the purpose of breath or blood test procedures for alcohol.”
• “You have the right to remain silent.”
• “You do not have to make any statement.”
• “Anything you say will be recorded and may be given in evidence in court.”
• “You have the right to speak with a lawyer without delay and in private before deciding to answer any questions.”
• “Police have a list of lawyers you may speak to for free.”
• “These rights will continue throughout the breath or blood alcohol test procedures.”
• “If you wish to speak to a lawyer a telephone will be made available to you for that purpose as soon as practicable. You will be allowed a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you.”
• “Would you like to speak to a lawyer?” YES NO Comment: • “You are required to undergo an evidential breath test without delay.”
• “If you fail or refuse to undergo the evidential breath test, you will be required to permit a blood specimen to be taken.” [Excerpt 1]
• “If that blood specimen indicates the presence of alcohol, proceedings may be taken against you.”
[Excerpt 2]
• “Whether or not your blood test result is evidence of an offence under the Land Transport Act 1998, you may be liable to pay a blood test fee and associated medical costs.” [Excerpt 3]
• “If you are 20 years of age or over, and you do not hold an Alcohol Interlock Licence or a Zero Alcohol Licence, and you fail or refuse to undergo an evidential breath test when required, and your blood alcohol concentration is between 51 and 80 milligrams of alcohol per 100 millilitres of
blood, you will be liable to pay an infringement fee of $700.” [Excerpt 4]
• “Would you like to speak to a lawyer?” YES NO Comment: I acknowledge that an enforcement officer has advised me of the reason for my detention and of my rights as set out above.
Driver signature / refused Officer time driver hours advised
[5] Mr Hedley gave an evidential breath alcohol test (EBA test) result of 600 micrograms per litre of breath.
[6]The Constable then advised Mr Hedley under Blocks J5 and J6 of the sheet:
Type 1st Advice
2nd Advice
3rd Advice
J5
400+
All drivers“The test indicates that the proportion of alcohol in your breath exceeds 400 micrograms of alcohol per
litre of breath.”
“If you do not within 10 minutes request a blood test, the positive evidential breath test you have
just undergone could, of itself, be conclusive evidence to lead to your conviction for an offence against the Land Transport Act 1998.”
“If you in fact undergo a blood test the result of the evidential breath test cannot be used in court proceedings to support a
charge of driving or attempting to drive with excess breath alcohol concentration. But the result of the blood test may be used to support a charge based on analysis of your blood alcohol concentration.
J6
“You are advised that if you elect to have a blood test you may be liable to pay the blood test fee and associated medical costs whether or not the result of that blood test establishes that an offence under the Land Transport Act has been
committed.”
[7]Mr Hedley did not elect to undergo a blood alcohol test.
[8] On 26 September 2020 at 8:00 pm, Mr Bulleid was stopped by Constable Crawford on the Dipton-Mossburn Highway while heading towards Dipton West in the Lumsden area. Mr Bulleid smelt of alcohol but was coherent. He admitted consuming a few cans of beer, so the Constable completed a breath screening test. The breath screening test returned a result of over 400 micrograms per litre of breath. The Constable read Mr Bulleid his caution and followed the Breath and Blood Alcohol Procedure Sheet.
[9] Constable Crawford read from Block H of the sheet, like Constable Watkinson did with Mr Hedley.
[10] Mr Bulleid acknowledged he had been advised of the reason for his detention and had been advised of his rights. In the patrol vehicle, Mr Bulleid submitted to an EBA test which returned a result of 989 micrograms of alcohol per litre of breath. The Constable then advised Mr Bulleid of his rights by reading to him the advice under Blocks J5 and J6 on the sheet as above.
[11]Mr Bulleid did not elect to undergo a blood alcohol test.
The issue
[12] The argument in the District Court was, and on appeal is, that s 69(4A) of the Land Transport Act 1998 (LTA) was not complied with. That section provides:
69 Who must undergo evidential breath test
…
(4A) An enforcement officer who requires a person to undergo an evidential breath test under subsection (4) must, without delay, advise the person—
(a) that if the person fails or refuses to undergo the evidential breath test, the person will be required to permit the taking of a blood specimen under section 72(1)(a); and
(b) that if the result of a blood test indicates the presence of alcohol in the person’s blood the person may be issued with an infringement offence notice or charged with an offence, depending on the proportion of alcohol; and
(c) of the infringement fee payable for a breach of section 56(2B); and
(d) that the person may be liable to pay a blood test fee and associated medical costs, whether or not the result of the blood test establishes that the person has committed an offence against this Act.
…
[13] Both appellants were given advice from the constable in accordance with Block H. As will become apparent, the reasons for contending the Block H advice did not comply with s 69(4A)(b) advanced in this Court were somewhat different from those relied on in the District Court.
Principles on appeal
[14] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.3 In this section, a trial includes a proceeding in which the appellant pleaded guilty.4
[15] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.5
District Court decisions
[16] The Judge recorded the submission from Mr Tobeck for both appellants was that the Police advice did not comply with the requirements of s 69(4A)(b) and did not provide information critical to each appellant’s decision whether or not to seek advice. This impeded rather than facilitated each appellant’s decision to take legal advice so there was a breach of each appellant’s right to legal advice under the New Zealand Bill of Rights Act 1990 (NZBORA).
[17] The Judge recorded the submission for the appellants was that, with the advice they received, they would have been oblivious that, with a positive blood alcohol test result, they would be in jeopardy of being charged with an offence or receiving an infringement notice. The Judge said it had been submitted each appellant had not been fully informed when deciding whether to call a lawyer. It had been submitted that, if
3 Criminal Procedure Act 2011, s 232(4).
4 Section 232(5).
5 Sections 250(2) and 250(3).
each appellant had known the consequences, each may have called a lawyer who would have advised him which alcohol test to elect, based on questions about:
(a) the type of alcohol consumed;
(b) what period the alcohol was consumed over; and
(c) the weight of the defendant.
[18] In each decision Judge Garland considered recent jurisprudence on s 77 of the LTA from the Court of Appeal in Re Solicitor-General’s Reference (No 1 of 2020).6 He noted the Court of Appeal had decided that the Block J wording did convey the sense and effect of the warning required by s 77 of the LTA, as there was no material difference between “conclusive” evidence in a “prosecution” and “conclusive” evidence leading to a conviction.
[19] The Judge found Block H complied with the requirements of s 69(4A). He considered the fact the words “proceedings may be taken against you” are immediately followed by two paragraphs which provided colour and context. He quoted those, excerpts 3 and 4.
[20]The Judge considered, after this was read to a motorist, they would be aware:7
(a) depending on the results of [their] blood test, proceedings may be taken against [them];
(b) the results of the blood test may be evidence of an offence under the LTA; and
(c) the results of the blood test may make the defendant liable to pay an infringement fee.
[21] The Judge took judicial notice of the fact the average citizen in New Zealand knows driving with excess blood alcohol is a criminal offence and found it abundantly clear that Block H refers to criminal proceedings. The Judge said, when a motorist reaches the Block H stage, they have been pulled over by a police officer, failed a breath screening test, been detained by a police office, signed an acknowledgement
6 Re Solicitor-General’s Reference (No 1 of 2020) [2020] NZCA 563.
7 Police v Bulleid, above n 2, at [41]; and Police v Hedley, above n 2, at [33].
they know why they have been detained, have been given their rights including their right to speak to a lawyer and have been told anything they say can be used as evidence in court. The Judge did not consider someone in that position would not realise they were in jeopardy of criminal proceedings for drink driving. The Judge found there was no material difference between the wording of Block H and s 69(4A).
[22] Alternatively, the Judge indicated he would have found Block H reasonably complied with s 69(4A) of the LTA. The Judge indicated he did not perceive any injustice even if Block H was materially different to s 69(4A) because it was not the only juncture where a motorist had the opportunity to call a lawyer. After failing an evidential breath test, the motorist would be given the opportunity to elect a blood alcohol test with the further advice contained in Blocks J (set out above) and K.8
Submissions
Appellant’s submissions
[23] Mr Cullen, for Mr Bulleid, began his oral submissions by reminding the Court that the legislation for consideration constrains the circumstances in which individuals, contrary to the fundamental rights they have under the NZBORA, can be required to provide evidence, potentially with blood alcohol testing through invasive bodily examination, of criminal offending. He submitted there is a need for the courts to be vigilant that the Police recognise those constraints but also that lawyers are reminded of how important it is for motorists, in similar circumstances to these appellants, to be able to obtain properly informed legal advice as to the alternative ways they might deal with the situation confronting them and the consequences of the choices they might make.
8 Block K advises the motorist they have been detained for the purpose of breath or blood test procedures for alcohol; they have the right to remain silent; they do not have to make any statements; anything they say will be recorded and may be given in evidence in court; they have the right to speak with a lawyer without delay and in private before deciding to answer any questions; Police have a list of lawyers they may speak to for free; those rights will continue throughout the breath or blood alcohol testing procedures; and if they wish to speak to a lawyer a telephone will be made available to them for that purpose as soon as practicable. They will be allowed in reasonable time to consult and instruct a lawyer from the time a telephone is made available to them.
[24] Mr Cullen submitted the judgment of the Court of Appeal in Re Solicitor- General’s Reference was of no relevance.9 That judgment was concerned with the advice given to motorists after they had undergone an EBA test and the level recorded provided evidence that an offence had been committed.
[25] The Block H advice was given at a time when the motorist could elect to undergo a blood alcohol test but also had the option of not participating in the EBA or blood alcohol testing procedure in any way by first electing to undergo a blood alcohol test and then refusing to undergo that test.
[26] Mr Cullen emphasised this was important because there are ways in which the level of alcohol established from such a test will expose the offender to penalties that cannot be imposed where there has been a refusal to participate, first in the EBA testing and, second, following that refusal, a failure or refusal to submit to a blood alcohol test.10
[27] Mr Cullen referred in particular to the ways in which a high breath alcohol or blood alcohol reading exposes the motorist to an immediate 28 day licence suspension and the making of an interlock order and/or zero alcohol licence. Mr Cullen submitted this can be a matter of considerable significance for those in driving occupations where their employer would not permit or enable them to drive a vehicle fitted with an interlock device.
[28] He submitted the potential for such penalties is particularly important given the LTA does not permit anyone to obtain either a limited licence or an exemption from the requirements of an interlock licence to avoid hardship/extreme hardship in the way others, who are subject to a disqualification, may be able to do so as to be able to carry on in employment, although there is provision for the replacement of an interlock with a period of disqualification.11
9 Re Solicitor-General’s Reference (No 1 of 2020), above n 6.
10 Land Transport Act, ss 65AB-65AK.
11 Land Transport Act, ss 100 and 100B.
[29] Mr Cullen argued compliance with s 69(4A)(b) thus required the motorist to be advised of more than the fact that, if a result of a blood alcohol test indicated the presence of alcohol in the person’s blood (referred to hence as a positive blood alcohol test), the person might be charged with an offence. Expressly, s 69(4A)(b) provided that, if the result of a blood alcohol test was positive, the person “may be issued with an infringement offence notice or charged with an offence, depending on the proportion of alcohol”. In this instance, with the Block H advice, the motorists had been advised only that with a positive blood alcohol test, “proceedings” might be taken against them.
[30] Mr Cullen submitted the advice given was materially inadequate in that, if the advice had been in accordance with all that was set out in s 69(4A)(b), the motorist would likely realise that the consequences that could flow from positive EBA or blood alcohol testing could vary. With ignorance as to what the potential consequences might be, the person would be more likely to seek legal advice in a situation where informed advice could be of benefit to him.
[31] Mr Cullen submitted the potential for the motorist to receive that advice and the potential value of it at the time it had to be given was important. Advice after a positive EBA test would be too late because, with the results of that test, the motorist would potentially already be liable for the more severe sentence. If he was subsequently to refuse a blood alcohol test, evidence from the EBA test would be admissible against him. If he did submit to a blood alcohol test, the result of that test could provide evidence of offending at a level which could result in more severe sentences.
[32] Mr Cullen argued, because of this, when the Block H advice given to the appellants did not comply with the requirements of s 69(4A), it could not be considered reasonable compliance as might be permitted in accordance with s 64(2) of the LTA. He also submitted it was because of this the Judge’s reference to Re Solicitor-General’s Reference and the Court of Appeal’s consideration of the adequacy of the Block J advice given after an EBA test was in error.
[33] Mr Cullen referred to Police v Richter and Police v Humphreys where District Court Judges had accepted the same Block H advice as here did not follow strict requirements of s 69(4A)(b).12
[34] For Mr Hedley, Mr Tobeck adopted the submissions he had made in the District Court but also the submissions made by Mr Cullen for Mr Bulleid.
[35] At the hearing of the appeal, Mr Tobeck did not raise criticisms which he had made in the District Court of the Block H advice which had not been mentioned by the District Court Judge in his decision. The focus of Mr Tobeck’s submissions in the District Court had been that the Block H advice did not inform the motorist that he was at risk of being charged with an offence because it had referred to the risk of “proceedings” rather than prosecution and/or conviction. He had also argued the advice was misleading because it solely referred to the potential outcome of a blood alcohol test and did not inform the motorist that, if the result of the EBA test indicated the presence of alcohol, proceedings might be taken against him.
[36] In the District Court, Mr Tobeck had argued, because of the inadequacies in the Block H advice, the motorist had been denied the opportunity to make an informed decision as to whether they would seek legal advice and so did not have the opportunity to “enable counsel to advise, on a properly informed basis, whether the person would be best served to elect a blood test or to remain with a breath test”.
[37] In his oral submissions, Mr Tobeck focused on the omission of any reference in the Block H advice to the way, through a positive blood alcohol test, the motorist would be in jeopardy of an infringement notice or charged with an offence, depending on the proportion of alcohol. He supported Mr Cullen in the submissions he made as to how, with legal advice, a motorist could be made aware that the potential consequences of refusing both an EBA test and a blood alcohol test could be less severe than the consequences which could flow from an EBA test and/or a blood alcohol test.
12 Police v Richter [2021] NZDC 1815 at [17]; and Police v Humphreys [2021] NZDC 14880.
[38] Mr Tobeck suggested the omission of any reference to the potential consequences as described in s 69(4A)(b) would not alert the motorist to the potential need for and value of competent legal advice. He suggested the motorist would have been further distracted from his right to such legal advice through the emphasis in the Block H advice to the financial costs of electing a blood alcohol test and the fact that, whatever the level of alcohol revealed by such a test, the motorist would be liable for the costs of that test and associated medical costs.
Respondent’s submissions
[39] For the Police, Mr Donnelly said he accepted there are ways in which the potential penalties or sentence to which a motorist might be exposed through refusing to undergo both an EBA test and a blood alcohol test could be less severe than the penalties they would face with the level of alcohol reading from an EBA test or from a blood alcohol test. He also accepted that, if a motorist was to seek legal advice when detained for an EBA test or at any point during the alcohol testing process, it would be appropriate for a lawyer to advise on the different courses of action that would be open to the motorist and the potential consequences of each, provided the lawyer did not encourage the motorist to commit an offence.
[40] Mr Donnelly submitted the issue was not whether the motorist had received the legal advice they were entitled to seek. The issue was whether the motorist had been given the advice required by s 69(4A). In that regard, he submitted the way in which the Judge had looked at all parts of the Block H advice and the context in which that advice was given was appropriate.
[41] He submitted the appellants had failed to identify a real error in the Judge’s analysis.
[42] Mr Donnelly submitted Block H did comply with the Act, or, in the alternative, there was reasonable compliance. He maintained the premise of the alleged non- compliance was that Block H referred to proceedings as opposed to criminal proceedings. He submitted the Judge was entitled to take judicial notice of the fact the average New Zealand citizen would know that driving with excess blood alcohol is a criminal offence.
Analysis
[43]The appeal raises the following issues:
(a) whether the advice given strictly complied with s 69(4A)(b);
(b) whether the degree of non-compliance resulted in an issue as to the correctness of the result or gave rise to a risk of injustice and unfairness (and thereby did not reasonably comply); and
(c) whether, if the advice did not strictly or reasonable comply, the evidence should have been excluded and a miscarriage of justice resulted.
[44] There was no error in the way the District Court Judge referred to the Court of Appeal’s judgment in Re Solicitor-General’s Reference and its consideration of the Block J wording. The Block J wording and the warning required by s 77 of the LTA were both different from the warning required by s 69(4A) of the LTA and the wording of the advice in Block H, but it was appropriate for the Judge to refer to the approach of the Court of Appeal in considering the issues in the District Court.
[45]Relevantly, in their judgment, the Court of Appeal stated:13
·In deciding whether the warning given by the Police was consistent with the advice required by the relevant statutory provision, the issue is whether the wording used by the Police conveyed the sense and effect of the warning required in the relevant statutory provision.14
·Verbatim recitation of the statutory wording is not necessarily required for the law enforcement process itself to remain lawful.15
·In considering the adequacy of the Police advice, it is appropriate to consider what the motorist would have made of that advice in the circumstances the motorist was then in.16
13 Re Solicitor-General’s Reference (No 1 of 2020), above n 6.
14 At [35].
15 At [37], with reference to statements of the Court of Appeal in Barr v Ministry of Transport [1983] NZLR 720 (CA) at 722.
16 At [41].
·In considering whether a motorist would have been misled by the advice, it is appropriate to consider what he would have understood, both as to his status and the risk of the situation he was in with the advice he did receive.17
·If the advice given did not comply with the requirements of the particular statutory provision, the Court will need to consider whether the reasonable compliance provision of s 64(2) of the Act applies. As to that, the principles identified by McMullin J in Soutar v Ministry of Transport will need to be considered: whether the degree of non-compliance causes a reasonable doubt about the correctness of the result and may give rise to a risk of injustice and unfairness.18
[46] More recently, in McKinney v Police, the Supreme Court approved the approach adopted by the Court of Appeal in Re Solicitor-General’s Reference as to the consideration of the Block J advice.19 The Supreme Court said “… it is essential only to convey the “sense and effect” of the statutory language to a motorist, avoiding any real risk of misunderstanding, rather than requiring any specific formula”.20
[47] I also do not consider there was any error in the way the Judge referred to the Block J and K advice the motorist would receive after the EBA test showed their level of alcohol was at a level where they had committed an alcohol driving offence. The complaint advanced in the District Court was that, through the wording of the Block H advice, the motorist did not seek advice and thus was denied the opportunity of having a lawyer enquire into relevant circumstances and thus advise whether the motorist would be better served by undergoing an EBA test or electing a blood alcohol test.
[48] The Judge referred to the requirement for and nature of the Block J and K advice in considering the application of s 64(2), i.e. whether any unfairness or injustice had arisen from the motorist’s decision not to call a lawyer after receiving the Block H advice.
17 At [41].
18 At [48], referring to Soutar v Ministry of Transport [1981] 1 NZLR 545 (CA) at 550.
19 McKinney v Police [2021] NZSC 68 at [10].
20 At [6].
[49]As to this, the Judge said:21
[50] After failing an evidential breath test the defendant may have elected to submit a blood sample. If he had done so, the evidential breath test would no longer be admissible. This again allows him to weigh between the evidential breath test and the evidential blood test. If anything, the defendant would have been in a better position to make the election because he would know what the result of the breath test was.
[51] At this point he would also have all the additional advice provided by Blocks K and J, both of which make it apparent that the defendant is in jeopardy of being charged with an offence or issued an infringement notice. The defendant would then have had the opportunity to speak to a lawyer and seek advice on which test is likely to be more advantageous. There is no argument the defendant would be underinformed at this stage. Accordingly, having effectively the same election before him again at a later stage ameliorates any potential unfairness.
[52] I therefore cannot perceive any unfairness or injustice generated by the deviance between the wording of Block H and subs (4A). I would have found reasonable compliance if I were not confident that Block H actually complies with subs (4A).
[50]I do not find any error in that reasoning.
[51] The Judge appropriately referred to the observation from the Supreme Court in Aylwin v Police:22
Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable. The great majority of drivers comply with their obligations in this respect. A small minority do not. Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences. The Courts must give full effect to that clear Parliamentary indication.
(emphasis added)
[52] Consistent with the Supreme Court’s observation, there was no error in the Judge finding that the ordinary New Zealand citizen would be aware driving with excess blood alcohol is a criminal offence, and therefore would understand “proceedings”, as used in the Block H advice, referred to prosecution.
21 Police v Bulleid, above n 2. See also Police v Hedley, above n 2, at [42]-[44].
22 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].
[53] The Constables were required to advise the appellants that, if the result of the EBA test indicated the presence of alcohol in their blood, they might be issued with an infringement notice or charged with an offence depending on the proportion of alcohol.23
[54]The appellants were in fact advised:
If that blood specimen indicates the presence of alcohol, proceedings may be taken against you. [Excerpt 2]
…
Whether or not your blood test result is evidence of an offence under the Land Transport Act 1998, you may be liable to pay a blood test fee and associated medical costs.” [Excerpt 3]
…
If you are 20 years of age or over, and you do not hold an Alcohol Interlock Licence or a Zero Alcohol Licence, and you fail or refuse to undergo an evidential breath test when required, and your blood alcohol concentration is between 51 and 80 milligrams of alcohol per 100 millilitres of blood, you will be liable to pay an infringement fee of $700. [Excerpt 4]
[55]The Judge found, from this advice, a motorist would be aware:24
(a) depending on the results of his blood test, proceedings may be taken against him;
(b) the results of the blood test may be evidence of an offence under the LTA; and
(c) the results of the blood test may make the defendant liable to pay an infringement fee.
[56] With reference to those matters and also the background to motorists receiving the Block H advice, the Judge found that, with the Block H advice, the motorists were warned that, depending on the result of a potential blood test, they were at risk of prosecution. I do not consider there was any error in either his reasoning or the conclusion he reached as to this.
23 Land Transport Act, s 69(4A)(b).
24 Police v Bulleid, above n 2, at [41]; and Police v Hedley, above n 2, at [33].
[57] On the hearing of this appeal however, the emphasis in submissions for the appellants was that the advice had not referred to the potential for the motorists to be “issued with an infringement offence notice or charged with an offence, depending on the proportion of alcohol”, if the blood alcohol test indicated the presence of alcohol in the motorists blood.
[58] In accordance with the approach of the Court of Appeal in Re Solicitor- General’s Reference, in deciding whether the advice in Block H complied with the requirements of s 69(4A), the issue is whether the omission of those words would have misled the motorists as to how the results of a blood alcohol test might put them at risk of prosecution either by way of infringement notice or charge.
[59] I do not consider the omission in the Block H advice of the words “depending on the proportion of alcohol” was in any way misleading. At the time each appellant was given this advice, he had been told he had been detained for the purpose of EBA or blood alcohol test procedures. Both appellants thus knew such tests would be to test for alcohol and provide evidence as to the level of alcohol in either breath or blood. After being stopped by the Police, they both submitted to a breath screening test and knew the level of alcohol revealed by that test had led to the requirement for them to undergo an EBA test. They would have known that the level of alcohol established through such testing would determine whether they were liable to prosecution.
[60]Excerpt 4 of the Block H advice refers to liability for an infringement fee of
$700 for a motorist who is over 20 years of age and alcohol concentration from a blood alcohol test is between 51 and 80 milligrams of alcohol per 100 millilitres of blood. As was submitted by Mr Donnelly, with that advice, any motorist receiving Block H advice was on notice that, with the result of the blood alcohol test, there can be evidence of alcohol in the blood at different levels and, depending on the level, there may be different consequences.
[61] In referring to the potential outcome of a blood alcohol test, the Block H advice however did not verbatim say that, if the result of a blood alcohol test indicated the presence of alcohol in the person’s blood, the person might be issued with an
infringement offence notice or charged with an offence depending on the level of alcohol.
[62] Counsel for both appellants submitted that, had such words been included, each motorist would have been more likely to appreciate the need for legal advice and would thus have been better able to make an informed decision at that point whether they should seek such advice.
[63] I was referred to various decisions where District Court Judges had considered the adequacy of the Block H advice that was given here.
[64] In Police v Hooper, Judge Phillips decided, with that advice, the person receiving the advice would be aware that the presence of alcohol in the blood might result in prosecution action being taken.25 Prosecution action, given its normal meaning, would include infringement offences. The word “proceedings” would, in the circumstances, clearly relate to proceedings of a “criminal or quasi criminal kind”.26 Applying what the Judge said was the logic within the Court of Appeal ruling in Re Solicitor-General’s Reference,27 the Judge held there had been strict compliance, that they had been given the advice intended by Parliament and, with a positive blood alcohol test, they might be liable for drink driving proceedings.28
[65] In Police v Duffy, in holding that the motorist had not been misled by the Block H advice, Judge Cathcart said a motorist would not be misled because he would understand from the Block H advice why he could be liable to be issued with an infringement notice because he was advised precisely of the factual parameters governing that jeopardy.29 He had also been made aware of the only other prosecution route available – he might be charged with an offence under the Act.
25 Police v Hooper [2021] NZDC 5619 at [59]-[60].
26 At [59].
27 There appears to have been a slip in the Judge, at different points, citing this judgment as New Zealand Police v Stewart.
28 At [60].
29 Police v Duffy [2021] NZDC 17020 at [34].
[66] In Police v Richter, Judge Roberts was concerned with the same advice as in Block H.30 The Judge considered the Block H advice did not clearly explain to the motorist that the person may be subject to an infringement notice or be charged with an offence depending on the level of blood alcohol concentration or communicate that the motorist might be charged at all. The Judge however applied s 64(2) and said there had been reasonable compliance with the requirements of s 69(4A)(b) in terms of the test stated by McMullin J in Soutar v Ministry of Transport.31
[67] In Police v Humphreys, Judge Cooper said the “sense and effect of s 69(4A)” was not merely to advise the subject that, if he or she refuses or fails to undergo the evidential breath test, the EBA procedure will continue.32 He said that was spelt out in the prior subsection s 69(4A)(a). He said that, without advice that, if the result of the blood alcohol test indicates the presence of alcohol in the person’s blood, the person might be issued with an infringement notice or charged with an offence, depending on the proportion of alcohol, the full sense and effect of s 69(4A) was not conveyed by the words of Block H. He considered, without the relevant words, although the words of Block H did convey that the proceedings would continue if a person fails or refuses to undergo the evidential breath test, that by itself is insufficient. He concluded there had thus not been strict compliance with s 69(4A).33 He also said, despite this, there had been reasonable compliance in terms of s 64(2).
[68] In Re Solicitor-General’s Reference, the Court of Appeal considered the Block J advice that, if a blood alcohol test was not elected, the EBA test would be conclusive evidence in a prosecution against the motorist.34 The issue was whether that satisfied the requirement for advice that the positive test could be “conclusive evidence to lead to that person’s conviction”.35 The Court held that the difference in the wording used in Block J, as compared to the wording in s 77(3A), was “a distinction without a material difference”.36
30 Police v Richter, above n 12.
31 Soutar v Ministry of Transport, above n 18.
32 Police v Humphreys, above n 12, at [15].
33 Police v Humphreys, above n 12, at [16].
34 Re Solicitor-General’s Reference (No 1 of 2020), above n 6.
35 At [18].
36 At [41].
[69] The Court of Appeal’s determination as to that is not directly applicable to what is at issue on these appeals although, as already referred to, some of their reasoning is. What is significant is that the Court considered, following a positive EBA test, s 77(3A) required the Police to warn the motorist that they faced either a criminal offence or an infringement offence.
[70] The Court of Appeal held the warnings required in s 77(3A) required the motorist to be advised:37
First, the present status of the motorist: either they face a criminal offence, or they face an infringement offence. Secondly, that unless they make the blood sample election, the EBT result could of itself be conclusive evidence against them.
[71] In the wording of s 69(4A)(b), Parliament required the Police to advise the motorist that, if a blood alcohol test was positive for alcohol, depending on the level of alcohol revealed by the test, the motorist could be liable to prosecution either by way of an infringement notice or a charge.
[72] I accept, consistent with that, the wording of s 69(4A)(b) requires the motorist to be advised and to be able to understand that, depending on the level of alcohol obtained from a blood alcohol test, they could face prosecution down one of two separate routes – either through being charged with an offence or being issued with an infringement offence notice.
[73] The Court of Appeal was concerned with the advice which had to be given at a different stage when there was already evidence of an infringement or offence through the EBA test. Nevertheless, the Court of Appeal’s judgment is consistent with it being important that, with the advice required by s 69(4A)(b), the motorist must be made aware that the prosecution could be by way of either a charge or infringement notice.
[74] I do not consider it was necessary for the Police to spell out that such possibilities would be dependent on the level of alcohol indicated by the blood alcohol test. That would have been obvious to the motorist.
37 At [39].
[75] Section 69(4A)(c) required a Police officer to advise “the infringement fee payable for a breach of s 56(2B)”.
[76]Section 56(2B) states:
56 Contravention of specified breath or blood-alcohol limit
…
(2B) A person commits an infringement offence if—
(a) the person fails or refuses to undergo an evidential breath test after having been required to do so under section 69; and
(b) analysis of a blood specimen subsequently taken from the person under section 72(1)(a) indicates that the person drove or attempted to drive a motor vehicle on a road while the proportion of alcohol in the person’s blood exceeded 50 milligrams of alcohol per 100 millilitres of blood but did not exceed 80 milligrams of alcohol per 100 millilitres of blood.
[77]The infringement fee payable for such an offence is $700.
[78] The Excerpt 4 advice referred to the fee payable for an infringement offence. It went further in referring to the circumstances in which, under s 56(2B), the fee would be payable. Each motorist was thus informed of the potential for a prosecution to be by way of the infringement route. It was also made clear to the motorist that, in order to go down the infringement notice route, their blood alcohol result would have to be between 50 and 80 milligrams of alcohol per 100 millilitres of blood.
[79] Because the motorist had been informed there were two prosecution routes available and they knew the factual parameters pertinent to one of those routes, they could have known the prosecution route they might be subject to would depend on the level of alcohol revealed by the blood alcohol test.
[80] There was accordingly no material gap in the advice provided to each motorist with the Block H advice. My conclusion as to that is consistent with the approach of
the District Court Judges in Police v Duffy, Police v Hooper and of the Judge in the current two cases.38
[81] There was accordingly no error in the Judge determining in these two cases that there had been strict compliance with s 64(4A).
[82] The Judge however said, had he been wrong in his determination, he would have found there was reasonable compliance in terms of s 64(2).
[83] I agree with the Judge that there was reasonable compliance in terms of s 64(2) and the test as stated by McMullin J in Soutar.39
[84] With the advice the motorists received, they must have known that, depending on the level of alcohol established by an EBA test or blood alcohol test, they would be at risk of prosecution for an offence. They were advised that, if they failed or refused to cooperate with the EBA test, they could be required to undergo a blood alcohol test. They had been advised and must have known that, as a result of a blood alcohol test, they could be prosecuted. They knew from the fact they had failed the breath screening test that it was likely either an EBA test or a blood alcohol test would provide evidence that they had committed an offence and that they would be charged with that offence.
[85] The legislation did not require the Police to advise either motorist of the potential sentences to which they might be subject if they were to be convicted of an offence. These motorists would have known that, through their being engaged with the Police and being detained for the purpose of EBA or blood alcohol testing, the Police were in the process of obtaining evidence as to their offending and ultimately that could result in prosecution and sentencing.
[86] Knowing that, they had sufficient information to make an informed decision as to whether they required legal advice as to how they should deal with the situation they were in. At several points during the process, they were reminded that they had the right to seek legal advice and that right remained with them throughout the process.
38 Police v Duffy, above n 29; Police v Hooper, above n 25; Police v Bulleid, above n 2; and Police v Hedley, above n 2.
39 Soutar v Ministry of Transport, above n 18.
[87] There was no evidence to suggest they were either misled or they misunderstood the situation they faced, either as to their status or the potential for prosecution.
[88] The evidence obtained from the EBA testing was reliable and is not challenged in any way.
[89] At the point where these motorists were advised of their right to legal advice and did not seek to exercise that right, they were on notice that they either had to undergo an EBA test or, if they failed or refused to do that, they would be required to submit to a blood alcohol test. They could not have known precisely what the level of alcohol would be in either such test although, given the result of the breath screening test and what ultimately emerged from the EBA test, they must have known they were at risk of a reading significantly in excess of the level at which it could be conclusively proved they had committed an offence under the LTA.
[90] It was implicitly suggested that, with legal advice, enquiry from a lawyer as to their particular circumstances and advice as to the potential consequences of blood alcohol testing, they might have decided to commit the different offence of refusing a blood alcohol test. Whether or not they would have done so is entirely speculative and lacks any evidential foundation.
[91] In considering s 64(2) and in considering whether what happened in each case resulted in a miscarriage of justice in terms of s 232 of the Criminal Procedure Act, the appellants are asking the Court to find there was potential for an injustice because they were both denied the opportunity to decide that, rather than submit to alcohol testing procedures, they should have had the opportunity to commit another offence under the LTA, namely, the refusal of a blood alcohol test.
[92] The appellants implicitly suggest, without such an opportunity, the evidence obtained from the EBA testing was obtained unfairly and conviction based on such evidence has resulted in an injustice.
[93] The evidence obtained from the EBA test proved conclusively they had committed the offenses they were charged with and convicted of. Quashing those convictions is not necessary to avoid a miscarriage of justice.
[94] The breath screening test for each of these motorists showed they had likely been driving when the alcohol on their breath was over 400 micrograms per litre of breath. In such circumstances, through the LTA, Parliament has made it clear the Police could require them to submit to an EBA test or, if they failed or refused to undergo such a test, then a blood alcohol test. Either test would provide reliable evidence as to the alcohol level at the time they were driving.
[95] To set aside their convictions on the basis they should have been given the opportunity to avoid such testing through committing another offence would be to frustrate the intentions of Parliament rather than to give effect to them, as the Supreme Court in Aylwin v Police clearly said Judges are required to do.40
[96]The appeals in both cases are dismissed.
Solicitors:
ASP Tobeck, Barrister, Southland S D Cullen, Barrister, Auckland RPLaw, Invercargill.
40 Aylwin v Police, above n 22, at [17].
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