Hendriks v Police

[2023] NZHC 1978

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2023-425-7

[2023] NZHC 1978

BETWEEN

WADE HANS HENDRIKS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

24 July 2023

Appearances:

A S P Tobeck for Appellant

R W Donnelly for Respondent

Judgment:

27 July 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 27 July 2023 at 10.15 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

HENDRIKS v NEW ZEALAND POLICE [2023] NZHC 1978 [27 July 2023]

[1]    Wade Hendriks was convicted of driving with excess breath alcohol.1 He appeals this conviction on the basis that the police record of the procedure followed when administering the evidential breath test records he asked to see a lawyer, but he was not given that opportunity.

Background facts

[2]    On 15 July 2022, Mr Hendriks was randomly stopped while driving on Kirkoswald Road. When an evidential breath test was administered, he was found to have 600 micrograms of alcohol per litre of breath, which exceeded the statutory limit of 400 micrograms.

[3]    On 31 March 2023, Mr Hendriks was convicted in a judge-alone trial before Judge Harvey.2

[4]    Mr Hendriks defended the charge, relying on the police record of the excess breath alcohol testing procedure (the EBA procedure sheet). It recorded that when Mr Hendriks was given the statutory advice about the requirement to undergo an evidential breath test, he had answered “yes” to the question “Would you like to speak to a lawyer?”.

[5]    When giving evidence, the constable who administered the breath test explained that he used the electronic EBA procedure sheet on his mobile phone when processing Mr Hendriks. He acknowledged he recorded the response “yes” to that question on the second occasion it was asked, but that this was a mistake he made while completing the EBA procedure sheet on his mobile phone. The constable did not pick up the error until after the electronic form had been submitted to the police database. However, once this form has been submitted, it cannot be altered.

[6]    The constable’s evidence was that at no time had the defendant asked to speak to a lawyer. He declined the offer to speak to a lawyer at all three stages when that option was offered during the testing procedure. That was consistent with his response

1      Land Transport Act 1998, s 56(1) – maximum penalty: three months’ imprisonment or a fine not exceeding $4,500.

2      Police v Hendriks [2023] NZDC 9149.

to the initial request as to whether he wanted a lawyer, and with his response to the third request (which follows the advice given prior to the 10 minute period before deciding whether to take a blood test), where he also said “no”. It was also consistent with the record in the comments section on the form where the police officer recorded that Mr Hendriks answered “no” on all three occasions when he was asked whether he wanted a lawyer.

[7]    In his judgment, the Judge said it was clear that Mr Hendriks was asked on three separate occasions whether he wished to speak to a lawyer. On two of those occasions, there is no challenge to the fact he answered “no”. The sole issue is whether on the second occasion, he answered “yes” as was submitted on the online form. The Judge observed that the constable gave careful evidence and he honestly admitted his error and, very shortly after discovering that error, he completed a second statement which outlined what had occurred. The Judge concluded as follows:3

In the context of this case I simply do not accept that the defendant asked to speak to a lawyer, and I accept that the constable, when completing the form on what is a relatively small screen made an error and pushed yes instead of no.

[8]Accordingly, Mr Hendriks was convicted.

Principles on appeal

[9]    Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that 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.4

[10]   The appeal proceeds by way of rehearing and this Court is required to form a view of the facts.5 If this Court reaches a different view on the evidence, it follows

3 At [20].

4      Criminal Procedure Act 2011, s 232(4).

5      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].

the trial judge necessarily will have erred and the appeal must be allowed.6 The onus is on the appellant to show that an error occurred.

Submissions

Appellant’s submissions

[11]   Mr Tobeck, for the appellant, submitted that Judge Harvey erred in accepting the explanation that the wrong button was pressed. He points out that when the constable prepared his first statement in September, using the printout of the EBA procedure sheet, he did not refer to the mistake nor seek to correct it. Instead, the first time that the constable said he noticed what he calls an error, was when he was sent an email asking a question about it. It seems that before that time, he accepted what was in the check sheet to be correct.

[12]   In Young v Police, an appeal was allowed because the police officer failed to record the outcome of the evidential breath test.7 Counsel submits that the present case is stronger for the appellant than in Young. In Young, the EBA procedure sheet was blank, but, in the present case, the EBA procedure sheet contradicts the viva voce evidence of the officer.

[13]   Counsel also submits that the Judge misapplied the decision in Aylwin v Police where the Supreme Court observed that “Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences”.8 He submits that Aylwin cannot be interpreted properly without reading it alongside the decision of Birchler v Police.9 In that case, the Supreme Court quashed a conviction when the driver was unlawfully detained during the process of collecting evidence and the dicta in Aylwin did not apply.

[14]   Mr Tobeck concludes that the Court cannot be confident that Mr Hendriks did not wish to speak with a lawyer and there is no evidence that he did, in fact, speak with one as the test was administered only five minutes after the question was asked.

6 At [38].

7      Young v Police HC M1750/84 22 February 1985.

8      Aylwin v Police [2008] NZSC 113 at [17].

9      Birchler v Police [2010] NZSC 109.

Accordingly, the appeal should be allowed as the evidence was gathered in breach of Mr Hendrik’s rights.

Respondent’s submissions

[15]   Mr Donnelly, for the respondent, submits that there was no error made in the District Court. Constable Johansen outlined the reasons for the discrepancy in the EBA procedure sheet. While the EBA procedure sheet conflicted with his viva voce evidence, he had made an error which could not be remedied because of the process of undertaking the EBA procedure electronically.

[16]   The respondent submits that Birchler v Police is of little assistance. This decision concerned the lawfulness of the appellant being taken to a police station for the purpose of undertaking a breath screening test when one was readily available at the scene. In the present situation, however, the sole dispute is whether the appellant had indeed requested to speak to a lawyer. The officer who undertook the procedure gave evidence on oath that such a request was not made. This evidence was capable of being accepted by Judge Harvey and it ultimately was.

Discussion

[17]   This is not a case which engages an accepted non-compliance with the specified procedure for evidential breath and blood testing. The case turns on whether the Judge was satisfied there had been compliance with the requirement to give the appellant the option of consulting a lawyer at three stages in the procedure for gathering evidence from someone who is suspected of driving with excess breath or blood alcohol.

[18]   The conviction was defended on the basis that the printed EBA procedure sheet recorded in response to one of the prompts “would you like to speak to a lawyer”, the word “yes” beside it. The constable explained that at each of three questions relating to the right to speak to a lawyer, Mr Hendriks said “no”, but on the second question he mistakenly hit the wrong button and recorded “yes”. Once he had submitted the form he could no longer edit it. However, in the comments section following all three

questions, the constable recorded the answer “no” and he was adamant that the appellant’s consistent answer was “no”.

[19]   Although Mr Tobeck put to the constable that he did not say anything about pushing the wrong button in his statement on 24 September 2022, the constable’s answer was that he did not know why he did not pick up then that he had entered “yes” instead of “no” in response to the second lawyer request question. However, he said as soon as he realised there was a mistake on the EBA procedure sheet he corrected it.

[20]   The Judge had to determine whether he believed the officer’s explanation as to how the “yes” response was inserted to the second query. Having heard the constable’s explanation, and his responses to the criticisms put to him in cross-examination, the Judge determined that there had been no request for a lawyer, and the constable had entered the response “yes” in error.

[21]   In reaching that conclusion, the Judge had to show an engagement with the case, identify critical issues, explain why and how those were resolved and generally provide a rational and considered basis for the conclusion reached.10 In his decision, Judge Harvey outlined that he carefully listened to the evidence given by the constable. He was impressed by his demeanour and believed he was careful and precise. He admitted his error honestly and he completed a second statement after realising his error. Accordingly, the Judge reached the conclusion that the word “yes” was entered in error and found the charges proved.

[22]   I am satisfied that there is a rational and considered basis for the conclusion reached. In each case where the constable entered his own words in the comments section, he recorded that the appellant did not wish to seek legal advice. Such an entry required a deliberate action by the constable to type the words in, as opposed to selecting either the “yes” or “no” option to the question preceding the comments section on a small hand-held screen. As the entry of the word “yes” to the second request for lawyer question was the only evidence to support the defendant having sought, but not received, legal advice, I consider the Judge’s decision that this was a mistake and a conviction should be entered was clearly open to him.

10     Sena v Police [2019] NZSC 55.

[23]   While Mr Tobeck submits that the Judge’s reliance on Aylwin, where it was said the Courts needed to ensure drivers did not escape responsibility through “technical and unmeritorious defences”,11 was misplaced as it needs to be read alongside Birchler, I do not consider Birchler is relevant. Birchler was a case where there had been non-compliance with s 69 of the Land Transport Act 1998 and what was at issue was whether there had been “reasonable compliance” under s 64(2) to overcome a defence to the charge. Here, there is a simple factual dispute as to whether the procedure was followed. The Judge found it was, and Birchler does not assist.

Result

[24]The appeal is dismissed.

Solicitors:

Crown Law, Invercargill

Menzies Marshall Law, Winton

Copy to:
A S P Tobeck, Barrister, Otautau

11     Aylwin v Police, above n 8, at [17].