Hibbert v Police

[2014] NZHC 2094

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-103 [2014] NZHC 2094

BETWEEN

PAUL HIBBERT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	1 September 2014
Counsel:	ZE Reid for Appellant L Mills for Respondent
Judgment:	1 September 2014

JUDGMENT OF BREWER J

Solicitors/Counsel:                  Zoe Reid (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

HIBBERT v POLICE [2014] NZHC 2094 [1 September 2014]

Introduction

[1]      Mr Hibbert appeals his conviction in the District Court at North Shore by Judge Roy Wade on 1 May 2014 on a charge of driving with excess blood alcohol. Mr Hibbert no longer protests sentence.

Issues

[2]      The issue is:

Has there been a breach of the procedure leading to the taking of the evidential  blood  sample  such  that  the  result  of  the testing of  the  blood sample should be ignored?

Has there been a breach of the procedure leading to the taking of the evidential blood sample such that the result of the testing of the blood sample should be ignored?

[3]      In New Zealand, it is an offence to drive while intoxicated.  The law defines what it means to be intoxicated by reference to a breath alcohol limit and a blood alcohol limit.   A person who is found, by an evidential breath test, to exceed the prescribed limit is entitled to have his or her blood tested as a control measure.

[4]      In order to ensure that  people’s  rights are protected, and to nevertheless provide for a workable process, the legislation is quite specific on what procedures must be followed in order to gain evidence sufficient to found a conviction.

[5]      Unfortunately, this has  given rise to a kind of legal  game.   A person is stopped, an evidential breath sample is taken and perhaps an evidential blood sample is taken.  A prosecution results.  The person who is charged goes to a lawyer and is advised there might be a technical defence.  The argument which results is not that the person charged was not driving while intoxicated but that, due to a technical breach of the procedure, the prosecution should not be allowed to prove it.

[6]      This is such a case.

[7]      The law1 provides that if the result of a person’s evidential breath test appears to be positive, the person has the right, within 10 minutes of being advised of the implications of a positive test, to elect to have a blood test to assess the proportion of alcohol in his or her blood.

[8]      There is a lot of case law around the 10 minute period.  A lot can happen in

10 minutes.  But the purpose of the 10 minute period is to allow an individual that period of time without undue pressure and without undue interruption to make his or her decision.

[9]      In this case, the chronology goes like this:

10:31 pmMr  Hibbert  was  stopped  at  a  checkpoint.    A  sniffer  test indicated  alcohol.     He  was  advised  of  his  legal  rights. Mr Hibbert then spoke to his lawyer by telephone for about

30 minutes.

11:04 pm       Mr Hibbert is told that the result of his evidential breath test was 763 micrograms of alcohol per litre of breath.

11:07 pm       Mr Hibbert signed and acknowledged that he understood the advice.

11:08 pm        Mr Hibbert’s rights were explained to him.  They include the

right to speak to a lawyer.

11:10 pm       Mr  Hibbert  again  spoke  to  his  lawyer,  this  time  for  six minutes.

11:16 pm       Mr Hibbert went to get his cigarettes from his car and the police officer gave him a suspension notice.  The suspension

notice was a notice that he was suspended from driving.

1      Land Transport Act 1998, s 70A.

11:21 pm        The  police  officer  noted  that  the  10  minute  period  had commenced.

11:33 pm        The police officer noted that the 10 minute period had ended.

Mr Hibbert requested a blood test.

11:55 pm        Mr Hibbert’s blood sample was taken.

[10]     Ms Reid, for Mr Hibbert, submits that the result of the blood sample is inadmissible because the 10 minute period commenced at 11:07 pm when the advice relating to the positive evidential breath test was read to him.   When Mr Hibbert went to get his cigarettes and was given the notice of suspension of his licence, that was an interruption and a breach of the 10 minute period.  Even if that was not so, the service of the suspension notice caused Mr Hibbert anxiety, meaning that the rest of the 10 minute period did not serve its purpose.

[11]     I find there was no breach of Mr Hibbert’s rights regarding the 10 minute

period for the following reasons:

(a)      I agree that the 10 minute period started at 11:07 pm but that it was interrupted.   He was, however, given an uninterrupted period of at least 10 minutes, from 11:21 pm until 11:33 pm, to consider whether he wished to request a blood test.   That satisfies the intent of the legislation  and  amounts  to  reasonable  compliance,  even  if  the

10 minute period began at 11:07 pm.

(b)Mr Hibbert’s evidence was that the service of the suspension notice so rattled him that he was unable to make proper use of the 10 minute period.   That is an easy thing to say.   Objectively, and taking into account the whole of the circumstances, including the fetching of the cigarettes and the advice received from his lawyer, there is no reason to infer that the events leading up to the decision to elect a blood test imposed undue pressure on Mr Hibbert, nor that he made a decision he would not otherwise have made. The Judge certainly dismissed the

possibility of panic and his observation that what amounts to undue pressure has to be seen in the context of the undoubtedly difficult emotional situation a stopped motorist experiences is correct.

[12]     In terms of s 229 of the Criminal Procedure Act 2011, I do not find that the District Court Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.

[13]     I adopt, with respect, the dicta of Wylie J in Hutchinson v Police:2

Here, there can be no challenge to the accuracy of the positive evidential breath test.  The issue raised is technical and it has no intrinsic merit.  The breath alcohol provisions should not be considered to be a legislative code under which a procedural error should lead to automatic exclusion.  Broadly worded provisions such as s 64(2) militate against any such argument.

Drinking and driving is dangerous, illegal and socially irresponsible. Parliament has legislated to ensure that those drivers who do drink and drive cannot escape responsibility through technical and unmeritorious defences. The Courts must give full effect to that clear parliamentary intention.

Decision

[14]     The appeal is dismissed.

Brewer J

2      Hutchinson v Police HC Rotorua CRI-2010-463-109, 3 September 2010 at [45].