I v Police HC Wellington CRI 2007-485-58

[2007] NZHC 947

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007-485-58

I

v

NEW ZEALAND POLICE

Hearing:         14 August 2007

Appearances: Mr Johnson for Appellant

Ms Feltham for Respondent

Judgment:      25 September 2007         at 9 am

JUDGMENT OF MALLON J

I V NEW ZEALAND POLICE HC WN CRI 2007-485-58 25 September

2007

Summary

[1]      Mr I   was driving a car on 20 December 2006 when he was stopped at a police checkpoint.   He failed what is known as the passive roadside test and the formal breath screening test.   An evidential breath test was carried out which produced a result that was over the legal limit.  He told the police officer he was a disqualified driver, but had been granted a limited licence which he had not yet uplifted from the Court.

[2]      Following a defended hearing in the District Court Mr I   was convicted on a charge of driving with excess breath alcohol and a charge of driving while disqualified.  On the driving with excess breath alcohol charge he was convicted and fined $1,000 and disqualified from holding or obtaining a driver’s licence for eight months starting from 21 May 2007.  On the driving while disqualified charge he was disqualified for eight months also from 21 May 2007.

[3]      He appeals against these convictions.  His appeal is on the following grounds:

a)       A general submission that the record of the District Court hearing is so incomplete that there can be no appearance of justice;

b)That  there was  inadequate proof  of the driving while disqualified charge and in any event the proper charge was driving contrary to the terms of a limited licence; and

c)       That there was inadequate proof of the driving with excess breath alcohol charge because there was no evidence on the record that a valid request to accompany had been given to Mr I  , there was said to be uncertainty around the device used to administer the test and the officer had not given evidence that the test had been administered in accordance with steps set out in the legislation.

[4]     For the reasons which follow Mr I  ’s appeal on the driving while disqualified charge succeeds because he was charged under the wrong section.  The appeal otherwise fails.

Incomplete record

[5]      The record of the evidence heard at the District Court is incomplete.  It seems that the tape recording of the evidence was not initially switched on.  This meant that a portion of the evidence of the police officer (the only witness to give evidence at the hearing) who dealt with Mr I   at the check point was not recorded.   This gives rise to the first issue raised on this appeal.

[6]      Mr Johnson, for Mr I  , says that there cannot be an appearance of justice if  the  findings  of  the  District  Court  cannot  be  assessed  against  the  record. Mr Johnson says that this is the case here.   He says that there are not just a few sentences missing.  Here the record is incomplete to such an extent that any attempt to reconstruct it would be inaccurate.

[7]      I do not accept that an appeal could succeed on this basis without there being some  indication  that  the  missing  record  was  relevant  in  assessing  whether  the District Court Judge was wrong.   Even then, it may be possible to obtain other evidence, such as affidavit evidence, as to what occurred at the District Court or to

rehear aspects of that evidence.1   This general ground of appeal fails.

Limited licence

[8]      Mr Johnson’s first point under this charge is that it was not proved that Mr I   was a disqualified driver.   The proof of disqualification came from a photocopy of the Court record.  The photocopy was not sealed and therefore did not comply with s 71(3) of the Summary Proceedings Act 1957.  It is said that this meant that the document was inadmissible.  That left Mr I  ’s admission to the police officer that he was disqualified.   It is said that an admission without supporting documentation is insufficient.   Mr Johnson referred to Somers v ACC HC AK M

121/85 1 August 1985 and Haslam v ACC (1987) 2 CRNZ 590 in support of his submission that a verbal admission was insufficient.

1 See s119(2) Summary Proceedings Act 1957.

[9]      I do not accept this submission.   Putting to one side the photocopy of the information that was produced, I consider that the Judge would have been entitled to rely on Mr I  ’s admission alone.  Mr I   did not challenge that he had told the police officer that he was disqualified.  The point raised for him was that he was disqualified but had applied for a limited licence.   There is no suggestion that Mr I   made a mistake when he made the admission or that the admission was in any other way unreliable or incorrect.   I do not agree that the cases relied on by Mr Johnson are authority for the proposition that an admission alone can  never  be enough.   An admission is admissible evidence and whether it suffices to prove an element depends on the facts and circumstances of the admission.

[10]     I add that s 71(3) provides one method of proving an entry in the District Court’s criminal records.  It does not exclude other methods of proof.  Section 27 of the Evidence Amendment Act (No 2) 1980 which was in force at the time of the District Court hearing2  (as applied in Matthews v Department of Labour [1984] 2

NZLR 400 and a number of later cases) provides an alternative mode of proof.  That

section provides that:

“a certificate containing the substance of the conviction… purporting to be signed by the Registrar or other officer having custody of the records… shall, upon proof of the identity of the person, be sufficient evidence of the conviction.

[11]     Neither counsel referred to this section, but it may well have provided an alternative basis for the Judge’s finding that the prosecution had proved that at the relevant time Mr I   was convicted on a charge for which disqualification had been imposed.  Mr I  ’s defence, apart from putting the prosecution to proof on all elements of the offences with which he was charged, was not that he was not the person named in the record, but rather that he had a limited licence and so had been charged under the wrong section.

[12]     Mr Johnson’s next point is that the record is inadequate as to the status of Mr I  ’s limited licence application.  The photocopy of the information referred to Mr I   having applied for a limited licence but did not give an outcome on

2  On any rehearing of the matter, under s139 and/or s13 of the Evidence Act 2006 the document would be admissible and able to be relied upon as proof of its contents.

that.   This submission is answered by two points: first, the District Court Judge referred to Mr Johnson’s submission that the Court had granted a limited licence but “had not picked up the order”.   The status seems not to have been in issue at the District Court.  Secondly, and consistent with the first point, the District Court Judge stated that she had been handed up a copy of the temporary licence “that was issued on 27 December 2006”.  There is no suggestion from Mr Johnson that this was not what had occurred (or that there was any objection to the copy of the temporary licence being handed up).  The date of the temporary licence post-dates the date of the offences with which Mr Johnson was charged

[13]     Mr  Johnson’s  next  submission is  that  Mr  I   was  charged  under  the wrong section.  He was charged under s 32(1)(a) of the Land Transport Act 1998 (“the LTA”) which relates to disqualified driving.  Mr Johnson submits that because he had been granted a limited licence he was not within s 32(1)(a).  This submission had been made to the District Court.  It was rejected on the basis that under s 105(1) of the LTA the Court order merely authorised Mr I   to obtain a licence, and he was not authorised to drive until the licence was issued.  Ms Feltham for the police supported the District Court’s decision on this appeal.

[14]     Neither counsel referred me to any authority.   Indeed submissions by both counsel were brief and confined largely to the words of s 105(1).  While the question is one of statutory interpretation, the words of s 105(1) are only part of the required analysis.

[15]     Section 32 creates an offence in three different circumstances.   The first (s 32(1)(a))  is  committed  if  a  person  drives  a  motor  vehicle  on  a  road  “while disqualified from holding or obtaining a driver licence”.  The second (s 32(1)(b)) is committed if the person drives “contrary to a limited licence”.  The third (s 32(1)(b)) is if the person drives “while his or her driver licence is suspended or revoked”.  The question is whether someone who has been disqualified, but who has been authorised to obtain a limited licence, is “disqualified from holding or obtaining a driver licence”.

[16]     “[D]river  licence”  is  defined  as  meaning,  unless  the  context  otherwise requires, “a licence to drive that is issued or has effect under this Act” (s 2(1)).  That definition would seem to include a limited licence.  A limited licence is a licence to drive that is issued and has effect under the Act, since by s 105(1) a Court may make an order:

“authorising the applicant to obtain … a driver licence (“a limited licence”) authorising the applicant to drive to such an extent … as the court specifies in the order”.

[17]     There is a two step process under s 105 to obtaining a limited licence.  First the  Court  makes  an  order  authorising  the  person  to  obtain  the  limited  licence (s 105(1)).  The Court specifies the terms of that licence.  Secondly the person must have the licence issued in accordance with the Court’s order (s 105(5)).  However once the Court has made its order, by the terms of s 105(1) the person is authorised to obtain the driver licence that has been ordered.  On the plain words of s 105(1) and s 32(1)(a) that person is no longer disqualified from “holding or obtaining a driver licence”.  Providing the order has been made the person is outside s 32(1)(a) whether or not the limited licence has been issued.

[18]     This is confirmed by s 105(7).  That section provides (emphasis added):

(7)       If the holder of a limited licence, or a person who is authorised to obtain a limited licence but has not become the holder of such a licence, is convicted of an offence for which an order of disqualification is imposed,–

(a)       The limited licence must be revoked or may not be issued (as the case may be) and the original order of disqualification is revived and has effect for the balance of the term for which it was originally imposed; and

(b)Unless  the  court  orders  otherwise,  the  period  of  disqualification under the revived order of disqualification runs concurrently with the order of disqualification in respect of the second offence.

[19]     The  effect  of  this  subsection  is  that  the  holder  of  a  limited  licence,  or someone who is authorised to obtain a limited licence, can have their original order of disqualification revived if they are convicted of another offence for which an order of disqualification is imposed. Implicit in this is that the original order for disqualification  is  in  abeyance.    Under  this  subsection  no  distinction  is  made

between a person who holds the limited licence, and a person who is authorised to obtain a limited licence but has not yet obtained the licence.

[20]     The potential problem with this argument is that a person who has not had their limited licence issued, but who is driving contrary to the terms of the licence the Court has ordered, might not be captured by s 32(1)(b) either.  That is because the offence provision appears to contemplate that the licence has been issued.  If that person is not caught by either s 32(1)(a) or (b) that leaves the only relevant offence as being one of the offences dealt with in s 31.

[21]     The offences in s 31 cover driving with an expired licence (s 31(1)(a)(i)), driving  without  an  appropriate  licence  (s 31(1)(a)(ii)),  driving  contrary  to  the conditions of the licence (s 31(1)(b)), failing to produce a licence for inspection (s

31(1)(a)) or failing to return the licence when required to do so (s 31(1)(d)).   The s 31 offences are less serious than the s 32 offences.   Under s 31 the maximum penalty is a fine not exceeding $1,000.  Under s 32 the offences have a maximum penalty of imprisonment or a fine and disqualification – the imprisonment term and fine level depend on whether it is a third or subsequent offence of that kind, but in any case the maximum fine is greater than the $1,000 maximum that applies to s 31 offences.

[22]     Where a person  is  driving contrary to  the  terms  of  a  limited  licence  as ordered but not yet issued it might be thought that they should be subject to the greater maximum provided under s 32.  That might suggest that “driver licence” in s 32(1)(a) should not be interpreted as including a limited licence (the s 2 definition applying  only  unless  the  context  otherwise  requires).    The  problem  with  this argument is that it would require “driver licence” to be interpreted differently depending on whether a person has or has not had the limited licence issued in accordance with the Court’s order.  That is because it seems clear that a person who has their limited licence issued, but who drives contrary to its term, is to be charged under s 32(1)(b) and not s 32(1)(a).

[23]     I conclude that where a person has been authorised to obtain a licence they are not within s 32(1)(a).  They may also be outside s 32(1)(b) but as I received no submissions from either counsel on this point I do not express a final view.

[24]     I consider that Mr I   was outside s 32(1)(a) and his conviction on that charge should be quashed.  I received no submissions from counsel as to whether, in the event of this conclusion, I should substitute Mr I  ’s conviction for an alternative conviction (eg s 31(1)(a)(ii)).  In the absence of this having been raised I decline to do so.

Excess breath alcohol

[25]     By s 56(1) of the LTA, under which Mr I   was convicted, it is an offence to drive “while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test” exceeds 400 micrograms of alcohol per litre of breath.  The evidential breath test is defined in s 2 of the LTA as meaning a test carried out by an “evidential breath-testing device in a manner prescribed in respect of that device” by notice.  Section 2 also requires that the device be of a kind approved by notice.  The s 2 definitions apply unless the context otherwise requires.  Here the relevant notice, which sets out the approved devices and the steps an officer must go through when carrying out an evidential breath test, was the Transport (Breath Tests) Notice (No 2)

1989 (“the notice”).

[26]     Mr Johnson raises a number of issues in respect of Mr I  ’s conviction on this charge.  The first is based on the inadequacy of the record caused by the failure to switch on the tape that was to record the evidence.  Mr Johnson submitted that there was no evidence of the events leading up to the police officer administering the evidential breath test.  In particular Mr Johnson referred to the absence of evidence that a valid request under s 69 of the LTA to accompany the officer was made.

[27]     The recording of the evidence at the District Court hearing commenced at a point in time after the request would have been made.  It therefore does not include the   officer’s   evidence   on   this   point.      The   recording   did,   however,   cover

Mr Johnson’s submission on this point and the Judge’s rejection of that submission as follows:

THE COURT:   I don’t follow you on that what’s your submission there, what are you trying to say?

MR JOHNSON:   Well there is no valid request to accompany.   I mean regardless whether they are supposed to go to the booze bus, which might be

100 yards down the road or a police station the requirement is that they are to  be  told  that  they  are  required  to  accompany  for  the  purposes  of  an

evidential breath test, blood test or both.

THE  COURT:   And  he  gave  that  evidence  –  the  constable  gave  that evidence.

MR JOHNSON:  I didn’t note it.  If he gave it then the submission founders

…

[28]     Under s 69(1) an officer may require a person to accompany the officer to a place where the person can undergo an evidential breath test or blood test when required to do so by the officer.  One of the grounds on which the officer may so require is if the person has undergone a breath screening test and it appears from the test that the proportion of alcohol in the person’s breath exceeds 400

[29]     It can be seen from the extracts of the record set out above at [27] that the District Court Judge was definite that the officer had given evidence that a request to accompany was made.  Mr Johnson was less definite, stating only that he had not made a note of it.   The District Court Judge’s view was consistent with the other evidence about the passive test and the breath screening test.  In these circumstances I find that the submission fails.  Mr I   cannot escape conviction based on the absence of a record of the direct evidence of the officer on a matter about which the District Court Judge was clear was covered in the evidence.

[30]     The next issue is whether there was sufficient evidence of the device used. The officer gave evidence that he used a Seres Ethylometer 679ENZ.   He gave evidence that its serial number was 2373.  He produced a certificate of compliance. He also produced the evidential breath test printout which referred to a Seres Ethylometer Model 679ENZ S/N 2373.   He was cross-examined as to whether he was sure that this was the device used.   He was referred to the officer’s checklist

which referred to a 679T device.  He remained firm that the device he had used was a Seres Ethylometer Model 679ENZ.

[31]     In agree with the District Court that there is no substance to Mr Johnson’s submission on this issue.  The checklist is just that – it is for the assistance of the officer administering the test.  It is not evidence as to the device used.  The officer was clear as to the device used and the printout confirmed this was the device used. The device was an approved device.

[32]     The final issue Mr Johnson raises is that the police officer did not  give evidence that he had conducted the test in accordance with the notice.  Relying on Police v Burgess HC WN AP169/99 28 July 1999, Mr Johnson says that compliance cannot be inferred from the positive result.   Relying on Police v Aylwin HC AK CRI 2005-404-440 14 September 2006, Ms Feltham says that unless the defence challenged compliance with the notice in cross-examination the Court was entitled to find that the test had been conducted in the correct manner.

[33]     In this case, in addition to the evidence concerning the device (see [30] above), the police officer gave the following evidence.  He assembled the device in accordance with the notice.   He engaged the start sequence.   He recorded the due calibration date of 25 July 2007 and the serial number from the rear of the machine. The test was carried out.  There were three blows into the machine by Mr I  . The first one recorded a result.  The second one did not.  The third one recorded a result.  The police officer took a note of the times.  The printout from the device in addition to providing details of the device, set out the dates and times the tests was carried out and the result of 485 micrograms (being over the legal limit of 400).

[34]     The officer gave evidence that Mr I   did not request a lawyer.   The officer also gave evidence that Mr I   did not request a blood test.  The form Mr I   signed setting out the result of the evidential breath test which was produced by the officer stated:

If you do not choose to have a blood test to assess the proportion of alcohol in your blood, it is no defence to proceedings for an offence against the Land Transport Act in respect of the proportion of alcohol in your breath that there

was or may have been an error in the result of the breath screening test or evidential breath test.

[35]     Because the officer did not state that he carried out the test in accordance with the notice there is no direct evidence that the officer attached a new mouthpiece before each of the second and third blows.  This is one of the steps set out in the notice.  In this respect only the case is similar to Burgess.  In Burgess the High Court considered that there was insufficient evidence from which it could be inferred that the test had been  conducted  in  accordance with  the  notice  (including as  to  the requirement to change the mouthpiece).   In that case, as well as there not having been a statement from the officer that the test had been administered in accordance with the notice, there was also no statement that the device had been administered in accordance with the notice.

[36]     More significantly Burgess was decided before the amendment to s 64(4) of the LTA.  That amendment provides that it is no defence to an offence concerning the proportion of alcohol in a person’s breath “that there was or may have been an error in the result of the … evidential breath test”.  Alongside this amendment, a new s 70A was inserted giving every person who had given a “positive” evidential breath test the right to elect to have a blood test to assess the proportion of alcohol in his or her breath.  Prior to this amendment only those who had produced a result of under

600 micrograms could elect a blood test.   Additionally a new s 75A was inserted requiring the prosecution to produce a certificate of compliance of the breath-testing device.  These amendments were discussed by the Court of Appeal in Livingston v Institute of Environment Science and Research Ltd (2003) 20 CRNZ 253 (CA) and in R v Allen CA 15/06 4 May 2006.  As those decisions recognise possible injustice from an erroneous evidential breath test result is met by the safeguard of the right to request a blood test.

[37]     In Aylwin a Full Court of the High Court considered the effect of these amendments where the evidence was that the evidential breath test had been completed with an approved device in respect of which a certificate of compliance was produced.   Evidence was not given that the test had been conducted in accordance with the notice.  The Court considered that the amendments altered the prior approach under the legislation whereby the police had to positively establish

compliance with the steps in the notice.  The Court considered that there was now an evidential burden on the defence to raise in the course of the Crown case whether the device was used in the prescribed manner.

[38]     In this case the only challenge in the cross-examination on the administration of the evidential breath test was as to the device used, and that was limited (see [30] above).   There was no challenge in the cross-examination to whether the test was administered correctly or whether there may have been an error in the evidential breath test.  Applying Aylwin Mr I   failed to cast any doubt on the evidence that the evidential breath test was completed and produced a positive result.   On this basis, Mr Johnson’s submission fails.

[39]     Although counsel did not take the matter further than referring me to Burgess and Aylwin I consider that Mr I  ’s appeal on this point would fail regardless of the  extent  to  which  Mr Johnson  cross-examined  on  topic.    Consistent  with  the legislative intention, and on the plain words of s 64(4), Mr I   does not have a defence that there may have been an error in the evidential breath test whatever the reason for any potential uncertainty about the test.  It does not matter whether there was evidence as to precise compliance with the notice.   Even had there not been compliance with the notice, any possible error in the result because of that, does not provide a defence.  (For example, see Police v Wi HC AK CRI 2007-404-0032 18

June 2007 where the evidence was that the officer had changed the mouthpiece twice rather than three times.  The High Court found that s 64(4)(a) nevertheless applied.) Mr I   had a right to request a blood test and he declined to do so.  He cannot now avoid conviction based on any possible error in the result due to the procedures followed or otherwise.

[40]     The appeal against the conviction on this charge is dismissed.

Mallon J

Solicitors:

W M Johnson, PO Box 962, Wellington, email: [email protected]

P K Feltham, Luke Cunningham & Clere, PO Box 10357, Wellington (email: [email protected])