J v Police HC Auckland CRI 2007-404-325
[2008] NZHC 175
•21 February 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-404-000325
J
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 18 February 2008
Appearances: Z Mohamed for the appellant
M Hodge for the respondent
Judgment: 21 February 2008
JUDGMENT OF STEVENS J
This judgment was delivered by me on Thursday, 21 February 2008 at 4pm pursuant to r 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Z Mohamed, PO Box 39 119, Howick
Crown Solicitor, PO Box 2213, Auckland
J V NZ POLICE HC AK CRI 2007-404-000325 21 February 2008
Introduction
[1] This is an appeal against an oral decision of Judge A Tompkins given in the District Court at Manukau on 29 October 2007. The appeal is against conviction and sentence following a defended hearing on a charge of driving with breath alcohol in excess of 400 micrograms of alcohol per litre of breath, contrary to s 56(1) of the Land Transport Act 1998.
[2] For the reasons which follow, the appeal against conviction is dismissed, but the appeal against sentence will be allowed. In place of the sentence of 120 hours community work and six months’ disqualification, the sentence will be a fine of
$2,000 and a sentence of nine months’ disqualification.
Factual background
[3] On 13 April 2007, Shirley Christina J (the appellant) was stopped by the Police on State Highway 1 at Bombay following a call from a member of the public concerned about her driving. She was taken to the Papakura Police Station for evidential breath testing, as a result of which her breath alcohol was measured at 911 micrograms of alcohol per litre of breath.
[4] The appellant appeals against conviction on two bases. First, that the Judge wrongly allowed a breath and blood alcohol checklist (the checklist) which was completed by the enforcement officer, Sergeant Faith, to be admitted into evidence. Second, the Judge made findings that were not supported by the evidence.
[5] The appellant also appeals against the sentence imposed on the basis that the penalty should have been a heavy fine rather than a sentence of community work plus disqualification.
Issues on appeal
[6] There were three issues on appeal, namely:
a) Was the checklist admissible under the Evidence Act 2006?
b) If it is not admissible, what is the effect on the decision?
c) Was the sentence manifestly excessive?
Admission of the checklist
[7] The admission of documents such as the checklist in excess breath and blood alcohol cases has been settled since Ngaamo v Ministry of Transport [1987] 1 NZLR
170. This decision was affirmed by the Court of Appeal in R v Carpenter CA316/05
18 November 2005. Subsequently, the Evidence Act has come into force and there is an issue as to whether this Act has altered the law in Ngaamo.
Submissions of counsel
[8] On behalf of the appellant, Mr Mohamed argued that where a document containing a previous statement is admitted in evidence under s 35 of the Evidence Act, the whole of the document should not become evidence against the other party. Mr Mohamed raised the point as to whether Ngaamo was still the law after the enactment of the Evidence Act.
[9] For the respondent, Mr Hodge argued that s 35 of the Evidence Act permitted the checklist to be received in evidence. Admissibility in this case was determined by the application of s 35(3) which provides:
A previous statement of a witness that is consistent with the witness's evidence is admissible if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.
[10] In response to a challenge to the evidence by counsel for the appellant, Judge Tompkins ruled that the checklist was admissible. He stated at [4] of his ruling that “it is clearly a matter which would assist the Court and it was made in circumstances
where some indication of reliability of the factual matters recorded in it, can properly be inferred”. The ruling did not go on to deal with the point now raised by Mr Mohamed, namely, whether it would be admissible only in relation to the issue in respect of which the witness sought leave to refer to the document because it was information “that the witness is unable to recall”.
[11] Mr Hodge, for the Crown, referred to some of the dicta in Ngaamo dealing with the policy of avoiding unnecessary delay and simplying the law of evidence. He cited the following passage from the judgment of Gallen J at 177:
There can be no doubt that an officer who has filled in the forms step by step at the time the procedures were administered, would obtain leave to refer to it as contemporaneous material and on which he or she was entitled to refresh his or her memory. In such circumstances, the practical result of leave being granted would be that the form would be introduced step by step into the record.
Under those circumstances, to adopt a shorthand step of avoiding giving detailed oral evidence of the form but simply producing it as an exhibit being the record of the steps taken, would seem to me to be a sensible procedure. In my view, the ordinary citizen would regard it as an affront to common sense that such a document could be in effect read into the record but not produced as a part of the record.
[12] Mr Hodge submitted that these observations were entirely consistent with the purposes of the Evidence Act which were intended to avoid unjustifiable expense and delay and enhance access to the law of evidence: see s 6(e) and (f) of the Evidence Act. Hence, there was no reason of principle or logic why the approach adopted in Ngaamo should not continue to apply after the enactment of the Evidence Act.
[13] Mr Hodge submitted that it was commonplace for witnesses, particularly in blood and breath alcohol prosecutions, to produce as exhibits documents authored or completed by them, rather than being required to read entire documents into the record. This was sensible and practicable and would avoid unnecessarily prolonged proceedings, particularly in the summary jurisdiction. Counsel noted that this occurred without challenge in the present case in relation to other documents, for example the Advice of Positive Breath Test form. He submitted that there was no reason why there should be any difference in relation to the checklist. Moreover,
once admitted into evidence, the document should be able to be referred to for other purposes of proof.
Discussion
[14] Subject to any issues of fairness or prejudice to the accused (which would be dealt with under the general exclusion under s 8 of the Evidence Act), there seems no good reason in principle why the approach in Ngaamo would not continue to apply. However, as this appeal can be resolved by reference to evidence given by the witnesses and documents other than the checklist, to be dealt with in the next part, it is unnecessary for me to make any final determination on the first point.
Impact on factual determination if checklist not admitted
[15] Mr Hodge rightly submitted that to succeed the appellant must show that the Judge made findings that were unsupportable in the absence of the checklist. He noted that the appellant challenged the following factual findings, namely, that:
a) a passive breath test was administered;
b) the appellant’s driver’s licence was produced;
c) the appellant was reasonably significantly intoxicated;
d) a breath screening test was carried out; and
e) the enforcement officer gave Bill of Rights advice after the advice of the positive evidential breath test.
The test to be applied
[16] Mr Hodge submitted that the Judge made findings on all of these issues having heard from the enforcement officer and the appellant as well as reviewing other documents which were accepted as being admissible. He noted the concession
on behalf of the appellant that where credibility findings are in issue, an appellate Court will interfere only where the evidence accepted by the Judge is inconsistent with facts incontrovertibly established by other evidence or is patently improbable: see Hutton v Palmer [1990] 2 NZLR 260 (CA).
[17] The above statement is consistent with the well settled principle from Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) that an appellate Court will only interfere with a trial Judge’s findings of fact in exceptional circumstances. Such a principle applies in summary proceedings appeals: see, for example, Tootell v Police HC ROT CRI 2005-470-37
16 November 2005, Harrison J; and Krpan v Police HC AK CRI 2005-404-207, Williams J. Thus, while the Court has the power to rehear proceedings and make findings of fact, it will generally be reluctant to do so. In summary, an appellate Court will interefere with a trial Judge’s findings only in exceptional circumstances.
[18] Against this test, it is necessary to consider the evidence which the appellant argued was not supportable in the absence of the checklist.
Passive breath test
[19] Sergeant Faith was asked in cross-examination whether she carried out a passive breath test. She answered in the affirmative. She was then directed to the checklist and confirmed that a passive test was carried out. It is entirely immaterial on this point whether the checklist was produced as an exhibit or not. The point had been raised in cross-examination and the Judge was entitled to prefer the evidence of Sergeant Faith to that of the appellant. This was a straight issue of credibility which was resolved against the appellant on the basis of the evidence.
Production of driver’s licence
[20] The appellant sought to advance the appeal by pointing to an apparent factual error in the decision where there is reference made to the checklist confirming that the driver’s licence was produced. In fact it does not confirm this.
[21] For the respondent, Mr Hodge submitted that whether the driver’s licence was produced or not cannot affect the conviction. It is not an element of the charge, nor is it a prerequisite to any procedural step in the testing process. Accordingly, even if there was an inadvertent error made by the Judge, nothing turns on the point.
[22] I agree with the respondent’s submission that whether or not the driver’s licence was produced does not affect the breath testing procedure, nor any other procedural or substantive rights of the appellant. This point is not decisive of the appeal on factual issues.
Intoxication of the appellant
[23] The appellant took issue with the Judge’s finding that she was “reasonably significantly intoxicated”. The respondent submitted that there was ample evidence to support this conclusion and in any event, counsel for the appellant had over- emphasised the importance of the finding.
[24] With reference to the evidence, the appellant accepted that she had had at least two glasses of wine. She was asked in cross-examination whether she could have had more than that. She responded that she was not counting and accordingly could not answer the question. This and other evidence on the point led to the Judge finding that the appellant was evasive on the issue of how much she had had to drink.
[25] I conclude that the Judge was well justified in reaching this conclusion on the facts that the appellant was “reasonably significantly intoxicated”. There is no justification on appeal for interfering with the Judge’s findings of credibility on this point.
Breath screening test
[26] Sergeant Faith confirmed in evidence that she had administered a breath screening test. I agree with the submission from counsel for the respondent that the
production of the checklist is irrelevant to this issue. The Judge was entitled to prefer the evidence of Sergeant Faith to that of the appellant who had contended that a breath screening test was not carried out.
[27] This point turned on a simple credibility issue. No basis has been advanced to show that the Judge was not entitled to make the finding he did.
Bill of Rights advice
[28] The appellant’s submissions focussed on whether any Bill of Rights advice was given after the results of the evidential breath test were conveyed to the appellant. The appellant relied on the fact that there was no indication on the Bill of Rights form whether or not the appellant wanted to consult with a lawyer after the evidential breath test.
[29] I have considered the notes-of-evidence and conclude that it is clear that Sergeant Faith gave the appellant Bill of Rights advice on two occasions at the Police Station. The first was prior to the evidential breath test and was given at
10.24pm. The second was after the evidential breath test and was given at 10.31pm. Although neither “yes” or “no” was indicated on the form on the question of consulting a lawyer in relation to the second Bill of Rights advice, the Sergeant was sure that the appellant did not ask to consult a lawyer. Had she done so, she would have been permitted to do so.
[30] I am satisfied that there was ample evidence before the Court, in the absence of the checklist, on which the Judge could find that the Bill of Rights advice was given before and after the evidential breath test.
[31] In conclusion, in respect of these factual challenges, I am satisfied that the appellant has not shown exceptional circumstances which would result in any of the factual findings being disturbed. Accordingly, this part of the appeal must fail.
Appeal against sentence
[32] There is no challenge to the Judge’s jurisdiction to sentence the appellant to community work. As a result, the appellant must show that the sentence was manifestly excessive or inappropriate: see s 121(3) Summary Proceedings Act 1957.
[33] Mr Hodge accepted that the authorities indicate that the imposition of a substantial fine would have been the more usual course in the case of a second conviction for blood/breath alcohol. He submitted, however, that it did not follow that the sentence imposed here was manifestly excessive. He submitted that it was open to the Court in the circumstances of this case to impose a sentence of 120 hours community work.
[34] Mr Mohamed submitted that the imposition of a sentence of 120 hours community work was manifestly excessive. He submitted that a substantial fine of up to $2,000 would be more consistent with the authorities. Mr Mohamed helpfully referred to two decisions of this Court, Bush v Police HC AK A 89/99 2 July 1999, Chambers J; and Armstrong v Police HC AK AP 92/93 26 May 1993, Smellie J in support of his submission that a fine would have been the proper sentence.
[35] Section 13 of the Sentencing Act 2002 directs the Court to impose a fine unless the Court is satisfied that a fine would not achieve the purpose for which the sentence is imposed. In excess breath alcohol cases, the most pertinent purposes of sentencing would seem to be deterrence and protection of the community from the offender. Ellis J held in Russell v Police HC PMN AP 41/99 4 October 1999 that a substantial fine was a sufficient deterrent in a case with some similarities to the present. The appellant’s personal circumstances also support the submission that a fine would be an appropriate sentence. The appellant’s previous conviction was over eight years ago. The appellant’s employment circumstances suggests both that it may be difficult for her to complete the sentence of community work and that she would be able to pay a fine: see Wright v Police HC CHCH A 104/02
4 October 2002, Pankhurst J.
[36] I am satisfied that, in the circumstances of this case, the sentence imposed was manifestly excessive. Mr Hodge accepted that if a fine were to be imposed then a penalty of $2,000 plus a disqualification should be imposed. I propose to quash the sentence of 120 hours community work and in its place impose a fine of $2,000 plus disqualification for a period of nine months.
Result
[37] The appeal against conviction fails. The appeal against sentence is allowed to the extent outlined above. The appellant is sentenced to a fine of $2,000 and disqualification for a period of nine months.
[38] There will be no order for costs.
Stevens J
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