J v Police HC Wellington CRI-2006-485-83

[2006] NZHC 1176

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2006-485-83

BETWEEN  J

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 October 2006

Appearances: M J Hay for Appellant

D La Hood for Respondent

Judgment:      5 October 2006

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 10.15 am on the 5th day of October 2006.

RESERVED JUDGMENT OF GENDALL J

[1]      The appellant was convicted in the District Court at Wellington on 14 June

2006  of  driving  a  motor  vehicle  whilst  the  proportion  of  alcohol  in  his  blood exceeded 80 milligrams of alcohol per 100 millilitres of blood.  The evidence was that his blood alcohol level was 163 milligrams of alcohol per 100 millilitres of blood.  Upon conviction he was fined $1,000;  Court Costs $130; and ordered to pay medical and analyst’s expenses and disbursements of $370.80 and disqualified from driving for a period of six months.  He appeals against his conviction only.

The facts ascertained from the evidence before the District Court

[2]      Shortly after midnight on the morning of 23 September 2005 two police officers in a patrol car came upon a motor vehicle parked in a remote hillside carpark

J V NEW ZEALAND POLICE HC WN CRI-2006-485-83 5 October 2006

in Mount Victoria.   The sole occupant of the vehicle was the appellant who was seated in the driver’s seat with the operating key in the ignition.  The car was not running but its radio was and the appellant appeared to be asleep.  After some time the officers were able to arouse the appellant who was obviously intoxicated.   He said that he had driven to the area to listen to some music, stating that he had been parked in the area for “about two hours”.  The evidence from one officer was that he asked the appellant if he had drunk alcohol since the car had been parked there, to which the defendant replied “No”.

[3]      The appellant gave as the address from which he had driven to the carpark that night as an address in Mount Victoria which was the home of his partner.  The evidence was that the appellant said to the officer:

“I admit that I drove here.”

[4]      When asked how much he had had to drink he said:

“Quite a bit, a couple of bottles of wine”.

[5]      The officers concluded that they had good cause to suspect in terms of the legislation and administered the required breath testing procedures.  He was taken to the Wellington Central Police Station and the required procedures, and a blood test, undertaken.  No dispute was taken as to the correctness of what occurred.

[6]      At the hearing before the District Court the appellant gave evidence.  He said that he had had an argument with his partner at her address at Mount Victoria;  had left taking wine with him which he consumed whilst stationary in the motor vehicle at the carpark on Mount Victoria.  He said he disposed of the two bottles of wine into vegetation beside the carpark.   Evidence was called for the defence from the appellant’s partner that she had been with him earlier in the evening at about 6.30pm when  a  small  amount  of  alcohol  was  consumed  at  a  licensed  premise,  before returning to her home at 33 Hania Street, Mount Victoria.  Her evidence was that to the best of her knowledge the appellant did not drink alcohol at that address.  After there was an argument he left the address, at a time between 8.30pm and 9.00pm when she was taking a shower, and she did not see him again after that.

[7]      A police officer’s evidence of comments made by the appellant in the early hours of the morning, upon being apprehended, and having failed the breath test, was as follows:

“Q.     How long have you been parked here? A. About 2 hours.

Q.       Have you had a drink since you’ve been in your car here? A.        No.

Q.       Where did you drive from tonight? A.      33 Hania St Mt Victoria.

‘I admit that I drove here’.

Q.        How much have you had to drink tonight?

A.        Quite a bit, about a couple of bottles of wine.”

[8]      When giving evidence the appellant denied making admissions in such an explicit form, saying that he had been confused, contending that the true position was that he had not drunk any alcohol prior to leaving his partner’s flat, or on travelling to the remote site on Mount Victoria, and that the two bottles of wine that he had consumed were whilst the vehicle was stationary in that location.

[9] The District Court Judge in deciding the guilt of the appellant referred specifically to two pieces of evidence. The first was that of one of the police officers who apprehended the appellant, and whose evidence coincided with the notes made in the notebook. Those notes had been signed (and variously initialled) by the appellant as being correct and coincide with the evidence referred to in para [7]. He referred to the conflict in the evidence where the appellant has said that he did not agree with that which the officer had recorded but came to the conclusion:

“I prefer the evidence of Constable Theobold.  He had, in my judgment, no motive at all to give incorrect evidence about the circumstances of the interview generally and of the circumstances in which the statement was made.”

[10]     The Judge referred to the appellant initialling a crucial answer, namely that he said he had not had a drink since being parked in the car.  In the end the Judge,

whilst accepting the appellant’s evidence that he had not had anything to drink before leaving his partner’s flat, did not accept that the drinking episode took place in the carpark as he contended in evidence.  He said that the evidence was entirely consistent with the appellant’s answer that he had not drunk in the carpark and the only  inference  or  conclusion  that  could  thereafter  be  drawn,  given  that  it  was accepted that drinking did not take place at the flat, was that the consumption of alcohol took place somewhere else in the three hours between the time when the appellant left his partner’s flat and he was apprehended.

[11]     On appeal Mr Hay submitted that the Judge was wrong.  He said there was no evidence to support the Judge’s finding that the appellant consumed alcohol prior to driving (or whilst driving) to the remote carpark;  that although the case stood or fell on the conflict in the evidence of the constable and the accuracy of his notes and the appellant’s evidence, once the Judge accepted the appellant’s evidence that he had not consumed alcohol at or before he left his partner’s flat, then he erred in finding that the excess blood alcohol level arose through the consumption of alcohol prior to the appellant driving to the remote carpark.  Counsel said that the Judge’s comment that “it is entirely possible” that the appellant consumed alcohol after leaving the flat and whilst en route to the carpark was not an inference open to the Judge to draw.

[12]     Mr La Hood, on behalf of the Crown, said given the Judge’s assessment of credibility and rejection of the appellant’s evidence, there was ample evidence to enable him to conclude that the excess blood alcohol level arose through the consumption   of   alcohol   prior   to   the   appellant   driving   to   the   location   on Mount Victoria  Hill.     He  said  that  in  any  event  there  existed  the  statutory presumption  pursuant  to  s77(1)  of  the  Transport  Act  1998,  namely  that  the proportion of alcohol in the defendant’s breath at the time of the alleged offence was the same as the proportion of alcohol in his breath indicated by the test such being an irrebuttable presumption.

[13]     However, I am told that it was agreed between counsel for the prosecution and the appellant in the District Court that the presumption was not a relevant matter in the case, which was presented and argued solely on the basis of whether or not it had been established beyond reasonable doubt that the appellant consumed alcohol

before arriving at the carpark and whilst driving in that state.   I do not need to determine the question of the presumption because the matter can be simply disposed of on an orthodox basis.

[14]     The District Court Judge did not believe the appellant when he gave evidence that he drank two bottles of wine in the car at the carpark and disposed of the bottles. He rejected that evidence and accepted the evidence of the officers that the appellant admitted drinking alcohol prior to driving there.  Whether or not it was at the address of his partner at 33 Hania Street, Mount Victoria is really beside the point.   The Judge said he could not find it happened at that place and that the other possibilities that he posed were, I accept, hypothetical examples of how and where such might have occurred.  Of course, only the appellant could have known where the alcohol consumption occurred in the intervening three hours.  Once the Judge accepted the evidence that the appellant’s admission that drinking alcohol had not occurred in the carpark, it is not open for the appellant to say that the prosecution did not prove its case.  The place of consumption of alcohol (if not whilst stationary in the carpark) was not a necessary ingredient in the charge.

[15]     The Judge was satisfied that there had been consumption of alcohol, leading to the excess blood alcohol level eventually obtained, and the appellant had driven after the consumption of such alcohol, then the Judge was bound to find the elements of the offence proved.  If the Judge had had a reasonable doubt as to whether or not the appellant had consumed alcohol only whilst stationary, and after driving to that place, then the position might well have been different but that was not the case.  The Judge  specifically  rejected  the  evidence  of  the  appellant  as  being  untrue,  and accepted the evidence of the officer, confirmed to a large extent by the appellant’s statement and endorsed and signed by him as to the consumption of alcohol.

[16]     The appeal can be conveniently dealt with, without having to deal with the question of irrebuttable presumption, on the basis of the Judge’s factual finding which were open to him on the evidence.  The inference open to him on the evidence was that in the two and a half to three hour time span between the appellant leaving the home of his partner after an argument, and his being located in a remote area on Mount  Victoria  alcohol  had  been  consumed  by  him,  and  he  had  been  driving

following such consumption.  The factual finding and inference drawn by the Judge was entirely open to him and cannot be challenged on appeal.

[17]     Notwithstanding  careful  argument  on  behalf  of  the  appellant,  once  the evidence of the appellant was rejected as being untrue, the case against him was overwhelming,  especially  given  his  admissions  made  at  the  scene  or  shortly thereafter with the officers.

[18]     The  conviction  was  entirely  in  accordance  with  the  evidence  given  and cannot be disturbed on appeal. The appeal is dismissed.

………………………………..

J W Gendall J

Solicitors:

M J Hay, Wellington for Appellant

Crown Solicitor, Wellington for Respondent