Jovanovic v Police
[2014] NZHC 1187
•30 May 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-382 [2014] NZHC 1187
BETWEEN ALEKSANDAR JOVANOVIC
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 April 2014 Counsel:
A J Haskett for the Appellant
B Hamlin for the RespondentJudgment:
30 May 2014
JUDGMENT OF BROWN J
This judgment was delivered by me on 30 May 2014 at 10 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, Auckland
Legal Defence Service Ltd, Auckland
JOVANOVIC v POLICE [2014] NZHC 1187 [30 May 2014]
Introduction
[1] The appellant appeals against his conviction by District Court Judge Wade in the North Shore District Court on 16 December 2013 on one charge of driving with excess blood alcohol, an offence against s 56(2) of the Land Transport Act 1998. The appeal concerns the manner in which the hearing was conducted. In particular the appellant argues that he did not get a fair trial because the Judge declined his request for a stay of the proceeding and that, in doing so, the Judge made observations which gave the appearance of pre-determination at the hearing.
Relevant facts
[2] On 5 October 2012 the appellant was driving on East Coast Road when he was stopped at a checkpoint. He failed a roadside screening test and was given an evidential breath test. He then elected to have a blood test. Upon analysis his blood was shown to contain 105 mgs of alcohol. The blood specimen was taken by a nurse in what is colloquially known as a “booze bus” which was parked at a location close to the checkpoint.
[3] Almost one year later on 24 September 2013 the appellant’s counsel made a disclosure request under the Criminal Disclosure Act 2008 (“the Act”) for the following information:
(1) Site sheet, offender details sheet and checkpoint data form or similar;
(2)Names and addresses of other police members on the booze bus on the night in question, as they are potential witnesses, together with copies of their notebook entries;
(3)Names and addresses of other motorists processed on the booze bus on the night in question, as they are potential witnesses;
(4)Procedure sheets for other motorists processed on the booze bus on the night in question, as they are material to the procedures adopted by police;
(5) Employment contract for the nurse;
(6)Emails, letters and other correspondence with or between any person about this matter; and
(7)Material codes of conduct, guidelines, annuals (sic), operational orders and general and specific instructions or advice including those issued by email or loaded on to the Police intranet.
[4] On 7 October 2013 the Police Criminal and Justice Support Unit (CJSU)
responded and:
(a) declined to provide items 1, 4, 5, 7 on the grounds they were not relevant;
(b)provided the names of the officers on the booze bus that night, in accordance with item 2, but declined to provide notebook entries on the basis no entries were made that were relevant;
(c) declined to provide item 3 on the basis it did not exist; and
(d) declined to provide item 6 on the basis it had already been disclosed. [5] On 16 October 2013 the appellant’s counsel responded by email reiterating
the view that the information sought was relevant. The CJSU responded by advising that they had assessed the material against the statutory criteria and remained of the view that it was irrelevant. The CJSU invited the appellant to take this matter up with Police Prosecutions or the Court.
[6] It appears that the matter was taken up with Police Prosecutions. However no application was made to the Court under s 30 of the Act.
The hearing before Judge Wade
[7] At the commencement of the hearing the appellant’s counsel sought a stay of proceedings on the ground that there had been a failure to supply information requested. Judge Wade declined to grant a stay. I set out the material part of his ruling in full because it bears on the predetermination issue:
[2] As a preliminary issue his counsel, Mr Haskett, has applied for the proceedings to be stayed on the basis that the police have failed to provide him with relevant information to which he is entitled. The information sought includes the site sheet which, as I understand, relates to where the booze bus was located on the night in question and whether or not stabiliser legs were, first of all, deployed, and then checked. He also has requested the names and addresses of other police members on the bus, the names and addresses of other motorists processed on the booze bus on the night in question, the procedure sheets in relation to other motorists processed on the booze bus, the employment contract for the nurse, emails, letters and other correspondence with any person about this matter and material codes of conduct guidelines, manuals, operational orders and general or starting point instructions or advice including those issued by email or loaded on the police internet. Certain of the documents such as the names and addresses of police members on the booze bus have been provided but the prosecution have refused to release other information that Mr Haskett has requested. Mr Haskett tells me that he requires this information so that he can check whether the booze bus was stable or not at the time that his client gave the blood sample.
[3] I never cease to be astonished at the number of motorists who, after they have been processed, now claim that their decision was influenced by the stability or otherwise of the booze bus. So far as I am concerned if a booze bus is unstable that might possibly provide a defence to a refusal to give a blood sample but, where the motorist has given either an evidential breath test or a blood sample, it seems to me to be entirely irrelevant as to whether the booze bus was stable or not.
[4] Mr Haskett’s argument seems to revolve on the point that if the booze bus was not stable then the taking of the blood did not follow normal medical procedures and therefore was unlawfully taken.
[5] I have no hesitation at all in saying that even if some technical argument could be raised about the stability of the booze bus and whether the blood sample was taken in accordance with normal medical principles I would undoubtedly nevertheless admit the resulting blood sample on the balancing provisions under s 30 Evidence Act 2008, so the application for a stay of proceedings is refused.
[8] After the ruling was delivered the hearing proceeded. The prosecution called the police officer who administered the breath screening test and the nurse who took the blood specimen. Both were cross-examined. The appellant did not give
evidence. During submissions an issue arose as to whether the appellant had requested a blood test within 10 minutes. The Judge gave permission for the police officer to be recalled to give evidence on that issue.
[9] After hearing submissions on the issue of the 10 minute period, Judge Wade delivered a brief oral judgment as follows:
[1] In this case the basis of the defence submitted by Mr Jovanovic is that the police officer was too lenient in allowing the motorist more than the bare minimum 10 minutes between the advice of the positive evidential breath test and the request to provide a blood sample. From the paperwork it would seem that the advice of the evidential breath test was given at 2122 hours. At that point the defendant elected to speak to a lawyer and the 10 minute period was in fact started at 2140 hours and objection is taken to the fact that the blood test requirement was not advised until 2156 hours, so that a total of 16 minutes had expired between the commencement of the 10 minute period and the time the blood sample was required.
[2] Despite the defence submissions that the 10 minute period is somehow sacrosanct, I am satisfied that in fact there is no requirement that the blood sample be demanded within 10 minutes. There is certainly reasonable compliance with the provisions and I know of very many cases where the police have as a matter of indulgence allowed more than the
10 minute period so that there can be no doubt but that the motorist in question has had the benefit of the full 10 minutes because sometimes watches cannot be accurate to the nearest minute and so it is common practice to allow 12 minutes instead of the statutory provision relating to 10 minutes. There has certainly been reasonable compliance with the legislation and I therefore find the case to be proved as there is no dispute but that the blood sample in question gave a positive result.
The approach on appeal
[10] This is an appeal against conviction under s 229 of the Criminal Procedure
Act 2011. Under s 232(2) the Court can only allow an appeal if it is satisfied that:
(a) the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred: s 232(2)(b); or
(b) a miscarriage of justice has occurred for any reason: s 232(2)(c).
The issues
[11] I approach the appeal under four headings. As I understood it, both counsel were in agreement with this sequence of analysis:
(a) Was an order for a stay of proceedings justified? (b) Was the information sought relevant?
(c) If the information sought was relevant, was there a miscarriage of justice?
(d)Was the hearing unfair by reason of an appearance of predetermination?
Was an order for a stay of proceedings justified?
[12] Mr Haskett submitted that a stay should have been ordered because there had been an abuse of process in the form of the contradictory and inadequate explanation for non-disclosure and in requiring the appellant to proceed to trial without disclosure, citing Allen v Police.1
[13] Mr Hamlin made the point that there was no suggestion in the transcript of the hearing that counsel had sought any alternative remedy such as an adjournment. In his submission the circumstances of the case did not reach the threshold where a stay of prosecution would be appropriate. He drew attention to the recent affirmation by the Court of Appeal in R v Antonievic that a stay of prosecution is an exceptional or extreme step and must be a proportionate response to the conduct
before the Court.2 It was there noted that the jurisdiction arises in two categories of
case:3
(a) Where it is impossible for the accused to receive a fair trial; and
(b)Where allowing the trial to take place would undermine public confidence in the integrity of the criminal justice system.
[14] In Mr Hamlin’s submission Allen was not of assistance because it was decided prior to the Act at a time when the Official Information Act 1982 (the OIA)
1 Allen v Police [1999] 1 NZLR 356 (HC).
2 R v Antonievic [2013] NZCA 483, [2013] 3 NZLR 806 at [56].
3 At [48].
governed police disclosure. The OIA did not impose any relevance requirement and, when a request was declined by the Police, there was no ability to seek orders from the Court. The contrast was made with the Act which not only has the effect that the Police need to provide reasons for their refusal to provide requested information but also provides in s 33 for a right of appeal to this Court from a s 30 decision.
[15] It is also to be observed that in Allen the written request for disclosure of information was simply not responded to. The situation here is different. There was a considerable exchange of communications directed to the relevance of the information sought. The appellant elected not to make a s 30 application. Then at the hearing the appellant did not seek an adjournment in order to further pursue the issue of relevance of the material sought.
[16] It is my conclusion that the nature of the order sought by the appellant at the commencement of the hearing was entirely disproportionate to the conduct which was relied upon in support of the request. If, in the face of a considered exchange of views between prosecution and defence, a defendant elects not to pursue the matter by a s 30 application, the defendant cannot realistically expect that the Court will entertain the exceptional step of staying the prosecution. In my view an order for a stay of proceedings would not have been justified in the circumstances of this case.
Was the information sought relevant
[17] The Act defines “relevant” in s 8 as follows:
8 Meaning of relevant
In this Act, relevant, in relation to information or an exhibit, means information or an exhibit, as the case may be, that tends to support or rebut, or has a material bearing on, the case against the defendant.
[18] Noting that the definition of “relevant” (albeit with reference to information or exhibits) differs from the definition of “relevant” in s 7(3) of the Evidence Act
2006, I invited counsel to provide supplementary submissions as to the provenance of the s 8 definition.
[19] The Crown provided a copy of the recent decision of Heath J in R v Sullivan.4
Mr Haskett provided an extensive supplementary submission which, among other things, drew attention to the decision of the Court of Appeal in R v Medcalf,5 in particular to the importance of distinguishing between the different functions of the disclosure and admissibility regimes. He submitted, and I accept, that the courts should not construe the s 8 meaning of “relevant” information to have the same meaning as “relevant” evidence in s 7(3) of the Evidence Act 2006.
[20] In addition he argued that the Court should place a liberal and not a narrow
construction on “relevant” in s 8.
[21] However to my mind the resolution of the issue in the present case does not turn on the adoption of either a narrow or liberal construction. The issue is simply whether the information which the appellant sought “tends to support or rebut, or has a material bearing on” the prosecution case.
[22] The nature of the information sought was discussed in [2] of Judge Wade’s decision,6 the appellant’s contention being that if the booze bus was not stable then the taking of blood did not follow normal medical procedures and therefore was unlawfully taken.7
[23] The way in which the appellant saw the information as being “relevant” in that way was conveniently captured in the following passage from his written submissions:
The absence of notes on the site sheet and procedure sheets about stability and privacy would support the defence case; the timing on other procedure sheets showing another motorist on the booze bus during the course of the appellant’s blood test would support the defence case; any testimony available from other motorists about a lack of stability or privacy would also support the defence case; and, each of those things would be relevant to the credibility and reliability of the witnesses that gave evidence for the prosecution.
4 R v Sullivan [2014] NZHC 925.
5 R v Medcalf [2013] NZCA 333.
6 At [7] above.
7 Paragraph [4] of Judge Wade’s decision.
[24] The respondent contended that none of the items sought were directly relevant to the question of whether the appellant’s blood specimen was taken in accordance with normal medical procedures and that there was no evidential basis advanced for concluding that the stability of the booze bus affected whether the taking of the blood was within normal medical procedures.
[25] It was contended that there was no realistic prospect that the details of other motorists on the bus, or the details of what occurred when they were processed, would assist the appellant because:
(a) The officer who processed the appellant noted on the procedure sheet “Blood taken 2223 by Sylvia. Us three only people on bus. No movement”. No other witness could comment on the stability at the time the appellant was having his blood taken.
(b)At most, other witnesses could evidence as to the stability of the bus when they were on it. It was contended that it was likely that they were intoxicated and facing potential prosecution for drink driving and there was no reason to believe they would have paid attention to the stability of the bus.
(c) Even putting aside the question of intoxication, there was a delay of a year before the appellant sought the information and it was unlikely that other motorists could recall anything useful.
[26] The respondent further submitted that there was no realistic prospect that the cross-examination of the nurse who took the blood sample could have been materially improved by the disclosure requested. The point was made that the appellant could have, but did not call, his own expert witness on the normal medical procedures issue.
[27] I do not consider that details of the circumstances relating to the processing of other motorists on occasions which were not contemporaneous with the processing of the appellant would be information which would tend to rebut or have
a material bearing on the case against the appellant. Consequently I agree with the respondent’s submission on this issue. I consider that the District Court Judge was correct in his conclusion that the information which was sought was not relevant within the terms of s 8 of the Act.
[28] Finally on this question I address the parties’ submissions on the implications of the judgment of Allan J in McGrath v Police.8 In that case Allan J concluded that:9
… Normal medical procedures do not involve the taking of blood in
circumstances where the physical environment is unstable.
[29] The appellant placed reliance not only on that statement but also on the fact that on appeal in NZ Police v McGrath10 the Court of Appeal did not overrule that conclusion.
[30] The respondent submitted that there was no evidential basis for Allan J’s conclusion and submitted that it appeared that his Honour had taken judicial notice of the point on the basis that blood is normally taken in doctors’ rooms, diagnostic centres or laboratories where physical stability can be guaranteed. The respondent submitted that Allan J’s conclusion was merely on a matter of fact and was limited to the case before him and that consequently neither the District Court nor this Court was bound by it.
[31] I agree with the respondent’s submission on that point. I note that the conclusion in McGrath does not sit comfortably with s 128 of the Evidence Act 2006 which confines the matters in respect of which judicial notice can be taken.
If the information sought was relevant, was there a miscarriage of justice?
[32] Assuming however that, contrary to my view, the information sought was relevant within the meaning of s 8, I proceed to consider whether there was a miscarriage of justice as required by s 232(2) of the Criminal Procedure Act 2011.11
8 McGrath v Police HC Auckland CRI-2011-404-110, 20 December 2011.
9 At [18].
10 NZ Police v McGrath [2013] NZCA 3.
11 See [10] above.
[33] The fact of non-disclosure itself does not translate to a miscarriage of justice. Regard must be paid to the importance of the information withheld and the way in which the trial itself was run: Herewini v Ministry of Transport.12 As Fisher J observed in Herewini:13
However it does not follow, as Mr O’Neill contended, that if this Court would have decided the pre-trial ruling differently, the appeal must be allowed and the convictions quashed. Even assuming for the moment that there had been a procedural deficiency, appeals will be allowed only where it has been of real consequence.
[34] Given the evidence of both the police officer and the nurse on the issue of the stability of the booze bus at the time when the appellant’s blood was taken and the fact that the appellant elected not to give evidence himself on the issue, I am unable to conclude that there could be a miscarriage of justice as a consequence of the non- disclosure of the information sought.
Was the hearing unfair by reason of an appearance of pre-determination?
[35] The contention that there was an appearance of pre-determination arose from
[5] of Judge Wade’s Ruling quoted at [7] above.
[36] The appellant’s submissions expressed his contention on this issue as follows:
Even if the disclosure was properly withheld, a fair trial was still not possible before Wade DCJ because His Honour had already decided that there was no defence and if any technicality could be raised he would undoubtedly rule against the appellant. That determination at the start of the hearing was contrary to McGrath and to ss 25(a) and 25(c) of the Bill of Rights. In those circumstances justice could not be seen to be done. The circumstances also resulted in the appellant not offering evidence on the already decided point. Quite aside from whether disclosure should have been made, it is respectfully submitted that the hearing was unfair in appearance and in fact.
[37] I first observe that it is apparent from the transcript that the appellant did not raise with the Judge any objection to his conducting the hearing. Mr Haskett frankly acknowledged that it was his view that to have done so would have operated against
his client’s best interests. In those circumstances I consider that there was a waiver
12 Herewini v Ministry of Transport [1992] 3 NZLR 482 at 492.
13 At 490.
by the appellant of any ground for objection which he may have had on the basis of the comments in [5].14
[38] Irrespective of waiver, I do not consider that the Judge’s intimation, albeit in reasonably firm terms, that he was likely to admit evidence relating to the blood sample under s 30 of the Evidence Act 2006, amounted to pre-determination.
[39] The fact is that the appellant had not refused to give a blood sample in reliance on the alleged instability of the booze bus but rather had provided the blood sample. It would be most surprising in those circumstances for the evidence of the results of the blood sample to be rejected.
[40] The Judge’s comments simply reflect that reality. This is not in my view a case of predetermination which rendered the subsequent hearing unfair, particularly when the focus of that hearing was on the issue of the 10 minute period.
Disposition
[41] For the above reasons the appeal is dismissed.
Brown J
14 Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA) at 151; Sisson v
Canterbury District Law Society [2011] NZAR 340 (CA) at [37] and [46]-[47].
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