Julian v Police
[2019] NZHC 1419
•20 June 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-485-26
[2019] NZHC 1419
BETWEEN TERESA AGNES JULIAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: On the papers Counsel:
Appellant in person
T Bain for Respondent
Judgment:
20 June 2019
JUDGMENT OF COOKE J
[1] On 1 March 2019 Ms Julian was convicted of one charge of driving with excess breath alcohol by Judge Sygrove in the District Court at Porirua.1
[2] Ms Julian appeals her conviction on two grounds. First, she says she was not the driver of the car and the Police accordingly were not empowered to require a breath test. Second, she says the Judge erred in accepting the evidence of the police officer.
Factual background
[3] At approximately 3 am on 4 October 2018 Ms Julian was driving from Raumati Beach to her home in Paraparaumu. She had consumed alcohol before driving.2 It is not in dispute that at her home address, Constable Rawlinson conducted a breath screening test pursuant to s 68 of the Land Transport Act 1998 that gave a result of
1 New Zealand Police v Julian [2019] NZDC 7824; Land Transport Act 1998, s 56, maximum penalty three months’ imprisonment or a fine not exceeding $4,500.
2 In her attached affidavit she says she had consumed two glasses of wine.
JULIAN v NEW ZEALAND POLICE [2019] NZHC 1419 [20 June 2019]
400 plus. An evidential breath test conducted at Kāpiti Coast Police Station gave a result of 453 micrograms of alcohol per litre of breath.
[4] The issue in dispute is the relevant timing of the breath testing procedures. On Constable Rawlinson’s account, he was patrolling a road at Paraparaumu with his partner, Constable Patience. Ms Julian’s vehicle passed their location at around 3.30 am and the officers pursued the vehicle, activating their red and blue flashing lights. They continued to pursue the vehicle for 150 metres along the road where she lived. They saw Ms Julian’s vehicle pull in to her address. Constable Rawlinson approached the vehicle, and saw Ms Julian was the only occupant. He says she exited the vehicle as he approached, and he asked her if she had seen the police vehicle, and whether she had been drinking. She answered that she had seen him pass and that she had earlier consumed two glasses of champagne. He then required her to undergo a breath screening test.
[5] On Ms Julian’s account, she never passed a police car. She says no police followed her home. She said when she arrived at home, she put her wallet on the bench and had a “whiskey nightcap.” She then realised she had left her cell phone in the car, and went back outside to her car to retrieve it. She sat in her car to retrieve it and said she was just getting out when the police arrived and required her to undertake a breath screening test upon threat of arrest.
District Court decision
[6] After laying out the standard of proof and the different accounts of the facts, the Judge concluded:
[14] What you are effectively asking me to accept, Ms Julian, is that the officer is not telling the truth. You do not accept the officer’s evidence that he and his partner were following you in their vehicle and you appear to be asking me to accept that you had been home for some time, that the police were patrolling the area, and that the only reason they came to your house was that you had been home and the lights were on and your car was outside. That is something I do not accept. Clearly, Constable Rawlinson had good cause to suspect that you had been driving with excess breath alcohol because he and his partner had been following you.
[15] When I come down to whose evidence I believe, the police constable was not asked whether or not he had been drinking. Clearly, if he had I am sure his answer would have been in the negative. You have been proven to be
affected by alcohol because of the breath testing procedure and on balance I accept the police constable’s evidence. Accordingly, you are convicted.
Relevant law
[7] An appeal against conviction in a Judge-alone trial is governed by s 232 of the Criminal Procedure Act 2011. This appeal is brought under s 232(2)(b):
232 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a) in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.
(c) in any case, a miscarriage of justice has occurred for any reason.
…
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[8] The Supreme Court recently re-examined the approach to assessment of evidence for conviction appeals in Sena v New Zealand Police.3 The Court held that appeals in such cases should proceed by way of rehearing in accordance with the well- established principles canvassed in Austin, Nichols & Co Ltd v Stitchting Lodestar.4
[9]Section 56(1) of the Land Transport Act 1998 provides:
(1)A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.
3 Sena v New Zealand Police [2019] NZSC 55.
4 At [32]; and Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[10] An evidential breath test under s 69 can only be performed after a person has already undergone a breath screening test under s 68. Section 68 provides:
68 Who must undergo breath screening test
(1)An enforcement officer may require any of the following persons to undergo a breath screening test without delay:
(a) a driver of, or a person attempting to drive, a motor vehicle on a road:
(b) a person whom the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:
…
Analysis
[11] The sole issue for determination is whether the Judge was correct in accepting the evidence of Constable Rawlinson. If he was correct, the requirements of ss 68 and 56 are satisfied and the appeal must fail.
[12] I am satisfied the Judge was correct in accepting Constable Rawlinson’s evidence, and rejecting Ms Julian’s evidence for the following reasons:
(a)Constable Rawlinson’s evidence was consistent between his statement of evidence and throughout his cross-examination. There is no dispute that the breath screening procedure itself was conducted properly, and there is no plausible explanation as to why he would be motivated to lie as to the timing of the test.
(b)By contrast Ms Julian’s account makes little sense. On her account, the officers arrived at her house seemingly out of nowhere. The only explanation she offered for the officers choosing her address was because her lights were on. It is implausible to suppose that officers would have randomly arrived at an address to conduct a breath screening test at 3 am for this, or any other reason.
(c)On Ms Julian’s account, she was in her home for 10–15 minutes before the officers arrived, and in that time she drank sufficient whiskey to put her at a breath alcohol to the level of 453 micrograms after drinking only two glasses of champagne earlier in the evening. I do not find that explanation persuasive.
[13] There is no reason for me to conclude that there has been any error by the District Court Judge. The appeal is dismissed.
Cooke J
Solicitors:
Crown Solicitor, Wellington for Respondent
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