K v Police HC Christchurch CRI 2007 409 134
[2007] NZHC 1935
•29 June 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2007 409 134
CRI 2007 409 136
K
Appellant
v
POLICE
Respondent
Hearing: 28 June 2007
Appearances: C B Persson for Appellant
J A Farish for Respondent
Judgment: 29 June 2007
ORAL JUDGMENT OF CHISHOLM J
[1] This appeal against conviction for driving with excess breath alcohol raises one, and possibly two, issues. First, whether the Judge was right to conclude that the appellant was informed about the result of the evidential breath test and his right to require a blood test “without delay” in terms of s77(3)(a) of the Land Transport Act
1998. Second, if not, whether s64(2) of the Act can be invoked on the basis that
there was reasonable compliance.
K V POLICE HC CHCH CRI 2007 409 134 29 June 2007
Background
[2] At the District Court hearing in March the only prosecution witness was Constable Duff. Having been stopped at a check point at 1.15am, the appellant failed a breath screening test at 1.16, following which he was given his Bill of Rights. He was given his Bill of Rights again in the booze bus at 1.19am. The Bill of Rights form was produced as Exhibit 1. The evidential breath test result was 726 and a printout of that result (Exhibit 2) records that the test result was provided at
1.22am. However, according to the constable’s watch the result was actually provided at 1.20am. Both times were recorded in an EBA check list which was produced as Exhibit A.
[3] The constable’s uncontested evidence was that the appellant was advised of the result after it had been printed out by the evidential breath testing device. But the printed Advice of Positive Evidential Breath Test form signed by both the constable and the appellant (Exhibit 3) records that it was not until 1.30am that full advice of the result plus the right to undergo a blood test was given. So, depending on whether the time is taken from the constable’s watch or the breath testing device, there was a delay of eight or 10 minutes between the printout of the result and the appellant being given his rights under s77(3)(a).
[4] I pause at this stage to say something more about the EBA checklist. It makes provision for each phase of the process to be recorded, namely, details of the suspect, breath screening, Bill of Rights, evidential breath test, and other matters. The completed form was before the District Court Judge and has featured during this appeal.
[5] A blood test was not requested by the appellant. In due course he was charged with driving with excess breath alcohol on the strength of the evidential breath test result.
[6] Under cross-examination the constable was asked about various matters concerning the appellant’s Bill of Rights including a note in the EBA checklist that the appellant’s lawyer was in Singapore. The constable explained that this
information had been recorded on the EBA checklist after the Bill of Rights had been given to the appellant in the booze bus. In other words, the discussion on this topic and the recording of it in the checklist must have taken place at or soon after 1.19am. This was found by the Judge to be relevant to the issue whether there was any explanation for the delay in giving the appellant his s77(3)(a) advice.
[7] The constable was also cross-examined about a note at the end of the EBA checklist which stated “I am just trying it on. If I want my own lawyer”. In response to a questions from Mr Persson the constable said that this note was made towards the end of the evidential breath test or “even after that”. Again the Judge found this to be relevant to the delay issue.
[8] At the conclusion of the constable’s evidence, the appellant elected not to give evidence. Mr Persson then submitted that the evidential breath test result was inadmissible because the appellant had not been advised of the result and his right to require a blood test “without delay” in terms of s77(3)(a). Because the Judge considered that the prosecution had been taken by surprise, he adjourned the matter to enable submissions to be presented. After submissions were presented at the resumed hearing on 8 June the Judge delivered his decision.
District Court Decision
[9] The Judge found that the defendant was advised of the result of the evidential breath test at 1.20am, being the time recorded by the officer from his watch. In the Judge’s view the discrepancy between the time on the officer’s watch (1.20am) and the time recorded on the evidential breath printout (1.22am) was of no significance. There is no challenge to those conclusions.
[10] Then the Judge made the following findings:
“I find that following the defendant being so advised at 0120 hours the officer then, first by inference, updated his check-list and then obtained a copy of the Advice of Evidential Breath Test form, which he completed with the defendant’s details, that is full name, address, occupation and date of birth and then, (as a matter of fact) read the form to the defendant. He was not asked how or at what rate he read it to the defendant, but assuming for the moment the breath test result to be admissible, an inference is available from the defendant’s breath alcohol level of 726. The form was then signed and dated by the officer and under
‘Time Advised’ he wrote in 0130am.”
Mr Persson argued that there was no evidential basis for the inferences about the updating of the checklist, the filling in of the evidential breath test form, the speed at which it was read or, indeed, the level of the readings. As to the alcohol level, Mr Persson submitted that it was wrong in principle for the Judge to rely on the printout until its admissibility had been determined.
[11] Next the Judge went on to consider the demeanour of Constable Duff. He said that he found him to be a careful and considered witness. The Judge also said that from the way the constable gave his evidence that he had the firm impression that the witness approached his breath testing exercise methodically and carefully in order to best ensure that he thoroughly complied with the procedural requirements. Further findings were then made by the Judge:
“[8] I hold that what is practicable has to be measured against the proven facts in any particular case. In Twiss v Police for example Justice Hansen observed, I think obiter, that the time taken in filling in the Advice of Evidential Breath Test form would only be a few seconds. With respect that might be so with some officer dealing with some suspect under some circumstances, but I apprehend that with a different officer, a different suspect, and different circumstances, the exercise, taken together with the reading, explanation and completion of the form could well take a few minutes, particularly if the suspect is intoxicated to a level for example, as in this case, again of course assuming the evidence is admissible, of nearly twice the legal limit.”
Again those findings are challenged by Mr Persson. Amongst other things, he submitted that there is no evidential foundation for the Judge’s conclusion that an “explanation” had been provided by the officer to the appellant and that the Judge had erred in principle by using the result of the evidential breath test printout to determine the admissibility of that document.
[12] Finally, the Judge reached the following conclusions:
“I have no difficulty in this case, having seen and heard Constable Duff, and accepting his evidence, in drawing the inference that there was no unexplained delay in the process. It was conducted thoroughly and deliberately. Plainly the officer was conscious of the dual responsibilities of (1) adhering to the proper procedures, including proffering the requisite advice without delay on the one hand, and (2) ensuring he took the necessary steps to ensure maintenance of the defendant’s rights on the other.
The inference regarding that second limb is available to the Court from the Constable’s answers to the extensive cross-examination in relation to the successive proffering of Bill of Rights advice.”
Mr Persson challenges the Judge’s conclusion that there was an explanation for the eight to 10 minute delay. In his submission there was in fact no explanation.
Was The Conclusion That Section 77(3)(a) Had Been Satisfied Open To The
Judge?
[13] Given that the Judge is very experienced and had the benefit of hearing the witness, inferences drawn by him should not be lightly disturbed. By the same token, however, the appellant is entitled to expect that this Court will properly scrutinise the District Court decision, especially given the considerable effort that Mr Persson has put into this appeal.
[14] Section 77(3)(a) provides:
“(3) Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—
(a) The person who underwent the test is not advised by an enforcement officer, without delay after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes,—
(i) In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be [conclusive] evidence to lead to that person's conviction for an offence against this Act; or
(ii) In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 150 but does not exceed
400 micrograms of alcohol per litre of breath, the test could of itself, unless the person is 20 or older, be [conclusive] evidence to lead to that person's conviction for an offence against this Act; or
…” (Underlining added)
I proceed on the basis that “without delay” is synonymous with “forthwith” or
“immediately”: Twiss v Police (High Court, Christchurch Registry, AP81/00, 7 July
2000).
[15] In the absence of some explanation or evidence indicating continuing activity, a delay of eight to 10 minutes would not normally satisfy the statutory requirement. This is illustrated by the cases listed in paragraph [6] of Twiss v Police, as well as that decision and Kavangah v Police (High Court, Christchurch Registry, CRI 2005 409 000231, 27 February 2006).
[16] As I see it, the purported explanation for the delay in this case comes down to two things: the time taken to update the EBA checklist; and the time taken to
complete, read and sign the Advice of Positive Evidential Breath Test form. There is no evidence to support the Judge’s inference that the officer also explained the form to the appellant or that the appellant’s condition delayed the process. At the best, those factors could only represent a partial explanation for the delay.
[17] Given the delay of eight to 10 minutes the onus was on the prosecution to provide a satisfactory explanation for the delay. There was, of course, no obligation on Mr Persson to fill gaps in the prosecution case by cross-examination.
[18] In my view it is impossible to reconcile the Judge’s conclusion that the constable acted “without delay” with the authorities mentioned earlier. To a large extent the delay was unexplained. It follows that unless the matter can be saved by s64(2), this appeal will have to be allowed.
Can Section 64(2) Be Invoked?
[19] Section 64(2) provides:
“It is no defence to proceedings for an offence that a provision forming part of[sections 68 to
75A, and 7 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.”
Given the Judge’s conclusion that there had been compliance with s77(3)(a), it was unnecessary for him to consider this section. That does not, however, prevent this Court considering whether it applies.
[20] For the Crown Ms Farish argued that this case is on all fours with McCarthy v Police (High Court, Wellington Registry, AP312/02, 19 February 2003). She noted that in both cases the appellant was advised of the evidential breath test result before the full s77(3)(a) advice was given. Ms Farish also submitted that there was an additional explanation for the delay in this case by virtue of the step by step process involved in the completion of the EBA checklist. She submitted that Kavangah can be distinguished because in that case there was not even a partial explanation for the delay.
[21] The converse view is taken by Mr Persson. In his submission Kavanagh applies and McCarthy can be distinguished. He submitted that whereas in McCarthy there was a continuum of activity (because McCarthy was told the result four minutes after the printout had been produced and there was only a six minute delay before he was given the full advice under s77(3)(a)), in this case there was effectively a period of 10 minutes without any activity after the appellant was told of the result at 1.20am.
[22] I agree with Ms Farish. In my view McCarthy is indistinguishable. In both cases there was no prejudice to the appellant. I do not accept Mr Persson’s proposition that prejudice was inherent in the delay. Moreover, in both McCarthy and this case the appellants were told about the result before they were provided with the full s77(3)(a) advice. That was seen to be an important factor in McCarthy and the absence of that factor prompted Fogarty J to reach a different conclusion in Kavanagh. I therefore accept that Kavanagh is distinguishable.
[23] In fact this case is probably even stronger than McCarthy. In this case the EBA checklist coupled with the cross-examination about timing provided an evidential foundation for the inference that some time (albeit probably a relatively short time) was taken completing and updating the EBA checklist during the period of eight to 10 minutes. In other words, there was a fuller explanation for the delay than in McCarthy.
Outcome
[24] Although Mr Persson’s argument about s77(3)(a) has succeeded, s64(2) renders the Evidential Breath Test printout admissible. The appeal fails and is dismissed accordingly.
Solicitors: C B Persson, Christchurch for Appellant
Crown Solicitor, Christchurch
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