K v Police HC Wellington CRI 2009-485-25
[2009] NZHC 718
•1 July 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2009-485-25
K
v
NEW ZEALAND POLICE
Hearing: 30 June 2009
Counsel: W M Johnson for Appellant
I R Murray for Respondent
Judgment: 1 July 2009
RESERVED JUDGMENT OF RONALD YOUNG J (Appeal against conviction)
Introduction
[1] On 13 June 2008 Mr K was driving his scooter on Neva Street, Petone. He was pulled over by a police officer. Procedures were carried out under the Land Transport Act 1998 and eventually an evidential breath test machine showed that Mr K had been driving his scooter with an excess breath alcohol level of
903 micrograms of alcohol per litre of breath.
[2] After a defended hearing in the District Court the appellant was convicted of an offence against s 56(1) of the Land Transport Act 1998 (“the Act”). He now
appeals against his conviction.
K V NEW ZEALAND POLICE HC WN CRI 2009-485-25 1 July 2009
a) the information was a nullity because s 19B(5) of the Summary
Proceedings Act 1957 had apparently not been complied with;
b) there was undue delay within the terms of s 77(3) of Act;
c) there was no evidence that the officer had demonstrated to the appellant that he was empowered to enforce the Act;
d)the prosecution failed to prove the scooter being ridden by the appellant was a motor vehicle in terms of s 56(1) of the Act.
Ground (d) was abandoned at hearing.
Facts
[4] On 13 June 2008 the appellant was driving his scooter in Petone when he was stopped by a police officer because the officer considered he was weaving on the road. The police officer was driving an unmarked police car and was in plain clothes but activated a siren and red and blue flashing lights in order to stop the appellant. The officer noted that the appellant smelled of alcohol and he admitted that he had consumed a couple of pints of beer.
[5] The officer noted the appellant had difficulty in raising the scooter onto its mount. The officer thought that the appellant’s weaving and difficulty in raising the scooter onto its mount was attributable to the effects of alcohol. He administered a passive breath test and a breath screening test and then required the appellant to accompany him to the police station for an evidential breath test or blood test or both. The evidential breath test returned a result of 903 micrograms of alcohol per litre of breath.
[6] Section 19B provides that where a person has undergone an evidential breath test under s 69 of the Act and does not wish to undergo a blood test an enforcement officer may sign and serve a summons on the person. Subsections (3), (4) and (5) set out the officer’s obligations with respect to the information and the filing of the summons:
19B Summons following evidential breath test
…
(3) An information under this Part of this Act in respect of the offence with which the person is charged shall be laid and filed by an enforcement officer as soon as practicable after the evidential breath test was administered, and in any event not later than 7 days after the day the test was administered.
(4)It is the duty of every enforcement officer who issues a summons under this section to ensure that the information required by subsection (3) of this section is laid and filed.
(5)A copy of a summons served under this section shall be filed with the information, and the copy shall bear an endorsement, signed by the enforcement officer who issued the summons, showing the fact, time, and mode of service.
[7] In the present case a copy of the summons was never filed with the information and does not appear in the Court record. Counsel for the appellant maintains that his failure amounts to a procedural flaw, which renders the information invalid or a nullity.
[8] I consider this case is analogous to Wyatt v Ministry of Transport (HC Auckland, AP 58/91, 4 June 1991, Tipping J). I agree with Tipping J’s approach.
[9] Tipping J held that a failure of the informant to prove service and filing of the summons did not invalid the information where the defendant had duly appeared at the hearing. He said:
The summons is the document which is designed to bring the defendant before the Court. The information is the document whereby the
informant states on oath the substance of the charge. It is the document which initiates the prosecution …
I am also of the view that even if there had been a failure in the procedure, as opposed simply to want of proof that the correct procedures had been undertaken, the information would still have been valid. Section 204 provides that no information, complaint, summons, convictions or sentence and no process or proceeding shall be quashed, set aside or held invalid by any District Court or by any other Court by reason only of any defect, irregularity, omission or want of form unless the Court is satisfied there has been a miscarriage of justice. It could not possibly be said there has been a miscarriage of justice in the present case. The Appellant appeared. He knew what he was charged with and he had every opportunity to put his defence and to contest the prosecution.
[10] It follows that if necessary the procedural defect here can be cured under s 204. As in Wyatt it is not apparent that the appellant was the subject of any prejudice or a miscarriage of justice as a result of the failure to file the summons with the information. The appellant was clearly aware of the summons and duly appeared before the Court on the day of hearing and was able to conduct the defence of his case without impediment.
[11] I agree with the District Court Judge that the failure here did not invalidate the information and in any event any defect is able to be cured by the application of s 204.
Undue delay
[12] It appears that a disparity in time between the evidential breath testing device and the officer’s watch gave rise to confusion as to the length of time that had passed between obtaining the result of the test and advising the appellant of the result of that test.
[13] Section 77(3) of the Act relevantly provides that:
77 Presumptions relating to alcohol-testing
…
(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
(b) The person who underwent the test—
(i)Advises an enforcement officer, within 10 minutes of being advised of the matters specified in paragraph (a), that the person wishes to undergo a blood test; and
(ii) Complies with section 72(2).
[14] Section 64(2) is also relevant and it provides that:
64 Defences
…
(2)It is no defence to proceedings for an offence that a provision forming part of [sections 68 to 75A, and 77] 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.
[15] The officer’s evidence was that he took the timing of events that evening from his own watch. He accepted the time on the evidential breath testing machine and his watch did not match. The officer’s evidence was that he required the appellant to undergo an evidential breath test at 22:38. He then advised the appellant of the result of the test at 22:47. In the nine minutes, therefore, the Constable had to, test the machine to make sure it was working, obtain two breath test samples, await the result from the machine and then advise the appellant of the result of the test.
[16] There is no exact evidence how long it would have taken to complete the testing procedure and obtain a result from the breath testing machine. The print out from the machine itself suggested the procedure from the beginning of the machine test to the final result took about three minutes. The Constable would have required further time before and after the test to begin and complete the procedures. Given the total time from start to advice was nine minutes, the delay from completion of the test and advice of result was in the range of four to six minutes. It was not suggested to the Constable in cross-examination that he had not “without delay” given the appellant the result of the test after it was ascertained.
[17] I do not consider that such a modest delay infringes the requirement of s 77(3) especially given the reasonable compliance provision in s 64(2). Much of the difficulty in this case arose because of confusion about the comparisons between the time recorded on the police officer’s watch and that recorded on the evidential breath testing machine.
[18] The officer was clearly wrong in his evidence, as he recognised, when he said initially there was a four minute difference between the watch and the machine. However, the Judge’s assessment of the twelve minute difference also seems to have been an error. The machine gave a time of 22:35 for the final result of the evidential breath test. The officer said he told the appellant the result of the test by his own watch at 22:47. The Judge wrongly assumed these two events were simultaneous and thus the difference in the two time pieces was twelve minutes. In fact it seems certain the police officer did not advise the appellant of the result of the evidential breath test the moment the machine printed the result at, according to its time, 22:47. Thus, the difference between the officer’s watch and the machine was less then twelve minutes but how much less cannot be ascertained from the evidence.
[19] However, for reasons given, this evidence is a distraction in the case. The officer’s evidence as to timing was based on his own watch. For the reasons given, therefore, I reject this ground of appeal.
[20] The appellant submits that a siren and flashing lights are not necessarily evidence of authority as an enforcement officer under s 113 in the absence of other evidence. Section 113(1)(a) of the Act provides that:
An enforcement officer in uniform or in possession of a warrant or other evidence of his or her authority as an enforcement officer may enforce the provisions of “the Act”.
[21] The officer’s evidence was that he was wearing plain clothes and driving an unmarked police vehicle. He was not cross-examined on his s 113 authority. The purpose of s 113 was expressed in Quirk v Ministry of Transport [1977] 2 NZLR CA 497 at [504] as “I think the basic purpose of s 113(9)(1)(a) is also plain enough. The legislature has recognised that a citizen is entitled to question apparent intrusions upon his actions and movements; so that if he challenges the status of an officer who wishes to enforce some provisions of the Act or the Regulations made thereunder then that officer must be in a position there and then to produce reasonable evidence of his official position or standing”.
[22] I am satisfied the District Court Judge was correct to infer from the circumstances that there was evidence of the police officers authority to act sufficient to comply with the section. The officer’s evidence was that he activated his warning red and blue lights and siren to pull over the appellant. Secondly, the officer’s evidence was that he was in possession of both a passive breath testing device and a breath screening device and he was able to assemble the devices and conduct the tests. There was no challenge in cross-examination to the question of authority. I consider the above evidence was sufficient to infer authority as the Judge properly did (see also Crilly v New Zealand Police, HC Wellington, CRI 2005-485-1373,
3 March 2006, Miller J).
Ronald Young J
Solicitors:
W M Johnson, Barrister, Lower Hutt, email: [email protected]
I R Murray, Luke Cunningham & Clere, PO Box 10 357, Wellington, email: [email protected]
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