Khimich v Police
[2018] NZHC 1147
•24 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-000071
[2018] NZHC 1147
BETWEEN MIKHAIL KHIMICH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 21 May 2018 Counsel:
JW Clearwater for Appellant KV Mills for Respondent
Judgment:
24 May 2018
JUDGMENT OF DOWNS J
This judgment was delivered by me on Thursday, 24 May 2018 at 3 pm.
Registrar/Deputy Registrar
Solicitors/Counsel:
JW Clearwater, Auckland. Meredith Connell, Auckland.
KHIMICH v POLICE [2018] NZHC 1147 [24 May 2018]
The case
[1] Mr Mikhail Khimich is charged with refusing to permit a blood specimen and failing to supply “identifying particulars”, including his fingerprints.1 The alleged offending occurred in September 2016 and is yet to be tried, about which more later. Mr Khimich seeks to appeal Judge D J Sharp’s pre-trial decision that Mr Khimich’s refusal to supply a blood specimen is admissible evidence.2 That evidence followed a sequence which began when Mr Khimich was required to await a breath screening test; a device had to be brought from elsewhere. Mr Khimich contends the Judge erred in finding no illegality attached to this period, and hence the later refusal to provide a blood specimen should have been excluded as admissible. Likewise evidence of Mr Khimich’s alleged failure to provide particulars.
[2]Significantly, no oral evidence was taken in the Court below.
[3]Leave is required for an appeal of this nature.3 More about this later too.
Background
[4]I adopt the Judge’s helpful summary of the facts:
[3] At 4.40pm on Wednesday 14 September 2016 the defendant was the driver of a Hyundai motor vehicle on Tamaki Drive.
[4] The police received a complaint from a member of the public about the defendant’s driving.
[5] Constable Warin stopped the defendant. The defendant was asked to turn off his vehicle and hand over his keys.
[6] Constable Warin also asked the defendant to wait as the person who had made the complaint to police had pulled in behind the patrol car. Constable Warin was in full uniform driving a marked police car.
[7] The defendant provided Constable Warin with his licence. Constable Warin noted the defendant had glazed and bloodshot eyes.
[8] The defendant said during discussions with Constable Warin that he had been drinking rum.
1 Land Transport Act 1998, s 60(1)(a) and Policing Act 2008, s 32(4).
2 Police v Khimich [2018] NZDC 3164.
3 Criminal Procedure Act 2011, s 215(2). Police offered no obvious opposition to leave but contested the merits.
[9] The defendant was told to wait while another police officer brought a breath testing device.
[10] The time delay in the provision of a breath testing device is said by the police to be 27 minutes. Constable Warin records the traffic stop at 4.50pm. Constable Priestley, who brought the breath screening testing device, arrived at 5.17pm. These times are supported by an event chronology provided by the prosecution.
[5] Section 114(3)(a) of the Land Transport Act 1998 (the Act) provides a Police officer may require the driver of a vehicle stopped under the Act to “remain stopped for as long as is reasonably necessary for [the] officer to … complete the exercise of any other power conferred on [the] officer by this Act”. Subsection (5) of the same section implies a period longer than 15 minutes is anticipated, as an officer may require the driver to remain stopped “for as long as is reasonably necessary to … establish the identity of the driver, but not for longer than 15 minutes” if that is the only purpose.
[6] Judge Sharp found Constable Warin required Mr Khimich to undergo a breath screening test. And, associated delay—either 27 or 37 minutes—was reasonably necessary. Constable Warin had to await the arrival of a breath screening device, delivered in peak-hour Auckland traffic. It followed no illegality tainted the admissibility of Mr Khimich’s later incriminating actions.
[7] As observed, no oral evidence was taken. By consent, the Judge read Constable Warin’s formal statement, the officer’s notebook entries and an “Event Chronology”.4 For the uninitiated, an Event Chronology is a timeline of Police communications between the attending officer and their dispatcher.
Mr Khimich’s case
[8]On Mr Khimich’s behalf, Mr Clearwater submits the Judge erred:
(a)In finding Constable Warin had required Mr Khimich to await a breath screening test.
4 Mr Clearwater confirmed to me this material was admitted by consent, and Constable Warin was not required for cross-examination.
(b)In concluding Mr Khimich was not stopped for longer than reasonably necessary.
[9] Mr Clearwater stresses the limited evidence before the Judge in relation to each. He contends there was insufficient evidence to conclude Constable Warin told Mr Khimich he would require a breath screening test, and the Judge engaged in “mere speculation” in finding traffic “heavy” from 4.50 pm on Tamaki Drive, in turn affecting assessment of reasonableness. In short, Mr Clearwater challenges the factual bases of the Judge’s legal conclusions to the sequence preceding the critical evidence.
Analysis
[10] It is not open to an appellant to accept fact X is correct at first instance, and then seek to go behind X on appeal. Similarly, it is not open to an appellant to agree a witness need not attend the hearing and then put in issue something on which the witness could reasonably have commented; see, for example, s 92 of the Evidence Act 2006. All this is elementary. And, an impediment to Mr Khimich’s appeal.
[11] Constable Warin’s written statement—which was taken as correct below— records he stopped Mr Khimich on Tamaki Drive. Another motorist believed Mr Khimich was intoxicated. That too was the officer’s view: Mr Khimich smelt of alcohol, and his “eyes were glazed and bloodshot”. Constable Warrin said he asked Mr Khimich for his car keys. Mr Khimich gave them to him. The officer’s statement continues:
I explained to Khimich that I would get another Police Officer to come and breath test him as I was not carrying a device that could do that.
Khimich got out of his vehicle, walked to the passenger’s side of the car and begun getting a bottle of water out of the rear of his car to show me.
Khimich’s actions were clumsy, he opened the rear passenger’s door into his own hand.
I asked Khimich if he had been drinking at all. He gestured to me with his thumb and forefinger that he had drunk a little bit.
I reiterated to Khimich that we were waiting for another Police Officer to come with a breath testing device.
While waiting for the Road Policing officer to arrive … Khimich said that he had been drinking rum in the city.
Upon Constable Priestley’s arrival I briefed him about what had happened so far.
Immediately prior to Constable Priestley conducting a Breath Screening Test Khimich stumbled over his own feet.
[12] Section 68 of the Act empowers the compulsory administration of a breath screening test. No special form of words is first required on the Police officer’s part.5 On the face of the evidence, Constable Warin required Mr Khimich to remain stopped for this purpose.6 The contrary conclusion required (fruitful) cross-examination. But there was none. Indeed, the Judge signalled as much; he described the officer’s evidence as “unchallenged”.7
[13] Similar analysis applies to the length and reasonableness of Mr Khimich’s enforced wait. As will be recalled, the provision envisages at least a 15-minute wait without specifying a maximum period when powers beyond driver-identification are engaged; see [5]. But, the period must be reasonably necessary for the completion of the exercise of the power. Constable Warin’s statement is silent on precise timing, unlike his notebook. As observed, it too was before the Judge by consent. It records Mr Khimich was stopped at 4.50 pm and the device arrived at 5.17 pm, a delay of 27 minutes. Both times are consistent with the Event Chronology.
[14] Mr Clearwater contends the correct figure is 37 minutes, so 10 minutes more. However, this figure is not obviously referable to any piece of evidence. And, having consented to the prosecution’s material being read, it is difficult to now go behind it. Again, there was no cross-examination. Or, any evidence from Mr Khimich.
[15] In any event, even if the correct period is 37 minutes; place, time and circumstance imply reasonableness. The setting is Tamaki Drive—a major and busy thoroughfare to the east of the city—on a weekday from shortly before 5 pm. Constable Warin did not have a device in his car; one had to be delivered.
5 Applicable case law is traceable to Chesham v Wright [1970] NZLR 247 (HC).
6 See Police v Bell HC Wellington, APP177/01, 9 November 2001.
7 Police v Khimich [2018] NZDC 3164 at [33].
Mr Clearwater submitted it would have been quicker to have required Mr Khimich to accompany the officer to Glen Innes Police station, which was approximately 14 minutes away. True, it might. But that was a matter for exploration in cross-examination; any number of reasons might also have emerged why that was not done. Mr Khimich had a duty to put these points to the officer. He did not. All of which is to emphasise the Judge’s conclusions were plainly available on the unchallenged material before him.
[16] Judge Sharp held the evidence would be admissible even if illegality had attached to Mr Khimich’s stoppage, on the basis exclusion would be disproportionate to any Police impropriety.8 It is undesirable to analyse this point as it is ordinarily informed by totality of circumstance; there was no evidence before the Judge of what happened once Mr Khimich was taken to the Police station—and hence no evidence of the all-important request for blood and particulars. Causation is also difficult to evaluate when the full factual chain is not in evidence, especially when the contention is that earlier illegality taints later Police action.
Leave to appeal
[17] A defendant may not appeal a pre-trial admissibility determination in a Judge- alone case unless he or she obtains leave of the appeal Court.9 A host of factors enters the mix. One is the centrality of the disputed evidence to the case. This factor favours leave because the charges would collapse if the evidence was excluded. However, other factors pull the other way—and are dispositive.
[18] First, delay. The alleged offending occurred on 14 September 2016. Doubt attaches to whether the architects of the Criminal Procedure Act 2011 envisaged a pre-trial admissibility appeal in a Judge-alone setting 19 months on. True, leave would not cause further delay as the hearing also encompassed the merits. However, leave for pre-trial admissibility appeals for what were hitherto summary offences should not be treated as a mere formality; before the advent of the Criminal Procedure Act,
8 Evidence Act 2006, s 30.
9 Criminal Procedure Act 2011, s 215(2).
admissibility of evidence in summary cases could not be challenged by way of pre- trial appeal.
[19] Second, Mr Khimich’s approach to the evidence before Judge Sharp, which meant the Judge’s conclusions were all but inevitable. Third, difficulty with admissibility evaluation if impropriety accompanied Mr Khimich’s stoppage. As observed above, the complete sequence was not before the Judge. Or me. Fourth, absence of prospect of appellate success.
[20] As is obvious, Mr Khimich suffers no prejudice from leave being declined; his appeal would not have succeeded anyway.
Orders
[21]Leave is declined.
Postscript
[22] The hearing attracted media attention: I drew this to the parties’ attention.10 Neither sought suppression of this judgment or any detail, presumably because the charges will be tried by a Judge without a jury.
……………………………..
Downs J
10 Khimich v Police HC Auckland CRI-2018-404-000071, 22 May 2018 (Minute (No 1)) and 23 May 2018 (Minute (No 2)).
0
0
0