Kumar v Police
[2020] NZHC 3491
•22 December 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-463-81
[2020] NZHC 3491
BETWEEN DINESH KUMAR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 December 2020 Appearances:
G Haszard for the Appellant
J Sutton for New Zealand Police
Judgment:
22 December 2020
JUDGMENT OF POWELL J
This judgment was delivered by me on 22 December 2020 at 10 am Registrar/Deputy Registrar
Date:
KUMAR v NEW ZEALAND POLICE [2020] NZHC 3491 [22 December 2020]
[1] The appellant, Dinesh Kumar, has appealed a decision of Judge C J Harding convicting him of driving with excess breath alcohol.
[2] In her written submissions Ms Haszard, on behalf of Mr Kumar, submitted Judge Harding erred in his assessment of the evidence in a number of respects:
(a)By treating the blood alcohol results as conclusive evidence.
(b)By taking into account the level of alcohol in the evidential breath test.
(c)By failing to follow the precedent set by Perry v Police.
(d)By placing too much weight on previous cases to determine that it would be “slim to impossible” to “…have a level of 182 milligrams within minutes of a single double shot”, and failing to take into account that Mr Kumar’s blood alcohol would have concentrated in his system by the time the test was taken.
(e)By not accepting Mr Kumar’s explanation for his glazed and bloodshot eyes.
(f)By failing to review the evidence in an impartial manner.
[3]In addition, Ms Haszard submitted a miscarriage of justice occurred because:1
(a)Judge Harding failed to provide a reasoned basis for not considering the decisions put forth by defence counsel, insofar as those decisions related to the interpretation of the blood alcohol testing procedure and results.
(b)Judge Harding interrupted the cross-examination of the key prosecution witness, Mr van Oudenaaren, on the issue of Mr Kumar’s driving.
1 Criminal Procedure Act 2011, s 232(c).
(c)Judge Harding relied on Mr Kumar’s breath alcohol level which was inadmissible, as well as the presence of slurred speech, to find the charge proved beyond a reasonable doubt.
The District Court decision
[4] In the judgment under appeal Judge Harding recorded that a member of the public, Mr van Oudenaaren, gave evidence that at about 7:15 pm on 7 December 2019, he observed a red hatchback driving erratically in front of him on Papamoa Beach Road. This vehicle belonged to Mr Kumar. Mr van Oudenaaren described the vehicle as being driven “aggressively” and crossing the centre line before pulling sharply into the domain carpark, where a block of shops and a bar were located.2 Mr van Oudenaaren continued driving on Papamoa Beach Road, but concerned about the manner in which the vehicle had been driven, called the Police and reported the vehicle’s number plate and his concerns.3 Mr van Oudenaaren then decided he should see whether the vehicle had remained parked, so returned to the domain carpark. This trip back to the carpark took approximately three to four minutes.4 Once there he parked about 25 to 30 meters away and observed somebody in the car. He remained parked for about three minutes before leaving.
[5] In response to Mr van Oudenaaren’s call, Constable Mattrill received a call at approximately 7:20 pm and was directed to the domain carpark. She arrived at around 7:28 pm and found Mr Kumar in the vehicle on his cell phone. Constable Mattrill recorded that Mr Kumar had bloodshot and glazed eyes and that he smelled of alcohol.5 Although she recorded at the time that his speech was not slurred, in evidence she said that he had been slurring his words.6 Constable Mattrill informed Mr Kumar she wished to speak to him about a driving complaint and asked if he had been drinking. She recorded that he said he had a couple of beers.7
2 Police v Kumar [2020] NZDC 14571.
3 At [3].
4 At [3] – [5].
5 At [6].
6 At [6].
7 At [7].
[6] Constable Mattrill determined she had reasonable cause to suspect he was under the influence, so a breath test was completed and showed a result of “over 400”.8 Mr Kumar accompanied Constable Mattrill to the Police station where a blood sample was taken. The result of this was a reading of 182 milligrams of alcohol per 100 millilitres of blood, a measure exceeding the legal limit.9
[7] Mr Kumar gave evidence. He accepted that he had been driving on the way to where the constable found him parked. He said that he had been texting whilst driving which had caused him to cross the centre line.10 He said it was only after he arrived at the carpark that he went into a nearby bar and grabbed a double shot of whiskey. He then received a phone call, but it was too loud to hear, so he went to sit back in the car. He was clear that he had been drinking at the pub and nowhere else, and explained that his glazed and bloodshot eyes were a result of working at an orchard a week before the incident.11 Mr Kumar also advised the Court he had recently had an infringement for texting while driving, and that on at least one previous occasion had left his car in this particular carpark and walked home.12
[8] On the basis of the evidence, Judge Harding was satisfied that “Mr Kumar was driving his car on Papamoa Beach Road”, “that Mr Kumar was the person sitting in the car in the carpark four to five minutes after the car had stopped”, “that there was reasonable cause to suspect he had been drinking” and, “that the breath alcohol and subsequent blood alcohol process produced a result of 182 milligrams of alcohol per 100 millilitres of blood”. His Honour then relied on s 77(2) of the Land Transport Act.
[9] Judge Harding noted counsel had referred him to the decision in Perry v Police.13 Discussing the effect of that case Judge Harding noted: 14
As Brewer J observed the issue in Perry was had Mr Perry, prior to being found by Constable Scott, driven his car on the road with a breath alcohol content greater than 400 micrograms of alcohol per litre of breath. Translating that to the same question relevant to this case it is whether Mr Kumar, prior to
8 At [9].
9 At [10].
10 At [11].
11 At [11].
12 At [22].
13 Perry v Police [2015] NZHC 2810.
14 At [23].
being found by Constable [Matrill], driven his car on the road with a blood alcohol content greater than that required.
[10] After setting out the prosecution evidence Judge Harding noted that the presumption in s 77(2) of the Land Transport Act applied, which provides a presumption that the proportion of alcohol in the defendant’s blood at the time of the alleged offence is to be considered the same as that recorded in the blood specimen taken from the defendant, Judge Harding then considered whether Mr Kumar’s evidence was sufficient to displace the s 77(2) presumption:15
Mr Kumar was smelling of alcohol when spoken to by the police. His eyes were glazed. His explanation that that is because of his work on the orchards which he most recently undertook a week before I simply do not accept.
The constable was clear in her evidence that there was a small degree of slurring of speech … that is inconsistent with her recording of no speech slurred… I cannot therefore be sure about that. But I can be sure after hearing cases such as this for over 20 years that the prospect of there being a level of 182 within not very long at all or over 400 within only minutes of a single double whiskey is slim to the point of impossible.
I simply do not accept from the number of these matters with which I have been involved and from earlier cases that such a result is possible. It follows that Mr Kumar’s evidence of not having been drinking alcohol prior to going into the pub cannot be accepted.
In those circumstances and having regard to the level which he both blew, although that is not admissible, and was tested at it is inevitable in my view that he must have been drinking prior to stopping in the carpark...
It follows that I am satisfied that [Mr Kumar] was driving a motor vehicle on a road with a … blood alcohol level of 182 and the charge is proved.
Discussion
[11] Section 229(1) of the Criminal Procedure Act 2011 (“CPA”) allows a person to appeal against their conviction to the High Court.16 Section 232 of the CPA sets out that an appeal against conviction must be allowed if, 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, or a miscarriage of justice has occurred for any reason. In any other case the appeal will be dismissed.
15 At [30] – [33].
16 Criminal Procedure Act 2011, s 230(b).
[12] Such an appeal proceeds by way of rehearing, and it is for the appellant to show that an error has been made. The trial Judge will have erred if, on appeal, this Court comes to a different view on the evidence. In assessing whether there has been an error, this Court ought to exercise caution where the challenge is to credibility findings based on contested oral evidence, taking into account the advantages the trial Judge may have had in hearing the evidence as it emerges during trial and in making an assessment of the witnesses.17
[13] Following discussions with Ms Haszard at the hearing it was clear that a number of issues raised on behalf of Mr Kumar were not arguable, and were therefore not pursued.
[14] First, Ms Haszard did not pursue any suggestion that Judge Harding was biased and/or not impartial, and accepted that there was no evidence that the fact that the District Court took an early lunch break in the course of her cross-examination of Mr van Oudenaaren was in any way material, given the case ultimately turned not on Mr van Oudenaaren’s evidence but whether Judge Harding accepted Mr Kumar’s account of his drinking that evening.
[15] Likewise, the point Ms Haszard had been hoping to make with reference to a number of District Court cases which questioned whether Mr Kumar had received the correct warning prior to taking the blood test was rendered inarguable following the issue of the decision of the Court of Appeal in Solicitor-General’s Reference (No 1 of 2020).18
[16] Instead, as Ms Haszard agreed, the issue on appeal was whether Judge Harding had a sufficient basis to reject Mr Kumar’s account. In this regard it is clear that Judge Harding did not misapply Perry v Police.19 In that case Brewer J concluded that the District Court Judge had erred by limiting his question to whether the defendant was the driver, rather than whether the defendant had been over the limit while driving on the road prior to having been found by the constable.20 The question formulated by
17 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
18 Solicitor-General’s Reference (No 1 of 2020) [2020] NZCA 563.
19 Perry v Police [2015] NZHC 2810.
20 At [34].
Brewer J was indeed the very question Judge Harding asked of himself in the present case at paragraph [23] of his judgment.21
[17] In concluding that Mr Kumar’s explanation with regard to when he had begun drinking was not credible, Judge Harding effectively put to one side both whether Mr Kumar was slurring his words at the time and the breath alcohol result, which as his Honour specifically noted, was not admissible. Likewise, his Honour’s finding that Mr Kumar’s bloodshot eyes could not have come from his work in an orchard, while clearly a finding that was open to him given Mr Kumar’s evidence he had not worked at the orchard for a week, does not assist with when Mr Kumar commenced drinking.22
[18] Instead the sole basis articulated for rejecting Mr Kumar’s explanation was that based on his Honour’s experience Mr Kumar’s blood alcohol result of 182 “within not very long at all”23 after downing a double whiskey was simply not credible.24
[19] Although Ms Haszard raised concerns regarding Judge Harding’s reliance on his own experience, there is ample authority to support such an approach in assessing his credibility as a witness. In Kilroy v R, Moore J found there was no issue with the credibility finding made by the District Court Judge where one of the factors relied on had been the Judge’s “own knowledge, as an experienced criminal judge”.25 Likewise, Heath J, in Tamati v Police, noted that “while experience does not confer upon any Judge some special ability to divine whether a person is or is not telling the truth, experience is a good starting point for evaluating competing evidence in context”.26 Given these authorities I am satisfied Judge Harding was entitled to utilise his experience to assess the plausibility of Mr Kumar’s explanation in the context of the explanation provided, and go on to reach the conclusion that Mr Kumar’s explanation was not credible.
21 See [9] above.
22 At [30].
23 At [31]. I note that no information as to the timing of the blood test has been put before me on appeal.
24 At [31], [32] and [33].
25 Kilroy v R [2016] NZHC 2115.
26 Tamati v Police HC Hamilton, CRI-2011-419-54, 25 August 2011 at [33].
[20] As already noted, once it was established that Mr Kumar was affected by alcohol at the time of driving, s 77(2) of the Land Transport Act allows the Court to presume the level of alcohol in Mr Kumar’s blood at the time of the offence was the same as that in the blood test taken some time later. In reliance on that presumption and having rejected Mr Kumar’s explanation it was therefore available to Judge Harding to find the charge made out.
[21] The final concern raised by Ms Haszard, that Judge Harding did not consider that the alcohol in Mr Kumar’s blood system may have concentrated over time is also not relevant. The presumption in s 77 specifically addresses the blood alcohol level that can be attributed to the defendant and therefore once Mr Kumar’s explanation had been rejected such an inquiry did not have to be taken any further.
Decision
[22]The appeal against conviction is dismissed.
Powell J
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