L v Police HC Auckland CRI 2009-404-373
[2010] NZHC 194
•4 March 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2009-404-373
L
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 1 March 2010
Appearances: V Heather for the Appellant
A R Longdill for the Respondent
Judgment: 4 March 2010
RESERVED JUDGMENT OF ELLIS J
This judgment was delivered by me on 4 March 2010
At 3.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: V Heather, PO Box 59 160, Manukau 2151
Crown Solicitors, PO Box 2213, Auckland 1140
L V POLICE HC AK CRI 2009-404-373 4 March 2010
[1] This is an appeal against Mr L ’s conviction for an offence against s 56(1) Land Transport Act 1998 (driving with excess breath alcohol). Mr L has been convicted on previous occasions of similar offences.
[2] The appeal centres on Mr L ’s contention that there was, in the course of his processing by the Police Officer concerned, a breach of s 77(3) of the Land Transport Act, which relevantly 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; ...
[3] It is not alleged that Mr L did not have the benefit of the 10 minute period stipulated in s 77(3) for the purposes of reflecting upon and deciding whether he wished to request a blood test. Mr L decided not to take that extra step. Rather what is alleged is that the advice required by that subsection (i.e. of the positive result and his right to elect to have a blood test) was not given to him “without delay” after the result of his evidential breath test had been ascertained.
[4] There is a long (at least 30 year) tradition of breath alcohol appeals brought on this ground, with varying degrees of success. One of the side issues raised by this appeal is whether the Supreme Court’s dicta in Aylwin v Police [2008] NZSC 113 at [17], signals that the prospects of success on this ground in the future has diminished.
[5] In the present case, as in a number of others, the “delay” contention is based principally on a discrepancy between the times recorded on the evidential breath testing device itself and the times recorded by the police officer on the relevant forms, those latter times having been taken from the Police Officer’s own watch (a
fact expressly recorded by him on the relevant form). The District Court Judge accepted that there was a discrepancy of some 12 minutes between the times shown on the device and on the Officer’s watch.
[6] In part because of this discrepancy the appellant contends that the evidence upon which the finding of compliance with s 77(3) was based was not reliable. This “unreliable” evidence (ie the times taken from the Officer’s watch and recorded on the forms) formed the basis for the District Court Judge’s conclusion that there was only a 7 minute gap between the commencement of the evidential breath test procedure (at 23.45) and the advice to Mr L of that result and the blood test option (at 23.52). Mr Heather for Mr L accepted before me that, in the event that the evidence to this effect was reliable, then there would be no tenable basis on which he could pursue the delay argument.
[7] However Mr Heather says that if due regard is had to the evidence which was reliable, namely the report time recorded on, and printed out from, the breath testing device (23.33) and the time when it is accepted that the Police Officer advised Mr L of his right to request a blood test (23:52), then there was a 19 minute delay between commencement and advice. He says such a delay plainly contravenes the requirements of s 77(3) and thereby rendered the results of the evidential breath test inadmissible.
[8] Counsel for the respondent, Ms Longdill, accepted that a delay of 19 minutes would be likely to constitute an issue in terms of s 77(3), and that must be so, at least in the absence of any explanation for such a delay. That said, however, I note in passing that delays of up to 17 minutes have, in some cases, been held not to breach
the s 77(3) requirement: Quigley v Police HC Hamilton AP46/93, 8 June 19931.
[9] The appellant also submits that the learned District Court Judge wrongly concluded that the decision of Duffy J in Wheeler v Police HC Auckland CRI-2009-404-150, 31 August 2009 was distinguishable on the facts. In that case Duffy J allowed an appeal in circumstances where there was a similar discrepancy
between the times recorded on the breath testing device and the relevant Officer’s watch,
[10] Lastly, the appellant says that the breach of s 77(3) cannot be saved by s 64(2) of the Land Transport Act.
Was the evidence as to the times taken from the Police Officer’s watch reliable?
[11] Mr Heather raised a number of matters that he said went generally to the reliability of the Police Officer’s evidence as to timing in this case. As well as the simple existence of a discrepancy between the times shown by the evidential breath testing device and on the Police Officer’s watch (a matter which I do not understand Mr Heather to be contesting), he referred to:
a) The absence of any explanation for that discrepancy;
b)The fact that the Officer (by his own admission) 2 made a mistake on the EBT checklist form by writing the time “23.45” instead of “23.52” in the box next to the words “subject advised of the test result without delay”.
[12] Mr Heather made further submissions relating to the way in which the amount of the discrepancy was calculated by the District Court Judge and the time it would take for the Police Officer to read the advice form to Mr L but I do not regard these as relevant to the principal inquiry in this appeal, namely whether there was a reliable evidentiary basis for the District Court Judge’s conclusions.
[13] Ms Longdill for the respondent submitted that the evidence of the Police Officer’s watch was reliable and that it in fact showed that there was, at most, only five minutes between the ascertainment of the results of the test and Mr L being advised of his rights.
[14] As I have indicated, the Officer recorded on the EBT Checklist that the evidential breath test process commenced at 23.45 and Mr L was informed of the result and his rights at 23.52. Although the EBT Checklist form first shows 23.45 as the time Mr L was advised of the result of the test, it subsequently shows 23.52 as the time that the Officer read the advice form to Mr L , and this is consistent with the time recorded on the advice form itself. As noted above, the Officer gave evidence that his initial recording of “23.45” was in error.
[15] Ms Longdill says that logically a further two minutes needs to be subtracted from the 7 minute period between 23.45 and 23.52 to account for the time it takes to operate the breath testing device, for two tests to be undertaken, and for the device to emit the results. She says that the fact that these processes take approximately two minutes is borne out by the print-out from the device itself which, in Mr L ’s case, recorded the test procedure as commencing at 23.31 and ending at 23.33.
[16] The District Court Judge expressly recorded that the Police Officer in the present case was a reliable and credible witness: paragraph [6] of the judgment under appeal.
[17] However in light of the Supreme Court’s dicta in Austin, Nichols3, and because there is a dispute between counsel as to the proper interpretation and analysis of the evidence that was before the District Court as to critical events and times, I have carefully reviewed the transcript of the evidence and the exhibits in the District Court. With reference to Mr Heather’s arguments noted above, my conclusions are that:
a) A discrepancy between the times recorded by an evidential breath testing device and the times taken by a Police Officer from his watch cannot, without more, lead to a conclusion of unreliability. Rather, what is required is a credible and consistent evidentiary basis from which the critical times can reliably be ascertained. In this case that evidentiary foundation can be found in the times taken from the Officer’s watch and recorded by him on the relevant forms;
b)An explanation for the discrepancy that existed would not materially advance matters. While it seems inescapable that either the testing device or the watch was not showing the correct time, that is generally irrelevant in a case where:
i)the times ultimately relied on were all taken from the same source; and
ii)it is the intervals between those times that are important, rather than the times themselves;
c) While the Officer accepted he had made a mistake in relation to one entry on the EBT Checklist form, that mistake was rectified by a subsequent entry, and the remainder of the times filled out by him both on the EBT form and on the Advice form were consistent both with each other and with his oral evidence; and
d)In these circumstances the District Court Judge was entitled to rely on the evidence from the Officer’s watch and recorded by him on the relevant forms.
[18] In so finding I am mindful of the fact that Mr Heather’s contrary analysis as to the times in issue derives some support from paragraph [24] of Duffy J’s decision in Wheeler in which Her Honour held that the combined effect of s 75A (which requires a certificate of compliance for the relevant breath testing device to be produced in evidence) and s 64(4) and (5) is to create a statutory presumption that an evidential breath test is to be treated as correct and reliable – not just as to result, but as to the times recorded by the device. It is on this basis that Mr Heather effectively contends that the best evidence of the commencement time is that provided by the testing device.
[19] In this respect, however, I accept and agree with Ms Longdill’s submission that the presumption of correctness created by the relevant statutory provisions relates only to the outcome of an evidentiary breath test, not to incidental matters
such as the time the test was undertaken or completed. That the presumption is limited in this way is made clear by the emphasis on the word “result” in both s 64(4) and (5) and on the Certificate of Compliance itself, which stipulates that:
The maximum period permitted during which a breath test result must be obtained is 12 months from the date of issue of this certificate [emphasis added].
[20] Accordingly, I conclude that the evidence of the times from the Officer’s watch and recorded by him on the form was reliable and formed a proper basis upon which the District Court Judge could conclude that there was no operative delay in terms of s 77(3).
Section 64(2)
[21] Even if I am wrong in my conclusions as to the reliability of the evidence as to times, and Mr Heather is correct in his contention that it should be concluded that there was up to a 19 minute delay between result and advice, I also accept Ms Longdill’s submission that s 64(2) would operate to rectify any resultant breach of s 77(3) here.
[22] Section 64(2) provides:
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.
[23] Although the wording of s 64(2) is, on its face, difficult to read together with the wording of s 77(3) (in that s 64(2) is concerned with the existence of a defence while s 77(3) is concerned with admissibility) it is well established that the former is to apply to the latter. More particularly, in Police v Tolich (2003) 20 CRNZ 150 (CA) the Court of Appeal said at paragraphs [21] and [22]:
It is plain that when enacting the 2001 amendments the legislature deliberately intended that s 64(2) should apply to the requirements of s
77(3). Section 77 was specifically brought, for the first time, within the scope of the reasonable compliance provision.
Although s 77(3) is expressed in terms of a test of admissibility the specific reference to it in s 64(2) indicates that the words "it is no defence" are to be
read as contemplating the evidential characterisation of s 77(3). This must be so given that a close examination of the whole of s 77 shows that subs (3)(a) is the only element in the whole of the section to which s 64(2) could possibly have any application. Section 77 subs (1) and (2) create the conclusive presumption; s 77(3)(b) relates to the person who undergoes the test and the remaining subsections are concerned with the position of a suspect and not procedures to be undertaken by enforcement officers.
[24] The means by which it is to be established in any given case whether, in terms of s 64(2), there has been “reasonable compliance” with the relevant statutory provision (here, s 77(3)) was restated by the Court of Appeal in R v Aylwin [2008] NZCA 154, (2008) 24 CRNZ 87 at [41]:
The test as to whether there has been reasonable compliance has been seen as involving the consideration of two questions, as set out in Soutar v Ministry of Transport [1981] 1 NZLR 545 at 550 (CA) and Aualiitia v Ministry of Transport [1983] NZLR 727 at 729 (CA). The first question is whether the extent of the non-compliance gives rise to a reasonable doubt about the correctness of the result. The second question is whether there is a risk of the defendant suffering injustice or unfairness. The need for this test to be applied liberally was reiterated by this Court in Shaw v Police CA212/95 21 September 1995. Accordingly, where the non-compliance does not create the possibility or likelihood of error, it should be saved by reasonable compliance.
[25] In order to answer either of the two questions posed here by the Court of Appeal it seems to me to be necessary first to understand the purpose of the stipulation in s 77(3) that a suspect be advised without delay after a positive result is ascertained that he has 10 minutes to request a blood test.
[26] Some recent cases have tended to separate out the interest protected by the “without delay” requirement from the interest protected by the 10 minute reflection period. As regards the former there has been emphasis on the (undoubted) importance of detaining persons for no longer than is reasonably necessary for the purposes of processing under the Act: see for example Kavanagh v Police HC Christchurch CRI-2005-409-000231, 27 February 2006, at [12]. By contrast it has long since been recognised that the 10 minute reflection period is designed to ensure that a suspect has a reasonable and uncluttered period of time in which to consider whether to progress to the blood test stage. That right has assumed even greater importance in recent years because (as the Supreme Court noted in
Aylwin v Police), a blood test is now the only way that a person may be able later to contest the correctness of the result of an evidential breath test.
[27] In Lawrence v Ministry of Transport [1982] 1 NZLR 219 (CA) the Court of Appeal did not draw a distinction between the interest protected by the 10 minute reflection period and the interest protected by the “without delay” requirement (that case being concerned with the predecessor to s 77(3), which provided that after the result of an evidential breath test has been ascertained a motorist must be advised “forthwith” that he can request a blood test). Woodhouse P writing for the Court said at 221:
The purpose of the statutory period of 10 minutes and the use of the word “forthwith” is to enable a suspect to have adequate time without undue pressure within which to make up his mind about a blood test. Provided that period is allowed to run and is closely related in time to the result of the test
... then the purpose of s 58(4) has been discharged.
[28] It seems to me that the logic of this is unassailable. If a person has already been unreasonably detained prior to receiving the result of his breath test and being advised of his right to elect a blood test, there is a real risk that he might be motivated to refuse that blood test simply because he wishes the process to end as soon as possible. Such a scenario necessarily results in the purpose of the 10 minute reflection period being undermined.
[29] Turning now to the present case, the first question I must ask is whether the assumed delay of up to 19 minutes question gives rise to a reasonable doubt as to the correctness of the evidential breath test that formed the basis upon which Mr L was convicted. It is difficult to see how that could be so; any possible link between any delay and correctness is far too remote. There is an obvious contrast, for example, between the present circumstances and cases involving errors that give rise to potential contamination of the relevant samples, such as the hypotheticals considered by the Court of Appeal in Aualiitia at 730.
[30] The answer to the second question that is relevant to the issue of reasonable compliance, is somewhat less clear cut. If there was indeed a 19 minute delay (which I do not accept) then there is a theoretical risk that Mr L might have felt
undue pressure to refuse a blood test, thereby depriving himself of the ability ever to contest the results of his breath test. In addition, it is material that Mr L had already had to wait for some time prior to taking his evidential breath test, due to the number of people waiting to be processed on the booze bus on the night in question. The fact of this delay was noted by the Police Officer on the EBT Checklist.
[31] There was, however, no evidence as to any pressure Mr L might have felt, nor any intimation that he would, on reflection, have wished to have progressed to the blood test. Moreover, Mr Heather did not in fact take the “prejudice” point – his written submissions did not refer to s 64(2) at all and his oral submissions focussed only on the argument I address in paragraphs [32] – [39] below. Accordingly, and on balance, I do not consider that the risk of injustice here, when considered in tandem with what I have concluded in relation to the first limb of the “reasonable compliance” test, is sufficient to warrant concluding that the theoretical
19 minute delay created the possibility or likelihood of error such that s 64(2) would not apply.
[32] As I have noted, Mr Heather did not focus on either limb of the reasonable compliance test that was restated by the Court of Appeal in Aylwin. Rather, in his oral submissions he contended that it was the absence of any explanation for the (alleged) 19 minute delay that meant that there could be no reasonable compliance in terms of s 64(2). I accept that there is certainly High Court authority for such a proposition: Kavanagh and Ariki v Police HC Auckland CRI-2007-404-000174,
6 November 2007.
[33] Even putting to one side for the purpose of the present analysis Ms Longdill’s point that there could be no explanation because there was in fact no significant delay, I consider that this argument cannot succeed, for the reasons that follow.
[34] I accept that the absence of an explanation is plainly relevant to the s 77(3) inquiry, namely whether the advice was given “without delay”: see by way of example Liddington v Ministry of Transport HC Hamilton AP 157/86, 18 November
1986, Quigley and McCarthy v Police HC Wellington AP312/02, 19 February 2003
Chisholm J at [10]. That is because if a reasonable explanation exists as to why the
Officer took as long as he did to give the advice required by s 77(3) then there is, in effect, no meaningful “delay” at all.
[35] By contrast, s 64(2) is not necessarily engaged until it has been determined that there has been a breach of one of the statutory provisions referred to in that subsection. Thus in the present case a s 64(2) inquiry is predicated on a pre-existing finding that the s 77(3) advice was not given “without delay” and, necessarily then, that the amount of time taken was not reasonably explicable. If s 64(2) were to be interpreted as operating in a s 77(3) delay case only where there is no reasonable explanation for the delay then it would in effect never be capable of curing non- compliance with the s 77(3) timely advice requirement. That cannot be correct.
[36] I would stress, however, that this does not mean that the reasons for non- compliance will not potentially be relevant to the Court of Appeal’s two stage R v Aylwin test in other cases, depending on the nature of the non-compliance and the particular facts.
[37] Although the decision in Kavanagh refers to the Court of Appeal’s decision in Aualiitia (later cited by that Court in R v Aylwin as authority for the two stage “reasonable compliance” test) I respectfully do not consider this decision (or the others cited by Fogarty J in the context of s 64(2)) to be authority for the proposition that there must be a reasonable explanation for any s 77(3) delay in order for s 64(2) to apply.
[38] Rather, it seems to me that the passages from the earlier cases quoted in paragraphs [7] to [11] of the Kavanagh judgment merely involve fact-oriented explorations of the first limb of the test in Aualiitia that was reiterated in R v Aylwin, namely whether the relevant omission, delay or error might call into question the correctness of the result of the test. While (as I have said) I accept that such an exploration may (depending on the facts of the case) involve considerations of the nature and reasons for a particular breach, I do not consider it renders such an exploration mandatory in a case such as the present where there can be no conceivable connection between the alleged s 77(3) delay and the correctness of the result. In this respect it is, I suspect, significant that none of the authorities from the
Court of Appeal referred to by Fogarty J in Kavanagh in fact involved an allegation of delay under s 77(3) or its predecessors.
[39] The decision in Kavanagh (and the analysis in it of the relevant authorities) was heavily relied on by Keane J in Ariki and thus my reservations about the Kavanagh analysis apply equally to that decision. As well, however, I note that Keane J was plainly influenced by the fact that (by contrast with the present case) the EBT Checklist was not produced by the Police Officer in Court and he did not give evidence as to the reasons for the 9 minute delay and was not cross-examined on the issue.
[40] It may also be of some relevance that both Kavanagh and Ariki were decided before the Supreme Court’s decision in Aylwin v Police, in which the Court’s quite deliberate concluding comment was that:
Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable. The great majority of drivers comply with their obligations in this respect. A small minority do not. Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences. The Courts must give full effect to that clear Parliamentary indication.
[41] For all these reasons I consider that any breach of s 77(3) here (which, as I have said, I do not in any event accept) would be saved on the present facts by the operation of s 64(2).
Is the decision in Wheeler distinguishable?
[42] The learned District Court Judge declined to follow the decision in Wheeler on the grounds that it was factually distinguishable. No doubt in recognition of the fact that I am not in any event bound by that decision, Ms Longdill also ventured before me that the decision was, in certain important respects, wrongly decided.
[43] As to the first matter, I consider that there was a tenable basis upon which the District Court Judge could differentiate the facts of the present case from the facts in Wheeler. In particular, the fact that in the case before me the Police Officer
expressly wrote on the form that all times recorded on it were taken from his watch
(which they plainly were):
a) Signifies a recognition by the Officer at the time of the test that there was a discrepancy between the times shown by his watch and by the device; and
b)Provides an evidential platform upon which it can logically be concluded or inferred that all the relevant times were recorded consistently and on the same basis.
[44] It seems that neither of those features was present on the facts of Wheeler and based on Duffy J’s comments at (for example) paragraphs [22] – [25], [31] - [32] and [49] of her judgment I consider that, had they been, her Honour may well have reached a different conclusion. In this respect I consider the facts of the present case to be more akin to those in Geard v Police HC Whangarei CRI-2007-488-66,
5 May 2008, than the facts in Wheeler. In Geard Keane J was prepared to uphold the finding by the District Court Judge that there was no delay because the timings of the constable's watch were to be preferred over the printout from the testing device.
[45] For these reasons I consider that the learned District Court Judge was entitled to find that Wheeler was distinguishable and that he was not obliged to apply that decision in the instant case. I have also already expressed my reservations as to one relevant legal aspect of the Wheeler decision in paragraphs [18] and [19] above.
[46] The appeal is accordingly dismissed.
Rebecca Ellis J
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