L v Police HC Rotorua CRI 2009-463-15

[2009] NZHC 684

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2009-463-000015

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 May 2009

Appearances: S W Hood for Appellant

C A Harold for Respondent

Judgment:      9 June 2009

JUDGMENT OF KEANE J

This judgment was delivered by Justice Keane on 9 June 2009 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Norris Ward McKinnon, Hamilton

Crown Solicitor, Rotorua

L V POLICE HC ROT CRI 2009-463-000015  9 June 2009

[1]      On 26 February 2009 L   was convicted of refusing on 25 October

2008 to permit a specimen of blood to be taken from him, having been required to do so by an enforcement officer. He was fined $1,000 and disqualified for six months.

[2]      Mr  L    appeals  his  conviction  and  sentence,  challenging  the  Judge’s conclusion that he did refuse to supply a specimen of his blood. His position then was and still is that he did consent. He wished only to be satisfied as to the professional capacity of the nurse who was to take the sample. He had reason to be sceptical, he then honestly considered. She was dressed casually, her hair was dishevelled, she could have been affected by alcohol or drugs. She gave no appearance of being a nurse.

[3]      The Judge, he contends, erred in holding that he elevated that concern to the point where it  became  unreasonable,  deeming it  to  be a condition  negating his consent. The Judge assessed his state of belief objectively. The Judge should have focused on what he actually believed, whether reasonable or not.

Context

[4]      At about 10.30 pm on Saturday, 25 October 2008, Mr L   was stopped by Constable Sylvester at a mobile breath testing point on Ocean Road, Whangamata. He failed the breath screening test and at the Whangamata police station returned a positive  result  when  he  was  breath  tested  evidentially.  The  result  was  660 micrograms of alcohol per litre of breath.

[5]      Constable Sylvester read out to Mr L   the standard form explaining that he had ten minutes within which to elect to have a blood specimen taken for analysis. Otherwise the result would be treated as conclusive. That period began at 10.48 pm. It ran out at 11.02 pm.

[6]      Within that period Mr L   did not elect to have a sample taken and the constable proposed immediately to suspend his driver’s licence. Mr L   said that she had not told him that his ten minute period was complete and requested a blood

sample to be taken. The constable said she would ask a registered medical officer to attend.

[7]      As the constable was completing the blood specimen form the nurse to take the sample, Donna Berry, a registered nurse employed by the Whangamata Medical Centre, arrived. The constable introduced Ms Berry to Mr L   and then read out to him the standard form requirement contained in the blood specimen form:

You are advised that you are required under the Land Transport Act 1998 to permit a registered medical practitioner or medical officer to take for the purposes of analysis a specimen of your venous blood in accordance with normal medical procedures.

Do you consent to the taking of a specimen of blood?

[8]     The constable also read to him that part of the form that sets out the consequences of refusal. In the section of the form setting out the reason why his answer to the question asked was ‘no’ the constable recorded this:

Is the person qualified to take blood? I want to see her credentials – when asked again L   stated yes but wanted to see nurse’s credentials before giving blood.

Decision under appeal

[9]      The sole issue, the Judge said, was whether Mr L   was justified in refusing to permit a blood specimen to be taken because he did not accept, without proof of identity, that Ms Berry was authorised to take it.

[10]     The Judge found that she was dressed in long pants, a sweatshirt, her hair had not been done and she may have appeared dishevelled. Also that she did not provide any identification.  He  accepted  also  that,  at  least  initially,  Mr  L    thought  she appeared to be affected by alcohol or drugs and that she herself was being processed.

[11]     The Judge accepted as well that, as stated in Payne v Goodgame (1986) 2

CRNZ 100, Savage J, ‘if a person has an honest doubt as to the existence of certain facts or set of circumstances then he is entitled to refuse consent and thus lacks mens

rea’. He also noted that, as Savage J said, it will be the exceptional case in which such an honest doubt can be entertained.

[12]     In  this  the  Judge  contrasted  two  cases,  one  relied  on  for  the  defence, Thompson v Police (AP 23/97, HC DUN, 18 September 1990), Holland J, a case of genuine uncertainty, against another, Police v Anania (AP 24/96, WHA, 7 August

1996), where Anderson J held any such claim to be untenable.

[13]     The Judge began from the premise that the question whether there has been a refusal is a question of fact, and that a conditional consent constitutes a refusal; and formulated the question he had to decide in this way, ‘did Mr L   have an honest belief that Ms Berry was an impostor and not a medical practitioner?’ If he did, the Judge held, the charge failed. That, he said, required ‘an assessment of credibility on objective assessment of the circumstances’ against the burden and standard of proof.

[14]     The  Judge  first  found  that  though  Ms  Berry  was  in  casual  attire  and dishevelled, she was tidy and nurses called out at night could be expected to be dressed casually. She had been called on to attend with some haste and had only to take blood. Secondly, the Judge noted, there was no issue that Ms Berry had actually consumed alcohol or taken drugs that evening. Mr L  ’s description of her could only relate to the fact that she had recently been awakened.

[15]     Thirdly, the Judge found, Mr L   had been requested to allow a blood sample to be taken and the form used stated that the sample would be taken by a doctor or medical practitioner. (In this the Judge did not reflect the form.  It  speaks  of a

‘registered medical practitioner or medical officer’). Fourthly, the Judge found Mr L  ’s assertion that Ms Berry was affected by alcohol and drugs and there to be processed herself was not credible. He knew a doctor or nurse was coming to take his blood and she was accompanied by the constable. An immediate introduction followed.

[16]     Fifthly, the Judge accepted the evidence of the constable and Ms Berry that she was introduced to Mr L   as a nurse. They were both adamant and that is the constable’s usual practice. He did not accept Mr L  ’s assertion that she was not. He

had been drinking and was apprehensive about his position. Sixthly, the Judge accepted, though Mr L   denied it, she offered to take him to her car to show him her medical equipment. Finally, the Judge said, if Mr L   had a genuine concern he was aware that he had a right to advice.

[17]     The Judge concluded that while Mr Berry might have had an initial concern about Ms Berry’s capacity to take blood from him, he did not hold an honest belief that she was not a nurse. He held to his concerns despite everything pointing against them. He was not prepared to change unless concrete proof was put in front of him. The condition he imposed was not justified. In reality he refused.

Submissions

[18]     The essential point Mr L  ’s counsel, Mr Hood, takes on this appeal is that the Judge, having stated the correct question to be determined, a question of fact, whether Mr L   had an honest belief that Ms Berry was a medical officer, made an appraisal that was entirely objective.

[19]     Mr Hood accepts that the question the Judge had to ask himself did have an objective flavour. He did have to assess credibility against the context. He did not have lightly to infer that an unreasonable decision was also honest. However, Mr Hood submits, a decision can be honest even if unreasonable. By literally equating honesty with reasonableness, the Judge did not recognise this.

[20]     For the police Ms Harold contends that, to assess Mr L  ’s actual state of belief the Judge was obliged to set what Mr L   asserted it to be against the context and that is what the Judge did. His conclusion was open to him as a matter of ordinary inference and to the point where he could be sure.

Intent to refuse

[21]     The offence with which Mr L   is charged, refusing to supplying a specimen of his breath, is that set out in s 6(1)(a) of the Land Transport Act 1998 , which says

a person commits an offence if he or she ‘fails or refuses to permit a blood specimen to be taken after having been required to do so under section 72 by an enforcement officer’.

[22]     The offence calls for the proof of mens rea. As Eichelbaum J said in Vitullo v Ministry of Transport (HC WN, M 488/87, 8 June 1988), it is for the prosecution to establish that ‘the defendant intended to and did in fact refuse to permit a specimen to be taken.’ A conditional consent, he said, constituted a refusal; and he added this:

The question whether the suspect has refused has to be determined on a consideration of the whole of his conduct and the totality of his statements, set against the background circumstances.

[23]     In Payne v Goodgame (1986) 2 CRNZ 100 Savage J, on the same premise, speaking of an honest doubt, the effect of which can be to make refusal innocent or justifiable, said this

… In the ordinary and usual case, and so no doubt in the vast majority of cases, a person being required to permit a blood specimen to be taken would accept that the person represented to be a doctor was a doctor. It is unlikely he would believe that the person represented to be a doctor was not a doctor, or have an honest doubt about it.

[24]     Savage J went on to say, speaking of the generality of cases:

The person will have been taken by a uniformed traffic officer or constable to a police station or to Transport Department premises before the doctor arrives. When the doctor arrives he will have been introduced to the person as a doctor by one of those officers. In those circumstances it would indeed be an exceptional case where the Court would conclude that the person actually believed the person represented as a doctor was not a doctor or that he had an honest doubt about it.

[25]     And then he said this:

In my view in the circumstances I have outlined the plain inference would ordinarily  be  that  the  person  accepted  the  doctor  as  a  doctor  and  an evidential burden would lie on the person at trial to point to or raise facts which  suggested  otherwise.  It  certainly  would  not  be  sufficient  for  the person merely to say that he had doubts.

[26]     In that case Savage J upheld the conclusion of the Judge at first instance that the prosecution had not excluded an honest doubt. At 10.20 am the officer had introduced the doctor to the defendant as a doctor but the doctor was ‘dressed in

shorts, jandals and an open necked short sleeved shirt’, he was bearded, and he could not supply any identification or evidence of authority.

[27]     In Hercock v Police (HC WN, AP 312/90, 14 March 1991) the same Judge, by remarkable coincidence as Gallen J remarked, reached the opposite conclusion in a case not dissimilar. There the request was made after 1 am at the police station,

‘the doctor was casually dressed, probably wearing jeans, a jersey and soft shoes’, and he could not prove his qualifications or his identity. But there the Judge found the motorist’s stance perverse and unreasonable. Gallen J did not differ.

Conclusions

[28]     As these cases and those to which the Judge himself referred show, Mr L  ’s actual state of belief could only be established by inference against the context, not in some abstract sense, but alive to the distinguishing nuances; and the Judge identified seven.

[29]     Inevitably the issue whether Mr L   held his asserted state of belief and whether that began to be reasonable involved contrasting the subjective against the objective. As long, however, as the Judge marshalled the seven factors on which he relied to fix what Mr L  ’s actual state of mind was he made no error; and none is evident to me.

[30]     The Judge was entitled to conclude that, whatever doubt Mr L   might have had when the nurse first arrived, that must soon have been dispelled. The condition that he imposed qualifying his consent was then not merely unreasonable, it did not reflect  his  actual  state  of  mind.  In  reality Mr  L    refused.  The  appeal  will  be

dismissed.

P.J. Keane  J