Lewis v Police

[2018] NZHC 3115

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-71

[2018] NZHC 3115

BETWEEN

RUTH MARGARET LEWIS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 November 2018
Counsel:	B J Dawson for appellant D M Helm for respondent
Judgment:	29 November 2018

RESERVED JUDGMENT OF DOBSON J

[1]                 Following a judge alone trial, the appellant (Ms Lewis) was found guilty of a charge of driving with excess breath alcohol, contrary to the provisions of s 56(1) of the Land Transport Act 1998 (the Act).1

[2]                 Before Judge Hobbs, Ms Lewis had defended the charge on the narrow basis that there had been non-compliance with the requirement for the Police to afford her a 10 minute period to consider whether to undergo a blood test, and that the deficiency could not be cured under the so-called reasonable compliance provision in s 64(2) of the Act.

1      Police v Lewis [2018] NZDC 18565.

LEWIS v POLICE [2018] NZHC 3115 [29 November 2018]

Circumstances in which Ms Lewis was charged

[3]                 There was no oral evidence at the hearing. Instead, the arresting Police constable’s formal statement was admitted by consent, with no cross-examination. On the part of the process in issue, the constable’s statement was as follows:

21.Whilst conduct EBA procedures, I used my personal wrist watch to keep time. This is a black G-Shock Protection. It has both digital and analogue time with the analogue having both hour, and minute, hands the whole way round the watch, and the digital in a screen down the bottom. The digital screen is in 12 hour format, and includes seconds.

22.During EBA procedures, LEWIS was persistent on speeding procedures up and asking when she could go home.

23.When finishing Block K on the Breath and Blood Alcohol Procedure Sheet (POL515), the advice prior to the ten minute period, I advised LEWIS we had to wait ten minutes so she could decide whether she wanted to elect blood, I then asked her if she wanted to speak to a lawyer, she advised no, I then wrote down the time in block K, LEWIS then signed the sheet and I moved on to Block L.

24.In Block L I then wrote the time on my watch, 4:00am in the first box. During this period, LEWIS kept asking to cut the ten minute period cut short as she had already decided she did not want blood. We advised her we weren’t allowed to talk during the ten minute period. LEWIS did not follow these instructions and consistently asked when time was up.

25.After a while, I looked down at my watch and the time was 04:10. I do not remember exactly how many seconds had passed. I advised we can stop there as I advised her about the ten minute period before I asked her to sign Block K.

26.We then finished completing EBA procedures, and we gave LEWIS a lift home.

[4]                 On the basis of this explanation of the testing process, Mr Dawson argued that the Police could not prove beyond reasonable doubt that the requirement for Ms Lewis to be given 10 minutes to consider whether to undergo a blood test, as required by s 77 of the Act, had been complied with. On that point, the Police conceded that the constable’s absence of a record of the seconds past 4.00 am and then past 4.10 am admitted of the prospect that the period of time could have been between nine minutes and one second and nine minutes 59 seconds.

[5]                 Mr Dawson argued that the procedure adopted could also not be saved by Police reliance on reasonable compliance under s 64(2) of the Act, which provides:

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.

[6]                 Mr Dawson submitted that before the reasonable compliance provision can be relied on, the Police must provide an explanation for the lack of compliance. None was offered in the constable’s statement.

The District Court decision

[7]                 The POL515 form completed by the constable as he was undertaking the process, as was referred to in his statement, was also adduced by consent. On the face of it, the Judge was inclined to the view that the 10 minute period had been given to Ms Lewis to decide whether or not to undergo a blood test. However, on the basis of the Police concession that the constable did not record the seconds past the minute at which the period commenced and concluded, the Judge accepted that the Police could not prove beyond reasonable doubt that 10 minutes was provided.

[8]                 In considering whether the reasonable compliance provision could be invoked, the Judge rejected Mr Dawson’s submission that there was no explanation in the Police evidence as to why the full 10 minutes had not been provided:2

[13]      … There may not be an express explanation from the constable in question but it is uncontested evidence that the defendant kept asking the constable to cut short the 10-minute period as she had already decided she did not want to give blood. The defendant consistently asked when the 10-minute period was up. There is no evidence to suggest the defendant was likely to change her mind in respect of a blood test in the maximum 59 seconds that may have been left in the 10-minute period. As noted in Constable v Police, there is no suggestion in this case that the evidential breath test result was incorrect or that the prosecution have failed to prove any other ingredient of the offence. In Constable v Police Lang J thought the reading produced by the evidential breath test was also significant, it being in that case 547 micrograms of alcohol per litre of breath, a level Lang J described as well over the permissible limit. In this case the reading was 574.

[14]      In the circumstances of this case I am satisfied there is no risk of injustice or unfairness to the defendant if the result of the evidential breath test is admitted into evidence by way of the reasonable compliance provisions. At worst, nine minutes and one second was provided, possibly more, and

2      Citations omitted.

potentially almost 10 minutes. The defendant was adamant that she did not want to give blood and wanted the process truncated. The constable resisted the defendant’s efforts to do so as best he could. As I have said, there is, in my view, no risk of injustice or unfairness and the prosecution have proved on the balance of probabilities reasonable compliance with s 77 and therefore the evidence of the failed evidential breath test is admissible.

[9]Consequently, the Judge found Ms Lewis guilty.

Argument on the appeal

[10]             On appeal, Mr Dawson submitted that the obligation on the prosecution to provide reasons for non-compliance was a positive one, so that the Court could not infer an explanation from a narrative of events that did not specifically address the point. In oral argument, Mr Dawson went further and said that the Judge’s reasoning reflected less than a properly drawn inference. He submitted that it could only be a matter of invention or speculation on the Judge’s part in identifying an explanation for the non-compliance, and being satisfied about it.

[11]             Mr Dawson’s written submissions suggested that the terms of the Judge’s analysis incorrectly transferred an onus to the defendant to make out some form of prejudice arising from non-compliance with the 10 minute requirement. That point was not pressed in oral argument.

[12]             For the respondent, Ms Helm did not resile from the concession that had been made by the Police in the District Court. That was to the effect that there had been an element of non-compliance with the requirement for Ms Lewis, who had been breath- tested for the level of alcohol in her system, to be given a full 10 minute period to consider whether to undergo a blood test. On the basis of that non-compliance, the narrow point for determination is whether the prosecution was entitled to invoke the reasonable compliance provisions in s 64(2) of the Act.

Analysis

[13]             Section 64(2) of the Act does not impose an obligation on the prosecution to explain the circumstances or cause of non-compliance with the statutory requirements.

That obligation has been implied, such as in Andrews v Police:3

[43] When s 64(2) is relied on, I accept that [it is] incumbent on an  informant to explain why there has not been strict compliance, or indeed any compliance, with the relevant statutory provisions. The reasonable compliance provision is not intended to excuse the police from complying with the procedural requirements set out in the Act, nor is it intended to relieve the informant of the burden of proof which rests on it. Rather, it is intended, in the defined circumstances, to facilitate the reasonable application of the legislation. If non-compliance cannot be explained by evidence which a court accepts, the non-compliance will not be reasonable.

[14]There was a requirement to similar effect in Talwar v Police:4

[21]   The fundamental point is that the onus is on the prosecution to prove its case. That onus is not confined to the elements of the offence. It extends to all matters upon which the trier of fact must be satisfied before it is entitled to find a charge proved.

…

[29] The reasonable compliance shelter afforded by s 64(2) cannot be entered without an explanation which shows the delay to be reasonable. There is a positive obligation on the prosecution to provide that explanation. The prosecution did not provide any explanation in this case.

[15]             The requirement for an evidentiary explanation for non-compliance with a statutory obligation will always be specific to the circumstances of a given case. For instance, in Andrews, it appears that the circumstances in which the 10 minute requirement was not complied with were revealed by detailed cross-examination of the constable on the sequence of the steps undertaken, and were not adduced as evidence-in-chief to provide the foundation for resort to s 64(2) of the Act.

[16]             If Mr Dawson intended to cast the obligation as a positive one on the prosecution to lead evidence from the officer responsible for the testing process as to why some aspect of non-compliance arose, that would put the evidentiary onus higher than is warranted in the present circumstances. In a range of circumstances, the

3      Andrews v Police [2014] NZHC 141.

4      Talwar v Police [2013] NZHC 315, [2013] NZAR 291.

prosecution may not be in a position to concede there was any non-compliance. If non-compliance is found by the judge, then resort to reasonable compliance will depend on the judge having sufficient evidence to assess whether the circumstances of the non-compliance justify a finding that all the steps taken represent reasonable compliance with the requisite provisions applicable to the case.

[17]             The narrow issue here is therefore whether Judge Hobbs erred in finding that the unchallenged witness statement of the constable provided an explanation for the extent of non-compliance involved.

[18]             That evidence establishes that the constable was using a wrist watch, the digital screen of which displayed the time in seconds. It is also clear that at the outset of the period afforded to Ms Lewis to consider whether to undergo a blood test, the constable’s watch recorded 4.00 am, which he wrote into the appropriate space on the POL515 form. It was equally established that the time on the constable’s watch showed 4.10 am when he began completing the appropriate part of the form that acknowledged the passing of the requisite 10 minute period. Mr Dawson’s criticism of the inadequacy in this evidence is that the Court was left to speculate, for example, whether the constable was unaware of the need to be precise down to the number of seconds, or whether, by 4.10 am, he had forgotten the number of seconds after 4.00 am his watch had shown when he indicated the beginning of the period to Ms Lewis.

[19]             I am not satisfied that level of detail is required for the Court to accept there has been an explanation for the non-compliance. The evidence on timing for this stage of the procedure was that Ms Lewis repeatedly asked to reduce the 10 minute period because she had already decided that she did not want to undergo a blood test. Despite being told that further discussion should not occur, the unchallenged evidence is that Ms Lewis consistently asked when the time was up. The constable was under pressure to reach the end of this stage of the process as soon as possible. Whatever the circumstances in which the constable did not observe the need for the level of precision as to the number of seconds at the start and end of the 10 minute period, he responded reasonably to the predicament he was confronted with. It would subvert Parliament’s evident intention in enacting s 64(2) to exclude evidence of a breath test for lack of

confirmation of the requisite seconds in the last minute of a period, which was implicitly criticised as longer than necessary by the subject of the testing.

[20]             The remaining factors recognised as relevant were the absence of any other doubts about the correctness of the procedure adopted, and the extent by which the breath reading was over the permissible limit. The Judge’s analysis of all those considerations was balanced, and cumulatively were more than adequate for him to conclude that there had been reasonable compliance with the requisite statutory provisions.

[21]             The narrow ground of appeal is accordingly not made out and the appeal is dismissed.

Dobson J

Solicitors/Counsel:

B J Dawson, Wellington for appellant Crown Solicitor, Wellington for respondent