Lyver v Police
[2013] NZHC 47
•4 February 2013
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2012-416-19 [2013] NZHC 47
JARRETT STEPHEN LYVER
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 4 February 2013
Counsel: J C Mathieson for the Appellant
J D Lucas for the Respondent
Judgment: 4 February 2013
(ORAL) JUDGMENT OF WOODHOUSE J
Solicitors:
Mr J C Mathieson, Rishworth Wall & Mathieson, Solicitors, Gisborne
Mr J D Lucas, Elvidge & Partners, Office of the Crown Solicitor, Napier
LYVER V POLICE HC GIS CRI-2012-416-19 [4 February 2013]
[1] This is an appeal against conviction under s 56(2) of the Land Transport Act for driving with excess blood alcohol, having been convicted for the same, or one of the specified related offences, at least twice before.[1]
Issue
[1] Police v Lyver DC Gisborne CRI-2012-016-000068, 28 September 2012.
[2] The essential issue is whether a blood sample could be taken without the appellant’s being required under s 69(4) of the Act to undergo without delay an evidential breath test, expressly refusing to undergo the breath test and with this occurring at the place to which the driver had been taken following a roadside breath screening test.
Statutory provisions
[3] The most relevant statutory provisions are as follows:
69 Who must undergo evidential breath test
(1) An enforcement officer may require a person to accompany an enforcement officer to a place where it is likely that the person can undergo an evidential breath test or a blood test (or both) when required to do so by the officer, if,—
…
(ab) in the case of any other person, the person has undergone a breath screening test under section 68 and it appears to the officer that the proportion of alcohol in the breath of the person who underwent the test exceeds 400 micrograms of alcohol per litre of breath; …
…
(4) If a person—
(a) Has accompanied an enforcement officer to a place under this section; or
(b) Has been arrested under subsection (6) and taken to or detained at a place,—
an enforcement officer may require the person to undergo without delay at that place an evidential breath test (whether or not the person has already undergone a breath screening test).
70A Right to elect blood test
(1) If the result of a person's evidential breath test appears to be positive, the person has the right, within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), to elect to have a blood test to assess the proportion of alcohol in his or her blood.
(2) This section is for the avoidance of doubt.
72 Who must give blood specimen at places other than hospital or surgery
(1) A person must permit a medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—
(a) The person fails or refuses to undergo without delay an evidential breath test after having been required to do so by an enforcement officer under section 69; …
Facts
[4] There is no issue in relation to the facts. They are conveniently taken from
the District Court Judge’s summary:
[1] On 18 December 2011 Jarett Lyver crashed his car on Main Road, near Tologa Bay, around 6-8 pm in the evening. Constable Reeves located the defendant at the defendant’s residence in Tologa Bay at around 9.40 pm. He drove the defendant back to where the defendant’s car was crashed, so that Mr Lyver could retrieve some personal belongings from it.
[2] At 10.10 pm Mr Lyver took and failed a roadside breath screening test. Constable Reeves then required Mr Lyver to accompany him to the Tologa Bay police station for the purpose of undertaking “an evidential breath test or a blood test (or both)”,[2] and at the appropriate time, gave Mr Lyver relevant advice of his rights under the New Zealand Bill of Rights Act, and a caution.
[2] Land Transport Act 1988, s 69(1).
[3] Thus far, the sequence of events is unremarkable, and no issue arises from it.
[4] However, at 10.12 pm Mr Lyver said to Constable Reeves, “I want a blood test.”
[5] As a direct result of that statement Constable Reeves, once back at the Tologa Bay police station, did not require the defendant to undergo an evidential breath test. The blood sample that was instead taken from Mr Lyver at that time was later found to contain 99 milligrams of alcohol per
100 millilitres of blood. Mr Lyver was then charged under s 56(2) of the
Land Transport Act.
[5] The statement by Mr Lyver, referred to in paragraph [4], was a statement at the roadside. Mr Lyver and the enforcement officer were back at the Tologa Bay police station approximately seven minutes later.
[6] There were further findings of fact by the Judge a little later in his decision. These also included some findings of law. They are as follows:
[13] The agreed factual sequence in this case establishes that:
MrLyver was validly required to accompany the constable pursuant to s 69 for the purposes of “an evidential breath test or a blood test (or both)”; and
Mr Lyver had received appropriate and timely advice under the New
Zealand Bill of Rights Act and a caution
[14] Mr Lyver’s unequivocal demand – “I want a blood test” – in circumstances where he knew he was being transported to the police station for either a breath test or a blood test or both, is a sufficiently clear anticipatory refusal to undergo an evidential breath test for the enforcement officer properly to act on. It brings the defendant within the ambit of s 72(1)(a).
[15] In other words an enforcement officer is not required nevertheless to compel the person to undergo an evidential breath test, but can properly move straight to the blood test, in cases where, after appropriate and timely advice under the New Zealand Bill of Rights Act, a person who has failed a roadside screening test chooses explicitly to move straight to a blood test.
District Court judgment
[7] The essence of the Judge’s reasons are at [15]. The Judge also referred to the
following:
(a) The fact that there are two distinct offences in s 56 – driving with excess breath alcohol and driving with excess blood alcohol.
(b)Section 69(1) empowers an enforcement officer to require a person to go to the place to undergo an evidential breath test or a blood test or both (emphasis added).
(c) The Judge referred to observations of Cooper J in Police v Norman[3]
[3] Police v Norman HC Tauranga CRI-2004-407-0047, 23 March 2005.
as follows:
[28] … [Drawing a] the distinction between offences involving excess breath alcohol and those involving excess blood alcohol, seems to me much more straightforward and more likely to be in accordance with the legislative intent, given the way in which the Act distinguishes between the two kinds of offence.
…
[32] … Where the charge is driving with excess blood alcohol, earlier defects in the administration of the evidential breath test possibly affecting the result of that test do not matter.
(d) The Judge also said:
[18] In the particular circumstances of this case, the straightforward solution I have adopted injects “a touch of reality”4[4]into the resolution of this case. It is also in line with the Supreme Court’s desire for pragmatism and realism:
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. A 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.[5]
[4] Ching-Joyce v Police [2012] NZHC 1053 per Chisholm J at [25].
[5] Alwyn v Police [2009] 2 NZLR 1 (SC), at para [17].
[8] In the District Court it had been argued for the prosecution that the reasonable compliance provision in s 64 of the Act applied to the circumstances of
the case. The Judge did not consider it necessary to consider that submission.
Submissions
[9] The essence of Mr Mathieson’s submissions for the appellant were helpfully
summarised in his written submissions as follows:
3.Section 72(1)(a) is directed at a situation where a person has already accompanied, or been detained by, an officer back to “a place” and is then required “without delay” to undertake an evidential breath test in accordance with s 69(4) of the Act. Here, there was no actual requirement to undertake an evidential breath test in accordance with the Act and, therefore, no valid and informed refusal under s 72(1)(a).
4.That being the case, and given the fact s 56(2) of the Act (which the appellant was convicted) requires the blood specimen to have been taken under s 72 (as an essential element of the offence), a
‘reasonable compliance’ argument cannot be sustained.
[10] Mr Mathieson cited the decision of the Court of Appeal in R v Deam[6] and in particular part of a statement at [20], which I set out in full:
The first question of law is whether there is a necessity to advise the suspect that the suspect is required to comply with a request to undergo an evidential breath test without delay. In our view the statutory provisions are clear. There is a need to advise a suspect of the need to comply without delay. Section 72(1)(a) provides that a person must permit a blood specimen to be taken if the person “fails or refuses to undergo without delay an evidential breath test after having been required to do so” (emphasis added). In their ordinary meaning the words “required to do so” must refer back to the whole of the preceding phrase, including the timing element of “without delay”. There is no reason in either language or policy terms to restrict the words “required to do so” merely to the act of undergoing the evidential breath test.
[6] R v Deam [2003] 1 NZLR 57 (CA).
[11] Mr Mathieson submitted that the statutory requirement to make the formal request once the driver is back at what is usually a police station, and to do so with the direction that the evidential breath test must be provided without delay, are both important and essential steps in the statutory procedure. He submitted that the statutory provisions contained within them the requirement that a driver be adequately informed and that if there is a refusal to undergo an evidential breath test that it be an informed refusal. He referred to the importance of the basic statutory provisions that follow in s 72 and the importance of the 10 minute delay period available to a driver. It perhaps encapsulates the heart of Mr Mathieson’s submission
on the first and central aspect of the appeal, in response to the District Court judgment, that what occurred here goes far beyond what the Supreme Court was talking about in the Alwyn case as a technical breach.
[12] On the question of reasonable compliance Mr Mathieson submitted that the facts of this case do not meet what is contemplated by s 64(2). He submitted that there were four reasons for this (adopting a summary in Brookers):
(a) The non-compliance was extensive. Relying on the Court of Appeal’s decision in Aualiitia v Ministry of Transport,[7] Mr Mathieson submitted that in this case there was a major departure from the scheme of the Act and that it is a departure not protected by the reasonable compliance provision. Mr Mathieson illustrated this aspect by submitting that it might have been reasonable compliance if
[7] Aualiitia v Ministry of Transport [1983] NZLR 727.
the enforcement officer at the s 69(4) stage had omitted reference to compliance without delay, but it is not reasonable compliance if the entire step is omitted.
(b)There was in this case material prejudice in that Mr Lyver was not informed of particular rights at the police station and it could have been that he would have passed an evidential breath test.
(c) There is reasonable doubt as to whether an ingredient of the charge in this case has been proved. This, as I understood it, was on the basis that because the procedures had not been followed the certificate of the blood alcohol level was not admissible in evidence and as a consequence the particular charge would be not proved.
(d)The fourth element on reasonable compliance is whether the enforcement officer acted reasonably in exercise of a discretion. Mr Mathieson submitted that the matters in issues here did not involve exercise of a discretion. They are steps which an enforcement officer can take without exercising a discretion and which the enforcement
officer is required to take. Mr Mathieson had earlier referred to this aspect and the discussion of the Court of Appeal in Parker v Ministry of Transport.[8]
[8] Parker v Ministry of Transport [1982] 1 NZLR 209.
[13] For the respondent, Mr Lucas in his written submissions, and for reasons outlined there, supported the reasons of the Judge. In his oral submissions he also noted the following:
(a) It is clear from the facts that Mr Lyver was driving with excess alcohol in his blood.
(b)Mr Lyver gave evidence and in the course of that evidence did not raise any concern as to a lack of understanding of the procedure or material prejudice. The only evidence from the appellant concerned an associated charge of careless use.
(c) There was a point of fact, earlier recorded, that there was a gap of only seven minutes between the police officer’s request to the appellant to accompany the police officer to the police station, which request was followed by the appellant’s statement that he wanted a blood test, and arrival of the two at the Tologa Bay police station.
Discussion
[14] I am satisfied that the District Court Judge was correct and essentially for the reasons he stated.
[15] The Court of Appeal’s decision in Deam[9] does not in my judgment assist the appellant. I consider that the District Court judgment is consistent with the broad principle contained in Deam. This is that specific provisions of the Act need to be considered in the full statutory context – that is to say, assessing the meaning of
individual provisions by reference to all other relevant provisions and in this
particular area of the Act by having regard to the broad scheme of the breath and blood alcohol provisions. Deam also effectively emphasises the principle that submissions of fact need to be related to all relevant facts and not just those applying in a given case at one point of time in that case.
[9] R v Deam above n 6.
[16] In this case there was a critical finding of fact by the Judge. This is that, in as many words, the appellant had made clear that he would not undergo an evidential breath test. That is not precisely the way the Judge put it, but I am satisfied that that is the meaning of the conclusion that he recorded, and being a conclusion of fact. This finding of fact is not challenged. What is challenged is the relationship of the finding of fact to the statutory provisions. In my judgment the Judge was justified in finding that there was what he called a “anticipatory refusal”. It was a finding that the Judge held essentially made clear to the police officer that there was no point in going through – and effectively going through again in broad terms – the precise steps mandated by s 69(4).
[17] In addition to the conclusions of the Judge I consider it is relevant to note that the normal sequence – that is, the s 69 four steps – at least in important respects, are for the driver’s benefit. And drivers can, after an evidential breath test, elect to have a blood test: s 70A. The appellant in this case, being a person with five previous drink driving convictions, in effect elected to proceed directly to a blood test. I agree with Mr Mathieson’s submission that the fact that the appellant has previously been convicted for drink driving offences does not mean that the statutory procedures do not apply to him. The previous convictions do not mean that the appellant should be treated differently from other drivers. But that is not the point here. A reasonable inference may be drawn from the unchallenged evidence that the appellant, with knowledge, made an election.
[18] If I am wrong in my conclusions, and therefore if the District Court Judge was wrong, I am satisfied that this is a case where the reasonable compliance provision should be applied. I have taken note of the careful submissions of Mr Mathieson in that regard. But for the reasons just adverted to I am satisfied that, if need be, s 64(2) does apply in this case.
Decision
[19] For these reasons the appeal is dismissed.
Woodhouse J
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