M v Police HC Auckland Cri-2009-404-309

[2009] NZHC 2573

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000309

BETWEEN  M

Appellant

ANDTHE POLICE Respondent

Hearing:         3 November 2009

Counsel:         Alistair Haskett for Appellant

Anna Longdill for Crown

Judgment:      18 November 2009

RESERVED JUDGMENT OF HUGH WILLIAMS J

This judgment was delivered by

The Hon. Justice Hugh Williams

on 18 November 2009 at 12:00 midday pursuant to Rule 11.5 of the High Court Rules

……………………………………………..

Registrar/Deputy Registrar

A.The appeal against conviction and the appeals against sentence are both dismissed.

B.       The disqualification of the appellant is to commence at midnight on the night of 19-20 November 2009.

C.       If costs are at issue they are to be dealt with in accordance with para

[100].

Introduction

M V POLICE HC AK CRI-2009-404-000309  18 November 2009

[1]      As a result of an accident in Pakuranga, Auckland, in the early hours of

6 July 2008, the appellant, Ms M  , was charged with careless use of a motor vehicle   and   driving   a   motor   vehicle   with   194   milligrams   of   alcohol per 100 millilitres of blood, against a statutory maximum of 80 milligrams of alcohol per 100 millilitres of blood.

[2]      Following an extended defended hearing on 27 January and 28 April 2009, Judge Wade delivered a reserved judgment on 27 July 2009 convicting Ms M   on both counts.   Then, on 4 September 2009, he fined her $1000 plus Court costs of

$130.00 and analysts’ and medical expenses totalling $173.00 on the blood-alcohol charge and disqualified her from driving for 14 months.   On the careless driving charge she was fined a further $1000.00.

[3]      She  appealed  to  this  Court  against  both  convictions  and  the  sentence imposed, but abandoned her appeal against conviction on the careless driving charge just before the hearing.  It was formally dismissed.

Grounds of appeal

[4]      The appeal was based on the same grounds as those invoked in the defended hearing, namely what was argued to be

a)        Ms M  ’s unlawful detention at the road-side;

b)        Her unlawful detention by being taken to Howick Police station after

Manukau had been nominated;

c)        Unfairness by narrowing access to a lawyer to questioning only;

d)Unfairness by not treating Ms M   with extra care and advising of her lawyer rights;

e)        That the disqualification imposed on the blood-alcohol charge was manifestly excessive.

Facts

[5]      In the early hours of 6 July 2008, at nearly 1 am, a Mr Neil and his wife were driving along Pakuranga Highway in clear conditions on a slightly wet road surface. There was little traffic about.  They were travelling at about 60 kmph against a speed limit in that area of 80 kmph when their vehicle suffered an “almighty whack in the right hand rear of the car”.   The impact was from Ms M  ’s vehicle which had been travelling behind Mr Neil.  As a result of the impact, her car slewed to the side, hit and bounced off a concrete barrier “shot across” in front of Mr Neil’s car and into a gully.  It was not in contest at the hearing that Ms M  ’s vehicle could not be driven away and had to be pulled out by a tow-truck summonsed by Police.

[6]      Mr Neil approached Ms M   concerned about possible injury and then spoke to a passing motorist who had stopped.   He was in fact an off-duty police officer and the pair summonsed Police.

[7]      At 1:00am a Constable Marriott happened to arrive at the scene on his Police motor cycle.  He was on his way home, having been on duty since 2:30pm on 5 July but was still in uniform. He radioed for assistance.

[8]      He spoke to Mr Neil and then to Ms M   who was dressed in fancy dress. He noted she was intoxicated, “hysterical” and “agitated”.  He said she had “trouble standing upright” and to test her sobriety he had her speak into a Police Drager Intoxilyzer.  She failed that passive test and told him she had “drunk vodka”.

[9]      Because he knew another Police unit was coming to the scene, Constable

Marriott did no more except try to calm Ms M   down.

[10]     He administered a passive breath test to Mr Neil.  That indicated no presence of alcohol.

[11]     After a time, a man arrived in a van.  He was a Mr Parsonage, Ms M  ’s fiancé.  Constable Marriott told him Ms M   would be taken to the Howick Police

station for procedures to be undertaken there and his best option was to go and wait there to provide transport for her afterwards.

[12]     In  cross-examination he acknowledged that he  did not give Ms M   a breath screening test although he had the equipment to do so, and gave her no Bill of Rights Act warning or information about the Police Detention Legal Assistance Scheme (PDLAS).  He said that he “asked [Ms M  ] to remain at the scene whilst it was all being sorted out”.

[13]     At about 1:15am Inspector Kluessien arrived in a marked Police car.  He was briefed by Constable Marriott and then spoke to Ms M  .  Mr Parsonage was in the vicinity but the Inspector did not speak with him.

[14]     Inspector  Kluessien  required  Ms  M    to  undergo  a  roadside  breath- screening test as she was “slurring her speech”, “upset and she had trouble standing still and standing up straight”.  That test was administered at 1:25am.    It was not argued on appeal that the device was not current and accurate.   Ms M   made several attempts to blow through the machine’s tube but each time its reading was “insufficient volume”.  At 1:27am Inspector Kluessien:

“... required the defendant to accompany me to the Manukau Police station without delay to The Hub for the purpose of an evidential breath test, evidential  blood  test  or  both.     Because  I  was  now  requiring  her  to accompany me, I read some rights to her.   I read from this card from my notebook.  I read to her:

‘You have been detained for the purpose of (a) - of carrying out an evidential breath test, evidential blood test or both, you have the right to refrain from making any statement and to remain silent.  You have the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and this right may be exercised without charge under the Police Detention Legal Assistance Scheme.  Anything said by you will be recorded and may be given in evidence.

I asked her whether she understood that and she said she did.”

[15]     However, while the pair were en route to Manukau, Ms M   told Inspector

Kluessien she lived in Howick:

“So I told her in that case we would go to the Howick Police station and do the evidential breath test, blood test or both, and we headed so Howick Police station instead.”

[16]     The pair arrived at Howick Police station at 1:49am.   Howick is a station used by the police officers on a 24 hour basis but is not accessible by the public at all times.

[17]     At Howick, Inspector Kluessien took Ms M  ’s details and then “read her rights to her again from the same card in my notebook”.

Q.        Did she acknowledge that she understood those rights?

A.       Yes.  I noted down in my notebook: “Do you understand that?” and she nodded to me, she was sort of snivelling a bit at the time.

[18]     The evidential breath test was undertaken and the result obtained indicated she  had  864  micrograms  of  alcohol  per  litre  of  breath  by  contrast  with  the

400 microgram limit.  Inspector Kluessien then read a form to her which stated:

“If you do not within 10 minutes request a blood test, the test could of itself

– you have just undergone – could of itself be conclusive evidence to lead to your conviction for an offence under the Land Transport Act 1998.  If you wish to undergo a blood test you must request one within 10 minutes.”

but Ms M   interrupted the reading of the form to say:  “Yes, I want a blood test”.

[19]     Inspector Kluessien then read the balance of the form to the effect that taking a blood test meant the evidential breath test could not be used in Court.  The reading of the form concluded at 2:07am following which she read the form itself and signed it and repeated “I want to give a blood test”.  The inspector then required her to give a blood sample at 2:10am.  He then read the rest of the relevant form to her and re- read her rights.  She again said she understood them though was crying at the time.

[20]     Inspector Kluessien rang the nurse at 2:29am and while the pair were waiting asked Ms M   why the accident occurred.  She answered “I fell asleep”.

[21]     The nurse arrived to take the blood sample at 2:45am.  Ms M   asked if the sample could be taken from her foot.  The nurse demurred saying the sample had to

be taken from the arm in accordance with normal medical procedure.   Ms M   asked Inspector Kluessien to note that exchange, which he did at 2:45am.

[22]     On appeal, there was no challenge to the correctness of the manner in which the blood sample was taken.

[23]     After that, Inspector Kluessien took Ms M   home and then went to the

Manukau Police Station to secure the blood samples in a locked box.

[24]     Again, on appeal, there was no challenge to that aspect of the matter nor to the correctness of the analysis though formal objection was taken to the analyst’s certificate so as to preserve Ms M  ’s right to defend the charges as she did.  The reading in the certificate was 194 milligrams of alcohol per 100 millilitres of blood.

[25]     In cross-examination:

a)       The  Inspector  acknowledged  he  could  have  performed  the  breath testing procedures at the Manukau station but changed to Howick because it was closer to Ms M  ’s home.

b)When he gave Ms M   her rights at the police station before the evidential breath test she initially nodded in response to his questions as to whether she understood and nodded again later.  The Inspector regarded that as an effective response,

and a number of other issues.

[26]     Ms M   gave evidence that she remembered nothing from between about

8.30pm that night when she was at the party and being in her car after the accident. She did not remember any of the events to which the police witnesses referred though she went on to dispute passages of evidence in the prosecution case.   She acknowledged the signatures on the various police forms were likely to be “a very distressed representation of my signature”.

[27]     Her fiancé said he was unable to communicate with Ms M   when he arrived at the scene of the accident but when he asked Constable Marriot if he, Mr Parsonage, could take Ms M   away, the Constable said “Absolutely not”.

Judge Wade’s judgments

[28]     After summarising the evidence in terms more comprehensive than précised above, Judge Wade held the prosecution had proved the elements of the charges beyond reasonable doubt and thus turned to the defences.

[29]     He first dealt with the defence of involuntary intoxication in relation to both charges but dismissed that.  That was not a ground of appeal and thus need not be addressed.

[30]     In  relation  to  the  defence  that  Ms  M    was  arbitrarily detained  at  the roadside, Judge Wade reviewed appropriate authority and held the “delay at the roadside to be entirely reasonable and lawful” because the approximately 20 minutes which elapsed between Constable Marriott’s arrival and that of Inspector Kluessien was partly taken up with other activities than detaining Ms M  , making the point that this was a crash scene and not a stoppage for other reasons.

[31]     He then turned to the fact Ms M   was taken to Howick police station when Manukau had been nominated, referred to appropriate authority and, applying that, held:

[34]     … it seems to me that the officer changed his mind for perfectly understandable reasons, not least of which was that Howick Police Station was considerably closer to where the defendant lived and where the incident occurred than was Manukau.   If anything, the defendant’s liberty was restricted for a lesser period by reason of going to Howick instead of Manukau.

[32]     The defence claimed that the terms of advice concerning her right to a lawyer were narrowed in breach of s 23(1)(b) of the New Zealand Bill of Rights Act 1990 because Inspector Kluessien inserted the phrase “before deciding whether to answer questions” between the advice as to the right to instruct a lawyer in private and that such advice would be without charge under PDLAS when he was reading Ms M 

her rights from his notebook.  That insertion goes beyond the Practice Note – Police

Questioning (s30)(6) (of the Evidence Act 2006) [2007] 3 NZLR 297.

[33]     After again referring relevant authority to the fact that the standard form of advice to persons in Ms M  ’s position need not be in the exact words of the Practice Note as long as it accurately depicts the concepts embodied in it, Judge Wade held he was satisfied “that the advice given by the officer adequately complied with the requirement to advise the defendant of her rights”.

[34]     Responding to the claimed defence that Ms M  ’s situation and condition required extra care to be exercised by police in advising her of her rights, the Judge found that he was satisfied “that the defendant’s rights were adequately explained to her and that she plainly understood them”, particularly given that “her initial insistence that she wished to give a blood sample via her foot shows that she was well aware of what was happening to her and the reasons for the procedure”.

[35]     By way of conclusion the Judge held that:

[45]      Unfortunately, the volume of defended EBA cases based on entirely technical and unmeritorious defences appears to continue unabated.

following R v Aylwin [2008] NZSC 113, para [17].

[36]     He adjourned the matter for sentencing, but making plain he intended to disqualify the appellant for a period “well in excess of the statutory minimum”.

[37]     When Judge Wade came to sentence the appellant he listed the aggravating features of her offending as the amount of alcohol she must have drunk, the distance she drove, the fact the accident involved her running into the rear of a vehicle being driven at moderate speed and, of course, the blood alcohol reading of nearly two and a half times the permitted limit.  Then, after reviewing the maximum sentences, the victim impact statement and the reduction in sentence for an early plea, Judge Wade held:

[7]       In my judgment the logical consequence of that is that if one is dealing with a motorist who is two and a half times that limit, then the disqualification period should be increased to a commensurate level.   In

other words, the appropriate starting point for a drink driver at two and a half times the permitted limit ought to be a minimum of 15 months disqualification.    I stress  the  word  “minimum”  because  of  course  these figures would apply to someone who pleads guilty.  However, in your case you were convicted after trial in which numerous technical defences were advanced.

[8]       Although you are not to be penalised taking the matter to trial, and I make it plain to you that I do not penalise you, I do take the opportunity to point out that had you pleaded guilty at the earliest opportunity that would have been reflected in a reduction of the disqualification period of the order of one-third.   I therefore start with the appropriate disqualification period and my starting point is one of 15 months.

[38]     After taking account of mitigating features including the fact that Ms M   had served a 28 day suspension, the Judge imposed the sentences set out at the beginning of this judgment.

Submissions

[39]     Mr Haskett’s submissions on behalf of the appellant closely mirrored those he made unsuccessfully in the District Court.  His and Ms Longdill’s submissions for the respondent can be summarised during consideration of the defences advanced.

Detention

[40]     Mr Haskett drew attention to the limited powers of detention in s 114(3)(a)

and (5) of the Land Transport Act 1998 which read:

(3)An enforcement officer may require the driver of a vehicle that is stopped under this Act to –

(a)    remain stopped for as long as is reasonably necessary for an enforcement officer to obtain the particulars referred to in paragraph (b), or to complete the exercise of any other power conferred on an enforcement officer by this Act;

…

(5)An enforcement officer may require a driver to remain stopped on a road for as long as is reasonably necessary to enable the officer to establish the identity of the driver, but not for longer than 15 minutes if the requirement to remain stopped is made under this subsection only.

[41]     Mr Haskett made the point that although Judge Wade held the delay to be lawful and reasonable he did not state the reasons for coming to that conclusion.  He submitted that when undertaking the breath testing procedures Constable Marriott was relying on s 114(3)(a) and s 68.   It was a detention for Constable Marriott to require the appellant to remain so another officer could arrive to perform the breath screening test under s 68(1), particularly when Constable Marriott could have carried out  the  test  himself.     The  detention  was  therefore  longer  than  “reasonably necessary”.   He suggested the actual delay was 25 minutes and the detention 20 minutes.

[42]     He submitted that requiring particulars, taking the passive and then the breath screening test were each a detention under s 23 NZBORA and Temese v Police (1992)  9  CRNZ  425,  427.    He  submitted  NZBORA  is  often  not  triggered  in detention cases because the rights are limited on the particular occasion by s 5

NZBORA.

[43]     He also submitted s 22 of NZBORA was breached by what occurred on this occasion relying on New Zealand Police v Bell HC WN AP177/01 9 November 2001

Durie J where a driver was required to remain at the scene while another officer administered the breath screening, the first officer not having a device with him. That was found not to be a detention.  Here the circumstances were different because Constable Marriot had a screening device.   Mr Haskett submitted the words “reasonably necessary” did not allow the deprivation of liberty for reasons of convenience to the officer and the detention became unlawful when Constable Marriot elected not to utilise the device he had available and administer a breath screening test.

[44]   Mr Haskett also submitted that the police could not invoke reasonable compliance under s 64(2) of the Land Transport Act 1998.

[45]     Overall he submitted omission of a screening test cannot be lightly excused because detention is a significant interference with liberty and exposes a driver to the risk of arrest and prosecution should she refuse to comply:  New Zealand Police v Gollop HC WN CRI-2006-091-253 16 April 2007 para [26].

[46]     For the police, Ms Longdill analysed seven actions undertaken by Constable Marriot (radio advice of the crash, situation of the vehicles, recording Mr Neil’s details and his passive breath test and then locating Ms M  ) all but the last of which – speaking to her and administering the passive breath test – were before there could be any suggestion of detention.   She submitted any detention could only commence once Constable Marriot had tested her and told her she was not free to go. While  there  was  no  precise  assessment  of  the  time  taken  before  that  occurred, Ms Longdill submitted it must have been a significant part of the 23 minute period when Constable Marriot was the sole officer present.

[47]     She submitted s 114(3)(a) was inapplicable since Ms M  ’s vehicle was not “stopped under this Act”.   She submitted s 22 of the Land Transport Act 1998 applied.  That sets out drivers’ duties following an accident.  It was Ms M  ’s duty to remain at the scene to ascertain if anyone was injured and to provide her details to Police.  Section 22 contains no time limit.

[48]     She submitted that even when a driver is stopped by a police officer utilising the s 114 power, detention to permit another officer to attend to undertake breath testing is not unlawful (Police v Casey [2008] NZCA 335). In Casey the Court of Appeal dismissed an appeal against a pre-trial ruling in a breath alcohol jury trial case.    The  officer  who  stopped  Mr  Casey  did  not  commence  breath  testing procedures but detained him for four to six minutes until another officer arrived. The Court of Appeal held:

[19] Whether s 23(1)(a) NZBORA is engaged depends initially on whether the stopping amounts to a detention. This Court has held that a transitory stopping for the purpose of questioning a driver at the roadside does not amount to a detention for the purposes of s 23 NZBORA. In Temese v Police (1992) 9 CRNZ 425 a traffic officer had observed a vehicle being driven erratically and stopped the vehicle.   Suspecting the driver had consumed alcohol, the officer asked the driver for his details. The appellant gave details which were different from those on the driver’s licence he produced and, when asked why he had lied, admitted he was disqualified.   He was subsequently subjected to breath testing procedures and convicted of driving with excess breath alcohol, driving while disqualified and failing on demand to give his name and address. The stopping of the vehicle was authorised under the provisions then in force of s 66 Transport Act 1962 and the request for information as to the driver’s identity was made under s 68B of the same Act.

[20] This Court held that the questioning of the driver up to the point of his admission did not amount to detention for the purposes of s 23 NZBORA: Cooke P at 427 and Casey J (delivering the judgment for the other members of the Court) at 429-430. Cooke P said that NZBORA had to be applied in a realistic and common sense way. The merely “transitory and proper questioning” which occurred did not amount to detention. Casey J said that a detention comprehended a more substantial interference with the liberty of the subject than had occurred. The questioning did not amount to “custodial interrogation” and did not involve the kind of restraint on liberty which might reasonably require the assistance of a lawyer. Although, at 430, Casey J appeared to limit his conclusion to questions relating to identity, he took a broader view at 431 concluding that the constable was entitled to make reasonable enquiries at the roadside about “matters relating to the operation and enforcement of the Transport Act”. As Cooke P observed at 427, the question about why the driver had lied was entirely lawful and natural since, if he were disqualified, that would be decisive of the police officer’s right to require him to undergo an evidential breath test.

[21] The distinction between a merely temporary restraint and a more substantial deprivation of liberty was re-emphasised by the majority of the Court of Appeal in Police v Smith & Herewini [1994] 2 NZLR 306: Richardson J at 316 and McKay J at 328.

[22] Whether there has been a detention is a question of fact and degree. The assessment involves consideration of the nature, purpose, extent and duration of the constraint. As Richardson J observed in Smith & Herewini at 316, “the assumption of control over a citizen’s movements is very different from a pause while particulars are provided … At the very least something more than a temporary check, hindrance or intrusion on the citizen’s liberty is required”.

…

[24] We are satisfied that in the circumstances of this case, the temporary restraint upon the appellant of no more than four to six minutes before the arrival of Senior Constable Methven did not amount to a detention for the purposes of s 23(1) NZBORA. There is no dispute that Sergeant Mouncher had proper grounds to stop the vehicle given the information with which he had been provided. The stopping took place in conformity with s 114(1) and (2). Once the vehicle was stopped, Sergeant Mouncher had good grounds to suspect that the driver had been drinking and that it would be appropriate for the breath testing procedures to be administered.  It was entirely reasonable, given the other duties in which he was engaged at the time, that he should ask the appellant to wait until Senior Constable Methven arrived. …

[49]     In Casey, an application for leave to appeal was dismissed (R v Casey [2008] NZSC 105), the Supreme Court observing in relation to detention that the argument was based on a “strained interpretation” of the enabling legislation and it was “not arguable that there was an unlawful detention”.

[50]     This is, if anything, a stronger case than Casey bearing in mind that judicial observations in that instance are arose from the stopping of a vehicle whereas here, police  involvement  arose  from  an  accident  which  immobilised  the  appellant’s vehicle.

[51]     Quite plainly, a significant proportion of the 23 minute period which passed when Constable Marriot was the only officer present would have been occupied in him undertaking other duties before he approached Ms M  , she failed the passive breath test and was then told she was not free to leave.

[52]     Judge Wade cited that the test for detention as being the mixed objective and subjective assessment prescribed by R v M 1995] 1 NZLR 242 as to whether the suspect has a reasonably held belief induced by police conduct that he or she is not free to leave.

[53]     In this case Ms M   can have been under no illusion whatever that she was free to leave the scene of the accident – apart from complying with her s 22 duties – at any time up to Constable Marriott telling her she could not leave because she had failed the passive breath test.  Relying on Police v Lovelock [2002] DCR 873 where a 15 minute delay until breath testing could be undertaken was held not to be an unlawful detention, Judge Wade found any detention of Ms M   was both reasonable and lawful.

[54]     There is no reason to depart from his view.   If this was a detention, it can have  been  for  no  more  than  well  under  10  minutes,  perhaps  as  few  as  five. Ms M   was obliged to remain for some of the period by s 22.  As a matter of fact and degree, Judge Wade assessed the evidence and held any detention of Ms M   was lawful.  Casey makes it clear that a temporary restraint of a few minutes to await the arrival of another officer does not amount to a detention and was entirely reasonable.

[55]     This  Court  endorses  that  view.    That  ground  of  appeal  is  accordingly dismissed.

[56]     It remains to add that conclusion is consistent with authority that there was no breach of NZBORA in this case and there was reasonable compliance with police obligations.

Howick rather than Manukau Police Station

[57]     Mr Haskett drew attention to s 69(1) of the Land Transport Act 1998 which relevantly reads:

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—

(a)     The person has undergone a breath screening test under section

68 and it appears to the officer that the test indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath; or

...

(d)    The person could be required to undergo a breath screening test without  delay  under  section  68  but  cannot  be  tested  because either a breath screening device is not readily available or for any reason a breath screening test cannot then be carried out, and there  is  good  cause  to  suspect  that  the  person  has  consumed drink.

(2)     If it is not practicable for a person to undergo an evidential breath test at  a  place  to  which  the  person  has  accompanied  an  enforcement officer under subsection (1), an enforcement officer may require the person to accompany the officer to any other place where it is likely that the person can undergo an evidential breath test or a blood test (or both).

[58]    In essence, Mr Haskett’s submission was that once a police officer has nominated  a  “place”  where  the  required  testing  could  take  place,  it  was  not competent for them to change that place.  He submitted that the decision in Power v Ministry of Transport HC CHCH AP92/87 13 July 1987 Holland J cited by Judge Wade was appropriate.

[59]     Mr Haskett submitted that Inspector Kluessien was required to take Ms M   to Manukau and only if it was found impracticable for the evidential breath test to be conducted there was he at liberty to divert to Howick.

[60]     Mr Haskett submitted that, by analogy, the Court of Appeal supported his submission in R v Beck [2008] NZCA 283. He took issue with Judge Wade suggesting that he had failed to deal with the discussion on reasonable compliance in Power and that:

a)       The test of “not practicable” is not a question of convenience.

b)There  was  “deliberate  and  total  non-compliance  with  both  the conditions precedent of going to Manukau and of an evidential test being not practicable” at that location.

c)       There  was  significant  prejudice  in  this  case  because  Ms  M  ’s fiancé was told she was being taken to Manukau and thus was unable to help her at Howick (which overlooks the evidence that, when he found out Ms M   was at the Howick station, Mr Parsonage walked there as it was close by though he was unable to gain admittance).

[61]     Ms  Longdill  commenced  her  submissions  on  this  part  of  the  case  (and invoking authority she had submitted on other aspects of the appeal) by relying on the observations of the Supreme Court in Aylwin para [17] that:

Every driver of a motor vehicle on the roads in 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.

[62]     This, Ms Longdill submitted, is a clear example of a technical unmeritorious defence  being  advanced.    The  suggestion  that  the  destination  was  altered  for Inspector  Kluessian’s  convenience  was  contrary  to  the  fact  of  his  enquiring  of

Ms M    as  to  her  residence  and  diverting  so  she  would  be  closer  to  home. Appropriate devices were available at either station.

[63]     Ms  Longdill also relied  on the observations of Priestley J  in Gu v New Zealand Police (HC Auckland CRI-2008-404-312 16 December 2008) where, in discussing Auckland City Council v Dixon [1985] 2 NZLR 489 – though noting that even in that case (at 490) the Court of Appeal said: “…the administration of blood alcohol laws should be kept free of linguistic refinements” – the following observations were made:

[56]     At some future date there might be merit in the Court of Appeal revisiting the broadly cast dicta in Auckland City Council v Dixon.  In the intervening 23 years there have been significant changes.  First the important concepts of unfairness and improper pressure have received a large degree of codification in the Evidence Act 2006.  Secondly the constitutional need to deal with different procedures and different standards in the area of traffic law enforcement has diminished somewhat with the replacement of transport departments  run  by  territorial  authorities  by  the  New  Zealand  Police. Thirdly, the equipment and procedures used to screen and detect offending drivers has improved dramatically.  Lastly, and importantly, there is today a much lower degree of societal tolerance of drinking and driving than was the case 23 years ago.  This is a shift to which a different generation of judges undoubtedly should be alert.

[64]     Ms Longdill accordingly submitted it was not beyond Power for the “place” originally nominated to be changed to suit the person who was to be tested and that, even if there were formal non-compliance with s 69, there was obviously reasonable compliance as permitted by s 64(2) of the Land Transport Act 1998.  She made the point that in Police v Tolich (2003) 20 CRNZ 150,156 para [24] the Court of Appeal endorsed previous authority as to the “need for liberal approach to the reasonable compliance section”.

[65]     Even leaving aside the observations in Aylwin and Gu, the decision in Power is now outmoded by amendments to the statute.  It is, in any event, inapplicable in this case since Mr Power was prosecuted for refusing to accompany the officer, not the charges Ms M   faced.  And in Power Holland J commented that the police, without statutory obligation, had nominated the particular place but taken Mr Power to another.  The Judge did, however, say (p 7):

In this case I am satisfied that in diverting from the nominated place to another without evidence as to the impracticability of conducting tests at the nominated place there was a failure to comply with the provisions of section

58A(3).

However the diversion was no more than one city block and the journey was slightly shorter than going to the nominated place.  There was no evidence that the arrival of the appellant at the Police Station instead of the Ministry of Transport was in any way a matter of concern to the appellant or in any way contributed to his failure to undergo an evidential breath test or a blood test.  There was no prejudice to the appellant.  The District Court Judge in rejecting the defence did not specifically apply section 58E.  He appeared to apply Gilling (supra) and hold that there had been compliance.  With respect I conclude that compliance had not been proved but substantial compliance under section 58E had been proved and that the defence was rightly rejected.

[66]     Johnston  v  Police  (High  Court  Auckland  AP239/95,  8  December  1995

Anderson  J)  relied  on  by  Mr  Haskett  was  concerned  with  the  legality  of  an alternative destination being nominated when it was found at the first police station that the evidential breath testing device was out of order.  At the second station it was discovered that there was no evidential breath testing device.  The appellant was then required to accompany the officer to a third police station where the test was administered.  The issue was whether the third nomination was lawful.  The appeal was allowed on the ground that the third station requirement was beyond statutory power.

[67]     In  Beck  (at  para  [70])  the  Court  of  Appeal  defined  the  phrase  “not practicable” as being not feasible and something more than inconvenience but held that, on the facts, the prosecution had failed to show it was not practicable for a sample to be taken at the place where the suspect had been taken though there was reasonable compliance in the circumstances.

[68]     In this appeal it is plain that Ms M   could have undergone an evidential breath test or blood test at either Manukau or Howick Police Stations.  Manukau was initially nominated by Inspector Kluessien as the “place” where it was likely the testing could be undertaken but then, to assist Ms M  , Howick was nominated as the place to which she was required to go.  As it happened, Howick was the station nominated by Constable Marriott as the “place” where Ms M   would undergo the further procedures.   Nevertheless it is clear that the statutory prerequisite for the

nomination of the second station was not met and accordingly s 69(2) has no application to this case.

[69]     However, there is nothing in s 69(1) which debars a second “place” being nominated if it is one where the required testing is likely to be available.  Even if what occurred in the appellant’s case might be thought to be beyond the strict terms of s 69(1), on the facts it is incontestable that there was reasonable compliance, particularly when s 64 is accorded the broad interpretation mentioned in Tolich and the cases there cited and having regard to the Court’s proper approach to defences raised in blood alcohol cases which might be thought just to be in breach of the Act but where the facts are wholly against the defence advanced.

[70]     This is such a case. This ground of appeal is dismissed.

Narrowing access to a lawyer

[71]     Mr Haskett argued that it was a breach of s 23(1)(b) of NZBORA to add the words “before deciding whether to answer questions” to the required advice.   He argued it was also unfair in s 30(5)(c) of the Evidence Act 2006 and that Gallichan v Police (HC AK CRI-2008-404-184 1 October 2008 Keane J) did not deal with advice concerning the availability of lawyers without charge.

[72]     Ms Longdill, while accepting the added phrase was superfluous to the strict requirements of s 23 NZBORA and the Chief Justice’s Practice Note, nonetheless submitted that on the facts it was plain Ms M   was not prejudiced.   She was advised repeatedly of her rights.  She repeatedly said she understood them.  She did not elect to speak to a lawyer despite the rights advice she was given.  She elected a blood test even while she was in the process of being advised as to her rights. Ms Longdill submitted there was no causal link between any breach – if breach there were – and the impugned evidence and accordingly s 30(5) did not apply because the evidence was not obtained “as a consequence of” any breach.

[73]     As mentioned in Gallichan, Keane J said the important point was that the advice of a suspect’s rights should “convey accurately the concepts of Practice Note

compliance”.  In R v Tye [2008] 1 NZLR 214,219 [23] the Court of Appeal declined to hold that drink drive suspects should be in any separate category from other suspects.

[74]     The rights and advice Ms M   received followed in all respects the terms of the Chief Justice’s Practice Note save the added words.  Judge Wade held she fully understood her rights on each occasion she was advised of them.  Even if she had noted that her rights were, in their terms, limited to answering questions, there is no hint at all in the fact that she exhibited any reluctance to answer questions or that limitation impacted on her understanding in any way.

[75]     The  concepts  underlying  the  rights  advice  were  clearly  explained.    The addition of a few words, if comprehended, did not affect her understanding of her position.  There is no basis to disturb Judge Wade’s finding that the advice given by Inspector Kluessian adequately advised the appellant of her rights.   She was not misled and gave no hint in her evidence she was under any misapprehension that her right to take legal advice was conditioned in any way.

[76]     As with the earlier grounds, there is no basis made out for this Court to interfere in Judge Wade’s findings.

Not treating the appellant with extra care

[77]     Mr Haskett submitted that the circumstances were such that the police were obliged to take extra care in advising her of her rights having regard to the observations of the Court of Appeal in R v Mallinson [1993] 1 NZLR 528,531 where the following appears:

5.Where  the  admissibility  of  a  statement  made  to  the  police  is challenged on the grounds of a specific breach of the Bill of Rights Act, the Court has to determine whether the accused was accorded the particular right claimed to have been breached. In that situation we consider that the ordinary rules as to onus of proof in relation to the admission of such evidence should apply. Accordingly the burden of establishing the admissibility of the statement rests on the Crown just as it does where, as will often be the case, it is also challenged on fairness grounds. The standard of proof to be applied is a matter upon which full argument will be needed in an appropriate case.

Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused's answers at face value. If following advice as to the right to a lawyer the accused responds affirmatively to the question whether he or she understands the  position, the  obvious  inference  is  that  the  accused  did indeed understand his or her rights. But more than a bare statement of the s

23(1)(b) right and a bare acknowledgement of understanding is likely to be required where, for example, the person arrested is intoxicated or

under drugs or appears to have a mental or physical disability which

could interfere with his or her comprehension of the rights.

6.The crucial question is whether it was brought home to the arrested person that he or she had those rights. That is not the same question as whether the police were justified in assuming that he or she did understand them. …

[78]     Mr Haskett relied on the observations as to the demeanour of the appellant throughout her contact with the police and suggested her nod in affirmation was insufficient to find she understood the rights she had been given.

[79]     Ms Longdill submitted this defence failed on the facts.  Judge Wade agreed having heard the evidence.

[80]     This Court sees no basis to differ from the view reached by Judge Wade.  The appellant was advised of her rights on a number of occasions and, in various ways, indicated she understood them.  She responded to that advice by opting for the blood test.  She quizzed the nurse as to whether an alternative site for the taking of blood could be obtained.  There is no basis in terms of Mallinson for the police to conclude that  that  special  care  had  to  be  undertaken  when  advising Ms  M    as  to  her position.  This ground of appeal is dismissed.

Exclusion

[81]     It remains to say that even had some merit been found in the arguments advanced on the appellant’s behalf, this was clearly a case where exclusion would have been a disproportionate and inappropriate response to whatever minor infractions of the appellant’s rights might have been found.

[82]     Judge Wade took the same view.

Result

[83]     In the result, all the grounds of appeal advanced having been dismissed, the appeal must also be dismissed.

[84]     The defended hearing and this appeal have all been based on technical and unmeritorious defences where the legal grounds advanced fell well short of having sufficient evidential foundation for them to succeed.

Sentence appeal

[85]     Mr Haskett, relying on the review of disqualifications on first conviction for drink driving offences in McEachen v Police [1995] 2 NZLR 251 submitted that the average disqualification as found in that case was 7.46 months including cases involving bad driving.

[86]   He submitted that Judge Wade’s approach was largely mathematical in multiplying the minimum period by two and a half times.  That, he submitted, gave a starting point outside what should have been the range of six to 12 months.

[87]     He also submitted the abandonment by Ms M   of the conviction appeal on the  careless  driving  charge  meant  that  conviction  remained  and  marked  the culpability of her driving.  He submitted she “took responsibility” for the damage to Mr Neil’s car and paid full reparation voluntarily.  He submitted the disqualification was also disproportionately long in Ms M  ’s personal circumstances.

[88]     Ms Longdill submitted there were clear distinguishing factors between this appeal and McEachen.  Ms M  ’s blood alcohol level was almost two and a half times the legal limit, much more than the cases reviewed by the Full Court in that appeal.   Accidents were not a feature of all the appeals in that case because the appellants were stopped at checkpoints.  She submitted this case was very similar to Wilkins v Police (HC CHCH CRI-2008-409-8 21 February 2008) where an appellant who had no previous convictions, drove with about two and a half times the legal limit of alcohol, crashed into a parked car and - not the case here - pleaded guilty,

was fined $1000 and disqualified for 15 months.  In that case Chisholm J took the view that although the appellant’s disqualification was at the highest end of the range, there was no basis for interfering with the District Court Judge’s discretion.

[89]     Judge  Wade’s  remarks  on  sentencing  implied  that  disqualifications  for offenders who have pleaded guilty for driving at two and a half times the legal limit of alcohol should incur a starting point for disqualification of two and a half times the minimum six months.

[90]     That   mechanistic   approach   might   be   open   to   criticism   if   applied formulaically as a final sentence.  But where, as here, an experienced District Court Judge utilises such a formula to assist him in the setting of a starting point for the length of disqualification and then appropriately applies aggravating and mitigating features to reach a decision appropriate to the defendant before him, the basis for any criticism evaporates.  The most that might be said for Mr Haskett’s criticism is that Judge Wade appears to have taken a plea of guilty into account in setting his starting point rather than as a mitigating factor.   But since he expressly excluded her plea from his sentencing assessment, t hat factor cannot affect the outcome of this appeal.

[91]     With the number of defendants coming before the District Court for offences such as that with which Ms M   was charged, there can be no objection to a “rule of thumb” being utilised to set the starting point for the length of disqualification provided other appropriate sentencing principles are applied to achieve a just result. In this case the disqualification imposed was certainly substantial and, in terms of Wilkins, at the top of the range, but where it is imposed by a highly experienced District Court Judge who has heard and evaluated the evidence given in a lengthy defended hearing and reached the view that the disqualification imposed was appropriate, there is no basis for interference.   Put another way, though this may have been Ms M  ’s first drink driving conviction, her blood alcohol level was high by comparison with the allowable limit and the circumstances of the accident were serious.  It was only by chance nobody was injured.

[92]     As to the mitigating features for which Mr Haskett contended, it is correct

Ms M   voluntarily paid the repair costs for Mr Neil’s vehicle, but he was a

panelbeater and the amount she was called upon to pay was very much less than would otherwise have been the case.  And, in any event, her liability was plain.

[93]     Her disqualification no doubt caused her personal difficulties, but that is one of the aims of disqualification, and there was nothing so far out of the ordinary in Ms M  ’s case to suggest she was unduly prejudiced by not being able to drive.

[94]     Thirdly, Mr Haskett contended that Ms M   “took responsibility” for this matter very early in the piece.  That may be true, but it is a submission which could be said to sit somewhat awkwardly with the highly technical but insubstantial factually based defences resolutely advanced in the District Court and again on appeal.  Here, Ms M   chose to drive a considerable distance having two and a half times the allowable limit of alcohol in her blood and had a moderately serious accident.

[95]     Overall, as the Supreme Court said in Aylwin, every driver in New Zealand should be aware that, driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable.   The Courts should approach the prosecution of such persons undeterred by “technical and unmeritorious defences”.

[96]     In those circumstances, the appeals against sentence are similarly dismissed.

[97]     On 21 September 2009 Ms M   successfully obtained an order deferring the commencement of her disqualification until 3 November 2009.

[98]     The question of continued deferment was not addressed by counsel at the hearing of this case on 4 November.  Not having been addressed, it is assumed that Ms M   will have continued to enjoy deferment until after delivery of this judgment.

[99]     On that assumption, Ms M  ’s disqualification is to commence at midnight on 19-20 November 2009.

[100]   It is further assumed that costs are not an issue, but if the assumption is incorrect counsel may deal with that topic by memorandum.

.................................................................

HUGH WILLIAMS J.

Solicitors:

Crown Solicitor, PO Box 2213 Auckland 1140

Email:  [email protected]

Copy for:

Alistair Haskett, P O Box 90 265 Victoria Street West, Auckland 1142

Email:  al[email protected]

Case Officer Auckland High Court:   Ra[email protected]: