M v Police HC Tauranga CRI 2008-463-57

[2008] NZHC 1896

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2008-463-57

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 December 2008 (Heard at Rotorua)

Appearances: R Gowing for the Appellant

C Harold for the Respondent

Judgment:      2 December 2008

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr R Gowing, Gowing & Co., Solicitors, Whakatane

Ms C Harold, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

M V NEW ZEALAND POLICE HC TAU CRI 2008-463-57 2 December 2008

[1]      The appellant appeals against her conviction for driving with excess blood alcohol.

[2]      The central question is whether the appellant’s right to elect to have a blood test following a breath test was influenced by advice from the police officer to an extent warranting exclusion of the evidence from the breath test.

Facts

[3]      It is convenient to set out the relevant facts from the summary helpfully provided in the written submissions of Ms Harold for the respondent.

3.On 26 April 2008, the appellant was driving her vehicle.  She was stopped by Constable Clarkin and failed a passive breath test.  She then also failed a breath screening test.  The appellant was taken to the Whakatane Police Station where she was advised of her rights, including being told of a list of lawyers who were available to her free of charge.  The appellant confirmed she understood her rights and stated that she did not wish to speak with a lawyer.

4.The appellant then underwent an evidential breath test, which she failed.

5.Constable Clarkin then read to the appellant the advice of Positive Evidential Breath Test form.    The appellant confirmed she understood the contents of the form and signed it. The appellant was again asked if she wished to speak to a lawyer and she stated she did not.

6.Constable Clarkin then advised the appellant that she had 10 minutes within  which  to  elect  to  have  an  evidential  blood  test  (“the  10 minute period”).

7.        The appellant chose not to give an evidential blood test.

8.Under cross-examination, Constable Clarkin accepted that she may have said something to the effect that, while it wasn’t for her to influence the appellant’s decision, blood test results are generally higher.  Constable Clarkin said “I did inform her that it was not my decision to make but in my experience that’s often what happened”.

9.Constable Clarkin denied making any comments about the delay involved in a nurse attending at the station to perform the evidential blood test.

10.      The appellant gave evidence and said this of the 10 minute period:

“I was shown the result, um, then I got advised that, um, I had

10 minutes to make up my mind if I wanted to hae a blood test or not.  I was pretty, like, I haven’t been through the process before so I didn’t really know everything I was meant to do, so  I  must  have  looked  like  I  was  a  bit  confused,  and  I definitely got told that the blood test generally reads higher, so in my head I thought I might as well go with the lower one of the two, and then I got advised that it could take up to an hour or more for the nurse to get there, um, and my daughter was out the front, my cellphone was on silent but she was like ringing and texting me, not that I answered it, so in my head I thought there was no point in having a blood test”.

11.In response to what Constable Clarkin had told her, the appellant said:

“She said it wasn’t for her to influence my decision but, yeah. But she had told me that, um, the blood test generally reads higher so in actual fact I didn’t go ahead with the blood test because I thought I might as well take the lower one of the two”.

12.      Under cross-examination, the appellant was asked:

“So am I to understand that you decided to go with the lower reading because you thought it would have less consequences on you”.

13.      The appellant’s response was:

“Not necessarily consequences, but when you are advised that by having a blood test it would generally read higher, there’s no point in trying to get a higher reading, you might as well go with the lower one, that’s the whole point.  But I may not, it may not have been like that.   The reading, it took a long time for the nurse to get there, it may have come down, it may not have, you know.  But either way I didn’t take it”.

14.When asked what the appellant was thinking about during the 10 minute period, she advised:

“I just thought about lots of things, my daughter and lots of things, yeah, I can’t really remember exactly”.

Statutory provisions

[4]      The questions turn principally on ss 70A and 77 of the Land Transport Act

1998 which are as follows, so far as material:

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.

77       Presumptions relating to alcohol-testing

(1)For  the  purposes  of  proceedings  for  an  offence  against  this  Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant's breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant's breath indicated by the test.

…

(3)Except  as  provided  in  subsection  (4),  the  result  of  a  positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—

(a)The person who underwent the test is not advised by an enforcement officer, [without delay] after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes,—

(i)  In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be [conclusive] evidence to lead to that person's conviction for an offence against this Act; or

…

(4)Subsection (3)(a) does not apply if the person who underwent the test  fails  or  refuses  to  remain  at  the  place  where  the  person underwent the test until the person can be advised of the result of the test.

…

[5]      Section 64(2) is also relevant:

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.

District Court judgment

[6]      On this appeal there is no challenge to the findings of fact in the District

Court.

[7]      At paragraph 4 Judge Ingram said:

Putting the  best  possible  face  on  that  for  the  defence  I am left  in  this position.  I have a police officer who has, clearly, some experience in this area, who tells the motorist, either in response to an enquiry or off her own bat, that blood testing, in her experience, produces a higher reading than the breath test result.   She also makes it clear to the motorist that it is the motorist’s decision and it is not the police constable’s job to give advice or influence a decision as to whether or not the blood test is to be taken.   It must be borne in mind this motorist clearly was affected by alcohol at the time the conversation was held.  It was known that she had a breath alcohol reading above the permitted limit, and accordingly it must have been, at least to some extent, affected by alcohol.

[8]      The learned Judge then referred to two cases referred to by Mr Gowing, for the appellant, and to a decision the Judge had found: Butterworth v Police (2000) 18

CRNZ 122.  The Judge continued, with reference to Butterworth:

5         … Accepting that as being the best guiding light that I have, I need to consider what could the officer have done.  If there was a request from the motorist as to what was likely to happen if there was a blood test elected, it seems to me that police officers must be free to answer that question, as I consider that the whole purpose of the 10 minute period is to allow the motorist an opportunity to make a fully informed decision.

He continued:

6         In my view it is also appropriate for officers to make observations as to how long it will take for the medical personnel to attend and how long the procedures attendant upon giving blood are likely to take.  Those are matters which, in my view, a motorist is entitled to know.  Mr Gowing submits that if an officer says something to the effect that it is likely to be a higher reading if blood is elected then it would simply follow, in the ordinary course of human nature for most people, to interpret that as being advice from the police officer not to elect to give blood.  I accept that there is some force in that argument, but as against that I need, in this case, to consider the relatively friendly and open communications between the two protagonists, the police officer, on the one hand, and Ms M   on the other.  I also

need to consider the tempering advice that, clearly, Ms M   accepts she was given, that the officer made it clear to her that it was not for the officer to influence her decision.

7         When I stand back and look at the situation overall, it seems to me that the officer has been at some pains to emphasise to the motorist ‘it is your decision, it is a matter for you to decide.’  Can I fairly say that, in these circumstances,  the  officer  has  fallen  below  an  appropriate  standard  of conduct in relation to the 10 minute period and the advice that was given.  I am firmly of the view that the officer’s conduct here is not below that standard.  I consider that she has met any reasonable standard that could be imposed by the law.  In case I am wrong about that I consider that, in any event, this is a matter where there has been reasonable compliance.  The 10 minute period is unargued.  No-one is suggesting that 10 minutes were not given.  Full Bill of Rights advice was given, given in writing and orally, and signed off by the motorist.

8         In my view the police here have simply endeavoured to fully inform the motorist of matters which might be relevant to the motorist’s decision.  I need to record that Mr Gowing is not suggesting any lack of bona fides on the part of the officer.   He has made it clear, both in the course of cross- examination and in the course of the submissions, that he accepts that the officer was not motivated in any way by any considerations other than the proper conduct of her duties.   The question, from his point of view, was whether or not the conduct of her duties has adequately provided Ms M   with a free an informed choice.   In my view Mr Gowing’s helpful submissions notwithstanding, the officer has met that standard, and I do not consider that there is any room for his argument that her conduct fell below that standard.   If there is room for that view I would, nevertheless, hold that there has been reasonable compliance because  of  the  officer’s efforts to ensure that it was made clear to the motorist before the election was  given,  that  it  was  not for the  constable  to  influence  the  motorist’s decision.

Submissions

[9]      Mr Gowing, for the appellant, accepted that the mandatory steps prescribed in the Act were all followed.   He submitted that for that reason the reasonable compliance provision in s 64(2) is not relevant.

[10]     The central submission was that it is not a question as to the propriety of the officer’s conduct, as such, as opposed to the effect on the appellant of what was said. The evidence as to the effect was clear.   In this regard Mr Gowing referred to a recent decision of the Court of Appeal:  R v Aylwin (CA227/07, 6 June 2008).  The Court said, at [49]:

It may at first blush seem unfair that the defence of error in the result of breath tests has been removed.  However, at the same time as s 64(4) was amended, Parliament introduced safeguards.  The main safeguard was that the right to elect to undergo a blood test (and to be informed of that right) was extended to all those who returned a positive evidential breath test, whereas previously this was reserved for those with readings under 600.  In Livingston  v  Institute  of  Environmental  Science  and  Research  Ltd (2002)  20  CRNZ  253  this  Court  recognised  at  [49]  that,  although defendants’ rights were limited by the removal of the error defence, the introduction of a universal right to elect a blood test in the case of a positive evidential breath test was seen by Parliament as a sufficient safeguard:

These amendments were fully debated and Parliament added a new safeguard by providing the possibility of blood tests in cases where the result is over 600 as well as where it is under 600. That can be regarded as a quid pro quo for the removal of the ability to challenge the reliability of a breath testing device on a particular occasion.

[11]     Mr  Gowing submitted  that  the effect  of  the information  provided  to  the appellant, notwithstanding compliance with the specific statutory provisions, was that the appellant’s right to elect to have a blood test was rendered nugatory, or at least impaired to such an extent that the proper response of the Court is to exclude the evidence under s 30 of the Evidence Act 2006.

[12]     The written submissions of Ms Harold, for the respondent, set out the essence of the argument as follows:

29.With   reference   to   the   legal   principles   identified   above,   the respondent submits that the issue is whether the appellant’s choice to elect a blood test was fettered by the police officer’s comments.  If the appellant’s choice was fettered (which is denied), the evidential breath test is inadmissible pursuant to s77 unless saved by the “reasonable compliance” provisions of s64.

30.The respondent supports the learned District Court Judge’s finding that the police officer’s conduct had not fallen below an appropriate standard.  The police officer made it clear that it was the appellant’s decision and not her job to give advice or influence whether a blood test should be taken.  This is not a case where the appellant’s choice has been inappropriately fettered.

31.Furthermore, the respondent submits that the evidence demonstrates that the appellant also had factors other than the police officer’s comments on her mind.  These were how long it would take a nurse to get there, that the reading might go down, and that her daughter was at the station.

[13]     The submission was supported by reference to three cases:  Harvey v Police (HC WGN, AP104/01, 23 August 2001, Goddard J); Driscoll v Police (HC WGN, AP108/88, 27 July 1988, Ellis J); and McCafferty v Ministry of Transport (HC AK, M347/84, 18 June 1984, Vautier J).  So far as the facts of those cases are concerned Harvey is closest to the present.

[14]   Ms Harold submitted that there was no unfairness or other irregularity warranting exclusion of the evidence obtained from the evidential breath test.  It was submitted that the appellant’s right of election was not fettered.

[15]     It  was  further  submitted  that  if  there  was  an  element  of  irregularity the reasonable compliance provision in s 64(2) applied so that the evidence remains admissible.  Beyond that, it was submitted that the balancing exercise in s 30 of the Evidence Act 2006 should properly be exercised to admit the evidence of the breath test.

Discussion

[16]     In  his  decision  the  Judge  emphasised  the  reasonableness  of  the  police officer’s  actions.    He held  that  what  was  said  and  done  did  not  fall  below  an appropriate standard.

[17]     In my respectful opinion, the Judge asked the wrong question on the facts of this case.  If the conduct of a police officer falls below the appropriate standard then questions of admissibility are likely to arise, or may arise.   But questions of admissibility may also arise even though the conduct in question is not blameworthy. The question in this case is whether what happened had the effect of influencing the appellant away from the option of providing a blood sample.   There was clear evidence in this case that the effect of the information provided to the appellant – about the police officer’s understanding of the result of blood tests – was to persuade the appellant not to elect to provide a blood sample.

[18]     This clear evidence as to the effect on the appellant distinguishes this case from Harvey v Police.  In that case the motorist had asked the police officer what the

police officer thought about electing a blood test.  The police officer replied that “it would probably give a higher result than the evidential breath test”.   On the facts before it in Harvey the Court concluded that the motorist had made a voluntary decision to decline to undergo the blood test “untrammelled by any influence, undue or otherwise” (emphasis added).  The Court also noted that in that case there was no evidence that the appellant had in fact been influenced.

[19]     I have also considered the cases of Driscoll and McCafferty referred to me by Ms Harold, but I do not consider that they materially assist.  Each case must, in the usual way, turn on its own facts.

[20]   In this case there is evidence that the appellant had regard to other considerations.   In particular there was advice as to the possible delay before the blood test could be done.  However, it does appear clear from the evidence that the dominant consideration was the appellant’s conclusion from the advice she got about the blood test that there was “no point” in electing the blood test.

[21]     The Judge also said that it was reasonable for the police officer to provide the information that was provided so that the appellant could be fully informed.  This touches, to an extent, on the question of the police officer’s motive or intention which I have already said is not the central inquiry in my judgment.  But the Judge’s reference to fully informing the appellant points to another difficulty.  Once a police officer goes beyond giving the statutory advice, limited to the provisions of the Act itself, following the advice form, the difficulty which this case presents will begin to arise.  The fact is that in this case the appellant was only partially informed, if not misinformed.   The appellant’s own evidence, accepted by the Judge, was that she could see no point in electing to provide the blood sample.   But as the Court of Appeal made clear in R v Aylwin there is a lot of point for a motorist in electing to provide a blood sample.   In this case the appellant was given some information providing a reason not to provide a blood sample.  But she was not told, for example, that on the other hand if she gave a blood sample she would be able to do something which she could not do with the breath test; that is, get an independent analysis.  It may be that if the discussion had got into this sort of detail the appellant’s decision would have been the same as what it was in fact.  But that is a matter of speculation.

[22]     In my judgment s 64(2) is not relevant.  In this case it is accepted, and in any event clear from the evidence, that the officer did comply with the provisions of s 77. The issue here does not concern a matter of compliance with the statutory provision but steps taken outside the statute altogether.  In my opinion those steps resulted in unfairness to the appellant, notwithstanding that there is no question as to bone fides of the police officer.

[23]     Having concluded that there was unfairness it is then necessary to consider whether the proper response of the Court would be to exclude the evidence under s 30 of the Evidence Act.  I received submissions from both counsel on this.  I think it is fair to say that the principal submission for the respondent was that the right in question in this case is not a right as significant as those provided for in the Bill of Rights Act.  Mr Gowing submitted that it is an important right and again referred to the  Court  of  Appeal’s  decision  in  Aylwin  in  support  of  that  submission.    He submitted that against that this was not a particularly serious offence.

[24]     In my judgment the right provided in s 70 is an important right and I agree with Mr Gowing that the reasons for that are as set out in the Alywin decision.  I also agree that the offence is not particularly serious if weighed in relation to the full range of offences in the Crimes Act and other enactments.  That is not to suggest that drink  driving  is  not  a  serious  problem  and  that  the  offence  is  not  of  great consequence.  But the task of the Court under s 33 is to weigh this offence against all other offences.

[25]     I am also mindful of the fact that under s 33 that the evidence that would otherwise be admissible is decisive; that is, the evidence from the evidential breath test.

[26]     It is appropriate in carrying out the weighing exercise under s 33 to consider whether  there  is  an  alternative  remedy to  exclusion  of  the  evidence  which  can adequately provide redress to the defendant.  A possibility in this case might be to reduce the fine of $450 that was imposed, or to modify the sentence in some other or additional way.   However, in my opinion, that does not sufficiently deal with the

consequences of what has occurred in this case.  In my judgment, the correct course in this case would have been to exclude the evidence.

Result

[27]     The appeal is allowed.  The conviction is quashed.  The evidence from the evidential breath test is ruled inadmissible and the charge is dismissed.

Peter Woodhouse J