M v Police HC Tauranga CRI 2008-470-35

[2009] NZHC 691

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2008-470-35

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 May 2009

Appearances: W T Nabney for Appellant

C A Harold for Respondent

Judgment:      10 June 2009

JUDGMENT OF KEANE J

This judgment was delivered by Justice Keane on 10 June 2009 at 9am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland

M V POLICE HC TAU CRI 2008-470-35  10 June 2009

[1]      On 1 October 2008 M   was convicted of driving with an excess blood alcohol on 21 September 2002 at Te Aroha. His blood alcohol level was 121 milligrams  of  alcohol  per  100  millilitres  of  blood.  He  was  fined  $900  and disqualified for nine months. In defending the charge Mr M   took unsuccessfully three points, two of which he pursues on this appeal.

[2]      First,  he  contends,  the  Judge  was  wrong  to  hold  that  a  failure  by  the prosecution to disclose information relating to the breath screening device had not prejudiced his right to a fair trial. He had not been supplied a print-out of the last 500 instances in which the device had been used. He could not then put in issue, on the basis of objective evidence, whether, as well as being screened at the roadside, he was breath tested.

[3]      Secondly, he contends, the Judge was wrong to hold the analyst’s certificate admissible. There was a discrepancy between the address given on the information and that in the analyst’s certificate. Both described him as living in Waiti Road, Tahuna. The street numbers differed. That in the information was 740 and that in the certificate 742. That denied the certificate validity and presumptive force. It could not be cured as a matter of reasonable compliance.

Evidence

[4]      At 11.25 pm on 21 September Constable Henderson, on patrol on Bailey Road, Te Aroha, noticed a car travelling at speed on Ngutumanga Road. He stopped it, using red and blue flashing lights, near the intersection with Te Kawana Road. The driver identified himself as Kyle M   of Waiti Road, Tahuna. The constable noticed a strong smell of alcohol. Mr M   admitted that he had recently consumed alcohol.

[5]      The constable administered, he said, a passive breath test using an Alcotech AR 1005 device. It returned a fail result, which he showed Mr M  . He then required Mr M   to undergo a breath screening test. He conducted that test in accordance with the 1989 (No 2) Notice. It too returned a fail general result.

[6]      The constable told Mr M   that this meant that the level of alcohol on his breath might exceed the legal limit and he required him to accompany him to the Morrinsville  police  station  for  an  evidential  breath  test,  blood  test  or  both.  He advised him of his right to advice at the roadside and later, at 11.53 pm, at the police station.

[7]      The constable had Mr M   undergo  an evidential breath. Shortly after midnight it returned a reading of 546 milligrams of alcohol per litre of breath. The constable advised Mr M   of this, again advised him of his right to advice, and, at

12.11 am, using the standard form, advised him of his right to elect the taking of a blood sample. Mr M   acknowledged that advice. Within a minute he opted for a sample to be taken.

[8]      The constable entered Mr M  ’s details on a blood specimen form and, in the words of the form, advised him that he was required to permit a registered medical practitioner to take a specimen of his blood, in accord with normal medical procedure, and asked for his consent. Mr M   answered ‘yes’ and signed the form. The constable witnessed this and circled ‘agreed’.

[9]      The constable contacted the on-call doctor, Dr Douie, who arrived shortly after, gave the doctor a blood specimen collecting kit, and saw him take Mr M  ’s blood at 12.40 am. He received the specimen bag from the doctor and sealed it. The doctor completed his certificate that he had taken the blood from Mr M   and given it to the constable.

[10]     On  28  September  2007  the  constable  received  the  analyst’s  certificate advising that the specimen on analysis contained 121 milligrams of alcohol per 100 millilitres of blood; the level set out in the information.

Disclosure issue

[11]     The  constable,  when  cross-examined,  agreed  that  an  Alcotech  AR  1005 device can be used for two purposes at the roadside, passive testing and then breath screening. The former requires only that the person tested speak close to the device.

If there is alcohol on his or her breath that registers as ‘fail’. The latter requires that he or she blow into a tube attached to the device. The result is ‘fail general’ or ‘fail youth’ or ‘pass’.

[12]     Mr Nabney put to the constable that he passively breath tested Mr M   but did not have him undergo a screening test and, thus, had no basis to require Mr M   to accompany him to the Morrinsville police station. The constable denied this. He said that he had tested Mr M   in the two ways called for.

Want of disclosure

[13]     The constable confirmed that Mr M  ’s former counsel had asked him in a letter dated 23 November 2007, within three weeks of Mr M   first appearing in the District Court, for wide ranging disclosure, including a printout of the last 500 tests registered on the Alcotech AR 500 device used.

[14]     The constable agreed that, when he responded, by letter dated 6 December

2004, he had noted that a printout was not available. He had, he said, passed the entire request to the ESR. He had disclosed whatever they returned. If they had not disclosed the printout, he had not. He had earlier said, as the Judge then remarked, that he was unaware of what the attributes of the device were.

[15]     In submission, Mr Nabney contended, such a want of disclosure constituted an abuse of process justifying stay or dismissal, relying principally on New Zealand Police v Gollop (HC WN, CRI 2006-091-253, 16 April 2007), Miller J. Without the printout Mr M   could not contest the constable’s evidence as to the fact of a breath screening test unless, as he was under no duty to  do,  he  gave evidence himself.

Decision

[16]     The Judge, in ruling that there had been no abuse of process, immediately distinguished the Gollop case. In this case, in contrast to that, he held the ability to print  out  previous  test  results  was  not  established  in  evidence.  Moreover,  the

constable had done all he could by passing the request to the ESR. He had not refused the request.

[17]     In  this  the  Judge  accepted  that  while  the  constable  had  been  under  a continuing duty to disclose anything material, any apparent failure on his part to disclose the printout was not worthy of criticism. In the face of the constable’s clear evidence that he had carried out a breath screening test, any serious challenge would have called for a more sustained request than the single one made.

[18]     The Judge concluded that the constable had not acted in bad faith and that Mr

M  ’s right to a fair trial had not been prejudiced, even notionally.

Submissions on appeal

[19]     On  this  appeal  Mr  Nabney  contends  that  disclosure  of  the  printout  was critical to Mr M  ’s defence. The omission to screen could not have been excused as reasonable compliance under s 64(2) of the Land Transport Act 1988. Absent a negative breath screening result the constable had no right to advance the testing process any further.

[20]     The Judge, he contends, by intervening, closed off the issue whether the particular device was capable of yielding a printout; and thus there was no true distinction between this case and Gollop. Implicitly the Judge imposed on Mr M   a duty to show that the device could yield a printout. But the duty of disclosure rested on the police. Nor should the defence have had to make more than one request.

[21]     The failure to disclose, Mr Nabney contends, therefore, as he did before the Judge,  prevented  Mr  M    from  properly  advancing  his  defence;  and  that constituted an abuse of process justifying dismissal or stay.

[22]     To  this,  Ms  Harold  responds,  the  Judge’s  conclusions  that  there  was  no evidence the device used could yield a printout, and that the constable had said he was willing to revisit any issue of disclosure, have to be telling. They distinguish this case from the Gollop case. Neither stay nor dismissal was called for.

[23]     In  this  Ms  Harold  relied  especially on  the constable’s  final  letter  to  Mr M  ’s original counsel, completing disclosure, dated 27 December 2007, in which he said this:

In the event that it becomes apparent to you that a disclosure has not been made of a particular document, I would appreciate you communicating this fact as soon as possible and prior to a defended hearing date so that the situation can be rectified as total disclosure is provided in good faith and human error is possible and should not be taken advantage of.

[24]     The constable then confirmed that, had he been asked to attempt to obtain a printout he would have done so. He would certainly have disclosed it had it been in his possession.

Abuse of process and fair trial

[25]     The power to stay or dismiss for abuse of process, Randerson J  said in Attorney General v District Court at Hamilton [2004] 3 NZLR 777, at 786, gathering the effect of the authorities, derives from the conduct of the prosecution in at least two senses:

First, where the prosecutor’s conduct would preclude a fair trial. Secondly, where the prosecutor’s conduct is so inconsistent with the purposes of criminal justice that to proceed with the prosecution would tarnish the integrity of the Court or offend its sense of justice and propriety.

[26]     In Moevao v Department of Labour [1981] NZLR 464 at 482, the first case to which Randerson J referred, speaking of the Court’s ability to stay to prevent an abuse of its own process, Richardson J said that the issue was not simply one of fairness to the particular accused ‘the focus is on the misuse of the Court process by those responsible for law enforcement’.

[27]     In Fox v Attorney General [2002] 3 NZLR 62, CA, McGrath J widened the analysis. The jurisdiction is not only to be exercised where a fair trial is precluded. Nor is it a disciplinary power. But both, as it seems, usually figure. Even prosecution conduct, not in itself open to criticism, that prejudices the defence, McGrath J said at para [37], that can be enough.

[28]     Alternatively, as Randerson J went on to say, an ability to stay or dismiss derives from a breach of s 24(d) and 25(a) of the New Zealand Bill of Rights Act. In R v B [1995] 2 NZLR 172, Richardson J described as fundamental to a fair trial and personal liberty the right of the defence to be ‘on a footing of equality with the prosecution in preparation for’ trial. That includes ‘adequate access to evidence the defence requires’.

[29]     In these cases stay or dismissal was described as an extreme step. Lesser remedies must always be considered. The wider public interest has to be consulted. As Randerson J said at para [57], that calls for the weighing of three considerations: (i) the seriousness of prosecution misconduct; (ii) how material the disclosure requested was to the trial and how serious the effect on the defence; (iii) whether a remedy short of stay or dismissal might still serve.

Conclusions

[30]     The printout the defence requested, and here I differ from the Judge, could have been of real assistance to the defence. It could have supplied an objective basis for challenging the constable’s evidence. But that is not enough.

[31]     What was decisive in the Gollop case was the lack of response by the police to pressing requests for the printout. When the police put in issue whether a printout had or could ever have been taken and could be obtained counsel drew their attention to the operational manual. That the police remained unmoved proved fatal.

[32]     In this case there was a single request and though in his initial response the constable said the printout was not available, and clearly he had no knowledge of the properties of the device, and relied on the ESR, in his final letter he invited the defence to alert him to any want of disclosure. Mr M  ’s then counsel did not press his request. Nor was it pressed afterwards and before trial.

[33]     The Judge was entitled to treat that as the decisive consideration. Mr M   ought not to have been able to take advantage at trial of a want of disclosure that, if

pressed  further,  could  have  been  resolved  definitively  before  trial,  and  which involved no unfairness, even inadvertently, on the part of the prosecution.

Analyst’s certificate

[34]    The second issue arises in this way. In all the documents the constable completed during the process, he gave Mr M  ’s address as 742 Waiti Road, Tahuna. That address was also entered on the blood specimen medical certificate completed by Dr Douie. It appears on the analyst’s certificate. Yet the constable addressed the traffic offence notice to 740 Waiti Road. That is also the address on the information.

[35]     Relying on this discrepancy, Mr Nabney submitted that the police could not rely on the presumption in s 76(1)(a) that the person referred to in the analyst’s certificate was Mr M  . Nor could the other presumptions s 76(1) makes apply. That could not be cured as a matter of reasonable compliance under s 64(2).

Decision under appeal

[36]     The Judge held that the doctor’s certificate was not the only means by which he could be satisfied that the blood sample to which it referred had been taken from Mr M  . There was no evidence that Mr M  ’s correct address was not 742

Waiti Road, Tahuna. The contrary was the case. Moreover, there was clear evidence that the sample was taken from him.

[37]     Further, the Judge held, the certificate when linked with that given by the analyst under s 75(5) served to establish presumptively that the sample taken had been  received by an approved analyst, had neither deteriorated nor congealed, and was capable of proper  analysis, and that the blood alcohol level established on analysis was that in the information. All the documentation was consistent.

[38]     Why the traffic offence notice and the information gave the address of 740

Waiti Road, Tahuna, the Judge said, was unclear. It could not lead to any doubt. Therefore there was no issue whether s 64(2) applied to excuse any want of accuracy

as a matter of reasonable compliance. In this the Judge distinguished Coltman v

Ministry of Transport [1979] 1 NZLR 330.

Submissions on appeal

[39]     On this appeal Mr Nabney submits that before the presumptions in s 76 presumptively tying Mr M   to the sample taken and to the analysis made, his name, address and occupation must have been stated correctly in any certificate given under s 75(2) by the medical practitioner who took the sample.

[40]     In holding otherwise, Mr Nabney submits, the Judge effectively reversed the onus. It was always for the police to prove that Mr M   was the person named in the certificate. It was not for Mr M   to prove that he was not.

[41]     In Coltman, Mr Nabney submits, the Court of Appeal held that the doctor’s certificate must refer to the person having the same name, address and occupation as the  defendant.  There,  he  accepts,  the  Court  did  excuse  the  inaccuracy  in  the certificate  as  to  street  number,  on  the  basis  that  there  had  been  reasonable compliance. However, s 64(2), the equivalent provision now, does not apply to s 76.

Certificates and presumptions

[42]     Section 75(1) says:

Except as provided in section 79, production of a certificate to which this section applies in proceedings for an offence against this Part is sufficient evidence, in the absence of proof to the contrary, of such of the matters as are stated in the certificate and of the sufficiency of the authority and qualifications of the person by whom the certificate is made and, in the case of a certificate referred to in subsection 5, of the person who carried out the analysis.

[43]     The first certificate to which the presumption in s 75(1) attaches is  that usually given by a medical practitioner complying with s 75(2) and, as subpara (a) says, by first stating:

A specimen of venous blood was taken by the practitioner or medical officer in accordance with normal medical procedures from a person named in the certificate;

[44]     The presumptions in s 76 linking the defendant with the practitioner’s and analyst’s certificates given under s 75, and thus the sample analysed, assume that he or she has the same name, address and occupation. Section 76(1)(a) makes this conditional presumption:

If a certificate referred to in section 75 names a person having the same name, address, and occupation as the defendant as the person from whom the specimen of blood was taken, the specimen was taken from the defendant:

[45]     In Coltman the blood specimen consent form and analyst’s certificate both attributed to the defendant the right road address but the wrong number. The right number was established in evidence. The Court held  that  the inaccuracy in  the certificate could not be glossed over. But it was slight and there was no real doubt from whom the sample had been taken. The certificate complied reasonably with what the law required. Indeed, Cooke J said at 337:

There could be a wide or even total discrepancy if, for instance, a defendant were to give wrong information to a traffic officer. The greater the discrepancy, the slower the Court would be to find reasonable compliance. But if the evidence satisfactorily accounts for the discrepancy, in the sense that there is no reasonable doubt that the certificate does relate to the defendant’s blood and reasonable care has been taken in obtaining the particulars … the Court would usually be entitled to find reasonable compliance.

[46]     In Police v Orr (HC PMN, AP 16/98, 17 February 1999), where the driver gave a false name, and that proved fatal at first instance, on the appeal Gendall J concluded, as the Judge did here, that on the evidence there could be no question that the sample to which the certificate related came from the defendant and the usual presumptions applied. As he said:

A name is simply a way of identifying a person and it is possible for a person to change his or her name, or go under more than one name yet they will still be the same person. The certificate of analysis does not identify the defendant, but rather it identifies the specimen of blood. If the prosecution is able to establish by some evidence, outside the certificate itself, that the certificate and analysis relates to and was intended to relate to the person who is the defendant then in my view the contrary has been proved.

[47]     Gendall J saw direct evidence of identification as sufficient. But he went on to add that, if need be, on the Coltman principle, the discrepancy in the certificate between the person named and the person from whom the blood was taken could be cured by regarding the certificate as complying reasonably with the provision then governing the certificate, s 58G.

[48]     Mr Nabney’s final point is, however, that since these cases were decided the ability to cure any inaccuracy in name or address, going to the identity of the person named in the certificate, and the related presumptions, has been taken away. Section

64(2), that now gives the remedy of reasonable compliance, does not apply to s 76. That is literally true but it is without significance. The answer lies in this.

[49]     Originally s 75(1), (2)(a) were to be found in s 58G(1)(a), and s 76(1)(a) was to be found in s 58G(3)(a). The reasonable compliance provision, s 58I, by referring to s 58G happened to capture both. But it did not need to do so. The presumptions in s 76, linking the defendant to the analysis made, come into play as a result of the certificates given under s 75. If the certificates prove invalid then the s 76 presumptions are rendered devoid of force. But if any deficiency in a s 75 certificate is cured by s 64(2) the presumptions revive.

[50]     There was never any need, therefore, for the curative power now given by s 64(2) to apply to the presumptions now set out in s 76. Indeed it could not do so. Section 76 imposes no duty to which s 64(2) could attach. Section 64(2) rightly makes no reference to it.

Conclusions

[51]     I accept then, as Ms Harold says, that while the discrepancy between the addresses in the certificate and information meant the prosecution was not able at least in the first instance to rely on s 76(1)(a) to tie Mr M   to the sample taken, but the Judge was entitled to rely on evidence independent of the certificate to link Mr M   to the sample, if only to invoke s 64(2) as to the certificate.

[52]     I agree also with her related submission that the Judge was able to rely on the presumptions contained in s 76 that flowed from the certificate, and the related analyst’s certificate, once Mr M   was identified to be the person from whom the sample  was  taken.  Either  that  was  sufficient  by itself  or  any deficiency  in  the doctor’s s 75(2) certificate was cured by s 64(2).

Result of appeal

[53]     Neither of Mr M  ’s points avail him. The want of disclosure of any test printout that the Alcotech AR 1005 device was capable of yielding, though material, did not warrant dismissal or stay; the request ought to have been pressed further. There was secure direct evidence that the specimen of blood analysed, the presumptive validity of which has not itself been put in issue, did come from Mr M  ; any related deficiency in the certificate was minimal and capable of cure.

The appeal will be dismissed.

P.J. Keane  J