M v Police HC Wellington Cri-2009-485-96
[2009] NZHC 2145
•24 November 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2009-485-000096
BETWEEN M
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 24 November 2009
Counsel: W M Johnson for Appellant
I Murray for the Respondent
Judgment: 24 November 2009
JUDGMENT OF MILLER J
[1] This is an appeal against conviction for driving with excess breath alcohol. The appellant complains that:
• There was insufficient evidence before the District Court that the breath testing device used to test the appellant was the same device for which a Certificate of Compliance was produced;
• The District Court Judge was wrong to conclude that there was no cross- examination amounting to a direct challenge to link the breath testing device and the printout purporting to identify that device;
• The evidence of the police officer to the effect that he conducted a breath screening test on the “Drago 6510” did not satisfy the evidential
requirement as there was no such device with that description. The
M V NEW ZEALAND POLICE HC WN CRI-2009-485-
000096 24 November 2009
approved device is a “Drager 6510”, which produces a printout result of
“failed gen” and not “failed general” as the officer said in evidence.
Background
[2] Shortly after midnight on 15 March 2008 the appellant was found seated in a stationary car which had been recently operated. The keys were in the ignition. A police detective administered a passive breath test, which the appellant failed. He accompanied the officer to the police station, where an evidential breath test produced a result of 997 micrograms of alcohol per litre of breath, more than twice the prescribed limit.
[3] The appellant pleaded not guilty and the prosecution was put to the proof of its case. The Judge rejected the two technical points which were the basis of the defence, namely that the breath testing device was not properly identified, and that the detective’s description of the result was defective, to the extent that it could not be said that a breath screening test was in fact conducted.
[4] On the first issue, the printout from the evidential breath testing device stated that it was a Seres Ethylometre Model 679ENZ serial number 2924. The Evidential Breath Testing Device Certificate of Compliance, produced as an exhibit, stated the same. Since the officer forgot to write down the serial number of the device on his check sheet when he administered the test, Mr Johnson argued that there was no independent evidence that this was the device (serial number 2924) used to administer the test.
[5] This argument failed in the District Court. The Judge held that it sufficed that the officer who administered the test asserted that the device used was in fact the same as cited in the Certificate of Compliance, and that assertion was not directly challenged upon cross-examination: Brown v Police HC HAM CRI-419-87-04 22
November 2004 Priestley and Winkelmann JJ.
[6] On the second issue, the Judge regarded as unsustainable technicalities the submissions that the test result was not proved because the officer called the device a
“Drago 6510” and gave evidence that the machine’s screen read “failed general”
rather than what it actually said, “failed gen”.
Discussion
[7] I deal first with the sufficiency of the officer’s assertion that the device was the same machine referred to in the Certificate of Compliance which must be produced under s 75A(2) Land Transport Act 1998. That section provides, relevantly:
At any trial or defended hearing for an offence involving excess breath alcohol recorded by the device..., the prosecution must produce to the court a certified copy of the certificate of compliance. The certification must be given by a person authorised for the purpose by the Commissioner and must state that the copy is a true copy of the original certificate.
[8] Obviously the certificate must relate to the device used. Here the Judge correctly observed that the serial number recorded on the printout was hearsay evidence of the serial number of the device (following Brown at [32]). So the printout was prima facie insufficient to establish the link. Something additional, such as the police officer’s oral evidence, was necessary. A simple assertion to that effect may suffice. The Court held in Brown at [40]:
The issue in this case is whether on the evidence there is any real doubt that the s 75A certificate of compliance related to the device used to produce that evidential breath test result. There is no real doubt as to this matter when the evidence of the Constable as to his request for a certificate of compliance for the device is considered. In the absence of any challenge to that linkage on crossexamination, the simple assertion by the Constable that the certificate of compliance was for the device is sufficient evidence. If [counsel] wished to put at issue whether the certificate of compliance produced was for the device used, then he needed to raise this issue by direct cross-examination.
[9] In this case the officer said the device described in the Certificate of Compliance was that used on the appellant. When referring to printouts he stated that they were printed by “the” machine used at the time. Counsel’s submission that this was insufficient evidence to draw the evidential link is simply wrong.
[10] Counsel also assumes mistakenly that any challenge to such evidence in cross-examination, no matter how oblique or ineffective, would displace the officer’s
evidence that the same machine was used. That is not what the Court said in Brown, as the Judge in this case recognised. The question for the Judge was whether the identity of the machine was proved on the evidence as a whole, including the cross- examination.
[11] In any event, I agree with the Judge that the cross-examination on this point did not directly challenge the officer’s evidence on this point, still less displace it. The Judge set out the relevant portions of the cross-examination as follows:
Q. Oh okay. Have a look at the checklist. You have not recorded there, have you, the serial number of the evidential breath testing device?
A. No, it’s noted on the evidential printout from the machine.
Q. Mm. What occurred was this. On the 23rd of October [at an earlier fixture date], you were seated at the back of the Court, is that right?
…
And I made a submission to the Judge about the lack of recording of the serial number of the device, is that right?
A. That’s correct.
Q. Your response to that was to go away and by letter dated the 7th November suggest that the serial number of the device was recorded in the EBA printout/
A. That’s correct. And shortly afterwards:
Q. Well, you perceived that there was an argument as to this non- recording of the serial number of the device, didn’t you?
A. I didn’t want there to be any misunderstanding, Mr Johnson.
…
Q. There’s no misunderstanding that at the time that you were completing this checklist you did to take note of the serial number of the device in your notes, did you?
A. No.
Q. There’s no argument about that, is there? What you rely on is the printout from the device, is that right?
A. That’s correct.
[12] As the Judge observed, Mr Johnson merely established that the officer did not independently record the serial number in his checklist and relied on the serial number given in the printout.
[13] The Judge also noted that the serial number on the printout from the machine, although hearsay, nevertheless was likely to be admissible as an exception to the hearsay rule. Had anything turned on it, he would have permitted the necessary evidential foundation to be laid for its admission under ss 16-22 of the Evidence Act
2006. I respectfully agree that it might have been admissible, on the basis that the person who programmed the serial number into the machine was the maker of the statement: cf. Brown at [47].
[14] Turning to the second issue, I reject as wholly insubstantial Mr Johnson’s challenge to the sufficiency of the officer’s description of the breath testing procedure. As noted above, the officer said the machine reported “failed general” when the screen must have read “failed gen”, and he called the device a “Drago
6510”, rather than a “Drager 6510”. There is no room for genuine doubt about the identity of the device or the failed result, which as the Judge noted was followed by an evidential reading far in excess of the legal limit. The argument also assumes that the precise details of the procedure used must be recited, letter-perfect, in oral evidence. That is not the law. The Court of Appeal said in R v Aylwin at (2008) 24
CRNZ 87 at [66]:
...it is not fatal if the prosecution fails to give evidence of the manner in which the breath screening and evidential breath tests were administered. It suffices to give evidence that they were administered and a result obtained.
[15] The days are long gone when any trifling technicality might defeat a drink- driving charge. That has been made clear by the legislature (in 64(2)), the Supreme Court (in Aylwin v Police [2009] 2 NZLR 1), and by the Court of Appeal and this Court on innumerable occasions. So far as the mis-spelling of “Drager” and the words “failed gen” are concerned, any residual doubt that counsel may have laboured under should not have survived the rejection of the identical arguments in Pearce v Police HC WN CRI 2008-485-140 30 April 2009.
Decision
[16] The appeal is dismissed.
Miller J
Solicitors:
W M Johnson, Wellington for Appellant
Crown Solicitor’s Office, Wellington for Respondent
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