Malhotra v Police

[2013] NZHC 1788

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000167 [2013] NZHC 1788

BETWEEN  HARJOT MALHOTRA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   16 July 2013

Appearances:           Z K Mohamed for Appellant

K Francis for Respondent

Judgment:                16 July 2013

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            Z Mohamed, Auckland

MALHOTRA v POLICE [2013] NZHC 1788 [16 July 2013]

Introduction

[1]      On or about 29 May 2013, (although the record of decision states 28 May), Judge Mathers in the District Court at Waitakere found Mr Malhotra guilty of one charge of driving with excess breath alcohol and one charge of driving while disqualified.   Mr Malhotra appeals against the conviction for driving with excess breath alcohol.   The appeal against  conviction  for driving whilst disqualified is abandoned.

Background

[2]      On Sunday 5 February 2012 at approximately 2.15 am Mr Malhotra was pulled over by a constable in Henderson.  He failed both a passive test for alcohol and a breath screening test while at his car. The constable then asked the appellant to accompany him to the Henderson Police Station for the purposes of an evidential breath test or blood test or both.  The constable gave the appellant his rights at the time.

[3]      After they got to the police station the constable searched the appellant’s records  on  the  police  data  base  and  discovered  he  had  been  disqualified.    He discussed this with the appellant and again  gave him his rights under the  New Zealand Bill of Rights Act 1990.  At 2.48 am the appellant indicated he wished to speak with a lawyer and was given the Legal Assistance roster.   He chose Ms Thompson,  whom  he  spoke  to  on  the  phone.    After  the  phone  call  with  Ms Thompson the constable required the appellant to undergo an evidential breath test. The appellant ultimately did so returning a level of 871 micrograms of alcohol per litre of breath, over twice the legal limit.  The appellant was advised of his right to undergo a blood test but did not elect to do so.  After the expiry of the 10 minute period he was arrested.

The District Court hearing

[4]      At the conclusion of the prosecution case against him the appellant’s counsel, Mr Mohamed, indicated the appellant elected not to give evidence.   Instead Mr Mohamed  submitted  the  information  should  be  dismissed.    The  Judge  required

written submissions.  Mr Mohamed submitted first the results of the evidential breath test were obtained in breach of the appellant’s rights under the New Zealand Bill of Rights Act.  Second, the constable failed to carry out the test without delay and third, that the constable abused his powers of arrest.  The Judge rejected the second and third points as being without merit.  They are not pursued on appeal.  It is the first point which is more difficult.

[5]      In  her  decision  the  Judge  focused  on  the  interaction  between  the  police officer and the appellant in relation to the requirement the appellant undertake the breath  test.    The  Judge  discussed  the  advice  from  the  lawyer  disclosed  by the appellant to the police officer, which apparently was not to blow into the machine and then the police officer’s exchange with the appellant, before concluding:

[9]       I accept Mr Mohamed’s submission that the test is an objective test as to whether the constable’s advice, if indeed it was given, was such that the average intelligent citizen would be likely to be misled by it.  I am satisfied that if the advice was given, an intelligent citizen would be likely to be misled.

[10]      The defendant was told by his lawyer not to blow in the machine. He must have been told he would then be required to take a blood test.  If, as the officer said, he gave the standard warning that a blood test would then be required, it is strange that the defendant would then ignore his lawyer’s advice and blow in the machine.

[6]      The Judge then went on to consider s 30 of the Evidence Act 2006 against the introductory statement “Even if I find that very unintentional statement caused a breach of the Bill of Rights Act”.  Ultimately the Judge concluded that to exclude the evidence of the breath test would be out of proportion to the breach.  She held the evidence admissible and the charge proved.

[7]      It is, with respect, a little difficult from the above to ascertain whether the Judge actually found that the police officer had breached the appellant’s rights under the New Zealand Bill of Rights Act but nevertheless ruled the evidence admissible under s 30 or whether the Judge had found against the appellant on the first point and, out of an excess of caution, had gone on to consider the s 30 analysis.

Decision

[8]      In any event it falls to this Court to consider the appellant’s point raised on this appeal, namely that the police officer compelled the appellant to take the evidential breath test, which was in breach of his rights under s 23 of the New Zealand Bill of Rights Act.  The appellant relies on a decision of Young v Police1 in that regard.   The appellant also submits that Judge Mathers’ approach to the s 30 balancing test was incorrect and that the evidence should have been excluded.  The appellant relies on the case of O’Connor v Police2  where Fogarty J excluded the evidence, despite acknowledging the seriousness of driving while intoxicated.

[9]      The issue arises in the following way.   In his evidence-in-chief the police officer confirmed the appellant had exercised his right to speak to the lawyer Ms Thompson at 2.55.  Then at 2.59 the police officer said he required the appellant to undergo an evidential breath test.  The result was a reading of 871.  The officer then read the advice on the evidentiary breath test form to the appellant, including his right to undergo an evidential blood test. The appellant did not ask for a blood test.

[10]     The issue the appellant relies on was addressed for the first time in cross- examination.  In the following exchange, the constable was asked to read the last two lines on the check list:

A.       I’ve written that when I – “When required to blow, stated lawyer told him to do nothing.  Did blow after being told he must.”  That was an abbreviation of me explaining that if he did not blow, then he would be required to supply, for analysis, a sample of blood.

Q.       So you told him that he must?

A.       Yes.  I told him that he was required –

[It appears that counsel then pursued the following question:]

Q.       That’s what you’ve written down?

A.       I wrote that he must – I told him that he was required to do so. Q.  So he then blew into the machine?

1      Young v Police HC Auckland M1750/84, 22 February 1985 at 6.

2      O’Connor v Police [2010] NZAR 50 (HC) at [26].

A.        That’s right.

Q.        Ignoring the lawyer’s advice, obviously?

A.        Clearly.

And then later in re-examination the point was addressed in the following way:

Q.        It was put to you under cross-examination in relation to your notes made about, at the rear of exhibit 1 which, sorry exhibit 2 which relate  to  discussions  between  you  and  the  defendant  about  the lawyer, do you recall what the defendant said about the lawyer, sorry what the defendant, what he recorded about the discussion with the lawyer?

A.       That the lawyer told him not to blow. Q.   What was your response to that?

A.        I told him that should he not blow then he would be required to under – to supply a blood sample.

[11]     Mr Mohamed submits that the police officer’s note that the appellant did blow after being told he must effectively amounted to telling a suspect that he or she must ignore legal advice and was a serious breach of the New Zealand Bill of Rights Act.  While acknowledging the police officer alleged that this was an abbreviation Mr Mohamed noted that the matter had not been raised until his cross-examination of the officer.  He then criticised the Judge’s finding that if there was a breach it was unintentional.

[12]     As noted, Mr Mohamed also relies on the case of Young v Police, a decision of Chilwell J.   In that case the police officer had failed to complete the requisite forms.  In giving evidence, however, the officer said that despite the fact he had not completed the forms he had followed the procedure in the forms. The Judge held:3

Where, as here, the enforcement officer produced a form which, prima facie, indicated a failure to assemble in terms of the Notice and attempted to plug the gap by saying “trust me” the trial Judge could not, in my judgment, have been sure of guilt beyond reasonable doubt.

The appeal was accordingly allowed.

[13]     Mr Mohamed submitted that in Young the officer effectively asked the Court to trust him as to the assembly of the device and in this case the constable was asking the Court to trust him that he wrote “Did blow after being told he must” as an abbreviation.  He submitted there was a clear link between the reason for ignoring the advice and the demand in relation to undergoing the test.  The “must” suggested compulsion.  He submitted the District Court Judge misunderstood the situation and was confused.  He submitted that in light of the improper breach of the appellant’s rights the exclusion of the result of the evidential breath test was in this case proportionate and the evidence should have been excluded.

[14]     The starting point must be the evidence and its application to the relevant statutory  provisions  that  apply.    At  the  stage  the  officer  was  dealing  with  the appellant at the station s 69(4) of the Land Transport Act 1998 applied.  That section provides:

If a person—

(a)       Has  accompanied  an  enforcement  officer  to  a  place  under  this section; ...

an enforcement officer may require the person to undergo without delay at that place an evidential breath test (whether or not the person has already undergone a breath screening test).

[15]     While the person may decline to undergo an evidential breath test, if they do decline, then in accordance with s 72 that person must permit a blood specimen to be taken when required to do so by the enforcement officer.  If they fail to submit to that then that itself is an offence.

[16]     The Crown relies on the decision of Blanchard J sitting in the High Court in the case  Manihera  v Police4  where the Judge considered  a former section in a similar, if not identical wording to s 69(4).

[17]     In that case, after referring to an earlier decision of his own in Keni v Police5

Blanchard J concluded that in the absence of cross-examination:6

4      Manihera v Police HC Rotorua AP82/93, 27 September 1993 at 10-11.

5      Keni v Police (1992) 9 CRNZ 374 (HC).

I am satisfied that it is safe to assume that the constable’s reference to the “requirement” would have been to a form of words consistent with, and probably in the exact terms of, s.58B(4) of the Transport Act.

[18]     He then went on to state:7

I agreed that a statement that a person is “required” to undergo an evidential breath test – following the language of the Act – would strongly suggest that the breath test was compulsory.  But I said that, if the use of the words in the Act would have this effect, I did not think it was of significance that a slightly different form of wording might also convey that impression. Obviously I thought then, [referring to Keni] and I think now, that a police officer cannot be criticised for using the exact language of the Act.

[19]     For those reasons the Judge concluded there was no inadequacy or breach of the New Zealand Bill of Rights in what was said to the appellant about the evidential breath test.

[20]     In my judgment, on the evidence before the Court it was open for the District Court Judge, and it is open for this Court, to find that in the present case the officer did say to the appellant that he was required to undergo an evidential breath test.  In doing so the officer was referring to the obligation on the appellant under s 69(4) of the Act.  Like Blanchard J in Manihera I do not consider that such a reference can be said to be in breach of the appellant’s right under the New Zealand Bill of Rights Act.  The officer was entitled to tell the appellant he was required to “blow” and if not he would be required to supply a blood sample.  It was open for the Judge and open to this Court to accept that the form of words used on the form “Did blow after being told he must” was a shorthand version or reference to the requirement, which the constable gave evidence about.

[21]     In his evidence in response to counsel’s question:  “So you told him that he must?” the constable said “Yes.  I told him that he was required –”.  It appears from the record the constable was going on to expand on that when counsel asked his next question.  However, the matter was clarified in re-examination when in response to the appellant’s statement that the lawyer had told him not to blow, the constable told the appellant that should he not blow that he would be required under the Act to supply a blood sample. That is again entirely consistent with s 72.

[22]     Although Mr Mohamed relies on the decision of Young v Police I consider that case to be distinguishable.  In that case Chilwell J was addressing the position of the evidence of a police officer as to the procedure he followed when there was no record on the form of the procedure followed.   Effectively there was a gap in the evidence which the officer attempted to plug by effectively saying “trust me”.

[23]     In the present case there is no gap in the evidence.  There is a record of the procedure undertaken.  The officer has given direct evidence as to the words he used in discussion with the appellant.  The record on the form was a shorthand note.  The appellant is effectively trying to challenge the evidence given by the officer of the advice he gave without himself giving any direct contrary evidence.  In the absence of any evidence from the appellant the Judge and this Court is entitled to accept the evidence of the officer that he used the statutory wording in his discussions with the appellant when requiring him to undergo the evidential breath test.   In using such wording there was no breach of the New Zealand Bill of Rights Act.

[24]     In the event I am wrong in coming to that conclusion I consider that, in any event, the Judge was correct to hold that in this case the balancing exercise under s 30 supports the admission of the evidence.   While on the appellant’s case the importance of the right, namely overriding or challenging the advice given by the solicitor is an important one, it is clear, as the Judge found, that the officer ’s actions were not intentional.   What at most was confusion on the appellant’s part arose because of his misunderstanding of the advice given by the lawyer in the circumstances where the officer was entitled to require him to take the evidential breath test.

[25]     The nature and quality of the evidence obtained is strong and conclusive. While the offence is itself not serious, as that phrase is used or discussed by the Court of Appeal in R v Williams8 nevertheless as Fogarty J acknowledged, this type of offending is of concern.

[26]     Ultimately the issue for the Court must be whether the exclusion of the evidence in this case would be proportionate to the impropriety in this case.  I am

quite satisfied that the exclusion of the evidence would be out of proportion to any impropriety on the part of the officer in this case, and its effect on the appellant’s rights, having proper account of the need for an effective and credible system of justice.

Result

[27]     For those reasons the appeals against conviction are dismissed.

Venning J