Mantell v New Zealand Police HC Wellington AP 95/01

[2001] NZHC 487

IN THE HIGH COURT OF NEW ZEALAND AP 95/01
WELLINGTON REGISTRY
NOT
RECOMMENDED BETWEEN ALAN BARRY MANTELL
Appellant
AND NEW ZEALAND POLICE
Respondent

Hearing: 15 May 2001

Counsel: N J Sainsbury for the Appellant
M E Ball for the Respondent

Judgment: 12 June 2001

JUDGMENT OF GODDARD J

Introduction

[1] On 20 March 2001 the appellant, Mr Mantell, was convicted in the District Court at Lower Hutt of driving with excess breath alcohol (s 56(1) of the Land Transport Act 1998 (“the Act”)). He was fined $1,800.00, ordered to pay Court costs of $130.00, and disqualified from holding or obtaining a motor driver’s licence for 12 months. He has appealed against his conviction.

Background Facts

[2] In the early morning of 21 April 2000 the appellant was stopped by a police patrol as he parked his car outside his business address in Railway Avenue, Lower Hutt. He had been driving erratically. When pulled over, he was observed by the Constable to have a flushed face and glazed eyes. The Constable asked him to undergo an initial passive breath test. The passive breath testing device (an Alcatec AR1005 sniffer device) was not functioning correctly and, after a second unsuccessful attempt, the Constable radioed for a replacement device. When the replacement device arrived the Constable administered the test, which the appellant failed. The appellant also subsequently failed a breath-screening test. The Constable then instructed the appellant to accompany him to the Lower Hutt Police Station for an evidential breath test. The evidential breath test recorded that the appellant had 934 micrograms of alcohol per litre of breath (534 micrograms over the legal limit under s 56(1) of the Act).

The Appeal

[3] The appellant’s appeal against conviction is brought on the grounds that the District Court Judge erred in fact and law in reaching his finding of guilt. The first ground of appeal was that the Judge had erred in finding that the delay between the Constable’s discovery that the passive breath screening device was not functioning and the time at which a new device was delivered was approximately four minutes. That finding was based on an interpretation of handwritten notes appearing on a computer generated transcript from the Police Communications Centre (“the communications log”). Such communications logs record the communications between police patrol units and communications centres. A transcript of the communications log for the period of time involved in this case was shown to the Judge during the hearing but not produced in the evidence. The log does not bear any computer generated record of the times at which the calls recorded on it were received or made. Instead, some handwritten notes have been added as to the times at which the calls are alleged to have been received or made. The appellant’s argument in relation to this was that:

“a. The notes were not in evidence before the Court but had been put to the Officer in charge in cross-examination for the purpose of challenging his recollection of the time delay.

“b. If the notes were in evidence they did not support the Judge’s finding that there was only a five minute time delay.”

[4] The second ground of appeal alleged that the evidence obtained from the evidential breath test should have been excluded on the grounds of unfairness. Although the District Court Judge found that the appellant was unlawfully detained, he nevertheless found no significant breach of his rights. On that basis, he determined that exclusion of the evidence obtained was not justified. Mr Sainsbury argued that this finding was contrary to the decision in Sullivan v Police (AP 287/95, High Court Wellington, 22 December 1995, Neazor J).

The Evidence of Time Delay

[5] The evidence of the duration of the delay from the time the replacement device was requested and its arrival is unclear. The Constable initially gave evidence that only three minutes had elapsed between stopping the appellant’s vehicle and the replacement device arriving. He subsequently said in evidence that the delay between request and arrival had been “approximately three to five minutes”. This was the point at which Mr Sainsbury challenged his evidence by referring to the transcript of the communications log. The Constable then revised his evidence to an estimate of “approximately five minutes” delay.

[6] The evidence the appellant gave at the hearing was similarly imprecise. When asked how long the delay had been he replied. “I don’t know maybe ten. . . It’s really hard to say I thought it was about fifteen minutes but it could only have been ten minutes because it was quite cold”. A passenger in the appellant’s car also stated that “there was a long period of time probably ten minutes”.

[7] In his judgment the Judge referred to the communications log in some detail. He noted that it recorded the request for the replacement device as having been made at 12:07:39 am. He noted that it then recorded that another unit called to say it had a replacement device at 12:11:22 am. On that basis the Judge found a delay of approximately four minutes between the time the Constable called for a replacement device and the time at which the replacement device was delivered. There are, however, three problems with the Judge’s reliance on the communications log for this finding. The first arises from the fact that the log was never adduced in evidence. It was not proven, nor was it formally produced, and there was no verification as to its accuracy. Its sole use at the hearing was as an aid to cross-examine the Constable on his estimate of the critical time lapse. The second problem arises from the fact that the computer generated record of the times at which each communications was received or made is missing from the log. No explanation was given as to why the computer record of the times was missing and whether it had somehow been deleted. The third problem is that the communications log does not reveal the time at which the replacement device arrived. It is impossible to say from it whether the entry at 12:11:22 am is the time at which the device arrived, or the time at which another unit called in to say it was proceeding to deliver the device.

[8] What is not in dispute is that a total period of 27 minutes elapsed between the time the appellant was first stopped by the Constable and the time at which he arrived at the Lower Hutt Police Station. The Constable originally said that he stopped the appellant at 12:03 am, that he completed the successful breath screening test at 12:06 am, and that he then required the appellant to accompany him at 12:08 am. If that is so, it took some 22 minutes to travel from Railway Avenue to the Lower Hutt Police Station which is an inordinate amount of time. Counsel accepted that the entire journey should only have taken about three minutes. No explanation was given by the officer for this inordinate and unaccounted for period of time.

[9] On an assessment of the evidence it is clear that the communications log could not be relied upon as providing an evidential foundation for the Judge’s determination of the delay as approximately 4 minutes. It must be put aside, especially when regard is had to the accepted time that it would have taken to travel to the Lower Hutt Police Station. On a realistic assessment, the delay at the roadside must have been in the realms of 10-15 minutes, as estimated by the appellant. It is however impossible to determine the exact length of the delay at the roadside but that is not in any event critical for the determination of this appeal.

Exclusion of Evidence

[10] The Constable had no authority to require the appellant to wait at the roadside for a replacement passive breath testing device to arrive. Under s 69(1)(d) of the Act he had the power to require the appellant to accompany him to a place where it was likely the appellant could have undergone an evidential breath test. Alternatively, he could have advised the appellant that he was taking steps to obtain a replacement device, but that the appellant was not required to wait while that was done. He could however have prevented the appellant from driving away from the scene by simple resort to s 121 of the Act. The Constable however chose not to adopt either course, and the appellant was therefore detained unlawfully.

[11] The Judge found that the appellant had perceived that he was under some compulsion to stay whilst a replacement device was obtained, but was nevertheless satisfied that this infringed his rights only “to a very minor degree”. Given that the infringement was “relatively innocuous”, the Judge was able to further find that it did not vitiate the subsequent procedures.

[12] It is clear however that the appellant was unlawfully detained, as he had a reasonably held belief, induced by police conduct, that he was not free to leave: see R v M [1995] 1 NZLR 242, 245 per Blanchard J. His right not to be so detained is protected by s 22 of the New Zealand Bill of Rights Act 1990, and the Court must exercise its discretion to consider whether the evidence obtained in contravention of that right should be admitted.

[13] The facts in the present case are very similar to those considered by Neazor J in R v Sullivan. In Sullivan the appellant was convicted of refusing to accompany after being stopped and breath tested. She appealed on the basis that she had been unlawfully detained for 12 minutes whilst a breath testing device was obtained. Justice Neazor reviewed the authorities and held that the evidence should have been excluded because of the element of unfairness inherent in obtaining it.

[14] In the present case, Mr Sainsbury submitted that the appellant had been prejudiced by the unlawful detention and, had he been aware that he was free to leave, could have simply walked into his business premises and departed the scene quite legally. However it cannot be confidently assumed that such a course would necessarily have followed. On the contrary, had the appellant attempted to depart the scene, the constable may have invoked his powers under s 69(1)(d). However, I am not prepared to admit the evidence on the basis that the Police could have obtained it lawfully, but did not do so. A disregard of clearly defined rights is not easily to be overlooked, regardless of whether the evidence could have been obtained in any event. In the words of Smellie J in Auckland City Council v Larsen [1987] 2 NZLR 583, 592:

“any deviation or delay beyond. . . relatively innocuous circumstances. . . will jeopardise the subsequent procedures. . . The Courts will not be slow to categorise as an injustice any interference with a citizen’s civil liberties.”

[15] The delay in this case, was not as the Judge found, so small as to be insignificant. There were available legal courses of action open to the Constable. He chose to adopt a course of action that was not authorised and this involved an unlawful detention of up to 15 minutes. The evidence obtained as a result should be excluded on the basis of unfairness or breach of s 22 New Zealand Bill of Rights Act.

Judgment

[16] For the reasons given the appeal is allowed and the conviction is quashed.

Costs

[17] In the event that the appellant is not legally aided, he is entitled to costs which are awarded in the sum of $1,500.00.