McLeod v Police HC Auckland CRI-2011-404-376

[2011] NZHC 1966

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-376

CRI-2011-404-377

BETWEEN  NEIL MCLEOD Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 November 2011

Counsel:         S Blake for Appellant

L C A Farmer for Respondent

Judgment:      7 December 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 7 December 2011 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS/COUNSEL

Stuart Blake (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

MCLEOD V POLICE HC AK CRI-2011-404-376 7 December 2011

Recall

[1]      This judgment was delivered originally on 24 November 2011 at 3:15 pm.  I recalled it the next day after Mr Blake pointed to a patent error in a description of authorities cited and considered.   That error has been addressed  herein and my analysis of the case law and the relevant statutory provisions has been expanded accordingly. The outcome is unchanged.

Introduction

[2]      On 5 October 2011 in  the District Court at Manukau, Judge GT Winter sentenced the appellant on one charge of driving with excess breath alcohol and one charge of driving with excess blood alcohol.   The appellant appeals against his conviction and sentence on the former charge and against his sentence on the latter charge.

[3]      The  offence  of  driving  with  excess  breath  alcohol  was  alleged  to  have occurred on 1 October 2010.  The appellant’s conviction on that charge was his sixth conviction for driving illegally due to the consumption of alcohol.  The offence of driving with excess blood alcohol occurred on 15 April 2011.  It was, therefore, his seventh conviction for driving illegally due to the consumption of alcohol.

The appeal against conviction

The facts

[4]      At approximately 9:35 pm on 1 October 2010 the appellant was stopped at a Police checkpoint in Papakura.  After failing a breath screening test, he was required to participate in an evidential breath test.   Following the appropriate procedures (including advising of his rights under the New Zealand Bill of Rights Act 1990 and of his right to elect a blood test) the appellant, at 9:56 pm, elected to provide a sample of blood. As a result of the appellant’s request, the attending police constable attempted to locate a nurse to take the blood sample.   At 10:07 pm the constable

required the appellant to accompany her to the Manukau Police Station without delay so that the blood sample could be taken.   The appellant then asked to speak to a lawyer and did so by telephone at 10:08 pm.  At 10:15 pm he advised the constable that he no longer sought to provide a blood sample.

[5]      It is what happened next that is at the heart of this appeal.  The constable’s response to the appellant saying that he no longer sought to provide a sample of blood was to repeat the earlier stages of reading the advice of positive evidential breath test form and the second Bill of Rights form and to give a further 10 minute period for reflection.  At the end of that period the appellant reiterated that he no longer wished to provide a sample of blood.  The charge that was laid subsequently against  the  appellant  was  pursuant  to  s 56(1)  of  the  Land  Transport Act  1998; namely, that the appellant drove with an excess breath alcohol content.

The Defence argument

[6]      The Defence submits that the information was a nullity.  It was based on the second election not to provide a sample of blood.  That election was void and of no legal effect because the first election, to provide a sample of blood, was a valid and still operative election.

[7]      It is submitted that when an election is made under s 70A(1) of the Land Transport Act it is irrevocable.  In this case, once the election was made to provide a sample of blood, the police constable was obligated to continue with the  blood sampling procedures.1   Likewise, the appellant had an obligation to permit a medical officer/practitioner to take a blood specimen.  From the point when the election to undergo the test was made, the procedure for issuing a court summons following a positive breath test2  was no longer available to the police constable.   The police constable nevertheless abandoned pursuing the blood testing procedures, meaning the appellant never reached the point of being requested “by a medical practitioner or

medical officer” to give a blood specimen.3   There was, therefore, no failure on the

1      Land Transport Act 1998, s 72(1).

2      Summary Proceedings Act 1957, s 19B(1).

3      Land Transport Act 1998, ss 72(2) and 77(3)(b)(ii).

appellant’s part to comply with his obligation to undergo a blood test and thus the

evidential breath test result is inadmissible.4

[8]      In other words, the Defence submits that when, having spoken to his lawyer, the appellant told the police constable that he no longer sought to give a blood sample,  the  police  constable  should  nevertheless  have  persisted  with  the  blood testing  procedure,  at  least  until  the  point  that  the  appellant  would  have  an opportunity to answer a medical officer/practitioner’s request to take a blood sample. By not doing so, the police constable — not the appellant — failed to comply with her obligations under the Act.

The Crown’s response

[9]      The Crown submits that the argument that it was not open to the appellant to revoke his election to give a blood sample is misconstrued.   The Crown puts the issue as whether, having been required by the enforcement officer to accompany her to give a blood sample, his purported revocation at that point amounted to a refusal

to comply with the provisions of s 72(2) of the Land Transport Act.5

[10]     The Crown submits that the action of the appellant, having spoken to his lawyer, in saying that he no longer wished to give a blood sample did amount to a refusal to comply, and accordingly the s 77(3) exclusionary rule did not apply to the appellant’s situation. The second 10 minute period given by the police constable was not a restarting of the procedure.  It was simply an attempt by the officer in fairness to enable the appellant to return to the original election to give a blood sample.

[11]     Hence, the s 19B Summary Proceedings Act 1957 procedure was available to the police constable and the respondent was entitled to rely upon the positive evidential breath test in accordance with ss 56(1) and 77(1) of the Land Transport

Act.

4      Under the rule excluding positive evidential breath test evidence for those who elect a blood test:

s 77(3).

5      As required by s 77(3)(b)(ii) in order for the s 77(3) exclusionary rule to apply.

[12]     There is no issue as to the facts or as to the correctness of the procedures followed by the Police.  The issue is whether, after the appellant purported to revoke his blood test election, the Police, having given a second election to the appellant, were entitled to rely upon the evidential breath test to found the charge.

[13]     The starting point is that a valid evidential breath test was administered.  The results of that breath test are prima facie admissible in evidence.6    Where a person fails an evidential breath test, they have an automatic right, within 10 minutes of being advised of the failed result, to elect a blood test.7

[14]     Section 77(3) of the Act provides an exclusionary rule: the result of a positive evidential breath test is not admissible in evidence in proceedings if the person who underwent the test is not advised of the test result and the consequences, or if that person:8

(i)        Advises an enforcement officer, within 10 minutes of being advised of the matters specified in paragraph (a), that the person wishes to undergo a blood test; and

(ii)      Complies with section 72(2).

[15]     Section 72(2) of the Act provides:

(2)       A person who has been required by an enforcement officer under subsection  (1)  to  permit  the  taking  of  a  blood  specimen  must, without  delay  after  being  requested  to  do  so  by  a  medical practitioner or medical officer, permit that practitioner or medical officer to take a blood specimen from that person.

[16]     The appellant’s submission is that the exception to the exclusionary rule under s 77(3)(b)(ii) is triggered only at the point that a medical practitioner/officer requests a blood specimen and the person requested refuses permission.  Given that the appellant was never presented before a medical practitioner/officer, it cannot be

said that he failed to comply with s 72(2).

6      Land Transport Act 1998, s 77(1).

7      Ibid, s 70A.

[18]     The starting point for my analysis is the decision of Elias J, relied on by the District Court Judge and distinguished  in Mr Blake’s submissions, in which her Honour dismissed an identical argument raised on appeal.9    The appellant in that case failed a breath screening test.   He underwent an evidential breath test, which recorded a positive result.  He subsequently advised the enforcement officer within

10 minutes that he wished to take a blood test.  The officer initiated the blood testing procedures, but the appellant, after speaking to a duty solicitor, then advised that he had changed his mind and did not want to have a blood test.  He was charged and convicted of driving with excess breath alcohol on the basis of his positive evidential breath test.

[19]     The appellant contended that the result of the evidential breath test should not have been admitted because it was inadmissible under s 58(4) of the Transport Act

1962,10   the  appellant  having  advised  the  enforcement  officer  that  he  wished  to

undergo a blood test.   Her Honour rejected that argument, concluding that the evidence of the evidential breath test was rightly admitted:11

The argument advanced by Mr Hart in support of his first ground of appeal is based upon paragraph (b).12   While the appellant did advise of his wish to undergo a blood test initially, the second leg of the requirement does not apply because the appellant did not comply with s 58C(2).13   It is true that he was not required to comply with s 58C(2) because the appellant changed his mind about wanting a blood test but that does not affect the fact that the basis for the rule of exclusion is not made out as a result.  The exclusionary rule provided by s 58(4) does not apply simply upon advice that the driver wishes to have a blood sample.

The main purpose of the rule provided by s 58(4), seems to be to clear up any evidentiary confusion.   Where a blood test is obtained, the evidential breath test is not admissible.   The rule establishes that the results of the blood test are to prevail.

9      McDowell v Police HC Auckland AP287/95, 4 March 1996, Elias J.

10     Which is materially equivalent to s 77(3) of the Land Transport Act 1998.

11     At 9.

12     Which is materially equivalent to s 77(3)(b) of the Land Transport Act 1998.

13     Which is materially equivalent to s 72(2) of the Land Transport Act 1998.

[20]     In Dyer v Ministry of Transport, Beattie J described a similar argument raised before  him  as  “gossamer  thin”,  and  clearly  contrary  to  the  purpose  of  the legislation:14

Also if the appellant’s argument were sustained there would be the practical effect that where the person had made it clear he would not comply with the traffic officer’s requirement, nevertheless a doctor would still have to be provided at any time of day or night, merely to be met with a refusal which had already been given to the officer.  That was obviously not the intention of Parliament.

[21]     I respectfully concur with both decisions.15     An election to give a blood sample is “irrevocable” in the sense that any purported revocation by a driver will invariably result in further criminal liability; namely, a conviction for refusing to undergo a blood test when required.16   That does not mean, however, that the Police must compel drivers who change their minds  to confront a medical practitioner/officer so that she can put to the driver the request to permit the taking of blood in order to make the breath test admissible if the refusal is maintained.  They do not need to.   A purported revocation is clearly a failure to provide a blood

specimen, in breach of s 72(2).  Ergo, the results of the evidential breath test remain admissible in evidence.

[22]     It is relevant that the offence provision in s 60(1) prescribes separate offences of failing or refusing to permit a blood specimen to be taken after having been required to do so under s 72 by an enforcement officer,17  and failing or refusing to permit a blood specimen to be taken without delay after having been requested to do so under s 72 by a medical practitioner or medical officer.18   If an offence has been committed under subs (a) before a medical practitioner/officer arrives on the scene,

that must necessarily be a breach of the appellant’s obligations under s 72(2).

14     Dyer v Ministry of Transport [1972] NZLR 937 (SC) at 938.

15     I respectfully differ from Laurenson J’s view in Farrell v Police [2003] DCR 643 (HC) that

McDowell should be distinguished because s 58(1) of the Transport Act 1962 was permissive: officers had a discretion whether to accede to a request for a blood test.  In my view, Elias J took this into account and directed herself (at 8) to when an enforcement officer had required a blood sample to be taken.

16     Land Transport Act 1998, s 60(1).

17     Ibid, s 60(1)(a).

[23]     The remaining question is whether the appellant did in fact fail to comply with his obligation to provide a blood sample.  Whether a person has refused to give a blood specimen is a question that is to be determined having regard to all of the circumstances.  As Eichelbaum J said in Vitullo v Ministry of Transport:19

The question whether the suspect has refused [to permit a specimen to be taken] has to be determined on a consideration of the whole of his conduct and the totality of his statements, set against the background circumstances. The issue whether the suspect refused to permit a specimen to be taken involves taking those common words in their ordinary meaning and making a factual decision.   The section envisages a practical situation where the Legislature could not have intended to surround the concepts of permission and refusal with any undue complexity.

[24]     To similar effect see the comments of McGechan J in Davison v Ministry of

Transport:20

First, whether or not refusal has occurred is a question of fact. As a question of fact, it falls to be ascertained objectively, and with regard to all surrounding circumstances.

[25]     I find on the evidence that the appellant did unequivocally refuse to provide a blood sample.

[26]     I also find there was no unfairness or prejudice to the appellant resulting from being given a further 10 minutes to decide whether to change his mind again about the blood testing procedure.   It was not required by statute, the ss 72(1)(b) and

77(3)(a) period having expired upon the appellant’s initial election to give a blood sample.  If anything, it could be seen as an attempt by the officer to keep the blood testing procedure on track.  That was perhaps overly generous to the appellant, who could have additionally been charged under s 60(1) for failing to provide a blood sample when required.21   But it did not invalidate the lawful alcohol testing process

carried out by the constable.

19     Vitullo v Ministry of Transport (1988) 3 CRNZ 227 (HC) at 230.

20     Davison v Ministry of Transport (1987) 2 CRNZ 426 (HC) at 431.

21     It was not necessary that he be advised of the possible consequences of refusing to provide a blood specimen: Payne v Ministry of Transport HC Auckland AP239/91, 21 November 1991, Henry J; Police v Quilter HC Wellington AP39/02, 19 March 2003, Hammond J.   See also van Endhoven v Police HC New Plymouth AP13/03, 15 October 2003, Rodney Hansen J.

[27]     Finally, Mr Blake acknowledges that  the defence he advances is “purely technical and perhaps unpalatable” but submits that nonetheless it is the prevailing law and must be applied.22  Again, I disagree.  Parliament has explicitly directed that it  is  no  defence  to  proceedings  that  there  was  not  strict  compliance  with  the governing statutory provisions, “provided there has been reasonable compliance”.23

This direction is to be applied liberally.  The extent of any non-compliance must be assessed against the criterion of whether there is any real possibility of prejudice to a defendant.24  This was confirmed by the Supreme Court in Aylwin v Police:25

Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable. The great majority of drivers comply with their obligations in this respect.   A small minority do not. Parliament has legislated to ensure that these drivers do not escape responsibility through  technical and  unmeritorious defences.   The  courts must give full effect to that clear parliamentary indication.

[28]     In this case, I am satisfied that the appellant’s purported revocation of his decision to give a blood sample amounted to a failure to comply with his obligation under  s 72(2).    Having  made  and  confirmed  that  decision,  it  would  have  been pointless  for  the  police  constable  to  have  progressed  with  the  blood  testing procedure.  A valid breath test result had been obtained, and the s 77(3) exclusionary rule was nullified by the appellant’s own breach of s 77(3)(b)(ii).

The effect of failing to comply with s 72(2)

[29]     The effect of failing to comply with s 72(2) is to remove the s 77(3) exclusion of the evidential breath test as admissible evidence against the appellant.  The Police were entitled to lay an information against him under s 56(1) for driving with excess breath alcohol.   They could also have charged the appellant under s 60(1)(a) for refusing to permit a blood specimen to be taken after having been required to do so

under s 72 by an enforcement officer.

22     Submissions for the appellant, dated 14 November 2011, at [8.13].

23     Land Transport Act 1998, s 64(2).

24     Police v Tolich (2003) 20 CRNZ 150 (CA) at [24].

25     Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1, (2008) 24 CRNZ 235 at [17].

[30]     The reason the Police did not charge the appellant under s 60(1)(a) is almost certainly because of the decision to give the appellant the second 10 minute election period.   The Police then took the appellant’s maintenance of his refusal to give a blood sample as an ab initio decision not to elect a blood test.  Accordingly, they proceeded   using  the   procedure  provided   for   by  s 19B(1)   of   the   Summary Proceedings Act 1957 (“SPA”).

[31]     The ordinary procedure for charging a person and bringing him to Court pursuant to the SPA26 is to lay an information and file it in the appropriate office of the Court.  A summons to the defendant is then issued.  Section 19B(1) of the SPA effectively reverses  this  process  by providing  a  fast-track  procedure  for  issuing summonses following a positive evidential breath test:

(1)       If a person undergoes an evidential breath test under section 69 of the Land Transport Act 1998 and the test is positive, but the person who underwent the test does not advise an enforcement officer within 10 minutes of being advised of the matters specified in section 77(3)(a) of the Land Transport Act 1998 that the person wishes to undergo a blood test, an enforcement officer may sign and serve on the person a summons in a form prescribed for the purposes of this section.

[32]     In this case, the appellant did elect a blood test within 10 minutes of receiving the prerequisite advice.  He was not entitled to revoke that election.  Therefore, the charge under s 56(1) could be laid only on the basis of the appellant’s failure to comply with s 77(2).  The s 19B(1) procedure was not available to the enforcement officer and accordingly the summons issued to the appellant in reliance upon it was a nullity.   The ordinary procedure of laying an information, filing it and having the Court issue a summons should have been followed.

Was the information subsequently laid a nullity?

[33]     In  Wyatt  v  Ministry  of  Transport,  Tipping J  explained  the  purpose  of  a summons and information as follows:27

26     Summary Proceedings Act 1957, ss 12-19.

27     Wyatt v Ministry of Transport HC Auckland AP58/91, 4 June 1991, Tipping J at 5.

The summons is the document which is designed to bring the defendant before the Court.  The information is the document whereby the informant states on oath the substance of the charge.  It is the document which initiates the prosecution.

[34]     In R v Keir,28 the Court of Appeal was asked to determine whether a person is “charged” when they are issued with a summons following arrest (under s 19A of the SPA) or whether it is at the point when an information is laid/sworn.  The Court held that a person is first charged when he is issued with a summons requiring him to attend at Court at a particular time to answer a specified charge:29

In our view the proceedings are commenced once the police charge sheet has been completed and the defendant is released with a summons requiring him to appear and answer to the charge.

[35]     However, the Court of Appeal in Keir was concerned with the case where a defendant had been arrested on a charge but no information had been laid.   In accordance with s 12(2) of the SPA, particulars of the charge against him had been set out in a charge sheet.  By virtue of s 12(3), the provisions of the SPA then apply as if the entry in the charge sheet were an information.   In this case,  with the summons a nullity, the proceedings against the appellant were commenced by the laying of the information subsequently.

[36]     It is the information that is the source of the Court’s jurisdiction.30     The summons is merely the mechanism by which a person can be compelled to come to Court  to  submit  himself  to  the  jurisdiction  of  the  Court  and  to  answer  to  the allegation in the information.  It is not necessary for there to be a valid summons, nor for a summons to have been served, in order for a Court to exercise its jurisdiction. It is enough if at the time the case is called the defendant is present to answer.31

[37]     In this case, the appellant, not knowing that the summons was a nullity, acted on it and was present in Court when the case was called.  Because he was present, the  presiding  Judge  was  able  to  exercise  his  jurisdiction  in  respect  of  the

information.  Had the appellant been aware that the summons was a nullity and had

28     R v Keir (1994) 11 CRNZ 532 (CA).

29     At 535.

30     Police v Edwards [2006] DCR 217 (HC) at [39].

31     For example, if he happens to be present for other charges, even though he has not received the summons or because of an informal arrangement with the prosecuting authority.

he decided not to appear in Court, he could not suffer any consequences by way of enforcement or penalty as a result.  The prosecutor would have had to have asked for a summons to issue on the information in the usual way.

[38]     I do not see that there was any abuse of process or other prejudice to the appellant which should cause me to exercise on those grounds the (rarely used) discretion I have to allow the appeal.  The use by the Police of the s 19B(1) SPA procedure was done in good faith and in the spirit of being generous to the appellant who would otherwise have had to have been treated as someone who was breaching s 72(2).   If the Police had adopted the proper course, the only difference which would have been noticed by the appellant would have been to have received his summons later and it might have been to appear on a different date.  Of course, he might well have been charged additionally under s 60(1)(a).

[39]     For the sake of completeness, I make clear that this judgment does not detract from the authorities which hold that once an enforcement officer has decided to act pursuant to s 19B of the SPA he is bound to follow that procedure.32   So, if he does take that decision and lays and files the information outside the stipulated seven days after the day the test was administered, the information will be a nullity.   If the enforcement officer wishes to proceed with the charge, he must lay and file a new information and have a summons issue pursuant to the ordinary procedure.   The difference with this case is that although the enforcement officer chose to use the

s 19B procedure, it was not available to her. Therefore, it could not be given effect.

Decision on appeal against conviction

[40]     The appeal against conviction is dismissed.

Appeals against sentence

[41]     The Defence acknowledges that the appeals against sentence can proceed only if the appeal against conviction is allowed.   If it were, the sentence on the

32     See Ministry of Transport v Kendall (1989) 5 CRNZ 287 (HC) and McNeill v Ministry of

Transport HC Dunedin AP12/92, 2 April 1992, Tipping J.

breath alcohol charge would fall away and the sentence on the blood alcohol charge would fall to be considered as a sixth conviction and not a seventh.

[42]     The  sentences  imposed  were  not  manifestly  excessive.    The  maximum penalty for a third or subsequent drink driving offence is two years’ imprisonment or a fine of $6,000.  Although there is an 11 year gap between his current and previous convictions, the appellant’s seventh drink driving offence was committed only six months after his sixth.  In terms of the Clotworthy v Police guideline decision,33 the sentence of four months’ community detention, 200 hours’ community work, nine months’ supervision and disqualification for one year and one day was available to the District Court Judge.

[43]     The appeals against sentence are dismissed.

Brewer J

33     Clotworthy v Police (2003) 20 CRNZ 439 (HC).