Murdoch v Police
[2019] NZHC 1154
•24 May 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI 2018-485-84
[2019] NZHC 1154
BETWEEN RICHARD MURDOCH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 May 2019 Counsel:
R D Mulgan for Appellant K J Draper for Respondent
Judgment:
24 May 2019
JUDGMENT OF MALLON J
Introduction
[1] Richard Murdoch was convicted of driving a motor vehicle with excess breath alcohol following a judge alone trial in the Wellington District Court.1 He sought a discharge without conviction and this was refused.2 He appeals against that decision. He also seeks leave to adduce new evidence in support of his appeal.
Summary of offending
[2] Mr Murdoch was driving down a Johnsonville street at around 6 pm on 9 July 2017 when a near collision occurred with another vehicle. The driver of that vehicle
1 Police v Murdoch [2018] NZDC 14705 (conviction decision). Land Transport Act 1998, s 56(1); maximum penalty: three months’ imprisonment or a fine not exceeding $4,500 (s 56(3)). He was also acquitted of behaving in a disorderly manner in a public place under s 4 of the Summary Offences Act 1981. That was a charge arising from the same road incident as the excess breath alcohol charge.
2 Police v Murdoch [2018] NZDC 21757 (discharge without conviction decision).
MURDOCH v POLICE [2019] NZHC 1154 [24 May 2019]
was parked on the street on the same side of the road as the direction in which Mr Murdoch was travelling. She pulled out onto the street without noticing Mr Murdoch’s vehicle. Mr Murdoch swerved into the other side of the road to avoid hitting this vehicle. The driver of this vehicle gave evidence that she braked to avoid hitting Mr Murdoch or going into the curb. She said it was a “really close” miss and that she had loudly honked her horn at Mr Murdoch.
[3] She came to a stop and saw Mr Murdoch’s vehicle pull up a short distance away. He got out of his vehicle and walked towards the other car in a manner which the other driver described as “angrily and real aggressively”. He punched the side of her car, swore at her and asserted his point that the really close miss was her fault because she had “fucking cut him off”. The other driver knew Mr Murdoch from having worked for the same employer for close to a decade and she recognised him as he had approached her car. She attempted to point this out to Mr Murdoch, to which he responded, “I don’t give a fuck who you are”. He slapped her car windscreen with his palm to indicate that he had been in the right before walking back to his car and departing in the direction he had been going.
[4] Knowing Mr Murdoch to be a “calm, placid” person from her general dealings with him at work, the other driver thought “he was drunk at the very least, but … actually high on drugs as well”. While she did not notice the smell of alcohol, she had never seen him act so unpleasantly or aggressively before. Because of her concern that “he was going to hurt somebody ‘cos of the state that he was in”, she telephoned the Police and gave details of the incident, including the registration number of Mr Murdoch’s car and her impression that he was intoxicated.
[5] A uniformed constable who was on patrol in a marked Police vehicle was informed of the incident. She arrived at Mr Murdoch’s residence, which was located about two or three km from the incident, at 6.50 pm. On her way to the front door of Mr Murdoch’s property she felt and noted that the bonnet of his car was warm. She knocked twice before Mr Murdoch appeared. The constable explained to Mr Murdoch that she had been called about the incident, that she had cause to suspect that he had been drinking and driving, and that she required him to undergo a breath screening test.
[6] To this, Mr Murdoch “swore quite a lot at [the constable]”. He said he knew it was “that fucking bitch, [the other driver’s name], and so what? Is it illegal to yell at somebody who has just pulled out in front of you?” The constable’s impressions were that he was intoxicated. He seemed to be having difficulty comprehending or understanding what was being said to him, his eyes were glazed, he smelt of alcohol and he appeared aggressive. The constable was standing on the step at his doorway and was slightly below him. She thought he was considering hitting her and so took a step backwards. To this, Mr Murdoch said, “I’m not going to hit you. I could if I wanted to”.
[7] The constable then administered two breath tests. The first breath test showed a result of insufficient volume, meaning not enough breath went in. The constable’s impression was that he was joking with her on the first test attempt. The second test showed a result of “over 400”. The constable then informed Mr Murdoch that she required him to accompany her back to the Wellington Police Station to conduct an evidential breath test. He was somewhat non-comprehending and abusive (and swearing) in response to this. He was informed he would be arrested if he did not comply with the constable’s request.
[8] Mr Murdoch accompanied the constable to her car and was then driven to Wellington Police Station. During this journey, he continued abusing the constable, calling her names, challenging her to fight and to enter into a press up competition with him and, at one stage, punching the back of the front passenger’s seat. The constable felt sufficiently intimidated that she thought she might have to make a “run for it”. She also called the police station ahead of arriving there to inform another officer of her concern that Mr Murdoch might become violent.
[9] Upon arrival at the station, Mr Murdoch continued to be abusive and intimidating towards other staff. He attempted to bait and intimidate another officer into a fight. A breath alcohol procedure was then administered, and this gave a result of 996 mcg per litre of breath. That result is more than twice the 400 mcg level needed for a conviction. Mr Murdoch declined the option of a blood test.
[10] Trial counsel for Mr Murdoch accepted the constable had lawfully required Mr Murdoch to do the breath test. His case, however, was that he had only drunk two “stubbies” (approximately 660 ml) of beer and had a light lunch (a sandwich) prior to driving and that he had not been influenced by this. He said that because of the shock of the road incident and other personal matters which he was experiencing at the time, he drank about half a litre of whiskey upon returning home and prior to the constable’s arrival. Mr Murdoch claimed that he had informed the constable about this en route to the station. The constable contested this account.
[11] The Judge rejected Mr Murdoch’s evidence that he had told the constable about drinking after getting home.3 He considered Mr Murdoch’s recall of what he told the constable to be unreliable given his highly intoxicated and angry state at the time. In making the subsequent ruling on Mr Murdoch’s discharge without conviction application, the Judge stated that he had relied on s 77(1) of the Land Transport Act 1998 to find him guilty.4 That section states as follows:
77 Presumptions relating to alcohol-testing
(1)For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant’s breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant’s breath indicated by the test.
[12] Mr Murdoch had also been charged with disorderly behaviour. Although the Judge accepted the other driver’s account of Mr Murdoch’s behaviour after the near collision, he considered it was not a sufficiently serious and reprehensible interference with the rights of another to constitute a criminal offence.5 Mr Murdoch was therefore acquitted of this charge.
3 Police v Murdoch (conviction decision), above n 1, at [36]-[38].
4 Police v Murdoch (discharge without conviction decision), above n 2, at [4].
5 Relying on the test in Brooker v Police [2007] NZSC 30 at [56].
Discharge without conviction application
[13] Mr Murdoch sought a discharge without conviction on the charge of driving with excess breath alcohol. This was sought on the basis that Mr Murdoch had been technically caught by s 77 but he had only drunk the two beers before driving.
[14] A Court may grant a discharge without conviction only if it is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.6 This requires the Court to: first, consider all the aggravating and mitigating factors relevant to the offending and the offender; second, identify the direct and indirect consequences of the conviction for the offender; and third, consider whether those consequences are out of all proportion to the gravity of the offence. If that is established the Court has a discretion to grant a discharge without conviction.
[15] The Judge referred to the Court of Appeal decision in Sowman v Ministry of Transport.7 This case held that the evidential presumption in the predecessor to s 77 of the Land Transport Act applied throughout the whole proceedings, but that evidence of post-driving-pre-testing alcohol consumption may be relevant when considering sentence. His Honour also referred to the later Court of Appeal decision in Bell v Ministry of Transport where it was said:8
The door left open by Sowman may just occasionally enable a Court to avoid manifest injustice. In this way the degree of flexibility it allows is no doubt valuable. But it is certainly not available to permit any significant undermining of the effect of the conclusive presumption and the scheme of the Act.
[16]In light of these authorities, the Judge approached the matter in this way:9
So, what I think I must do is look at the evidence that I can rely on and see whether there is any proof on the balance of probabilities that he was not driving with a level greater than 400 micrograms. If I found that to be the case, that may be relevant to sentencing, and therefore relevant to his application under s 106 for a discharge, as it may have relevance to the seriousness of the offending.
6 Sentencing Act 2002, s 107.
7 Police v Murdoch (discharge without conviction decision), above n 2, at [4]-[7] citing Sowman v Ministry of Transport [1978] 1 NZLR 218 (CA).
8 Above at [8] citing Bell v Ministry of Transport [1983] NZLR 229 at 233.
9 At [10].
[17] The Judge referred to Mr Murdoch’s evidence at trial that he had drunk half a litre of whiskey, or at least that amount, after returning home. He also referred to his affidavit filed for the discharge without conviction application in which he said he had drunk three large glasses straight. The Judge referred to the letter from his daughter, noting it was not sworn, which said that Mr Murdoch had driven her shortly before the incident and she was certain that he was not intoxicated. He referred to the letters of support which said Mr Murdoch was a sober and dependable driver. The Judge considered this to be character evidence – that Mr Murdoch did not make a habit of driving drunk.
[18] The Judge then referred to the evidence about the incident from the other driver at the defended hearing, noting this was directly relevant to Mr Murdoch’s driving and behaviour at the relevant time. The Judge said:10
Unlike some other cases that come before the Court in this way, where it is argued that the level was lower, I have no evidence other than Mr Murdoch’s as to how much he consumed, and I cannot be satisfied as to the amount or the actual effect on him of that. And given Ms Hemi’s description of him and her impression of him having known him before as what appears to be a completely different person than the person she saw on that night, I cannot be satisfied, even on the balance of probabilities, that his level was below 400 micrograms of alcohol per litre of breath. In fact, the evidence of Ms Hemi tends to support that it was otherwise. It is possible, however, that the level was lower, but certainly not lower than 400 micrograms.
[19]The Judge considered:
(a)This was a “moderately serious traffic offence of its type, aggravated by his behaviour, particularly to the constable” but which was somewhat mitigated by his past good character and genuine attempts to address his issues with alcohol.11
(b)There were not insignificant consequences, namely: the inevitable loss of licence (and what that entailed for Mr Murdoch who was often required in his job to travel out to Palmerston North or Masterton for his work); loss of reputation; and potential issues over future career
10 At [20].
11 At [25]-[26].
advancement (although Mr Murdoch had a faultless 10 year career with his employer and was thought of well by his colleagues and relied upon). However, these consequences were all obvious and not out of the ordinary for this kind of offending.12
[20] The Judge concluded that the consequences were not out of all proportion to the seriousness of the offending. A discharge without conviction was refused.
Approach on appeal
[21] An appeal against a refusal to grant a discharge without conviction may be characterised as a “composite appeal against conviction and sentence”.13 If a discharge without conviction should have been granted, there will have been a material error or a miscarriage of justice such that the appeal must be allowed.14
Assessment of appeal
[22] Mr Murdoch seeks to leave to adduce fresh evidence of a peer-reviewed report by Dr Sandiford. This provides an estimate of Mr Murdoch’s breath alcohol concentration levels on the basis of Mr Murdoch’s account of what he had consumed before and after the incident. The report concludes that:
(a)if Mr Murdoch drank two stubbies of beer (assuming they were 330 ml and four per cent alcohol) at around mid-afternoon and ate a sandwich, the alcohol would have completely metabolised and have been no longer present in his breath at the time of the road incident; and
(b)consumption of 500 ml of blended whiskey (assuming 40 per cent alcohol) after the incident but before the arrival of the constable would have contributed to a breath alcohol level of 1158 mcg per litre of breath
12 At [28]-[31].
13 Simon France (ed) Adams on Criminal Law – Sentence (online looseleaf ed, Thompson Reuters) at [CPA229.04]. This is in the sense that the challenge is against the entry of a conviction and setting aside that conviction is a necessary objective of the appeal.
14 Criminal Procedure Act 2011, s 232(2)(b)-(c). See, for example, Jackson v R [2016] NZCA 627 at [12]-[15].
taking a calculated maximum which assumes complete absorption of all alcohol without any losses due to metabolism.
[23] Mr Murdoch’s counsel on this appeal submits that trial counsel made an error in not seeking this sort of analysis at first instance. Mr Murdoch’s counsel in the District Court has provided an affidavit for the appeal stating that he erred in failing to put before the Judge evidence of this kind. He says it was a very busy time for him professionally and personally. His view was, and remains, that Mr Murdoch’s evidence was enough to establish on the balance of probabilities that he was not driving with excess breath alcohol.
[24] Mr Murdoch’s counsel submits Dr Sandiford’s evidence is cogent because it provided support for Mr Murdoch’s evidence that he was not affected by alcohol when the incident occurred and that his intoxication, as observed by the constable and tested in the evidential breath test, was caused by his consumption of whisky after the incident. He submits it therefore added to the plausibility of Mr Murdoch’s account which was also supported by the statement from his daughter.
[25] Mr Murdoch’s counsel refers to the Judge’s comment that “I have no evidence other than Mr Murdoch’s as to how much he consumed, and I cannot be satisfied as to the amount or the actual effect on him of that”.15 He submits the expert evidence is directly relevant to the “actual effect” of consuming 500 ml of whisky. He submits that this evidence would have tipped the balance in Mr Murdoch’s favour because the evidence he was intoxicated at the time of the incident was not strong.
[26] As to this, he says the other driver did not notice the smell of alcohol. She did not say he was stumbling or slurring his speech. The fact that he was aggressive and angry is not indicative of being drunk. It was out of character, but people can lose their temper when they are involved in a near collision on the road and consider the other driver was at fault, particularly when other things in their life are not going well, as was the case for Mr Murdoch. Further, he says the evidence that Mr Murdoch was able to take evasive action to avoid a collision is not consistent with being a drunk driver.
15 Police v Murdoch (discharge without conviction decision), above n 2, at [20].
[27] Returning to the Court of Appeal’s views in Bell, as the District Court Judge recognised here, it is only the occasional case in which the conclusive presumption will not prevail. Indeed, even a finding that on the balance of probabilities that the driver was below the limit would not necessarily be enough. As the Court of Appeal put it:16
In our view Sowman’s case should not be understood as requiring a District Court to reduce the penalties that would otherwise have been imposed – still less to find special reasons for not imposing a disqualification – merely because evidence establishes on the balance of probabilities that the driving level was lower than the test or even below the limit. … There is an emphasis on discretion.
[28] In any event, I consider that, even with the benefit of Dr Sandiford’s report, it has not been established on the balance of probabilities that Mr Murdoch’s breath alcohol was below the 400 mcg limit. It rests on the credibility of Mr Murdoch’s account of what he drank and when. No real weight can be placed on his daughter’s view because it is general in nature, unsworn and not subject to cross examination.
[29] What is clear from the evidence at the defended trial is that both the other driver (at the time of the incident) and the constable (shortly after the incident) considered Mr Murdoch to be very aggressive and intoxicated. In other words, Mr Murdoch’s demeanour had not changed despite his account of only being affected by alcohol because of the whisky he had consumed immediately after the incident. It is an available inference that Mr Murdoch’s demeanour had not changed before and after the incident because he was intoxicated at the time of the incident (as the other driver suspected) just as he was when the constable arrived (as she suspected, and subsequently established by testing).
[30] Added to this, as the Judge found, Mr Murdoch did not tell the constable he had been drinking when she came to his house. If Mr Murdoch had not been drinking for some time prior to the incident, but had consumed a lot of alcohol immediately after it and was asked to take an evidential breath test, it is surprising that he would not have informed the constable of this.
16 Bell v Ministry of Transport, above n 8, at 232.
[31] Lastly, I do not accept that Mr Murdoch’s ability to avoid the collision assists his case. In fact, it was not established who was at fault in the near collision. The other driver’s evidence was that she had gotten into her parked car, put her seat belt on, indicated, looked into her rear vision mirror, had not seen anything, pulled into her lane, and was moving for a few seconds and then:
… a car just came out of nowhere on the other side of the road, parallel to me. So I’m in the left-hand lane and the other car was on the side and then it started veering across [to]wards pushing me across as well and I tooted my horn and ended up having to stop.
[32] In contrast, Mr Murdoch’s evidence was that he was driving along the street when he saw a car pull out suddenly in front of him, without indicating, and he had to take evasive action. The Judge referred to this dispute about what had occurred but said it did not require his determination.17 If the other driver’s account was correct, that is consistent with a driver impaired by alcohol. If Mr Murdoch’s account is correct, it is not inconsistent with alcohol impairment. An intoxicated driver may well think a car has come out of nowhere (because of their impairment) and swerve into another lane, rather than for example applying their brakes, when faced with a vehicle in their path.
[33] For these reasons I do not regard Dr Sandiford’s evidence to be sufficiently cogent to the assessment of Mr Murdoch’s culpability.18 In reality, it confirms the obvious – that if Mr Murdoch had only drunk two stubbies of beer in the mid-afternoon he is unlikely to have been over the legal limit at 6 pm, and if he had then drunk half a litre of whisky just after 6 pm he is very likely to be considerably over the legal limit for driving.
[34] In these circumstances, I consider the Judge was correct to find the gravity of the offending to be moderately serious traffic offence of its type, aggravated by Mr Murdoch’s behaviour to the constable. As this was the only basis on which counsel
17 Police v Murdoch (conviction decision), above n 1, at [10].
18 Applications for leave to adduce fresh evidence on appeal are determined with reference to well- settled principles summarised in Bain v R [2007] UKPC 33 and Lundy v R [2013] UKPC 28. The evidence must be sufficiently fresh and credible. It must also be cogent in the sense that it is of real relevance to the issues on appeal: Worthy Redeemed v R [2013] NZCA 61 at [20]. See, generally, Simon France (ed) Adamson Criminal Law – Criminal Procedure (online looseleaf ed, Thomson Reuters) at [CPA335.02].
on this appeal challenged the Judge’s decision, the refusal to grant a discharge without conviction stands.
Result
[35] The application for leave to admit the evidence of Dr Sandiford is refused. The appeal is dismissed.
Mallon J
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