O'Connor v Police HC Wellington CRI-2011-485-36

[2011] NZHC 885

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-36

MARTIN WILLIAM O'CONNOR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 July 2011

Counsel:         W M Johnson for the Appellant

G A Kelly for the Respondent

Judgment:      29 July 2011 at 4:00 PM

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 4pm on the 29th day of July 2011.

RESERVED JUDGMENT OF MACKENZIE J

Introduction

[1]      The appellant was convicted following a defended hearing in the District Court at Lower Hutt before Judge Moss on 24 March 2011 on one count of driving with excess blood alcohol concentration, having previously been convicted of a similar offence on two occasions.  He appeals against that conviction.

[2]      Three grounds of appeal are raised.  First, it is submitted that the Judge erred

in admitting evidence of the appellant’s previous convictions in the manner and at

O'CONNOR V NEW ZEALAND POLICE HC WN CRI-2011-485-36 29 July 2011

the stage that she did so.   Second, the appellant challenges the sufficiency of the evidence of the chain of custody of the appellant’s blood specimen to establish beyond reasonable doubt that the sample to which the evidence related was that taken  from  the  appellant.    Third,  the  appellant  submits  there  was  insufficient evidence that the officer administering the breath and blood testing procedures was an authorised enforcement officer in terms of s 113 of the Land Transport Act 1998 (“the Act”).

[3]      On the second ground, Mr Johnson advised that a judgment of Mallon J on a similar point is the subject of an application for leave to appeal to the Court of Appeal and in those circumstances he did not wish to argue that issue on this appeal.

Proof of previous convictions

[4]      Mr O’Connor was charged under s 56(2) of the Act.  The information alleged that he had been convicted at least twice previously of a similar offence.   That allegation of two previous convictions brought into play s 56(4) which provides:

If a person commits a third or subsequent offence against subsection (1) or subsection (2) or any of sections 57A(1), 58(1), 60(1), or 61(1) or (2) (whether or not that offence is of the same kind as the person's first or second offence against any of those provisions), the person commits an indictable offence and on conviction—

(a)   The maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and

(b)   The court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.

[5]      During the evidence-in-chief of the processing officer, the prosecutor wished to have the witness produce a certified copy of the appellant’s criminal record. Mr Johnson objected to that on the grounds that the certificate was not admissible at that stage, and that the certified copy of previous convictions would become admissible  only  at  the  time  of  sentencing.    There  was  an  exchange  between Mr Johnson and the Judge on that point, and on some issues about the accuracy of the certificate. The Judge ruled that the certificate was admissible, but did not at that stage rule on its probative value.

[6]      The upshot of the prosecution was that Mr O’Connor was convicted of the offence of driving with excess blood alcohol, but because of the difficulties over the accuracy of the certificate of conviction, proof of previous convictions was held over to sentencing.  The record is not clear as to exactly what occurred from that point on. Sentencing proceeded on the basis that the previous convictions were not proved, and the Judge dealt with the appellant “as if you had never appeared before the Court on a drink/drive charge”.

[7]      On that basis, the first ground of appeal is largely moot.  However, as it was extensively argued by Mr Johnson, I consider it appropriate to deal with the point.

[8]      Mr Johnson  referred  to  the  practice  adopted  when  proof  of  an  earlier conviction is a necessary element of proof of a count in an indictment which is tried by a jury.  That is prescribed by s 341 of the Crimes Act 1961.  The trial proceeds without reference to the previous convictions, and a verdict is taken having regard to all elements of the offence, except the previous convictions.   If there is a guilty verdict, and the previous convictions are contested, that element is then the subject of a separate hearing before the jury.

[9]      That practice is necessary to ensure that there is no unfair prejudice to the accused  by  the  jury  becoming  aware  of  the  previous  convictions.    That  same rationale does not apply in a judge alone trial.   Nevertheless, Mr Johnson submits that a procedure akin to the jury practice is required.

[10]     Sections 69 and 69AA of the Summary Proceedings Act 1957 are relevant. Section 69 applies where a defendant is charged with an offence for which the penalty is greater if the defendant has previously been convicted of that offence or some other offence, and, by reason of that greater penalty, the defendant is entitled to elect jury trial.  That is the case here.  Subsection (2) provides that the information shall disclose the existence of the previous convictions so that the right to elect jury trial under s 66 is made available.

[11]     Section 69AA(1) provides:

For the avoidance of doubt, it is hereby declared that in any case where—

(a)       Section 69 of this Act applies; and

(b)      The defendant elects, under section 66 of this Act, not to be tried by a jury,—

it shall not be necessary for the informant to prove any previous conviction to which section 69(2)(a) of this Act applies, where that conviction is not admitted by the defendant, until the issue of penalty for the offence arises.

[12]     That section makes it clear that it was not necessary for the prosecution to introduce its evidence of the previous convictions at the point in the trial where it did.    However,  it  does  not  follow  that  the  prosecution  could  not  introduce  the evidence at that point.

[13]     I do not accept that Mr Johnson’s submission that the appellant may have been prejudiced by the introduction of the evidence of previous convictions at that point in the trial.  The judge necessarily had to be aware of the allegation that the appellant  had  previous  convictions,  because  s 69(2)  required  the  information  to disclose the existence of those convictions.   Judges hearing summary proceedings are well used to putting aside any prejudice resulting from knowledge of the past history of a defendant.  The ruling that the evidence was admissible at that point was correct.

[14]     Mr Johnson raises a second point of prejudice, that the certificate of previous conviction had not been disclosed to the defence prior to the hearing.  He submits that had the certificate been disclosed earlier, the defects in it would have been apparent and the appellant might have elected jury trial.

[15]     I do not consider that there is any risk of prejudice.   The defect in the certificate could not have been exploited at the first stage of a jury trial, so it could not have led to an acquittal on the charge of driving with excess blood alcohol.  The only effect could have been that the defect in the certificate might have led to a verdict favourable to the appellant on the second stage.  That is exactly the same as what in fact occurred, namely that the appellant was treated as if he had no previous convictions for a similar offence.

Evidence of authority

[16]     The  next  ground  of  appeal  is  that  there  was  not  sufficient  evidence  to establish that the officer conducting the breath and blood alcohol procedures was “an enforcement officer in uniform or in possession of a warrant or other evidence of his or her authority as an enforcement officer” in terms of s 113(1) of the Land Transport Act 1998.

[17]     Mr Johnson submits that in this case the only evidence of authority was that the officer was working on shift, that he applied his red and blue lights, that the appellant’s vehicle then pulled over and the testing was completed without protest. He submits that this is inadequate, and refers to the decisions in Police v Southall,[1]

Police v O’Meara,[2] and Crilly v Police.[3]

[1] Police v Southall HC Wanganui CRI-2010-483-000061, 8 April 2011.

[2] Police v O’Meara DC Lower Hutt CRI-2008-032-2479, 6 March 2009.

[3] Crilly v Police HC Wellington CRI-2005-485-137, 3 March 2006.

[18]     Judge Moss dealt with the point in these terms:[4]

[4] New Zealand Police v O’Connor DC Lower Hutt CRI-2010-032-001337, 24 March 2011 at [13]-[14].

The challenge to this prosecution then rests on whether Constable Keeys had authority at the time he commenced requiring this defendant’s compliance at the  roadside.    Mr Johnson  raised  no  challenge  to  that  matter  in  cross- examination, no defence evidence was called which would cast doubt on the inference which I take that having been stopped by an enforcement vehicle displaying red and blue lights that there was no challenge to the authority, and that indeed this officer was exercising authority, which he had.

The absence of a clear statement that he was in uniform in unfortunate, but in my view not fatal.  The decision in Crilly which Mr Johnson relied on to support the proposition that the absence of any information tending to prove that this man had authority to stop a civilian does not assist us because the evidence is clear, and was unchallenged that Constable Keeys working with a partner used the red and blue lights in the patrol vehicle on the night.  I am satisfied to the necessary standard that the blood testing procedures were undergone in a proper way.

[19]    I consider that there was sufficient evidence for the judge to reach the conclusion which she did.  There was no challenge to the authority of the officer,

either at the time or in cross-examination.  There is a distinction in the authorities,

noted by Dobson J in Southall,[5]between cases in which there is a challenge to authority and cases in which the defendant seeks to exploit a lack of evidence.  In Russo v Police, Allan J said: [6]

[5] Police v Southall, above n 1, at [21]-[23].

[6] Russo v Police HC Rotorua CRI-2005-470-04, 27 April 2005 at [35]-[36].

It is necessary, in my view, to distinguish between those cases in which there has   been   a   challenge   in   cross-examination   to   the   authority   of   the enforcement officer concerned and those where no such challenge was mounted. In Passmore the learned District Court Judge held that the cross- examination was insufficiently specific to require the prosecution positively to  establish  that  the  enforcement  officer  was  in  uniform  or  carrying  a warrant. In other words, there was no sufficient challenge.

In the ordinary run of cases where there is no challenge, then there is ample authority for the proposition that, despite the fact that there is no direct evidence  of  an  enforcement  officer  being  in  uniform,  it  is  nevertheless proper for the Court to consider all the available evidence in order to draw an appropriate inference. But where, either in the field or in cross- examination, the prosecution is put on notice that the defence puts the prosecution to proof of the authority of the enforcement officer concerned, then it will not simply be sufficient to point to inferences which might be drawn from the surrounding circumstances. It is then for the prosecution to prove its case in the usual way by direct evidence. That, I believe, is what the judgments of Woodhouse P and Cooke J in Quirke require. I do not believe that the prosecution is thereby unduly burdened. After all, the issue arises only where there is a direct challenge and even then the challenge can be met by  the  giving  of  the  briefest  direct  evidence  as  to  the  officer  being  in uniform.

[20]     I respectfully concur with those views.  They are, in my view, reinforced by this comment by the Supreme Court in Aylwin v Police:[7]

[7] Aylwin v Police [2009] 2 NZLR 1 at [17].

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.

Result

[21]     For the foregoing reasons, the appeal is dismissed.

“A D MacKenzie J”

Solicitors:      W M Johnson, Wellington for the Appellant.

The Crown Solicitor, Wellington for the Respondent.