O v Police HC Auckland CRI 2007-404-405

[2008] NZHC 1582

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-405

BETWEEN  O

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         6 October 2008

Appearances: Barry Hart and Alistair Haskett for Appellant

Anna Longdill for Respondent

Judgment:      9 October 2008

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

4.15 pm on 9 October 2008

SOLICITORS

Barry Hart and Alistair Haskett (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

O V POLICE HC AK CRI 2007-404-405  9 October 2008

Introduction

[1]      Mr  O   appeals his conviction in the District Court at Auckland on

10 December 2007 on one charge of driving with excess blood alcohol: s 56(2) Land Transport Act 1998.  He does not appeal his sentence of six months disqualification and a fine of $1,000 together with court costs, fees and medical expenses.

[2]      Mr O  ’s  blood  alcohol  reading  was  248 milligrams  of  alcohol  per

100 millilitres of blood, some three times in excess of the legal limit.  He does not challenge the accuracy of the test on appeal.   Instead he submits that the learned District Court Judge erred in admitting the results on four grounds.  Three are based on  failures  to  comply  with  statutory  time  provisions.    The  fourth  alleges  that Mr O   gave blood under duress, and challenges Judge Cunningham’s factual findings.

Appellate Approach

[3]      I first address briefly an introductory submission made by Mr Alistair Haskett for Mr O  .  He submits that the Supreme Court’s decision in Austin Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR 141 requires an appellate Judge to adopt a de novo approach. He relies on this passage from Elias CJ’s judgment: at [16]:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[4]      However, that submission misunderstands Austin Nichols.  The decision does not change the nature of an appeal against conviction by way of rehearing on the record.    The  contextual  relevance  of  Austin  Nichols  was,  with  respect,  aptly explained by Stevens J in Barry v New Zealand Police HC WHA CRI 2007-488-

0029 3 April 2008 at [25]:

…  According  to  the  Court  of  Appeal  in  Rae  v  International  Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190, an appellate court should not reverse a factual finding unless compelling grounds were shown for doing so. However, this may now be regarded as too broadly stated a principle. The Supreme Court in Austin Nichols was careful to limit the deference advocated in Rae to instances where findings of fact were credibility-dependent. The Court stated at [13] that:

The appeal court must be persuaded that the decision is wrong but in reaching that view no “deference” is required beyond the   “customary”   caution   appropriate   when   seeing   the witnesses provides an advantage because credibility is important.

[5]      The decision in Austin Nichols does not represent a radical departure from well settled principles for determining first instance appeals.   The primary burden remains with the appellant of proving that the District Court’s decision was wrong: Austin Nichols at [13]. However, where a challenge is made, this Court must review carefully the evidential basis for factual findings made in the lower Court. It is no answer to resort to the convenient mantra that the appeal lies against a finding made by the trial Judge who had the benefit of seeing and hearing witnesses giving evidence. While paying appropriate deference, of course, to findings made by a Judge who had that unique advantage where questions of credibility (or, to a lesser extent, reliability) arise, an appellate Court must nevertheless conduct its own independent inquiry. To this extent some of the statements made in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 90 (CA) require moderation.

[6]      I shall approach this appeal accordingly.

(1)      Undue Delay

[7]      First,  Mr  Haskett  submits  that  the  arresting  officer,  Constable  Averill Peterson, failed to advise Mr O   ‘without delay after the result of the [evidential breath test] is ascertained, that the test was positive …’.   He refers to conflicts between the officer’s evidence, based upon her wristwatch, and the printout records from the evidential breath testing machine.  On the officer’s evidence she stopped Mr O   at 11.37 pm.   This time was taken  from her  wristwatch.   She  gave Mr O   formal notice of a right to instruct a lawyer under s 23 New Zealand Bill

of Rights Act 1990 at 11.40 pm, and notice of a positive evidential breath test at

11.45 pm.    The  Advice  of  Positive  Evidential  Breath  Test  form  is  recorded  at

11.49 pm.

[8]      Mr Haskett identifies a delay of 12 minutes, which he says does not satisfy s 77(3)(a), which materially provides:

Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—

(a)The person who underwent the test is not advised by an enforcement officer, without delay after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes,—

(i)        In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be conclusive evidence to lead to that person's conviction for an offence against this Act; or

(ii)      In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 150 but does not exceed 400 micrograms of alcohol per litre of breath, the test could of itself, unless the person is 20 or older, be conclusive evidence to lead to that person's conviction for an offence against this Act;

[Emphasis added]

[9]      There is a short answer to Mr Haskett’s submission.  As Ms Anna Longdill emphasises for the Crown, s 77(3) provides the circumstances in which ‘the result of a positive evidential breath test is not admissible in evidence’ in a prosecution for driving with excess breath or blood alcohol.   Mr O   was not charged with driving with excess breath alcohol and the prosecution did not seek to rely on the test to prove a charge.  Authorities such as Ariki v Police HC AK CRI 2007-404-000174

6 November 2007, where the Court was considering a challenge to a conviction for driving with excess breath alcohol, and upon which Mr Haskett relies, are of no assistance in this context.  This inquiry is not into the admissibility of an evidential breath test result, as it was in Ariki, but relates to whether the result of a blood test is admissible.

[10]     Alternatively, in any event, I am not satisfied that Constable Peterson was guilty of any delay.   This is a purely factual inquiry.   Ms Longdill explained the apparent  nine  minute  discrepancy  between  11.40 pm  and  11.49 pm.    Constable Peterson stopped Mr O  ’s vehicle at 11.37 pm according to her wristwatch.  She administered  the  preliminary  breath  screening  test  and  requested  Mr O    to accompany her to a nearby bus where formal procedures were to be undertaken. Again according to her own  watch, she  gave his rights under the NZBORA at

11.40 pm.  She then required him to participate in an evidential breath test without delay.

[11]     According to Constable Peterson’s  watch,  the breath  testing process  was completed over the next five minutes by 11.45 pm.   By comparison, the testing machine, which was calibrated to a different time than Constable Peterson’s watch, records  that  Mr O    was  tested  between  11.35 pm  and  11.40 pm.    The  five minute differential between the two timing devices is obvious.  The officer verbally advised Mr O   of the failed result at 11.47 pm.  She gave him written advice of a positive result of 1046 micrograms of alcohol per litre of breath at 11.49 pm.

[12]     At best, on the officer’s evidence, there was a delay of a maximum of four minutes between completion of the evidential breath test at 11.45 pm and advice of the positive evidential breath test given at 11.49 pm.  In the interim, as Ms Longdill submits, Mr O   was given verbal advice of the positive result.  The Judge found that the officer’s watch was set five minutes faster than the testing machine’s time record.  Mr Haskett characterises this conclusion as speculation or guesswork.  To the contrary, it is an inference entirely consistent with the undisputed facts.

[13]     This ground of appeal has no merit and is dismissed.

(2)      Blood Test Election

[14]     Second,  Mr Haskett  submits  that  Mr O    did  not  advise  Constable Peterson within 10 minutes of being advised of the positive evidential breath test that he wished to undergo a blood test: s 77(3)(b)(i), which materially provides:

Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—

…

(b)       The person who underwent the test—

(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]     Mr Haskett relies on the common factual ground that Constable Peterson gave the requisite advice at 11.55 pm (for statutory purposes the original notification of advice at 11.47 pm was suspended when the officer advised Mr O   of his NZBORA  rights  on  a  second  occasion).    Mr O    did  not  communicate  his consent until 12.07 am (a separate question about whether he later revoked this consent forms the third ground of appeal).   Thus the consent was given within

12 minutes  of  advice  of  the  positive  test,  two  minutes  outside  the  10 minutes nominated in s 77(3)(b)(i).

[16]     Again Mr Haskett’s argument faces the formidable hurdle of s 77(3)’s sole concern with the admissibility of the result of a positive evidential breath test.  The section  sets  out  the  exclusionary  consequences  of  certain  acts  or  omissions. Mr O   was not charged with driving with excess breath alcohol.  On its face, s 77(3) has no relevance to this appeal.

[17]     Mr Haskett seeks to circumvent this statutory roadblock, however, by relying on the combined effect of ss 60, 70A, 72(1)(b) and 77.  Section 60(1)(a) constitutes the offence of refusing to permit a blood specimen to be taken after a requirement by an enforcement officer under s 72; Mr O   was not charged with that offence. Section 70A entitles a person to elect a blood test where the evidential breath test appears to be positive ‘within 10 minutes of being advised by an enforcement officer of the matter specified in s 77(3)(a)’.

[18]     Section 72(1) obliges a person to permit a medical practitioner to take a blood specimen when required to do so by an enforcement officer:

(1)       … if …

(b)The person has undergone an evidential breath test under section 69(4), and—

(i)       It appears to the officer that the test is positive; and

(ii)      Within   10   minutes   of   being   advised   by   an enforcement  officer  of  the  matters  specified  in section 77(3)(a) (which sets out the conditions of the admissibility of the test), the person advises the officer that the person wishes to undergo a blood test;

[19]     Mr O   was not charged with the office of refusing to supply a blood sample.   Assuming, nevertheless, for the purposes of argument that s 77(3) does apply,  these  other  provisions  do  not  assist  Mr Haskett’s  argument.    Mr O   signed an acknowledgement at 11.49 pm of Constable Peterson’s advice that if he wished to undergo a blood test he must request one within 10 minutes.  The officer granted him an indulgence.  She allowed him 12 minutes.  In these circumstances the reasonable compliance provisions of s 64(2) would apply as follows:

It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.

[Emphasis added]

[20]     Cooke J’s comments in Auckland City Council v Adam [1981] NZLR 352 (CA) at 353 are directly apposite:

In effect those provisions [including the 10 minute provision] give the motorist an opportunity to have the result of a positive evidential breath test superseded by the result of a blood test. We think that there may be circumstances in which an enforcement officer, in his discretion, could reasonably allow the motorist a little longer to make up his mind; in which event, if the blood test were positive, although the provisions of s 58B as to time had not been strictly complied with, s 58E would prevent the defendant from successfully raising the time point as a defence to a charge under para (b) of s 58(1).

Furthermore, to the same effect, Cooke J observed, also at 353:

In our view the effect of the New Zealand provisions is that the enforcement officer  is  within  his  powers  in  allowing  the  motorist  no  more  than

10 minutes to ask for a blood test. If the motorist does not ask for one in that

time, the result of the evidential breath test will be decisive. If in his discretion the officer decides as a matter of fairness or mercy to allow the motorist rather longer to make up his mind, a subsequent positive blood test obtained after the motorist has advised that he wishes a blood test will found a  prosecution  under  s 58(1)(b)  if  the  Court  accepts  that  there  has  been reasonable compliance in all the circumstances. Otherwise the prosecution can only rely on para (a).

[21]     Subsequent decisions of this Court have construed s 64(2) and its predecessor liberally.    In  Gore  v  Police  (High  Court,  Auckland,  AP81/90  22 June  1990) Tompkins J  upheld  a  District  Court  Judge’s  finding  that  a  request  made  three minutes  after  the  expiration  of  the  10 minute  period  amounted  to  reasonable compliance with the Act.  In De Jong v Police (2000) 18 CRNZ 128 Wild J reached the same result on similar facts.

[22]     I  am  in  no  doubt  that  Constable  Peterson’s  extension  of  time,  from

10 minutes to 12 minutes, to allow Mr O   to decide whether to elect to undergo a blood test, was reasonable compliance with s 70A.  It is difficult to understand how her accommodation of Mr O  , by extending his statutory right, might ever be characterised as unreasonable.  For example, the officer did not, as she would have been entitled to do, insist on strict compliance; indeed, she obeyed judicial advice to

‘allow a little over 10 minutes in order to be on the safe side’: Griffin v Ministry of Transport (High Court, Wellington, M86/82, 23 August 1982, Quilliam J).   Two minutes was a relatively small degree of non-compliance; and Mr Haskett does not suggest any prejudice: see De Jong at [25].

[23]     I would add, in any event, that Mr Haskett expressly acknowledged that:

Where a driver elects a blood specimen outside 10 minutes, the driver is not under the s 72(1)(b) duty.  Such a driver may be convicted for driving with excess blood alcohol under s 56(2) if a specimen is provided consensually.

The question of compliance with s 72(1)(b) does not arise.   Mr O   was not charged with an offence against that provision.  Accordingly, on Mr Haskett’s own argument,  Mr O    was  properly  convicted  if  the  specimen  was  provided consensually.    On  reflection,  this  conclusion  explains  Mr Haskett’s  observation during oral argument that this second ground was largely subsumed within the third.

[24]     This ground of appeal likewise fails.

(3)      Revocation of Consent

[25]     Third, Mr Haskett submits that Mr O   lawfully revoked his consent after it was given.   He submits that the result of the blood test is inadmissible because Mr O   was not subject to the s 72(1)(b) duty where he elected to give a blood specimen outside 10 minutes.  In that case the appropriate charge should have been driving with excess breath alcohol: s 56(1).

[26]     Judge Cunningham did not find that Mr O   lawfully revoked his consent (I shall deal with that question later).   But for the purposes of dealing with this ground of appeal I shall proceed on the contrary premise.  And again, I repeat, Mr O   was not charged with an offence under s 72(1)(b).

[27]     At this point I should record that Constable Peterson’s evidence given on

24 April  2007  both  in  examination-in-chief  and  cross-examination  was  fully transcribed.   The notes were typed up for the purposes of allowing the Judge to consider, at an adjourned hearing, a defence submission of no case to answer on a ground that was later abandoned.   The defence application was renewed at a later date on different grounds which were plainly without merit.  Judge Cunningham’s dismissal of the defence submission is not challenged on appeal.

[28]     The  substantive  hearing  did  not  resume  until  10 December  2007  when Mr O   gave evidence.  Unfortunately the recording equipment was faulty and the Court was unable to prepare a transcript.  I have the benefit, however, of a typed copy of Judge Cunningham’s hand-written notes of Mr O  ’s evidence.

[29]     I am satisfied that Mr O   was not entitled to revoke his consent once given.   In Police v Irwin (1990) 6 CRNZ 171 Tompkins J held that a decision communicated to an enforcement officer of an election to undergo a blood test within  the  10 minutes  was  not  revocable.     The  Judge  followed  Somers J’s observation in Auckland City Council v Haresnape [1983] NZLR 712 at 715 that ‘a request for a blood test whenever made is final’, contrasting this position with a prohibition on an enforcement officer from doing or saying anything which would

reasonably lead the driver to believe a decision not to take a blood test is final and cannot be revoked within that 10 minutes.

[30]     I  do  not  accept  Mr Haskett’s  attempt  to  distinguish  these  authoritative statements on the ground that they are to be confined to an election made ‘within

10 minutes’.  The decision in Irwin and Somers J’s observations in Haresnape are based on the premise that the statute does not allow a driver to revoke consent, whenever made.  Mr O   cannot rely on Constable Peterson’s indulgence of two minutes to set up a different legal consequence.   This ground of appeal must fail also.

(4)      Duress

[31]     Fourth, and related to Mr Haskett’s third ground, Mr Hart submits that Judge Cunningham erred both in finding (1) that Mr O   did not in fact revoke his consent and (2) in accepting Constable Peterson’s evidence that she did not threaten him with arrest if he failed to give the sample.   Allied to this proposition is an argument that the Judge made a decisive finding on a non-existent conflict of evidence.   It is the absence of that conflict, as a result of the defence failure to directly challenge the prosecution evidence in cross-examination, which is itself decisive against the appeal.

[32]     Mr Hart  filed  a  detailed  written  submission  in  support  of  this  ground. However, the real issue falls within a reasonably narrow compass, and I am only determining it against the contingency that my finding on the earlier grounds of appeal, particularly the third, may be incorrect.

[33]     Mr Hart accepts  that  Mr O    initially exercised  his  statutory right  of election to have a blood test.  The officer read him the advice on the standard form and explained its purport to him.  Mr O   signed the form in acknowledgement. A few minutes later he affirmatively advised, both orally and in writing, that he wanted a blood sample.

[34]     Constable Peterson then introduced Mr O   to the medical officer.  She heard the officer  read  out  and  explain  the  relevant  blood  specimen  form.    She observed the medical officer comply with all the procedural requirements for taking blood.   She also observed the medical officer take a specimen of venous blood at

12.16 am.    This  was  seven  minutes  after  Constable  Peterson  had  requested  the sample.

[35]     Mr Hart  cross-examined  Constable  Peterson  extensively.     The  relevant passage from the transcript is as follows:

Q.        At one point in time [Mr O  ] changed his mind and said, look, no, I don’t want a blood sample, didn’t he?

A.       I don’t recall that.

…

Q.       I understand, but what I’m suggesting to you is that [Mr O  ]

actually changed his mind?

A.       And he didn’t want a blood sample taken?

Q.       As he’s indicated he didn’t want a blood sample taken? A. I don’t recall that.

Q.        I know it’s a long time ago and you may have forgotten but I’m just…?

A.       I don’t recall that.

Q.        I suppose you’d take the view even if that was raised that it was too late because he’d said he wanted blood anyway, would that be correct?

A.        That would be correct, then he’d be charged with refusing blood instead of excess blood.

Q.        I’m just raising the issue with you, he did say it to you, are you prepared to accept he may have said that?

A.       He possibly did.

THE COURT:  Do I take from your questions, Mr Hart, that your client’s going to give evidence?

MR HART: No, I just said if he did.

THE COURT: Thank you, I didn’t hear that part.

CROSS-EXAMINATION CONTINUES BY MR HART

Q.        I suppose on the base that he did say that you would have indicated, well, if you don’t have a blood sample you could be arrested and face more serious charges.  Would that be correct?

A.        My standard procedure would be to say to him, I’m filling in this form before I make the requirement of you make up your mind.

Q.       And if you don’t you could be arrested for refusing, is that …? A.  Yes.

Q.        And you could have used a colloquial word, look, if you don’t do this you can get arrested.  Correct?

A.        Well, he was made aware of all the facts.

Q.       I want you to answer the question? A.      Okay.

Q.        I’m asking you could you have said to him, well, if you don’t do this you’ll be arrested?

A.        No, I would have said, if you don’t want to have a blood sample taken after signing this form you possibly will be arrested.

Q.        Just so I’m clear about what I’m putting to you.  I’m putting it in this basis, he actually changed his mind and said, he didn’t want to have blood, all right, and then you indicated to him that – if you don’t agree then you’ll be arrested.  Do you accept that he may have said that?

A.        (no audible answer)

Q.       That’s a long pause, what do you think? A.         No, I don’t actually think I do.

Q.        In actual fact that does follow on, if he’d actually said, I’m not going to, then he could have been charged with refusing and you could have  arrested  him.    It  was  his  decision,  do  you  want  a  blood sample’s a pretty simple question.  I know that but what I’m saying is, you’ve admitted yourself that he could face being arrested, a decision that you could make?

A.        Yes.

Q.       Right? A. Yes.

[36]     At this point the prosecutor objected to the speculative nature of Mr Hart’s questions.  The Judge observed:

I have to say the way I’m hearing the questions is that Mr O   did initially say that he wanted to have a blood test having been advised that he was entitled to do that by the officer, and that he signed a form saying he was going to have a blood test and he later changed his mind.   I need to indicate that the way the questions are being put is that that happened as a matter of fact, not speculation.

Mr Hart responded:

That’s correct, Ma’am, it’s not being put as a speculation, it’s being put that that is the defence case, that that’s how it happened.

[37]     This  passage  of  the  cross-examination  was  completed  by  the  Judge’s question:

Q.        Can I just clarify something with the officer.  Is that the case that if they’ve agreed to give a blood test and they later changed their mind, they might be charged with refusing.  Even though you’ve still got the breath test result?

A.       Yes.

Mr Hart then asked:

Q.        So you would have indicated – at least at some stage – if you do that not only will you be charged but you can be arrested for doing that. Correct?

A.       Probably, yes.

[38]     In my judgment the prosecutor’s objection and the Judge’s concern were well grounded.  Mr Hart was apparently attempting to lay the evidential groundwork for the two related defences which  form the  ground  for this appeal.   One was  the possibility that Mr O   may possibly have communicated a revocation of his consent to the blood test; the other, consequentially, was that he only gave blood in response to Constable Peterson’s threat of arrest.

[39]     If that was the defence, a direct challenge was required.  Mr Hart should have put squarely his propositions that (1) Mr O   changed his mind, with particulars of the manner and nature of the communication; and (2) that Constable Peterson threatened him with arrest if he did not comply with the election to give a blood sample.  While Mr Hart plainly wanted to avoid asking questions which committed Mr O   to giving evidence, the price of cross-examination undertaken on that premise is its inherently hypothetical nature.

[40]     Without a direct challenge to Constable Peterson’s evidence, there was no material conflict for the Judge to resolve.   Mr O  ’s prospective evidence was not put to the officer.  In its absence the Judge was entitled to accept the officer’s account: Phipson on Evidence, 16th  Ed. at para 12-35.   There was no basis for an adverse credibility finding against Constable Peterson: Gutierrez v R [1997] 1 NZLR

192 (CA).  In particular, the Judge had a proper evidential basis for finding that the officer did not threaten Mr O   with arrest.

[41]     Mr O   gave evidence.  Significantly he affirmed his election to have a blood test, although he attempted to portray it in equivocal terms, both to Constable Peterson and the medical officer.   He said that while the nurse was preparing implements he decided to change his mind; that he turned to her and said ‘I do not want to give blood, I have changed my mind’; and that Constable Peterson said ‘if you do not give blood you will be arrested’, conveyed in a threatening manner and with a change of tone.  In answer to a question from Mr Hart, Mr O   said that he gave the blood sample because he felt compelled by the officer’s threat of arrest.

[42]     None of this detail of Mr O  ’s defence was put directly to Constable Peterson in cross-examination.   If the  defence  had  placed  Mr O  ’s  account squarely before the Court, the prosecution would have had the right to seek to call rebuttal evidence from the medical officer.  In the result the credibility of Constable Peterson’s evidence was not in issue, even though on Mr O  ’s account he only gave the blood sample under her threat of arrest.  And the officer’s reliability was not called into question.  Accordingly, I repeat, Judge Cunningham had an unassailable basis for accepting her evidence.

[43]     I share Mr Hart’s concern, however, about one passage from the Judge’s decision, as follows:

When Mr O   gave his evidence about the change of mind and response by the constable I noticed the look of disbelief on Constable Peterson’s face.

It is, as the Judge will appreciate, entirely inappropriate to take into  account  a witness’ facial expression, communicated in the body of the Court and not in the witness box (and more than six months after she had given evidence), as a basis for a finding of fact.   A judicial decision must be founded on evidence admitted in accordance with the relevant rules.   However, while unfortunate, this passage was not ultimately decisive.

[44]     Mr Hart’s argument contracts accordingly to a fallback proposition that it was unnecessary for the Judge to make credibility or reliability findings because Constable Peterson admitted the possibility that Mr O   may have changed his mind about giving the blood sample.  Mr Hart submits that the Judge was confronted with a witness who acknowledged that Mr O   possibly changed his mind and Mr O   who was himself ‘confident in his view that he did change his mind and communicated that to Constable Peterson’.

[45]     It is important to revert to the transcript.   Constable Peterson accepted the possibility that Mr O   ‘may have said [he did not want a blood sample taken]’. The hypothetical nature of the question robbed the answer of any evidential value. An acknowledgement of the possibility that something may have been said does not, without more, raise a reasonable doubt.  Moreover, and this point is independently fatal, without a finding that Mr O   gave the blood sample under duress, the only available inference is that he acted voluntarily.

[46]     Accordingly all grounds of appeal fail.

Admissibility

[47]     I accept that the material provisions of the Evidence Act 2006 did not come into force until 1 August 2007.  The question still remains, however, whether, if I had found the result of the blood test was unlawfully obtained, I should nevertheless exercise the common law discretion to admit it: see R v Shaheed [2002] 2 NZLR

377; R v Williams [2007] 3 NZLR 207.

[48]     In  view  of  the  Judge’s  finding,  which  I  have  affirmed,  that  Constable Peterson did not threaten Mr O   with arrest if he failed to give a blood sample – that is, that Mr O   did not act under duress – the evidence would only be arguably inadmissible on the grounds of failures to comply with time provisions or to allow Mr O   to revoke his election.  The question is whether or not exclusion of the blood test result would be wholly disproportionate to those breaches.

[49]     Mr  Haskett’s  arguments  for  exclusion  within  the  discretionary  inquiry proceed on two premises.  One is that, even if the reasonable compliance provision did apply to the officer’s extension of the 10 minute period, it cannot be appropriate to legitimise a driver’s detention with a view to consenting to an irrevocable election to provide a bodily sample.  The other is the officer’s wrongful threat of arrest.  Both founder on their inconsistency with the facts.

[50]     I agree with Ms Longdill.  The rights provided by the Land Transport Act are important.  In earlier years the Courts adopted a strict approach to compliance with breath and blood testing procedures.   However, the introduction of the reasonable compliance regime has had a significant effect, mitigating some of the technical defences previously raised.  At best for Mr O  , in the absence of a finding of bad faith or duress, he was unable to revoke his original and unequivocal consent to a blood test.  This factor is neutral.

[51]     The principal factor in favour of admission is the nature and quality of the evidence.  Its integrity is not in dispute.  The result of the blood test is unequivocal evidence of the commission of the offence of driving with excess blood alcohol.  It was central to the prosecution case.  Its quality and reliability are beyond question. Furthermore, the offence of driving with excess blood alcohol is serious, especially as Ms Longdill submits in a case like this where Mr O  ’s decision to drive a motor vehicle while his blood level was three times over the legal limit placed the safety of other road users at real risk.

[52]     Accordingly I would have exercised my discretion to admit the evidence of the result of the blood test even if I had found that it was improperly obtained.

Decision

[53]     Mr O  ’s appeal against conviction is dismissed.

[54]     Mr O  ’s sentence of six months disqualification and a fine of $1,000 together with court costs, fees and medical expenses has been suspended pending this decision.   The period of disqualification is now reinstated to commence at

midnight today, 9 October 2008, and he is ordered to pay the fine and costs within

28 days.

Rhys Harrison J