Oscilowski v Police
[2015] NZHC 2255
•18 September 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2015-404-201 [2015] NZHC 2255
BETWEEN STANLEY OSCILOWSKI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 8 September 2015 Counsel:
A J Haskett for Appellant
S O'Connell for RespondentJudgment:
18 September 2015
JUDGMENT OF ANDREWS J
This judgment was delivered by me on 18 September 2015 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
OSCILOWSKI v NEW ZEALAND POLICE [2015] NZHC 2255 [18 September 2015]
Introduction
[1] Following a Judge-alone trial before Judge R Wade the appellant, Mr Oscilowski, was convicted in the District Court at Auckland on 22 May 2015, on a charge of refusing to permit a blood specimen to be taken after having been required to do so.1
[2] Mr Oscilowski has appealed against the conviction.
Background
[3] At about 12.30am on 3 January 2014, Constable L Answorth intercepted and caused Mr Oscilowski to stop, after the Police had received calls from members of the public concerned at the manner of his driving. Constable Answorth observed that Mr Oscilowski was unsteady on his feet, his speech was slightly slurred, the constable could smell alcohol on his breath, and his eyes were bloodshot and glazed. Mr Oscilowski volunteered to Constable Answorth that he had been drinking.
[4] Constable Answorth administered a roadside breath screening test, which Mr Oscilowski failed. Constable Answorth then required Mr Oscilowski to accompany him to the Ellerslie Patrol Base for an evidential breath test, blood test, or both. Before being taken to the control base, Mr Oscilowski was cautioned, and he was cautioned again at 12.50am, before the evidential breath test procedure was commenced.
[5] Constable Answorth commenced the evidential breath test procedure at
12.52am. He observed Mr Oscilowski watching the breath testing machine (“the machine”). Constable Answorth said in evidence that Mr Oscilowski was watching the LED screen on the machine which shows the alcohol level. Constable Answorth said that the indicated level “shot up” to 1000, and at that point Mr Oscilowski stopped breathing into the mouthpiece saying “I can’t provide you with a sample of breath”, or “Oh no, I need to do that again”. The machine recorded “insufficient” for
this attempt.
1 Police v Oscilowski [2015] NZDC 7451 (“the District Court decision”).
[6] Constable Answorth then told Mr Oscilowski to provide another breath sample, but again the machine recorded this (at 12.55am) as “insufficient”. At the same time, the machine recorded an “air blank error”. The machine also recorded “evidential breath test result incomplete test”.
[7] At 12.59am Constable Answorth required Mr Oscilowski to undergo a second evidential breath test. He demonstrated how a breath sample was to be given, and explained it verbally. Mr Oscilowski blew into the mouthpiece two times, at 1.00am and at 1.01am. After the first blow the machine recorded “insufficient”. Constable Answorth said that Mr Oscilowski made “a very weak attempt at blowing through the machine, in complete contrast to what I was demonstrating”.
[8] Constable Answorth demonstrated the process again, and told Mr Oscilowski
to blow again. Once again, the machine recorded “insufficient”.
[9] In cross-examination, Constable Answorth accepted that Mr Oscilowski did not say that he would not blow into the machine, but said “he made no effort to blow. He blew really lightly. It was almost, it was just to the point of farcical”.
[10] After the second “insufficient” record Constable Answorth told Mr Oscilowski that the test was incomplete as he had not been able to provide the required samples. He gave Mr Oscilowski his rights again, and told him that he was required to allow a specimen of venous blood to be taken. Mr Oscilowski refused to answer “yes” or “no” as to whether he consented to a blood specimen being taken. Mr Oscilowski told Constable Answorth that he wanted to speak to a lawyer. However, he could not remember his lawyer’s name (even after being permitted to telephone a friend in private to obtain the name), and he refused to select any other lawyer from a list provided to him by the Police, or from a telephone directory.
[11] In all, Constable Answorth asked Mr Oscilowski six times whether he would consent to a blood specimen being taken but Mr Oscilowski refused to answer. At
1.22am Constable Answorth arrested Mr Oscilowski on the charge of refusing to provide a blood specimen, and cautioned him again.
The District Court decision
[12] I record, first, that the Judge dismissed a charge against Mr Oscilowski of dangerous driving. It is not necessary to refer to the Judge’s reasoning on that charge.
[13] In relation to the charge of refusing to provide a blood specimen, the Judge accepted Constable Answorth’s evidence that Mr Oscilowski had deliberately refused to provide an adequate breath specimen, and that Constable Answorth had complied with instructions on the machine. He found that, that being the case, there was no reason for Constable Answorth to continue seeking breath specimens ad nauseam.2 In reaching that conclusion, the Judge rejected a submission made on behalf of Mr Oscilowski that Constable Answorth should have continued to repeat the breath test procedure until the machine “timed out” and turned itself off.
[14] The Judge also rejected Mr Oscilowski’s submission that Constable Answorth had acted unfairly in stopping the evidential breath test procedure, and that all evidence after the procedure was stopped should be excluded under s 30 of the Evidence Act 2006.
[15] The Judge was satisfied that Mr Oscilowski had refused to give a blood specimen on the basis that he should be allowed to communicate with a lawyer whose name he did not know and for whom he had no contact details.3 On this basis, the Judge found that Mr Oscilowski had committed the offence on which he was charged, namely that he had been required to permit a blood specimen to be taken and had refused to do so.
Approach on appeal
[16] Mr Oscilowski has a right to appeal against conviction pursuant to s 229 of the Criminal Procedure Act 2011. Pursuant to s 232(2)(b) and (c), this Court may
allow an appeal against conviction after a Judge-alone trial only if the trial Judge
2 District Court decision, above n 1 at [16].
3 At [16].
erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason.
[17] Pursuant to s 232(4) a “miscarriage of justice” means an error, irregularity, or occurrence in the trial that has created a real risk that the outcome of the trial was affected, or that has resulted in a trial that was a nullity. A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.4
Submissions
[18] Mr Haskett submitted that Mr Oscilowski was not properly required to give a blood specimen, so could not be convicted on the charge of refusing to permit one to be taken.
[19] He submitted that it is an essential element of the charge that the defendant has been properly required to permit a specimen to be taken. He submitted that in the present case, that could only have been if Mr Oscilowski had failed or refused to undergo an evidential breath test, or if an evidential breath test could not be carried out at the Ellerslie Patrol Base. Mr Haskett submitted that neither of these was satisfied.
[20] Mr Haskett submitted that when the first evidential breath test gave an “air blank error” result, Constable Answorth had the option of immediately proceeding to require Mr Oscilowski to allow a blood specimen to be taken, or to require him to undergo a further evidential breath test. He submitted that Mr Answorth elected to require a second evidential breath test and was then required to continue with that test until it was completed. He submitted that an evidential breath test is “completed” when the machine provides an alcohol level, or when the machine “times out” and switches itself off after an unspecified number of “insufficient”
results.
4 See R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110], (per Tipping J).
[21] Mr Haskett further submitted that Constable Answorth’s evidence did not establish that Mr Oscilowski was refusing to comply with the evidential breath test by deliberately not blowing sufficient breath into the machine. He submitted that there was no evidence that Mr Oscilowski had not provided a sufficient seal with his lips around the mouthpiece, or that he had sucked air in rather than blown it out.
[22] Finally, Mr Haskett submitted that as Constable Answorth himself stopped the test after deciding that Mr Oscilowski was not providing sufficient breath, he had not followed the procedure for an evidential breath test under the Land Transport (Breath Tests) Notice 2009 (“the Breath Tests Notice”). He submitted that Constable Answorth could not, therefore, validly require Mr Oscilowski to permit a blood specimen to be taken.
[23] Mr O’Connell submitted that the Judge was entitled to accept Constable Answorth’s evidence that Mr Oscilowski was not willing to provide a breath sample, and to require him to allow a blood specimen to be taken. He submitted that that conclusion was available on Constable Answorth’s evidence that Mr Oscilowski made no effort to blow – almost to the point of being farcical.
Analysis
[24] The critical question is whether Mr Oscilowski was properly required to permit a blood specimen to be taken. The relevant statutory provisions are ss 70 and
72 of the Land Transport Act 1998 which provide, as relevant:
70 Person may be required to undergo further evidential breath test if initial test fails to produce result
(1) If for any reason an evidential breath test carried out under section 69 by an enforcement officer fails to produce a result, the enforcement officer may, at his or her discretion, either require the person to undergo without delay a further evidential breath test or proceed as if section 72(1)(c) applies.
(2) A requirement made under subsection (1) is deemed to be a requirement under section 69(4).
72 Who must give blood specimen at places other than hospital or surgery
(1) A person must permit a medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—
(a) the person fails or refuses to undergo without delay an evidential breath test after having been required to do so by an enforcement officer under section 69; or
…
(c) an evidential breath testing device is not readily available at the place to which the person has accompanied an enforcement officer under section 69 . . ., or for any reason an evidential breath test cannot then be carried out at that place; or
…
[25] It is also necessary to refer to the relevant part of the Breath Tests Notice:
8 Manner of carrying out evidential breath tests by means of Dräger
9510NZ, Intoxilyzer 5000, or Seres
Evidential breath tests carried out by means of a Dräger 9510NZ, an
Intoxilyzer 5000, or a Seres must be carried out in the following manner: (a) Step 1: start of testing sequence
The officer must depress the button for starting the test
(b) Step 2: evidential breath test
The officer must carry out the testing sequence in accordance with the instructions appearing on the display panel on the device, and–
(i) The officer must attach a new mouthpiece to the breath inlet tube and instruct the person being tested to blow through the mouthpiece; and
(ii) The person being tested must blow through the mouthpiece to provide a subject breath specimen sufficient for analysis, when instructed by the officer; and
(iii) Step 2(i) and step 2(ii) must be repeated, as required, until the testing sequence is completed.
(c) Step 3: results of test–
(i) The results of the various steps in the testing sequence will be shown on the result card or print-out, including the Evidential Breath Test Result (which must be taken to
indicate the number of micrograms of alcohol per litre of breath of the person tested).
(ii) If the Evidential Breath Test Result is “Incomplete Test”, the
test has been unable to be carried out.
[26] These provisions have been considered by the Courts on several occasions. In Police v Rimene, Durie J observed:5
… The officer is able to require a blood test whenever there has been an incomplete test, regardless of the cause, the officer may require, at his or her discretion, that the suspect undergo a further test. The tests of reasonableness and fairness to the suspect continue to apply, fairness no doubt involving consideration of the fundamental human right not to be unreasonably exposed to a requirement to give blood. Evidence of some error in process or machine malfunction is therefore no doubt pertinent to the exercise of discretion but some evidential basis for requiring further evidence on the matter would need to be apparent.
[27] In the same judgment, His Honour also noted:6
[18] I think the inherent question in s 72(1)(a) is quite simple – did the person fail or refuse to undergo the test? Evidence of whether the machine is working may well be relevant in determining whether there was a failure or refusal. An example might be a case in which it is uncertain whether the incomplete result is due to the subject’s physical incapacity (which would be covered by s 72(1)(a)) or exclusively to a defect in the machine (which would not be covered: MOT v Heron [1980] 1 NZLR 582 (CA)). However, such evidence may not be necessary if there is sufficient other evidence to prove failure or refusal. An example might be of evidence that leads to a finding that the subject deliberately attempted to thwart the test. If such evidence exists then it does not matter whether the machine is working – s 72(1)(a) authorises a blood test regardless.
…
[20] A refusal may also be implied by conduct. In Taylor MacArthur J considered that to express or to show a determination not to do a thing amounted to a refusal, whether by words or conduct or both so long as it involved an act of the will. Haslam J in Fleetwood v Ministry of Transport [1972] NZLR 798 (SC) considered it the duty of persons being tested to co- operate reasonably with the enforcement officer. Both cases suggest that if such persons do not so co-operate they may be regarded as having “failed or refused”. . . . A person who pretends to undergo a test while contriving to negate it refuses a test as much as one who eschews it altogether. Again the result is the same. The enforcement officer may then move the process to the next stage.
[21] The foregoing may be distinguished from another class of case where the subject is willing to undergo a test but for some reason the result is incomplete. Before the suspect can be asked for blood he or she must first have a reasonable opportunity to complete an evidential breath test and the question may arise whether the suspect has in fact had that opportunity. . . .
[28] In Pakai v Police,7 Dobson J applied Rimene, observing:
[21] Section 70 is a complete answer to that: there was no obligation to repeat the failed attempt. The officer appears to have had good grounds, as in Rimene, for the view that the appellant was not providing sufficient volume of breath to produce a reading. The assessment made under s 70, namely that it was then appropriate to request a blood specimen, was open to the officer. His recollection of the circumstances is adequately addressed and justified in his evidence, and it cannot be deficient in the evidentiary sense on account of the absence of a printout that the attempted evidential breath test had “failed”.
[29] In Lysy v Police,8 Doogue J said:
[10] . . . The circumstances of each case have to be considered, . . . here the appellant had had a proper and full opportunity to complete an evidential breath test but had been unable to do so. When there was the second request, there was a point blank refusal. I do not regard it as necessary for compliance with the requirements of ss 69 and 70 of the Land Transport Act
1998 that on a second request under s 70 the enforcement officer must necessarily adopt the same safeguards in respect of the position as upon the first occasion. …
[11] . . . under s 70 the enforcement officer is not obliged to exercise his or her discretion to give the driver the opportunity to undergo a second evidential breath test and could immediately request a blood test. . . . Underlying s 70 is the intent that in some cases enforcement officers should give the person who has not complied with the first evidential breath test a second opportunity. It cannot be read into the legislation that the second opportunity is to be more than a second opportunity to complete an evidential breath test and has to be accompanied by strict compliance with the breath tests notice when the enforcement officer has been met by a blank refusal to comply with a second evidential breath test.
[30] It is clear from these decisions that an officer may determine that a person, by his or her conduct, has decided not to comply with a breath test. The “decision” may be conveyed by way of words (such as a verbal refusal) or by conduct. At that point, the officer is entitled to progress to requiring the person to permit a blood specimen to be taken, and the person will commit an offence if he or she refuses to comply with that process.
[31] I do not accept Mr Haskett’s submission that once Constable Answorth elected to require a second evidential breath test, he was required to continue to administer the test until it was “completed” by an alcohol level being indicated, or the machine “timed out”. To the contrary, I accept Mr O’Connell’s submission that Constable Answorth was entitled to stop the test when he concluded that Mr Oscilowski was not going to provide sufficient breath.
[32] As Durie J said in Rimene, tests of reasonableness and fairness continue to apply. The issue is, therefore, whether the Judge erred in accepting Constable Answorth’s evidence that Mr Oscilowski was not willing to provide a breath a breath sample.
[33] I am not persuaded that the Judge erred. Constable Answorth’s evidence was vigorously tested in cross-examination. I do not accept that more evidence was required. As noted earlier, it is clear that a refusal to comply with a breath test can be implied from conduct. When Constable Answorth decided to stop the evidential breath test, Mr Oscilowski had blown into the machine four times. On the first, he was observed to stop blowing, and on the remaining three he was observed to blow very lightly, thus prompting an “insufficient result”.
[34] On that evidence, maintained under cross-examination, the Judge was entitled to find that Mr Oscilowski had been given a reasonable opportunity to complete an evidential breath test and that Constable Answorth had fairly and reasonably concluded that Mr Oscilowski had failed or refused to undergo that test. Therefore, Constable Answorth was entitled to require Mr Oscilowski to allow a blood specimen to be taken, pursuant to s 72(1)(a), or that an evidential breath test could not be carried out, pursuant to s 72(1)(c).
[35] It was not submitted on appeal that Mr Oscilowski had not refused to allow a blood specimen to be taken. Accordingly, I am not persuaded that the Judge erred in finding that Constable Answorth had properly required Mr Oscilowski to permit a blood specimen to be taken, and that Mr Oscilowski had refused to do so.
Result
[36] The appeal against conviction is dismissed.
Andrews J
Solicitors:
Crown Solicitor, Auckland
Counsel:
A J Haskett, Auckland
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