P v Police HC Invercargill Cri-2008-425-37

[2009] NZHC 1892

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2008-425-000037

P

Appellant

v

NEW ZEALAND POLICE

Respondent

On papers

Judgment:      29 June 2009

RESERVED JUDGMENT OF DOBSON J

[1]      This is an application for special leave to pursue a further appeal to the Court of Appeal from a reserved judgment I delivered on 13 March 2009.  The applicant for leave (Ms P  ) was convicted in the Queenstown District Court on a charge under s 60(1)(a) of the Land Transport Act 1998 (the Act) for refusing to permit a blood specimen to be taken.

[2]      Four grounds of appeal were pursued in argument before me, and subsequent to my dismissal of the appeal, Ms Vidal has now sought leave to appeal to the Court of Appeal.

[3]      The  approach  to  such  applications  conventionally  follows  the  guidance provided by the Court of Appeal in R v Slater [1997] 1 NZLR 211. That decision

P V NEW ZEALAND POLICE HC INV CRI-2008-425-000037  29 June 2009

requires there to be a question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal, and the Court is of the opinion that it ought to be so submitted.

[4]      Ms Vidal has framed three questions which she submits justify a grant of leave.  They are as follows:

1.Can an Enforcement Officer require a detained person to permit a specimen of blood to be taken when an evidential breath test has been undergone but a result has not been obtained from that test.

2.Can the Police prove prior convictions to the requisite standard by the production of a business record without complying with either s 139 Evidence Act 2006 or s 69A Summary Proceedings Act 1957.

3.	a.	Can a witness give evidence of a reading displayed on a machine, when ordinarily the result, if the machine is working correctly, would be printed and able to be produced as a document.
b.	Can a Court provide any weight to the evidence given in a. above when no certificate of compliance has been produced to establish the type and reliability and proper workings of the machine used.

[5]      The application for leave is opposed, essentially on the grounds that each of the questions is on a well-settled point of law, or do not raise issues of sufficient importance to warrant a second appeal.   I directed sequential filing of written arguments  in  support  of,  and  opposing,  leave.    I  also  invited  indications  as  to whether counsel sought an opportunity to expand on their arguments in a telephone conference.   For the respondent, Mr Morris has indicated the view that no oral argument would be needed.   Time for such indication expired without the Court receiving anything further from Ms Vidal.

[6]     As to the first issue, my judgment reviewed earlier decisions in which enforcement officers had progressed through the processing of a detained person to the point of requiring the detained person to permit a specimen of blood to be taken, in a variety of circumstances where the preceding steps had not been successful.  My own judgment was consistent with those earlier decisions in recognising the breadth of the discretion granted to an enforcement officer under s 70 of the Act to require a specimen  of  blood  to  be provided  when  an  evidential  breath  test  had  failed  to

produce a result.   I am satisfied that the law is clear on how that discretion may apply, at least in the factual circumstances raised by the present appeal.  There is a wide range of circumstances in which the evidential breath testing process may be frustrated.    It  would  be  inconsistent  with  the  scheme  of  the  Act  in  a  quite fundamental way to require the device itself to produce evidence of its failure, before an enforcement officer could elect to proceed with the s 70 alternative.   I do not accept Ms Vidal’s submission that there should be a clear Court of Appeal decision to clarify the extent of Police powers.  Accordingly, that is not a question that would warrant the grant of leave.

[7]      The second question relates to the situation arising where a blood or breath alcohol charge is laid in the “aggravated form”, ie where the conviction would be the third or subsequent offence for excess breath or blood alcohol, thereby triggering s 60(3) which provides for a harsher range of sentences.  In the present case, I upheld the District Court Judge’s decision to treat a photocopy of the relevant Information as sufficient evidence of one of the prior convictions.  Endorsed on the face of the Information was the record of the hearing reflecting a guilty plea, entry of the conviction and the fine and period of disqualification.  The copy of the Information was endorsed with a box stipulating “Certified True Copy” then a signature and the printed words “Deputy Registrar” and beneath the box a further stamp:

“J A Ross
Deputy Registrar

Queenstown District Court”

[8]      The question now posed proposes that it would be mandatory to comply with either s 139 of the Evidence Act 2006 or s 69A of the Summary Proceedings Act

1957, if the prosecution proposed to produce a document such as was relied on here as a “business record” to prove the prior conviction.

[9]      The short point is that neither of those sections is mandatory.  I see no point of general importance as to whether, notwithstanding that they are not mandatory, the provisions of those sections in some way curtail the other means by which the prosecution might offer sufficient evidence to establish a prior conviction.  Rulings on admissibility of documents tendered in summary criminal proceedings will no

doubt vary according to the factual circumstances arising.   I am not left with any doubt that the course adopted by the District Court and upheld by me in the circumstances in the present case was one open to the Court.  It does not necessarily create a precedent as to what is sufficient in all circumstances, and importantly for present purposes it does not give rise to a question of general or public importance.

[10]     The bifurcated form of the third question is also one that derives from the specific facts, and does not lend itself to a question of law that is at all unclear or unresolved, and is one of general or public importance.  The essential point is that different evidentiary requirements are contemplated, depending on whether the evidential breath test is going to be relied upon as the basis for a prosecution, or whether it is an “unsuccessful” step along a process to ascertaining the extent of alcohol in a detained person’s body.  In the former case, a printed result is necessary because it founds the prosecution.  In the latter case, the absence of a result sufficient to found a prosecution is merely a step along the way in attempting to enforce the drink-driving provisions in the Act by another means.   The appropriateness and adequacy of steps taken by an enforcement officer in particular cases may be the subject of cross-examination.  However, there can be no absolute proposition that the observations of the enforcement officer at the time as to the inadequate performance of either the device or the detained person cannot of themselves be sufficient to justify the exercise of the discretion under s 70 to go to the next stage of requiring a blood specimen.  Seen in this light, the questions do not raise a matter of general or public importance.

[11]     Accordingly,  I am not persuaded that leave  should  be  granted,  and  it  is declined.

Solicitors:

Queenstown Legal Chambers, Queenstown for appellant

Crown Solicitor, Invercargill for respondent

Dobson J