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

[2009] NZHC 311

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

Hearing:         10 March 2009

Counsel:         S Vidal for appellant

M D Morris for respondent

Judgment:      13 March 2009

RESERVED JUDGMENT OF DOBSON J

[1]      This is an appeal from conviction under s 60(1)(a) of the Land Transport Act

1998 (the Act) for refusing to permit a blood specimen to be taken. [2]        There are four grounds of appeal:

a)        First, that the District Court Judge erred in finding that the relevant prerequisite  to  a  requirement  for  the  appellant  to  give  a  blood

specimen under s 72 of the Act had been met.

P V NEW ZEALAND POLICE HC INV CRI-2008-425-000037  13 March 2009

b)The  second  criticism  is  that  the  prerequisite  to  requiring  a  blood sample also required proof that the device used in the attempt to take an evidentiary breath sample was operating properly.  There was no evidence  as  contemplated  by s 75A  of  the  Act  of  a  certificate  of compliance for the device, and it was argued that no reliance for any purpose could be placed on the attempted use of the device, unless that certificate was before the Court.

c)       The third ground is that the Judge was wrong to find the requisite mens rea established against the appellant; he should have had a reasonable  doubt  as  to  her  awareness  that  the  request  was  for  a medical practitioner or medical officer (rather than a Police officer) to take the blood specimen.

d)The fourth ground of challenge was a discrete one arising out of the charge having been laid in the “aggravated form”, ie that this was a third or subsequent offence for excess breath or blood alcohol for the purposes of s 60(3), thereby triggering a harsher range of sentences. The appellant argued that there was inadequate proof of one of two previous convictions of the relevant type.

Circumstances of the charge

[3]      The appellant was stopped a little before 10.00pm on 19 April 2008, after being observed driving erratically and in excess of the applicable speed limit in the Queenstown area.  The Police constable who stopped her formed the view that she was affected by alcohol and administered a roadside passive breath-screening test. The appellant failed that test and was then requested to accompany the officer to the Queenstown Police Station.   She agreed to do that, but once at the Police station refused to sign a usual form acknowledging that the officer had explained her rights under the New Zealand Bill of Rights Act 1990 to her.

[4]      Thereafter, the officer sought to administer an evidential breath test.   The officer’s evidence was that the appellant blew two very short breaths into the device,

which were insufficient to procure a reading.  The officer observed that the device returned an incomplete test, but it did not print out a result.  It transpired that the roll of paper on which the result would normally be printed had been incorrectly installed in the device.  The officer accepted that he could have reinstalled the roll of paper and given the appellant the opportunity to provide another test.  His evidence was that she had been abusive and uncooperative during his attempts to administer the test, and he elected not to attempt to repeat the process.  The officer’s view was that the appellant’s demeanour suggested no purpose would be served by doing so.

[5]      Proceeding without a printed result to evidence the failure to complete the evidential breath test, the officer then asked the appellant to provide a specimen of blood.  The standard form used before such procedure was read to the appellant in full.   She refused to provide a blood specimen and also refused to sign the form acknowledging the terms in which the request had been put to her.   During the exchanges about this, the officer described the appellant as folding her arms, and that her responses and body language were consistent with her withdrawing consent from the process in a more general sense.   She is recorded in the form as responding “you’re not pricking me”.

[6]      The officer afforded the appellant an opportunity to speak with a lawyer by telephone.  The officer chose a practitioner from a list identifying those prepared to respond  in  such  situations,  and  gave  evidence  that  the  appellant  spoke  to  the identified practitioner for some three minutes.  After that discussion, she was again requested to provide a blood specimen, and again she refused.  At the end of these exchanges, she was charged with refusing to permit a blood specimen to be taken under s 60(1)(a) of the Act.

Prerequisite to requiring blood specimen not made out?

[7]      The sequence of steps preceding the present charge begins with s 68 of the Act.  That section authorises an enforcement officer to require a driver of a motor vehicle on a road to undergo a breath screening test.  Where that has occurred and it appears to the officer that the test indicates that the proportion of alcohol in the person’s breath exceeds 400 micrograms of alcohol per litre of breath, then under

s 69(1)(a) of the Act the officer may require that person to accompany the officer to a place where it is likely that an evidential breath test can be undergone.  There is no dispute that such steps occurred here, as a result of which the appellant found herself at the Queenstown Police Station.

[8]      The next step contemplated is having the driver undergo an evidential breath test, having been taken for that purpose to a place where that might be able to be carried out.  Here, the appellant purported to undergo the test by blowing into the device, as the officer perceived her conduct, so lightly that the device could not complete the test by producing a result.   Due to the improperly fitted paper, the device did not document that result; there was not a printout.

[9]      The  procedure  for  use  of  such  devices  is  regulated  by the  terms  of  the

Transport (Breath Tests) Notice (No 2) 1989 (the Notice).  The requirement in clause

10(b)(ii) of the Notice is:

The person being tested shall blow through the mouthpiece to provide a subject breath specimen sufficient for analysis, when instructed by the enforcement officer;

[10]     The third step provided for in the Notice is the recording of results:

(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 printout, and will include the Evidential  Breath  Test  Result  which  shall  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.

[11]     Ms Vidal’s argument was that where the basis for a requirement to give blood under s 72(1)(a) of the Act is the failure to undergo an evidential breath test when required to do so, then the fact of that failure cannot be evidenced by the officer’s recollection  of  what  occurred,  and  the  Police  have  instead  to  produce  the “Incomplete Test” report which she suggests the Notice contemplates will be printed by the device at that time.

[12]     Ms Vidal submitted that the substantially more invasive requirement to give a blood sample is not a step to be imposed on citizens lightly.  She argued that just as reliance on a completed test as the basis for an excess breath alcohol charge required more than the officer’s reading of the measurement at the time (ie the printed result card contemplated by clause 10(c)(i) of the Notice), so too where failure to complete the test was the basis for advancing to the more invasive form of testing for the level of  alcohol,  then  the  comparable  “negative”  result  card  contemplated  by  clause

10(c)(ii) has to be in evidence.

[13]     The terms of paragraphs 10(c)(i) and (ii) are not consistent.  In the case of a completed test where the outcome will be relied on to found a charge, paragraph (i) attributes a specific status to the result card or printout.   Where it is incomplete, paragraph (ii) merely confirms the consequence  as being that the test  has  been unable to be carried out.   There is no reference to that outcome depending on, or being recorded in, a result card or printout.  However, putting that distinction to one side, and assuming Ms Vidal’s expectation of an incomplete test being recorded in a printout, I go on to consider the consequences of that not being available as evidence of the outcome.

[14]     A number of authorities were cited on the extent to which these printouts are required, or may be dispensed with.   None of the cases deal precisely with the present situation.

[15]     The decision in Henderson v New Zealand Police HC WN CRI-2005-485-14

8 March 2005 Goddard J was cited to the Judge, and relied on again by Ms Vidal in support of this appeal.   There, the challenge was to the lawfulness of an officer’s decision to require the defendant to accompany him to a second Police station when the device used at the first Police station failed to print out a result of two tests that had been undertaken.  The officer had seen the second of these results, but not the first.  He considered a result had not been produced.  In upholding the lawfulness of the request that the defendant accompany the officer to a second Police station, Her Honour emphasised that the evidential breath testing process did not produce anything of evidentiary value, unless the printout was available.  However, that was in the context where the outcome is being used as the basis for the prosecution, ie

where there was a “positive” conclusion that an excess breath-alcohol level was recorded and would be relied on as the basis for the relevant charge.   The same evidentiary status cannot be attributed to a “negative” outcome, in the sense that the test is not being used to found a charge because it was incomplete.

[16]     Her Honour recognised in Henderson that a failure by the device to produce a printed result rendered the test incomplete ([10]).  That is logical, and it would be the height of illogicality to require the machine to print out confirmation that the test was incomplete when the step not completed may be no more than the absence of a printed result.

[17]     The case of Police v Rimene HC MAS M4/2000 21 December 2000 Durie J may be closer to the present circumstances.  There, the defendant’s attempts to blow into the device were insufficient to produce a reading, and were perceived by the enforcement officer to be caused by the defendant deliberately not putting enough breath in, rather than because of any malfunction of the device.  The evidence was consistent with the defendant having deliberately sabotaged the task.   The enforcement  officer  required  a  blood  sample,  but  the  defendant  refused  on  the ground that the device was not working properly.   In the District Court, it was successfully argued that the Police were obliged to establish whether the failure was caused by a malfunction in the machine.   The Information was dismissed on the ground  that  the  Police  had  not  established  beyond  reasonable  doubt  that  the defendant had failed or refused to undergo the evidential breath test on a properly functioning device.

[18]     On appeal by the Police, Durie J relied on the discretion created by s 70 of the Act to exclude any requirement, in a charge of refusing to permit a blood sample under s 72, for the prosecution to establish the precise cause of the failure of a preceding evidential breath test.  Section 70(1) provides:

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.

[19]     The scope of the s 70 discretion was described by the Judge in these terms:

[27]      …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.

[20]     I consider s 70 similarly applies here.  The challenge was not mounted on the basis that the officer was wrong to perceive the test he had requested the appellant to undergo had “failed”.  Rather, the appellant submits that his assessment on that point was inadequate.  It was further argued that when he appreciated the paper roll in the device could be fixed so that a printout of a later attempt could be recorded, he was obliged to do that, ostensibly so that a printed confirmation of the failure of the test would then be available.

[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”.

Police required to adduce certificate of compliance for the device?

[22]     Consistently with the stance argued on the first ground of appeal, Ms Vidal also submitted that for the Police to rely upon the “failed” evidential breath test as a prerequisite to a requirement to provide a blood specimen, the Court had to be satisfied that an attempt was made on a device operating properly.  This required a

certificate as to compliance of the device being adduced in terms of s 75A of the Act, and without this certificate the Police could not rely upon the ‘attempted’ test.

[23]     I consider the approach in Rimene, and the scope of the discretion in s 70 to also provide an adequate answer to this criticism.  The prerequisite to a request for a person to permit a blood specimen to be taken under s 72(1) is that the person has failed to complete an evidential breath test, or refused to undergo such a test.  Once there has been an attempt that fails, then the discretion arising under s 70(1) is triggered.  The reason for the failure may, in some cases, be relevant to the exercise of the discretion under s 70, but the circumstances of that failure cannot constitute an element requiring proof by the prosecution.  It must follow that proof by the usual means of adducing a certificate under s 75A of the Act cannot be required of the prosecution where the “positive” outcome of the test is not relied upon as the basis for a charge.

Substantial compliance

[24]     The second ground of appeal that I have just addressed was not separately considered in the Judge’s decision.  He did record that “no challenge was made to the  accuracy  or  reliability  of  the  device  or  the  officer’s  recollection”  ([15]). Ms Vidal suggested that reversed the onus when, on her analysis, the Police were required to prove that the attempted evidential breath test was conducted on an accurate device.   That, however, is not an element of the offence of refusing to permit a specimen of blood to be taken.

[25]     The alternative reasoning on the first ground was that even if a printout confirming an incomplete evidential breath test was an evidentiary requirement, then the Judge would nonetheless have dispensed with that requirement relying upon the substantial compliance provision in s 64(2) of the Act.  In challenging this alternative reasoning, Ms Vidal relied upon the Court of Appeal decision in R v O’Callaghan (No  2)  [1985] 1 NZLR 208 for the proposition that a reasonable compliance provision could not be used where a condition precedent to taking a blood specimen had not been fulfilled. The trend in more recent decisions is to extend the scope of elements that might be “saved” by resort to this recognition within the Act of the

sufficiency of “substantial compliance”.  Numerous decisions, including Henderson, recognise that the touchstone is substantive fairness in any deviation from the prescribed procedures.  The approach adopted by the Courts to enforcement of the drink-driving provisions in the Act have moved very significantly from an insistence on formal compliance with all technical elements of the offences, to the approach now mandated by s 64(2) of the Act, preventing offenders avoiding conviction on what might loosely be called “technical points”.   Even the Supreme Court, in its recent consideration of these provisions, ended its analysis with the following comment:

[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.    (Aylwin  v New Zealand Police [2008] NZSC 113)

[26]     I agree with the Judge that, if it is wrong to treat the printout of a failed test as not being an element required to be proven, then in the circumstances of this case the evidence  of  the  officer  going  to  the  circumstances  in  which  the  test  failed substantially complies with that requirement.

[27]     Consistent with that, if I were wrong in dispensing with the requirement for the certificate of accuracy of the device under s 75A, then in the circumstances of this case again I would treat that omission as one saved by reliance on the substantial compliance provision in s 64(2) of the Act.

Absence of mens rea?

[28]     On the basis of her cross-examination of the officer, Ms Vidal argued that a reasonable doubt had been raised as to the appellant’s awareness that she was resisting the taking of a blood specimen by a medical practitioner or medical officer. The officer accepted at one point in Ms Vidal’s cross-examination of him that from the appellant’s actions it appeared at the time that she thought the officer was the one

intending to take a specimen of her blood.  In addition, the officer had recorded her reaction to the request in terms “you’re not pricking me”.

[29]     As against those parts of the evidence, the officer’s agreement with the notion that the appellant thought he was the one that would be taking the blood specimen was immediately qualified by the statement:

…but I explained to her that that wasn’t the case.   That a nurse would be taking blood.

[30]     In addition, it is clear that the officer read the usual form to the appellant in full.   The first paragraph of that printed statement specifies that the apprehended driver is required under the terms of the Act:

to permit a registered medical practitioner or medical officer to take for the purposes of analysis a specimen of your venous blood in accordance with normal medical procedures.

[31]     In the context as described by the officer, it seems that when the appellant said “you’re not pricking me”, she was not necessarily referring to the particular officer with whom she was immediately dealing, or just to him.  It is more likely that she was using “you” in a de-personalised or institutional sense of protesting about the Police and anyone that they may get involved to take the blood.  If the comment was made before the explicit clarification that it would be a nurse taking the blood, then that comment by the officer corrected any misapprehension that it would be him.  If the comment was made afterwards, then it could only reasonably be meant in the de-personalised sense I have just suggested.

[32]     In these circumstances, I find no grounds to upset the finding by the Judge that the evidence established beyond reasonable doubt the awareness of the appellant that she was refusing to permit a blood sample to be taken by a nurse, as the officer explained to her.

Inadequate proof of prior conviction?

[33]     The Information was laid on the basis that the appellant had been convicted at least twice previously of offences against any of ss 56(1), 56(2), 58(1), 61(1) or

61(2) of the Act.  In proving the extent of previous convictions, the Police adduced in evidence a certified copy of the entry of criminal record in respect of an excess breath alcohol conviction on 1 October 2002.  No objection was taken to that.

[34]     A second conviction, said to have been entered on 26 July 2004 for a charge under s 58(1) of the Act for driving whilst under the influence of alcohol to such an extent as to be incapable of having proper control of that vehicle, was not produced in the same manner.   The only evidence was production of a photocopy of the Information, including endorsement on the face of the Information of the record of hearing, reflecting a guilty plea, entry of the conviction and the fine and period of disqualification.  Also endorsed on the copy of the Information was 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

[35]     None  of  these  details  just  described  are  actually  endorsed  on  the  paper produced, but rather are in photocopied form.

[36]     Ms  Vidal’s  argument  was  that  the  procedure  in  s 71  of  the  Summary Proceedings Act 1957 for proof of prior conviction was a procedure that the Police had to comply with.  She submitted that it was not open to the Judge to recognise as an  adequate  alternative  the  photocopy  of  the  original  record  of  entry  of  the conviction, by giving it status as a “business record” in terms of s 19 of the Evidence Act 2006.

[37]     The first of these arguments necessarily involves the proposition that it was mandatory for the Police to comply with s 71 of the Summary Proceedings Act in establishing the two prior convictions.  That cannot be right.  The Court of Appeal’s decision  in  R  v  MacLeod  (2002)  19  CRNZ  513  considered  the  prospect  for alternative means of proving prior convictions for excess blood-alcohol levels.  The terms of the relevant subsection, s 71(3) of the Summary Proceedings Act 1957 provide as follows:

71       Criminal Records

…

(3)Any entry in the Criminal Records or a  copy thereof  or  extract therefrom, sealed with the Seal of the Court and purporting to be signed and certified by the Registrar as a true copy or correct extract, shall at all times without further proof be admitted in all Courts and places whatsoever as evidence of the entry and proceeding referred to thereby and of the regularity of that proceeding.

[38]     Commenting on this, the Court of Appeal observed:

If it is necessary to formally prove a conviction, in the circumstances of this case, it can be done in one of two ways.  First, the Court record itself could be produced.   The opening words of s 71(3) are disjunctive, and in that respect the subsection confirms what was always the common law rule (see R v Bourdon (1847) 2 Car & Kir 366; 175 ER 151). Such a procedure is disruptive to other Courts, inefficient, and it means that Court records may have to be taken in as exhibits.

[39]     It follows that non-compliance with s 71(3) of the Summary Proceedings Act

1957 does not exclude the prospect of the prior conviction being proved in some other sufficient way.

[40]     As to treating the photocopy tendered in this case as a “business record”, an understandable initial reaction is that such a photocopy of the Information is not naturally within the contemplation of “business records”.   However, as Mr Morris submitted, the definition of that expression in the Evidence Act 2006 is extremely broad,  and  there  can  be  no  doubt  that  such  records  are  indeed  caught  by  the definition.  Section 16(1) of the Evidence Act 2006 defines “business” as including the activities of any department of State.  “Business record” means a document that is made to comply with a duty, or in the course of a business, being a record or part of a record of that business.  In the dispatch of its criminal jurisdiction, the District Court has a duty to create and then maintain records such as the Informations laid, and the endorsement upon them of how they were disposed of by the Court.

[41]     Accordingly, I accept that the Judge was entitled to treat the photocopy of the endorsed Information as a hearsay statement, when tendered by the Police in the course of the subsequent prosecution.  Once its status as such is recognised, there can be little argument with the Judge’s decision that it was admissible hearsay in the

present circumstances.  There is no tenable basis for questioning its reliability.  No doubt a responsible staff member within the Registry at the Queenstown District Court could have been called to produce the endorsed Information, but that would cause a measure of disruption, when the Judge was clearly entitled to reach the view he expressed that no useful purpose would be served by requiring that person to be a witness.

[42]     I accordingly uphold the finding that the second conviction was adequately proven.

[43]     It follows that the appeal is dismissed.

Dobson J

Solicitors:

Queenstown Legal Chambers, Queenstown

Crown Solicitor, Invercargill