P v Police HC Wellington CRI-2008-485-140
[2009] NZHC 1719
•30 April 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2008-485-140
P
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 21 April 2009
Appearances: W M Johnson for the appellant
J M Webber for the respondent
Judgment: 30 April 2009
JUDGMENT OF CLIFFORD J
Introduction
[1] Mr P was convicted in the District Court at Wellington for driving a motor vehicle on a road while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath. He now appeals that conviction. The essential ground of his appeal is that the Police failed to properly establish that the
breath screening test administered to him was carried out with an approved device.
P V POLICE HC WN CRI-2008-485-140 30 April 2009
Factual background
[2] As relevant to this appeal, the background facts can be shortly stated.
[3] On 14 December 2007 Mr P was stopped at a breath alcohol checkpoint on Aotea Quay. A passive breath test returned a result of alcohol. Mr P was then required to undergo a breath screening test, which he agreed to. As a result, Mr P was required to accompany the Police for the purposes of undergoing an evidential breath test, blood test or both. He subsequently underwent an evidential breath test. An evidential breath test device recorded a result of 676 micrograms of alcohol per litre of breath.
[4] Mr P was then given a form entitled “Advice of positive evidential breath-test”, which advised him that he had ten minutes to request a blood test and that, if he did not do so, the evidential breath test result would be conclusive evidence to lead to a conviction for an offence under the Land Transport Act 1998.
[5] Mr P did not request that a blood sample be taken.
District Court decision
[6] Mr P was tried in the summary jurisdiction of the District Court at
Wellington on 9 September 2008.
[7] During that trial, Mr Johnson, who appeared for Mr P as he did on this appeal, challenged the validity of the testing process which led to the charge Mr P faced on a number of grounds.
[8] Reflecting those challenges, in her decision on 16 September 2008 the
District Court Judge made the following findings:
a) The Certificate of Compliance and the related instrument of authorisation concerning the evidential breath test device were properly admissible and admitted.
b)The delay between the commencement of the evidential breath test and the advice of the result was only four minutes, and not 10 minutes as submitted by the defendant. The requirements of section 77(3) of the Land Transport Act were thus held to be satisfied on the basis that there had been reasonable compliance within the meaning of section
64(2).
c) The defendant did not succeed in establishing any evidential foundation of bad faith, and there was compliance with the breath- testing procedures as set out in the Land Transport Act and in the Transport (Breath Tests) Notice (No 2) 1989 (the Notice).
[9] Mr P was subsequently convicted and sentenced. He was fined $700, ordered to pay court costs and disqualified from holding or obtaining a driver licence for six months.
Submissions
[10] Mr Johnson acknowledged the approach now taken to appeals of this nature, as set out in the Supreme Court decision Aylwin v Police [2008] NZSC 113, a decision given on 19 December 2008, and thus after the District Court decision under appeal here.
[11] In Aylwin, in dismissing an appeal for failing to accompany an enforcement officer and for driving with excess breath alcohol, the Supreme Court concluded with the following comments:
[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.
[12] Mr Johnson nevertheless submitted that, as expressly recognised in Aylwin in the Court of Appeal, it is still necessary for the prosecution to prove that the relevant breath tests were carried out with an approved device.
[13] At the hearing Mr Johnson had cross-examined the Police officer giving evidence on the identity of the approved device used to undertake the breath screening test. On appeal he submitted, with reference to that cross-examination, that the prosecution had in this instance failed to establish that that test had been carried out with an approved device. That submission relied on the following considerations:
a) The device used was, in terms of the Notice, in fact a “Dräger 6510”.
The officer giving evidence had, however, described the device as
“Draegar breath testing device, serial number 12329”.
b)The officer had incorrectly described the result of this device as being “failed general” when in fact the result as displayed on the screen of the device was “failed gen".
c) These matters had been put to the Police officer in cross-examination.
[14] Mr Johnson also recorded a challenge to the disclosure he had received. It would appear that the copy of the Police officer’s note book entry received by Mr Johnson did not contain a prior entry, which recorded general details of the road check established by the Police, the approved device to be used and, as relevant to the disclosure challenge, the details of the breath screening test device’s serial number. Mr Johnson acknowledged, however, that the details of the serial number of the approved device had been disclosed to him elsewhere.
[15] The Police submitted that there was no meaningful challenge to any aspect of the breath screening procedures, and that this was reflected in the factual findings of the District Court Judge. It argued that the officer’s familiarity with the breath testing devices was clearly established and that he gave unchallenged evidence of his good working knowledge of the Notice.
Discussion
[16] This is a general appeal under s 115 of the Summary Proceedings Act 1957 and is by way of rehearing. The powers of the Court are as set out in s 121, and include the power to confirm or set aside or amend the conviction that is appealed against.
[17] Convictions on charges under s 56 depend on a valid requirement of a breath screening test under s 68:
69 Who must undergo evidential breath test
(1)An enforcement officer may require a person to accompany an enforcement officer to a place where it is likely that the person can undergo an evidential breath test or a blood test (or both) when required to do so by the officer, if—
(a)The person has undergone a breath screening test under section 68 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 …
Section 2 defines a “breath screening test” as “a test carried out by means of a breath screening device in a manner prescribed in respect of that device by the Minister of Police, by notice in the Gazette”. Section 64(4) provides that it is no defence to a charge under s 56:
(a) That there was or may have been an error in the result of the breath screening test [or evidential breath test]; or
(b) That the occurrence or likely occurrence of any such error did not entitle or empower a person to request or require an evidential breath test.
[18] Aylwin confirmed – as had previously been established in Falesiva v Ministry of Transport [1987] 1 NZLR 275 – that this provision is to be interpreted to mean that the validity of a breath test cannot be challenged on the basis of non-compliance with the correct procedure as set out in the Notice, but that the prosecution must simply give evidence of carrying out a breath screening test in fact.
[19] Here Mr P ’s challenge is that the Police did not identify sufficiently that an approved breath testing device had been used. That submission was a reference to the following comment of the Court of Appeal in its Aylwin decision (CA227/07 6
June 2008) where it said:
[69] The scheme and wording of the LTA requires us to go further than Baragwanath and Heath JJ did in the High Court. The statutory scheme does not leave room for a conclusion that the accused, by satisfying an evidentiary burden, can render it necessary for the prosecution to prove that the test in issue was carried out in the manner prescribed by the Notice. If this were the case, it could, in our view, be seen as a back door means of side-stepping the clear intent of Parliament that no error (however caused) in the breath screening or evidential breath tests is to found a defence.
[70] We are conscious that our decision does not sit altogether seamlessly with the relevant definitions in s 2 of the LTA. It would certainly have been preferable for Parliament to have amended those definitions when amending the LTA in 2001. But these definitions are not rendered superfluous under our interpretation of the LTA. The prosecution must still prove that the relevant breath tests were carried out with an approved device, accompanied by a certificate of compliance. It must be proved that the tests were carried out in fact and, where there is an evidential foundation of relevant bad faith laid, absence of bad faith.
[20] In the Supreme Court, this matter was dealt with in the following way:
[6] … In order to establish that Mr Aylwin did come within s 69(1)(a), the prosecution was required to establish first that Aylwin underwent a breath screening test, having been lawfully required to do so, and secondly that it appeared to the officer administering the test that the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath. In the absence of challenge by cross-examination or evidence to the contrary, the first of these elements could simply be established by the officer saying that a breath screening test was undertaken by a driver. Where Police Officers in their evidence refer to a term which is defined in the Act, such as “breath screening test”, they should be taken, in the absence of cross-examination about what they meant, to have been referring to the expression as defined, thereby incorporating the elements of the definition. Thus they can be taken to be referring to a test carried out by means of a prescribed device in a prescribed manner.
[21] Therefore, where properly challenged on that point, it will be necessary for the Police to put sufficient evidence before the District Court Judge for her to be satisfied on that matter. It is essential, however, that there be a direct challenge to the identity of the device used: Winton v Police HC WN AP18/96 20 March 1996.
[22] The Notice approves five breath screening devices, one of them being the
“Dräger 6510”. The others are:
• Dräger Alcotest;
• Alcolyser;
• Lion Alcolmeter;
• Alcotech AR 1005.
[23] The Notice also sets out the steps to be carried out when breath screening tests are conducted by means of a Dräger 6510. Clause 6B(c)(iii) specifies that if the display panel shows “FAIL GEN”, the result indicates that the proportion of alcohol in the person’s breath exceeds 400 micrograms of alcohol per litre of breath.
[24] In that context, I now consider each of the challenges made by Mr Johnson on behalf of Mr P to the adequacy of the Police’s evidence that an approved device had been used.
[25] The Police officer giving evidence referred, in his evidence-in-chief, to requiring Mr P to undergo a breath screening test and to that breath screening test having been undertaken at a specific time. Therefore, and in terms of the Supreme Court’s decision in Aylwin, the reference by the officer to a breath screening test means that he can be taken to be referring to a test carried out by means of a prescribed device in a prescribed manner. In the absence of a direct challenge to this contention, nothing more would have been required of him.
[26] Turning to the very specific challenges advanced by Mr Johnson, I comment as follows.
[27] I do not think the alleged misspelling by the officer of the name of the device is material. The relevant extract from the officer’s evidence-in-chief reads as follows:
Q: What was the device used?
A: The device was Draegar breath testing device, serial number 12329. THE COURT:
Q: Sorry how do you spell Draegar? A: D-R-A-E-G-A-R.
EXAMINATION CONTINUES: SERGEANT PAYNE Q: And is this an approved device?
A: It is.
Q: And the test, what was that conducted in accordance with?
A: Conducted in accordance with the breath test notice number 2, 1989. Q: What was the result of that test?
A: The result was failed general.
[28] It was Mr Johnson’s submission that the officer had misspelled the term
“Draegar”, and that in fact it was spelt “Dräger”.
[29] I note that the Notice itself provides for the alternative spelling of the word Dräger as including Draeger, so the officer, at worst, has confused an “a” for an “e”. I do not think that spelling mistake materially affects the identification provided by the officer’s evidence. There cannot, in my view, be any basis for a challenge to the accuracy of the evidence based on this matter.
[30] The Dräger 6510, as prescribed in the Notice, produces a result on its screen
“Fail Gen”.
[31] The officer giving evidence described the result as “failed general”. Mr Johnson, paid particular attention to this matter in his cross-examination. The relevant extract from the notes of evidence reads as follows:
Q:And you said this device with a serial number that hasn’t been disclosed in your notebook, gave a failed general result is that right?
A: Correct.
Q. Are you sure about that? A. Yes.
Q. 100% sure? A. Yes.
B. Can’t budge you on that? A. No.
Q. Can’t budge you at all. Well you have a look at your transport breath test notice, number 2, 1989 and that device doesn’t give a failed general reading does it or don’t you know?
A. The device that I used returns a result of failed general.
Q. Did it? Well I am telling you a Draeger 6510 doesn’t give a failed general result, the printout on the thing comes “failed gen” not failed general. You have confused it with another device.
A. Gen, is a shortening for the word general.
Q. How do you know? The actual notice says “gen”, “fail gen”. That’s what the notice says.
A. Well if that’s what it says I’m not arguing with you. Q. Pardon?
A. If that’s what it says I’m not arguing with you. Q. Don’t you know what the notice says?
A. I have read it some time ago.
Q. Yeah but you don’t know do you? You don’t know and that’s about the size of it isn't it? It’s all right to say the right words in Court but what happened on that night might have been different. That would be right, wouldn’t it?
A. I disagree with that.
[32] With reference to that exchange, it is correct that the officer referred to the result as “failed general”, rather than – as strictly correct – “fail gen”. However, I accept that in the context of the officer’s previous reference to the device as being a Draegar breath testing device the phrase “failed general” is a sufficient confirmation of the result obtained from that device. I note, in this context, that Mr Johnson himself initially referred to the result as being “failed gen” rather than – as strictly correct – “fail gen”.
[33] The third basis upon which Mr Johnson before me challenged the officer’s identification was by reference to the officer’s failure to refer to model type 6510. This was not a matter that was raised in the District Court, nor directly put to the officer, and so in my view cannot now be raised on appeal. Even if it could be, at the hearing Mr Johnson himself seems to have had no trouble in identifying, from the officer’s reference to a “Draegar breath testing device” that it was the Dräger 6510 that was being used. Furthermore, I do not think the failure to refer to the model type, i.e. 6510, is material, when the officer had said he had used the device to screen Mr P ’s breath, and referred to a screen displayed result. In my view, that is sufficient identification, having regard to the contents of the Notice. On that basis, I do not think there is anything in this challenge either.
[34] There was some discussion before me as to whether, as regards the proof of the identification of the approved device, the appropriate standard was on the balance of probabilities or beyond reasonable doubt. I note that in R v Livingston [2001] 1 NZLR 167, the Court of Appeal determined that the question of whether an evidential breath test had been carried out by an approved device had to be answered on the basis of the balance of probabilities:
[11] It can be seen from the foregoing that matters pertaining to whether the device was of an approved kind, or whether it was operated in an approved manner, are aspects of whether the test carried out fulfils the statutory definition of an evidential breath test. Such matters can for present purposes be called definitional issues.
…
[32] … The onus is on the Crown to establish on the balance of probabilities all disputed facts involved in the determination of such definitional or procedural issues.
This was also accepted by the Court of Appeal in Aylwin at [35]. Even, however, if the standard was beyond reasonable doubt, then I find there was sufficient evidence for the District Court Judge to be so satisfied in this instance.
[35] Mr P ’s appeal is dismissed accordingly.
“Clifford J”
Solicitors: W M Johnson, P O Box 962, Wellington for the appellant
Crown Solicitor, Wellington for the respondent ([email protected])
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