Patel v Police
[2015] NZHC 2361
•29 September 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000229 [2015] NZHC 2361
BETWEEN VINESH CHRISTIAN PATEL
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 21 September 2015 Appearances:
Alistair Haskett for the Appellant
Steven O'Connor for the RespondentJudgment:
29 September 2015
JUDGMENT OF MOORE J [Appeal against conviction]
This judgment was delivered by me on 29 September 2015 at 4:30pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
PATEL v NEW ZEALAND POLICE [2015] NZHC 2361 [29 September 2015]
Introduction
[1] Vinesh Christian Patel was convicted in the District Court at Auckland on one charge of driving with excess blood alcohol following a defended hearing before her Honour Judge P Sinclair. Mr Patel was fined $600 with Court costs of $130. He was disqualified from driving for a period of six months.
[2] He appeals against his conviction on four specific grounds, although these can be broadly categorised as follows:
(a) his right to a lawyer under s 23(1) of the New Zealand Bill of Rights
Act 1990 (“NZBORA”) was breached; and
(b)the constable was not entitled to require Mr Patel to provide a blood sample.
Factual background
[3] At 2:24am on 17 August 2014, Mr Patel was stopped at a Police check point and required to undertake a road side alcohol breath test. This returned a positive reading of over 400 micrograms of alcohol per litre of breath which justified the Police officer dealing with Mr Patel, Constable Pukeiti, to require Mr Patel to accompany him to the Ellerslie Police Station for the purposes of undergoing an evidential breath test, blood test or both. The constable advised Mr Patel of the reasons he was being detained and advised him of his rights under NZBORA including the right to consult and instruct a lawyer from the time a telephone was made available to him. He also advised Mr Patel that the Police had a list of lawyers he could speak to for free and he would be given reasonable time to consult and instruct a lawyer of his choice. Constable Pukeiti and Mr Patel then left for the Ellerslie Police Station.
[4] Following their arrival at the Police station, Constable Pukeiti repeated Mr Patel’s rights under NZBORA. He asked Mr Patel if he would like to speak to a lawyer to which Mr Patel replied, “Yes”. The constable noted the time was 2:41am. The constable obtained the list of lawyers and invited Mr Patel to choose one. From
the evidence it seems that the constable called the lawyer chosen by Mr Patel but there was no answer. Attempts were made to contact a second lawyer. This was unsuccessful for the same reason.
[5] The third attempt was successful. Constable Pukeiti spoke to a Ms S following which he escorted Mr Patel into a separate room. He closed the door and allowed Mr Patel to speak with the lawyer in private. He noted the time was
2:45am.
[6] There was some dispute at the hearing and before me as to how long Mr Patel spoke with Ms S. On Constable Pukeiti’s evidence the conversation occupied some
17 minutes. Conversely Mr Patel claimed he spoke to the lawyer for only about five minutes. I shall return to this issue later.
[7] After Mr Patel had spoken with Ms S, he told Constable Pukeiti that he was unhappy with the legal advice he had been given. In cross-examination the constable was asked why, if he knew Mr Patel was unhappy with the legal advice, did he not take a few minutes to try another lawyer. Constable Pukeiti’s response was that he did not adopt that course because he had already given Mr Patel more than 15 minutes on the telephone with his lawyer.
[8] In any event, Constable Pukeiti advised Mr Patel that he required him to undergo an evidential breath test without delay. This requirement was delivered at
3:15am. Mr Patel told Constable Pukeiti that the lawyer had not told him what to do in relation to the breath test but had only spoken to him about blood. Constable Pukeiti did not engage with Mr Patel in a discussion about the legal advice. Instead, he explained to him what the breath testing procedure involved and what would be required of him.
[9] Over the next four minutes Constable Pukeiti attempted three times to obtain an evidential breath sample from Mr Patel.
[10] On the first attempt Mr Patel did not blow into the tube sufficiently to provide an evidential sample. He repeated that he was not happy with the lawyer’s advice
and that the lawyer had not told him anything about blowing into the machine. As a result of the insufficiency of the first sample, a second attempt was made but this time Mr Patel either did not blow into the device at all or he blew very little. As a result, another insufficient sample of breath was provided. A third attempt to obtain a breath sample was made. This too failed to produce a result because the sample contained mouth alcohol.
[11] As a result, Constable Pukeiti decided he would require Mr Patel to undergo a blood test. The time was 3:21am. Constable Pukeiti told Mr Patel that he was being detained to consider a blood test procedure. He was given his NZBORA advice. Constable Pukeiti repeated to Mr Patel his right to speak to a lawyer without delay and in private, that the rights continued through the blood alcohol testing procedures and if he wished to speak to a lawyer a telephone would be made available and he would be given reasonable time to consult and instruct a lawyer from the time a telephone was made available. This advice was given at 3:23am.
[12] According to Mr Patel he called Ms S again. He claimed he was unhappy with the advice and maintained he asked Constable Pukeiti if he could speak to another lawyer. Constable Pukeiti denied Mr Patel spoke to Ms S a second time. Whether Mr Patel spoke with Ms S again or not it is common ground that Constable Pukeiti made arrangements for Mr Patel to speak to a different lawyer, a Mr E. This took place at 3:26am. Fourteen minutes later, at 3:40am, the discussions with Mr E finished.
[13] At this point Constable Pukeiti advised Mr Patel that he required him to undergo a blood test. This requisition was delivered at 4:02am.
[14] Constable Pukeiti was cross-examined on why he did not consider undertaking a second evidential breath test before proceeding to require a blood sample. Constable Pukeiti replied as follows:
“Right, it goes back to the amount of time he heard the lawyer for 17 minutes. For me it took – to me, in my mind, it took him 17 minutes to realise the lawyer was giving him bad advice. I mean, he should have picked it up in the first few minutes and then seen me again. Then I could
have got another lawyer for him. After 17 minutes, I’m of [a] mind that he’s
just jerking my chain by then and he’s just going to go - …”
District Court decision
[15] Judge Sinclair concluded that Constable Pukeiti had adequately accommodated Mr Patel’s right to a lawyer when he arranged for him to speak to Ms S. The Judge pointed to the fact that the constable facilitated the right by obtaining a list of lawyers, attempting to contact two from the list and making contact with the third, Ms S, after the previous two had not answered. The constable allowed Mr Patel to conduct the conversation in private and did not fetter Mr Patel in any way or interfere with his ability to freely converse with the lawyer. He placed no time pressures on him.
[16] On the question of the length of time Mr Patel spoke with Ms S, the Judge concluded that it was not particularly material. She noted that even if the time span favoured by the defence was adopted, namely five minutes, no claim had been made by Mr Patel that this was insufficient. Mr Patel’s complaint was that he did not like the advice from his lawyer and the constable should have responded or reacted accordingly.
[17] Her Honour observed it was entirely appropriate that Constable Pukeiti did not engage with Mr Patel as to the reasons he was not happy with the legal advice he received. His reasons for dissatisfaction could have been various and it was not the constable’s role to comment on the advice. The constable’s role was to explain the procedure and what was required of Mr Patel. Her Honour said she was satisfied this had occurred. She concluded she was satisfied Mr Patel had been given the opportunity to exercise his rights to speak to a lawyer. She also concluded the constable was not required to facilitate contacting another lawyer in light of Mr Patel’s concerns.
[18] In relation to the defence claim that Constable Pukeiti either did not exercise his discretion under s 70(1) of the LTA or did not exercise his discretion reasonably in the circumstances, her Honour commented that, while the constable’s description that Mr Patel was just “jerking his chain” was unorthodox, the constable had come to
a considered decision that Mr Patel was not going to provide a further breath sample and for that reason required Mr Patel to provide a blood specimen.
[19] Her Honour observed that there were different views in the higher Courts on whether the exercise of the discretion is unfettered or requires some objective reasonableness in its exercise. Her Honour said she favoured the former and referred to the judgment of this Court in Rankin v Police.1 However, she also observed that even if the discretion is required to be exercised reasonably in the circumstances she was satisfied that the test had been met. In support of this conclusion she pointed out
that Constable Pukeiti had a proper basis for concluding that Mr Patel was not going to provide a breath sample and to require him to provide a further evidential breath sample would have simply prolonged the exercise. It was objectively reasonable for the constable to decide to move straight to a blood test.
[20] Her Honour concluded that Mr Patel’s rights had been upheld. Constable Pukeiti had acted in good faith and exercised his discretion appropriately. She found the analyst’s certificate to be admissible and in the absence of challenges to the elements of the offence found the charge proved beyond a reasonable doubt.
Grounds of appeal
[21] Four specific grounds of appeal are advanced although, as previously noted, the issues they engage can be reduced to two broad propositions.
[22] The specific grounds are set out below:
(a) the appellant was not afforded reasonable facilitation of his rights under s 23(1)(b) of NZBORA. In particular, the appellant contends the constable failed to ensure that the appellant had finished exercising this right before proceeding with the evidential breath test;
(b) the constable was obliged to exercise a discretion under s 70(1) of the
LTA and did not do so;
1 Rankin v Police HC Auckland CRI-2005-404-361, 7 August 2006.
(c) in the event that the constable did exercise his discretion under s 70(1)
of the LTA he did not exercise it reasonably in the circumstances; and
(d)the blood sample taken from the appellant was not lawfully taken under s 72 of the LTA because the evidential breath test was incomplete as a result of mouth alcohol.
Approach to appeal
[23] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge alone trial.
[24] Under s 232, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”:
“232 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a) in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
[25] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.2 The error or irregularity must lead to either of the consequences listed in s 232(4)(a) or (b).
[26] 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.”3 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.4
[27] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.5 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the Court must quash the decision.6 Courts have held that an unfair trial can also exist when a defect in the trial causes an unacceptable appearance of unfairness without actual prejudice to the defendant.7
[28] Unfairness does not necessarily give rise to a nullity;8 there has to be some fundamental procedural error. Examples of such a fundamental error include:
2 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18 at [30].
3 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.
4 At [110].
5 Condon v R [2006] NZSC 62 at [78].
6 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the
Supreme Court in Condon v R, above n 5, at [38].
7 See James v R [2011] NZCA 219, at [29], where the failure to address the juror ’s capacity meant that there was a risk of a miscarriage of justice even though the verdict would have stood if the juror had been discharged.
8 Jago v The District Court of New South Wales (1989) 168 CLR 23 (HCA) at 57 per Deane J, cited by the Supreme Court in Condon v R, above n 5, at [77].
(a) a conviction where the Court lacks jurisdiction;9 or
(b) the charge fails to disclose a criminal offence.10
Appellant’s submissions
[29] In detailed submissions Mr Haskett, for Mr Patel, submits that Judge Sinclair was wrong to admit the results of his blood test. In particular, he submits that the process adopted by Constable Pukeiti violated Mr Patel’s right to a lawyer because he did not have practical access to effective legal advice.
[30] Furthermore, Mr Haskett submits that Constable Pukeiti should not have proceeded immediately to a blood test and that as such it is an unreasonable search because it was conducted in contravention of s 70 of the LTA. This latter argument is advanced on three sub-grounds namely:
(a) the constable did not exercise a discretion under s 70; or
(b) if he did, he did so unreasonably; or
(c) the blood test was not a test under s 72 of the LTA because the constable had not completed the full breath test.
Respondent’s submissions
[31] Mr O’Connor, for the Crown, submits that the constable met his obligations in terms of s 23(1)(b) of NZBORA and that he complied with the requirements of the LTA. He submits that the blood test was properly conducted and is admissible as conclusive evidence proving the charge.
Issues on appeal
[32] As noted, although four grounds are advanced on appeal, the issues can be conveniently reduced to two questions:
9 R v O (No 2) [1999] 1 NZLR 326 (CA).
10 R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338.
(a) Was Mr Patel’s right to access a lawyer under s 23(1)(b) of NZBORA
reasonably facilitated prior to the evidential breath test?
(b) Did the constable properly exercise his discretion under s 70(1) of the
LTA to require a blood sample?
[33] I shall deal with each of these questions in turn together with the subsidiary questions which emerge from the grounds of appeal.
(a) Was Mr Patel’s right to access a lawyer under s 23(1) of NZBORA reasonably facilitated prior to the evidential breath test?
[34] The right of a person detained by police to speak to a lawyer is protected by s 23(1)(b) of NZBORA, which provides:
“23 Rights of persons arrested or detained
(1) Everyone who is arrested or who is detained under any enactment—
[…]
(b) shall have the right to consult and instruct a lawyer without delay and to be informed of that right;”
[35] The purpose of this right was discussed by Richardson J in Ministry of
Transport v Noort, where his Honour observed:11
“In the first place it allows the accused or detainee to make informed decisions from the moment he or she is in jeopardy. Knowledge of one's rights and obligations under the law is crucial to their proper exercise. It is often the first step towards the effective enjoyment of relevant human rights such as rights to question the validity of continued detention, to bail, to silence, to complain about any oppression and abuse of power on the part of officials of the State.
Perhaps of greater practical importance in most cases, access to a lawyer is a means of ensuring that the citizen knows his or her rights and duties under the particular law and how he or she should exercise those rights and discharge those duties.
[…]
11 Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 279-280.
The second purpose which the right to a lawyer serves is the independent representation of the interests of the citizen. Few citizens have the knowledge, training and skill effectively to represent their own interests in any contest with the State. Whether acting as counsel in relation to charges which have been brought, or at an earlier stage as intermediary or as speaking for the detainee, the lawyer may serve a vital role.”
[36] Richardson J also commented:12
“The right to consult a lawyer is part of our basic constitutional inheritance, not surprisingly, it is also a central feature of contemporary international statements on human rights. The right is pivotal in ensuring so far as possible that both those detained and those detaining them act in accordance with the law. It recognises a reality that an individual who is arrested or detained is ordinarily of a significant disadvantage in relation to the infirmed and coercive powers of able to state. Access to counsel is a means of reducing that imbalance and ensuring that anyone arrested or detained is treated fairly in the criminal process. In that regard the right to a lawyer facilitates access to knowledge and also allows for representation by an independent intermediary.
[…]
Certainly it is not in the interest of the community as a whole or of the individual that the individual should be left under a veil of ignorance. Citizens should know where they stand and what the law expects of them. That is particularly obvious where legislation such as the Transport Act sets out a statutory process for the obtaining of information which becomes the foundation of criminal charges. …”
[37] It is well established that this right creates a complementary duty on the Police to make it possible for a person to access a lawyer, and to inform him or her of the right to do so. It is equally well established that compliance with this duty requires that it be done in a way which permits the person detained to effectively make use of the right.13 Furthermore, the duty is a continuing one.14
[38] However, it is also well established that the care which is required of Police in these circumstances varies depending on the seriousness of the situation which the person detained faces and the practicality of providing legal advice, whereas a person who is facing a charge of murder is entitled to have a lawyer present throughout much of the process. In the circumstances of a drink-driving
apprehension, where time is of the essence, it is commonly accepted that a more
12 Ministry of Transport v Noort above n 11 at 279.
13 R v Schriek [1997] 2 NZLR 139 (CA); Steel v Police (1994) 11 CRNZ 383, 391 (HC).
14 Rae v Police [2000] 3 NZLR 452 (CA) at [57].
truncated approach may be followed.15 In such circumstances providing a list of lawyers and an opportunity to telephone a lawyer in private will normally be sufficient.16
[39] Mr Haskett’s criticism is that not only was Constable Pukeiti required to facilitate Mr Patel’s access to a lawyer but once he became aware Mr Patel was dissatisfied with the advice he had received, the constable should have asked Mr Patel if he wanted to consult and instruct another lawyer. By adopting such an approach Mr Haskett submits Constable Pukeiti would have provided Mr Patel with a “real and practicable” opportunity to exercise his s 21 rights.
[40] I do not agree. When Mr Patel first indicated to the constable he wished to exercise his right to access a lawyer the constable followed the conventional practice of providing Mr Patel with a list of lawyers. The first two lawyers the constable telephoned did not answer. When Ms S became available on the third attempt the constable made immediate arrangements for Mr Patel to speak with her in private. He imposed no restrictions or conditions. He simply told Mr Patel that when he had finished speaking with Ms S he should knock on the door so that the constable would know Mr Patel’s discussions were at an end.
[41] I am satisfied that, contrary to Mr Patel’s account, he did speak with Ms S for a period considerably longer than five minutes. The chronology shows that at
2:41am Mr Patel first asked for a lawyer. Twenty six minutes later, at 3:07am, he finished speaking with Ms S. If the conversation with Ms S occupied only five minutes it leaves unexplained how the preceding 21 minutes were occupied. The evidence is that from 2:41am the constable obtained the lawyer’s list, had Mr Patel sign the acknowledgement he had received his advice under NZBORA, handed the form over to Mr Patel and invited him to choose a lawyer. Constable Pukeiti made the first two unsuccessful attempts to contact the lawyers of Mr Patel’s choice. The third call to Ms S was answered and Mr Patel was then placed in a room to speak with her. These steps could only have occupied a few minutes at the most. This
sequence is a good deal more consistent with the constable’s evidence that Mr Patel
15 Ministry of Transport v Noort, above n 11, at 284; R v Mallinson [1993] 1 NZLR 528 (CA) at
531; Rae v Police, above n 14, at 465.
16 Ministry of Transport v Noort, above n 11, at 284; Rae v Police, above n 14, at 466.
spoke with Ms S for some 17 minutes than it is with Mr Patel’s claim the
conversation occupied about five minutes.
[42] It is also plain from the evidence that Constable Pukeiti wasted little time in attempting to contact the lawyers chosen by Mr Patel as the following exchange in cross-examination demonstrates:
“Q… So if you were in the practice of leaving a message for a lawyer to call back, wouldn’t you wait for a few minutes on the possibility that the lawyer might call back – rather than moving on to calling a different lawyer?
A No.
Q Why not?
A Because I like to get the procedure started as soon as possible and I
like to give him a lawyer as soon as possible.”
[43] Furthermore, I agree with Judge Sinclair’s observation that it was not the constable’s responsibility to ensure Mr Patel was happy or satisfied with the legal advice he received or to make his own assessment as to whether the advice was appropriate. His role was to explain the evidential breath test procedure and facilitate Mr Patel’s right under s 21. He did both.
[44] It is also noteworthy that despite complaining he was unhappy with the legal advice he had received Mr Patel did not request to speak to another lawyer until his rights under NZBORA were repeated at 3:23am before the blood test.
[45] I accept Mr O’Connor’s submission that it is not incumbent on an officer to continue to ask whether a detained person has finished exercising the right to consult with a lawyer through the process. To do so would be to extend to the detainee an ongoing and potentially open ended opportunity to speak to further lawyers until satisfied. Not only would such a regime introduce potential delays in the statutory regime which must, if it is to be effective, impose time limits, but it would also place an unacceptable burden on the officer to subjectively determine at what stage the detained person had actually finished exercising their right. This is neither practical, logical nor consistent with the legislative intention which underpins the drink driving procedures.
[46] It follows I am satisfied that Mr Patel’s right to a lawyer was adequately
facilitated by Constable Pukeiti.
[47] In the event that I am wrong on this conclusion, the question which then arises is whether this evidence should nonetheless be admitted pursuant to s 30 of the Evidence Act 2006. Where a Judge determines that evidence in a criminal proceeding has been improperly obtained, he or she is required to determine whether exclusion of that evidence is proportionate to the breach of rights. That analysis is to be conducted with reference to the non-exhaustive factors listed in that section. Mr Haskett submits that this test would favour exclusion of the evidence in this case.
[48] In the present case, I am satisfied that even if there was a breach of Mr Patel’s right to a lawyer, exclusion of the evidence would not be an proportionate remedy. In particular, I consider that while the right involved is of significant importance, the degree of any breach was mild in the circumstances. I further consider that any breach was committed neither recklessly nor in bad faith. I also consider that Mr Patel was not, in any way, prejudiced by the advice he received and that had he
been properly advised17 the same result would have been inevitable. For these
reasons I would consider exclusion to be a disproportionate response to the alleged breach.
[49] I also note in passing that although Mr Patel alleges he received poor advice from Ms S, but has not called her to give evidence. While the situation here is different from cases of trial counsel incompetence, it may be possible in some cases to draw negative inferences from the failure to have the lawyer give evidence, as is the case where a client refuses waiver in trial counsel competence appeals.18 In any event, I am that I do not need to reach any conclusions on Ms S’s conduct in this
appeal.
17 There is no sufficient evidence on which to assess whether the advice given was adequate or not.
However, even accepting Mr Patel’s criticisms the result would have been the same.
18 See Sungsuwan v R, above n 3, at [59]-[61].
(b) Did the constable properly exercise his discretion under s 70(1) of the LTA to require a blood sample?
[50] Mr Haskett advances three arguments in support of his submission that Constable Pukeiti was not entitled to require Mr Patel to provide a blood sample. These are as follows:
(a) the constable did not exercise his discretion under s 70 of the LTA; or
(b)if the constable did exercise his discretion under s 70 of the LTA he did so unreasonably; or
(c) if the constable did exercise his discretion under s 70 of the LTA reasonably, the resultant blood test was not a blood test under s 72 of the LTA.
[51] Before turning to consider each of these arguments it is necessary to examine s 70 of the LTA which provides as follows:
“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).”
(Emphasis added)
Did the constable exercise his discretion under s 70 of the LTA?
[52] Mr Haskett submits that the officer must actually exercise the s 70 discretion. He submits that as the Court of Appeal observed in Rae v Police the provisions of Part 6 of the LTA are an integrated and coherent enforcement process. 19 That form of machinery would not have effect if an officer was not required to exercise the discretion in s 70.
[53] Furthermore, he submits that the requirement to exercise the discretion under s 70 is reinforced by the legislative intent that breath tests are to be promoted ahead of the more intrusive blood tests.20 This requirement is supported by s 21 of NZBORA with the effect that the less intrusive option of a breath test should be preferred if it is possible in the circumstances. He submits that in this way s 21 of NZBORA requires both the exercise of the s 70 discretion as well as the requirement it be exercised reasonably.
[54] Mr Haskett submits that Constable Pukeiti did not exercise the s 70 discretion and that Judge Sinclair erred in her assessment of the evidence. Mr Haskett submits it is plain from the evidence that the constable never turned his mind to the possibility of a further evidential breath test. In particular, he points to the constable’s evidence and his concession that he did not turn his mind at all to whether or not to require a further evidential breath test.
[55] It was in the context of this questioning that the constable made the comment it took Mr Patel 17 minutes to realise the lawyer was giving him bad advice and that he was of the mind that Mr Patel was “just jerking [his] chain”.
[56] In my view the constable was entitled to conclude Mr Patel was prevaricating. The reference to “jerking his chain” and the 17 minutes spent speaking with Ms S need to be viewed in the context that this was followed by two unsuccessful attempts to obtain an evidential breath sample because Mr Patel either did not blow into the device at all or blew so ineffectively that an evidential sample could not be obtained. While I accept that the attempt to obtain the third sample was frustrated through no fault of Mr Patel, nonetheless, in all the circumstances I am satisfied that the constable’s decision to move to a blood test was a considered one in all the circumstances.
[57] I am supported in that conclusion by previous decisions where this Court has determined that when, for any reason, an evidential breath test fails to produce a result the section applies. This includes cases where, as here, the test produces an
“insufficient” result. This was made clear by Durie J in Police v Rimene where his
Honour observed:21
“… 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.”
[58] Similarly, in Lysy v Police, Doogue J said: 22
“[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.”
If the constable did exercise his discretion under s 70 of the LTA, did he do so unreasonably?
[59] Mr Haskett submits that even if the s 70 discretion was exercised, both it and the search were unreasonable in terms of s 70 of the LTA and s 21 of NZBORA. He submits that the unreasonableness of Constable Pukeiti’s approach is apparent from the evidence and in particular how he insisted Mr Patel undertake an evidential breath test rather than enquiring whether he had finished exercising his s 23(1)(b) right. He did not consider whether the defendant had blown at all. He did not realise
that the third attempt had failed because of breath alcohol. He did not consider
21 Police v Rimene HC Masterton M4/2000, 21 December 2000 at [27].
22 Lysy v Police HC Rotorua AP28/99, 2 November 1999, (1999) 18 CRNZ 137 at [10] and [11].
undertaking a second evidential breath test and he took into account an irrelevant consideration in deciding to moving to a blood test (i.e. that Mr Patel had taken 17 minutes speaking to Ms S).
[60] Mr Haskett thus submits that even if the discretion in s 70 of the LTA was exercised it was exercised unreasonably and the requirement to undertake a blood test rather than a second breath test was unreasonable thus amounting to a breach of s 21 of NZBORA.
[61] Mr Haskett submits that the Court of Appeal decisions in Ministry of Transport v Masters23 and Duell v Ministry of Transport24 hold that the discretion to require a further evidential breath test is objective and must be exercised reasonably.
[62] While I accept that different judicial views have been expressed concerning the s 70 discretion the clear words of s 70 demonstrate Parliament’s intention to extend broad powers to officers who are obliged to make judgements, often under time and other pressures, on what the most appropriate course to adopt may be in circumstances where they are often dealing with intoxicated motorists in the context of a statutory regime where timeliness is central to its efficacy.
[63] The breadth of the discretion contained in s 70 was explained in Rankin v
Police where Harrison J observed:25
“[14] The only question upon which the officer must exercise his or her discretion is the choice between the two available alternatives once the factual foundation is established. There is no statutory direction or presumption either way and nothing to suggest that the discretion is reviewable according to a test of objective reasonableness. The breadth of the officer's discretion is confined solely by the subject-matter and object of s 70(1): Coal and Allied Operations v AIRC 174 ALR 585 at [19] per Gleeson CJ. Of course, he or she must act in good faith and in accordance with the purpose for which the discretion is conferred: Shrimpson v The Commonwealth (1945) 69 CLR 613 (HCA) at 620. Otherwise, the evidence will have been obtained unfairly and may be excluded: R v Shaheed [2002] 2
NZLR 377 (CA).”
23 Ministry of Transport v Masters above n 20.
24 Duell v Ministry of Transport [1993] 1 NZLR 13 (CA).
25 Rankin v Police above n 1 at [40].
[64] His Honour further observed:26
“The terms of s 70(1) confer a discretion on a police officer that is unfettered by any incidental obligation to allow a person an opportunity to undergo a second evidential breath test. The facts in Duell's case, if heard today, would undoubtedly satisfy the factual prerequisite of a failure of an evidential breath test to produce a result, triggering the officer's discretion. The statutory power did not then reach to that specific factual precondition. The inclusion of the words “at his or her discretion” serve to emphasise the width of the officer's power.”
[65] As stated in Excell v Police:27
“If the entirely new provision inserted in 1998 by s 70 was intended to do no more than state the requirements of s 58B of the 1962 Act as interpreted by the Court of Appeal in Duell and as replaced by s 72 of the 1998 Act then there was not purpose in enacting it.
…
[48] I accordingly decide that the discretion given by s 70 is not subject
to the test of objective reasonableness.”
[66] In my view this interpretation accords with the plain wording of the legislation. The intention behind replacing s 58C(1)(c) of the Transport Act 1962 recognises the practical difficulty and undesirability of importing the opportunity for officers to have the reasonableness of their actions questioned by detained motorists as the officer administers the excess breath alcohol process.
[67] An officer in these circumstances thus has a wide discretion to either continue with a further evidential breath test or require the detained person to undergo a blood test. This is reflected in the opening words to s 70 which explicitly record that an officer may proceed to a further evidential breath test or blood test “If for any reason an evidential breath test fails to produce a result”. In the present case, Constable Pukeiti’s discretion was not limited by an objective test of reasonableness. He had determined that the appellant was not going to provide a further evidential breath test which would produce a result and, as a consequence, required a blood sample to be
taken.
26 At [18].
27 Excell v Police AP75/01 HC Tauranga, 29 April 2002 at [44] per Nicholson J.
[68] Even if I am wrong and an objective test is imported, I am satisfied that Constable Pukeiti acted reasonably and conscientiously in the exercise of his discretion. He had a proper basis for concluding that Mr Patel was prevaricating and in a similar fashion to that encountered in Rankin, was needlessly prolonging the exercise.
[69] On the evidence I am satisfied that Constable Pukeiti moved to requiring a blood sample because he considered that the breath test was incomplete and would not be completed because Mr Patel had:
(a) given the constable the impression that he was “jerking [the constable’s] chain; and
(b)appeared not to be participating co-operatively in the breath testing procedure.
[70] In those circumstances I am satisfied it was reasonable for Constable Pukeiti to infer that another evidential breath would be similarly unsuccessful. It was entirely reasonable for him, in the circumstances, to require Mr Patel to proceed to undertake a blood test.
[71] For these reasons I am satisfied there has been no breach of s 21 of NZBORA and Judge Sinclair did not err in her finding the officer had acted properly under s 70 of the LTA.
Is a blood test administered under s 70 a blood test for the purposes of s 72 of the
LTA?
[72] Mr Haskett’s final submission is that Constable Pukeiti was not empowered to require a blood test under s 72 of the LTA because it was not proven the appellant had failed or refused to undertake an evidential breath test. He submits that the offence section requires the prosecution to prove the blood sample was “taken under s 72” which in this case required the prosecution to prove the appellant failed or refused to do an evidential breath test. 28
[73] Mr Haskett submits that on the authority of Duell it was not reasonably possible to conclude that Mr Patel had failed to undertake an evidential breath test because the first test was incomplete as a result of mouth alcohol.
[74] At first glance there is an attraction to Mr Haskett’s argument as the fairly exhaustive list of circumstances in s 72 makes no reference to a blood test under s 70. However, a closer reading of s 70 provides the complete answer. The section specifically states that the officer may proceed as though s 72(1)(c) applies. In these circumstances Parliament cannot have intended the officer to act as though s 72 applied without that section also incorporating such a test.
[75] In any event ss 70 and 72 of the LTA require only that “if for any reason” an evidential breath test cannot be carried out then a blood test procedure can be required. As Harrison J explained in Rankin:29
“The sole factual pre-requisite for a Police officer to exercise the s 70(1) discretion is that the evidential breath test has failed to produce a result. The reason for the failure is immaterial. Any reason is sufficient, whether a mechanical malfunction or personal obstruction.”
[76] In this case an evidential breath test was not carried out because the appellant had failed to blow sufficiently into the tube on the first attempt or had failed to blow sufficiently or at all on the second attempt and the third attempt failed due to mouth alcohol.
[77] In my view this is a situation where the evidential breath test had failed to produce a result and a blood sample under s 72 was thus validly taken.
[78] I agree with Mr O’Connor’s submission that the comments made by Cooke P in Duell were made in the context of a detained motorist who had refused a screening test, failed a first evidential test and interrupted the second breath test. In the present case, Mr Patel accepted that the procedure was clearly explained to him and it may be inferred from his conduct that the reason the breath test failed to produce a result was, at least in part, due to Mr Patel’s failure to sufficiently blow into the device.
[79] The comments of Harrison J in Rankin are again instructive. There his
Honour said:
“The facts in Duell's case, if heard today, would undoubtedly satisfy the factual prerequisite of a failure of an evidential breath test to produce a result, triggering the officer's discretion.”
[80] In my view this ground of appeal must also fail.
Result
[81] The appeal is dismissed.
Moore J
Solicitors:
Mr Haskett, Auckland
Crown Solicitor, Auckland
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