Patel v Police HC Auckland CRI-2011-404-000300

[2011] NZHC 1903

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000300

BETWEEN  TRUSHAR PATEL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 November 2011

Appearances: S J Mitchell for Appellant

K L Wendt for Respondent

Judgment:      11 November 2011 at 9:30 AM

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 11 November 2011 at 9:30 am

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registra

Date………………………

Solicitors:           S J Mitchell, 6 Daphne Street, Outer Kaiti, Gisborne 4010

Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – K Wendt

PATEL V NZ POLICE HC AK CRI-2011-404-000300 11 November 2011

Introduction

[1]      Early in the morning of 7 December 2010 the appellant, Trushar Patel, was stopped on White Swan Road, Mount Roskill.  He failed a breath screening test at the roadside and undertook an evidential breath test at the Avondale police station. He was convicted by Judge Mathers on one charge of excess blood alcohol under s 56(1) of the Land Transport Act 1998.[1]

[1] New Zealand Police v Patel District Court Auckland CRI-2010-004-022215 10 August 2011.

[2]      Mr Patel appeals his conviction on three grounds.   The first is that the prosecution failed to prove that the officer conducting the screening and evidential breath tests was in uniform.   The second is that the officer failed to  state that Mr Patel had not requested a blood test within the 10 minute period. The third is that the officer failed to identify the defendant at the hearing.

Whether the officer was required to and did prove that he was in uniform

[3]      Mr Mitchell, for Mr Patel, submitted that the Police could not prove the case against Mr Patel without also proving that the officer was in uniform.

[4]      Under s 113(1) of the Land Transport Act 1998 the provisions of the Act may be enforced by “an enforcement officer in uniform or in possession of a warrant or other evidence of his or her authority as an enforcement officer”.   In Ministry of Transport  v  Quirke,  the  Court  of Appeal  held  that  in  the  absence  of  specific challenge to the officer’s authority, it is open to the Court to infer that the officer was

in uniform:[2]

[2] Ministry of Transport v Quirke [1977] 2 NZLR 497 (CA).

… where there has been no challenge in the field to the authority of a constable or traffic officer to take action under the Transport Act and in addition, at the hearing in Court of some consequential charge, his authority to have acted in that way is not questioned at all until after the prosecution has closed its case, then the commonsense inference outlined in Cooper v Rowlands could usually be acted upon by the Court.  In the ordinary case at least that inference should be enough to dispose of the issue, if it were raised

…

As I have indicated in relation to the Cooper v Rowlands case I think it is likely that most of the cases coming before the Court will permit an appropriate inference to be drawn without direct proof.  So that if there is no challenge in cross-examination during the hearing in court and there has been no question raised at the roadside, then I think a failure by the prosecution to provide direct evidence (of the enforcement officer being in uniform) ought not to lead in any automatic way to dismissal of the proceedings.

[5]      In the High Court there has been a divergence of views as to the extent and nature of the challenge needed to require direct evidence of the officer wearing a uniform.   This divergence is best illustrated by the comparison between Russo v Police[3] and North v Police.[4]   Both are particularly relevant because of the similarity in terms of the challenge to authority made in cross-examination with the challenge in the present case.

[3] Russo v Police HC Rotorua CRI-2005-470-04, 27 April 2005.

[4] North v Police HC Auckland CRI-2007-404-000297, 29 November 2007.

[6]      In Russo the challenge was:

… You didn’t have any power on the night to put Mr Russo through these procedures and make him accompany you and make him undergo an evidential breath test.  What gave you the power on the night.  I mean what’s the source of your power, where do you get your power from.  I suppose I’m putting it to you that you didn’t have any power on the night.

[7]      Allan J, noting that it is a matter for the Court in each case to determine whether a challenge was sufficiently explicit to place the burden of direct proof on the prosecution, concluded that this challenge was mounted in sufficiently clear terms to require the prosecution to specifically prove that the officer was in uniform.

[8]      In comparison, the challenge in North was that:

Just generally I put it to you that you didn’t have any power or authority to put Mr North through these procedures. What do you say to that?

[9]      Cooper J considered (preferring the approach taken by Wild J in Spiekerman v New Zealand Police)[5]that the wearing of a uniform or possession of a warrant, whilst a necessary prerequisite to the exercise of the powers conferred by s 113(1), did  not  represent  the  source  of  the  power  itself;  s  113(1)  requires  evidence  of

authority,  not  evidence  of  the  power  itself  (which  is  conferred  by  the  statute).

Therefore, if the intention is to question the authority of a police constable to invoke procedures, the challenge should be directed at whether or not the constable was wearing a uniform or in possession of a warrant or had other evidence of authority. From that position Cooper J concluded that the terms in which the challenge had been mounted (and, indeed, the terms in which the challenge had been mounted in Russo) was not sufficient to require direct proof by the prosecution of the officer being in uniform.

[5] Spierkerman v NZ Police HC Wellington AP83/99, 27 May 1999.

[10]     In this case, the Judge referred only to Russo and not to North.  However, she also relied on the Supreme Court’s  comments in Aylwin v Police regarding the undesirability of technical and unmeritorious defences.[6]     She concluded that the challenge to the officer’s authority was not sufficiently explicit to require direct evidence and that the evidence permitted the inference that the officer had been in uniform at the time.

[6] Aylwin v NZ Police [2008] NZSC 113.

[11]     I consider Cooper J’s approach in North to be correct and that the challenge in this case is insufficient to put in issue the question whether the officer was in uniform.  Whilst the issue of the challenge to authority might have been better dealt with by reference to the decision in North which would have provided the Judge with a legitimate alternative authority, the Judge’s conclusion was correct.   This ground of appeal therefore fails.

Failure to prove that Mr Patel did not request a blood test within the 10 minute period

[12]     Mr Mitchell submitted that the officer giving evidence did not state that Mr Patel had not requested a blood test within the 10 minute period provided by s 77 and therefore did not prove all the required elements.

[13]     Section 77(3) provides that:

77       Presumptions relating to alcohol-testing

(3)       Except  as  provided  in  subsection(4),  the  result  of  a  positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—

(a)       The person who underwent the test is not advised by an enforcement officer, [without delay] after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes,—

(i)        In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be [conclusive] evidence to lead to that person's conviction for an offence against this Act; or

(ii)      In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 150 but does not exceed 400 micrograms of alcohol per litre of breath, the test could of itself, unless the person is 20 or older, be [conclusive] evidence to lead to that person's conviction for an offence against this Act; or

(b)      The person who underwent the test—

(i)        Advises an enforcement officer, within 10 minutes of being advised of the matters specified in paragraph(a), that the person wishes to undergo a blood test; and

(ii)      Complies with section72(2).

[14]     The Supreme Court decision in Aylwin established that, in order to prove a charge under s 56(1) the prosecution was required only to establish four things:

(a)       The fact that breath screening test was conducted;

(b)      The fact that an evidential breath test was conducted; (c)       The results of these tests; and

(d)      That the accused was advised of his right to have a blood test.

[15]     Section 77(3) does not require proof that the person did not request a blood test, merely that the person was advised of the consequences of not doing so.   I therefore do not accept that the officer was required to state that Mr Patel did not request a blood test.  But in any event, the Advice of Positive Evidential Breath Test form completed by the enforcement officer at the time and produced as an exhibit at the hearing shows plainly that no such request was made.  In the shaded box headed “10 minute period” there are two items to be completed.   The second is “period

finished or person requested blood”.  On the form the words “or person requested blood” have been crossed out.  It is safe to infer from that part of the form that the 10 minute period finished without such a request being made.

Identification of defendant

[16]     The  third  ground  asserted  was  that  the  enforcement  officer  failed  in  his evidence to identify the defendant as the person he stopped and tested on the relevant day.  The basis for that submission seemed to be the assertion that the officer had failed to actually point out the defendant in court.  There was, however, no evidence of that fact apart from what could be gleaned from the notes of evidence which recorded the officer’s evidence that:

I spoke to an Indian driver.  I now identify the driver as Mr Trushar Patel, the defendant before the Court today.

[17]     In addition, the officer produced as an exhibit a photograph of the defendant. In these circumstances there is simply no basis on which to advance an argument that Mr Patel was not properly identified.

[18]     The appeal is dismissed.

P Courtney J