Police v A HC Auckland CRI-2005-404-440
[2006] NZHC 1037
•14 September 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2005-404-440
NEW ZEALAND POLICE
Appellant
v
A
Respondent
Hearing: 21 July 2006
Court:Baragwanath J Heath J
Counsel: P J Andrew for Appellant
F P Hogan for Respondent
Judgment: 14 September 2006 at 4.30 pm
JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J
This judgment was delivered by Baragwanath and Heath JJ on 14 September 2006 at 4.30 pm pursuant to Rule 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:………………………
Solicitors:
Meredith Connell, Auckland
Counsel:
Mr P J Andrew, AucklandMr F P Hogan, Auckland
NEW ZEALAND POLICE V A HC AK CRI-2005-404-440 14 September 2006
Introduction
[1] The Crown appeals by way of case stated on points of law against the dismissal by Judge Hobbs in the District Court of two charges against the respondent under the Land Transport Act 1998. The first is that he refused to accompany without delay a police officer to a place where he could be required to undergo an evidential breath test or blood test, contrary to ss 69 and 59(1)(b). The second is of driving a motor vehicle on a road when the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath, in breach of s 56(1).
[2] Section 69 allows a police officer to require a motorist to accompany such officer without delay to a place where he could be required to undergo an evidential breath test or blood test “if the person has undergone a breath screening test” and the test indicates that the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath. Failure to do so is an offence under s 59(1)(b). Section 56(1) creates an offence if a person:
drives a motor vehicle on a road while the proportion of alcohol in the person’s breath, as ascertained from an evidential breath test subsequently undergone by the person under s 69, exceeds 400 micrograms of alcohol per litre of breath.
[3] The crucial issues on appeal concern what must be proved and by whom. There are three elements, two substantive and one procedural.
Substantive
a) that the defendant drove a motor vehicle on a road;
b) that he did so while the proportion of alcohol in his breath exceeded
400 micrograms of alcohol per litre of breath.
Procedural
c) that the alcohol proportion was ascertained by an evidential breath test.
[4] The respondent contends that the issues are whether the evidence establishes that the respondent in fact underwent “a breath screening test” (first charge) and “an evidential breath test” (second charge). The respondent’s argument, accepted by the learned Judge, was that the answer in each case is no, because the prosecution led no evidence to establish that the respective tests were “a breath screening test” and “an evidential breath test” within the meaning of the Act. Section 2 provides that “unless the context otherwise requires”… “breath screening test” means:
…a test carried out by means of a breath screening device in a manner prescribed in respect of that advice by the Minister of Police, by notice in the Gazette…
and “evidential breath test” means:
…a test carried out by means of an evidential breath-testing device in a manner prescribed in respect of that advice, by the Minister of Police by notice in the Gazette…
The relevant prescription was by the Transport (Breath Tests) Notice (No. 2) 1989 (the Notice) SR 1989/389 which was considered by a Full Court of this Court in Ministry of Transport v Gilbert [1990] 3 NZLR 629. That judgment contains a valuable description of the operation of the Intoxilyser 5000 device employed in this case.
[5] The difficulty of this case concerns the true construction and application of s 56(1) read with s 64(4) at para [16] below.
[6] We sat as a Full Court to consider the conflict between the judgment of Simon France J in Waring v Police HC AK CRI 2004-404-101 and previous judgments of this Court on the construction of s 64(4), which that Judge declined to follow. It is sufficient to say that, for the reasons that follow, we respectfully agree with the reasoning in Waring which was bound to follow the decision of the Court of
Appeal in Falesiva v Ministry of Transport [1987] 1 NZLR 275. But that does not provide the answer to this appeal.
The facts
[7] The respondent, an off duty police officer, was driving a motor vehicle on the Ellerslie-Panmure Highway. At 12.30 am the vehicle was seen to be drifting within its lane and was stopped by police. The respondent said on enquiry that he had consumed two beers. He underwent and failed a passive breath test. He was tested on an Alcotech AR1005. He was then subjected to and failed a breath screening test on the Alcotech AR1005 device. The constable then required the respondent to accompany him without delay to the Mt Wellington police station to undergo an evidential breath test or blood test. The respondent refused to do so and it was only after one of the officers had produced and threatened to use his OC spray that he was hand-cuffed with some difficulty by the constable and another officer. That conduct gave rise to the first charge.
[8] The evidence given by the constable and accepted by the Judge was that at the police station “the respondent completed an evidential breath test”. The only further evidence on that topic was that the device used was an Intoxyliser 5000 which was assembled in accordance with the Notice. The Intoxyliser 5000 printout, also produced in evidence, gave an evidential breath test result of 578 micrograms of alcohol per litre of breath. As required by s 75A the prosecution produced a certificate of compliance given under that section by a person authorised for that purpose by the Minister for Research, Science and Technology. The certificate recorded that the device was issued on 9 August 2004 and that the device must be returned by 25 April 2005 (end of service life). No point was taken as to the accuracy of the device. The issue is as to the manner of its use.
[9] Following the use of the Intoxyliser 5000 the respondent was told that the result exceeded the legal limit and was advised of his right to consult and instruct a lawyer without delay. A form headed “Advice of Positive Evidential Breath Test” was read and shown to the respondent by the constable. It included advice to the defendant that if within ten minutes he did not request a blood test, the test he had
just undergone could of itself be conclusive evidence leading to his conviction for an offence against the Land Transport Act: s 70A. The respondent did not elect to take a blood test and as a result was charged with driving with excess breath alcohol.
The decision of the District Court
[10] The Judge directed himself that it is an element of the respective charges that the test establishing that the person’s breath exceeded 400 micrograms of alcohol per litre of breath was in fact a “breath screening test” or an “evidential breath test” as defined in s 2.
[11] There was no evidence that the successive tests were carried out “in a manner prescribed” by the Minister of Police. Therefore the Judge held that an element of each offence had not been proved and therefore acquitted the respondent on each charge.
Discussion
[12] The elements of s 56 were analysed by a full bench of the Court of Appeal in R v Livingston [2001] 1 NZLR 167, delivered in 2000. It will be necessary to consider whether the 2001 amendment of the Land Transport Act affects its conclusions.
[13] In Livingston, the Court of Appeal held (para [8]) that the concept of the proportion of alcohol being “as ascertained by an evidential breath test subsequently undergone…under section 69” contains two discrete ingredients. First there must have been an evidential breath test; secondly it must have been undergone under s 69. The first may be further divided. Whether there has been “an evidential breath test” depends on (1) whether the test was carried out by a device of a kind approved by the Minister of Police by notice in the Gazette and (2) whether the test was carried out in a manner prescribed, in respect of the device used, by the Minister of Police by notice in the Gazette. So the device must be of an approved kind and it must be operated in an approved manner.
[14] Whether the device was of an approved kind and whether it was operated in an approved manner are aspects of whether the test fulfils the statutory definition of an evidential breath test. As definitional issues they are to be treated as matters of law even though they involve questions of fact and are for the Judge to determine if put in issue. If the test does not qualify as an evidential breath test the case collapses at that point (Livingston para [11]). The standard of proof which the prosecution must discharge is the balance of probabilities (para [16]).
[15] As the legislation then stood, the Court of Appeal held that if the defence meets an evidential burden to show that there could be reasonable doubt as to the reliability of the device, the Crown must establish reliability beyond reasonable doubt or the charge must be dismissed (para [13]). The defence to a breath alcohol charge of unreliability of the device has however now been removed.
[16] The Crown relies on s 64 which, in its present form, provides:
64 Defences
…
(2) It is no defence to proceedings for an offence that
… section…[69] has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with [that provision]1
…
(4) It is no defence to proceedings for an offence against this Act in respect of the proportion of alcohol in a person's breath—
(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.2
…
(emphasis added)
1 The subsection is essentially a reproduction of s 58E Transport Act 1962 discussed in Soutar v
Ministry of Transport [1981] 1 NZLR 545 (CA).
2 The subsection, minus the phrase “or evidential breath test” in subclause (a), essentially reproduces s 58(5) of the 1962 Act discussed in Falesiva v Ministry of Transport [1987] 1 NZLR 275 (CA).
[17] As originally enacted, subclause (a) of subsection (4) referred only to breath screening test and not to evidential breath test. So on a breath alcohol charge, the removal of the defence of error then related only to the preliminary “screening” test and not to the “evidential” test, failure of which constituted the actual (breath alcohol) offence. While the breath test formula was changed prior to the present events it has remained unchanged in respect of blood alcohol charges. Subsection (5) continues to provide that in blood alcohol cases the defence is removed only in relation to the preliminary breath screening and evidential breath tests. It does not extend to the failure constituting the actual (blood alcohol) offence:
(5) It is no defence to proceedings for an offence against this Act in respect of the proportion of alcohol in a person's blood—
(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 or a blood test
[18] It is further to be noted that the Land Transport (Road Safety Enforcement) Amendment Act 2001, which amended s 64(4)(a), also:
• removed the concept of a “conclusive evidential breath test” which had been retained in 1998 from previous legislation;
• introduced in s 77A the concept of a certificate of compliance of an evidential breath-testing device and an obligation on the prosecution to produce such certificate at trial where it is conclusive evidence of the matters stated in it. The certificate in this case established the currency of the period of service of the particular device and the fact that it was being maintained within the manufacturer’s specifications; and
• enacted a new s 70A restoring a right in all cases to elect to undergo blood test and to be informed of that right:
70A Right to elect blood test
(1)If the result of a person’s evidential breath test appears to be positive, the person has the right, within 10 minutes of being advised by an
enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), to elect to have a blood test to assess the proportion of alcohol in his or her blood.
(2) This section is for the avoidance of doubt.
[19] The reason for the 2001 Amendment Act was stated:
3 Purpose
(1) The purpose of this Act is to improve road safety by –
(a) removing the defence of error or possible error in the result of an evidential breath test and ensuring that an evidential breath test is conclusive, but subject to safeguards to protect the rights of defendants:
…
[20] “[S]afeguards” alludes to the removal of the former conclusive evidential breath test, the requirement of a certificate of compliance of the evidential breath-testing device, and the restoration of the general right to blood test.
[21] It follows that Parliament has met the possible injustice in a breath alcohol case - of removing the defence accepted in Livingston that the very result of the evidential breath test was erroneous - by restoring the right to insist upon a blood test, the result of which is conclusive. A defendant prosecuted under s 56(1) (for excess breath alcohol) must previously have received and declined the invitation to undergo a blood test. Parliament has treated the combination of failure of the evidential breath test plus election not to undergo blood test as sufficient to justify conviction even if there may have been a material error in the breath test result.
[22] Such is the context of the respondent’s submission that the prosecution failure to lead evidence that the tests were indeed a “breath screening test” and “an evidential breath test” within the meaning of the Act, that is a test “carried out…in a manner prescribed in respect of that device by the Minister of Police, leaves an element of the offence is unproved.
[23] The defence is verbally logical. The law requiring that the s 59 offence contains, as an element, that the test was indeed a “breath screening test” as defined
by s 2, and that a s 56 offence contains an element that the test was indeed an “evidential breath test” as defined has not changed. That is what the learned Judge reasoned.
[24] But in considering what must be established and by whom the Act must be read and construed as a whole. The history of the legislation is also of relevance:
Judicial notice is to be taken of such facts ‘as must have been within the contemplation of the legislature when the Acts in question were passed’
Bennion Statutory Interpretation (4th ed) pp 520 ff).
We know from Gilbert at pp 636-7, as did Parliament when it enacted the 1991 amendment act, that:
…an officer…cannot obtain [an evidential breath test result] without taking the appropriate steps in the appropriate manner
[25] At first sight, as Mr Hogan submitted, s 64 has no application to the present charges. It is not expressed to remove the prosecution obligation to establish that the test was a “breath screening test” and “an evidential breath test” within the meaning of the Act, having been “carried out… in a manner prescribed in respect of that device by the Minister of Police”.
[26] But the s 77A certificate of compliance has established that the correct device was used. It is now clear from s 64(4)(a) that actual error in the result in the evidential breath test affords no defence. A wrong result from its use affords no defence. The possibility of an error in the breath test can be addressed by an election to take a blood test.
[27] Cases of bad faith may be put to one side; in this sphere as elsewhere in the law fraud unravels all. In this case a wrong result could not have occurred because a wrong device was used: the mandatory certificate, expressed to relate to the device used, was produced and not challenged. So the wrong result which s 64(4)(a) ratifies could logically have occurred in only two ways. One is that the device was faulty, notwithstanding the certificate of compliance. The other is that it was not administered in accordance with the prescription by the Minister of Police.
[28] On Mr Hogan’s argument sub-clause (a) of s 64(4) would cover: (1) cases where the device is faulty and gives a false reading;
(2)cases where the device gives a false reading because the test has been wrongly carried out but the officer in good faith asserts that the test was duly carried out;
but it would not cover:
(3) caseslike the present where there is no reason to suspect a false reading but the officer says nothing more than “the defendant completed an evidential breath test”.
On Mr Andrew’s argument the sub-clause would also cover the third case.
[29] Mr Andrew submitted that the present case falls within the decision of the Court of Appeal in Falesiva v Ministry of Transport.3 There the charge was of excess blood alcohol. The equivalent of s 64(4), in a form referring to an evidential breath test, was held to validate the preceding breath test that may have been maladministered. Cooke P reasoned (at p 279 lines 34-foot):
This means that in s 58(5) the words “the evidential breath test” are not limited to such tests carried out correctly or substantially correctly. Naturally the definition of evidential breath test in the interpretation section, s 57A, contemplates a test carried out by a duly approved evidential breath-testing device and in a manner prescribed; but, like other statutory definitions, that one is expressed to apply "unless the context otherwise requires". We think that the context of s 58(5) in the Act and the evident purpose of that subsection do require a wider interpretation there. Section 58(5) should be held to refer to evidential breath tests carried out in fact and in good faith, even though to a degree which may be considerable they fail to comply with the correct procedure.
(emphasis added)
[30] Mr Hogan submitted that Falesiva can have no application. That is because the legislation has been substantially amended. In the original form of the 1998 Act, as has been noted, s 64(4)(a) did not refer to evidential breath tests as the differently
drawn 1962 Act had done. It was an important part of the ratio of Falesiva that the context was of a blood alcohol charge and error in the preceding evidential breath test.
[31] We agree with Mr Hogan and with the observation of Simon France J in Waring v Police that the 2001 amendment of s 64(4) raises a new point which Falesiva does not directly answer.
[32] Mr Andrew for the Crown invites us simply to apply the logic of Cooke P’s judgment followed by Simon France J and to treat the definitions of “breath screening tests” and “evidential breath test” in s 2 as effectively read down so as not to constitute an element of the offence under s 56(1).
[33] That was not a difficult conclusion to reach in Falesiva where the deficiency lay in the antecedent test and not in the substantive test, failure of which constituted the actus reus.
[34] Mr Andrew argues that the difference between ss 64(4) and (5) is that the error in the former can be corrected by the election to undertake a blood test; that is not the case with the latter. So Parliament is to be taken to have retained not only the language of the former equivalent of s 64(4) but also Cooke P’s interpretation of it as requiring the same construction, so including “evidential breath tests carried out in fact and in good faith” even if they do not conform with the definition in s 2.
[35] Mr Hogan argues that an alleged evidential breath test that does not conform with the definition in s 2 is not an “evidential breath test” at all and accordingly an element of the offence is missing. The strained interpretation of the definition section which Cooke P was prepared to give against the safeguard of the original form of s 64(4) cannot survive the amendment removing that safeguard, on which the judgment was premised. That is so notwithstanding the partial safeguard afforded by the s 75A certificate.
3 Fn 2 above.
[36] There is real force in Mr Hogan’s argument. Prior to the 2001 amendment we would have been slow to reject it. Authority on the former legislation treated proof that the test was indeed an “evidential breath test” as defined as an essential element of the offence: Inglis v Ministry of Transport HC AK AP211/91 18 October
1991 Thomas J; Picot v Police HC AK AP130/96, 4 September 1996 Elias J and Burgess v Police HC WN AP169/99, 28 July 1999 Wild J. Accordingly the prosecution was required to lead evidence that the tests were conducted in accordance with the Notice. In Auckland City Council v Scale (1985) 1 CRNZ 544, at an early stage in the breath alcohol legislation, the Court of Appeal had said:
…as is well settled in High Court decisions, unless subsequently put in issue by the defence a general statement by the enforcement officer in evidence- in-chief that the tests were conducted in accordance with the Breath Tests Notice will ordinarily be sufficient evidence on which the Court may find that all the tests were carried out fully and correctly… if in the course of answering a general question as to how he carried out a particular step the enforcement officer omits an item of detail, which is not pursued by further questioning, it may nevertheless be open for the Court to draw an inference that any such unchallenged omission from the description was accepted by the defence as being inadvertent and unimportant, and to conclude that there had been proper compliance with that step. That is a risk defence counsel must face if they fail to follow up a general question with a further question drawing attention to an omission.
(pp 546-547)
…
[37] In MOT v Gilbert [1990] 3 NZLR 629 the full Court stated:
As a matter of completeness it will no doubt be appropriate for an officer to state in evidence not only that the test was carried out by him in accordance with the appropriate breath test notice, but also that he followed the instructions given to him by the Intoxilyzer, but as a matter of law there is no need that he say more than the former. We see no purpose in his being required to state more than that he used the device to obtain a breath test from the accused, put in a card, and later retrieved the card recording the evidential breath test result shown on the card he then produces. This is because, on the evidence before us, he cannot obtain such a “result” without taking the appropriate steps in the appropriate sequence.
(at pp 636-7)
[38] But we are satisfied that the 2001 amendment requires another approach, turning on a vital distinction between the legal and evidentiary burdens in the case. They are all the product of the judge-made law as to burden and standard of proof.
[39] Normally it is for the prosecution to adduce evidence to prove any element and if it fails to do so the defendant is entitled to acquittal. That is because of the fundamental common law rule as to onus of proof stated in Woolmington v DPP [1935] AC 462. In the case of substantive issues the standard of proof on the issue is beyond reasonable doubt. In the case of procedural issues, as noted in Livingston, the standard of proof is on the balance of probabilities.
[40] In some cases however the law will impose on the defence an evidentiary burden of proof in order to raise an issue for the Court’s consideration (see for example Livingston at para [13]). If the defence does so the legal burden must be discharged by the Crown. How the burdens should be imposed is a question of law which in the case of statutory liability will turn on the true construction of the legislation.
[41] We invited submissions on the question whether the maxim omnia praesumuntur rite esse acta might be relied upon by the Crown. Cross on Evidence at para 2.13 states that:
The maxim… cannot be relied upon to prove the existence of facts central to an offence (R v Willis (1872) 12 Cox CC 164; Scott v Baker [1969] 1 QB
659; Dillon v R [1980] 2 AC 484 (PC))…
The presumption cannot be invoked to support the conclusion that a breathalyser was approved by the Minister in accordance with statutory requirements merely because an instrument of that type was issued to the police: Scott v Baker; R v Martin [1967] 2 NSWR 323; strict approval is required: Charlesworth v Police [1970] NZLR 174.
[42] But as Lord Steyn observed in R v Home Secretary, ex p Pierson [1998] AC
539 at p 589 “Ultimately, common law and statute law coalesce in one legal system.” It is now settled in New Zealand as in the USA and England that the common law develops by analogy with policy expressed in legislation.4 When the Court is called upon to construe the law it may by the conventional course of construction develop the common law by analogy with Parliament’s expressed purpose. In determining the
4 Burrows Statute Law in New Zealand (3rd ed) 369-374. The leading judgments are listed by Cooke P in South Pacific Manufacturing Co Ltd v New Zealand Security Consultants and Investigations Ltd [1992] 2 NZLR 282 at 298. For academic discussion see Landis, “Statutes and Sources of Law” in Harvard Legal Essays (1934) 213 and Traynor, “Statutes Revolving in Common Law Orbits” (1968)
17 Catholic U. L. Rev. 401, 425.
incidence of proof under what is judge-made law the Court must adopt an approach to construction that is consistent with the legislative policy.
[43] We accept the first step in Mr Hogan’s submission as to s 64(4). The point here is not that there was error in the result of the test (to which the subsection would apply); it is the logically prior point that the tests have not been shown to be performed in the prescribed manner so as to be a “breath screening test” and an “evidential breath test” within the meaning of ss 59(1)(a) and s 56(1). That issue arose because the prosecution did not lead evidence to establish that the test was properly administered and which is not protected by s 64.
[44] But such argument requires a legislative policy that there is no defence where the substantive result of the test is proved to be inaccurate yet, there is where the procedures are not affirmatively shown to have been correctly performed, even though the correct device was used and judicial notice can be taken (since Gilbert) that the device is fail safe; the device does not permit any result. There is no result if the test has been performed improperly.
[45] The respondent’s argument would require us to swallow the substantive camel and strain at the procedural gnat.
[46] While Parliament has in terms granted the prosecution immunity only from errors in result, not of procedure, the point is that by the amendment to s 64(4)(a) Parliament has altered the law of New Zealand. Since Roman times it has been a settled principle of law that a policy to permit the greater includes by necessary implication the lesser: Brooms Legal Maxims (10th ed) 110. It would be a strange result that would see an acquittal for procedural error where there must be conviction despite substantive error.
[47] The prosecution evidence is that the respondent “completed an evidential breath test”. We are satisfied that application of the omnia praesumuntur maxim on the present facts, to cast an evidential burden on the defence to raise an issue whether there was material error, would achieve a just result conforming with express Parliamentary policy.
[48] We have concluded that an evidentiary burden rests on the defence to raise in the course of the Crown case whether the device used, its character established by the certificate, was in fact used in the prescribed manner. If such challenge is made and the Crown cannot prove the existence of the “breath screening test” and the “evidential breath test” required by ss 59(1)(a) and 56(1) the charges must be dismissed. In this case however the issue was not raised until the Crown and prosecution case had closed. That was too late.
[49] The result is in conformity with the fundamental principle of New Zealand law that it deliver ultimate justice. Parliament has provided a careful and constitutionally appropriate regime that both provides for efficiency in operating breath and blood tests but also provides protection against miscarriage of justice. As with blood alcohol charges so with charges, of excess breath alcohol it has ensured that the ultimate safeguard of scientific testing of a suspect’s blood sample is preserved.
Decision
[50] It follows that the appeal must be allowed and the case remitted to the
District Court to enter a conviction on both charges and to impose sentence.
Envoi
[51] We add that this is yet another example of the inconvenience of the case stated procedure. Had the case been more complete there would no doubt have been reference to the to the EBA breath test check-list which had been produced and to the constable’s evidence:
Can you confirm please that is an EBA breath check-list procedure you underwent on the night in question?
It is.
[52] Had that occurred the inclusion of such evidence might well have satisfied a conventional balance of proof onus and have avoided the need for the elaborate argument on which our decision turns.
[53] We respectfully draw the attention of the authorities to the simple alternative of providing for an appeal on a question of law. That course, which operates satisfactorily in the analogous sphere of judicial review, may be considered simpler
and more efficient.
W D Baragwanath J
P R Heath J
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