Police v C HC Auckland CRI-2006-404-034
[2006] NZHC 497
•12 May 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2006-404-034
BETWEEN NEW ZEALAND POLICE Appellant
AND C
Respondent
Hearing: 12 May 2006
Appearances: Alysha McClintock for Appellant
Mark Ryan for Respondent
Judgment: 12 May 2006
JUDGMENT OF HARRISON J
SOLICITORS
Meredith Connell (Auckland) for Appellant
Haigh Lyon (Auckland) for Respondent
POLICE V C HC AK CRI-2006-404-034 12 May 2006
Introduction
[1] On 13 October 2005 in the District Court at Manukau, Judge Patrick Mahony dismissed a charge laid by the New Zealand Police against Mr C of driving with excess blood alcohol (s 56(2) Land Transport Act 1998).
[2] The Crown now appeals the District Court’s decision by way of case stated. The question of law certified by the Judge for determination today is:
Was I correct to hold that, in a prosecution of excess blood alcohol pursuant to s 56(2) of the Land Transport Act 1998, the case of Richard Brown v New Zealand Police (High Court Hamilton CRI 419-87-04 22 October 2004) applies, and accordingly, it is necessary to produce admissible evidence of the identity or serial number of the evidential breath test device used that is independent of the printout produced by the device which records the devices serial number.
Background
[3] The relevant and unchallenged evidence led by the police at Mr C ’s hearing is summarised in the case stated as follows:
(a) In the early morning of 10 September 2004 [Mr C ] was stopped on Botany Road, Pakuranga, by Constable Dean Stephen Trott for speeding.
(b) Constable Trott required [Mr C ] to undergo a breath screening test carried out with an approved breath screening device and in accordance with the Transport (Breath Tests) Notice (No.2) 1989 (‘the breath screening test’).
(c) The breath screening test produced a ‘fail general’ result. [Mr C ] was shown that result and Constable Trott required [Mr C ] to accompany him to the Howick Police Station for an evidential blood test/breath test or both.
(d) [Mr C ] was subsequently required to undergo an evidential breath test using a Seres Ethylometre, an approved evidential breath testing device pursuant to the Transport (Breath Tests) Notice (No.2)
1989 (‘the evidential breath test’).
(e) The evidential breath test provided a positive result of 544 micrograms of alcohol per litre of breath.
(f) Constable Trott addressed the New Zealand Bill of Rights Act 1990 throughout the testing procedures.
(g) Within the 10 minute period following the advice of the positive evidential breath test result, [Mr C ] requested that a blood sample be taken. That was done, producing a reading of 140 milligrams of alcohol per 100 millilitres of blood.
(h) All proper procedures were carried out in relation to the taking of the blood sample and the blood test result was not challenged at the hearing.
[4] The printout from the evidential breath test device used was produced at the hearing. Constable Trott relied on the printout in order to provide the serial number of the evidential breath test device he used. He had not written the serial number of the device he used down in his checklist or anywhere else. The serial number contained on the printout is 2386. Constable Trott produced a Certificate of Compliance for a Seres Ethylometre with the serial number 2386 in evidence.
[5] The ratio for the Judge’s decision is as follows:
[5] However, if Brown’s case applies to a case of prosecution for excess breath alcohol it must equally apply to a case where a defendant goes on to elect to have a blood sample taken and that charge is proved for the reason that the outcome of the breath testing procedure is a necessary step to establish a basis for an election to be given and a blood sample taken. Although the breath test outcome is inadmissible as evidence of an offence, once there is an election to have blood taken it nevertheless is a necessary step and it seems to me that the same reasoning must apply in cases involving excess blood alcohol as applies to a prosecution based on excess alcohol in the breath.
Statutory Provisions
[6] In my respectful view the starting point for determining the appeal lies in the relevant provisions of the Land Transport Act.
[7] The substantive offence is defined as follows (s 56(2)):
A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.
[8] The Act provides for defences in both inclusive and exclusionary terms. Of particular relevance are these provisions (s 64):
(4) It is no defence to a charge [of driving with excess blood alcohol]:
(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.
[9] A series of provisions then follow under the heading Enforcement Procedures for Offences Involving Intoxication. The authority for an enforcement officer to require designated persons to undergo breath screening and evidential breath tests is express (s 68, 69 and 70). However, the statute provides the person with a right of election in these relevant terms (s 70A):
(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. [Emphasis added]
[10] At this point I record that both the breath screening and evidential breath tests appeared positive. Mr C then elected to exercise his right to have a blood test. Accordingly he was bound to permit a registered medical practitioner to take a blood specimen (s 72(1)(b) and (2)). The Act sets out procedures for dealing with blood specimens (s 74).
[11] The Evidential Provisions then follow. Materially a certificate given by a medical practitioner is sufficient evidence in blood alcohol proceedings, in the absence of proof to the contrary, of the matters stated in it (s 75(1)). Again the accuracy or validity of this certificate was not in dispute at the hearing. The Act provides also for production of certificates of compliance for evidential breath testing devices (s 75A(1)). Self-evidently, they are required in prosecutions for driving with excess breath alcohol.
Decision
[12] In my judgment this appeal can be determined on settled principles of statutory interpretation without resorting to authority. However, as I shall explain, the relevant cases which have subjected these provisions to careful analysis are decisive in the appellant’s favour.
[13] Mr Mark Ryan does not dispute the admissibility of the certificate of Mr C ’s blood sample which produced a reading of 140 milligrams per 100 millilitres of blood. Without a challenge the certificate must be conclusive evidence of the commission of an offence. Indeed, the section provides that a person commits an offence when driving a vehicle with a certain proportion of alcohol in his or her blood “as ascertained from an analysis of a blood specimen”. That is all the prosecution must prove to establish the charge, subject of course to evidence of formal compliance with the statutory or procedural preconditions, as Mr Ryan called them, culminating in an apparently positive result from the evidential breath test.
[14] If reinforcement is necessary for this view, it is found in the express exclusion of a defence relating to errors in breath screening or evidential breath tests (s 64(5)). The best result which Mr Ryan could have hoped to achieve by his challenge to the admissibility of the printout was to establish some defect in the reading produced by the evidential breath testing device. But that would not have provided a defence to the charge.
[15] The words of the statute plainly exempt the Crown from an obligation to prove beyond reasonable doubt any facts or matters not forming part or an element of the offence. With respect, these provisions are consistent with basic principles of criminal law. There is no duty in this context to establish the admissibility of evidence of breath results from steps taken in the process leading to provision of a blood sample.
[16] The right to elect a blood test arises if “the result of the person’s evidential breath test appears to be positive”. The officer does not have to prove affirmatively
to the person at this stage the veracity of the results of the breath test. I record Mr Ryan’s concession that Constable Trott had satisfied this statutory threshold. It follows that it was unnecessary for the Crown to prove the same thing at trial. And, if the driver makes an election and the blood test establishes a positive result, the police are entitled to charge the person with the discrete offence of driving with excess blood alcohol, superseding any need to rely on the results of breath tests.
[17] What might then justify the Judge’s conclusion that the prosecution must produce admissible evidence of the identity or serial number of the evidential breath test device used that is independent of the printout produced by the device which records the device’s serial number?
[18] The Judge considered that he was bound by the decision of Priestley and
Winkelmann JJ in Brown v New Zealand Police (Hamilton Registry CRI 419-87-04
22 October 2004). Mr Ryan confirms this morning that it was the only case cited in argument in the District Court. Brown stands as authority for the proposition expressed by the Judge but in the entirely different context of a prosecution for excess breath alcohol (s 56(1)). The decision was binding on him and he was bound to follow it if it applied. But plainly it did not apply.
[19] The whole focus of the challenge on appeal in Brown was directed towards the admissibility of the certificate of compliance for evidential breath testing devices. Self-evidently, that is because at a defended hearing “for an offence involving excess breath alcohol” the prosecution must produce a certified copy of the certificate of compliance (s 75A(2)). There is no such evidential requirement in a blood alcohol prosecution. The reason is, with respect, obvious; the s 75A certificate of compliance produces the same conclusive evidential foundation for a breath alcohol charge as does the s 75 certificate for a blood alcohol charge.
[20] Two authorities are decisive in favour of this appeal. Mr Ryan did not cite either in the District Court. First, I refer to the decision of the Court of Appeal in Falesiva v Ministry of Transport [1987] 1 NZLR 275 (CA). In Falesiva the appellant was charged with the then equivalent offence of the current statutory offence of driving with excess blood alcohol. He was stopped while driving. His
evidential breath test was positive. Like Mr C , he elected to have a blood test. It was conclusive evidence that he was driving with an excess blood alcohol level.
[21] The District Court Judge recorded his reservations about the reliability of the breath test. He was satisfied there was a real possibility that they provided an inaccurate reading for two distinct reasons. Nevertheless the Court of Appeal dismissed the driver’s challenge. I need only cite these passages from the joint judgment of Cooke P and Hillyer J at 279:
Mr Hogan for the appellants contends that s 58(5) does not apply unless there has been a valid evidential breath test. That view would leave the subsection with little scope. It would be confined to cases where, although the evidential breath test has been carried out with strict or reasonable compliance with the requirements of the 1978 Notice, the result contains or may contain an error. Parliament is unlikely to have troubled to enact s 58(5) merely to deal with that situation. It is a situation which one would expect to be rare, because if the evidential test has been carried out strictly or with reasonably compliance the result is likely to be correct. Moreover even an error or possible error in the result would not then affect the validity of a subsequent blood test, because if the evidential breath test has been validly conducted a positive or intermediate result will justify a blood test under the Act even if that result happens to be erroneous. It is difficult to believe that this caused any concern to Parliament.
…
In our opinion s 58(5) should be held to apply to errors or possible errors in the result of preceding evidential breath tests, howsoever occurring. The cause of the error or possible error is immaterial. For example the officer may have made a mistake in endeavouring to follow the steps in the Notice or may even have inadvertently omitted a step. Or the device may have malfunctioned. These examples are not meant to be exhaustive. The legislature has evidently acted on the view that a blood test, taken by a registered medical practitioner with the result scientifically analysed, is the motorist's ultimate protection and a reliable basis for a conviction. If the procedure has reached that stage it does not matter that there may have been some defect in the earlier administration of the evidential breath test possibly vitiating the result of that test. One has to bear in mind also that from the outset there has been the added safeguard of a breath-screening test.
[Emphasis added]
[22] Second, I refer to the decision of Cooper J in Police v Norman (Tauranga Registry CRI 2004-407-0047 23 March 2005). I am satisfied that it is indistinguishable and directly contrary to the District Court’s decision.
[23] In Norman the police also appealed by way of case stated. The respondent had been charged with driving with excess blood alcohol. The District Court Judge dismissed the prosecution. His principal ground was a failure to produce the certificate of compliance for the evidential breath testing device. The question formulated by the Judge on appeal was as follows:
Was I correct in holding:
(a) That in a prosecution for excess blood alcohol pursuant to s 56(2), Land Transport Act 1998, it was necessary for the prosecution to produce a certificate of compliance in terms of s 75A(2) of the Land Transport Act 1998 for the evidential breath testing device which recorded the respondent’s breath alcohol level prior to her electing to undergo a blood test pursuant to s 72(1)(b), Land Transport Act
1998.
[24] In argument this morning Mr Ryan has emphasised only one point of subtle distinction between Norman’s case and this. He accepts that the police produced a s 75A certificate of compliance but says there is no evidence that the device was approved. With respect, that is a distinction without a difference. The principle at issue remains the same; namely, whether or not the police must prove the elements of a breath alcohol offence when prosecuting a blood alcohol charge.
[25] Cooper J delivered a comprehensive decision in Norman allowing the appeal. I respectfully agree with and adopt his reasoning which he has expressed with clarity and eloquence. In particular, I assent to these statements of statutory construction, which confirm in more detail the conclusions I have earlier reached:
[26] As has been seen, the Act provides separately for offences committed by driving with excess breath alcohol, and offences committed by driving with excess blood alcohol. The former arise under s 56(1) and, in the case of a person younger than 20 years, under s 57(1). The latter are provided for in s 56(2), and again in the case of a person younger than
20 years, by s 57(2). Given the clear distinction that is made between the
two kinds of offence, it is in my view inherently unlikely that when Parliament employed the phrase, “an offence involving excess breath alcohol” it was intending to incorporate offences against both ss 56(1) and
57(1) on the one hand and offences against s 56(2) and 57(2) as well.
[27] In approaching s 75A(2) the immediate question that arises is what the trial or defended hearing is about. The answer to that, is that it is about an offence involving excess breath alcohol recorded by the device. Plainly, where the charge is laid under s 56(2) the defended hearing is not about an offence involving excess breath alcohol; it is about an offence involving
excess blood alcohol. There is merit, I think, in Mr Hollister-Jones’ emphasis on the word “offence”, and in his criticism of the respondent’s argument for not taking that word into account. I think it is clear from the use of the word in context that it requires consideration of the elements of the offence, as Mr Hollister-Jones argued.
…
[32] The certificate of compliance does not play any part in the actual procedures which are required to be followed in carrying out the evidential breath test, or when the enforcement officer reaches his or her conclusion that the test appears to be positive. The certificate’s role is confined to circumstances where subsequently, it is sought to rely on the result of the evidential breath test…
[34] … I agree with [counsel] that, if error of result cannot, by virtue of s 64(5) be a defence on such a charge, there seems no reason why s 75A(2) should be applied to require the production of the certificate when the result of the test is not a matter which the prosecution needs to prove under s 56(2). Again, while Mr Mabey is undoubtedly correct in his submission that the purpose of s 77(3) was to prevent concurrent prosecutions for excess breath alcohol and excess blood alcohol, nevertheless it forms part of what I think are a consistent set of provisions tending against the interpretation of s 75A(2) which found favour with the learned District Court Judge.
Conclusion
[26] Accordingly, I allow the appeal. I find that the Judge erred in law in dismissing the charge. I remit the case to the District Court at Manukau for the purposes of entering a conviction against and sentencing Mr C .
[27] I wish to express my appreciation to Ms McClintock for the comprehensive nature of her written synopsis. It was not necessary for me to call on her in oral argument, in part because of the compelling nature of her submissions. I have not discussed, because I am satisfied it is irrelevant, the first issue she raised about whether or not there was evidence produced to establish the requisite link in the evidential breath test prosecution cases. I also compliment Mr Ryan on his oral submissions in the face of what appeared to be powerful statutory and case law authority to the contrary.
[28] The appellant is entitled to costs which I fix in the sum of $500 together with
disbursements.
Rhys Harrison J
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