Police v Carr HC Gisborne CRI-2011-416-000006
[2011] NZHC 862
•21 June 2011
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2011-416-000006
IN THE MATTER OF AN APPEAL FROM A DETERMINATION OF THE DISTRICT COURT AT GISBORNE
BETWEEN NEW ZEALAND POLICE Appellant
ANDROSS LUKIS CARR Respondent
Hearing: 7 June 2011
Counsel: C R Walker for the Appellant
J Mathieson for the Respondent
Judgment: 21 June 2011 at 3:30 PM
JUDGMENT OF POTTER J
In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment with a delivery time of 3.30 p.m. on 21 June 2011.
Solicitors: Crown Solicitor, P O Box 609, Napier 4140
Rishworth Wall & Mathieson, P O Box 55, Gisborne 4040
NEW ZEALAND POLICE V CARR HC GIS CRI-2011-416-000006 21 June 2011
Introduction
[1] This is a prosecution appeal by way of case stated under s 107(3) of the Summary Proceedings Act 1957 from a judgment of Judge Spear in the District Court at Gisborne on 7 September 2010.
[2] Judge Spear dismissed an information which alleged that the respondent Ross Lukis Carr on 6 December 2009 at Gisborne drove a motor vehicle on a road namely Rutene Road while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath in that it was 959 micrograms of alcohol per litre of breath. The Judge ruled evidence of the breath screening test inadmissible because no roadside breath screening test had been conducted. He rejected the prosecution argument that a breath screening device was not readily available under s 69(1)(d) of the Land Transport Act 1998.
[3] Judge Spear stated the following questions for the opinion of this Court:
(1)Does “readily available” for the purposes of s 69(1)(d) of the Land Transport Act 1998 mean readily available to the officer requiring the device?
(2)If the answer to question (a) is yes, was I correct in law to find that a breath screening device was readily available, when in order to have actually made it available to Constable Lexmond, it would have required another officer to deviate from and suspend, the lawful duty that he was currently undertaking?
Section 69(1)(d) of the Land Transport Act 1998
[4] This section provides:
69 Who must undergo evidential breath test
(1) An enforcement officer may require a person to accompany an enforcement officer to a place where it is likely that the person can
undergo an evidential breath test or a blood test (or both) when required to do so by the officer, if –
. . .
(d) The person could be required to undergo a breath screening test without delay under section 68 but cannot be tested because either a breath screening device is not readily available or for any reason a breath screening test cannot then be carried out, and there is good cause to suspect that the person has consumed drink.
Relevant facts
[5] I take the facts recorded in the case stated as correct.1 Those facts are as follows:
On6 December 2009 the fact of a car crashing into a bridge on Rutene Road in Gisborne at approximately 3 a.m. was reported to the police. Constable
Lexmond, a dog handler, arrived just after 3 a.m.
Constable Lexmond found a Ford Falcon motor vehicle on the side of the road with damage to the left hand front of the car and with a flat tyre. The
respondent was sitting nearby.
Constable Lexmond ascertained that the respondent appeared to be affected by alcohol. The respondent denied being the driver at the time of the accident but conceded that he had driven the motor vehicle off a nearby
bridge to the position in which it was found by Constable Lexmond.
Constable Lexmond radioed for another police officer to deal with the respondent. The evidence was that it is the role of a police dog handler to respond to urgent incidents and so the practice was for police dog handlers, when they came upon a person suspected of having driven with an excess alcohol level, to call for another police officer to undertake the drink driving
procedure. This practice permits the police dog handler to be available to
1 Police v Patterson HC Whangarei AP13/97, 15 October 1998.
leave to attend to any urgent matters such as burglary, robbery or the like.
(The Judge said he took no issue with this practice).
Noone was available to deal with the respondent and Constable Lexmond was left on the roadside but without the ability to conduct a breath screening test as he did not have the necessary device in his Police vehicle. He was approximately 700 metres (as the crow flies) from the Gisborne Police
Station or approximately one minute’s drive.
Constable Lexmond again used his police radio to request that another police officer bring a breath screening device to his location. He was advised that no other police officer was available to assist him as there had been a major gang related disturbance on Childers Road involving, possibly, between 50 to
100 people.
Having waited between 10 and up to 15 minutes for a breath screening device Constable Lexmond required the respondent to accompany him to the Gisborne police station to undertake an evidential breath test or blood test or
both.
Sergeant Lister was the officer-in-charge of the night shift on 6 December
2009 in Gisborne City. Sergeant Lister stated in evidence that at the time there were only three cars on duty in the city. Sergeant Lister himself was at the relevant time in Peel Street, in the central business area, dealing with a suspected intoxicated driver. The “I” car (the other car on duty) was in attendance with Sergeant Lister. The third vehicle was that driven by Constable Lexmond. There was also one other officer on duty who was
stationed in the watchhouse at the police station.
The“I” car left to attend to the disturbance in Childers Road. That left Constable Lexmond to deal with the respondent and Sergeant Lister dealing with the suspected intoxicated driver who was with him.
District Court judgment
[6] Judge Spear accepted there may be occasions when a police officer may find himself without a breath screening device and when it is not reasonably practicable for one to be brought, justifying s 69(1)(d) of the Land Transport Act being invoked and a person being required to accompany the officer to the police station.
[7] The Judge held that this was not one of those occasions. He concluded that it would have been a simple matter for Sergeant Lister to have deviated from his path back to the police station, with the driver he was dealing with in his custody, to drop off one of the spare breath screening devices he had in his car to Constable Lexmond. He therefore concluded that the failure to conduct a breath screening test could not be dismissed on the basis that no breath screening device was readily available to Constable Lexmond.
Question 1
[8] Counsel were agreed that “readily available” must mean that the device is readily available to the officer requiring the device to carry out the roadside breath screening test. I concur. It is the enforcement officer who must decide whether s 69(1)(d) applies to provide sufficient and proper grounds to require a person to accompany an enforcement officer. The only reasonable and practical interpretation of “readily available” in s 69(1)(d) is that the device is readily available to the enforcement officer who is required to carry out the breath screening test.
[9] The Court of Appeal in R v Mangos defined “readily” as meaning “without difficulty, with ease or facility”.2 The Court said that all the circumstances must be taken into account in determining whether a device was readily available, and the time that would be required to obtain a device, although an important factor, is not the only one. In the circumstances of that case, the reasonableness of the belief of the constable at the roadside, that it would be better not to absent himself from the
scene for four or five minutes to obtain a device, was held to be reasonable and
2 R v Mangos [1981] 1 NZLR 96 (CA) at 88.
relevant.3 Thus in Mangos it was the reasonableness of the constable’s belief as to
whether a device was readily available that was held to be determinative.
[10] I note that in a number of the authorities to which I subsequently refer, in determining whether a device was readily available, the issue has been addressed from the perspective of the enforcement officer carrying out the breath screening device.
Question 2
[11] The following cases are relevant:
In Taylor v Police,4 the police officer directed to attend to an erratic driver (who had made it home) did not have any breath screening devices in his vehicle as he had been on patrol rather than coming from the station. The officer “had direct knowledge” that there were no available patrol units in the vicinity, and considered it inappropriate to travel to fetch a device because it would have taken 10 minutes and the appellant would likely have absconded or hidden in that time.5 The Court considered that “a common sense and practical approach” had to be taken by the police officer in the situation that confronted him.6 The device was not “readily available” in that situation because the respondent would have departed and absconded if left alone, and a delay of 10 minutes would have compromised the proper execution of his
duties.
In Beagle v Police,7 a police sergeant on foot patrol suspected a driver was intoxicated. There were only two other officers and a watchhouse keeper on duty (answerable to him), and although the device could have been delivered within two to five minutes, the officers were involved with witnesses and
complainants on an unrelated matter and would have been required to
3 At 88.
4 Taylor v Police HC Napier AP3/2002, 1 March 2002 per Gendall J.
5 At [9] and [12].
6 At [13].
7 Beagle v Police HC Timaru AP13/97, 29 July 1997 per Hansen J.
suspend their interview. The Court considered that it would have been “quite wrong” to require the officers to abandon their lawful duties, and that the sergeant’s actions was an “inevitable response” to the circumstances he
faced. The finding that the device was not readily available was upheld.
In Lyndsay v Police,8 two police officers were about 100 yards away from their vehicle and did not have a device on them. The appellant was behaving strangely and the officers decided it was unsafe to leave him with just one officer in order to retrieve the device from the vehicle. Again, Gendall J said that “a common sense and practical approach had to be taken by the Police officers in the situation that confronted them”. His Honour was satisfied that the officers were justified in requiring the respondent to accompany them. (There was no suggestion that they should have requested that a device be brought to them, or consideration of whether it was possible and practical to
do so.)
Two older cases, Grant v Auckland City Council9 and Bell v Ministry of Transport,10 were cited with approval in Mangos. Those cases establish that whether a device was “readily available” involves a consideration of whether
a device could have been delivered to the scene. In Grant it was held that, as the appellant had been stopped near to the council administration building, a
device was handy and could have been obtained.
Recently, in Birchler v Police,11 although the appeal was not advanced on this basis, the Supreme Court implicitly confirmed the District Court finding that a device was “readily available” when the officer had accepted in evidence that she could have radioed to have a device brought to the scene from the
Wellington Central Police Station, which was only a short distance away.
[12] In this case there is no suggestion that Constable Lexmond acted other than in
good faith. The focus is on the reasonableness of having a device delivered to the
8 Lyndsay v Police HC Wellington AP251/96, 12 March 1997 per Gendall J.
9 Grant v Auckland City Council SC Auckland M640/77, 13 December 1977 per Vautier J.
10 Bell v Ministry of Transport SC Auckland M371/77, 10 May 1977 per Richardson J.
11 Birchler v Police [2010] NZSC 109.
scene in circumstances that would have required another officer to deviate from his lawful duty.
[13] The factual situation in Beagle is the most closely analogous. In that case Gendall J considered it “quite wrong” for other officers to be required to abandon their lawful duties. The appellant seeks to apply this reasoning in the present case. The respondent seeks to distinguish Beagle on the basis that Sergeant Lister would not have had to “abandon” his duties but only to deviate in a minor way (the Sergeant having conceded in evidence that to deliver a breath screening device to Constable Lexmond in Rutene Road would have taken him only one or two minutes by way of a slight deviation from his route back to the police station with the suspect for whom he was responsible).
[14] However, this assessment was made by Sergeant Lister in hindsight. There is no evidence to suggest that he made any such assessment at the critical time, nor that Constable Lexmond had any knowledge that such an option might have been available.
[15] The circumstances as far as they were known to Constable Lexmond were these:
(a) He did not have a breath screening device with him when he attended
the respondent’s car in Rutene Road.
(b)He radioed for another officer to deal with the respondent. He was advised that no-one was available.
(c) He radioed again. He was advised that no-one was available. He was told about a major gang related disturbance in Childers Road involving possibly 50 to 100 people and that no other police officer was available to assist him.
(d)He waited between 10 and 15 minutes for a breath screening device and when none arrived, he required the respondent to accompany him
to the Gisborne police station to undertaken an evidential breath test or blood test or both.
(e) He could not have left the respondent alone while he returned to the police station to retrieve a breath screening device and run the risk that the respondent would have absconded.
[16] Constable Lexmond had exhausted all options reasonably available to him for getting a device delivered to the scene of the incident in Rutene Road. He did not know, and could not reasonably be expected to know, that Sergeant Lister could have delivered a device to him. He was essentially in the same situation as the officer in Taylor in that, having made inquiry, he had “direct knowledge” that no patrol units were available to bring him the device. Thus, a device was not “readily available” to him. A “common-sense and practical approach” meant that his only option in the circumstances was to require the respondent to accompany him to the police station.
[17] I reject the submission of counsel for the respondent that “the answer to question two can be found in the subjective view of Sergeant Lister that to deliver the breath screening device to Constable Lexmond would be a trivial matter, involving only a slight deviation for one or two minutes”. As I have said, there is no evidence to suggest that Sergeant Lister made any such assessment at that time or that he even knew of the requirement for a device to be delivered to Constable Lexmond. Further, Constable Lexmond had no knowledge of Sergeant Lister’s situation, so this was not information that could have informed the decision Constable Lexmond had to make about whether a device could be readily available to him. The scenario relied on by counsel was not the factual situation at the relevant time, as recorded in the case stated.
Conclusion
[18] The answers to the two case stated questions are:
(1)“Readily available” for the purposes of s 69(1)(d) of the Land Transport Act 1998 means readily available to the officer requiring the device.
(2)Judge Spear was not correct in law to find that a breath screening device was readily available to Constable Lexmond when in order to have actually made it available another officer would have been required to deviate from the lawful duty he was then currently undertaking.
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