Police v D HC Wellington CRI 2005-435-7
[2005] NZHC 136
•21 October 2005
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2005-435-7
NEW ZEALAND POLICE
Appellant
v
D
Respondent
Hearing: 18 October 2005
Counsel: Mr N P Chisnall for appellant
Mr P Stevens for respondent
Judgment: 21 October 2005 at 10.15 am
JUDGMENT OF LANG J
Solicitors:
Crown Solicitor, PO Box 10-357, Wellington
Mr P Stevens, P O Box 516, Masterton
POLICE V D HC WN CRI 2005-435-7 21 October 2005
[1] This is an appeal by way of case stated. The informant appeals against a decision of Judge Thomas in the District Court at Masterton dismissing an information alleging that on 9 October 2004 the respondent, Mr D , drove a motor vehicle whilst the proportion of alcohol in his breath exceeded the legal limit.
[2] Two issues arise for determination. The first is whether Mr D was given the required ten minute period to request a blood test after having provided a positive evidential breath test. If he was not, the second issue is whether the Judge took into account s 64(2) of the Land Transport Act 1998. Section 64(2) provides that it is no defence that the procedural requirements of the Act have not been strictly complied with so long as there has been reasonable compliance with those requirements.
Factual background
[3] The facts, as found by the Judge and recorded in paragraph 4.1 of the case stated, are as follows:
4.1.1On 9 October 05 the Defendant was observed by Police to be driving a motor vehicle on a road, West Street, in Greytown. Police stopped the Defendant using red and blue flashing lights and the Defendant was requested to undergo a Breath Screening Test (Breath Tests) Notice (No. 2) 1989, rendering a “Fail General” result.
4.1.2The Defendant was required to accompany the Police Officer back to the alcohol bus at the Greytown Police Station and was given oral advice of rights arising under the New Zealand Bill of Rights Act
1990 at the roadside. He agreed to accompany and at the bus was given written advice under the New Zealand Bill of Rights Act
1990, which was also read to him. The Defendant underwent an
Evidential Breath Test in accordance with the 1989 Notice that returned a positive result of 865 micrograms of alcohol per litre of breath. The device used was supported by a certificate of compliance.
4.1.3The Defendant was told of the result and re-advised of his rights under the New Zealand Bill of Rights Act 1990. He was read the Advice of Positive Evidential Breath Test form. The 10 minute period started at 7:37pm and finished at 7:48pm. The Defendant did not request a blood test.
4.1.4For the time referred to, the Defendant was sitting on a seat next to the evidential breath-testing machine directly inside the front door of the bus. The Defendant asked whether he should go for a blood test and was advised he could seek legal advice. The Defendant had a
conversation with the arresting officer about his friends coming from Australia and how the mandatory driving suspension would affect him. He asked if the reading he had just received from the Evidential Breath Test could be reduced as he had friends coming from Australia and did not wish to have a suspended driver licence while they were in New Zealand. On being told it could not be, the Defendant apologised lest his request be thought improper. Another Police Officer in the bus made a comment about a work licence and a sliding door inside the vehicle was opened on at least two occasions during the “10 minute” period. The conversations were slightly spread out beyond two minutes of the period.
4.1.5During the “10 minute” period, in all likelihood there was at least one other person in the bus undergoing a test, and that person had to walk past the Defendant. There were at least two other Police Officers in the bus.
The decision in the District Court
[4] Again, I am bound by the case stated, which records the determination of the learned District Court Judge’s determination in the following terms:
4.2.1The purpose of the 10 minute period is to enable the suspect to have adequate time, without undue pressure, within which to make up his or her mind about a blood test. The period is to elapse without undue interruption and whether there is undue interruption is a question of fact and degree. (Butterworth v Police 28 September
2000, High Court, Auckland, 23TCL 46/9).
4.2.2The circumstances of the alcohol bus and the way in which it is set out, with another person having to walk past the Defendant and with sliding doors, was not sufficient to constitute an undue interruption of the 10 minute period required by section 77(3)(a) of the Land Transport Act 1998.
4.2.3The conversations referred to in paragraph 4.1.4 exacerbated the factors referred to in paragraph 4.2.2 so that I was unable to find the Defendant had a period of 10 minutes without undue interruption.
4.2.4As the requisite procedures had not been followed, I dismissed the charge.
The questions posed by the case stated
[5] The case stated poses the following questions for the opinion of this Court:
4.3.1Whether I was correct to hold that these discussions among the defendant and enforcement officers could materially contribute to an
undue interruption of the 10 minute period referred to in section
77(3) of the Land Transport Act; and
4.3.2Whether I was correct not to apply the reasonable compliance provisions in section 64(2) of the Land Transport Act (as amended in 2001) in this case.
[6] I interpret the first question to be asking whether the learned District Court Judge was correct to conclude that the discussions between Mr D and the police officers, coupled with the other circumstances revealed by the evidence, meant that Mr D was not given the benefit of an uninterrupted ten minute period within which to decide to request that a blood sample be taken.
1. Was Mr D given an uninterrupted ten minute period in which to decide whether or not to request that a blood sample be taken?
[7] The right of a suspect to elect to request a blood test after the return of a positive evidential breath test arises as a result of s 70A(1) of the Land Transport Act
1998, which was inserted in the legislation in 2001. It provides:
(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.
[8] Section 77(1) and (2) of the Act create conclusive presumptions regarding the result of an evidential breath test or blood test so long as specific information, prescribed by s 77(3), has been conveyed to the suspect. The relevant portions of s
77 provide:
(1) For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant’s breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant’s breath indicated by the test.
…
(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 section 72(2).
[9] The purpose of the 10 minute period referred to in ss70A and 77(3)(a) (and their predecessors) is to enable the suspect to have adequate time, without undue pressure, within which to decide whether or not to request a blood test: Lawrence v MOT [1982] 1 NZLR 219. Although there is no express statutory requirement to this effect, the Courts have held that the 10 minute period is to elapse without undue interruption: Wren v Police (1989) 4 CRNZ 421 and the cases referred to at pp 423-
424. Whether there has been undue interruption will be a question of fact and degree: Butterworth v Police (2000) 18 CRNZ 122.
[10] In the present case the learned District Court Judge did not consider that the somewhat unsatisfactory conditions in the police bus were such that they amounted to an undue interruption of the ten minute period afforded to Mr D . However, she considered that they were exacerbated by the conversations that occurred between Mr D and the police officers in the bus. The combined effect of the two factors was, in the Judge’s opinion, sufficient to amount to an undue
interruption, thereby rendering the result of the evidential breath test inadmissible against Mr D .
[11] As is evident from the case stated, the only authority referred to by the learned District Court Judge in relation to this issue was the decision of Randerson J in Butterworth. Although the facts of that case have some similarity to those in the present case, they only provide limited support for the conclusion reached by the Judge.
[12] The testing procedures in the Butterworth case were also carried out in a police bus. Immediately after the 10-minute period commenced, the defendant made himself a cup of coffee using facilities provided at the roadside checkpoint. He then spoke to some people who had gathered near the bus. This conversation lasted a couple of minutes and involved some small talk.
[13] The defendant was then approached by a friend and he discussed his options with that friend. This occupied a further two or three minutes. Thereafter the defendant was directed by a Constable to sit on a nearby fence, and he did so whilst the Constable sat at a near table attending to some paperwork.
[14] At one point the Police Officer left to fetch a camera which he used to photograph the defendant. The defendant then sought advice from the Constable, before the 10 minute period expired, whether, if he elected not to give a blood specimen, the evidential breath test would (in his words) “sink him”. The defendant also asked if the Constable thought that he (i.e. the defendant) should request a blood test.
[15] Notwithstanding these interruptions, Randerson J was “more than satisfied” that the Judge in the District Court was fully entitled to reach the conclusion that there was no pressure placed on the defendant through the curtailment of the discussion with his friend, and that there was no undue interruption of the ten minute period available to him. He also said:
[20] It is evident from the transcript that the appellant was treated with courtesy by the officer. Prior to the 10-minute period, he had the
opportunity to consult with his wife and during the 10-minute period, he consulted for at least 2 minutes with his friend. There was no indication in the evidence that he wished to continue that discussion and, for the bulk of the period, he was able, quietly, to contemplate his situation while consuming a cup of coffee. He had indicated that he did not wish to consult with a lawyer although he realised he had the right to do so, and he took the opportunity to take advice from the police officer himself, advice which the Judge found was perfectly proper in the circumstances.
[21] I do not overlook the period of 2 or 3 minutes when there was some small talk with other people at the scene but Mr Harte indicated he placed little weight on that period. I agree that this did not affect the overall situation.
[16] If the circumstances of the present case are compared to those in Butterworth, they can be seen to be broadly similar. If anything, there appear to have been less interruptions during the ten minute period in the present case than there were in Butterworth.
[17] Moreover, in Butterworth Randerson J concluded his judgment by observing that “a commonsense and practical approach is required in cases such as this”. I respectfully endorse that observation. Police officers who are involved in breath and blood testing procedures are likely to be working in the field, and it will often be difficult to provide suspects with an environment that is conducive to the decision making process. In particular, it may often be virtually impossible to ensure that they are not interrupted for the entire ten minute period.
[18] Suspects are also likely to consider their options in a variety of ways. It is unrealistic to suggest that all suspects will want to have ten minutes of solitude within which to weigh up their options. As the authorities demonstrate, the natural reaction of many suspects will be to seek advice from those in the immediate vicinity. It is therefore not surprising that enforcement officers who are involved in the processing of suspects are regularly asked for advice.
[19] It is equally unrealistic to require officers who are placed in that position to meet requests for advice with a stony silence or, worse, with an abrupt or rude rebuff. That in itself could place undue pressure on a suspect. Officers must be permitted to tell suspects that they are unable to provide advice and that advice should instead be sought from a lawyer.
[20] Enforcement officers must obviously avoid initiating conversations that are likely to distract the attention of a suspect from the task at hand. In principle, however, I see nothing wrong with officers responding concisely and politely to questions initiated by a suspect, particularly if those questions are relevant to the breath or blood testing process. This is likely to assist suspects in making their decision rather than to distract them from doing so.
[21] Whether or not there has been undue interruption will, of course, always be a matter of fact and degree. The decision of Tipping J in Wren v Police (supra) provides a good example of discussions between a suspect and an enforcement officer that went well beyond that permitted by the legislation. In that case, the suspect was engaged in casual conversation for approximately 15 minutes with the testing officer during the ten minute period. Although his comments were obiter, Tipping J had this to say:
I am not suggesting that the suspect must be placed in isolation or solitary confinement for the period of 10 minutes. What I am saying is that the suspect must be left to think about his position for at least 10 minutes. As with many questions, ultimately it will be a matter of degree. I am satisfied that in the present case the facts fell well on the wrong side of the line from the informant’s point of view. It is not necessary to get into the nature and quality of the conversation. The simple fact is that on the evidence of both the constable and the appellant there was virtually continuous conversation throughout the whole period.
[22] Tipping J also confirmed that the onus is on the enforcement officer to ensure that the statutory requirements are complied with. For that reason the enforcement officer must make sure that he or she does not interrupt the ten minute period in such a way to effectively impinge on the time available for reflection.
[23] The case of Baxter v Ministry of Transport (1990) 6 CRNZ 445 is also worthy of note. In that case the appellant argued inter alia that he had not been given the benefit of the full period of ten minutes because of interruptions that occurred. One of these was a casual conversation between the suspect and an enforcement officer during the ten minute period. Williamson J noted (at page 449) that the statute does not prescribe what can and cannot occur during the ten minute period. Rejecting the appeal he said (at page 452).
It is clearly important that a suspect in such situations does have the 10 minutes available. That, however, does not mean that he must spend that time in reflection or silent retreat, or isolation, but rather that the time is available for him to make his decision. Some people make their decisions by talking; others by listening; others by thinking. The real choice as to the way in which the suspect spends those 10 minutes and makes his or her decision is the suspect’s. A Court would not be satisfied of compliance with the statute if, by virtue of interruptions, the suspect is not given 10 minutes in which to make such a decision or not free to consider his options. If, however, the suspect during that period is of the view that there can be casual conversation, such as described in this evidence, I do not believe that such conversation is an interruption. Indeed it may assist. It certainly does not constitute undue pressure and does not, on the facts of this case, appear to have taken away from the opportunity for the appellant to have considered whether or not to make a request for a blood sample.
[24] Having regard to these authorities, the learned District Court Judge may have adopted too narrow an approach in considering the effect of the interruptions that occurred during the ten minute period in the present case. The conversation between Mr D and the enforcement officer appears to have occurred over no more than two minutes. On each occasion the conversation was initiated by Mr D and not by the enforcement officer. The response in each case appears to have been courteous, brief and appropriate.
[25] In the end, however, I have concluded that no error of law has been established. It was for the learned District Court Judge to decide whether the interruptions, coming as they did on top of the somewhat unsatisfactory conditions on the bus, were such that they prevented the police officers from providing Mr D with the ten minute period to which he was entitled. Whilst her conclusion that they fell on the wrong side of the line could perhaps be regarded as charitable to Mr D , it was nevertheless open to her on the evidence. I do not consider that the facts contained in the case stated necessarily lead to the conclusion for which the respondent contends.
[26] However, that is not the end of the matter. Even if the Judge concluded that the police officers failed to provide Mr D with the full ten minute period, she was also required to consider whether that failure was cured by the provisions of s
64(2) of the Act.
2 Did the Judge take into account the provisions of s 64(2) of the Act?
2 The Act was amended with effect from 29 December 2001 to extend the curative reasonable compliance provisions of s 64(2) to s 77. Section 64(2) provides:
It is no defence to proceedings for an offence that a provision forming part of [sections 68 to 75A, and 77] has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.
[27] The manner in which the case stated poses the question relating to s 64(2) is, in my view, somewhat misleading. The question seeks the opinion of this Court regarding the correctness of the Judge’s decision “not to apply the reasonable compliance provisions in s 64(2)”. The wording of the question implies that the Judge turned her mind to the possible application of s 64(2) and, having done so, determined that the reasonable compliance provisions could not be invoked to cure the defect that she had identified.
[28] In actual fact, however, this particular issue was never raised by either party in the hearing in the District Court. For that reason the judge did not turn her mind to it, and it formed no part of her decision to dismiss the information. The question in the case stated could therefore more aptly be worded “Should I have considered the possible application of s 64(2) of the Land Transport Act 1998”. The answer to that question would have been “Yes”.
[29] The Court of Appeal has held that s 77(3)(a) is the only provision in s 77 to which s 64(2) may be applied: Police v Tolich (2002) 20 CRNZ 150 at p155. The Court in Tolich also confirmed (at p 156) the need for a liberal approach to the application of the reasonable compliance section.
[30] In some cases a breach of the requirement to provide a suspect with the 10- minute period will be so gross that s 64(2) cannot possibly cure it. This case does not, however, fall into that category. A total of eleven minutes was given to Mr D , and the conversations with the police officers occupied no more than approximately two minutes. Any breach must in my view have been borderline.
[31] The fact that the issue was not raised by either party at the hearing in the
District Court does not mean that it did not need to be considered. In this regard I
respectfully adopt the comments made by Williams J in the following passage from his judgment in Healey v Dewit (Unreported High Court, Auckland. A.153/01 12
December 2001):
Once again, it may turn out to be the case that there is force in the submission that there was reasonable compliance with the statutory requirements but the difficulty facing the appellant is that the matter was not put to the learned District Court Judge on that basis and accordingly she did not rule on the suggestion that no defence was available to Mr Dewit under s
64(2). However, even if there was an omission in the District Court to raise the possible effect of s 64(2), in this Court’s view the learned District Court Judge should have turned her attention to it and considered the question of reasonable compliance before holding all subsequent procedures as being vitiated. When a prosecution is flawed through non-compliance with facts and legal requirements under a statute, and where the statute provides that non-compliance can provide no defence where reasonable compliance has been achieved, in this Court’s view it is necessary for the Court in considering adequacy of proof under the statute to consider reasonable compliance, irrespective of whether it has been raised.
[32] It would not be appropriate for me to determine, or to express any view on, the possible application of s 64(2) to the facts of the present case. The restrictions imposed by the case stated make it difficult, if not impossible, to adequately consider whether the reasonable compliance provisions should be invoked to cure the defect in the procedure that was identified in the District Court. That task should be undertaken by the learned District Court Judge, who had the advantage of hearing the evidence and forming her own impression regarding the events that occurred in the police bus.
Order
[33] The decision to dismiss the information is reversed pursuant to s 112(a) of the Summary Proceedings Act 1997. The matter is remitted to the District Court pursuant to s 112(b) of the Act so that the possible application of s 64(2) of the Land
Transport Act 1998 can be considered.
Lang J
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