Police v H HC Auckland CRI 2008-404-175

[2008] NZHC 1270

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000175

IN THE MATTER OF     an appeal from a determination of the

District Court at Manukau

AND IN THE MATTER OF  Section 107(3) of the Summary

Proceedings Act 1957

BETWEEN  NEW ZEALAND POLICE Appellant

ANDH

Respondent

Hearing:         11 August 2008

Appearances: AR Longdill for Appellant

N Prasad and S Prasad for Respondent

Judgment:      11 August 2008

ORAL JUDGMENT OF PRIESTLEY J

Solicitors:

Meredith Connell, PO Box 2213 Auckland

Naresh Prasad & Associates, PO Box 23173 Hunters Corner, Auckland

NEW ZEALAND POLICE V H HC AK CRI 2008-404-000175  11 August 2008

[1]      This appeal comes to me by way of case stated.  The case stated arises out of a prosecution by the New Zealand Police charging the respondent with an offence under s 56(1) of the Land Transport Act 1998 (“the Act”) of driving with excess breath alcohol (being a third or subsequent offence).

[2]      The case stated has been signed by Judge G Andrée Wiltens on 13 June 2008.

[3]      Although, as Ms Longdill correctly points out, this Court on a case stated is usually concerned only with the case, the questions posed, the summaries and a bail bond, in this particular instance the Manukau District Court has forwarded the entire file.   Mr Prasad in his helpful submissions has ranged widely and invited me to peruse relevant portions of the transcript.

[4]      The case stated, however, sets out tightly and correctly what is involved. Central to the case is s 77(1) of the Act, which provides:

77       Presumptions relating to alcohol-testing

(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.

[5]      Pausing for a moment, it is clear, as a matter of statutory interpretation, that the provision enacts a conclusive presumption.   Some authorities have indeed described the effect of the provision as creating a legal fiction.   As a result, the alcohol level in a defendant’s breath indicated by the test is presumed to be the level at the time of the alleged offence. The alleged offence, of course, is driving with excess breath alcohol.

[6]      From a physiological point of view seldom would that be the case.  Screening procedures and the inevitable delay between a motorist submitting to a screening procedure and the breath alcohol test actually being administered would inevitably mean that the actual level at the time of the test would be higher or lower than at the time of the last few minutes of driving.

[7]      An identical provision, s 77(2), applies in respect of blood alcohol levels.

[8]      This interpretation has been basic and unchallenged law for many years.  The Court of Appeal judgment: Transport Ministry v Sowman [1978] 1 NZLR 218 (CA) mandates this approach. So too does the subsequent Court of Appeal decision: Ministry of Transport v Martis [1993] 1 NZLR 307.

[9]      Interestingly and understandably the Court of Appeal in Transport Ministry v Sowman addressed the issue of possible injustices which might flow from the conclusive presumption, enacted by s 77(1).  Mr Prasad refers to the relevant dictum in his submissions:

But if there is cogent evidence which leaves the magistrate satisfied that there was a material difference, in favour of the defendant, between the deemed and actual level then we see no reason why this should not be taken into account in determining the culpability of the commission of this somewhat unique statutory offence.

[at 223]

Similar dicta as to how the statutory presumption can be mitigated appear at 222.

[10]     In other words, although the presumption will be sufficient in most cases to prove the offence so far as a breath alcohol level is concerned, a court is still open to persuasion that the actual level might have been much lower, with resulting consequences, so far as sentence and indeed the establishment of special circumstances might be concerned.

[11]     The facts set out in the case stated do not require detail.  An officer travelling in a police helicopter at approximately 10:40 pm, observed a vehicle driven by the respondent.  Whilst turning at an intersection the respondent’s vehicle was involved in a mild collision.  The respondent was clearly close to home.  He turned into the driveway of his address shortly thereafter and was observed (again from the air) leaving the driver’s seat and walking into the garage.

[12]     Approximately 21 minutes later Constable Johnston, who gave evidence at the hearing before the Judge, arrived with the standard Alcotech AR1005 breath screening device.  The test showed a failure.  At a subsequent stage the respondent

admitted he was driving the vehicle at the relevant time.  Shortly thereafter, at the Otahuhu police station, having been read his rights, the respondent underwent an evidential breath best.  This was carried out at 11:20 pm (significantly approximately

40 minutes after the observed driving).  The result was 656 micrograms of alcohol per litre of breath.

[13]     It is unnecessary to say anything about what has to be proved in cases of this type.  There is no technical challenge in play here.

[14]     The respondent gave evidence at his trial.  This is not referred to in the case stated.  His evidence, however, which received a degree of support from a witness who was driving with the respondent at the time, was that prior to 10:40 pm and the collision the respondent had consumed no alcohol whatsoever.   In the 15 or 16 minutes, however, from the time he exited his car in his driveway to the arrival of Constable Johnston, the respondent’s evidence was he had consumed three double- shots of spirits and had embarked on drinking a beer.

[15]     Mr Prasad, who was counsel at the trial, made various submissions arising out of these timings.  He seems to have persuaded both the Judge and the prosecutor that there was a possible lacuna in the evidence and that it was incumbent on the prosecution to prove, in the particular circumstances of this case, that the respondent had been consuming alcohol before he began to drive.  There is no doubt, however, that the Judge was aware (as was the prosecutor) of s 77(1).

[16]     After hearing various submissions at the end of the evidence, the prosecution informed the Court that it was unable to prove that the respondent had been consuming alcohol before he was driving; and that it seemed on the evidence that all the drinking had occurred after the incident.  The prosecutor, however, did submit this did not negate the s 77(1) presumption.  To that the Court indicated that much would depend on how much alcohol was left in the mouth.

[17]     The Judge was clearly of the view that he needed some evidence in this area. Somewhat begrudgingly, with respect, the Judge announced he would have to acquit on the charge although this gave him no particular pleasure.  He suggested, although

on what basis it is unclear to me, that he considered the respondent and his witness had “worked out a nice little story” to take advantage of a gap in the timing.

[18]     The  Judge  was  of  the  view  that  he  had  “absolutely  no  doubt”  that  the respondent had consumed alcohol before he was driving but he was unable to say what the proper breath alcohol level might have been at the time of the driving concerned.

[19]     The case stated helpfully sets out the various steps along the way.   The question for determination by this Court is whether the Judge’s decision was erroneous on point of law, and in particular:

Was I correct I holding that because I had a doubt as to whether the respondent was over the breath alcohol limit at the time of driving I should dismiss  the  information  notwithstanding  s 77(1)  of  the  Land  Transport Act 1998?

[20]     Mr Prasad advanced heroic submissions to me.  He accepted that if proof a driver had consumed no alcohol before driving was irrelevant to the application of the s 77(1) presumption, then there were no submission left to him.

[21]     In counsel’s submission, however, there were elements of fairness and justice involved.   In this situation, if the Court was satisfied that there had been no pre- driving consumption of alcohol but that post-driving consumption was responsible for the reading, then there should be an acquittal.

[22]     There are obvious practical and law enforcement difficulties with this stance as Mr Prasad accepted.  My memory is sufficiently long to recall that in the early

1970s, at a stage when comparable legislation was settling down and technical defences were many, one favoured way of trying to avoid the consequences of a breath or  blood  alcohol  conviction  was  for  apprehended  drivers  immediately to consume liquor available to them in their vehicles.  In hypothetical situations today, as  I asked  counsel  in  argument,  if  this  situation  should  be  replicated,  -  i.e.  an apprehended driver immediately consuming alcohol before submitting to a breath test, there would be difficulties if Mr Prasad’s submission was correct.  Mr Prasad’s counter to this observation was that in such a situation the presumption should shift

to a defendant who had, in a post-driving situation, consumed alcohol to satisfy the

Court that no alcohol had in fact been consumed before the driving commenced.

[23]     I am not prepared to reformulate and change what has been clear law in this area for a number of years.  The risks to which Mr Prasad properly alludes are, in my judgment, adequately provided for in the dictum of the Court of Appeal Transport Ministry v Sowman (supra [9]).

[24]     In my judgment the very clear and conclusive presumption enacted by s 77(1) means  what  it  says.    Delays  which  might  amount  to  abuse  of  an  enforcement officer’s powers give rise to different considerations which do not come into play here.  In any event see the earlier authorities of Police v Bradley [1974] 1 NZLR 113 (CA); Transport Ministry v Poskitt [1976] 1 NZLR 153.

[25]     Accordingly and for the reasons I have given, the answer to the question posed in the case stated appeal is:

The learned Judge was not correct in dismissing the information because he had a doubt over the breath alcohol limit at the time of driving.

[26]     Given  the  view  the  Judge  had  formed  of  the  matter,  I  expressed  some concerns as to whether sentencing should be remitted back to another Judge in the Manukau District Court or indeed whether there should be a rehearing.  Ms Longdill submits that, in the normal course of events, all that is necessary is to remit the matter back to the Manukau District Court for the probable entry of a conviction and for sentencing.

[27]     Mr Prasad is properly of the view that he believes the Judge would approach the task of sentencing with a fresh mind and that the respondent would not be at any disadvantage as a result of the remarks the Judge made when acquitting.

[28]     From a practical point of view, and in no way trying to interfere with the sentencing discretion, there was unchallenged evidence here that  the  respondent consumed a considerable quantity of alcohol after he stopped driving.   Probably between 15-20 minutes of alcohol consumption was involved.   The presumption must apply but trying to fix the precise level is problematic.

[29]     I have no doubt that the sentencing Court in this situation would be extremely cautious and will weigh these factors when assessing culpability and imposing a penalty.

[30]     The question is answered, (supra [25]).  The matter is remitted back to the

Manukau District Court.

………………………..

Priestley J