Police v N HC Tauranga CRI 2004-407-47

[2005] NZHC 1318

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2004-407-0047

BETWEEN

POLICE

Applicant

AND

[ T L N ]

Respondent

Hearing:18 March 2005 (Heard at Rotorua)

Appearances: G Hollister-Jones for Applicant

P Mabey QC for Respondent Judgment:  23 March 2005

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on 23 March 2005 at 10.00 a.m., pursuant to

r 540(4) of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:

Ronayne Hollister-Jones Lellman, Crown Solicitors, PO Box 13063, Tauranga Bell & Graham, PO Box 184, Matamata

Copy:

Paul Mabey QC, PO Box 13199, Tauranga

POLICE V [ N ]  HC TAU CRI 2004-407-0047 [23 March 2005]

[1]    This is an appeal by way of case stated against the dismissal of an information in the District Court.

[2]    The respondent was charged that, contrary to s56(2) of the Land Transport Act 1998 (“the Act”), she drove a motor vehicle on a road while the proportion of alcohol in her blood exceeded 80 milligrams of alcohol per 100 millilitres of blood.

[3]    The respondent pleaded not guilty and the hearing took place in the Tauranga District Court on 3 September 2004. At the close of the prosecution case the defence elected not to call evidence, but submitted that the charge should be dismissed on five separate grounds.

[4]    In a reserved decision delivered on 1 October 2004 the learned District Court Judge dismissed the charge. Upholding one of the respondent’s submissions, he held that the failure by the prosecution to produce the certificate of compliance for the evidential breath testing device that had been used was fatal. He considered that in the circumstances of this case, the only basis upon which the prosecution could proceed on the excess blood alcohol charge was if there had first been a properly conducted evidential breath test, and in the absence of the certificate of compliance, the Judge held he could not find that that had occurred. On this basis, he dismissed the charge.

[5]The case stated appeal records the Judge’s key determinations as follows:

5.1This was a defended hearing involving excess breath alcohol recorded by the device in terms of s 75A(2), Land Transport Act 1998, and accordingly evidence of a certificate of compliance in accordance with the section was required to be produced.

5.2The failure to produce a certificate of compliance was not saved by the reasonable compliance provisions of s 64(2) & (5), Land Transport Act 1998. This was because the absence of proof relating to the certificate of compliance was not an error in the result of an evidential breath test but a failure to adduce a required type of evidence to prove the validity of the test.

5.3Adequate proof of the breath testing procedure was necessary before the evidence of the respondent’s election and subsequent blood test could be held against her.

[6]The case stated then poses two questions of law for decision by this Court.

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.

(b)Failure to produce such a certificate of compliance was not saved by the provision of s 64(2) & (5), Land Transport Act 1998.

[7]    Because of the conclusion that I have reached on the first question, it will be unnecessary to deal with the second.

The appellant’s argument

[8]    The first question turns on the proper interpretation of s 75A(2) of the Act. Section 75A(1) provides that an evidential breath testing device must be supported by a certificate of compliance given under the section by a person authorised for the purpose by the Science Minister. Section 75A(2) then provides:

(2) At any trial or defended  hearing  for  an  offence involving  excess  breath alcohol recorded by the device (being an offence committed on or after the commencement of this section), the prosecution must produce to the court a certified copy of the certificate of compliance. The certification must be given by a person authorised for the purpose by the Commissioner and must state that the copy is a true copy of the original certificate.

[9]    The respondent was charged under s 56(2) of the Act, with driving while the amount of alcohol in her blood exceeded the statutory limit. She was not charged under s 56(1) which provides for the separate and distinct offence of driving while the amount of alcohol in a person’s breath, as ascertained by an evidential breath  test, exceeds the stated proportion. However, the Judge held that this was “a defended hearing for an offence involving excess breath alcohol recorded by the

device” within the meaning of s 75A(2). Consequently, the certificate of compliance had to be produced.

[10]   For the appellant, Mr Hollister-Jones attacked this conclusion on a number of grounds, arguing that the requirements of s 75A(2) as to production of the certificate of compliance did not apply when the charge alleged was driving with excess blood alcohol. First, he submitted that the offence with which the respondent had been charged was not one involving excess breath alcohol recorded by the device. This was so because the elements of an offence against s 56(2) are:

(i)driving or attempting to drive a motor vehicle;

(ii)on a road;

(iii)whilst the proportion of alcohol in a person’s blood exceeds 80 milligrams of alcohol per 100 millilitres of blood – that proportion being determined by an analysis of a blood specimen subsequently taken from the person under ss 72 or 73.

[11]   None of these elements involve excess breath alcohol recorded by the device, and the proportion of alcohol in a person’s breath is not an element of the offence against s 56(2). The position is to be contrasted with offences against ss 56(1) and 57(1) which both make specific references to the proportion of alcohol in a person’s breath, as ascertained by an evidential breath test subsequently undergone by the person.

[12]   Mr Hollister-Jones referred  also  to  the  fact  that  while  an offence  against s 56(2) would often be preceded by an evidential breath test, that is not always the case. In this respect, he referred to ss 72(1)(a), (c) and (d) and 73 of the Act.

[13]Section 72(1) provides:

(1)        A person must permit a medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—

(a)        The person fails or refuses to undergo without delay an evidential breath test after having been required to do so by an enforcement officer under section 69; or

(b)        The person has undergone an evidential breath test under section 69(4), and—

(i)It appears to the officer that the test is positive; and

(ii)        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), the person advises the officer that the person wishes to undergo a blood test; or

(c)        An evidential breath testing device is not readily available at the place to which the person has accompanied an enforcement officer under section 69 (whether or not at the time the requirement was made it was likely that the person could undergo an evidential breath test at that place) or to which the person has been taken under arrest (as the case may be), or for any reason an evidential breath test cannot then be carried out at that place; or

(d)        The officer has arrested the person under section 120(1) and has good cause to suspect that the person has committed an offence against any of sections 56 to 62, and either—

(i)         A medical practitioner has examined the person and believes that the person may be under the influence of drink or a drug, or both; or

(ii)        The person has refused to be examined by a medical practitioner for the purposes of this paragraph.

[14]Section 73(1) provides:

(1)        A person who is under examination, care, or treatment in a hospital or doctor's surgery must permit a blood specimen to be taken from the  person by—

(a)        The medical practitioner who is in immediate charge of the examination, care, or treatment of the person; or

(b)Another medical practitioner or a medical officer.

[15]   Mr Hollister-Jones submitted that since a specimen of blood taken pursuant to s 72(1)(a), (c) and (d), and s 73, could obviously be relied on for the purposes of establishing an offence against s 56(2), and none of those cases would require an evidential breath test, it was obviously incorrect to characterise s 56(2) as an offence that involved excess breath alcohol.

[16]   Mr Hollister-Jones also argued that s 64(5) and s 77(3) of the Act supported the interpretation of s 75A(2) for which he contended. The former provides:

(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.

[17]   That provision’s predecessor, s 58(5) of the Transport Act 1962, had been considered by the  Court  of  Appeal  in  Falesiva  v  Ministry  of  Transport  [1981] 1 NZLR 275. In that case Cooke P said, at 279:

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.

And at 280 Cooke P observed that:

Section 58(5) was obviously remedial and intended to close a way of escape to a driver who has been shown by reliable scientific evidence to have driven with excess blood alcohol. Such a driver is not convicted because of his breath reading. The fact that his breath may have failed to meet the statutory standard for breath has become irrelevant – see s 58(4) – so it is not surprising that any shortcomings in the evidential breath-testing procedure should likewise be treated by Parliament as unimportant.

[18]   Relying  on  these  passages  from  Falesiva,  the  appellant   submitted   that s 75A(2) of the Act should not be interpreted so as to require the production of a certificate of compliance relevant only to the accuracy or reliability of the evidential breath test. Any inaccuracy or unreliability in the procedures carried out for the purposes of the evidential test was, having regard to s 64(5), an irrelevant consideration on a charge laid under s 56(2).

[19]   As to s 77(3)(b) of the Act, under its terms where a person elects to undergo a blood test, having been advised that an evidential breath test has produced a positive result and of the other matters specified in s 77(3)(a), the result of the positive evidential breath test is not admissible in evidence in proceedings for an offence against any of ss 56 to 62. Mr Hollister-Jones argued that if the result of the evidential breath test is not admissible once the election has been made, there is little point in requiring the production of the certificate of compliance, which goes to the accuracy of the result. He submitted that s 75A(2) should be interpreted so as to avoid the redundant production of the certificate.

The respondent’s argument

[20]   Mr Mabey QC, for the respondent, argued that the decision of the learned District Court Judge was correct. He emphasised first that of all the circumstances in which a specimen of blood can be required for analysis set out in ss 72 and 73, only one requires the pre-requisite of a positive evidential breath test. That is where there has been an apparently positive evidential test, and the person who has undergone it advises the officer of his or her wish to undergo a blood test, as set out in s 72(1)(b). He argued that where s 72(1)(b) applies, a subsequent prosecution for an offence under s 56(2) based on the proportion of alcohol in a person’s blood must be regarded as one “involving excess breath alcohol recorded by an evidential breath testing device” within the meaning of s 75A(2).

[21]   He pointed out that s 75A(2) did not specifically refer to a defended hearing for an offence where proof of excess breath alcohol recorded by a decision is an element of the offence, as in a prosecution for driving with excess breath alcohol. If that had been the legislature’s intent it could easily have adopted different language, such as employing the phrase, “of driving with” instead of “involving” before the words “excess breath alcohol”. Alternatively, it could simply have specified the numbers of the sections creating the offences to which s 75A(2) applies, (presumably, by referring to ss 56(1) and 57(1)).

[22]   He argued that by referring to an “offence involving excess breath alcohol” Parliament must have intended to apply s 75A(2) more widely than would have been

the case had it adopted either of these alternative drafting approaches. He suggested that its intent in employing the language in fact adopted was to ensure that the defendant who elects to give blood has the safeguard that the evidential breath test has been conducted using a device that has been certified as complying  in accordance with the requirements of s 75A(1) and (5).

[23]   Mr Mabey’s submission that where s 72(1)(b) applied a subsequent prosecution under s 56(2) involves excess breath alcohol was based on the proposition that in order to succeed the informant would need, as a matter of evidence, to establish that:

(a)the person charged has undergone an evidential breath test under s 69(4); and

(b)it appeared to the officer taking the test that the test was positive; and

(c)within ten minutes of being advised of the matters set out in s 77(3)(a), there was an election to give a sample of blood for analysis.

[24]   He argued that unless such evidence was given there was no basis on which to produce the certificate of blood analysis provided for in s 75(1). There would be a failure to establish the positive evidential breath test which is a necessary pre- requisite to admissibility of the results of the blood analysis. Consequently, proof of the offence of driving with excess blood alcohol involves breath alcohol recorded by a breath testing device; while not an element of the offence, it was an essential evidentiary matter involved in proof of the charge, without which there can be no proof of the offence.

[25]   Mr Mabey submitted further that the purpose of s 77(3) was simply to prevent concurrent prosecutions for excess breath alcohol and excess blood alcohol. Its provisions were not relevant to the matters now before the Court, and it does not assist in determining how s 75A(2) should be interpreted. As to s 64(5), the District Court Judge had been correct when he held at paragraph [31] of his reserved decision that the case did not involve error or possible error in the results of the evidential

breath test (s 64(5)(a)) but, rather, was a case of failure to produce a certificate of compliance as required by s 75A(2).

Discussion

[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.

[28]   Further, Mr Mabey’s approach requires a distinction to be drawn between the different kind of factual circumstances which can lead to a prosecution under s 56(2). On his argument, where s 72(1)(a), (c) and (d), and s 73 applied, production of the certificate of compliance would not be required. It is only where there has been an evidential breath test that the certificate would have to be produced. Yet the offence, driving whilst the proportion of alcohol in the person’s blood exceeded the statutory limit, would be the same. The appellant’s approach, which is to draw the distinction between offences involving excess breath alcohol and those involving excess blood alcohol, seems to me much more straightforward and more likely to be in accordance

with the legislative intent, given the way in which the Act distinguishes between the two kinds of offence.

[29]   It is to be noted that under s 72(1)(b), a person must permit a medical practitioner or medical officer to take a specimen of blood when required to do so when three pre-conditions have been fulfilled. The first is that that person has undergone an evidential breath test under s 69(4). In the present case, the evidence was that the respondent undertook an evidential breath test on an approved device. It is recorded at paragraphs 3.2 and 3.3 of the case stated that:

At all appropriate times the appellant complied with the requirements of the NZ Bill of Rights Act 1990 and all procedures were carried out in accordance with the Transport (Breath Tests) Notice (No.2) 1989.

The respondent undertook an evidential breath test on a SERES device which gave a reading of 645 ….

[30]   The second pre-condition is that it appears to the officer that the test is positive. Plainly, in the present case, it did appear to the officer that the test was positive.

[31]   The third pre-condition is that the person who has undergone the evidential breath test must advise the officer that he or she wishes to undergo a blood test within ten minutes of being advised by an enforcement officer of the matters specified in s 77(3)(a). That also occurred here.

[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. Where the charge is not one of driving with excess breath alcohol but, rather, alleges driving with excess blood alcohol, there is in my view no need for the certificate to be produced, because the defendant is not charged with an offence dependent on the result of the evidential breath test. As was said by Cooke P in Falesiva about s 58(5) of the Transport Act 1962, which was not materially different from s 64(5) of the Land Transport Act 1998, the legislation evinces a legislative view that a blood test, taken by a registered

medical practitioner, the results of which are scientifically analysed, is the motorist’s “ultimate protection and a reliable basis for a conviction”. Where the charge is driving with excess blood alcohol, earlier defects in the administration of the evidential breath test possibly affecting the result of that test do not matter.

[33]   As was contemplated by the Court of Appeal in that case, there may be circumstances in which it might be argued that the officer who had administered the evidential breath test had acted in bad faith, or “not honestly trying to carry out an evidential breath test as required by the Act and the Notice”. (ibid at 280). That, of course, is not the present case, where the learned District Court Judge found, as I have noted, that all procedures were carried out in accordance with the Transport (Breath Tests) Notice (No.2) 1989. In the absence of that kind of circumstance, however, the apparent intent of s 64(5), just as it was in the case of s 58(5) of the previous legislation, is that where the offence alleged is driving with blood alcohol, errors in the evidential breath testing procedures are not relevant.

[34]   The learned District Court Judge’s approach was to point out that this was not a case where it was alleged that there had been an error in the result of the evidential breath test but rather, as he put it,  a failure to produce the certificate as required  by  s 75A(2). Mr Hollister-Jones’ point in referring to s 64(5) in the first question raised in the case stated however, was not to rely on the section on the facts, but to argue that its provisions supported his argument that s 75A(2) should not be interpreted as requiring production of the certificate of compliance on a prosecution for driving with excess blood alcohol. I agree with him 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.

[35]   I agree with Mr Mabey’s submission that there would have been other ways in which the legislation could have been drafted that could have achieved the same result. However, that does not deflect me from my conclusion that the words in fact used have limited the obligation in s 75A(2) to production of the certificate of compliance in cases where the offence charged is one of driving with excess breath alcohol.

[36]   For the reasons I have given, I do not think that the Judge was correct when he held that, in a prosecution for excess blood alcohol pursuant to s 56(2) of the Act, it was necessary for the informant to produce a certificate of compliance in terms of  s 75A(2). I would therefore answer the first question, no.

[37]   The second question asked whether the Judge had been correct in holding  that failure to produce the certificate was not saved by the provisions of s 64(2) and

(5) of the Act. The conclusion that I have reached on the first question means that this question does not require an answer, and that it should not be answered.

Result

[38]   In accordance with the foregoing, the appeal is allowed. The first question is answered no. The second question does not require an answer, because the  certificate of compliance was not required to be produced.

[39]   The information is reinstated and remitted back to the District Court for further proceedings in accordance with this judgment.