Police v Tamatea

[2015] NZHC 369

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2014-025-1124 [2015] NZHC 369

BETWEEN

NEW ZEALAND POLICE

Appellant

AND

GERALDINE CECELIA TAMATEA Respondent

Hearing:	3 March 2015
Counsel:	E Higbee for Appellant No Appearance for Respondent
Judgment:	5 March 2015

JUDGMENT OF BROWN J

[1]      On     3 November 2014     in     the     District     Court     at     Invercargill

Judge A-M J Bouchier found the respondent not guilty on the following charges:

(a)       that she drove a motor vehicle on McQuarrie Street while her licence was suspended;1

(b)that she refused to permit a blood specimen to be taken having been required to do so under s 72, Land Transport Act 1998.2

[2]      Relevant to the present appeal the judgment stated:

[2]       The prosecution must prove these charges to the relevant standard of beyond reasonable doubt.   That burden remains upon the prosecution throughout the hearing and it does not move to the defence at any stage.  In giving and calling evidence the defendant does not have to establish her innocence, it is for the prosecution to prove guilt to that required standard.

1      Land Transport Act 1998, s 32(1)(c) and 32(3).

2      Land Transport Act 1998, s 60(1)(A).

NZ POLICE v TAMATEA [2015] NZHC 369 [5 March 2015]

[3]       In terms of what is not in question here, the fact that Ms Tamatea was  suspended is  not in contention  because I have  the notice  of  driver licence suspension or disqualification for excess demerit points served upon her on 20 March 2014 and the formal written statement from the person from New Zealand Transport Agency producing a copy of that document.  There does not seem to be any query with the breath alcohol testing routine that the constable went into either. It is the issue of was the defendant driving?

…

[15]      Now it is fair to say that Ms Tamatea, when she gave her evidence, did not impress at all but in terms of what I have been told, as far as the police case is concerned, I think that there is room for error there as far as who was where and what they were wearing.   I do not consider that  I specifically need to give myself a warning about identification under the Evidence Act 2006 because Mr O’Driscoll did not actually identify anybody, but there were two people arrested on the night and what gives me cause for concern about the so-called identification of the driver was that the person in handcuffs was the driver – now that could have been either the male who was wanted for arrest as well or the defendant who was arrested for obstruction, and that is not clear to me.

[16]      Accordingly, I am of the view that there is a doubt here and that doubt having arisen, the benefit of it must go the defendant.  Accordingly, she will be found not guilty of both charges.

[3]      In respect of the dismissal of the charge of refusing an officer’s request for a blood specimen the appellant appeals by way of an appeal on a question of law pursuant to s 296 of the Criminal Procedure Act 2011.  The question of law stated in the Notice of Application for Leave to Appeal is:

Was the Judge correct to proceed on the basis proof of a charge under s 60(1) of the Land Transport Act 1998 requires proof beyond reasonable doubt the defendant drove a motor vehicle?

[4]      The  argument  for  the  appellant,  as  advanced  clearly  and  succinctly  by Mr Higbee, was that there are two elements to an offence under s 60(1) of the Land Transport Act 1998, namely that the appellant was required to give a blood specimen and failed to do so.  He submits that whether the requirement to give the specimen was lawful is an incidental question and, being merely a condition precedent, only requires evidence on the balance of probabilities, not beyond all reasonable doubt.

[5]      Mr Higbee drew attention to the following sequence of relevant provisions in the Land Transport Act 1998:

60Failure or refusal to permit blood specimen to be taken [or to undergo compulsory impairment test]

(1)      A person commits an offence if the person—

(a)       fails or refuses to permit a blood specimen to be taken after having been required to do so under section 72 by an enforcement officer; or …

72Who must give blood specimen at places other than hospital or surgery

(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 …

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,]—

…

(c)       The person fails or refuses to undergo a breath screening test without delay after having been required to do so by the officer under section 68; or …

68       Who must undergo breath screening test

(1)       An enforcement officer may require any of the following persons to undergo a breath screening test without delay:

…

(b)       A person whom the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle: …

[6]      Mr Higbee submits that the Judge erred by failing to differentiate between the issues involved in the two quite separate charges.   While in relation to the first charge (of driving a motor vehicle while her licence was suspended) it is necessary to prove beyond all reasonable doubt the identity of the driver, by contrast in respect

of the offence of refusing to permit a blood specimen it is only necessary to establish that the enforcement officer had “good cause to suspect” that the appellant had recently committed a driving offence.  Indeed he points out that the Judge did find at para [11] that Constable Ruffel had good cause to suspect.

[7]      Mr Higbee’s submission finds clear support in the judgment of the Court of Appeal in Police v Anderson.3    In the Supreme Court (allowing an appeal from the Magistrate) Roper J said:

I am satisfied that the prosecution did not prove to the very high standard

required that the traffic officer had “good cause”.

[8]      On  appeal,  after  discussing  the  English  and  New Zealand  approaches, North P concluded:4

In principle, I can see no reason at all why a Court should require anything more than the ordinary standard of proof in judging the evidence of the traffic officer that the objective facts observed by him justified him requiring the driver to submit to a breath test.  All that is required, in my opinion, are circumstances showing that the traffic officer had reasonable grounds for suspecting that the person he was interviewing was the worse for liquor. Common sense requires that in judging that from his physical senses alone, the officer is entitled to be influenced by the conduct of the suspect and in particular the way he has observed him to drive.  The test of course is an objective one, but I do not for a moment accept the view that the evidence must reach a “high standard” of proof. This would only be justified (if at all) if this condition precedent be elevated into the position of forming an essential ingredient in the offence.

[9]      Similarly Turner J stated:5

But in reviewing the Magistrate’s conclusions of fact, the learned Judge clearly applied the wrong standard of proof to the crucial question of fact upon which this appeal turned–viz whether the constable had “good cause to suspect”.    The  words  “the  very  high  standard  required”  which  he  used clearly referred to the standard of proof beyond reasonable doubt applicable to all essential questions of fact in the proof of a crime.   He treated the preliminary fact that the constable had good cause to suspect, as if it had been an “ingredient of the offence”, and, not finding it proved beyond reasonable doubt, thought it his duty to dismiss the prosecution for lack of proof.  I think that he was wrong in law in applying this standard of proof to this question of fact.

3      Police v Anderson [1972] NZLR 233.

4      At p 242-243.

5      At p 249.

[10]     In view of the plain authority of the Court of Appeal on this issue I grant leave to appeal under s 296(2) of the Criminal Procedure Act 2011.  The question of law must be answered in the negative, namely that a charge under s 60(1) of the Land Transport Act 1998 does not require proof beyond reasonable doubt that the defendant drove a motor vehicle.

[11]     Consequently I order that the matter be remitted to the District Court for a retrial.

Brown J