Police v Van Veen HC Auckland CRI-2010-404-000461
[2011] NZHC 221
•17 March 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-000461
NEW ZEALAND POLICE
Appellant
v
CHRISTOPHER DAVID VAN VEEN
Respondent
Hearing: 7 March 2011
Counsel: A Longdill for Appellant
Z Mohamed for Respondent
Judgment: 17 March 2011
JUDGMENT OF ASHER J
This judgment was delivered by me on Thursday, 17 March 2011 at 11am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Meredith Connell, DX CP24063, Auckland 1140. Email: [email protected]Z Mohamed, PO Box 39119, Howick, Auckland 2145.
NEW ZEALAND POLICE V CHRISTOPHER DAVID VAN VEEN HC AK CRI-2010-404-000461 17 March
2011
[1] This is an appeal by way of case stated. It arises from a decision given by Judge G T Winter on 18 August 2010 dismissing an information which alleged that the respondent, Christopher Van Veen, drove with excess blood alcohol contrary to s 56(2) of the Land Transport Act 1998 (―the Act‖). The following question is stated by Judge Winter for decision by the High Court:
Was I correct in dismissing the information on the basis that the defendant had not been given the required 10 minute period when the defendant had elected to provide a blood sample and Police instigated the blood testing procedure from that point?
[2] Mr Mohamed for Mr Van Veen conceded the Police argument and accepted that the question should be answered in the negative. Indeed, having submitted that the Judge was wrong in his conclusion, he focussed his submissions solely on what should happen following the appeal being allowed. Given the lack of contest, the appeal points can be dealt with quite shortly.
Background facts
[3] On 4 September 2009 Mr Van Veen was the driver of a vehicle involved in an accident. He failed a breath screening test and was required to go to a Police Station. Upon arrival he provided a positive evidential breath test of 725 micrograms of alcohol per litre of breath. Following this positive result, the police officer advised Mr Van Veen of his right to request a blood test within 10 minutes. He was also advised of his right to speak to a lawyer.
[4] After taking legal advice, and within the 10 minutes, Mr Van Veen elected to have a blood test and a sample was taken by a registered nurse. At the hearing, the Police intended to rely on an analyst certificate to establish the level of alcohol in the respondent’s blood to prove the charge.
[5] In his decision the District Court Judge quoted s 77 of the Act which provides in subs (3):
(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).
[6] The District Court Judge referred to some High Court decisions which relate to whether the time spent consulting and instructing a lawyer should be excluded from the calculation of 10 minutes and decided that as a full 10 minute period was not given, the analyst certificate should not be admitted into evidence.
The Police submission
[7] Ms Longdill for the appellant submitted that the Judge had wrongly applied s 77, which applies to evidential breath tests, [not] to blood tests. She submitted that as a corollary of the decision which led to the introduction of the Land Transport
(Road Safety Enforcement) Amendment Act 2001 whereby it was no defence to a blood alcohol prosecution that there was or may have been an error in an evidential breath test (s 64(4)(a) of the Act), Parliament opened up to all persons who returned a positive evidential breath test, the right to elect a blood test (s 70A). Parliament’s purpose in making the changes is set out in s 3 of the 2001 Amendment Act.
3 Purpose
The purpose of this Act is to improve road safety enforcement by-
(a) removing the defence of error or possible error in the result of an evidential breath test and ensuring that an evidential breath test is conclusive, but subject to safeguards to protect the rights of defendants.
[8] To support this submission Ms Longdill referred to the statement of Belinda
Vernon MP recorded in Hansard at the time of the second reading of the 2001
Amendment Act:[1]
As a quid pro quo to protect the rights of the defendant or the accused, he or she will have the right to take a blood test. That right does not exist at the moment. The right to take a blood test is provided only for those whose test results are at the lower end of the scale; those with a reading of over 600 are not able to have a blood test. That right is provided within this legislation. The rights of the defendant are being extended as a quid pro quo for the removal of the right or ability to challenge the accuracy of the device.
[1] (13 December 2001) 597 NZPD 13912.
[9] Under the new structure, where a person fails an evidential breath test, they have a right to proceed down the blood test route, but if they do not, they cannot challenge the breath test.
Discussion
[10] Section 77(3) specifies when the evidential breath test is not admissible. Under s 77(3)(a), the breath test will not be admissible if the Police fail to advise a person of the right to elect a blood test. However, s 77(3) only applies to the analyst certificate relating to the evidential breath test. Once a blood test has been elected, there is a new process in place and compliance with the evidential breath testing procedures is irrelevant. That process has no connection to the blood sample, and
the resulting analyst certificate that is now the document relied on for prosecution
purposes. In O’Neill v Police[2] the appellant had been convicted of driving with excess blood alcohol. It was argued on appeal that he did not consent to a blood test within the 10 minute period. Harrison J commented:
[16] Again Mr Haskett’s argument faces the formidable hurdle of s 77(3)’s sole concern with the admissibility of the result of a positive evidential breath test. The section sets out the exclusionary consequences of certain acts or omissions. Mr O’Neill was not charged with driving with excess breath alcohol. On its face, s 77(3) has no relevance to this appeal.
[2] O’Neill v Police [2009] DCR 131 (HC).
[11] In the earlier case of Police v Irwin[3] Tompkins J stated in relation to the taking of blood specimens under the Transport Act 1962 (s 58B(1)(c)) where there was also a 10 minute rule:[4]
It is my conclusion that once the person has advised the enforcement officer that he wishes to undergo a blood test within 10 minutes then that decision is not revocable. Once that election is made the enforcement officer may require the person to permit a blood specimen to be taken, and I find nothing in the section to suggest that that requirement cannot properly be made until the 10 minute period has expired.
[3] Police v Irwin (1990) 6 CRNZ 171 (HC).
[4] At 5.
[12] In Police v McCafferty[5] the District Court had dismissed an excess blood alcohol prosecution on the basis of uncertainty as to when the 10 minute period commenced or ended. Harrison J allowed the appeal noting:
[3] The appeal was set down for hearing today. Both counsel – Ms Nicola Graham for the police and Mr Douglas Rishworth for Mr McCafferty – filed comprehensive synopses of submissions. In the result, Mr Rishworth has effectively conceded the police argument. He accepts Ms Graham’s submission that if a person elects to give a blood specimen within 10 minutes of being advised of a positive evidential breath test, a police officer is not required to wait for the expiry of the whole period before proceeding further: s 70A(1) and s 77(3)(a) Land Transport Act 1998; Police v Irwin (1990) 6 CRNZ 171.
[5] Police v McCafferty HC Gisborne CRI-2006-416-8, 31 October 2006.
[13] Once that election is made to have a blood test and the blood test route is then followed, s 77(3) becomes irrelevant. The Judge was wrong to place any reliance on it and to effectively read it as implicitly requiring the full 10 minutes to be allowed before any steps were taken, despite an election to proceed to a blood test being
made within the 10 minutes.
[14] Thus, the question must be answered in the negative. It was not correct to dismiss the information on the basis that the defendant had not been given the required 10 minute period when the defendant had elected to provide a blood sample and the Police instigated the blood testing procedure from that point. At that point, when the election took place, s 77 and the 10 minute period ceased to be of any relevance.
Consequences
[15] Mr Mohamed argued that the usual remedy that would follow a successful appeal of this nature, a rehearing, should not be ordered. At the District Court hearing, Mr Van Veen was in fact sentenced to three months disqualification on a careless driving charge with which he was jointly charged. Mr Mohamed pointed to the fact that if Judge Winter had convicted the respondent on both of the charges, he would have imposed a single period of disqualification of six to nine months, or if he had imposed two periods of disqualification, they would have commenced on the same day.
[16] If there is a rehearing in which Mr Van Veen is convicted for driving with excess breath alcohol, he would have to be disqualified for the minimum six month term. Disqualification is mandatory under s 56 of the Act. Further, there would be a one month period in which he could not apply for a limited licence (ss 103 and 104). The record shows that the 10 minute argument was raised by Mr Mohamed when he sought a voir dire. While it seems from the record that it was not necessary for him to elaborate on the submission, the fact is that the Judge’s finding amounted in general terms to an acceptance of his initial argument. Mr Mohamed rather faintly suggested that the Judge had proceeded down the route on his own, but the record does not indicate any attempt on Mr Mohamed’s part to disclaim the path the Judge followed. Thus, Mr Mohamed can hardly complain on behalf of his client about success before the District Court Judge, and now, as was always a risk, a successful appeal and any consequences that arise from there that are inconvenient for his client.
[17] Mr Van Veen had been involved in an accident. He had gone through a red light and caused a collision. His blood level was more than twice the legal limit. In the circumstances, it seems unlikely that he would have been given a total period of disqualification of less than nine months. So he is not unfairly exposed to a further six months disqualification. Undoubtedly if Mr Van Veen is convicted, the sentencing Judge will take into account the three month disqualification imposed on the careless driving charge. It is difficult to see any real prejudice as a result of a rehearing and a conviction arising from this appeal, save the delay in the start point of disqualification relating to the driving with excess blood alcohol. This arises from the route of defence chosen by Mr Van Veen. Thus, I am not prepared to divert from the usual course of ordering a rehearing.
Result
[18] The appeal is allowed. The point of law put in the case stated of
23 November 2010 is answered ―no‖.
[19] A rehearing is directed on the charge of driving with excess blood alcohol.
……………………………..
Asher J
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