Police v W HC Auckland CRI 2005-404-389
[2006] NZHC 514
•16 May 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2005-404-389
NEW ZEALAND POLICE
Appellant
v
W
Respondent
Hearing: 24 April 2006
Counsel: E T Fletcher for Appellant
No appearance for Respondent
Judgment: 16 May 2006 at 10 am
JUDGMENT OF BARAGWANATH J
Solicitors:
Crown Solicitor, Auckland
Copy to:
Mr T T W , Auckland
NEW ZEALAND POLICE V W HC AK CRI 2005-404-389 16 May 2006
[1] The Crown appeals by way of case stated against the dismissal by Judge Epati in the District Court of a charge against the respondent Mr W . It alleged under s 56(2) of the Land Transport Act 1998 that he had driven a motor vehicle on a road while the proportion of alcohol in his blood exceeded
80 milligrams of alcohol per 100 millilitres of blood.
Background to appeal
[2] At about 11.45 pm on 3 January 2002 a constable stopped the car driven by Mr W . The constable exercised authority under s 68(1) to require him, as a driver, to undergo a breath screening test. At 11.52 pm the respondent failed such test. By s 69 such failure triggered an authority to the officer to require the respondent to accompany him to where the respondent could undergo an evidential breath test or a blood test or both when so required by the officer.
[3] Accordingly, the officer took the respondent to a police station where at
00.25 am on 4 January an evidential breath test was administered. The result of such test was positive. At 00.29 am the officer advised the respondent of the positive result. The officer then read the following form to the respondent:
ADVICE OF POSITIVE EVIDENTIAL BREATH TEST
(After the result of evidential breath test is ascertained, the enforcement officer in charge of the case shall without delay after the test advise the person who underwent the evidential breath test the matters set out below and shall request that person to read this form and indicate his/her decision)
1. (Enforcement Officer in charge of case to complete)
To:
Driver’s Full Name: Tu Rainga Tahatuku WAATA Address: 19/2 Lupton Street, Manurewa Occupation: Sheet Metal Date: 04/01/02
2.The evidential breath test you have just undergone has given a positive result of 667 micrograms of alcohol per litre of breath.
3.If you do not within 10 minutes request a blood test, the test you have just undergone could, of itself, be sufficient evidence to lead to your conviction for an offence against the Land Transport Act 1998.
4. If you wish to undergo a blood test you must request one within
10 minutes.
5.If you in fact undergo a blood test the result of the evidential breath test cannot be used in court proceedings to support a charge of driving or attempting to drive with excess breath alcohol concentration;
BUT the result of the blood test may be used to support a charge based on an analysis of your blood alcohol concentration.
6.If you not wish to exercise your right to elect to have a blood test to assess the proportion of alcohol in your blood it is no defence to proceedings for an offence against the Act in respect to the proportion of alcohol in your breath that there was or may have been an error in the result of the breath screening test or evidential breath test.
Enforcement officer: CCJ292
Time advised: 0038 am/pm
Date: 04/01/02
I acknowledge that an enforcement officer has advised me of the matters set out above.
Signed: (Driver) [signed]
[4] Crown counsel properly drew to my attention that paragraph 3 of the advice was in fact incorrect: five days earlier, s 77(3)(a)(i) had been amended to replace the word “sufficient” by the word “conclusive”. The point is, however, insignificant and is met by s 64(2) which provides:
It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75 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.
By s 70A:
(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.
[5] The officer said in chief that at 00.50 am, that is two minutes after expiry of the statutory ten minute period at 00.48, the respondent had asked to undergo blood
test. In cross-examination he agreed that he made no note that such request had been made.
[6] Section 72 (1)(a)-(b) and (2) provide:
(1) A person must permit a registered medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if –
…
(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;
…
(2) A person who has been required by an enforcement officer under subsection (1) to permit the taking of a blood specimen must, without delay after being requested to do so by a medical practitioner or medical officer, permit that practitioner or medical officer to take a blood specimen from that person.
Failure to permit a blood specimen to be taken constitutes an offence under s 60 punishable by imprisonment or fine.
[7] Also relevant is s 77(3):
(3) … the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against… section… 56… 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).
[8] While the officer later recorded that at 0118 the respondent gave consent to a nurse to have his blood taken he could not recall whether the respondent offered to have it taken by her (T17). The blood specimen form (Exhibit 4) states:
You are advised that you are required under the Land Transport Act 1998 to permit a registered medical practitioner or medical officer to take for the purposes of analysis a specimen of your venous blood in accordance with normal medical procedures.
Do you consent to the taking of a specimen of blood? Please answer “Yes”
or “No”
…
You are advised that if you refuse to permit a specimen of blood to be taken you can be charged with an offence for which you are liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding
$4,500 and, unless the Court for special reasons orders otherwise,
a minimum disqualification from driving of 6 months.
If you have on at least 2 previous occasions committed offences relating to the use of alcohol while driving or attempting to drive you are liable on conviction to imprisonment for a term not exceeding 2 years or to a fine not exceeding $6,000 and, unless the Court for special reasons orders otherwise, a minimum disqualification from driving of 1 year.
The officer recorded that the respondent answered “Yes” and circled “Yes”. The respondent signed the form. In cross-examination the officer confirmed that a demand was made for the respondent to answer yes or no.
[9] In his judgment Judge Epati found that there was uncertainty whether the respondent had requested that a blood sample be taken. He therefore held that there was no proof of such a request under s 70A.
[10] Nor, he decided, was s 72 applicable.
[11] The Judge further held that the case did not fall within s 64(2). He therefore held that the blood sample was taken unlawfully and dismissed the charge.
The questions for this Court
[12] The case stated posed the following questions for this Court:
1Was I correct in determining that s 72(1) Land Transport Act 1998 had no application to the facts of this case and in deciding the matter exclusively in terms of s 70A(1); and
2 Given that:
(a) There had been a positive evidential breath test;
(b) There had been consent to undergoing a blood test; and
(c) The defence advanced was that there was no proof that the defendant requested blood as was required by s 70(a) of the Act
should I have considered whether there was reasonable compliance with the blood taking provisions (whether s 70A(1), s 72(1) or 77(3)) in terms of s 64(2) of the Act.
3If yes to 2, should I have found reasonable compliance with the relevant blood taking provision(s) of the Act?
The judgment
[13] The case stated did not explicitly include the reserved oral judgment delivered by Judge Epati on 17 November 2004 but there is such degree of allusion to it in the case stated that I am prepared to treat it as incorporated by necessary implication. The case refers explicitly to paras [9] to [12], which read as follows:
[9] … in evidence-in-chief the constable stated that at 12:50am the defendant “requested” a blood sample. In cross-examination, [defence counsel] Mr Mohammed challenged this evidence. I quote the relevant portions from page 11 line 31:
Constable on that document [Exhibit 10] does it say anywhere that the defendant requested a blood test ?…No it doesn’t.
To where it says if you look at the back of the document, count time requested blood, you just put a cross there haven’t you, just a line
?…Under blood test time Officer required blood sample.
What I’m saying is that if you look at the form under the heading
Positive Evidential Breath Test ?… Yes.
Where it says all count time requested blood you just put a dash right
?… Yes.
So there is nothing which says he requested blood, and could you look at your notebook please ?… Yes.
According to your notebook what time did the 10 minutes start ?… The 10 minutes started at 12:38.
What time did it finish or stop ?… In my notebook I’ve got 12:48. But according to your checklist the 10 minutes finished at 12:50 ?…
Yes, yes.
And continuing at page 13 line 14:
Now Constable in that notebook have you anywhere stated that the defendant requested a blood test ?… No, I have got consent given for blood sample at 1:18.
That is when the nurse came ?… Yes.
Was that when the nurse came or when you read the form ?… When the nurse came.
Okay –
THE COURT: Sorry what was that last answer?
CONSTABLE CARR: Consent was given for blood sample at 1:18 when the registered nurse arrived at the station.
THE COURT: Thank you.
CROSS-EXAMINATION CONTINUES BY MR MOHAMMED
How long have you been a Constable ?… 3 years.
And how long prior to this incident ?… Prior to this incident probably about a month and a half.
Was this your first case ?… Yes it was.
[10] The cross-examination on this point continued at page 17 line 26: Constable you told His Honour that the defendant gave consent to
the taking of a blood at 1:18 to the nurse ?… Yes.
Was that consent asked. He didn’t himself offer it did he ?… Sorry can you repeat the question.
The defendant did not himself go and offer to have his blood taken by the nurse did he ?… I cannot remember, no.
[11] Sergeant Graham re-examined on this point and I quote from page 20 line 1:
Can I have the blood consent form please Your Honour? Counsel asked you whether the defendant agreed to have a blood sample taken. Could you look at clause 1. Is there a reference there about consent to having a blood sample taken ?… Yes there is.
THE COURT: Which exhibit are we looking at, Exhibit 4?
SERGEANT GRAHAM: Yes.
RE EXAMINATION CONTINUES BY SERGEANT GRAHAM
What does it actually say ?… It says do you consent to the taking of a specimen of blood. Please answer yes or no.
Can you recall how the defendant responded to that ?… The defendant responded to yes he requested a blood sample of blood.
So how did you confirm that acquiescence ?… I circled yes and note yes in the space provided.
And was there any acknowledgement on that form by the defendant
?… The defendant signed the form as signature of driver and
I signed the form as a witness and then circled agreed.
[12] In addition I refer to the checklist which is Exhibit 10, in which under the heading “Positive Evidential Breath Test” are the following notes:
Officer read advice of positive evidential breath test. Form to suspect – Yes.
Time reading advice form completed – 00:38. Time 10 minute period started – 00:38. Finished – 00:50.
Time suspect requested blood – .
The constable entered a dash as to the time the defendant “requested” a blood sample.
[14] The Crown challenged the Judge’s reasoning in the following paragraphs:
[14] There are certain circumstances stipulated in ss 72 and 73 where a defendant must permit a blood sample to be taken. These are not relevant to
the facts in this case. The question is therefore whether the defendant
“requested” a blood sample as was his right under s 70A.
Resolution
[15] I find the evidence of the constable generally confused and contradictory on this aspect. Whilst in-chief he stated the defendant “requested” a blood sample, in cross-examination he clearly was not so sure. There was no entry in writing of such a request either in his notebook or in any of the exhibits. I find this omission quite remarkable given the “the right [of the defendant]… to elect” under s 70A. I would expect such an important step to be documented and noted.
[16] The constable gave evidence that the defendant “consented” to the taking of the blood sample. This “consent” was given at 1:18am “when the nurse arrived”. In re-examination by the prosecutor, he was referred to Exhibit 4 on this point. This is the “Blood Specimen Form”. It states in paragraph 1:
You are advised that you are required under the Land Transport Act
1998 to permit a registered medical practitioner or medical officer to take for the purposes of analysis a specimen of your venous blood in accordance with the normal medical procedures.
Do you consent to the taking of a specimen of blood? The constable noted “Yes” to this question.
[17] But this form clearly refers to the “consent” of the defendant to the procedures under s 72. If this was the “consent” the constable relied upon in taking blood, then the taking of the sample is clearly unlawful. The facts do not support this procedure.
[18] Looking at the case overall, I am left in a real doubt as to whether the defendant “requested” a blood sample as was his right to elect under s 70A. Consequently I am not satisfied the case has been proved beyond a reasonable doubt on this point. The blood sample therefore is inadmissible.
…
[20] The charge is dismissed.
Submissions
[15] The Crown’s written submissions, not prepared by counsel in this Court, sought to justify the s 56(2) blood alcohol charge which proved difficult to sustain. In oral argument I raised the possible substitution of a s 56(1) breath alcohol charge. The respondent did not make written submissions on appeal.
[16] The scheme of the Act is to treat failure of a lawfully administered evidential breath test as constituting an offence (s 56(1)). It does not contemplate the further step of taking a blood sample unless the suspect has within the ten minutes of ss 70A, 72(1)(b)(ii) and 77(3)(b) advised the officer that he wishes to undergo a blood test. The consequence of failure to make such a request in time is that the offence under s 56(1) is thereupon complete. Recourse to the blood alcohol provision, s 56(2), does not arise.
The Judge’s rejection of the blood test is upheld
[17] The first question is whether the challenge to the blood test was correctly sustained. The Judge’s finding is that the Crown failed to prove such a request, whether within ten minutes or at all. This Court cannot, on a case stated appeal under s 107 of the Summary Proceedings Act 1957 go behind such decision unless in reaching it the trial Judge erred in law: cf Police v Anderson [1972] NZLR 233 (CA) at p244 per Turner J. The only proved consent to the taking of blood was in response to the demand, supported by the compulsion of s 72(1) and (2) referred to in Exhibit 4 and punishable under s 60 if he did not do so. The taking of blood without either free consent or statutory authority constitutes in law a trespass and is prohibited both at common law and by s 21 of the New Zealand Bill of Rights Act
1990 as an unlawful search. New Zealand public law does not recognise the notion of “coactus volui” (though compelled I consented) that once formed part of the private law of Rome. The response to the demand was in law simply not a free, and thus consensual, decision to undergo blood test. I therefore respectfully agree with the Judge’s conclusion in that regard.
[18] The questions posed in the case stated are answered:
1Was I correct in determining that s 72(1) Land Transport Act 1998 had no application to the facts of this case and in deciding the matter exclusively in terms of s 70A(1)?
Answer: Yes
2 Given that:
(a) There had been a positive evidential breath test;
(b) There had been consent to undergoing a blood test; and
(c) The defence advanced was that there was no proof that the defendant requested blood as was required by s 70(a) of the Act
should I have considered whether there was reasonable compliance with the blood taking provisions (whether s 70A(1), s 72(1) or 77(3)) in terms of s 64(2) of the Act?
Answer: No
3 If yes to 2, should I have found reasonable compliance with the relevant blood taking provision(s) of the Act?
Answer: No
Should the case be remitted to the District Court?
[19] That requires consideration of whether the appeal must simply be dismissed or whether there is anything left in the case that should be referred back to the District Court under s 121 of the Summary Proceedings Act 1957. There remains an issue whether the respondent should have been advised of his rights to a lawyer immediately after he was read the Advice of Positive Evidential Breath Test form which the Judge recorded was an issue that he did not have to decide. Section 131 empowers this Court to remit the determination appealed from with a direction that the information to which it relates be reheard. That must include the lesser power to direct that the hearing in the District Court be continued: see Goldboro v Walker
[1993] 1 NZLR 394, 404 for the application of the maxim of statutory construction that the greater includes the less.
[20] But the question of alleged breach of the New Zealand Bill of Rights Act
1990 is academic unless it is open to the District Court to amend the proceeding to consider an alternative charge.
[21] The right to be relieved of presumptive liability under s 56(1) by being permitted the option of undergoing a blood test arises only on timely request by the respondent. If that is not done the only potential defence to the presumptive offence under s 56(2) - of recourse to a blood test that will supersede it - is removed by a combination of the failure of the suspect to exercise the right to elect that course under s 70A and the effluxion of time.
[22] In R v Gallagher (1991) 7 CRNZ 283 the Court of Appeal dismissed an appeal against conviction on a charge under the breath alcohol provision (s 58(1)(a)) of the Transport Act 1962. The point argued was that the District Court had erred in holding that to establish the offence the prosecution had to prove beyond reasonable doubt that the appellant had failed to convey a request for a blood test to the police officer within the statutory 10 minute period. In the leading judgment delivered orally Richardson J stated at pp 385;
The general principle is clear. It is only the essential elements of the charge which need to be proved beyond reasonable doubt. The leading authority in this Court is Police v Anderson [1972] 2 NZLR 233 where it was held that it was not necessary to prove a traffic officer’s “good cause to suspect” beyond reasonable doubt. It was sufficient if the matter were established on a balance of probabilities. Turner J referred to the distinction in this way:
“It is not every fact necessary to be proved in the course of criminal proceedings which must be proved beyond reasonable doubt. Of course, all facts forming part of the definition of the crime, and of the participation of the accused in it, must so be proved. But in the course of criminal procedure other matters of fact may arise for determination, which are not required to be proved to this standard. This situation arises when questions of fact incidental or even necessary to the procedure of the prosecution require to be proved before that prosecution can proceed.”
He went on to adopt the conclusion reached by the High Court of Australia in Wendo v The Queen (1963) 109 CLR 559 that proof of the fulfilment of
conditions precedent to the admission of evidence is not required to be given beyond reasonable doubt.
…
Once a timely blood test request is made s 58(1)(a) can have no application and there is no implication that the evidential breath test result was unreliable or would not have supported the charge under (a). The motorist has the right to require a blood test, but I can discern no public policy considerations to justify elevating the procedural step by which that right is exercised into something requiring the constitutional protection of proof beyond reasonable doubt.
[23] Here however there is no finding on the balance of probabilities that there was no timely request for a blood test. So the question for this Court is whether, as the learned trial Judge considered, the result must be dismissal of the charge.
[24] The practical position is that the respondent has failed the evidential breath test and has failed to secure the finding of having given due notice that would entitle him to the defence of the breath alcohol charge because it had been superseded by the blood alcohol regime.
[25] No authority was cited where the significance of that situation has been argued. A case with some superficial similarity is the recent Court of Appeal decision in R v Sizemore CA 290/05 5 December 2005 which preferred the Privy Council decision in A-G of Hong Kong v Yip Kai-foon [1988] AC 642 to that of the High Court of Australia in Gilson v The Queen (1991) 172 CLR 353. Each of these entailed alternative counts of theft and receiving but the evidence was consistent with either. In Yip Kai-foon the Privy Council held that it was wrong in law for the jury to be directed that if they found beyond reasonable doubt that one or other of the charges must have been established, the judge should direct them which the jury should regard as the less serious offence and convict on that accordingly. In Gilson five of the seven members of the High Court declined to follow Yip Kai-foon and held that in such circumstances the jury should convict on whichever was the more probable offence.
[26] These cases concerned doubt as to an essential substantive element of the offence. A receiver is by definition a second stage offender and if there is reasonable doubt whether an accused is in fact a first stage offender – a thief - he cannot be
convicted of theft. Equally one who is a second stage offender – a receiver - cannot concurrently be a thief and in logic, if there is reasonable doubt whether an accused is in fact a receiver, he cannot be convicted of that offence. Despite its unattractive result this approach is logical.
[27] I have considered whether in the present case it may be argued that the Crown has established against the respondent the substantive elements of the s 56(1) offence. The argument would be that the course of electing within 10 minutes to have a blood test provides a procedural safeguard, allowing him to show that his blood alcohol level was below the statutory limit and in that event the less precise regime of evidential breath testing is superseded by the blood test regime. On such approach there would be no substantive inconsistency between the elements of the s 56(1) and the s 56(2) regime. So the ratio of Yip Kai-foon and Sizemore would have no application.
[28] The defence to a s 56(1) charge could only be that there had been an election under s 70A or there was a failure by the police to put the election to the respondent. At first sight such defence might be seen to fall within s 67(8) of the Summary Proceedings Act 1957 which provides:
(8) Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence in the enactment creating the offence, may be proved by the defendant, but, subject to the provisions of section 17 of this Act, need not be negatived in the information, and, whether or not it is so negatived, no proof in relation to the matter shall be required on the part of the informant.
[29] I am however satisfied that such analysis is not available. Section 70A was introduced by the Land Transport (Road Safety) Enforcement Act 2001 s 3 of which begins:
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…
[30] Parliament has acknowledged the possibility that the evidential breath test may be inaccurate. It follows in my view that the offence under s 56(1) is not to be treated as substantively complete subject to a s 67(8) defence. Rather, as the Court of Appeal assumed in Gallagher, the s 56(1) offence is to be treated as incomplete unless the absence of an election for a blood test is established by the Crown on the balance of probabilities.
Result
[31] Since that has not been established the appeal must be and is simply dismissed.
W D Baragwanath J
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