Police v W HC Auckland CRI 2007-404-32
[2007] NZHC 1857
•18 June 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-404-0032
NEW ZEALAND POLICE
Appellant
v
W
Respondent
Hearing: 28 May 2007
Appearances: N R Williams for the appellant
F P Hogan for the respondent
Judgment: 18 June 2007
JUDGMENT OF STEVENS J
Solicitors/Counsel:
Crown Solicitor, PO Box 2213, Auckland
F P Hogan, Dykes Road, Karaka, R D 1, Papakura
NZ POLICE V W HC AK CRI 2007-404-0032 18 June 2007
Table of Contents
Para No
Introduction [1] Factual background [6] Breath testing regime in the 1998 Act
The position in 1998 [17]
The position from 2001 [20] Elements of the offence [29] Reasonable compliance s 64(2)
Legal principles [35]
Appellant’s submissions [42] Respondent’s submissions [52] Discussion [55] Operation of s 64(4) [60] Appellant’s submissions [61] Respondent’s submissions [76] Discussion [78]
Result [85]
Introduction
[1] This is an appeal by way of case stated from a decision of Judge C S Blackie in the District Court at Manukau on 18 October 2006. In an oral decision given following a defended hearing, the Judge dismissed an information against Grant John W (the respondent) charging him with an offence against s 56(1) of the Land Transport Act 1998 (the Act) of driving a motor vehicle with excess breath alcohol.
[2] The Judge found that the evidence disclosed that three samples of breath were given by the respondent, but only two new mouthpieces were used by the enforcement officer contrary to the requirements of the Transport (Breath Tests) Notice (No 2) 1989 (the Notice). The Judge therefore had doubts as to the accuracy of the reading on the breath testing device, as the Notice requires that a new mouthpiece be inserted into the device each time a person blows into it. The Judge was not satisfied that all of the required steps had been carried out in accordance with the Notice. Hence, the respondent was entitled to the benefit of any doubt and the information was dismissed.
[3] The Judge agreed to state a case for determination by the High Court pursuant to the provisions of the Summary Proceedings Act 1957. Two questions
were posed in order to ascertain whether the decision was erroneous in point of law, namely:
a) Was the Judge correct in holding that the reasonable compliance provision in s 64(2) of the Act could not operate to cure the error he found in relation to the number of mouthpieces used in the evidential breath test?
b)Was the Judge correct in holding that, because he had a doubt as to the accuracy of the reading on the device, he should dismiss the information notwithstanding s 64(4) of the Act?
[4] The New Zealand Police (the appellant) submitted that the reasonable compliance provision, s 64(2) of the Act, operated to cure the error regarding the number of mouthpieces used by the enforcement officer. Additionally, the appellant submitted that s 64(4) of the Act prohibited the respondent from defending the charge on the basis of an alleged error in the result of the evidential breath test. On the basis of these submissions, the appellant submitted that the Judge should not have dismissed the information. The respondent submitted that the Judge’s decision was correct and that because the requirements of the Notice had not been complied with, the Judge was correct to dismiss the information.
[5] For the reasons which follow, both questions are answered “no”. Accordingly, the appeal is allowed and the case remitted to the District Court for the entry of a conviction and sentencing.
Factual background
[6] The facts of the case are conveniently set out in the case stated. In December
2005, an information was laid by the appellant charging the appellant with an offence against s 56(1) of the Act of driving with excess breath alcohol. The respondent pleaded not guilty to the charge and a defended hearing took place in the District Court on 18 October 2006.
[7] At the conclusion of the prosecution case, counsel for the respondent submitted, in relation to the evidential breath test, that the evidence disclosed that three breath samples were given by the respondent, but only two mouthpieces were used contrary to the requirements of the Notice. After considering the submissions from counsel for the respondent and the appellant, the Judge dismissed the information because there was a doubt as to the accuracy of the reading on the device. This was because the Notice required a new mouthpiece to be inserted each time the device was blown into and the Judge was not satisfied this had been done.
[8] In terms of the factual background to the charge, it was proved at the hearing that at approximately 10.20pm on 3 November 2005, the respondent was stopped on Castlefinn Drive, Manurewa, by Constable Wyatt. He had seen the respondent’s car turn into that street prior to a compulsory breath testing checkpoint on Weymouth Road in Manurewa. Constable Wyatt required the respondent to undergo a passive breath test using an Alcotech AR1005, serial number 6560. The calibration for this device was due on 23 February 2006. This test produced a fail result.
[9] Constable Wyatt then required the respondent to undergo a breath screening test without delay using the same device, which is an approved breath screening device. Constable Wyatt assembled the device and administered the test in accordance with the Notice (the breath screening test). The breath screening test produced a “fail general” result. The respondent admitted that he had been driving after drinking alcohol, and to Constable Wyatt his eyes appeared glazed and bloodshot. Constable Wyatt could smell alcohol on the respondent’s breath. He then required the respondent to accompany him to the on-site mobile breath testing facility for an evidential breath test, or blood test, or both.
[10] Constable Wyatt subsequently required the respondent to undergo an evidential breath test using a Seres Ethylometre 679T (the device), an approved evidential breath testing device pursuant to cl 7 of the Notice (the evidential breath test). The device had the serial number 4108 and a calibration due on 6 April 2006, as confirmed by the evidential breath testing certificate of compliance which was produced as an exhibit. Constable Wyatt complied with the requirements of the New Zealand Bill of Rights Act 1990 throughout the testing procedures.
[11] The evidential breath test provided a positive result of 708 micrograms of alcohol per litre of breath. The evidential breath test printout was produced as an exhibit and recorded the following:
Seres Ethylometre
MODEL 679T – S/N 4108
DATE: 03/11/05 22:28
CALIBRATION CORRECT AIR BLANK: 0000ug/L SUBJECT TEST: NO SAMPLE TEST TIME: 22:31
CALIBRATION CORRECT AIR BLANK: 0000ug/L SUBJECT TEST: 0708UG/l TEST TIME: 22:33
CALIBRATION CORRECT AIR BLANK: 0000ug/L
SUBJECT TEST: 0795ug/L
TEST TIME: 22:37
AIR BLANK: 0000ug/L CALIBRATION CORRECT
******************************
* EVIDENTIAL BREATH *
* TEST RESULT *
* 0708 *
******************************
[12] Constable Wyatt changed the mouthpiece on the device once he had obtained the first sample. He used two mouthpieces in carrying out the evidential breath test. It is not made clear in the case stated whether a new mouthpiece was used for the first blow, which produced the “no sample” as the subject test result, or whether the change occurred after the second blow which produced the subject test result of
0708. In other words, the use of the words “the first sample” in the case stated creates an ambiguity to which reference will be made later. What is clear, however, is that the Judge found that during the evidential breath test the respondent was required to blow into the breath testing device three times, but the Constable had only used two mouthpieces.
[13] Constable Wyatt immediately advised the respondent of the result of the evidential breath test and read the “Advice of Positive Evidential Breath Test” form (the form) to the respondent, such form being produced as an exhibit. The form advised inter alia that, if the respondent did not request a blood test within ten minutes, the evidential breath test could of itself be conclusive evidence leading to his conviction for an offence against the Act. The form also recorded that, if the respondent chose not to have a blood test, it was no defence to a breath alcohol offence that there was or may have been an error in the result of the breath screening test or the evidential breath test. Following such advice, the respondent did not elect to have a blood test.
[14] The Judge held that the procedures for taking the breath screening test and the evidential breath test were correctly carried out, except in relation to the number of mouthpieces used by the enforcement officer during the latter test. Constable Wyatt had not complied with the requirements of the Notice at that stage of the testing process. This was because, the Judge held, the requirement that a separate or new mouthpiece be inserted each time the person blows into the breath testing device was a precise requirement of cl 10(b)(i) of the Notice, and therefore required compliance. The Judge further found that there was no room to use the saving sections of the Act (namely, ss 64(2) and 64(4)) in respect of this requirement. This is the critical decision for the purposes of the appeal.
[15] Accordingly, the Judge held that because he was not satisfied that all of the requirements of the Notice had been complied with, there was a doubt as to the accuracy of the reading on the device and thus the information had to be dismissed. In order that this decision be tested on appeal, the Judge agreed to state a case posing the two questions referred at [3](a) and (b) above. Before considering the particular nature and scope of s 64(2) dealing with reasonable compliance and s 64(4), the “no defence” provision, it is necessary to describe the breath testing regime under the Act.
Breath testing regime under the Act
The position in 1998
[16] The starting point for considering the statutory scheme regarding breath testing is the definition of the term “evidential breath test” in s 2 of the Act. This provides:
evidential breath test means a test carried out by means of an evidential breath-testing device in a manner prescribed in respect of that device by the Minister of Police, by notice in the Gazette.
[17] Mr Hogan, for the respondent, pointed out that despite the amendments to the statutory scheme in 2001, this definition has remained unchanged.
[18] Where a person was charged with an excess breath alcohol offence against s 56(1) of the Act, the result of an evidential breath test was admissible in any prosecution without the option of a blood test having been given if the evidential breath test indicated that the proportion of alcohol in the breath of the person who underwent the test exceeded 600 micrograms of alcohol per litre of breath: see s
77(5) of the Act prior to 2001. Where the reading was in the range of 400-600 micrograms, a blood test option had to be given in the appropriate manner. The breath test result could still be admissible if the person did not elect to give a blood sample when informed of that option: see s 77(3) of the Act.
The position since 2001
[19] The Land Transport (Road Safety Enforcement) Amendment Act 2001 (the Amendment Act) made a number of significant changes to the statutory scheme relating to evidential breath tests. First, s 77(5) was repealed and a new provision, s 70A, was inserted as follows:
Right to elect blood test
(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.
[20] The Amendment Act also introduced the concept of a certificate of compliance for evidential breath testing devices: see s 75A. Importantly, with respect to s 64, the section dealing with defences, the words “or evidential breath test” were added to s 64(4)(a). There were also some changes to s 64(2). Hence, the section relevantly provides:
64 Defences
…
(2) It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 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.
…
(4) It is no defence to proceedings for an offence against this Act in respect of the proportion of alcohol in a person’s breath-
(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.
[21] Finally, there was a change to terms of the information that an enforcement officer was required to give following a positive evidential breath test, as required by s 77(3)(a) of the Act. Before 2001, the enforcement officer had been required to inform subjects that, if they did not request a blood test, the evidential breath test “could of itself be sufficient evidence” for a conviction. The amendment changed “sufficient” to “conclusive”. The change was discussed by the Court of Appeal in Police v Tolich (2003) 20 CRNZ 150 (CA).
[22] Since the amendments, the law provides that all evidential breath tests that are positive (i.e. in excess of 400 micrograms of alcohol per litre of breath) will be conclusive evidence of an offence having been committed. The additional safeguard is that now all persons who return a positive evidential breath test may elect to undergo a blood test, whereas in the past only those under 600 micrograms could
elect a blood test: see Tolich at [1]–[4]; and Brookers Law of Transportation
(looseleaf ed) at LT70A.01.
[23] The rationale behind such change is spelled out in the purposes section of the
Amendment Act. Section 3 provides that:
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:
…
[24] A Full Court of the Court of Appeal considered the changes introduced by the Amendment Act: see Livingston v Institute of Environmental Science and Research Ltd (2003) 20 CRNZ 253 (CA). The Court referred to the removal of the defence where there was or may have been an error in the result of the evidential breath test, to the availability of a certificate of compliance in respect of the device and to the new safeguard provided in the Amendment Act. Glazebrook J, giving the judgment of the Court, stated at [48] and [49] that:
In addition, s5(2) [of the Amendment Act] amended s 64(4)(a) of the Land Transport Act (contained under the heading of ‘defences’) which now reads that it is no defence to proceedings for an offence against the Act that: ‘there was or may have been an error in the result of the breath screening test or evidential breath test’ [original emphasis].
The 2001 amendments introduced a new s 75A which provides for a certificate of compliance to be provided in respect of a device. Under s 75A(3) the certificate must be treated as conclusive evidence of the matters stated in the certificate and neither the matters stated in the certificate nor the manufacturer’s specifications for the device concerned may be challenged, called into question or put in issue in any proceedings in respect of an offence involving excess breath alcohol recorded by the device. These amendments were fully debated and Parliament added a new safeguard by providing the possibility of blood tests in cases where the result is over 600 as well as where it is under 600. That can be regarded as a quid pro quo for the removal of the ability to challenge the reliability of a breath testing device on a particular occasion.
(emphasis added)
[25] This passage was referred to with approval by the Court of Appeal in R v Allen CA15/06 4 May 2006. O’Regan J, giving the judgment of the Court, stated at [12] that:
In light of the 2001 amendments, it is clear that there is now no defence that the breath testing device has malfunctioned. If a motorist has any concerns about the result of a breath test, the appropriate course of action to take is to undergo an evidential blood test, which renders the evidential breath test irrelevant.
[26] Other safeguards no doubt included the removal of the former conclusive evidential breath test and the requirement of a certificate of compliance of the evidential breath testing device: see Police v Aylwin HC AK CRI-2005-404-440
14 September 2006, Baragwanath and Heath JJ at [20].
[27] It is readily apparent from the scheme of the Amendment Act that the legislature was intending, in relation to evidential breath tests, to remove defences relating to the malfunctioning of the breath testing device or to the reliability of the result of a test using a breath testing device on a particular occasion. If a motorist is concerned about the result of an evidential breath test, then he or she has the safeguard of a right to request an evidential blood test which renders the evidential breath test irrelevant. As stated by the Full Court of the High Court in Aylwin at [21]:
…Parliament has met the possible injustice in a breath alcohol case – of removing the defence accepted in [R v Livingston [2001] 1 NZLR 167 (CA)] that the very result of the evidential breath test was erroneous – by restoring the right to insist upon a blood test, the result of which is conclusive. A defendant prosecuted under s 56(1) (for excess breath alcohol) must previously have received and declined the invitation to undergo a blood test. Parliament has treated the combination of failure of the evidential breath test plus election not to undergo blood test as sufficient to justify conviction even if there may have been a material error in the breath test result.
Elements of the offence
[28] The elements of the offence under s 56(1) of the Act with which the respondent was charged are:
a) Driving or attempting to drive a motor vehicle;
b) On a road;
c) While the proportion of alcohol in the breath exceeds 400mg of alcohol per litre of breath;
d) As ascertained by an evidential breath test undergone under s 69.
[29] It is common ground between the parties that the central issue on appeal is the adequacy of proof of the fourth element. This element was considered by the Court of Appeal in R v Livingston [2001] 1 NZLR 167. Giving the judgment of the Full Court, Tipping J stated at [8] that:
The concept of the proportion of alcohol being “as ascertained by an evidential breath test subsequently undergone … under section 69” contains two discrete ingredients. First, there must have been an evidential breath test; second, it must have been undergone under s 69. The first ingredient can itself be further broken down. Whether there has been a qualifying evidential breath test depends: (a) on whether the test carried out by a device of a kind approved for the purpose by the Minister of Police by notice in the Gazette; and (b) on whether the test was carried out in a manner prescribed, in respect of the device used, by the Minister of Police by notice in the Gazette. In short, the device used must be of an approved kind, and must be operated in an approved manner.
[original emphasis]
[30] He continued at [14]:
The second ingredient, as mentioned in para [8] above, is that the evidential breath test must have been undergone under s 69. This requires the Crown to establish, if the matter is properly put in issue, that all the necessary procedural steps anterior to and involved in s 69 have been properly carried out. Issues raised in this area, which can be called procedural issues, are questions of law or at least questions of mixed fact and law. They may also involve questions of reasonable compliance under s 64(2).
[31] As noted, the respondent was required to undergo an evidential breath test using a Seres Ethylometre 679T which is a device that complies with the statutory definition of an evidential breath testing device. The terms of the Notice that prescribe the manner of carrying out evidential breath tests using such a device are as follows:
10 Manner of carrying out evidential breath tests by means of
DataMaster, Drager 7110, Intoxilyzer 5000, or Seres
Evidential breath tests carried out by means of… a Drager 7110, an intoxilyzer 5000, or a Seres shall be carried out in the following manner:
(a) Step 1 (start of testing sequence): The enforcement officer shall depress the button for starting the test:
(b) Step 2 (evidential breath test): The enforcement officer shall carry out the testing sequence in accordance with the instructions appearing on the display panel on the device: and-
(i) The enforcement officer shall attach a new mouthpiece to the breath inlet tube and instruct the person being tested to blow through the mouthpiece; and
(ii) The person being tested shall blow through the mouthpiece to provide a subject breath specimen sufficient for analysis, when instructed by the enforcement officer, and
(iii) Step 2(i) and Step 2(ii) shall be repeated, as required, until the testing sequence has been completed:
(c) Step 3 (results of test):
(i) The results of the various steps in the testing sequence will be shown on the result card or printout, and will include the Evidential Breath Test Result which shall be taken to indicate the number of micrograms of alcohol per litre of breath of the person tested:
(ii) If the Evidential Breath Test Result is “Incomplete Test”, the test has been unable to be carried out.
[32] A “Seres” is defined in cl 2(1) as including a Seres Ethylometre model 679T.
[33] It is the question of proof of cl 10(b)(i), or reasonable compliance therewith, that arises in this case. This requires consideration of ss 64(2) and 64(4) of the Act.
Reasonable compliance s 64(2)
Legal principles
[34] In the context of the changes introduced in the Amendment Act, the Court of Appeal in Tolich recently endorsed the need for the Courts to take a liberal approach to the reasonable compliance provision in s 64(2) of the Act. Anderson J, giving the judgment of the Court, stated at [24] that:
This Court has previously stated a need for liberal approach to the reasonable compliance section. In Shaw v Police 21/9/95, CA212/95, Cooke P referred to Coltman v MoT [1979] 1 NZLR 230 and Aualiitia v MoT [1983] NZLR 727 and noted:
The judgments in both cases emphasise the need for a liberal approach to the reasonable compliance section, the extent of any non-compliance and whether there is any real possibility of prejudice to the defendant being highly material.
[35] The point in Shaw turned on the validity of the blood analysis certificate. The certificate omitted to state that the analyst was employed by an approved laboratory. Dismissing the appeal, Cooke P stated at 5 that:
The departure from the literal requirement was very minor and there has been a total lack of prejudice to the defendant, who could have applied for the analyst to be called or had his own blood analysis carried out if in any doubt of the position of J. Bradbury or that he himself had been grossly over the alcohol limit.
…This Court reaffirms that breath and blood alcohol prosecutions should not be allowed to be defeated by purely technical and non-prejudicial errors or omissions.
[36] The factors relevant to a determination of whether there has been reasonable compliance are conveniently summarised in Brookers Law of Transportation at LT64.03. These factors are drawn from the relevant authorities and include:
a) The extent of non-compliance. The greater the non-compliance, the less appropriate it will be to apply the section.
b)Whether there is a real possibility that the defendant has been prejudiced by the non-compliance.
c) Whether there is a reasonable doubt that an ingredient of the charge has been proved. If there is, it will probably be inappropriate to apply the section for the purpose of removing doubt.
d)Where an enforcement officer has to exercise a discretion and has acted reasonably and treated the defendant fairly, the section may be applied.
[37] The Court of Appeal considered the question of reasonable compliance in Soutar v Ministry of Transport [1981] 1 NZLR 545 (CA). The case concerned the steps required in carrying out an evidential breath test by means of an Alcosensor II under the Transport (Breath Tests) Notice 1978. At issue was the requirement under cl 7(a) that “the enforcement officer shall depress the SET button” on the device at the start of an evidential breath test. The evidence was that the enforcement officer had not depressed the SET button because it was already in a depressed position.
[38] On the question of whether there had been reasonable compliance under s 58E of the Land Transport Act 1962, which is essentially identical to s 64(2), could apply to the steps required under the Breath Tests Notice, Richardson J stated at 547-548:
It is implicit in the scheme and language of the breath alcohol provisions of the Transport Act that the procedure laid down in the Transport (Breath Tests) Notice 1978 is mandatory in the sense that if it is not complied with a prosecution fails unless saved by the reasonable compliance provisions of s 58E. …
In s 58E the legislature has made it perfectly clear that the reasonable compliance test is to apply in every case where “any provision or provision[s] … have not been strictly complied with or have not been complied with at all …”. So it contemplates that an omission to take a step required under cl 7 will not be fatal so long as there has been reasonable compliance with the relevant provisions.
[39] The judgment of McMullin J is also instructive. On the reasonable compliance point, His Honour stated at 550:
The tests to be applied on a consideration of s 58E [dealing with reasonable compliance] were considered by Woodhouse J and Cooke J in this Court in Coltman v Ministry of Transport [1979] 1 NZLR 330n [sic]. It is true, as has been submitted, that the non-compliance in that case was of a quite different kind to the present, relating to defects in a certificate, and that the relevant section (then s 58(2)) was somewhat differently worded, but the principles there enunciated have equal application to a non-compliance of the type that occurred here. Two questions are to be asked. Is the non-compliance such as to cause a reasonable doubt about the correctness of the result? Is there a risk that the non or partial compliance may give rise to a risk of injustice and unfairness?
[40] Finally, reference is made to Waring v Police [2005] DCR 842 (HC). That case considered whether the breath alcohol provisions of the Act were a legislative
code under which a procedural error relating to the breath screening test should lead to automatic exclusion. Simon France J stated at [41] and [42] that:
…it is very difficult to suggest with the alcohol impaired driving offences that Parliament could be said to have enacted a code, the failure to comply with must lead to exclusion of evidence. Rather, the history of the legislation suggests quite the opposite with provisions such as s 64 carrying the message that cogent real evidence of driving with excess alcohol should not be rejected and convictions should be entered unless there is a reasonable doubt that the result on which the prosecution is based is valid.
Whilst the detailed prescriptive nature of the procedures that are set out in the Act and Notices could support a code type argument, the enactment of broadly worded provisions such as s 64(2) and 64(4) tells strongly against it.
…
Appellant’s submissions
[41] Mr Williams, for the appellant, filed comprehensive written submissions. These addressed the first question for determination, namely whether the Judge was correct in holding that the reasonable compliance provision in s 64(2) of the Act could not operate to cure the error relating to the number of mouthpieces used in the evidential breath test. Mr Williams submitted that there was reasonable compliance with the requirements of the Notice when Constable Wyatt conducted the evidential breath test on the respondent. It will be recalled that the Judge had held that compliance with cl 10(b)(i) of the Notice was a precise requirement and there was no room to use the ss 64(2) or 64(4) in the Act in respect of this particular requirement. The Judge added that there was doubt as to the accuracy of the reading on the device.
[42] It is convenient first to consider whether, as outlined by McMullin J in Soutar, the non-compliance is such to cause reasonable doubt about the correctness of the result. Mr Williams submitted that the extent of the non-compliance here was minor. Constable Wyatt adhered completely to the correct procedure in the Notice, except that he used two mouthpieces rather than three.
[43] Mr Williams submitted that the reason for requiring a new mouthpiece before instructing the person being tested to blow through the mouthpiece is that multiple blows could give rise to condensate forming which might effect the result. Mr Hogan agreed and pointed out that the terms of the applicable Notice recognised
a point which had been made by the Court of Appeal in Falesiva v Ministry of
Transport [1987] 1 NZLR 275 (CA).
[44] But Mr Williams noted that the first actual sample recording a reading was on the second blow. This was on the basis that the first blow produced “no sample”. On the second blow, the reading was 708 micrograms of alcohol per litre of breath. The third blow produced a reading of 795 micrograms. Given that two new mouthpieces were used in the course of the three blows, logically either one or other of the second or third blows must have been given through a new mouthpiece.
[45] With respect to the case stated, paragraph 6(h) contains an ambiguity. It states that “Constable Wyatt changed the mouthpiece on the device once he had obtained the first sample”. What the case does not make clear is whether the change in the mouthpiece occurred between the first “no sample” reading or between the second and third readings. Whichever is correct, it does not effect the logic of Mr Williams’ submission. Moreover, the machine gave as the “evidential breath test result” the lower of the two readings at 708 micrograms.
[46] Mr Williams submitted that both of the recorded readings were significantly above the legal limit of 400 micrograms. He submitted that, in terms of reasonable compliance, there was no reasonable possibility that any tainting through the forming of condensate in the twice-used mouthpiece would have been the difference between a reading of greater than 700 micrograms and one below 400 micrograms. Mr Williams argued that this was not the type of case eluded to by Cooke P in Falesiva at 280 where, in the circumstances of that case, “the result [was] so extreme as to be incredible”.
[47] Also relevant to reasonable compliance, Mr Williams noted that the offence under s 56(1) of the Act related to the proportion of alcohol in the respondent’s breath exceeding 400 micrograms. This point was addressed by the Court of Appeal in R v Lapalapa (2003) 20 CRNZ 115. Giving the judgment of the Court, William Young J referred to the reliability issue being treated as referable to whether the result produced by the evidential breath testing device established conclusively that
the breath alcohol level exceeded 400 micrograms, even if it did not establish conclusively what that breath alcohol level was. He added at [25]:
Obviously, the scheme and purpose of the legislation as a whole are important. In our view it is consistent with that scheme and purpose to hold that a conviction under s 56 is appropriate where an evidential breath testing device has produced a reading which, allowing for any possible unreliability in the device itself, establishes beyond reasonable doubt that the defendant’s breath sample contained more than 400 micrograms of alcohol per litre of breath.
[48] Mr Williams then addressed the issue of whether there was a risk that the non or partial compliance with the Notice may give rise to a risk of injustice and unfairness. He submitted that the provisions of the Amendment Act meant that there was no prejudice to the respondents from the non-compliance with the Notice. The amendments removed the defence of error or possible error in the result of an evidential breath test, but subject to the safeguard of the respondent’s right to elect a blood test for any level of possible evidential breath test reading. Here, the respondent had not elected a blood test. Accordingly, Mr Williams relied upon the comments of the Court of Appeal in Allen at [12] that “if a motorist has any concerns about the result of a breath test, the appropriate course of action is to undergo an evidential blood test, which renders the evidential breath test irrelevant”. He submitted that this effectively ends any argument by the respondent that he could have been prejudiced by any non-compliance in this case.
[49] Mr Williams also submitted that there was no evidence or suggestion that Constable Wyatt acted in bad faith or acted improperly. Mr Hogan properly accepted that this was the case.
[50] In terms of the question of risk of injustice and unfairness, Mr Williams contended that there were three further factors that were relevant in this case. First, the respondent failed the passive breath test given by the Constable. Second, he failed the breath screening test by producing a “fail general” result. This aspect may be taken into account as confirmed by the Court of Appeal in Falesiva at 279. The third aspect is that the respondent admitted that he had been driving after drinking alcohol and to the Constable his eyes appeared glazed and bloodshot. Constable
Wyatt could smell alcohol on the respondent’s breath: see the case stated at paragraph 6(c).
Respondent’s submissions
[51] Mr Hogan referred first to the reason for the requirement that a new mouthpiece be used for each blow through the mouthpiece. This was to remove the risk of condensate forming and effecting the result. Mr Hogan also submitted that no machine is perfect and can, on occasions, malfunction. He noted that the Seres Ethylometre used in this case would default to an incomplete result if there were a variance of more than 15% between particular samples. In such an event, the evidential breath test must be done again. Counsel submitted that the variation between the second and third samples was 12%, which was close to the variation required to cause an incomplete result.
[52] Mr Hogan also submitted that here the error in the breath testing process was a human error on the part of the enforcement officer. The officer had failed to use a new mouthpiece for each sample. Accordingly, this meant that there had not been an evidential breath test which met the requirements of the definition of that term as set out in s 2 of the Act. What the law required was a test carried out “in a manner prescribed in respect of that device by the Minister of Police, by Notice in the Gazette”.
[53] While this may be correct, the legislation contains a reasonable compliance provision in s 64(2). It is no defence that there has not been strict compliance, provided that there has been reasonable compliance with the applicable provisions.
Discussion
[54] Having considered the submissions on behalf of the appellant and the respondent, I consider that there is much force in the submissions advanced on behalf of the appellant. Accordingly, I am of the view that the requirements for application of the reasonable compliance provision in s 64(2) of the Act are met. It
follows that the Judge was not correct in his decision on the first question for determination by this Court.
[55] The reasons for reaching this conclusion relate first to the extent of the non- compliance with cl 10(b)(i) of the Notice in the particular circumstances of this case. Given that two mouthpieces were used to produce three samples, it follows inevitably that one of the positive readings of either 708 micrograms or
795 micrograms was provided through a new mouthpiece. Second, the evidential breath test result at 708 micrograms is well above the level of proof of
400 micrograms required as an element in s 56(1) of the Act: cf R v Lapalapa. Third, there was no evidence before the Court to indicate that a difference between a reading of greater than 700 micrograms and one below 400 micrograms could have resulted from the type of non-compliance that occurred here.
[56] Turning to the question of risk of injustice and unfairness, counsel for the appellant argued that it was significant that the respondent did not elect to undergo an evidential blood test. Whilst this is a policy factor which is undoubtedly relevant to the legislative changes made in 2001, the case stated does not refer to any facts which suggest that this aspect was relevant to the respondent’s decision at the time of the evidential breath test. However, Mr Williams also referred to other factors such as the respondent failing the prior passive breath test, failing the breath screening test, and the Constable’s observations of the respondent’s state of inebriation. He submitted that such factors militated against there being any risk of any injustice occurring. Such factors do arise on the facts of this case as recorded in the case stated and as noted at [9] above. I consider that, taken together, these factors do suggest that the non-compliance, concerning as it did at most one of the samples, did not give rise to any injustice or unfairness in the particular circumstances of this case.
[57] Moreover, I consider that the issue raised by the respondent before the Judge relating to the number of mouthpieces used was in the nature of a purely technical and non-prejudicial error or omission: cf Shaw v Police.
[58] Accordingly, for the above reasons I consider that the answer to the first question posed for determination by the Court is “no”.
Operation of s 64(4)
[59] The second question posed by the case stated was: Was I correct in holding that because I had a doubt as to the accuracy of the reading on the device, I should have dismissed the information, notwithstanding s 64(4) of the Act?
Appellant’s submissions
[60] Mr Williams relied in this part of the case on the decision of the Court of Appeal in Falesiva. That was a case where the appellant appealed against conviction for excess blood alcohol on the grounds that there had been an error in the way in which the prior evidential breath tests had been conducted. It was alleged that, while undergoing the evidential breath test, the appellant blew twice into the same mouthpiece, or may have done so, contrary to the requirements of the applicable Transport (Breath Tests) Notice 1978.
[61] The outcome in Falesiva depended on the provisions in the then applicable s
58(5) of the Land Transport Act 1962 which was a precursor provision to s 64(5). Section 58(5) provided:
It shall not be a defence to charge under subsection (1)(b) of the section.
(a) That there was or may have been an error in the result of the evidential breath test; or
(b) That the occurrence or likely occurrence of any such error did not entitle or empower any person to request or require a blood test.
[62] Mr Williams referred to similarities between s 58(5) of the 1962 Act and s 64(5) of the present/current Act. He also drew attention to differences between the wording of s 64(5) and s 64(4) of the Act. He then submitted that, given that s 64(4) of the Act is structured in the same way as s 64(5), decisions on the interpretation of the latter (or similar) section should be applied to s 64(4).
[63] With respect to the facts in Falesiva, an affidavit was filed by the appellant establishing that, when a person blows through the same mouthpiece twice, the readout given may not be a true representation of the essence of the alcohol content of his or her breath. The affidavit was filed shortly before the hearing and the respondent (the Ministry of Transport) did not agree with its contents. Accordingly, the Court held that it would be unsafe to accept the views put forward in the affidavit as necessarily being correct. But the Court held that the affidavit did not effect the outcome of the case.
[64] On the interpretation of s 58(5) of the 1962 Act, Cooke P, on behalf of himself and Hillyer J, stated at 279-280:
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.
This means that in s 58(5) the words “the evidential breath test” are not limited to such tests carried out correctly or substantially correctly. Naturally the definition of evidential breath test in the interpretation section, s 57A, contemplates a test carried out by a duly approved evidential breath-testing device and in a manner prescribed; but, like other statutory definitions, that one is expressed to apply “unless the context otherwise requires”. We think that the context of s 58(5) in the Act and the evident purpose of that subsection do require a wider interpretation there. Section 58(5) should be held to refer to evidential breath tests carried out in fact and in good faith, even though to a degree which may be considerable they fail to comply with the correct procedure.
Let it be repeated that if there has been a defect in the carrying out of the evidential breath test but not such a serious one that in consequence there is or may have been an error in the result, that defect is highly likely to be protected by the reasonable compliance provisions. While it is trite to say that every case must turn on its own facts and one cannot make sweeping generalisations in a judgment without the precaution of any qualification whatever, it can safely be said that a shortcoming in a test having no bearing on the result is prima facie the very type of non-compliance which s 58E is apt to cover. Section 58(5) has now strengthened the provisions of the Act directed against technical defences by ensuring that the blood test result
stands even if for any reason the evidential breath test result may have been wrong.
(emphasis added)
[65] The separate but concurring judgment of McMullin J also discussed the scope of s 58(5) of the 1962 Act. At 282, His Honour stated:
Section 58(5) was obviously aimed at minimising or removing defences to blood alcohol prosecutions arising from the intermediate breath testing which survived the operation of s 58E. Mr Hogan submitted that it can have no application to the present case; indeed that it has no application in any case unless there has first been a valid evidential breath test. But to read it in that way would be to overlook the statutory history to which reference has already been made.
The phrase “error in the result of the evidential breath test” is a wide one. The error is not limited to one which has occurred in a particular way. An error in the result of an evidential breath test may occur in a number of ways; for instance from a defect in the testing device, or a failure on the part of the enforcement officer to observe the proper procedure or the making of a wrong reading during the taking of the prescribed steps. It may result from a mechanical failure or a human failure. If any one of these defects, mistakes or failures results in an error in the result of the evidential breath test then that will be an error falling within s 58(5). The wording of the subsection is wide enough to encompass all these matters.
(emphasis added)
[66] Mr Williams also relied upon Shortland v Police HC WHA CRN2088020930
9 July 2004, Laurenson J, a case decided after the Amendment Act came into force. The appellant had failed a breath screening test and then the enforcement officer administered an evidential breath test. The question was whether there was sufficient evidence to prove that the testing procedure described in evidence as an “evidential breath test” was in fact carried out in accordance with the relevant Notice. There was no evidence that the Police Officer had attached a new mouthpiece to the testing device or that he had instructed the appellant to blow into it. There was evidence that the appellant did blow into the mouthpiece twice. Other than that, the procedure in the Notice was correctly followed.
[67] In those circumstances, Laurenson J at [40] and [41] stated:
In the present case I have identified two elements of the procedure prescribed by the Notice which cannot be said to have been covered by other
evidence namely, the fixing of new mouthpieces to the device and the instruction to the appellant to blow into them.
There can be no doubt in my view if perchance neither of these two steps had been carried out; any defence based on them would have been avoided by, now, s64(5). [sic].
[68] The Court in Shortland had considered s 64(5) of the Act because the appellant had elected to undergo a blood test which was found to be positive. The wording of s 64(5) uses language in subparagraph (a) identical to that in s 64(4)(a). Hence, the relevance of the case to the present.
[69] Mr Williams submitted that the present case is in essence on all fours with the decision in Shortland. He acknowledged that the respondent here did not undertake a blood test. However, the option was put to him and he was informed that the evidential breath test could of itself be conclusive evidence to lead to his conviction for an offence against the Act, and still he refused this option. He submitted that it is for the driver to request a blood specimen be taken if he or she has concerns about the accuracy of the evidential breath test, as provided for in the Act.
[70] Mr Williams submitted that, even if there is an alleged error with the evidential breath test, it will be taken as conclusive evidence if a blood specimen is refused. Section 64(4) prevents any defence based on the alleged error. He submitted that a defence based on the failure to change the mouthpiece for each and every sample would likewise be removed pursuant to s 64(4) of the Act.
[71] Mr Williams also relied on the decision of the Court of Appeal in Allen. He submitted that there the alleged error was arguably greater than in the present case. The appellant had made six unsuccessful attempts to generate adequate samples of breath and only one successful subject test was taken. The printed results card jammed and did not include all the usual information. The appellant had argued that, as the Police Officer gave evidence of only one test being made with sufficient breath to record a result when normally an evidential breath test required two, there was legitimate concern over the safety of the evidence of a positive result.
[72] But this argument was expressly rejected by the Court of Appeal as being contrary to s 64(4). O’Regan J stated at [13]:
The appellant is seeking to achieve through a ruling declaring the result card inadmissible as evidence an effective outcome that the Act specifically provides cannot be achieved by way of a defence. If we were to allow that to occur, we would be undermining the very purpose for which the 2001 amendments were passed.
[73] Mr Williams also cited a passage at LT64.06 in Brookers Law of Transportation dealing with s 64(4) of the Act and its application in Allen. There it was stated:
It is clear that s64(4) also cures any apparent errors in the conducting of an evidential breath test. See [Allen] and commentary at LT75A.06.
[74] The latter commentary provides as follows:
No challenge to accuracy of evidential breath test can be made in face of s 75A(3) and s 64(4)(a)
In [Allen] a challenge was made to the results of an evidential breath test on the basis that there is a residual discretion in the Court to rule inadmissible an evidential breath test result due to legitimate concerns over the safety of the evidence of a positive result. In this case there were a number of breath samples (six) and a result card that was incompletely printed omitting the serial number of the device (the constable wrote it onto the result card by hand). The Court of Appeal held at para 12:
In the light of the 2001 amendments, it is clear that there is now no defence that the breath testing device has malfunctioned. If a motorist has any concerns about the result of a breath test, the appropriate course of action to take is to undergo an evidential blood test, which renders the evidential breath test irrelevant.
Respondent’s submissions
[75] On this point, Mr Hogan submitted that the Act defines the term “evidential breath test”. It requires that the test be carried out by an evidential breath-testing device and in a manner prescribed by Notice for the particular device. For the evidential breath test to be one which qualifies under s 69 of the Act, it must be operated in the prescribed manner: cf R v Livingston.
[76] But here there was an admitted error or omission concerning the number of mouthpieces used. Hence, the requirements of the Notice had not been met (cl 10(b)(i)) as a result of human error on the part of the enforcement officer. Thus, there was no qualifying test and the provisions of s 64(4) could not enable the prosecution to cure the error.
Discussion
[77] There is no doubt that Constable Wyatt carried out an evidential breath test in the sense that he administered the test and obtained a result. The respondent blew into the mouthpiece on three occasions, on two of which a new mouthpiece was used. Measurements of the amount of alcohol on the respondent’s breath were obtained on the second and third blows. The respondent did not elect to undergo a blood test. There was no evidence of bad faith or improper conduct on the part of the officer. The question then is whether the failure of the officer to use a fresh mouthpiece on each occasion that the respondent blew into the device was fatal to the prosecution.
[78] In my opinion, that failure of the officer to comply with cl 10(b)(i) of the Notice caused an error in the result of the evidential breath test falls squarely within the wording of s 64(4)(a) of the Act. The Court of Appeal made it clear in Falesiva that the cause of the error, or possible error, is immaterial. Even a mistake by the officer in endeavouring to follow the steps in the Notice, or even the inadvertent omission of such a step, would nevertheless qualify as causing, or possibly causing, an error in the result of the evidential breath test.
[79] In my view, the answer to Mr Hogan’s submission is to be found in the reasoning of the Court of Appeal in Falesiva. Hence, the words “evidential breath test” are not limited to tests that have been carried out correctly or even substantially correctly. As with any statutory definition, the requirements of the definition apply “unless the context otherwise requires”: see s 2(1) of the Act. The provisions of s
64(4) of the Act properly construed in accordance with the statutory context and purposes (as to which see s 3 of the Amendment Act) mean that the curing effect will apply to evidential breath tests carried out in fact and in good faith, even though to a
degree which may be considerable. (Such tests fail to comply with the correct procedure.)
[80] In this case, as a matter of fact the failure to comply with cl 10(b)(i) in the Notice was not considerable. I agree with Mr Williams that the departure was minor. One, at least, of the actual readings must have been secured through the use of a fresh mouthpiece. If such was achieved with the lower reading of 708, that was the “test result”, as shown at [11] above. If the reading with the new mouthpiece was the higher reading of 795, then the respondent had the benefit of a lower test result in any event by the operation of the test.
[81] Even though the Shortland case discussed at [67] above concerned the application of s 64(5) of the Act, the similarities between s 64(5) and s 64(4) suggest that the same principles should apply. One of the errors or omissions in Shortland related to the failure to prove the fixing of new mouthpieces to the device. The Court held that, if that step had not been carried out, any defence based on the omission would be avoided by s 64(5) of the Act.
[82] Accordingly, even if I am wrong in relation to my decision in respect of the first question posed in the case stated, nevertheless I am of the view that what occurred here would not have provided the respondent with a defence to a charge against s 56(1) of the Act. Any omission by the enforcement officer to comply strictly with the requirements of cl 10(b)(i) of the Notice is cured by the application of s 64(4) of the Act.
[83] I therefore conclude that the Judge was not correct in holding that, because he had a doubt as to the accuracy of the reading on the device, he should dismiss the information notwithstanding s 64(4) of the Act. I conclude that the second question for determination should also be answered “no”.
Result
[84] Both questions for determination having been answered in the negative, it follows that the appeal must be allowed and the matter remitted to the District Court
for the entry of a conviction against the respondent and for sentencing.
Stevens J
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