Pope v Police
[2012] NZHC 1
•10 January 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-000391 [2012] NZHC 1
KENNETH JOHN POPE
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 5 December 2011
Appearances: N M Silich for the Appellant
H W Yiu for the Respondent
Judgment: 10 January 2012
JUDGMENT OF DUFFY J
This judgment was delivered by Justice Duffy on 10 January 2012 at 2.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: N M Silich P O Box 33379 Takapuna North Shore City 0740 for the Appellant
Solicitors: Meredith Connell P O Box 2213 (DX CP24063) Shortland Street
Auckland 1140 for the Respondent
POPE v POLICE HC AK CRI-2011-404-000391 10 January 2012
[1] After a defended hearing in the District Court, the appellant, Mr Pope, was found guilty on 20 June 2011 of one count of driving with excess breath alcohol (third or subsequent), contrary to s 56 of the Land Transport Act 1998. He now appeals against the conviction.
[2] The District Court found that on 2 July 2010, Mr Pope drove with an excess breath alcohol level of 563 micrograms of alcohol per litre of breath. Mr Pope maintains that the breath test administered was unreliable, as it was affected by his use of an asthma inhaler that contained ethanol, which in turn forms a defence of involuntariness: see O’Neill v Ministry of Transport [1985] 2 NZLR 513 (HC).
[3] In order to carry out the evidential breath tests, Mr Pope was required to walk from his motor vehicle, up a hill, to the police bus where these tests are carried out. Mr Pope states that the walk aggravated his emphysema and required him to use his inhaler.
[4] Constable Wakeham, who was the police constable who apprehended Mr Pope, stated that he did not notice that Mr Pope was out of breath during the walk to the police bus, and that the first time he became aware of Mr Pope using his inhaler was after Mr Pope had completed the first evidential breath test. When they reached the bus, two evidential breath tests were administered. The reading of the first test was 563 micrograms of alcohol per litre of breath, which was approximately the expected level, given that Mr Pope had admitted to consuming approximately four beers. It is not disputed that Mr Pope used his inhaler before the second breath test. This test gave a reading of 1,800 micrograms of alcohol per litre of breath (which was clearly wrong). The police accept that the second breath test would have been influenced by Mr Pope‟s use of his inhaler. They maintain, however, that the first evidential breath test is accurate and properly supports the conviction entered against him.
[5] There was a dispute about the length of time between the two evidential breath tests. Mr Pope said that the second test was administered approximately
10 minutes after the first test; whereas Constable Wakeham said that it was
administered two minutes after the first test. Constable Wakeham‟s view is
supported by the time recorded on the breath-testing device. However, given the police‟s acceptance that the second test was clearly influenced by Mr Pope‟s use of his inhaler, it seems to me that the material dispute in this appeal is whether Mr Pope used his inhaler before the first test was administered.
[6] Whilst Constable Wakeham‟s evidence was that he did not notice Mr Pope use his inhaler before the first evidential breath test, he did not expressly and unequivocally state that he watched Mr Pope at all times before the first breath test and that Mr Pope was not seen to use the inhaler. The District Court Judge appears to have inferred from the constable‟s evidence that this must have been the case, as without such an inference being drawn, there is no evidence to exclude the possibility of the inhaler being used before the first breath test. The Judge also concluded that there was insufficient evidence that Mr Pope‟s inhaler had alcohol in it, that he had used the inhaler at all, or that any alcohol in the inhaler would significantly affect the reading. Accordingly, the District Court Judge found that the charge of driving with excess breath alcohol (third or subsequent) had been established and that Mr Pope had not established a defence of involuntariness.
[7] I have difficulty with the Judge‟s conclusion that there was insufficient evidence that Mr Pope‟s inhaler had alcohol in it, or that he used the inhaler at all. The reading of the second evidential breath test was clearly wrong and the police accept that it was influenced by Mr Pope‟s use of his inhaler. It must follow from this that the inhaler did have alcohol in it and would significantly alter the evidential breath test reading. I am satisfied that the available evidence establishes that Mr Pope‟s inhaler would skew the reading of his alcohol breath level if the inhaler was used before an evidential breath test was taken.
[8] The Judge found that Mr Pope was mistaken about his use of the inhaler before the first evidential breath test and that his memory was influenced by his consumption of alcohol. In making this finding, the Judge drew on Mr Pope‟s belief, which the Judge found to be mistaken, that there was a 10 minute time gap between each evidential breath test. However, the finding that Mr Pope‟s memory was influenced by alcohol begs the question regarding his use of the inhaler.
[9] The answer as to whether Mr Pope did use his inhaler prior to the first test lies in assessing the evidence of Constable Wakeham and Mr Pope. Under cross- examination, Constable Wakeham rejected the suggestion that he met Mr Pope at the police bus and said that: “I would have walked with him „cos that‟s what I usually do”. Significantly, this account is based on usual practice, rather than a clear memory of what occurred that night. Constable Wakeham said he did not recall Mr Pope being out of breath on the walk back. When asked: “and on the walk back, did you notice Mr Pope using an inhaler?”, Constable Wakeham‟s answer was “no”. Constable Wakeham could not say whether he went into the bus before or after Mr Pope. It was then put to the constable that the inhaler was used before Mr Pope got into the bus:
Q. Well Mr Pope will give in evidence that he used his inhaler, he suffers from emphysema, very bad emphysema and that type of walk he requires, well he required at that time to use his inhaler. He‟s going to give evidence that just before he got into the bus that he was so out of breath that he needed to use that inhaler. Do you – you don‟t recall him using that inhaler?
A. No. The first time I was made aware of Mr Pope making reference to emphysema and needing an inhaler was between the first and second blow of the evidential breath test. That was the first time I was made aware of it.
[10] In his evidence, Mr Pope said that the walk to the police bus was “a bit steep” and he was having problems with his breathing and so he stopped part of the way towards the police bus, used his inhaler and kept walking. Under cross-examination, Mr Pope was challenged about his evidence that the time gap between the two evidential breath tests was approximately 10 minutes. It was put to Mr Pope that the machine print-out showed a two minute difference, rather than a 10 minute difference. He was not, however, directly cross-examined on his evidence that on the way to the police bus, he became out of breath and so used his inhaler before the first evidential breath test. It was put to him in cross-examination:
Q. There‟s obviously some disparity between your version of how – the gap between the two tests and the police officer‟s, or the prosecution‟s, however in that time you did take a puff on your inhaler. That‟s correct is that right?
A. That‟s correct.
[11] When the evidence is closely analysed, it is clear that Mr Pope‟s evidence was properly put to the police constable in cross-examination. The police constable‟s response was to say that the first time he was aware of Mr Pope needing an inhaler was between the first and second evidential breath test. This response is capable of supporting more than one interpretation. It could be understood to mean that when the police constable saw the inhaler being used was in fact the first occasion on which it was used that night. Alternatively, the response could be understood to mean the constable did not notice whether or not Mr Pope used the inhaler until the occasion following the first breath test. The police constable also said he walked back with Mr Pope, but that was based on usual practice, rather than a specific recollection. There is nothing in this answer to inform me that the police constable‟s usual practice was to keep someone in Mr Pope‟s circumstance under view at all times. Nor did the police constable‟s evidence expressly exclude the possibility that Mr Pope used his inhaler during the walk to the bus where the evidential breath tests were to be taken. The police constable‟s evidence did not amount to him saying unequivocally that at all times, as Mr Pope walked towards the police bus, he was under the constable‟s view and that the constable at no time saw Mr Pope use an inhaler before the first test was administered. Without such evidence, it is not possible to be sure beyond reasonable doubt as to whether or not Mr Pope did use his inhaler prior to the first test.
[12] Furthermore, when it came to Mr Pope‟s evidence, whilst his evidence in chief clearly sets out his use of the inhaler prior to the first test, that evidence was not challenged in cross-examination. Section 92 of the Evidence Act 2006 requires a party to cross-examine the opposing party‟s witness on key matters. This does not mean that cross-examining counsel is required to slavishly put all aspects of the prosecution case to the defendant. But where the rejection of a defendant‟s evidence will be pivotal to the outcome of a defended hearing, fairness requires the prosecution to challenge that aspect of the defendant‟s evidence by cross- examination. This principle of fairness, which is based on the need for the Court to have a reasonable opportunity to assess the evidence properly, is well settled and has been applied before and following the passing of the Evidence Act. See R v Soutar [2009] NZCA 227 at [27] and R v Dewar [2008] NZCA 334 at [44], for decisions under the Evidence Act. For decisions under the common law, see Gutierrez v R
[1997] 1 NZLR 192 (CA); and Transport Ministry v Garry [1973] 1 NZLR 120 (SC).
[13] Garry is particularly relevant. The appellant had been convicted of driving with an excess blood alcohol level. At his defended hearing, he called an expert witness whose evidence provided him with a defence. The witness was not cross- examined.
[14] This Court found that the absence of cross-examination meant the expert‟s evidence was unchallenged. Haslam J recognised that there were occasions when the omission to cross-examine was not fatal to the outcome of a case. But in the case before him in the lower Court, the Magistrate had made no findings on the expert‟s evidence that would have entitled the Magistrate to reject the expert‟s evidence on that basis. Accordingly, the prosecution‟s failure to cross-examine the expert was fatal to its case against the appellant. The appeal was allowed and the conviction was quashed.
[15] One of the key matters here was whether or not Mr Pope used the inhaler before the first breath test. The failure to cross-examine on this point meant that the District Court did not have a reasonable opportunity to assess the evidential conflict between Constable Wakeham and Mr Pope. No assessment, therefore, of Mr Pope‟s evidence was properly made.
[16] I have already found that the idea that Mr Pope‟s memory about his use of the inhaler was affected by his use of alcohol is logically flawed as that could only be the case if he had not used the inhaler and was over the limit through a more usual form of alcohol consumption. Thus, the Judge‟s assessment of Mr Pope‟s evidence on this basis was faulty. I can see nothing in the evidence that would properly support an inference that Mr Pope‟s recall of events was unreliable.
[17] The evidence to support a conviction is defective in two respects:
(i) There is a gap in Constable Wakeham‟s evidence, such that it
cannot be said that he could unequivocally exclude the
likelihood that Mr Pope used the inhaler before the first breath test; and
(ii)Mr Pope‟s evidence that he used the inhaler before he underwent the first evidential breath test was not challenged in cross-examination.
[18] Whilst the Judge found that the issue of the level of alcohol in the inhaler did not afford Mr Pope a defence, I consider that the police attitude to the second evidential breath reading, which is accepted by the police as being clearly wrong and being influenced by the inhaler, is itself evidence that the inhaler contained sufficient alcohol to be capable of influencing the breath test to a point where it was unreliable to support a conviction.
[19] It was suggested by counsel for the police that the use of the inhaler with its alcohol content could not be said to be involuntary because as someone who regularly uses inhalers, Mr Pope should have been aware of its alcohol content. The problem with this argument is that first, there is no evidence to show Mr Pope knew the inhaler contained alcohol. Secondly, the evidence shows that Mr Pope needed to use the inhaler because of his emphysema. In that sense, he had no choice as to whether he could use it or not. It was medically prescribed for him and the conditions requiring its use were present. He acted out of necessity and in this way his use could be described as involuntary. The evidence from Constable Wakeham shows that Mr Pope used the inhaler on at least one occasion where both parties accept it was used, and that Mr Pope needed to use it on that occasion. In response to a question from Mr Pope‟s counsel: “you didn‟t consider going through the process again?”, Constable Wakeham replied:
Well after being made aware of Mr Pope‟s emphysema and the challenges he had with the first blow, I was a little bit worried for him obviously „cos he did have those challenges and that was the first time I‟d noticed it. As I said, my sergeant had advised me at the time that the machine had accepted the reading of 0563 and to proceed with the procedure.
The constable accepted that Mr Pope did have health issues, but it was only after the first breath test that the constable became aware of them.
[20] It follows, therefore, that the foundation to support the conviction is unsatisfactory. There was a material dispute between the evidence of the informant and that of Mr Pope. There was no proper assessment of this evidence, nor was any such assessment possible, given the omission to cross-examine Mr Pope on that topic.
[21] I consider that as matters stand, the evidence is such that I cannot exclude there being a reasonable doubt as to the use of the inhaler before the first evidential breath test. The police accept that the use of the inhaler did render the second evidential breath test unreliable. Because they cannot reasonably exclude the possibility that Mr Pope used the inhaler before the first evidential breath test, this is a case where I consider that the prosecution case against Mr Pope has not been proved beyond reasonable doubt. It follows that the finding of guilt in the District Court and the entry of a conviction must be set aside.
Result
[22] The appeal is allowed. The conviction is set aside.
Duffy J
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