Porteous v Police

[2013] NZHC 2539

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000230 [2013] NZHC 2539

BETWEEN

STUART GORDON PORTEOUS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	30 September 2013
Counsel:	Z K Mohamed for Appellant K C Francis for Respondent
Judgment:	30 September 2013

JUDGMENT OF COLLINS J

Introduction

[1]      Mr Porteous appeals his conviction for driving with excess breath alcohol. [2]          The questions I have to consider are:

(1)Whether there was sufficient evidence to enable the District Court Judge to conclude Mr Porteous had not exercised his right to have a blood test.

(2)Whether the police constable’s evidence on this issue was contradictory.

(3)Whether the District Court Judge gave sufficient reasons for finding against Mr Porteous on the first two issues.

PORTEOUS v NEW ZEALAND POLICE [2013] NZHC 2539 [30 September 2013]

(4)Whether the police prosecutor conducted his cross-examination of Mr Porteous in a way which materially undermined Mr Porteous’s right to a fair trial.

Background

[3] On 8 September 2012 Constable Whitefield observed a vehicle driven by Mr Porteous turning sharply into a side street just before a checkpoint. Breath test procedures found Mr Porteous’s breath contained 809 micrograms of alcohol per litre of breath. Mr Porteous admitted consuming ten bottles of beer prior to driving. Mr Porteous was then given 12 minutes to consider whether or not he wished to have a blood test. Mr Porteous claims he told Constable Whitefield that he wanted to undergo a blood test. Constable Whitefield disagrees and says Mr Porteous did not elect to undergo a blood test.

[4] On 8 July 2013 Judge Fitzgerald convicted Mr Porteous of driving with excess breath alcohol.1

The conflicting accounts

[5]   Constable Whitefield’s account of events was that after failing his first breath test Mr Porteous accompanied the constable to an alcohol bus to give an evidential breath test and/or blood test. At the roadside Mr Porteous received an explanation of his rights under the New Zealand Bill of Rights Act 1990 (NZBORA) and indicated he understood that advice. Mr Porteous and Constable Whitefield then entered the bus. At the front portion of the bus a breath test procedure sheet was filled out and Mr Porteous signed a form saying that he had received his advice under the NZBORA and that he did not want to consult a lawyer. An evidential breath test was given and produced the reading of 809 micrograms of alcohol per litre of breath. Constable Whitefield then again read Mr Porteous’s rights under the NZBORA and while Mr Porteous said he understood those rights he refused to sign the form. While this was happening Mr Porteous was talking to his friends on the footpath. Constable Whitefield then advised Mr Porteous that he had the right to elect a blood test within a ten minute period. Constable Whitefield kept notes of this.

1       Land Transport Act 1998, s 56(1).

[6]   When the ten minute period for electing a blood test started Mr Porteous got out of the bus and stood with his friends on the footpath outside it. When the ten minute period had elapsed Constable Whitefield gestured to Mr Porteous to come back into the bus. Constable Whitefield’s evidence was that Mr Porteous did not elect to have a blood test within the ten minute period prescribed under the Land Transport Act 1998.

[7] Mr Porteous’s account of events is that directly after he was advised of his right to elect a blood test within a ten minute period he said that he would like to have a blood test. He says he then stepped outside to talk to his friends and went back on the bus and when told to do so by Constable Whitefield. Mr Porteous said he walked to the back of the bus to undergo a blood test was then informed his ten minute period for electing a blood test had lapsed. He said he wanted a blood test and that he and Constable Whitefield had a brief argument. At this time Mr Porteous says he refused to sign any further documents.

Was the District Court Judge right when he concluded Mr Porteous did not ask for a blood test?

[8] Judge Fitzgerald was faced with two competing versions of events and had to choose between the witnesses by assessing their credibility. In R v Munro the Court of Appeal found that there are advantages in seeing and hearing witnesses in the context of an entire trial when assessing a witness’ credibility.2 This aspect of Murno was affirmed by the Supreme Court in Owen v R when it recognised the advantages lower courts have in assessing the honesty and reliability of witnesses.3

[9] In my view the matters raised by Mr Porteous to support his claim that there were contradictions in Constable Whitefield’s evidence are peripheral and do not significantly detract from the force of Constable Whitefield’s evidence or undermine the Judge’s assessment of the constable’s credibility. There was more than sufficient evidence  to  enable  Judge  Fitzgerald  to   conclude   that   he   accepted Constable Whitefield’s  account  over  that  given  by  Mr  Porteous.    In  particular,

2       R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [83]-[84].

3       Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [15].

Constable Whitefield consistently said Mr Porteous did not exercise his right to a blood test.  Constable Whitefield’s evidence on this point was not undermined.

Did the District Court Judge give sufficient reasons for his conclusions?

[10]  It is well established that adequate reasons should be provided4 and especially so where the Judge’s findings involve assessments of credibility.5 However, in this case Judge Fitzgerald provided adequate reasons for finding the essential elements of the charge proven.  Judge Fitzgerald said Constable Whitefield had given evidence

that Mr Porteous did not elect to undergo a blood test. This was his evidence in chief and  reaffirmed  in  cross-examination.  He   was   not   shaken   on   the   point. Judge Fitzgerald found Constable Whitefield’s account of events was supported by the  constable’s  contemporaneous  notes.  In  contrast,  Judge  Fitzgerald  found Mr Porteous’s evidence was inconsistent. The District Court Judge was also aware Mr Porteous had consumed a significant quantity of alcohol at the relevant time.

Did the prosecutor act unfairly when cross-examining Mr Porteous?

[11] Mr Porteous says the police prosecutor’s conduct when cross-examining him amounted to a suggestion that Mr Porteous was motivated to lie. Mr Porteous takes issue with the fact the prosecutor put to him that he became unco-operative and became “anti police” when he realised he had failed the test. Mr Porteous says this implies that the prosecutor was saying he had a motive to lie to avoid conviction.

[12] It is well established a prosecutor should not accuse a witness of having a motive to lie without there being an appropriate evidential foundation for that proposition.6 In R v Stewart (Eric) the Supreme Court emphasised the importance of observing this rule in relation to challenges to the evidence of a defendant because a generalised allegation that an accused person has a motive to lie simply to avoid conviction “... subverts the presumption of innocence”.7

4       R v Awatere [1982] 1 NZLR 644 (CA).

5       Lundquist v Police HC Auckland AP67/99, 13 August 1999;  R v Atkinson [1984] 2 NZLR 381 (CA) at 383.

6       R v Stewart (Eric) [2009] NZSC 53, [2009] 3 NZLR 425.

7 At [26].

[13] However, in this case the police prosecutor was not suggesting Mr Porteous had a motive to lie simply to avoid conviction. The prosecutor was putting to Mr Porteous that he became uncooperative when he realised he was in trouble. This was an orthodox and legitimate course of cross-examination designed to reinforce the accuracy of Constable Whitefield’s evidence.

Conclusion

[14]     There was a sufficient evidential foundation for Judge Fitzgerald to conclude Mr Porteous had not requested a blood test.

[15]     Constable Whitefield’s evidence was not materially contradictory. [16]         Judge Fitzgerald gave sufficient reasons for reaching his conclusion.

[17]     The police prosecutor’s conduct when cross-examining Mr Porteous did not infringe Mr Porteous’s right to a fair trial under s 25(a) NZBORA.

[18]    In these circumstances the appeal must be dismissed.

D B Collins J

Solicitors:

Zahir K Mohamed, Manukau for Appellant Crown Solicitor, Auckland for Respondent