Prasad v Police HC Auckland CRI 2011-404-000106

[2011] NZHC 778

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000106

BETWEEN  SHAILENDRA PRASAD Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 July 2011

Counsel:         Z Mohamed for Appellant

Z Johnston for Respondent

Judgment:      14 July 2011

ORAL JUDGMENT OF VENNING J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland
Counsel:

Z Mohamed, PO Box 39, Howick, Auckland

PRASAD V NEW ZEALAND POLICE HC AK CRI 2011-404-000106 14 July 2011

Introduction

[1]      Following a defended hearing before Judge Gittos in the District Court at Auckland, the appellant was convicted of driving with excess breath alcohol.  The Judge fined him $850 together with costs and disqualified him from driving for a period of six months. The appellant appeals against the conviction.

Background

[2]      The appellant was the driver of a car stopped at 6.53am on the 9th May 2010 at a breath screening checkpoint which the Police had set up on the southbound motorway ramp leading to the southern motorway at the top of Hobson Street.

[3]      Constable Short was manning the checkpoint.  He stopped the car driven by the appellant.  The appellant was asked to submit to a passive breath screening test which resulted in a fail result.  He was then asked to park his car at the side of the road.   The appellant was then subjected to a breath screening test using a Dräger

6510 machine.   The appellant failed that test and was required to accompany the officer to a police station for the purposes of an evidential breath test, blood test or both.  The appellant was given his rights under the New Zealand Bill of Rights Act and taken to the Ellerslie police station.   At the Ellerslie police station a breath screening test was conducted at 7.13 a.m.  He failed that test.  That test disclosed a reading of 506 micrograms of alcohol per litre of breath.   He was advised of the result of the test at 7.16 a.m.  He confirmed receipt of that advice and the advice that he was entitled to undergo a blood test.

[4]      The 10 minute period having expired without the appellant indicating he wished to undergo a blood test and the appellant having indicated to the officer he did not wish to consult a lawyer at any stage of the proceedings, he was processed by way of summons and allowed to go.

The District Court hearing

[5]      At  the  District  Court  hearing  Constable  Short  gave  evidence  for  the prosecution.  The appellant gave evidence in his defence.  The appellant denied that the officer had conducted a breath screening test at the roadside and also said when he had asked the officer about a blood test, the officer had told him “that they would need to get a nurse or medical personnel who could take the blood and that could take who knows maybe hours or so” and for that reason he declined to exercise his right.  The Judge rejected the evidence of the appellant on both points and found the charge proved.

The appeal

[6]      In support of his appeal to this Court, the appellant raises four principal grounds:

(a)       first, the Judge was wrong to find that the police officer carried out a breath screening test;

(b)      second, and related to the first point, the Judge was wrong to reject the

appellant’s evidence on that and the other issue;

(c)       third, the appellant was arbitrarily detained and the evidence obtained subsequent to that detention was therefore inadmissible;

(d)finally, that the District Court Judge erred in admitting the check-list completed by the officer as an exhibit in Court.

Decision

[7]      The first two points are challenges to the preference of the police officer’s evidence to that of the appellant.  The Judge, in the course of his decision, gave his reasons for preferring the evidence of the officer to the appellant’s evidence as follows:

[15]     [The appellant] himself gave evidence.  His evidence was primarily directed to two alleged deficiencies in the conduct of these procedures.  First of all, he said that he was not given a breath screening test at the roadside, that all that he was subjected to was an initial check in the car and that the further breath screening test that was required to be carried out was not done. The officer was cross-examined about that and was 100 percent sure, in his own words, that this had been done and that he had noted it in his notebook.

[16]      The other matter of evidential contention which [the appellant] raises is that he says that, when he was read the form concerning his right to seek a blood test, he initiated a conversation with the officer about whether that would be purposeful or helpful and the officer told him it might take some considerable time to get a nurse or some other person to the police station to carry out that task if necessary, thereby implying that he was discouraged from seeking a blood test by the possibility of an indefinite delay in having it come about.  That also was canvassed with the officer in cross-examination and again he was very firm about the fact that no such conversation had taken place.   These are matters of routine with which police officers, particularly those who specialise in traffic enforcement like this officer, are well familiar with.   They are well aware that it is inappropriate to give advice on these matters, and of the need for the necessary sequence of breath testing devices to be gone through before [the appellant] is taken to the police station.

[17]      The officer’s evidence on these things is perfectly plain.  As to the one positive step which he was required to carry out which [the appellant] says he did not carry out, he noted in his notebook that it had been done. As to the other, something which he says did not happen, plainly no note was made, but he was very clear that no such conversation took place.

[18]      The combination  of these two  things  would  be  an extraordinary failing in routine by one officer on one night, and they seem to me, I am sorry to say, to have been selectively chosen by [the appellant] as a means to escape the consequences of his actions.  I do not believe [the appellant].  I find the charge proven.

[8]      Mr Mohamed made the point that in referring to the officer being cross- examined about the issue of the breath screening test and being a hundred percent sure the Judge was wrong.  Mr Mohamed is correct.  It was an error.  The officer’s reference to being a hundred percent sure was to another aspect of his evidence. However, in my judgment, nothing turns on that point because as the Judge correctly noted, the officer said that he had made a record of the breath screening test in his notebook and further when the officer was provided with the check-list to refresh his memory, he was able to confirm the breath screening test.

[9]      I accept the general submission put forward on behalf of the appellant that when  preferring  the  evidence  of  one  witness  to  another  the  Judge  should  give

reasons for such findings but in this case, in my judgment, the Judge has complied with that requirement.

[10]     The Judge was  faced  with a direct conflict between the evidence of the constable and the appellant.  He was required to make a credibility finding.

[11]     As the Supreme Court confirmed in the case of Austin, Nichols & Co Inc v Stichting  Lodestar[1]   while  on  an  appeal  such  as  this  the  appeal  court  must  be persuaded the decision is wrong and no deference is required to be given to the finding in the District Court, that is subject to the recognition that caution is appropriate when seeing the witnesses provides an advantage because credibility is important.  The Supreme Court gave the particular example of such caution being

[1] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at [13].

required when facts found by the trial Judge turn on issues of credibility.  Reference can be made to Rae Insurance v International Insurance Brokers (Nelson Marlborough) Ltd[2] and Rangatira v Commissioner of Inland Revenue.[3]

[2] Rae Insurance v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at p 197 per Richardson P and Tipping J and at p 199 per Thomas J (where apparently broader statements must be read in the context of the appeal against conclusions of fact which turned on credibility).

[3] Rangatira v Commissioner of Inland Revenue [1997] 1 NZLR 129 (PC).

[12]     As the Judge noted, the officer was able to refresh his memory from his notebook and from the check-list which he followed.  They were prepared on the day of the offence.  The officer had his notebook with him.  It seems the check-list was completed a matter of 20 minutes or so later at the Ellerslie police station.   In addition there is the point that the Judge made that the officer was following a procedure which would be well known to police officers.  On its own that may not be of much weight but it is a further factor the Judge was entitled to take into account.

[13]     I take from the Judge’s reference to the officer’s evidence as being perfectly plain that the Judge was impressed by the credibility and reliability of the officer. The officer does appear to have made concessions where appropriate but was firm on the  particular  matters  in  issue.    He  was  clear  that  he  had  carried  out  a  breath

screening test and he was also clear that the discussion the appellant suggested had

taken place regarding delays in obtaining a nurse or medical officer for the blood test, simply did not occur.   The Judge was entitled to make the findings he did preferring the evidence of the officer to that of the appellant.

[14]     The third ground of appeal is an argument that the appellant was arbitrarily detained in breach of s 22 New Zealand Bill of Rights Act 1990.  The gist of this argument appears to be that the appellant was taken from the check-point following the breath screening test to the Ellerslie police station when the Auckland Central police station would have been much closer.  That was put to the officer in cross- examination:

Q.        Auckland police station would have been much closer, would it not, than going all the way to Ellerslie?

A.       Kilometres-wise, yes. Q.  Sorry, say again.

A.       Distance, kilometres-wise –

Q.       Yes

A.       – yes it would, yeah.

Q.       And also time-wise, it was early in the morning? A.        Time-wise it would take longer.

Q.       Why would that be?

A.        A) because I don’t have access to the, the building to get in, so I’d have to wait for someone to let me in, and then also for once I get into the EBA room I don’t have the code for the door, and that’s – the flow on effect would delay the process for Mr Prasad.

Q.       Who’s fault is that, is that the defendant’s fault?

A.       No, and that’s why I gave him the, the best opportunity was to go to

Ellerslie.

[15]     Mr Mohamed submitted that the police officer should have known when the check-point was established that the Auckland police station was closer than Ellerslie police  station  and  the  Police  should  have  made  appropriate  arrangements  for suspects to be processed at Auckland police station. That led to a delay in processing the appellant.

[16]     Mr  Mohamed  relied  on  a  decision  of  Goddard J  in  Mantel  v  Police.[4]

[4] Mantel v Police HC Wellington AP 95/01, 12 June 2001.

However, that  case is  quite different.    In that case the officer did not have an appropriate breath screening test available to him.   He required the appellant to remain at the side of the road whilst one was arranged.   With respect, it is not difficult to see why the Court in that case came to the conclusion that requiring the appellant to remain in that way for that reason was an arbitrary detention.

[17]     As  the Court  of Appeal  have  confirmed in  Neilson  v Attorney-General,5[5]whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved.   An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause, made without reference to an adequate determining principle or without following proper procedures.  In the present case, the initial detention of the appellant following his failure of the breath screening test could not be described in any way as capricious, unreasoned, without reasonable cause or without following proper procedures.   It was authorised at law.   The officer was authorised to require the appellant to accompany him to the police station for an evidential breath test.

[5] Neilson v Attorney-General [2001] 3 NZLR 433 (CA).

[18]     The fact that the officer chose to go direct to the Ellerslie police station as opposed to going to Auckland Central police station which may have been somewhat closer in terms of proximity but, for the reasons given by the officer, might have meant it would have taken longer to process the appellant there, does not make the initial lawful detention arbitrary or unlawful.  The officer’s explanation for acting in the way he did was entirely reasonable. As was observed by Lang J in George v New

Zealand  Police:[6]   “there  must  always  be  some  delay  between  a  requirement  to

[6] George v New Zealand Police HC Tauranga CRI 2009-470-8, 16 June 2009.

accompany and the evidential breath test being carried out”.  Each case must turn on its own facts.

[19]     On the facts of this case the detention was relatively limited in time in that the breath screening test was recorded at 6.53 and the evidential breath test was noted as required to be undertaken at 7.13.  This objection has no force in the present

case.

[20]    The last point raised on behalf of the appellant is the challenge to the admissibility of the breath and blood alcohol procedure sheet as exhibit 2.

[21]     Mr Mohamed objected to the admissibility of the sheet during the hearing. The  Judge  accepted  the  procedure  sheet  was  admissible  under  s 35(3)  of  the Evidence Act.   A similar issue was raised in the case of  Jones v New Zealand Police.[7]   In that case Stevens J noted the previous practice approved by the Court of Appeal in Ngaamo of admitting such sheets.[8]   The issue is however whether matters have changed since the Evidence Act 2006 came into force.

[7] Jones v New Zealand Police HC Auckland CRI 2007-404-000325, 21 February 2008.

[8] Ngaamo v Ministry of Transport [1987] 1 NZLR 170 (HC).

[22]     Stevens J  opined that there seemed no good reason in principle why the approach in Ngaamo should not continue to apply.  However, in the present case the issue is moot in any event.  It is apparent that the procedure sheet was only admitted as an exhibit towards the end of the officer’s evidence and after he had given direct evidence as to the procedures that he had followed in this case.  He was able to give such direct evidence because the Judge granted him leave to refer to his notebook and  to  the  procedure  sheet.    He  was  entitled  to  refer  to  his  notebook  and  his procedure sheet by operation of s 90 of the Evidence Act which permits a document to be put to a witness for the purposes of refreshing his or her memory while giving evidence.

[23]     While the officer suggested he had a recollection of a majority of the matters covered, it is apparent from the transcript and when his evidence is taken as a whole, that  he  was  not  able  to  recall  the  details  of  this  case  without  reference  to  his notebook and the procedure sheet.  Leave was appropriately granted for him to refer to  those  documents.     His  principal  evidence,  assisted  by  reference  to  those documents, and given before the procedure sheet was admitted as an exhibit, was sufficient to prove the charge against the appellant.

[24]     For those reasons, even if I was to accede to Mr Mohamed’s submission that

the procedure sheet should not have been admitted as an exhibit in this case, it would not affect or impugn the conviction.

[25]     I do  not  overlook  Ms Johnston’s  argument  that  the procedure sheet  was properly  admitted  in  this  case  as  an  exhibit  under  s 35(3).    I  also  note  the commentary on the issue Mahoney McDonald Optican Tinsley The Evidence Act

2006:  Act and Analysis (2nd ed, Thomson Reuters) at 35.07 (3).  It may be, as Ms

Johnston  submitted,  that  the  exhibit  sheet  was  properly  admissible,  but  for  the reasons given above it is unnecessary to make a definitive finding in this case.

[26]     For the above reasons, none of the points raised by the appellant in support of the appeal can succeed.

Result

[27]     The appeal is dismissed.

Disqualification

[28]     The disqualification which has been deferred pending the hearing of this appeal will take effect from midnight tonight.

[29]     I note at the conclusion of argument Mr Mohamed raised a further matter.  He invited the Court to “make an observation” regarding the practice of the Judge in deferring the disqualification to a specific date or sooner hearing and determination of the appeal.  Although the matter was only briefly referred to, I note s 107(2) does refer to the deferment “pending the determination of the appeal”.  Once the decision is  made to  defer the disqualification  order it  seems  that  that  must  be until  the determination of the appeal rather than to a specific date.

[30]     The difficulty with deferring until a specific date is that, as occurred in this case, the date expires before the appeal is heard and the matter has to be addressed again by the Court and the parties. Any proper concern about the matter dragging on unnecessarily would appear to be addressed by the Police having responsibility for

ensuring the appeal is properly pursued.

Venning J