R v Beck

[2008] NZCA 283

IN THE COURT OF APPEAL OF NEW ZEALAND

CA214/2008
[2008] NZCA 283

THE QUEEN

v

NIGEL BECK

Hearing:30 July 2008

Court:Ellen France, Gendall and Miller JJ

Counsel:F P Hogan for the Appellant

A M Powell for Crown

Judgment:6 August 2008 at 2.30 pm 

JUDGMENT OF THE COURT

A        THE APPEAL IS DISMISSED.

BThe appellant’s disqualification will commence on 6 August 2008 at midnight.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

[1]       Mr Beck was convicted in the District Court at Manukau of driving with a blood alcohol level of 213 milligrams of alcohol per 100 millilitres of blood, having previously been convicted on at least two occasions of offences under ss 56(1), 56(2), 58(1), or 60(1) of the Land Transport Act 1998.  The offence occurred on 1 July 2006.  He elected trial by jury, but subsequently applied for an order that the trial be held before a Judge alone.  It was eventually heard by Judge Blackie on 7 March 2008, with a reserved judgment being delivered on 16 April: DC MAN CRI-2006-092-013811.

The narrative

[2]       The Judge heard evidence from Constable Pukeiti, who apprehended Mr Beck, and a nurse, Margaret McGregor, who took the blood sample.  The constable’s evidence established that the appellant had gone to some effort to disrupt the procedure, beginning when he was stopped at about 1.35am at the East Tamaki Road off-ramp from the Southern Motorway.  He declined to give his name and address when asked to undergo a passive breath test, and moved his head away from the device.  Nonetheless, the constable obtained a “fail general” result.  He required that the appellant undergo a breath screening test which also returned a “fail general” result.

[3]       The constable then required the appellant, at about 1.39am, to accompany him to the Ellerslie Police Station for an evidential breath test, a blood test, or both.  The appellant was told of his rights when he was required to accompany the officer, and again at the police station where he signed a form acknowledging that he had been told he had the right to consult and instruct a lawyer without delay and in private.  The form also explained that a telephone would be made available for that purpose as soon as practicable and before he underwent a test, that he would be given a reasonable time to consult a lawyer, and that if he did not have his own lawyer a list of on-call lawyers would be provided; those lawyers were available to give advice free of charge.

[4]       The appellant indicated that he wished to speak to Mr Hogan, and asked the constable to ring him.  The appellant did not have Mr Hogan’s telephone number, so the constable went through the White Pages and there found Mr Hogan’s name prominently displayed as a boxed entry for Frank Hogan, Barrister, giving both landline and cellphone numbers.  The constable twice rang both numbers but received no answer, then handed the telephone to the appellant and asked if he wished to try the numbers himself.  It appears that he chose not to do so.  The constable then offered him the duty roster list of lawyers working that night, but he declined to call a lawyer.

[5]       Immediately above the boxed entry in the phone book was a number for Frank and Janet Hogan.  It is common ground that it is Mr Hogan’s home number.  The entry did not identify Mr Hogan as a lawyer, nor was it listed as an after-hours contact number in the boxed entry.  In cross-examination, the constable could not recall why he did not call that number.  There is no evidence that the appellant looked through the telephone book himself.

[6]       The constable next required the appellant to undergo an evidential breath test.  He assembled the machine and asked the appellant to blow for about two seconds into the mouthpiece.  However, the appellant did not seal his lips around the mouthpiece and kept pulling away before reaching the point where the constable would ask him to stop.  This occurred at least a dozen times.  The machine eventually gave the result “incomplete test”.  A print-out recording that result was produced recording the test time as 02.09am.

[7]       The constable, who appears to have been inexperienced, then made a mistake.  Having never before had a result come back as incomplete, he proceeded as if the test had returned a positive reading.  He gave the appellant the option of requesting a blood test, filling out and reading to the appellant a form explaining that if he did not within ten minutes request a blood test, the test that he had just undergone could in itself lead to his conviction and explaining that if he wished to undergo a blood test he must request one within ten minutes.

[8]       The constable went through the New Zealand Bill of Rights Act 1990 procedure again, and the appellant again indicated that he wanted to contact Mr Hogan.  The constable again tried the landline and cellphone, without response.  The appellant was again shown the list of duty lawyers but declined to use it.

[9]       The constable then requested the appellant to give a blood sample, advising that he had ten minutes in which to elect whether to do so.  The ten minute period concluded at 2.35am, when the constable advised the appellant that he now required a blood sample.  He explained in evidence that he decided to require the blood because of the way the appellant had behaved on the evidential machine.  He had called a nurse, who arrived at about the same time.  There were blood specimen kits at the police station, but the constable was unable to find a copy of the blood specimen form.  He accordingly decided to take the appellant to the Auckland Central Police Station, where the time of arrival was noted as 2.52am.  The nurse also attended.  There was no evidence that the constable considered taking the sample without completing the form, or that he considered having a copy of the form delivered or faxed to him from another police station.

[10]     The blood specimen form is not a prescribed form under the legislation.  It is used for evidential purposes and as a checklist when working through the blood testing procedures.  It records the requirement that the motorist give a blood sample, provides for the motorist to indicate consent (inviting reasons if the motorist should refuse), explains that refusal to supply a blood sample is an offence, identifies the medical officer taking the sample and the time and place, and provides for the officer to record what has been done with the sample.  There was no dispute that these details could have been recorded in the officer’s notebook.

[11]     The blood specimen was taken at 3.03am.  Initially the constable recorded the appellant as not having consented, giving the reason that he did not know why he was refusing, it was 3am now.  There was a conflict between the constable and the nurse on this point.  She was present, and said that the appellant consented.  In any event, she then confirmed with him that he consented to having the sample taken.

[12]     The defence did not call evidence.

The appeal

[13]     On appeal, Mr Hogan raises five issues: the constable failed to facilitate access to the appellant’s nominated lawyer; there was no jurisdiction to acquire a blood sample once the constable had given the appellant an election whether to require one; the police failed to prove that it was not practicable for the blood specimen to be taken at the Ellerslie Police Station; there was undue delay; and the appellant should have been charged with refusal to give a blood sample. 

Failure to facilitate access to nominated counsel

[14]     Mr Hogan’s complaint is that the constable rang the office and cellular phone numbers given in the phonebook but did not call his home number.  The officer ought to have tried the home number or handed over the telephone book for the appellant to make his own attempt.

[15]     The right to obtain legal advice when the police exercise a power of detention is recognised when the person detained is made aware that he has the right to legal advice without delay and is given a fair opportunity to exercise it: R v Mallinson [1993] 1 NZLR 528 (CA), R v Alo [2008] 1 NZLR 168 (CA). The appellant knew he had the right and the ability to speak to a lawyer without delay, and before the process was completed. The constable went further and tried to facilitate the exercise of the right, by calling himself and offering the appellant the opportunity to do so himself. In addition, he was offered the list of duty lawyers but declined to contact one of them. In the circumstances, he was not denied the right to legal advice. Mr Powell accepted that other considerations would arise had the constable prevented the appellant from obtaining counsel of choice or otherwise acted in bad faith, but we agree that this is not such a case.

Whether the officer was entitled to require a blood sample

[16]     Mr Hogan contended that the constable, having given the appellant the right to elect a blood specimen and such right not having been exercised, could not require a blood sample.  Put another way, having offered the election the constable was bound when the appellant chose not to exercise it.

[17]     Mr Powell accepts that the constable erred, but notes that under s 70 of the Land Transport Act, the constable had the power to require the appellant to undergo without delay a further evidential breath test or to require the appellant to permit a blood specimen to be taken.  The right not to undergo a blood sample was not the constable’s to give.

[18]     We accept that the constable was empowered to require a blood sample under s 70(1).  We observe, although Mr Hogan understandably did not take this point, that the subsection creates a discretion, and notwithstanding the constable’s error it is plain that he exercised it.  He gave evidence that he chose not to breath test the appellant again because of the way he acted the first time; he believed he would just get another incomplete test.  On the evidence, that conclusion was amply justified.  No prejudice to the appellant was occasioned by the officer’s mistake in first giving him the right to elect a blood sample.  It is not necessary to have recourse to the reasonable compliance provision (s 64(2)), although we accept Mr Powell’s submission that the case falls by a comfortable margin within that provision.

Not practicable to take a blood specimen at Ellerslie?

[19]     Section 72(3) of the Act provides:

72     Who must give blood specimen at places other than hospital or surgery

…

(3)   If it is not practicable for a blood specimen to be taken from a person by a medical practitioner or medical officer at a place where the person has been required under this section to permit the taking of a blood specimen, the person must accompany an enforcement officer to any other place where it is likely that a blood specimen can be taken from the person by a medical practitioner or medical officer if the officer requires the person to do so.

[20]     The term “not practicable” in s 72(3) has been interpreted as carrying its ordinary meaning of something that is not capable of being carried out or is not feasible in the circumstances:  Tere v Police HC AK A209-99 7 March 2000 at [11].  It involves something more than inconvenience:  Hecker v Police HC CHCH CRI‑2007-409-33 4 May 2007 at [21].  It is for the police to establish on the balance of probabilities that it is not practicable to take the test at the place to which the motorist has been taken:  Police v Anderson [1972] NZLR 233 (CA).

[21]     In Hecker, John Hansen J upheld a District Court finding that it was not practicable to summon a doctor or nurse to a ‘booze bus’ when there was limited privacy available to conduct a test there, while there was a specially equipped room at the police station.  In Tere, Randerson J held that it was open to the District Court to infer that it was not practicable, for the purposes of s 69(2), to continue evidential breath testing at the Otahuhu Police Station when two incomplete evidential breath tests had been recorded on the machine there, suggesting that it was faulty.  The officer had decided to take the appellant to the Auckland Central Police Station to undergo an evidential test there.  In Drummond v Police [2008] DCR 237, Potter J upheld a finding that it was not practicable to have the local doctor summoned to a booze bus in circumstances where there was evidence that the doctor was busy; police were justified in taking the appellant to a doctor’s surgery, which was located nearby.

[22]     Mr Hogan argued that it was not impracticable to have the specimen taken at Ellerslie.  It was only the absence of the forms, the use of which is not mandatory, that led to the appellant being taken to the Auckland Central Police Station; but for that, the nurse could have taken the blood specimen at Ellerslie.

[23]     The question whether it is practicable to take a blood sample at a particular place when there is no blood specimen form there need not be answered in this case.  Mr Powell did not concede the point, submitting that the form ensures important procedures are properly followed.  Police officers are trained to use it, and it is reasonable that an inexperienced officer should rely on it.  However, he accepted that s 72(3) is concerned to ensure that a detention authorised by law for a particular purpose does not become arbitrary.  It may be necessary to justify taking the motorist to another place.  In this case, there is no evidence that the form could not have been delivered or faxed to Ellerslie, or that the appellant would have been detained for longer had the constable waited for a form to be brought to him.  Accordingly, he acknowledged that the police had failed to show that it was not practicable for the sample to be taken at Ellerslie.  We agree.

[24]     However, Mr Powell argued, there was reasonable compliance.  Apart from the submissions just mentioned, he pointed out that had the form been available, the appellant would have supplied a sample of blood to the nurse at around 2.35am, so there was a delay of just under half an hour resulting from his being taken to Auckland.  There are no express temporal limitations upon detention for the purpose of breath and blood alcohol testing:  Ministry of Transport v Noort [1992] 3 NZLR 260 (CA). There was no prejudice to the appellant; he was obliged to supply a blood sample, and the constable’s action in taking him to the Auckland Central Police Station did not expose him to a conviction that he would otherwise have avoided.

[25]     We are satisfied that there was reasonable compliance in the circumstances.  A liberal approach is to be taken to s 64(2): Police v Tolich (2003) 20 CRNZ 150 (CA).  The requirement that the appellant give a blood sample resulted from his own attempts to disrupt and evade the breath testing procedures.  The delay was not substantial, and it was reasonable for the constable to require the form to ensure that the procedures were correctly followed.  There was no doubt that the elements of the offence had been made out and no real possibility of unfair prejudice to the appellant.

Undue delay

[26]     Mr Hogan complains that there was a delay of 53 minutes between completion of the evidential breath test procedure and the time the checklist completed at the Auckland Central Police Station disclosed the requirement for a blood sample.  He argued that such a delay in communicating or informing the appellant of the requirement that he give a blood sample is undue, submitting by analogy that delays of seven to ten minutes in communicating the result of an evidential breath test have been held fatal.

[27]     It is true that the legislation requires that motorists must be advised of the result of an evidential breath test without delay:  s 77(3)(a).  That subsection deals with circumstances in which an evidential breath test result is admissible in evidence.  As we have just mentioned, the legislation imposes no such express temporal restriction on detention for purposes of taking a blood sample.  As the Judge noted, a blood testing procedure takes time, with procedures having to be explained, a medical officer called, and the sample itself taken.  Contrary to Mr Hogan’s submission, the evidence actually established that the requirement to give blood was communicated at about 2.35am at Ellerslie, so the delay that concerns Mr Hogan was only about 15 minutes.  That was not undue.  We have already found that the added delay resulting from the trip to Auckland Central Police Station was not unreasonable in the circumstances.

Should the officer have charged the appellant with refusing to give a blood sample?

[28]     Mr Hogan submits that the appellant initially refused to give a blood sample, and at that point should have been charged with refusal to do so.  There was then no authority for the nurse to intervene and require that he submit to a blood test.  We observe that what she actually did was to ask whether he consented to a sample being taken.

[29]     Mr Powell accepts that the appellant refused to give a blood sample when initially required to do so.  Notwithstanding that, he immediately consented when the nurse made her inquiry of him.  It is not a question of jurisdiction to take the sample;  the appellant was obliged to supply blood, and the law did not confer on him the right to elect to be charged with refusing to do so.  Put another way, his refusal did not prevent the constable giving him an opportunity to consent when asked by the nurse. 

[30]     We accept Mr Powell’s submissions.  The appellant, having refused a lawful requirement to give a blood sample, had no right to be charged immediately with refusing to do so.  The constable might have so charged him, but the legislation did not preclude the constable or the nurse asking again whether he consented, so giving him an opportunity to reconsider his decision at once.  No question arises in this case of the officer exerting unfair pressure or otherwise acting in bad faith, nor of detention being extended so that a second request could be made of the appellant.

Decision

[31]     Each of the grounds of appeal fails.  The appeal is dismissed.

[32]     The appellant was sentenced to 250 hours community work and 15 months disqualification, with a final warning that he could expect a custodial sentence should he appear again.  The disqualification was suspended until such date as this Court should dispose of the appeal.  We direct that the disqualification commence on 6 August 2008, at midnight.

Solicitors:
Crown Law Office, Wellington