R v Christopher Paul Quilter

[2003] NZCA 136

IN THE COURT OF APPEAL OF NEW ZEALAND

CA175/03

THE QUEEN

v

CHRISTOPHER PAUL QUILTER

Hearing:3 July 2003

Coram:Gault P
Keith J
Anderson J

Appearances:  W M Johnson for the Appellant

J C Pike for the Crown

Judgment:3 July 2003 

JUDGMENT OF THE COURT DELIVERED BY KEITH J

[1]        Mr Quilter was charged with the offence of refusing to permit a blood specimen to be taken after having been required to do so under s72 of the Land Transport Act 1998.

[2]        At the end of the prosecution’s case the District Court Judge determined that there was no case to answer and accordingly dismissed the information.  The prosecution appeal by way of case stated to the High Court succeeded.  Hammond J ruled that the decision of the District Court Judge was wrong in law and he remitted the case to the District Court to enable the defence to call such evidence as it considers appropriate, the prosecution then to be determined by the same Judge.  He made an order for costs of $500 and disbursements in favour of the police, on the case stated. 

[3]        Gendall J gave Mr Quilter leave to appeal to this Court on these two questions:

(i)Does the suspect in respect of an offence of driving with excess breath or blood alcohol have to be advised as to the consequences of refusal to the taking of blood specimen pursuant to Section 72 and Section 60(1)(a) of the Land Transport Act 1998 before being required to consent to the taking of a blood specimen pursuant to those sections of the Land Transport Act 1998.

(ii)Was the learned High Court Judge correct in the disposal of the matter following his determination upon the Question of Law?

[4]        The case stated for the High Court reads:

4.    The prosecution case was as follows:

(i)At approximately 12.40 am on Friday 2 March 2001 the defendant was driving a vehicle on a road in Palmerston North.  He was seen by a police officer to be driving without headlights and to be swaying in between the lanes of the road.

(ii)The defendant was stopped by the police officer, admitted that he had been drinking alcohol and failed a roadside breath screening test.  He was required to accompany the police officer to the police station which he did.

(iii)The defendant was advised of his rights and given the opportunity to speak to a lawyer.

(iv)The defendant was twice required to undergo an evidential breath test but on each occasion he refused to complete the test.

(v)The defendant was then required to provide a blood specimen.  The police officer read to the defendant from the standard blood specimen form as follows:

“You are advised that you are required under the Land Transport Act 1998 to permit a registered medical practitioner or medical officer to take for the purposes of analysis a specimen of your venous blood in accordance with normal medical procedures.

Do you consent to the taking of blood?”

At this point the defendant said “no” and gave as his reason that his lawyer advised him to take the breath test.

The police officer continued reading from the form as follows:

“You are advised that if you refuse to permit a specimen of blood to be taken you can be charged with an offence for which you are liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $4,500 and, unless the Court for special reasons orders otherwise, a minimum disqualification from driving of 6 months.

If you have on at least 2 previous occasions committed offences relating to the use of alcohol while driving or attempting to drive you are liable on conviction to imprisonment for a term not exceeding 2 years or to a fine not exceeding $6,000 and, unless the Court for special reasons orders otherwise, a minimum disqualification from driving of 1 year."

After reading these two paragraphs the police officer asked the defendant to sign the blood specimen form which he declined to do.

The police officer did not ask the defendant whether, knowing of the consequences, he continued with his refusal.

The police officer then arrested the defendant for refusing to permit a blood specimen to be taken.

5.I determined that there was no case to answer and accordingly dismissed the information because:

(i)the defendant was required to be informed of the consequences of a refusal; and

(ii)at the time the defendant refused to permit a blood specimen to be taken he had not been so informed.

6.The question for the opinion of the Court is whether my decision was erroneous in point of law.

[5]        It is convenient to mention at this stage that the form used by the Police is not provided for in the transport legislation.  It is prepared, we take it, to facilitate their administration of the road traffic laws.

[6]        Hammond J referred to a judgment of Henry J in Payne v Ministry of Transport (AP239/91 High Court Auckland Registry 21 November 1991) where he rejected the argument that an enforcement officer is obliged to advise a motorist of the consequences of refusing to provide a blood specimen.  Hammond J quoted these passages:

Knowledge of the possible consequences (ie prosecution for an offence) is irrelevant to any element of the offence.  Knowledge that certain conduct constitutes an offence is generally not a pre-requisite to commission of the offence.  A fortiori knowledge of the range of penalties which may be imposed for an offence is irrelevant.

That apart, in my judgment there is no obligation on an enforcement officer to advise of the consequences of a refusal when requesting a blood specimen.  The legislation does not so provide, and there is no need to imply such an obligation to give it sensible operative effect.

[5]   Henry J did note the possibility that:

… as a matter of principle … a refusal which has been improperly obtained or unfairly induced, for example if the motorist has been misled in some material way, could in some circumstances be an ineffective refusal for the purposes of [the relevant offence].

[7]        Mr Johnson in the High Court contended that the refusal must be on an informed basis and if there were no purpose to the last two paragraphs in the form they would not be there.

[8]        Hammond J had no difficulty in allowing the prosecution’s appeal:

[9]       It is elementary that if there is authority in this court, it is binding on a District Court Judge.  In my view, and with all due respect to the District Court Judge, Henry J put his finger precisely on the point.  There is no requirement on the prosecution to demonstrate the conveying of an appropriate knowledge of consequences to the person likely to be charged; such knowledge is simply not an element of the offence.  For myself, I would add only that it would be startling were the position to be otherwise:  there would be room for endless debate as to what precisely the officer had said to the person to be charged.  And defendants would say routinely they did not understand; that they were not fully advised, and like arguments.  The clearest parliamentary language would be required before such a startling possibility could be set up.  There is nothing, let alone clear language, in the legislation which could be used as the basis for any such suggestion.

[9]        Nor do we have any difficulty in dismissing Mr Quilter’s appeal.  The offence is committed by a person failing or refusing to permit a blood specimen after having been required to do so under s72 by an enforcement officer (s60(1)(a)).  Those provisions state all the elements of the offence.  The enforcement officer has no further obligation as a matter of law to provide the further information in fact included in the notice.

[10]     Mr Johnson submitted that the combination of ss60(1)(a) and 72 required such a notice, warning of consequences.  But they do not.  Section 72 creates the obligation to allow a specimen to be taken, while s60(1)(a) makes it an offence to fail or refuse to allow that to be done under s72 and establishes the penalties.  Mr Johnson also referred us to Ministry of Transport v Strong [1987] 2 NZLR 295, 303, where it was accepted that the offence of refusing the supply a blood specimen required proof of mens rea in the sense that the prosecution must prove that the defendant intentionally refused to permit a specimen to be taken.  That matter is of course not before us.  The case stated proceeds on the basis that Mr Quilter did intentionally refuse.  The Strong judgment cannot assist his appeal.

[11]     We accordingly answer the first question, No.  The suspect does not have to be advised about the consequences of refusing to the taking of a blood specimen under s72 of the Act before being required to permit that taking.

[12]     The second question relates to the order referring the matter back to the District Court (para [2] above). 

[13]     That question may also be seen as extending to the costs order.  Whether it does or does not, no possible basis has been laid for upsetting an order which is essentially in the discretion of the Judge.  It is in any event difficult to see any question of law arising in respect of this issue of which would justify an appeal to this Court (ss107 and 144 of the Summary Proceedings Act 1957).

[14]     The main point in respect of this second question is the direction that the hearing of the information be completed by the District Court Judge who initially dealt with the case.  Mr Quilter is concerned with the statement that that Judge made at the beginning of his judgment that

From the evidence that I have heard, and I can say this because of the ruling that I intend to make, Mr Quilter’s behaviour on this particular night was clearly from the evidence, obstructive and unreasonable in that he was given the opportunity to take legal advice.  In my view the officers went beyond their normal duties in trying to get him a lawyer of his choice in Wellington, the surname of whom incidentally he did not know when making the request.

I put all of that behaviour down probably to his state of intoxication on the evening but not having been tested we cannot be sure as to how much he actually drank or what his level was.

[15]     We do not consider that that statement, based as it was on the evidence of the prosecution witnesses, requires that the matter be heard (fully) by another Judge.  That statement does not stand in the way of the original Judge considering on their merits any other possible defences which may be available.  As was suggested from the bench, Mr Johnson could, if it was considered appropriate, raise with the Judge, preferably by a memorandum in advance of the hearing, the question whether the Judge considered that he should continue to sit.

[16]     Again we doubt that this aspect of the second question raises a question of law justifying an appeal to this Court.  We answer the question, Yes.

[17]     Accordingly, the appeal fails and the High Court direction about the disposal of the matter remains in effect.  There is no order relating to costs in this Court.

Solicitors:

Crown Law Office, Wellington.