R v Keen
[2016] NZHC 373
•7 March 2016
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2016-425-000001 [2016] NZHC 373
THE QUEEN
v
RILEY JAMES KEEN
Hearing: 29 February 2016 Appearances:
J Mildenhall for Crown
W N Dawkins for DefendantJudgment:
7 March 2016
JUDGMENT OF DUNNINGHAM J
[1] At around 2.30 am on 29 September 2014, Mr Keen was stopped by police on Kawarau Road in Queenstown. He admitted that he had been drinking and Constable Claire Frooms administered a breath screening test. He failed that, so was taken to the Queenstown Police Station for testing.
[2] At the Police Station he undertook an evidential breath test which gave a reading of 614 micrograms of alcohol per litre of breath. He was informed of the positive result and advised of his right to have an evidential blood test and of the fact that he must request one within 10 minutes. He was also advised of his right to obtain legal advice but, despite three attempts to contact a lawyer, he was unsuccessful.
[3] At that point he said he elected to have a blood test. He was reminded of his ability to have a full 10 minutes to think about it, but Mr Keen confirmed he wanted
R v KEEN [2016] NZHC 373 [7 March 2016]
to go ahead with the evidential blood test. Constable Frooms promptly contacted a medical practitioner to make arrangements for administering the blood test. The result of the blood test recorded him as having 159 micrograms of alcohol per 100 millilitres of blood. The legal limit was 80 micrograms. The police subsequently charged Mr Keen with driving with excess blood alcohol.
[4] In the District Court at Queenstown, Judge Farnan decided that the prosecution had failed to establish, to the requisite standard, that Mr Keen had been afforded the statutory 10 minute period to contemplate whether he wished to have an evidential blood test or not. She also determined that this failure was not able to be overcome by the “reasonable compliance” provision in s 64 of the Land Transport Act 1998 (LTA). As a consequence, she dismissed the charge under s 147 of the Criminal Procedure Act 2011 (CPA).
The appeal
[5] The Crown seeks leave to appeal the decision of the District Court on the following questions of law:
(a) Did the Judge err by holding that a person cannot make a valid election to undergo a blood test under s 70A(1) of the LTA before the
10 minute period in which to consider whether to have a blood test is given; and
(b)Did the Judge err in applying s 64 of the LTA (the reasonable compliance provision) only in respect of whether the officer conveyed to Mr Keen that the 10 minute period had started and by failing to take into account that Mr Keen had confirmed to the officer that he wished to undergo a blood test.
[6] The appeal is brought under s 296 of the CPA. That provides that where a person has been charged with an offence “the prosecutor … may, with the leave of the first appeal Court, appeal under this subpart to that Court on a question of law against a ruling by the trial Court”.
[7] The appellant says that the Judge erred in two respects:
(a) By proceeding on the basis that a valid election could only occur within a defined 10 minute period; and
(b)When considering whether there had been reasonable compliance, by having regard only to the errors made by the constable and not taking into account that Mr Keen had not been prejudiced by those errors.
The statutory framework
[8] The appeal concerns the provisions in the LTA which relate to the ability of a person who records a positive result on an evidential breath test for alcohol, to elect to have a blood test. The core provision is s 70A(1) which provides:
70A Right to elect blood test
(1) A person has the right, within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), to elect to have a blood test to assess the proportion of alcohol in his or her blood, if the result of that person's evidential breath test appears to be positive, and—
(a) the result of the person's evidential breath test indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath; or
(b) the person is apparently younger than 20; or
(c) the person holds an alcohol interlock licence or a zero alcohol licence.
[9] Section 70A LTA was added to the LTA by s 6 Land Transport (Road Safety Enforcement) Amendment Act 2001. Section 3(a) of that Amendment Act stated that one purpose of the amendment was to improve road safety enforcement by:
removing the defence of error or possible error in the result of an evidential breath test and ensuring that an evidential breath test is conclusive, but subject to safeguards to protect the rights of defendants. (emphasis added)
[10] One such safeguard is the statutory right to elect to have a blood test, within a
10-minute period of receiving a positive evidential breath test result, and to be advised of that right of election under s 70A(1) LTA.
[11] Once a person has made that election, he or she is then required to proceed with giving a blood specimen for that purpose. That is because s 72(1) provides:
(1) A person must permit a medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—
…
(b) The person has undergone an evidential breath test under section 69(4), and—
(i) it appears to the officer that the test is positive; and
(ii) within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), the person advises the officer that the person wishes to undergo a blood test; or
…
[12] Section 77 provides that the results of alcohol testing can be relied on as conclusive unless there has been a failure to comply with s 77(3), in which case the result is not generally admissible. Specifically, that subsection states:
77 Presumptions relating to alcohol-testing
…
(3) Except as provided in subsections (3B) and (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—
(a) the person who underwent the test is not advised by an enforcement officer, without delay after the result of the test is ascertained,—
(i) that the test was positive; and
(ii) of the consequences specified in subsection (3A), so far as applicable, if he or she does not request a blood test within 10 minutes; or
(b) the person who underwent the test—
(i) advises an enforcement officer, within 10 minutes of being advised of the matters specified in paragraph (a), that the person wishes to undergo a blood test; and
(ii) complies with section 72(2).
[13] Finally, s 64 of the LTA provides certain defences to offences involving driving while intoxicated. However, at s 64(2), there is an exclusion to the defence of non-compliance with the statutory procedure for obtaining evidence of intoxication, in cases where there has been “reasonable compliance” with that procedure. That section provides:
64 Defences
…
(2) It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.
The statutory 10 minute period
[14] The role of the statutory 10 minute period is critical to this case. The police argue that the election to have a blood test was, in fact, made within the statutory
10 minute period but, even if it was not, in all the circumstances there has been sufficient compliance with s 70A(1) that the failure to prove the election was made within a recorded 10 minute period should not form a defence to this charge.
[15] It is important to understand the purpose of the statutory 10 minute period, both to decide whether a valid election could be made in the circumstances of this case and, if it was not, whether the Judge correctly ruled that the prosecution could not rely on s 64(2) to overcome that deficiency.
[16] In R v Aylwin, the Court of Appeal commented on the amendment to the LTA introduced on 29 December 2001 which allowed anyone who returned the positive evidential breath test to elect to undergo a blood test. The Court said:1
[49] It may at first blush seem unfair that the defence of error in the result of breath tests has been removed. However, at the same time as s 64(4) [LTA] was amended, Parliament introduced safeguards. The main safeguard was that the right to undergo a blood test (and to be informed of that right) was extended to all those who returned a positive evidential breath test, whereas previously this was reserved for those with readings under 600. In Livingston v Institute of Environmental Science and Research Ltd, this Court recognised that, although defendants’ rights were limited by the removal of the error defence, the introduction of a universal right to elect a blood test in the case of a positive evidential breath test was seen by Parliament as a sufficient safeguard. (citations omitted)
[17] On further appeal of the same case, the Supreme Court reaffirmed the conclusions of the Court of Appeal saying:2
[11] The legislative intent is clear: [s 64(4) LTA] precludes any challenge to the result of a breath screening test or an evidential breath test, and any claim that an evidential breath test should not have been undertaken because of an error in a prior test. It is irrelevant whether the error was a machine error or an operator error. The right of election to have a blood test and the right to be advised of that right conferred by s 70A, must be regarded as providing effective protection against the consequences of an error in a breath screening test or an evidential breath test.
[18] The purpose of giving a suspect 10 minutes in which to make a decision as to whether to have a blood test was clearly summarised in Leota v Police, where the Court said:3
… it has long since been recognised that the 10 minute reflection period is designed to ensure that a suspect has a reasonable and uncluttered period of time in which to consider whether to progress to the blood test stage. That right has assumed even greater importance in recent years because (as the Supreme Court noted in Aylwin v Police), a blood test is now the only way that a person may be able later to contest the correctness of an evidential breath test. (emphasis original)
[19] When the full 10 minute period has not been given, the Courts have, understandably, been willing to overturn the conviction based on the evidential
breath test.4
1 R v Aylwin v Police [2008] 24 NZCA 154, (2008) 24 CRNZ 87.
2 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.
3 Leota v Police HC Auckland CRI-2009-404-373, 4 March 2010 at [26].
[20] In keeping with this theme of protecting the defendant’s rights, the Courts have also held that the 10 minute period should exclude any time taken in the exercise of a right to consult and instruct a lawyer.5
[21] It is clear, though, that strict adherence to the 10 minute period is not required where the variance caused no prejudice or injustice to the defendant. For example, a decision to elect the blood test shortly beyond the 10 minute period, and where the blood test was duly administered, has been held to be valid.6
[22] Similarly, where no request for a blood test was made within the 10 minute period, but where there was evidence the driver wanted such a blood test and there was ineffective communication by the police officer to the driver about the significance of repeating his request within the 10 minute period, the Court has held
police could not rely on the evidential breath test.7
[23] Within the 10 minute period, a decision to request an evidential blood test is irrevocable.8 At that point, a police officer is not required to wait for the expiry of the full 10 minute period before proceeding any further.9 Thus while affording a driver the full 10 minutes is required if no election is made, where the defendant exercises his right to have a blood test, the need to complete the 10 minutes falls away.
When does the 10 minute period commence?
[24] The 10 minute period commences in the circumstances described in s 70A(1). That is, it commences when the result of a driver’s evidential breath test appears to
be positive; and the driver is told that:
4 See Corles v Police HC Christchurch AP 137/95, 11 July 1995, Brown v Police [2012] NZHC
1192.
5 Kaisuva v Police (1993) 11 CRNZ 151 (HC), Rae v Police [2000] 3 NZLR 452 (CA).
6 Ellis v Ministry of Transport (1986) 2 CRNZ 97 (HC); Gore v Police HC Auckland AP81/90, 22
June 1990; De Jong v Police (2000) 18 CRNZ 128 and O’Neill v Police [2009] DCR 131 (HC).
7 Neiman v Police HC Wellington CRI-2006-485-125, 14 February 2007.
8 Police v Irwin (1990) 6 CRNZ 171 (HC) at [174], O’Neill v Police, above n 6 and McLeod v
Police HC Auckland CRI-2011-404-376377, 7 December 2011.
9 Police v Irwin, above n 8 at [174] and Police v McCafferty HC Gisborne CRI-2006-416-8,
31 October 2006 at [3].
(a) the test was positive; and
(b)if, within 10 minutes, he or she does not request a blood test, then the evidential breath test could be conclusive evidence of an offence against the Land Transport Act 1998.
What was the evidence of what happened in this case?
[25] To reflect the statutory requirements, including those in s 70A(1), the New Zealand Police have devised a breath and blood alcohol procedure sheet. It was used in this case. It directs the police constable dealing with the suspect to comply with the relevant statutory procedures at each stage of processing that person.
[26] The procedure sheet has a number of sections identified by consecutive letters of the alphabet running from A to P. Once the driver is at the police station, or other centre for processing, section H of the form directs the constable to read to the driver the relevant rights under the Bill of Rights Act 1990, including the driver’s right to obtain legal advice at that stage. When Mr Keen was processed, he was advised of these rights but he indicated that he did not want to speak to a lawyer. The time this occurred was recorded as 2.51 am.
[27] Section I of the form is a record of administering the evidential breath test.
In Mr Keen’s case this occurred at 2.54 am. On the form, the result recorded was
614 micrograms of alcohol per litre of breath which is a positive result. The same section of the form also confirms that Mr Keen was advised of the result of the evidential breath test at 2.59 am.
[28] The next section of the form is section J which contains the following prompts to be read to the driver:
·“The evidential breath test you have just undergone has given a positive result of [614] micrograms of alcohol per litre of breath”.
·“If within 10 minutes you do not request a blood test, the test you have just undergone could, of itself, be conclusive evidence of an offence against the Land Transport Act 1998”.
· “If you undergo a blood test you must request one within
10 minutes”.
·“If you undergo a blood test the result of the evidential breath test cannot be used in Court proceedings to support a charge of drinking or attempting to drive with excess breath alcohol concentration. But the result of the blood test may be evidence of an offence against the Land Transport Act”.
·If you do not choose to have a blood test to assess the proportion of alcohol in your blood, you may not defend the proceedings against you in relation to your breath alcohol reading on the basis that there was or may have been an error in the result of the breath screening test or evidential breath test”.
[29] Those prompts were read out to Mr Keen, with the specific result of his evidential breath test included in the first statement. Underneath those prompts in section J, Mr Keen signed confirming that he was advised of those matters when his evidential breath test result was obtained. The time that acknowledgement was signed was 3.00 am.
[30] At this point, as prompted by section K of the procedure sheet, Mr Keen was again read his rights under the Bill of Rights Act 1990. This time he decided he would like to speak to a lawyer. This advice was recorded as being given at 3.01 am. Three attempts to contact lawyers then followed, with the last attempt occurring at
3.12 am, but none were successful. At that point he was asked by Constable Frooms if he wished to choose another lawyer. He replied that he did not and that he just wanted the blood test.
[31] Constable Frooms then recorded, at section L of the procedure sheet, that the
10 minute period to consider the option of a blood test commenced at 3.13 am. This section of the procedure sheet was headed with the advice to “Provide the driver with a FULL 10 minute period unless the driver elects blood”. The constable did not record a finish time, nor did she have Mr Keen sign this section of the procedure sheet. Instead, she proceeded to act on his request and arrange a blood test.
The Judge’s findings
[32] It is this aspect of the procedure which attracted some criticism from the
Judge because the Judge considered there was some doubt as to whether the police
officer had made it clear that the 10 minute period had started, noting that “the words that [the constable] said to the defendant were variously ‘I can’ and, ‘I will give you the 10 minute period’”. The Judge concluded that whichever of those phrases was used, they suggested some uncertainty as to whether the 10 minute period had started, and she could not be certain that the constable had triggered the 10 minute period before Mr Keen agreed to take the blood test. It seems the Judge was of the view that unless she could be satisfied that the request came after the constable advised Mr Keen that the 10 minute period had started, and recorded the same on the procedure sheet, it was not a valid request, and the police could not rely on the outcome of the blood test to convict Mr Keen.
[33] Furthermore, in the Judge’s view, resort to s 64(2) and the principle of reasonable compliance did not salvage the non-compliance with the 10 minute period. In the Judge’s view the procedure was non-compliant: “there was no clear statement by the constable of when the 10 minute period started in this case. There is no independent notebook entry. [The constable] herself conceded that there was some uncertainty about the requirements”. She was also critical of the constable for failing to complete section L by recording the completion time of the 10 minute period and for failing to have the defendant sign that section of the procedure sheet as he had done for the previous steps.
[34] In light of those “defects” she rejected the submission that the prosecution
could proceed on the basis there had been reasonable compliance.
Question 1 – was it a valid election?
[35] The first question on which leave to appeal is sought is as follows:
Did the Judge err by holding that a person cannot make a valid election to undergo a blood test under s 70A(1) of the LTA before the 10 minute period in which to consider whether to have a blood test is given?
[36] This question proceeds on the basis that the relevant 10 minute period is triggered only when the officer records that the 10 minute time period has started in
section L of the procedure sheet and communicates that unequivocally to the suspect. This was how the Judge viewed the matter.
The appellant’s submissions
[37] In its submissions, the appellant says that an election in these circumstances was valid. First, Mr Keen clearly understood that if he wanted to have blood taken that he needed to request it within 10 minutes of being advised of a positive evidential breath test (excluding the time that was taken up seeking legal advice). He did, in fact, make such a request within that time. There was, therefore, compliance with s 77(3), and consequently, with s 70A(1).
[38] Furthermore, Mr Keen got exactly what he asked for, as there is no suggestion that he did not want the blood test, or even that he changed his mind about having it. In this regard, the appellant points out that there is a distinction between the significance of the 10 minute period in excess breath alcohol cases (which rely on the presumption because there was no blood test), and its significance in excess blood alcohol cases. In the former, any non-compliance that potentially affects the appellant’s right to elect to have a blood test will normally make the result of the breath test inadmissible. That is not the position in the latter cases, where a blood test proceeds, as the important right to be protected is the right to elect to have a blood test and not a right to have the 10 minute requirement in all circumstances.
[39] This is supported by the fact that a number of cases have made it clear that a valid election to have a blood test can occur outside the 10 minute period. It can occur after the expiration of the 10 minute period (as Gore, De Jong and O’Neill demonstrate), or before the 10 minute period, as Tarry and McKenzie indicate.10 In these latter cases, requests were made for a test prior to the 10 minute period but were not reiterated during that period and, in the result, the Court was not convinced
that there had been a failure to elect a blood test.
[40] Applying those principles to the present circumstances, the appellant says that even if the 10 minute period had not commenced (which is not accepted), there
10 Tarry v Police HC Rotorua CRI-2011-470-19, 19 September 2011; McKenzie v Police HC Wanganui CRI-2010-483-53, 4 November 2010.
was an unequivocal election which had been made in full knowledge of the options and which had in fact been carried out. It should, therefore, be treated as valid.
The respondent’s submissions
[41] The respondent, in contrast, says the legislation plainly intends that the request is to be made within a defined 10 minute period. Section 70A of the LTA provides that a person has the right “within 10 minutes” of being advised by a police officer of the matters specified in s 77(3)(a) of the LTA, and the same expression “within 10 minutes” reappears in s 72(1)(b)(iii) and s 77(3)(a) and (b).
[42] To emphasise the importance of the defined 10 minute period, the respondent refers to Neiman v Police where Simon France J emphasised:11
[9] The key to the scheme is that the person is to be told that they have a
10 minute window in which to request a test …
…
[16] This judgment has proceeded on the basis that an effective request can only be made within the 10 minute window. Although I consider, along with the District Court Judge, that that is the apparent effect of the statutory scheme, it has not been necessary for me to determine the issue.
[43] As an even more direct example, the respondent cites Tarry v Police where Keane J quoted from the decision of Judge McKegg in the District Court, where he said:12
[8] … although Mr Tarry had indicated an intention to take blood, during the reflective period of the 10 minutes, he made no request for blood. He may have suffered from some confusion but, on the other hand, he may simply have thought better of it.
[9] The request made outside the 10 minute period is not valid. The request made prior to the 10 minute period is not valid. To be within the rules it must be within the 10 minute period.
[44] The respondent also cites Gracie v Police and McKenzie v Police,13 to support the submission that a valid election to elect a blood test cannot be made “before” or “prior to” the stipulated 10 minute period.
11 Neiman v Police, above n 7.
12 Tarry v Police, above n 10, at [11].
[45] The respondent accepts that there have been cases which recognise that a valid election to have a blood test could occur outside or after the 10 minute period. However, his counsel argues that this cannot, with equal force, be applied to an election prior to the 10 minute period, as to do so would subvert the statutory purpose of allowing the relevant statutory period of reflection, in order for the driver to make up his or her mind about a blood test.
[46] The respondent submits that the Judge was therefore correct to hold that unless she could be sure the 10 minute period had started, the election could not be valid.
Discussion
[47] One of the difficulties in this case is that compliance with s 70A(1) was achieved before the constable recorded the commencement of the 10 minute period at 3.13 am. However, the Judge’s focus was on whether she could be satisfied that a request for a blood test was made after the constable recorded this start time.
[48] I consider the Judge focused on the wrong commencement point. The statutory 10 minute period referred to in s 70A(1) of the LTA is the period which commences after “being advised by an enforcement officer of the matters referred to in s 77(3)(a)” (which sets out the conditions of the admissibility of the test, and the right to elect to have a blood test to assess the proportion of alcohol in his or her blood).
[49] The procedure adopted by police of recording the start and finish time of a
10 minute period on the procedure sheet is intended to ensure compliance with, but not to prevail over, the statutory requirement. It is simply a practical tool to demonstrate, in the event of a dispute over whether an evidential breath test can be relied on, that the driver was given a full 10 minute period to consider his or her right to elect a blood test. It should not, therefore, be elevated to a necessary
precondition of a valid election which thwarts the effect of s 70A(1) when a driver
13 Gracie v Police HC Auckland CRI-2009-404-343, 13 April 2010; McKenzie v Police, above n 10.
unequivocally elects to have blood soon after s 77(3) is complied with, to make that election invalid
[50] In this case, the matters in section J of the form had been read out to Mr Keen, so the statutory requirements which triggered the 10 minute period had been met. He had been told of the positive result of his evidential breath test, and that the result could be conclusive evidence in a conviction for an offence under the Act, unless, within 10 minutes, he requested a blood test.
[51] Of course, at that stage, Mr Keen promptly availed himself of his right to seek legal advice and the period of 12 or so minutes during which he did that did not count as part of the statutory time period. However, at the point those endeavours ceased, the 10 minute period under s 70A(1) was underway. It was during that time that Mr Keen communicated to Constable Frooms that he “just wanted to go for blood”. When questioned whether he was sure about that, as “there are plenty of lawyers we can keep trying”, he replied “no”. The constable, presumably out of an abundance of caution, offered to give him a clear 10 minutes from that point forward, using either the phrase “I will give you the 10 minutes” or “I can give you the 10 minutes”, but his reply was again “no, he just wanted to go for blood”.
[52] She then checked with another constable and asked whether in the circumstances she needed to wait the full 10 minutes. It appears the answer was
‘no’, as almost immediately afterwards, she commenced making arrangements for the requisite blood test without then completing section L of the form with the time the 10 minute period finished or asking Mr Keen to sign that section.
[53] In the circumstances as disclosed by the evidence, I am satisfied there has been compliance with s 70A(1) and the Police records show that Mr Keen elected a blood test within 10 minutes of that occurring (excluding time spent seeking legal advice). The election is therefore valid and the answer to question 1 is “yes”.
Question 2 – Did the Judge err in applying s 64(2)?
[54] The second question of law on which leave to appeal is sought is:
Did the Judge err in applying s 64(2) of the LTA (the reasonable compliance provision) only in respect of whether the officer conveyed to Mr Keen that the
10 minute period had started and by failing to take into account that
Mr Keen had confirmed to the officer that he wished to undergo a blood test?
The appellant’s submissions
[55] Many of the same arguments arise in relation to this question as arise in relation to the first question of law. As the appellant explains, the Judge concluded in this case that resort to the reasonable compliance provision could not overcome the “defects” in procedure because of the lack of certainty about whether the 10 minute period had started when the election was made.
[56] In the appellant’s submission, this constitutes an error of law because the conclusion is based on the incorrect assumption that a valid election could only be made within the 10 minute period as recorded on the procedure sheet. Moreover, while the Judge acknowledged that a relevant consideration was whether “there was a real possibility that the defendant has been prejudiced by non-compliance”, she failed to take that into account in making her determination.
[57] The appellant says this is a case such as in De Jong where Wild J said:14
On the basis of the advice she received, the appellant requested a blood test. That blood test may not have produced a positive result, in which event the appellant would not have faced any charge … she would obviously have been delighted with that outcome, yet in this appeal complains that she should not be fixed with the positive result of the blood test. Basic justice suggests that she should have to take the rough as well as the smooth.
[58] The appellant therefore argues that in the present case, because Mr Keen was informed of and understood his rights, knew that there was a 10 minute period available to him within which to exercise his right to have a blood test, and expressly requested and was given a blood test, there was no prejudice to him and there was,
on the whole, reasonable compliance with the relevant statutory provisions.
14 De Jong v Police, above n 6, at [25].
The respondent’s submissions
[59] On this issue, the respondent relies on the statement in Andrews v Police, that it is “incumbent on an informant to explain why there has not been strict compliance, or indeed any compliance, with the relevant statutory provisions”.15 The respondent also cites Cullen v Police, where Keane J stated that:16
[28] But what is reasonable under s 64(2) must be set against the purpose of s 73(3)(a)(i) which is to ensure that the motorist is informed “without delay” of his or her ultimate safeguard. As the Supreme Court recognised in Aylwin, a motorist’s right to have a blood sample taken, and thus to displace the positive breath test with the resulting analysis of that specimen, protects the motorist “against the consequences of an error in a breath screening test or an evidential breath test”.
…
[41] … [T]o allow the prosecution a second chance by way of rehearing
… would be to encourage loose police work and loose prosecuting, to the
prejudice of those charges with these offences.
[60] By implication, the respondent considers the Judge was right to be critical of the non-compliance and to decline to apply s 64(2) because the process was “bungled and botched”.
Discussion
[61] I have held that a valid election to have a blood test can be made at any time within 10 minutes of compliance with s 70A(1) (excluding time taken to seek or obtain legal advice), with the result that the election here was valid. However, if I am wrong, and the appellant must avail itself of the reasonable compliance provision in order to rely on the result of the blood test, then the question is whether the Judge erred in applying this provision to reach her conclusion that the defects in procedure could not be overcome.
[62] While the question of whether there was reasonable compliance with the Act involves a factual assessment, that assessment must be guided by the correct legal
test. In R v Aylwin the Court of Appeal expressed the test as follows:17
15 Andrews v Police [2014] NZHC 141 at [43].
16 Cullen v Police [2014] NZHC 1252.
17 R v Aylwin, above n 1.
[41] The test as to whether there has been reasonable compliance has been seen as involving the consideration of two questions, as set out in Soutar v MOT and Aualiitia v MOT. The first question is whether the extent of the non-compliance gives rise to a reasonable doubt about the correctness of the result. The second question is whether there is a risk of the defendant suffering injustice or unfairness. The need for this test to be applied liberally was reiterated by this Court in Shaw v Police. Accordingly, where the non- compliance does not create the possibility or likelihood of error, it should be saved by reasonable compliance. (citations omitted)
[63] In the present case, the Judge focused solely on the extent of non-compliance and found that there had been non-compliance because the constable failed to record a completion time for the 10 minute period or to have the defendant sign that section of the procedure sheet.
[64] However, the fact that there has been a degree of non-compliance is simply a pre-requisite for consideration of s 64(2). That, of itself, cannot be determinative, although undoubtedly the greater the non-compliance, the more likely it is to have prejudiced the defendant or to have led to an injustice. While the Judge records that she “needs to consider whether there is a real possibility that the defendant has been prejudiced by non-compliance, and whether there has been a reasonable doubt in regard to any ingredient that is required to be proven”, there is no discussion in the judgment which demonstrates that she has considered those critical factors. Had she done so, I have no doubt that the outcome would have been different.
[65] In this case the non-compliances identified have no bearing on the correctness of the result of the testing procedure. Mr Keen sought and obtained the protection of an evidential blood test and there is no suggestion the result was flawed or in error.
[66] The same considerations arise as to whether there is a risk of the respondent suffering injustice or unfairness. Again, it is important to distinguish this case, where a blood test was requested and carried out, from cases where the defendant may have sought a blood test but, through procedural error, was denied that opportunity. In such cases, there is potential prejudice to the defendant in holding him or her to the outcome of the evidential breath test, when they may have elected the safeguard of a blood test. Here he obtained the benefit of that safeguard and, as Wild J said in De Jong, he cannot now complain that he is “fixed with the positive result of that blood test”.
[67] I can see no evidence that the consideration of prejudice to the respondent was addressed in the decision. I can also identify no evidence that there was prejudice to the respondent. To illustrate this, if the constable’s words were “I am starting the 10 minute period” as opposed to “I can give you” or “I will give you the
10 minute period”, then his reply “no I just want to go for blood”, uttered one second later, would have been a valid request and, as the procedure sheet says, the constable would not have been required to make him wait the remaining nine minutes, 59 seconds before proceeding to organise that test. He would have been in exactly the same position as he is in now.
[68] While the respondent points to cases where judges have been critical of laxity by prosecuting agencies, the cases cited also emphasise the risk of prejudice to the defendant which may follow. Here the non-compliance was readily explained by the constable’s relative inexperience (it was the first time she had processed a drunk driver), and it did not prejudice the respondent.
[69] In my view, therefore, the answer to question 2 is also “yes”. The Judge did err in applying s 64(2) by only having regard to the degree of non-compliance, and by failing to take into account the factors which suggested that there was no prejudice to Mr Keen, including his confirmation to the officer that he wished to undergo a blood test.
Summary of findings
[70] In summary, I have held:
(a) an election to have an evidential blood test, which is demonstrated on the evidence to have been made within 10 minutes of receiving the advice required by s 77(3) LTA (excluding time taken to seek legal advice), is a valid election;
(b)the record which is made of a 10 minute period on the New Zealand Police procedure sheet is intended to reflect the statutory procedure in the LTA. However, its primary purpose is to assist the police to demonstrate that there has been a full 10 minute reflection period
offered to a person who has not made such an election and who is charged on the basis of an evidential breath test. It can not make invalid, an election that is otherwise valid under the provisions of the LTA;
(c) in assessing whether there has been reasonable compliance for the purposes of s 64(2) of the LTA, a Judge must consider not only the extent of the non-compliance but also whether it gives rise to a reasonable doubt about the correctness of the result, and whether there is a risk of the defendant suffering injustice or unfairness.
Outcome
[71] The outcome of these proceedings is that I both grant leave to appeal the decision of the District Court and I allow the appeal. The charge of driving with excess blood alcohol is reinstated. I remit the proceeding for determination by Judge Farnan in a manner and on a date to be fixed by the District Court.
[72] The question of costs is reserved although, I assume, in the circumstances, the New Zealand Police will not be seeking costs.
Solicitors:
Crown Law, Wellington
Bill Dawkins Law, Invercargill
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