R v Police HC Auckland CRI-2005-404-361

[2006] NZHC 924

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-404-361

BETWEEN  R

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         3 July 2006

Appearances: Barry Hart for Appellant

Nick Flanagan for Respondent

Judgment:      7 August 2006

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

2.45 p.m. on 7 August 2006

SOLICITORS

Barry Hart (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

R V POLICE HC AK CRI-2005-404-361  7 August 2006

Introduction

[1]      Mr Gary R   has appealed against his conviction in the District Court at Auckland on 28 October 2005 on one count of refusing to supply a blood sample: s 60(1)(a) Land Transport Act 1998.

[2]      The appeal raises two interrelated issues: first, what is the nature of a police officer’s discretion, when an evidential breath test fails to produce a result, to require a person to undergo a blood test: ss 70(1) and 72(1)(c); and, second, depending upon the answer, did the officer exercise his discretion in accordance with the law on this occasion.

District Court

[3]      The relevant  facts,  as clearly  summarised  in  the  decision  of Judge  John

Adams in the District Court, are as follows:

(1)      On 14 January 2005 a police officer, Constable Poi, stopped a car being driven by Mr R   on Jervois Road, Herne Bay.  The officer decided to administer a breath test.  He offered a passive test device to Mr R  .  He observed that as Mr R   spoke he turned his head away from the device, speaking into his shoulder.   He inferred that Mr R   was attempting to avoid speaking into the device;

(2)      Constable Poi then required Mr R   to undergo a breath screening test without delay.  He requested him to blow through the mouthpiece continuously.   Mr R   placed his mouth on the mouthpiece but gave two short huffing breaths which were insufficient for analysis. The display on the machine directed Mr R   to “blow again”;

(3)      Constable  Poi  directed  Mr R    to  make  a  seal  around  the mouthpiece and to blow into the device until a result was obtained. Once again Mr R   did not make a seal with the mouthpiece.  As a result,  most  of  his  breath  was  expelled,  as  before,  outside  the

mouthpiece.  The procedure was frustrated.  The officer repeated his earlier request but Mr R   declined;

(4)      Constable  Poi then  required  Mr R    to  accompany  him to  the Auckland Central Police Station on the ground that he had failed to undergo  the  breath  screening  test.    He  administered  Mr R  ’s rights   under   the   New Zealand   Bill   of   Rights   Act   1990   (the NZBORA).   Mr R   refused to  accompany Constable  Poi who then arrested him (Mr R   was found guilty on a charge of failing to accompany; he does not appeal that conviction);

(5)      On the way to the Police Station Mr R   advised Constable Poi that he wished to speak to his own lawyer, Mr Christopher Reid.  The officer  gave  Mr R    a  written  form  of  advice  pursuant  to  the NZBORA.   Mr R   complained that he could not read the form without  his reading  glasses.    At  Constable  Poi’s request,  a  patrol vehicle retrieved those glasses from Mr R  ’s vehicle which was still parked in Herne Bay and returned them to the Police Station. Mr R   then signed the form confirming that he had been given the requisite advice.  Constable Poi assisted him to find a telephone number  for  Mr Reid.    However,  Mr R    was  unable  to  locate Mr Reid.    Instead he phoned Mr Barry Hart  whom Constable  Poi offered from a list of rostered on-call lawyers.  Mr R   was left in privacy to speak with Mr Hart;

(6)      Constable Poi required Mr R   to undergo an evidential breath test without delay once he had completed his telephone discussion with Mr Hart.      The   machine   was   an   evidential   breath   test   Seres Ethylometre.  Mr R   put his mouth around the mouthpiece.  The display panel read “please blow”.  Mr R   responded by blowing into the mouthpiece until the mechanical direction to blow switched off.   The machine went through its scroll checks and answered that the test was not completed.  It delivered a reading of 0714, well above the legal breath alcohol limit;

(7)      Constable  Poi  then  attached  a  fresh  mouthpiece  and  requested Mr R   to blow again.   Mr R   refused.   He said that he had blown already and that the machine had displayed a sign saying ‘stop blowing’.  Constable Poi accepted that the machine had delivered that result earlier.  However, at the time Mr R   raised the question the device was displaying the sign “please blow”.   Constable Poi drew this  request  to  Mr R  ’s  attention.     However,  he  refused  to comply;

(8)       By this  stage  the  machine  was  under  way  in  its  second  process.

Constable Poi said this:

[Mr R  ’s] reaction was that he had already blown once and  that  the  device  had  said  stop  blowing.    I  referred [Mr R  ] to the display panel which was clearly reading once again ‘please blow’ and required him to supply the sample of breath.   [Mr R  ] refused to blow again and said he was going to ring his lawyer.  I advised [Mr R  ] that the testing sequence had begun and that he was required to supply the samples  of breath…    [Mr  R  ]  left  the cubicle  to  make  use  of  the  telephone.    I  again  advised [Mr R  ] that he was required to supply the samples of breath as required from the device, that the device would scroll through its test, the testing sequence and ultimately produce a result in the form of a printout from the machine, and that we would not know the result until it was printed on that printout and in order for that to happen he was required to supply breaths for analysis.  [Mr R  ] remained in the telephone booth on the telephone…

Through this time the device went through its testing sequence and completed the cycle.  It again advised that the result of the evidential breath test was incomplete;

(9)      When Mr R   returned, Constable Poi showed him the printout recording an incomplete test.   The officer advised him that he had failed  to  complete  the  test.    He  then  required  him  to  supply  a specimen of blood  for  analysis and without  delay.    At  that  stage Mr R   advised that he did not want to supply a blood test and that he wanted to repeat the evidential breath test.

[4]      At  trial  Constable  Poi explained  the  grounds  for  his  decision  to  require

Mr R   to undergo a blood test in these words:

Up until this stage I had accommodated [Mr R  ] with regards to the spectacles, wanting to speak to his own lawyer, speaking to a rostered list of lawyers after some time.  I had clearly outlined to him the requirements to supply samples of breath sufficient for analysis in order to gain a result. [Mr R  ] left the cubicle in order to make use of the telephone to speak to whom I do not know as I was not privy to the conversation.   [Mr R  ] was aware of the requirement to complete the test as it had been given to him on numerous occasions.  So at this stage I deemed the evidential breath test to have been failed to have been carried out (sic) and required him to supply a sample of blood.

[5]      Constable Poi then filled out the standard blood specimen form.  He read the statutory requirement for Mr R   to permit a registered medical practitioner or medical officer to take a blood specimen for the purposes of analysis.   Mr R   wrote on the form that he did not consent.  He gave as his reason that the machine had stopped blowing and so did he.  The officer advised Mr R   of the penalties for refusing to give blood.

[6]      The principal issue before Judge Adams, as it was on appeal, was whether or not  Constable  Poi  had  correctly  exercised  his  statutory  discretion  to  require Mr R   to provide blood.  The relevant section provides (s 70(1)):

If for any reason an evidential breath test carried out under section 69 by an enforcement officer fails to produce a result, the enforcement officer may, at his or her discretion, either require the person to undergo without delay a further evidential breath test or proceed as if section 72(1)(c) applies.

[Emphasis added]

[7]      The Judge noted that ‘on the face of it [s 70(1)] gives the officer a pretty free hand’.  He referred to the breadth of the phrases ‘for any reason’ and ‘at his or her discretion’.   He was of the opinion that the legislature would have anticipated ‘a range of untidy circumstances’ which officers may confront, whether they are related or unrelated to the subject person’s behaviour.  He recorded that Mr Hart had urged him to apply a test of objective reasonableness.

[8]      On this issue the Judge found:

[25]      I have formed a view that the officer was a little impatient  with [Mr R  ] at this point but an officer who has formed a view that he is dealing with someone who is deliberately trying to frustrate the physical processes of the devices is not necessarily an officer who is lacking in the capacity to make a balanced decision about the subject matter of section 70, if indeed there is a requirement for objective reasonableness.

[26]      In my judgment the circumstances observed by the officer gave him plenty of reason to expect that any further offer of the evidential breath test process would be likely to be met with no greater success than before.  There was the fairly obvious attempt to avoid the breath screening test in the car, there was  the  failure  to  make  a  seal  and  blow  properly  for  the  breath screening test and then there was the walking off the job in the middle of the evidential breath test process.

[27]      Now I accept that [Mr R  ] is entitled to legal advice throughout the procedure but in my judgment that was not denied to [Mr R  ] who, after the various activities which, in my judgment, were designed to frustrate the obtaining of a proper result, left the evidential breath test in the middle of its process.   It would be perfectly reasonable for him to make a telephone call to his lawyer immediately after the process, it would be perfectly reasonable for  him to  make a  telephone  call  to  his  lawyer  immediately before the process.   He had already spoken to his lawyer and in my view there was substantial compliance with the Bill of Rights.

…

[30]     Even if there is a requirement for objective reasonableness in the decision under section 70 to move to blood and to decide to abandon further evidential breath tests it is  my judgment that the decision of the officer satisfies such a test.

Submissions

[9]      Both counsel filed full written synopses.   Mr Hart originally identified the issue on appeal as whether or not Judge Adams erred in finding that Mr R   was not entitled to interrupt the evidential breath testing process for the purposes of obtaining further legal advice.  This reflected a focus on the Judge’s conclusions that Mr R   had already been granted and had exercised that right, and that he left the evidential breath test in the middle of a process for the purpose of frustrating its proper result.

[10]     However, in oral argument, Mr Hart redirected his challenge towards the grounds for Constable Poi’s exercise of his statutory discretion to require Mr R   to undergo a blood test.   He submitted that the officer erred in failing to  allow Mr R    to  undergo  a  second  evidential  breath  test;  that  there  was  evidence

Mr R   was genuinely confused prior to  seeking  legal advice on the second occasion  and  that,  having  received  it,  he  advised  that  he  would  undergo  the evidential test; and that the significant feature of the first test was that Mr R   had blown into the device.   In this context Mr Hart repeated his legal submission made in the District Court that the officer’s discretion was not unlimited but was to be measured against the standard of objective reasonableness.

[11]     Mr Nick Flanagan for the police submitted that it was only necessary for the prosecution to establish that the officer exercised his discretion in good faith, not in accordance with a test of objective reasonableness; that there was ample evidence Constable Poi was acting in good faith at the time he required Mr R   to undergo a blood test; that subsequent events, such as Mr R  ’s offer to submit to another breath test, are irrelevant; and that Mr R  ’s justification for terminating what was  in  fact  a  second  test,  namely  that  he  wanted  further  legal  advice,  was inconsistent with the evidence and that, in any event, he had no legal right to advice at that point.

Decision

[12]     The issue for determination is primarily one of statutory construction.   The sole factual prerequisite for a police officer to exercise the s 70(1) discretion is that the evidential breath test has failed to produce a result.  The reason for the failure is immaterial.   Any reason is sufficient, whether mechanical malfunction or personal obstruction.  Once that event occurs, the officer is empowered to adopt one of two alternative courses.

[13]     First, the officer may ‘require the person to undergo without delay a further evidential  breath  test’.    Alternatively,  he  or  she  may  ‘proceed  as  if  s 72(1)(c) applies’; that is, the situation is deemed to be one where an evidential breath testing device is not available or ‘for any reason an evidential breath test cannot then be carried out’.  The person ‘must permit [a blood specimen to be taken] when required to do so by’ the officer if the latter course is followed.

[14]     The only question upon which the officer must exercise his or her discretion is the choice between the two available alternatives once the factual foundation is established.  There is no statutory direction or presumption either way and nothing to suggest that the discretion is reviewable according to a test of objective reasonableness.   The breadth of the officer’s discretion is confined solely by the subject-matter and object of s 70(1): Coal and Allied Operations v AIRC 174 ALR

585 at [19] per Gleeson CJ.   Of course, he or she must act in good faith and in accordance with the purpose for which the discretion is conferred: Shrimpson v The Commonwealth (1945) 69 CLR 613 (HCA) at 620. Otherwise, the evidence will have been obtained unfairly and may be excluded: R v Shaheed [2002] 2 NZLR 377 (CA).

[15]     Mr Hart relied on Duell v Ministry of Transport [1993] 1 NZLR 13 (CA) to import an obligation of objective reasonableness. In that case a grossly intoxicated driver had failed to provide sufficient breath for a sample at the evidential breath test stage despite blowing six to 10 times. The officer then required him to undergo a blood test. The driver argued that there was insufficient evidence to justify a finding of failing to supply air for a sample and that the officer should have given him the opportunity of a further breath test. Mr Hart advanced the same argument for Mr R .

[16]     A question of law was certified in Duell as to whether at least two tests on a breath testing device must be attempted before an enforcement officer could require a blood specimen.  Section 58C(1)(c) Land Transport Act 1962, which was then in force, provided that:

An enforcement officer may require a person to permit … a blood specimen

… if –

(c)       … for any reason an evidential breath test cannot then be carried out at that place.

[17]     In a passage upon which Mr Hart relied, Cooke P noted, in Duell at 16:

The key to all these matters is reasonableness and common sense in the particular circumstances: hard-and-fast rules applying to all circumstances cannot be laid down…

I do not exclude the possibility of cases in which the officer must allow a further   opportunity  of  an  evidential  breath  test.     For   example  (not exhaustive),  the  person  might  genuinely  ask  for  a  further  opportunity because he now understood better how to blow into the machine; or some temporary cause such as excess mouth alcohol or easily correctable malfunctioning of the machine or perhaps electric interference could account for  the incompleteness  of  the first  test;  or  one  reading  may  have  been obtained, but not the required two.   In such cases it  might not be fairly possible to say that the person had failed or refused to undergo a test or that a test could not then be carried out at that place.   Again the answer must depend on reasonableness and common sense…

[Cooke P’s emphasis]

[18]     With respect, this dicta no longer represents the law.   The terms of s 70(1) confer a discretion on a police officer that is unfettered by any incidental obligation to allow a person an opportunity to undergo a second evidential breath test.   The facts  in  Duell’s  case,  if  heard  today,  would  undoubtedly  satisfy  the  factual prerequisite of a failure of an evidential breath test to produce a result, triggering the officer’s discretion.  The statutory power did not then reach to that specific factual precondition.    The  inclusion  of  the  words  “at  his  or  her  discretion”  serve  to emphasise the width of the officer’s power.

[19]     Moreover, in the immediately succeeding passage, which Mr Hart did not cite, Cooke P said this in Duell at 16:

Any such cases seem likely to be uncommon; but, to save later arguments, on an ‘incomplete test’ result an officer may prefer to adopt the practice of ordinarily requiring a second sequence…

The present case I see as a simple one in which an obviously intoxicated driver, given a reasonable opportunity to provide samples, failed to blow adequately.   The officer was entitled but not bound to provide a second opportunity to undergo the sequence.    He did  not  do  so  and  there  was nothing in the particular facts to oblige him to do so...

[20]     Hardie Boys J said this at 18:

Under s 58C(1)(c) the officer is required to exercise a judgment, and this is necessarily and properly to be based on all the circumstances at the time. And while the Court will look at the matter objectively, it will not differ from him if he has acted reasonably and conscientiously.   This appellant was, on the officer’s assessment, grossly affected by alcohol, and as he had been unable to blow sufficiently into the machine on two occasions it would not  be  unreasonable  to  think  that  a  further  test  would  be  no  more successful...

[21]     In my judgment it is unnecessary to import into s 70(1) the requirement of common sense or reasonableness which may have previously applied to the officer’s decision on whether or not to require a further attempt to complete an incomplete evidential breath test.  I agree with Mr Flanagan that Constable Poi was not obliged to consider or accept Mr R  ’s offer to undergo another evidential breath test. The previous test had failed to produce a result.  The officer was then empowered to require a blood  specimen,  and Mr R    committed  an  offence  by refusing  to comply.

[22]     I  agree  also  with  Mr Flanagan  that  Mr R  ’s  excuse  for  refusing  to participate in the aborted second breath test, namely that he wanted to speak again with a lawyer, is immaterial.  Failure of the first test, following Mr R  ’s earlier discussion with Mr Hart, was sufficient to invoke the officer’s discretionary power. And Mr R  ’s evidence on this point was contradictory in any event.

[23]     I note that Nicholson J has reached a similar conclusion: Excell v Police (HC Tauranga, AP75/01, 29 April 2002 at [46]-[48]).   The Judge refused to import a requirement  that  the  s 70  discretion  be  exercised  reasonably  according  to  an objective basis.  He was satisfied that the power granted by s 70 was intended to be wide and unfettered.  He took account of the Court’s discretion to reject evidence if it has been obtained by a misuse of power.   The Judge distinguished as obiter the comments of Randerson J in Tere v Police (HC Auckland, A209/99, 7 March 2000, at [22]):

It is unnecessary for the purpose of this appeal to determine the precise scope of s 70 and it is undesirable to attempt to do so.   In my view, the touchstones of fairness and reasonableness identified by the Court of Appeal

…  continue to apply and the Courts  must  retain  a  flexible approach  to prosecutions under this legislation.

I  respectfully  agree  with  Nicholson J  but  emphasise  that  Randerson J  was  not purporting to deal with the issue now under appeal.

[24]     In any event, I agree with Judge Adams that the circumstances of this case more than satisfied a test of objective reasonableness even if it applied.  The thrust of Mr Hart’s argument was that Constable Poi erred in refusing to allow Mr R   to

undergo a second evidential breath test once he offered to follow this course. However, Judge Adams found that the officer had a proper basis for concluding that Mr R   was “someone who [was] deliberately trying to  frustrate the physical processes of the devices …” (at [25]) and that Mr R  ’s offer “would be likely to be met with no greater success than before …” (at [26]).  The officer was aware of his  power  to  require  a  further  evidential  breath  test  but  he  was  satisfied  that Mr R   “was just prolonging the exercise in that he was not completing the test as required”.

[25]     Accordingly,  I  am  not  satisfied  that  Judge  Adams  erred,  and  I  dismiss

Mr R  ’s appeal against conviction.

Rhys Harrison J