R v Spratt Ca142/05

[2005] NZCA 232

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA142/05

THE QUEEN

v

BRENDON JOHN SPRATT

Hearing:29 August 2005

Court:Robertson, Baragwanath and Goddard JJ

Counsel:P H B Hall for Appellant

B J Horsley for Crown

Judgment:8 September 2005 

JUDGMENT OF THE COURT

A         Appeal against conviction dismissed.

BAppeal against sentence allowed.  Sentence of 12 months imprisonment quashed and in lieu a sentence of six months imprisonment is imposed with leave to apply for home detention.

___________________________________________________________________

REASONS

(Given by Goddard J)

Introduction

[1]        The appellant was found guilty by a jury on one count of attempting to pervert the course of justice under s 117(e) of the Crimes Act 1961 and sentenced to 12 months imprisonment with leave to apply for home detention.

[2]        The circumstances which gave rise to the charge can be summarised as follows:

·During the early hours of 4 April 2001 the appellant was stopped by a police officer for driving at excessive speed.  The sequence of events that occurred immediately thereafter was later contested at a summary hearing.  The appellant was required to undertake a roadside breath screening test which he was deemed to fail and then asked to accompany the officer to the police station.  Ultimately he was charged with failing to accompany the officer.

·At Christchurch Central Police Station the appellant underwent an evidential breath test but was unable to complete this test.  He was then requested to provide a blood specimen which he agreed to do.

·The doctor who attended on the appellant at the police station took two vials of blood from him in accordance with required practice.  While the doctor was sealing and labelling the two vials, the appellant was seen to pick up one of the samples and handle it.  The officer, who was present, asked the appellant to leave the samples alone, which he did.

·Shortly afterward the appellant asked to use the toilet, which was located in an adjacent room.  While the appellant was in the toilet it was noticed that one of the two blood samples was missing.

·The officer and doctor searched the room but were unable to find the vial, which has never been recovered.  However, when the officer and doctor inspected the toilet area they noticed fresh blood on the toilet rim and possibly on the sanitary disposal unit.

·The remaining sample was sent to ESR for analysis and found to contain alcohol at a level almost twice the legal limit.

[3]        As a result, the appellant faced charges of failing to accompany the police officer, driving with excess blood alcohol and attempting to pervert the course of justice by removing and destroying one of the blood specimens.

The drinking and driving charges

[4]        The Land Transport Act 1998 charges were tried summarily in the District Court before Judge Somerville and dismissed on the basis of conflicting evidence between the police officer and an independent witness who had observed what happened at the time of the initial arrest.

[5]        The officer’s version of events was that, while he was on patrol in an unmarked patrol car he had observed the appellant travelling in excess of the speed limit, pursued him and stopped his car.  After speaking with the appellant he administered a breath screening test which the appellant was deemed to have failed and he then asked the appellant to accompany him to Christchurch Central Police Station.  However, while the officer was moving the appellant’s car (which was parked across a driveway) the appellant ran off up a nearby driveway.  The officer pursued and caught him and after subduing him with pepper spray eventually handcuffed him, placed him in the patrol car and took him to Christchurch Central Police Station.

[6]        The evidence of the independent witness was somewhat different.  She said that she saw two vehicles come speeding into the street where she was and pull up close by.  She said the driver of the first car got out and ran up a driveway followed immediately by the driver of the other vehicle.  She then saw the second driver subduing the first man, handcuffing him and pepper spraying him.  Both returned to the roadside where the first driver was placed still handcuffed into the patrol car and at that point an evidential breath test was administered.

[7]        Judge Somerville found that, if the sequence of events as described by the independent witness were correct, there would be serious doubt about the legality of the arrest, as at the time of arrest all that the officer knew was that the appellant had committed a speeding offence for which he could not be arrested.  However, the Judge found no reason to doubt the truthfulness of the officer’s evidence either.  He was therefore left in a situation of reasonable doubt and so determined the case as follows:

[7]       They cannot both be right and I am unable to say which version is right.  That means that I must be left in a state of reasonable doubt about exactly what happened on the night.  If the version by Ms Charlesworth is true then the arrest was unlawful and everything that followed from it should not be admitted in evidence.  Because there is a possibility of it being true I should dismiss these charges.  That is not a finding that Constable Hurley behaved as Ms Charlesworth described, instead it is a finding that I cannot be certain that [the appellant] can be properly convicted.

[8]        On that basis, Judge Somerville dismissed both of the charges under the Land Transport Act 1998.

The jury trial

[9]        The appellant was subsequently tried by Judge Doherty and a jury on the remaining charge of attempting to pervert the course of justice.  Prior to trial the Crown applied under s 344A of the Crimes Act 1961 for a ruling as to whether the Crown ought to be permitted to adduce the evidence relating to the collection of the blood specimen at Christchurch Central Police Station in order to establish the charge of attempting to pervert the course of justice.  The appellant challenged that evidence on the ground that it was tainted by the illegality of the unlawful arrest and the consequential unlawful and arbitrary detention, and argued that to permit the evidence to be called would amount to a collateral attack on Judge Somerville’s finding that “everything that followed from [the unlawful arrest] should not be admitted in evidence”.

[10]     Judge Doherty ruled the evidence admissible on the ground that it was “highly relevant to and probative of” the Crown’s task in proving “whether the appellant had disposed of his blood sample in an attempt to pervert/prevent the course of justice”.  The Judge analysed the Crown’s task as having to establish beyond reasonable doubt:

(1)that the accused destroyed evidence (a sample of blood) gathered by the police in the course of investigating an alleged crime (driving with excess blood alcohol);

(2)the accused wilfully, that is, deliberately or intentionally, destroyed the sample of blood with the objective of making the investigation and/or his later prosecution more difficult.

(3)the actions of the accused, in disposing of the blood sample, had the tendency to pervert the course of justice.

[22]     Hence, the real crime is the doing of some act, (which had a tendency) with an intention to pervert the administration of justice.  The gist or thrust and substance of the alleged crime is conduct which may lead and is intended to lead to a miscarriage of justice whether or not a miscarriage actually occurs.

[11]     The evidence that was available and would tend to prove those elements was described by the Judge as follows:

[23]     It is apparent, viewing the events at the police station in isolation, that the Crown has a reasonable case.  The proof of the actus reus of the offence could be easily inferred by the jury from a recitation of exactly what transpired at the police station after the blood sample was taken.  The mens rea of the offence could also be inferred; the accused’s actions show he had the intention of interfering with the investigation process.  Finally, the accused’s actions had the tendency to lead to a miscarriage of justice.  The Crown could prove the charge without having to canvass any of the events prior to the accused giving a blood sample at the police station.

[12]     Judge Doherty then considered what effect the unlawful arrest had on the subsequent taking of the blood sample, after referring to the observations of Elias CJ in R v Shaheed [2002] 2 NZLR 377, about the necessity to prove a causative link between a breach and contested evidence, and the reference in that judgment to the statement of the Supreme Court of USA in Wong Sun v United States 271 US 471 (1963) that “… the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint’”. Applying that test to the available evidence, Judge Doherty was able to conclude that:

[31]     In this case there is a mere temporal link between the unlawful arrest and the accused’s conduct at the police station.  The evidence of the accused tampering with the blood sample came about by “means sufficiently distinguishable to be purged of the primary taint”.  The unlawful arrest did not “cause” the accused to tamper with the blood sample.  The evidence came about through his own subsequent, intervening and unrelated acts.

[32]     … The evidence has not grown from the poisonous tree but has grown from the accused’s own subsequent actions, which led to a new offence unrelated to the blood alcohol offence.  The Crown can essentially prove the perverting charge without reference to the earlier events, and this in my view, supports the proposition that the new evidence is effectively unrelated to the original offending.

[33]     Furthermore, it is not the actual blood sample itself that the Crown wishes to adduce to prove the perverting charge, but evidence of the existence of the blood sample and of what the accused did with it.

[13]     Following the ruling that the blood sample was admissible for the purpose of proving the charge of wilfully attempting to pervert the course of justice, the appellant applied to have the evidence of the independent witness (who had subsequently died) read to the jury pursuant to s 3(1) of the Evidence Amendment Act (No 2) 1980.  This was declined on the ground that the appellant’s belief as to whether the arrest was lawful was irrelevant to the issue of his intention in taking and disposing of the blood sample at the police station.  In declining the application Judge Doherty said:

[10]     In considering the elements [of the charge], what the accused may have thought of the outcome of any legal process or the legal status of any evidence is irrelevant.  If an accused’s belief in the likelihood or not of conviction once an investigation is in train was relevant, it would mean any accused could decide for himself or herself how the course of justice was best served.  The course of justice is immutable and not affected by whether a particular person is guilty or not guilty.

[14]     As a result of the pre-trial rulings, the unlawful arrest and consequential unlawful detention of the appellant were not issues for the jury in determining whether the appellant was guilty of wilfully attempting to pervert the course of justice.  Therefore, the Judge directed the jury that:

What the accused may have thought of the outcome of any legal process or the legal status of any evidence is irrelevant.

[15]     The Judge’s directions in summing-up to the jury about the elements of the charge of wilfully attempting to pervert the course of justice, and a series of questions that he posed for the jury’s consideration and which he suggested, if answered in the affirmative, would lead to a guilty verdict, were criticised on appeal as deficient in a number of respects.  Those directions were as follows:

[10]     ...  The “course of justice” in this context and in this case was the investigation by the police of an allegation that he had driven while having too much alcohol in his system, something that is contrary to the Land Transport Act which is the piece of legislation governing drink driving amongst other things.  Now there are two aspects to that element.  To dispose of a blood sample with the intention of perverting the course of justice is not enough of itself.  The disposal must also have had the tendency to pervert the course of justice.  Now the Crown alleges here that the tendency was that if the blood sample was destroyed it would have the effect of making it harder to prove the charge of driving with excess blood alcohol.  First of all, the disposal must have had that tendency and secondly, intent is an essential element.  There must have been, at the time he did it, a specific intent to pervert the course of justice.  The specific intent alleged here by the Crown is to prevent or delay a successful prosecution against him.  That intent must be proved beyond reasonable doubt.  So to encapsulate that, the real crime here is the doing of some act which has both a tendency and an intention to pervert the administration or course of justice.  The gist or the thrust in the substance of the crime is conduct which may lead and is intended to lead to a miscarriage of justice whether or not a miscarriage actually occurs.  So it does no matter whether or not in this case the police were still able to prosecute with the one remaining blood sample.

…

[12]     The first question is this, did the accused do the act alleged?  That is, did he dispose of the sample?

[13]     Secondly, did the accused intend to do that act, did he intend to dispose of the sample? For example it could have been an accident.  He has to have intended that.

[14]     Third, had the course of justice commenced at that time? …

[15]     Next question, did the accused know the course of justice had commenced?  That is, did he know the police were conducting an investigation which might result in a prosecution?

[16]     Fifth, did he know that the evidence disposed of was likely to be used in any prosecution?

[17]     And lastly, did he intend that that should not occur?

[18]     It seems to me that if the answers to all of those questions is “yes” then your verdict would be one of guilty, but if the answer to any of the questions, any one of them was “no”, then it would be not guilty because the Crown would not have proved its case.

[19]     In considering the elements of the charge, what the accused may have thought of the outcome of any legal process or the legal status of any evidence is irrelevant.

The appeal

[16]     The appeal against conviction is advanced on the grounds that Judge Doherty erred in ruling admissible the evidence relating to the taking of the blood sample and in ruling inadmissible the evidence of the independent witness; and that he misdirected the jury both as to the elements of the charge and in the nature of the questions he posed for the jury’s consideration.

[17]     The appeal against the sentence of one years’ imprisonment imposed is advanced on the grounds that it is manifestly excessive or clearly inappropriate.

The first ruling

[18]     The starting point for enquiry is whether, as Judge Doherty found, there was a course of justice in train with which the appellant’s action in disposing of one of the blood samples intervened as a separate act.  The course of justice identified by the Judge was the investigation into whether or not the appellant had been driving with excess blood alcohol.

[19]     The central question is whether there could be a course of justice in train when the appellant was detained unlawfully after having been arrested unlawfully.  Mr Hall’s submission was that, given the initial unlawful arrest, neither the police officer nor the doctor had statutory power to request a blood specimen nor any right to collect or possess samples of blood for the purpose of prosecuting the appellant.  He pointed out that if the appellant had simply refused to supply a specimen of blood, he would have been charged with refusing to permit a specimen of blood to be taken and that offence would necessarily have been dismissed by Judge Somerville along with the charge of failing to accompany the officer.  In contrast, the appellant had been required to co-operate with medical procedures undertaken unlawfully and been afforded no protection from unfairness or illegality.  In Mr Hall’s submission the “two quite different outcomes do not sit well together”.

[20]     Judge Doherty was alive to these issues.  He noted that if the arrest had been lawful there could be no issue with the charge of perverting the course of justice.  Conversely, he asked himself how, in a situation where the initial arrest had been unlawful, did that illegality affect the admissibility of the evidence being called?  He answered that question as follows:

[34]     The blood sample was, at the time of the actions alleged against the accused, always potential evidence in any prosecution of the accused for a breach of the Land Transport Act.  The later exercise of a discretion to exclude it by a judge contemplating the blood alcohol charge does not alter the status of its existence when the accused disposed of it.

[21]     This reasoning has force.  Whatever the appellant’s (now) professed view of the lawfulness of his initial arrest, until and unless that arrest was found to be unlawful by a court, there was a legitimate investigation into whether or not he had been driving with excess alcohol in his blood.  That investigation commenced from the moment the officer, acting in lawful execution of his duty, stopped the appellant for exceeding the speed limit.  The course of justice then set in train was not rendered a nullity nor non-existent by the later finding that the lawfulness of the arrest could not be established beyond reasonable doubt.  As Judge Doherty directed the jury, the fact that the appellant was later acquitted on the Land Transport Act charges “for whatever reason” was not relevant to whether he interfered with the investigative process, knowing that his actions had the tendency to adversely affect the outcome of the investigation.

[22]     In R v Meyrick CA513/04 14 June 2005, this Court noted that an attempt to obstruct, prevent, pervert or defeat the course of justice can occur even prior to the commencement of a police investigation (as in R v Rafique [1993] QB 843). Analogously, the appellants in Rafique were ultimately found not guilty of any criminal offending but guilty of attempting to pervert the course of public justice because of actions they took prior to any police investigation commencing or any search warrants being issued. 

[23]     Meyrick turned on the absence of sufficient evidence to establish that
Mr Meyrick was aware the police were in possession of a search warrant directed to a computer tower he removed from his daughter’s flat.  The Court found that the obtaining and execution of a warrant could be regarded “as a subset of the “course of justice” referred to in s 117(e)” and that if Mr Meyrick had known that a search warrant had been issued, his actions “could probably be regarded as intended to defeat the execution of that search warrant and therefore as intended to defeat the course of justice” because:

… he would have appreciated that there had been a judicial process which had resulted in the making of a Court order addressed to the computer tower.  Wilful interference with the execution of that order would probably be sufficient to attract liability under s 117(e) irrespective of the appellant’s personal beliefs as to the evidential significance of the computer tower.  Whatever the appellant might have thought of the merits of the search warrant, he was not entitled to interfere with the processes associated with its execution.

[24]     On the Meyrick approach, it is clear that the appellant in the present case knew that he was under arrest and was being detained at Christchurch Central Police Station for the purpose of undergoing evidential breath and blood procedures in connection with a suspected drink driving offence.  He had been formally advised about those procedures and his rights in relation to them were explained.  In addition, we note his background of experience as a police officer.  The only reasonable construction is that he was fully aware that a specimen of his blood was being taken for evidential purposes and also aware of the likelihood that analysis of that blood would yield a level of alcohol above the legal limit.  Whilst his action in taking and disposing of one of the samples of blood was explained as simply ‘wrong-headed’, his action in doing so, after having been warned by the officer not to touch the sample, had the tendency to defeat the course of justice.

[25]     Although the appellant took only one of the samples (to which he would in due course have been entitled for independent analysis) his taking of the sample at that time could not be characterised as a mere exercise of his legitimate right to future possession of it.

[26]     Judge Doherty correctly drew a distinction between the direct consequences of the unlawful arrest (dismissal of the Land Transport Act charges) and the taking of the blood sample for investigative purposes under the Land Transport Act.  The lawfulness of the arrest was not an element of the offence of attempting to pervert the course of justice (cf the offence of escaping from lawful custody which requires proof that an alleged escapee was in lawful custody: see Police v McFadyen [1982]
2 NZLR 641 at 647). The appellant’s action in uplifting and disposing of one of the vials of blood, contrary to instruction not to do so, constituted a discrete act which was not dependent on proof of the lawfulness of the prior arrest. The actus reus of the s 117(3) charge was the uplifting of the sample the second time when the appellant knew he was not entitled to do so and knew that removing it had the tendency to pervert the course of justice.

The second ruling

[27]     It follows from the reasoning above that the evidence of the independent witness as to the circumstances of the initial arrest at the roadside was irrelevant to proof of the actus reus and the accompanying intention to pervert the course of justice by taking and destroying one of the blood samples and was properly excluded.

Judge’s directions to the jury

[28]     It follows also that Judge Doherty did not misdirect the jury either as to the elements of the charge of wilfully attempting to pervert the course of justice or in respect of the questions that he suggested the jury needed to ask themselves in determining guilt or innocence.  The undetermined status of the blood sample at the time the appellant disposed of one sample of it was not a live issue for the jury in determining whether or not he intentionally intervened in an investigative process that was in train.

Sentence appeal

[29]     Judge Doherty rejected a submission that the appropriate sentencing response was a sentence of community work, referring to the appellant’s prior convictions for drink driving offending, of which there had been three episodes: in 1978 driving with excess blood alcohol concentration; in 1990 refusing to give a blood specimen and refusing to accompany an enforcement officer; and in 1997 refusing to accompany an enforcement officer and driving with excess breath alcohol.  He referred also to the fact that the appellant had not provided any explanation to the police nor given evidence at the trial.  Significantly, in response, Mr Hall submitted that Judge Doherty’s ruling that the evidence of the independent witness as to the lawfulness of the arrest was irrelevant had effectively precluded the appellant from giving evidence at trial of his belief as to the lawfulness of the situation and his consequential belief in the legal status of the blood specimen taken from him and the outcome of any legal process.

[30]     Crown counsel had referred Judge Doherty to the decision in R v Hillman [2005] 2 NZLR 681, which concerned a direct threat by the appellant in that case to a complainant to withdraw a complaint of assault against a fellow gang member. On appeal this Court reduced a sentence of three years imprisonment to one of
18 months imprisonment after discussing a number of cases involving similar but more serious intimidatory behaviour.  The facts in those cases and in Hillman are however quite dissimilar to the facts in the present case.

[31]     Mr Hall repeated his submission to Judge Doherty and to the jury that the appellant’s intention in taking and disposing of the blood sample had simply been a “wrong-headed” reaction to his view of his earlier treatment by the arresting officer (the use of pepper spray about which the appellant had complained) and emphasised that the disposing of only one of the vials of blood had not in fact interfered with the obtaining of a definitive analysis from the sample in the other vial.  He pointed out that there had also been a discussion between the appellant and the doctor who took the specimen of blood about the appellant’s entitlement to have an independent analysis of the second sample carried out.

[32]     Taking all of those matters into account, and on a comparison with the offending in Hillman and the cases discussed therein, we are satisfied that whilst a sentence of imprisonment was in principle called for, a term of six months imprisonment is sufficient to appropriately punish the appellant in the circumstances.

Result

[33]     The appeal against conviction is dismissed.

[34]     The appeal against the sentence of 12 months imprisonment is allowed and in lieu a sentence of six months imprisonment is imposed with leave to apply for home detention.

Solicitors:

Crown Law Office, Wellington