Rata v Police

[2016] NZHC 793

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-6 [2016] NZHC 793

BETWEEN

WALTER EDWARD RATA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	26 April 2016
Appearances:	A J Hamblett for the Appellant R L Mann for the Respondent
Judgment:	26 April 2016

ORAL JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:

Mr A J Hamblett, Barrister, Hamilton

Ms R L Mann, Almao Douch, Office of the Crown Solicitor, Hamilton

RATA v POLICE [2016] NZHC 793 [26 April 2016]

[1]      The appellant was convicted of driving with excess breath alcohol in its aggravated form under ss 56(1) and 56(4) of the Land Transport Act 1998 (the 1988

Act). This was on the basis that he had two previous relevant convictions – one from April 2014 and the other from 1991.   The appellant was sentenced to 60 hours community work and disqualified from driving for 12 months and 1 day.

[2]      He appeals against the conviction on the grounds that the Judge wrongly rejected a defence of total absence of fault related to the fact that he has seriously impaired senses of taste and smell, and other difficulties, and he did not realise he had consumed alcohol.   He also challenges the conviction as being for a third or subsequent offence for reasons I will come to. And he contends that there are special reasons relating to the offence which should have resulted in his not being disqualified, or at least for a shorter period.

Factual background

[3]      The appellant was driving a car when stopped by a police officer.  Subsequent breath alcohol analysis established a level of 501 micrograms.  The testing procedure and the result are not in issue.

[4]      When the appellant was stopped he was asked by the police officer if he had been drinking.  The appellant said he had.  The officer took him to the police station and started the breath testing procedure.  There were further questions about alcohol. The appellant, according to the police officer, said that he had had two beers but then changed that and said that he had had two Codys.  The police officer recorded this in his notebook, including deleting a note about two beers and substituting two Codys. The police officer did not get the appellant to sign the notes.

[5]      The appellant has a number of medical conditions or disabilities caused by a serious head injury in 2008.  The consequences of the injury are wide ranging.  This is evidenced by a detailed report from a neuropsychiatrist admitted in evidence in the District Court by consent.

[6]      The essence of the appellant’s defence on the substantive charge was that, because of his injuries, he did not know that he had been drinking alcohol that night.

He did agree that he had been at a party.  He said that quite a few people at the party were drunk. He said that he thought he was drinking lemonade or orange juice.

Evaluation: complete absence of fault

[7]      For reasons already recorded, the primary offence – that is to say, leaving aside the question of the number of prior convictions – was established subject to the defence of a total absence of fault.1    The onus was on the appellant to establish a factual foundation for this defence and, if established, the defence had then to be assessed on its merits.

[8]      Judge A S Menzies held that the factual foundation had not been established.2

He said:

[37]     Before  considering  the  defence  of  total  absence  of  fault,  the prosecution   evidence  relating  to   the   constable’s  discussion   with   the defendant and completion of the breath and blood alcohol procedure sheet needs to be addressed.   The prosecution evidence was that the defendant admitted drinking at the roadside and subsequently admitted to the constable that he had consumed two Codys (having initially referred to two stubbies of beer).

[38]      The defendant acknowledged being asked if he had been drinking at the roadside and he acknowledged that he had said so.  However he asserted that there had been no reference to alcohol in the context of that question which the constable admitted.  However, I have no difficulty in determining that the defendant would have known full well that the constable’s inquiry about drinking referred to alcohol even though it was not specifically mentioned.   The defendant was no stranger to breath alcohol prosecutions having been convicted of such matter some eight months previously.   He would in my view have known full well that the inquiry was about alcohol.

[39]     The defendant did not take the opportunity to assert that the only drinks he had consumed were non-alcoholic if indeed he believed that to be the case.  Nor did he express to the constable any surprise when the roadside breath test was positive.  Again the circumstances begged a response to that effect if the defendant genuinely believed he had not consumed any alcohol.

[40]     The defendant’s evidence about his injury and subsequent effects make it clear that there is ongoing impairment to some of his neurological powers.  He said as such in his evidence including recollection impairment. That factor combined with the admitted consumption of alcohol producing a level of 501 micrograms of alcohol per litre of breath raises significant questions

1      Millar v Ministry of Transport [1986] 1 NZLR 660 (CA); O’Neill v Ministry of Transport [1985]

2 NZLR 513 (HC); Ministry of Transport v Crawford [1988] 1 NZLR 762 (HC).

2      Police v Rata [2015] NZDC 22382.

about the accuracy of the defendant’s recall and the weight to be attached to that

recall in the context of the prosecution evidence. I therefore put that evidence aside.

[41]     Conversely,   the   constable   described   the   routine   process   of completing the breath and blood alcohol procedure sheet which provided a contemporaneous written record of what the constable maintained occurred.

[42]     I therefore have no difficulty in accepting the prosecution evidence that the defendant acknowledged at the roadside that he had been drinking and that he knew full well that the inquiry was about alcohol.  I also accept that  he  admitted  drinking  in  the  form  of  describing  beer  immediately amended  to  Codys.   The  defendant’s  witness  Mr  Knapp  confirmed  that Codys were a favour [sic] drink of the defendant which was obviously a fact that would not have been known to the constable.

[43]     I therefore accept the prosecution evidence which means that the factual basis upon which the defence of total absence of fault is not established.

[9]      I agree with that conclusion and for the reasons given by the Judge.  At the very heart of this is the evidence from the police officer that the appellant, having been stopped, admitted that he had been drinking.  The Judge’s conclusion as to what that meant was inevitable.  I have given this some emphasis because it bears on other grounds for the appeal.   The conclusion to be drawn from the appellant’s acknowledgement   that   he   had   been   drinking   is   obviously   reinforced   –   if reinforcement  was  required  –by  the  evidence  from  the  police  officer  that  the appellant said he had drunk two Codys.  There is no basis for coming to different conclusions of fact than those reached by the Judge having regard to the evidence, and of course including cross-examination of the police officer and of the appellant.

[10]     Although the Judge correctly concluded that there was no factual basis for the defence, he did go on to consider the defence on its merits.  He was satisfied, and essentially on the basis of the appellant’s own evidence of his conduct at the party, that the appellant had not met the relevant part of the test stated in O’Neill v Ministry of Transport, namely:3

3.Such  a  defence  could  not  succeed  where  a  person  concerned nevertheless knew, or should have known, that he was affected by alcohol.

4.Any such defence would need to establish that there was no lack of care.

3      O’Neill v Ministry of Transport, above n 1, at 513.

[11]     I agree, and again for the reasons given.

[12]     In respect of the appellant’s defence, assessed on the merits, Mr Hamblett submitted that the appellant’s disabilities meant that he did not realise that he had drunk alcohol and that, in essence, this affected what he told the police officer.  The difficulty with the submission is that although there is clear evidence that the appellant has seriously impaired senses of taste and smell, the medical evidence did not provide any assistance on the question as to whether the appellant would or would not have appreciated that he had consumed alcohol.  Given the onus on the appellant it was incumbent on him to provide some evidence bearing in a material way on that proposition.   In any event, and coming back to the point I have emphasised,  his  statement  to  the  police  officer  that  he  had  been  drinking  is  a complete answer to the argument.

Evaluation: two previous convictions?

[13]     This issue relates to the conviction in 1991 which was under the Transport Act 1962 (the 1962 Act), s 58(1)(d).  Paragraphs (a) to (c) are also relevant.  Those provisions were as follows:

58       Driving    with    excessive    breath-alcohol    or    blood-alcohol concentration or while under influence of drink or drugs

(1)      Every person commits an offence who—

(a)       Drives or attempts to drive a motor vehicle on any road while the proportion of alcohol in the person's breath, as ascertained by an evidential breath test subsequently undergone  by  the  person,  exceeds  400  micrograms  of alcohol per litre of breath; or

(b)       Being a person who does not hold a driver's licence entitling the person to drive a motor vehicle of the class that the person was driving or attempting to drive, drives or attempts to drive a motor vehicle on any road while the proportion of alcohol in the person's blood, as ascertained by an evidential breath test subsequently undergone by the person, exceeds

150 micrograms of alcohol per litre of breath; or

(c)       Drives or attempts to drive a motor vehicle on any road while the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen subsequently taken from the person, exceeds 80 milligrams of alcohol per 100 millilitres of blood; or

(d)       Being a person who does not hold a driver's licence entitling the person to drive a motor vehicle of the class that the person was driving or attempting to drive, drives or attempts to drive a motor vehicle on any road while the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen subsequently taken from the person, exceeds  30  milligrams  of  alcohol  per  100  millilitres  of blood; or …

[14]     The argument for the appellant was that the offence in the 1962 Act under s 58(1)(d), has no corresponding provision in the 1998 Act.

[15]     The Judge dealt with this argument as follows:

[4]       Dealing with the second issue first, the prosecution presented by consent, two certified copies of the Court record in relation to the earlier convictions. The copy relating to the conviction on 7 February 1991 referred to  the  proportion  of  alcohol  in  the  defendant’s  blood  exceeding  30 milligrams of alcohol per 100 millilitres of blood in that it was 67 milligrams of alcohol per 100 millilitres of blood.  Mr [Hamblett] questioned whether such a level in fact amounted to an offence under the legislation as it stood at the time.  That issue is readily answered.  The legislation as at 7 February

1991 created an [offence] for anyone not holding a drivers licence to be driving with a blood alcohol level exceeding 30 milligrams of alcohol per

100 millilitres of blood.

[16]     The heart of the argument for the appellant advanced on appeal is that the

1991 offence for which the appellant was convicted occurred if a threshold of 30 micrograms of alcohol in the blood was established in the case of an unlicensed driver.   In respect of excess blood alcohol under the 1998 Act, there is only one relevant offence; that is driving with a level in excess of 80 milligrams of blood.  It may be seen under the 1962 Act for unlicensed drivers there was a corresponding difference in respect of excess breath alcohol under paragraph (b) compared with paragraph (a).

[17]     The argument now advanced by Mr Hamblett was addressed by the Court of Appeal in R v Savage.4    In that case the appellant was alleged to have committed four previous offences.  Three of them involved a level of 400 micrograms of breath alcohol (s 58(1)(a)), but the fourth involved a level of 150 micrograms of breath

alcohol because the appellant in that regard was an unlicensed driver (s 58(1)(b)).

4      R v Savage CA83/06, 19 June 2006.

[18]     The appeal in the Savage case directed to offences under the 1962 Act was dismissed.   Mr Hamblett argued that the case can be distinguished because of the three offences by the appellant in Savage involving a threshold of 400 micrograms of breath – a direct correlation between the 1998 Act and the 1962 Act.  However, that argument was dismissed in Savage in respect of breath alcohol.  After traversing the

history of the legislation the Court said:5

This history, coupled with the fact that the penalty for s 58(1)(b) was the same as for s 58(1)(a), satisfies us that the offence of being an unlicensed driver with excess breath alcohol under the 1962 Act is a corresponding offence to those found in s 56(4) [of the Act].  It answers to the offences in s 54 “in character and function, it is similar in purpose, prescribes the same thing to be done, and is designed to produce the same result”: see Winter.6

Accordingly, we hold the offences under s 58(1)(b) of the 1962 Act to be corresponding offences with s 56(4) of the 1998 Act.

[19]     There can be no principled distinction between breath as alcohol offences and blood alcohol offences.  Mr Hamblett acknowledged that point.

[20]     This argument cannot be sustained.   The conviction on the basis of two previous offences was correct.

Evaluation: special circumstances under s 81

[21]     The appellant argued in the District Court, and again on appeal, that there are special circumstances relating to the offence which justify his not being subject to the mandatory disqualification for a period in excess of 12 months.  In respect of this argument the first point is that the Judge was exercising a discretion.  The grounds for overturning his decision are substantially limited. Approaching the matter in that way I am not persuaded that there are grounds for interfering with the exercise of the discretion.

[22]     It is nevertheless appropriate briefly to consider the matter on its merits.  Mr Hamblett   submitted   that   it   is   sometimes   difficult   to   distinguish   between circumstances relating to the offence and circumstances relating to the offender; in

essence, the two tend to merge in some circumstances.  I agree with that as a general

5 At [36].

6      Winter v Ministry of Transport [1972] NZLR 539 (CA)

proposition.  And I also accept, as an abstract proposition, that the appellant’s severe injury and consequential disabilities might have, in different circumstances, constituted special circumstances relating to the offence.  Mr Hamblett referred to an example of what I have earlier referred to as circumstances relating to the offender merging into circumstances relating to the offence.  This is a decision in Mawkes v

Otahuhu Borough Council.7    The particular facts of that case are distinguishable.

But in any event, again the appellant in this case faces the fundamental difficulty that it is established on the evidence that he admitted that he had been drinking.  What this means is that when he was first spoken to by the police officer when he had been stopped, while driving, the appellant knew when he got into the car that he had alcohol in his system.  That is a circumstance relating very directly to the offence.  It removes any argument that might otherwise have been advanced in respect of the disabilities, although the matters earlier referred to in that regard present the same difficulties for the appellant when considering s 81.

[23]     The remaining submission relating to the sentence and the disqualification in particular is that the 1991 offence occurred a long time ago.  This is a circumstance referred to by the Judge on sentencing.  It is apparent that he took it into account in exercise of his discretion when imposing the sentence of 60 hours community work. However, the disqualification was mandatory and the Judge imposed the minimum. The fact that there was a conviction as long ago as 1991 is not a circumstance relating to this offence, either in respect of what I have referred to as the primary offence, or in respect of the aggravating fact of two previous convictions.

[24]     For these various reasons the appeal is dismissed.

[25]     The commencement of the disqualification was deferred on lodging of the appeal.  The disqualification is to come into force at 11:30 pm on Wednesday, 27

April 2016.

Woodhouse J

7      Mawkes v Otahuhu Borough Council [1987] 1 NZLR 284 (HC).