Rogers v Police
[2018] NZHC 2221
•28 August 2018
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2018-441-000019
[2018] NZHC 2221
BETWEEN CLIFFORD TREVOR ROGERS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 August 2018 (via AVL at Wellington) Counsel:
W R Hawkins for Appellant C C Gullidge for Respondent
Judgment:
28 August 2018
JUDGMENT OF COLLINS J
Introduction
[1] Two issues require determination in this appeal from a decision of Judge Adeane in which he found Mr Rogers guilty of driving a motor vehicle in circumstances where his blood contained evidence of the use of methamphetamine.1
[2]The two issues are:
(1)Did the Judge err in the way he applied the standard and burden of proof? and/or
(2)Did the Judge fail to properly consider Mr Rogers’ evidence?
1 Police v Rogers [2018] NZDC 15132.
ROGERS v NEW ZEALAND POLICE [2018] NZHC 2221 [28 August 2018]
Background
[3] On 17 September 2017, Mr Rogers was driving a large truck on State Highway 2 near Hastings. He failed to navigate a gentle curve in the road and crashed his truck into a fence.
[4] Mr Rogers was taken to hospital, where a sample of his blood was taken pursuant to s 73 of the Land Transport Act 1998. That sample was analysed by the ESR and found to contain methamphetamine, a controlled drug listed in Schedule 1 of the Misuse of Drugs Act 1975.
[5] Mr Rogers was charged under s 58 of the Land Transport Act, the relevant provisions of which state:
58 Contravention of section 12
(1)A person commits an offence if the person drives … a motor vehicle on a road—
…
(b) if the person’s blood, as ascertained from an analysis of a blood specimen … contains evidence of the use of a controlled drug specified in Schedule 1 of the Misuse of Drugs Act 1975.
[6] It was accepted by Mr Hawkins, counsel for Mr Rogers, that the ESR analysed Mr Rogers’ blood and determined there was methamphetamine in his blood at the time he drove his truck.
[7] Mr Rogers gave evidence at his trial. He said that he has never consumed methamphetamine and that on the previous day, he had spent several hours cleaning a motel unit that was suspected of having been contaminated by methamphetamine. The implication that Mr Rogers asked the Judge to draw was that methamphetamine entered his bloodstream without his knowledge when he was cleaning the motel unit the previous day.
[8] Judge Adeane recorded that the prosecution had proven Mr Rogers drove the truck and that his blood in fact contained methamphetamine. He said that once those two matters were proven, “the Court would need some evidential basis on which to
hold that Mr Rogers could avoid responsibility for the charge”. He dismissed Mr Rogers’ evidence as being “self-serving” and said that he would expect better evidence of exculpatory circumstances if they existed. Judge Adeane accordingly held the charge had been proven. The Judge fined Mr Rogers $600 and disqualified him from driving for six months.
Appeal against conviction
[9] In the case of a Judge-alone trial, the appeal court must allow an appeal against conviction if it is satisfied that the trial Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice occurred, or if it is satisfied that a miscarriage of justice has occurred for any other reason.2 A miscarriage of justice is defined as any error, irregularity, or occurrence that created a real risk that the outcome of the trial was affected, or that resulted in an unfair trial or a trial that was a nullity.3
First ground of appeal – standard and burden of proof
Appellant’s submissions
[10] Mr Hawkins, counsel for Mr Rogers, submitted that the words “evidence of the use of a controlled drug” in s 58(1)(b) of the Land Transport Act imply that a defendant must have voluntarily consumed the controlled drug in question. He described this as the “mens rea” element of the offence and submitted that the prosecution was required to prove beyond reasonable doubt that Mr Rogers voluntarily consumed methamphetamine.
[11] Mr Hawkins also submitted that as Mr Rogers had raised an “absence of fault” defence, the burden shifted to the prosecution to prove beyond reasonable doubt that Mr Rogers was at fault.
2 Criminal Procedure Act 2011, s 232(2).
3 Section 232(4).
Analysis
[12] The Court of Appeal explained in Millar v Ministry of Transport, that criminal offences generally fall into one of three categories when considering the degree of fault required to secure a conviction and the onus of proof:4
(1)Offences in which the prosecution must establish, for instance, that the defendant knew about the matters that underpin the charge. This knowledge element of an offence is generally referred to as the mens rea of the offence. In many cases the mens rea may be presumed from the surrounding circumstances.
(2)Offences in which the prosecution is not required to prove mens rea, but where the defendant can escape liability if they establish, on the balance of probabilities, an absence of fault on their behalf. This category of offences is referred to as strict liability offences.
(3)Offences of absolute liability, in which a defendant will be liable even in the absence of mens rea or fault.
[13] Determining whether an enactment creates a strict liability offence, or whether the provision requires proof of mens rea on the part of a defendant is a quintessential exercise in statutory interpretation that is undertaken by reference to the text and purpose of the enactment.
[14] I start by examining the text of the enactment. The word “use” in s 58(1)(b) of the Land Transport Act cannot be interpreted in isolation. When viewed in context, it is apparent the prosecution is required to demonstrate “evidence of the use” of a drug such as methamphetamine. That evidence is established through an analysis of the driver’s blood specimen. It is the evidence from the analysis that is of primary relevance in the context of s 58(1)(b).
4 Millar v Ministry of Transport [1986] 1 NZLR 660 (CA).
[15] The text of s 58(1)(b) of the Land Transport Act did not require the prosecution to prove Mr Rogers knew he had used methamphetamine. All the prosecution had to do in this case was establish beyond reasonable doubt “evidence of the use” of methamphetamine. This it did by obtaining an analysis of Mr Rogers’ blood, which showed methamphetamine in his blood at the time he was driving.
[16] The conclusion that s 58(1)(b) of the Land Transport Act creates a strict liability offence is reinforced by ascertaining the purpose of that section.
[17] Section 58(1)(b) was enacted in 2009 and created an offence for a person to drive in circumstances where there is evidence of their use of a controlled drug, such as methamphetamine. This means that a person may be convicted under s 58(1)(b) for driving with the mere presence of a controlled drug in their blood, even though it may have had no effect whatsoever on their ability to drive.5
[18] Parliament’s intention would be frustrated if the courts were to interpret the word “use” as importing a mens rea element into what is otherwise clearly a strict liability offence. Parliament intended to create liability in circumstances where the prosecution merely established evidence of use of methamphetamine on the part of a driver, not knowledge that they had used that drug.
[19] While Judge Adeane’s language may have been a little loose, it is clear he understood the obligation on the prosecution to prove two matters:
(1)that Mr Rogers was driving; and
(2)that there was evidence of his use of methamphetamine as ascertained from an analysis of a blood sample taken from him.
[20] Once those two matters were established, the onus moved to Mr Rogers to demonstrate absence of fault on his part. He could do so on the balance of probabilities.
5 Compare Land Transport Act 1998, s 58(1)(a).
Second ground of appeal
[21] Mr Hawkins submitted that Judge Adeane erred by dismissing Mr Rogers’ evidence out of hand because of an absence of any corroboration of his explanation for the methamphetamine being in his blood. In essence, Mr Hawkins submitted that Judge Adeane erred when he concluded that Mr Rogers had not done enough to demonstrate a defence to the charge.
[22] I have assessed the evidence to determine whether or not Mr Rogers’ evidence was sufficient to prove on the balance of probabilities that he was not at fault for having methamphetamine in his blood. The lack of corroboration significantly reduces the weight that can be placed on Mr Rogers’ evidence, especially given its self-serving effect, and the fact that corroborating evidence should have been quite easy to produce. For example, Mr Rogers referred to being assisted by a Ms Pound in cleaning up the motel unit. He also referred to there being documents that would demonstrate the unit had been contaminated with methamphetamine. Ms Pound did not give evidence and Mr Rogers did not produce any documentation to support his version of events. The fact he did not do so undermines the weight that can be placed on his evidence.
[23] In addition, there was no evidence as to how methamphetamine could have entered Mr Rogers’ bloodstream simply by him cleaning a contaminated site. Medical or scientific evidence on this point would have been essential if Mr Rogers was to demonstrate absence of fault on his behalf.
Result
[24] The prosecution established beyond reasonable doubt that Mr Rogers drove a truck in circumstances where there was evidence of the use of methamphetamine in his blood.
[25] Mr Rogers failed to prove he was not at fault for having methamphetamine in his blood when he drove the truck.
[26]The appeal is dismissed.
D B Collins J
Solicitors:
Bramwell Bate Lawyers, Hastings for Appellant Crown Solicitor, Napier for Respondent
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