S v Police HC Auckland CRI 2006-404-157

[2006] NZHC 978

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-157

BETWEEN  S

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         30 August 2006

Counsel:        J Soondram for Appellant

MR Harborow for Respondent

Judgment:      30 August 2006

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Mr CP Comeskey, P O Box 4304, Shortland Street, Auckland for Appellant

Meredith Connell, P O Box 2213, Auckland for Crown

S V POLICE HC AK CRI 2006-404-157  30 August 2006

Introduction

[1]      In a judgment delivered on 12 July 2006, I dismissed an appeal against the appellant’s conviction in the District Court at Manukau on 10 May 2006 on a charge of driving a motor vehicle whilst the proportion of alcohol in his blood exceeded 80 milligrammes of alcohol per 100 millilitres of blood.  The appellant now applies for leave to appeal that judgment to the Court of Appeal.

Background

[2]      The  appellant  was  found  behind  the  wheel of his  car  in  the  carpark  of McDonald’s Family Restaurant at Manukau.  The keys were in the ignition.  No-one else was in the car.  The appellant’s eyes were bloodshot and he smelt strongly of alcohol.   He admitted he had been drinking.   He failed a breath test.   A breath screening test was administered which he also failed.   He accompanied a police officer to the police station where an evidential breath test was administered.   The result was positive.   The appellant then agreed to give a blood specimen which revealed that his blood contained 197 milligrammes of alcohol per 100 millilitres of blood.

[3]      At the hearing there was no challenge to the testing procedures or to the right of the police to undertake them.   The sole issue was whether there was sufficient evidence to permit the Judge to conclude that the appellant had been driving the car. That is an essential element of a charge under s 56(2) of the Land Transport Act

1998, which provides:

A person commits an offence if the person drives or attempts to drive a motor vehicle on a 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 under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.

[4]      The Judge found the evidence supported an inference that the appellant had been driving the car.  He said the circumstances in which he was located – alone in the driver’s seat of the car in the early hours of the morning – were such as to call for

an explanation by the appellant if he were not in fact the driver.  The Judge said his failure to provide such an explanation could be taken into account in finding the charge proved.   He concluded that the police officer’s evidence, together with the appellant’s  failure  to  give  an  explanation,  provided  a  sufficient  foundation  to convict.

Grounds of appeal

[5]      The appeal before me was argued on the basis that  the evidence did not support the Judge’s finding that the appellant had been driving the car.   For the appellant it was contended that the Judge was wrong to take into account the appellant’s failure to explain his presence in the car.   I held there was sufficient evidence to support the finding and that the Judge was entitled to take into account the failure of the appellant to provide an explanation in circumstances where such an explanation might  have been expected if he had not  been driving the  car.   My reasons for dismissing the appeal are set out in paras [8] – [10] of the judgment, which read as follows:

[8]       It is not in issue that where a prima facie case has been established a Judge  exercising  summary  jurisdiction  is  entitled,  in  determining  what weight should be given to the evidence, to take into account the failure of a defendant to give, by his own evidence or otherwise, the explanations which he might naturally be expected to give if he were innocent: Trompert  v Police [1985] 1 NZLR 357.

[9]       The question is whether the circumstances in which the appellant was located gave rise to such a prima facie case.   In my view, they did. Plainly the car the appellant was sitting in did not reach the McDonald’s carpark on its own.   Normally a person who has not driven or does not intend to drive a car does not sit in the driver’s seat with the keys in the ignition.  It was accepted in evidence that at the time he was apprehended the appellant was consuming a McDonald’s Big Mac Combo, plainly supporting an inference of recent arrival and purchase.  A further matter not referred to by the Judge but relied on by Mr Harborow is evidence that the appellant reacted to failing the breath screening test with the expletive “bugger”.

[10]      In my view, the matters supported an inference that the appellant had driven the car to the location at which it was found and were sufficient to establish a prima facie case.   If that inference was  open to rebuttal,  an innocent explanation could readily have been provided by the appellant for his presence behind the wheel of the car.   His failure to provide such an explanation at the time or in evidence was properly to be taken into account by the Judge in determining the weight to be given to the evidence of the

police officer.   That evidence, in my view, was sufficient to support the

Judge’s finding that the appellant had indeed been driving the car.

The question of law

[6]      By s 144 of the Summary Proceedings Act 1957, leave to appeal to the Court of Appeal may  be granted  if,  in the  opinion of the  Court, the  question  of  law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.  The Court in R v Slater [1997] 1 NZLR 211 at 215, emphasised that the requirement for a question of law which raises a question of general or public importance requirements is not to be diluted.

[7]      Mr Soondram identified the question of law as whether the District Court Judge could draw an inference as to the fact of driving as well as the identity of the driver.  He acknowledged that in some circumstances it may be open to a Judge to infer that a defendant had been driving.  His case, as I understand it, is that the Judge was not entitled to rely on a process of inference in this case.  He submitted that the prosecution evidence did not inexorably point to the appellant having been driving. In the circumstances, he said the Judge should have preferred the inference more favourable to the appellant.  He was wrong to find there was a prima facie case and to have relied, pursuant to Trompert (supra), on the failure of the appellant to provide an explanation.

[8]      Mr Soondram relied on R v Wynn-Williams CA400/03 15 June 2004, which concerns the exercise of the power, under s 68(1) of the Land Transport Act 1998, to require a driver to undergo a breath screening test.   The Court held (assuming the word “not” to have been inadvertently omitted from para [32] of the judgment) that evidence of the appellant having driven a vehicle 20-35 minutes before a breath test was administered, was insufficient to establish that he was the driver for the purpose of s 68.

Discussion

[9]      Although the way in which the question of law has been formulated might suggest otherwise, it is clear that the critical issue the appellant seeks to argue is whether the Judge was entitled to apply Trompert and take into account the absence of an explanation from the appellant.  I found that he was entitled to do so because the evidence established a prma facie case that the appellant was the driver.  For that purpose, he was not required to draw the inference which is more favourable to the accused.   At that  stage he was not  asking  himself whether  the prosecution had discharged the onus of proof to the standard of beyond reasonable doubt but whether or not there was a prima facie case.

[10]     In my view, Wynn-Williams does not assist the appellant.  It is directed to a different provision of the Land Transport Act, for the purpose of which proximity in time is a critical consideration.  It was never in issue in this case.  The sole issue was whether the evidence could support the Judge’s finding that the appellant had driven for the purpose of s 56(2).

[11]     The issue therefore comes back, in my view, to whether or not Trompert was properly applicable.  That is a question of law, as Trompert itself acknowledged. In that case it was a question of law worthy of consideration by the Court of Appeal because of the existence of differences of opinion in the High Court.  There is no such justification for referring the question to the Court of Appeal in this case.  In my view, Mr Harborow is absolutely right to say that in applying for leave to appeal, the appellant is seeking to relitigate the District Court Judge’s finding of fact, upheld on appeal, that the accused had been driving.

Result

[12]     I am satisfied that the issue proposed for consideration is not a question of law of general or public importance.  The application is accordingly dismissed.