S v Police HC Auckland CRI 2006-404-157

[2006] NZHC 808

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:         12 July 2006

Counsel:        CP Comeskey for Appellant

MR Harborow for Respondent

Judgment:      12 July 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  12 July 2006

Introduction

[1]      The appellant appeals against his conviction in the District Court at Manukau on 10 May 2006 of 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.  He was fined $800 and disqualified from driving for a period of ten months.

Background facts

[2]      The arresting officer said in evidence that at 12.40 a.m. on 7 August 2005 he located a Nissan  motor car  in the carpark  of McDonald’s Family Restaurant  at Manukau.   The appellant was in the driver’s seat.   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 was asked if he had been drinking.   He said “yes” and referred to winning a soccer tournament at Tuakau.

[3]      The  appellant  failed  a  breath  test.    A  breath  screening  test  was  then administered, which he also failed.  He accompanied the police officer to the station where an evidential breath test was administered.   The result was positive.   The appellant agreed to give a blood specimen.  When tested it was shown to contain 197 milligrammes of alcohol per 100 millilitres of blood.

[4]      At the hearing there was no challenge to the testing procedures.   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.

[5]      The  information originally alleged  that  the  appellant  had  driven a  motor vehicle on a named road.  After the evidence had been completed, the prosecution

applied for, and the Judge granted, leave to amend the information to allege that the car had been driven on McDonald’s Family Restaurant carpark.

Judge’s decision

[6]      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  proven.    Accordingly,  he  concluded  that  the  police  officer’s  evidence, together with the appellant’s failure to give an explanation, provided a sufficient foundation to found a conviction.

Ground of appeal

[7]      In  support  of the  appeal,  Mr  Comeskey  argued  that  the  police  officer’s observations were insufficient to establish a prima facie case that the appellant had been driving.  He said that in the absence of some further evidence such as a prior sighting of the appellant driving the car, the Judge was wrong to take into account his failure to provide an explanation.

Discussion

[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.

Result

[11]     For these reasons, the appeal is dismissed.

Sentence of disqualification

[12]     Following the filing of the appeal, Mr Comeskey on behalf of the appellant, applied for sentence to be suspended pending the determination of the appeal.   An order was made accordingly.   That order is now revoked.   In place of the Judge’s direction that the period of ten months disqualification commence at midnight on

10 May, I make an order that the period of disqualification commence at midnight today, 12 July.