S v Police HC Palmerston North CRI-2007-454-36

[2007] NZHC 1295

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2007-454-36

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         25 October 2007

Appearances: P S Coles for Appellant

A S Hall for Respondent

Judgment:      21 November 2007

JUDGMENT OF CLIFFORD J

Background

[1]      Mr  S  ,  the  appellant,  was  charged  with  driving  with  excess  blood alcohol (127 milligrams per 100 millilitres of blood) in Fielding on 10 August 2006, an offence under s 56(1) of the Land Transport Act 1998 (“the Act”).  Mr S   pleaded not guilty to that charge.

[2]      In terms of the relevant provisions of the Land Transport Act, Mr Coles –

counsel for   Mr S   in the District Court and on appeal – accepted that the statutory procedures applying to testing for blood alcohol had been properly carried

S V NEW ZEALAND POLICE HC WN CRI-2007-454-36  21 November 2007

out.  Pursuant to s 77(1), therefore, the statutory presumption was that Mr S   had been driving with excess blood alcohol.

[3]      The purpose of Mr Coles’s defence was, in those circumstances, to establish that  there  were  special  reasons  why  Mr  S    should  not  be  subject  to  the otherwise mandatory penalty of disqualification.   Those special reasons were that although Mr S   had drunk an amount of alcohol before driving, that amount was not sufficient to cause him to exceed the legal limit.   He had only failed the blood test because of additional alcohol he had drunk after driving, but before he was tested.

[4]      In the District Court Judge Aitkens QC found, as a matter of fact, that Mr Coles had established special reasons why Mr S   should not be disqualified. He therefore did not disqualify Mr S  , but nevertheless entered a conviction against him, imposed a $75 fine and ordered Mr S   to pay $130 Court costs.

[5]      Mr S   now appeals against his conviction.  Mr S   says that for the same reasons the Judge did not disqualify him, neither should the Judge have convicted him.

[6]      The police position was that they did not challenge the District Court Judge’s finding of facts, nor his decision based on those facts not to disqualify Mr S  . The police, however, support the entry of conviction, the fine and the costs order.

The facts

[7]      The undisputed facts, based on the evidence presented to the District Court

Judge, were that:

a)       On the morning of August 10, 2006, Mr S   consumed an amount of alcohol with a friend.  Some time later Mr S   and this friend set off in Mr S  ’s vehicle.  During the course of that journey Mr S   purchased further alcohol for later consumption.

b)After Mr S   had dropped off his friend, and resumed his journey, he was observed swinging wide in a turn onto a main road, causing a vehicle in another lane to have to move over as a consequence.  Mr S   proceeded some distance down the road he had just turned on to, before pulling into a carpark.

c)       A member of the public had observed these events, and the police were notified.   Approximately 10 minutes later, a Police Constable arrived at the carpark.   The Constable observed that Mr S   appeared to have been drinking.   Mr S   underwent a roadside breath screening test, which showed a failed indication.  Mr S   subsequently underwent an evidential blood test.  As noted, there was no dispute about the results of that test.

[8]      Mr S   explained that he had only initially consumed some three cans of beer.  The driving incident had brought on a panic attack.   Mr S   said he was vulnerable to such attacks due to an anxiety disorder.   Mr S   pulled into the carpark to cope with that panic attack.  As he did not have his medication with him, Mr S   said he then consumed some of the alcohol he had bought, a further six or seven cans, to assist him in controlling that attack.

[9]      Mr S  ’s doctor confirmed Mr S   suffered from an anxiety disorder, and gave evidence that he could quite understand why alcohol might be consumed in those circumstances because it would have the effect of reducing the level of panic and therefore stave off the effects of the panic attack.

[10]     At  the  end  of  the  defended  hearing,  the  Judge  reached  the  following conclusions on the basis of the evidence he heard:

a)       Mr S   had consumed an amount of alcohol prior to driving but the amount of alcohol he consumed – being three cans – was not such as to take him to a point where he was likely to be over the limit.

b)The traffic incident caused Mr S   concern, and very shortly after that event he drove to a parking area because he was suffering a panic attack.

c)       Mr  S    then  remained  in  his  vehicle  for  approximately  10 minutes.  During that time it was likely that he did consume alcohol.

d)       In all of those circumstances, special reasons might exist why Mr

S  ’s licence should not be removed.

[11]     On the basis of those findings, the District Court Judge remanded Mr S   on bail for sentencing to enable submissions to be made as to whether or not the Judge should exercise the discretion not to disqualify Mr S  .

[12]     That further hearing was held on 7 September.

[13]     In sentencing Mr S   the Judge confirmed his earlier findings.  He then referred to the submissions he had heard.   He noted that he was satisfied, with reference to Ministry of Transport v Sowman [1978] 1 NZLR 218, that Mr S ’s drinking of alcohol whilst parked was not of the “masking” kind. The Judge concluded he was of the view that, taken overall, the situation was one in which it would not be proper to disqualify Mr S . In doing so he also referred to Bell v Ministry of Transport [1983] NZLR 229.

[14]     The Judge went on to consider whether or not it would be appropriate to penalise Mr S   at all.

[15]     He concluded that there should be some penalty imposed.  Mr S   was therefore to be convicted of the charge and to be fined $75, together with Court costs of $130.   The District Court Judge concluded his sentencing remarks with the following comments:

A conviction will be there on your record.  You have to bear in mind that that will operate as a warning signal concerning you for the future.   That means that you have to be absolutely careful about the way you deal with matters.  You have to be quite sure that you do not consume even one and a

half cans of beer before driving.   You simply cannot drive after you have consumed alcohol because there is a warning signal out with respect to you now and the appropriate authorities will take some note of that.

Submissions on appeal

[16]     Mr Coles’s essential submission was that, given the findings the District Court Judge reached and upon which he based his decision not to disqualify Mr S  , it was inappropriate that a conviction was entered.  The considerations that quite properly had led the Judge to conclude that special circumstances existed so as to make it appropriate not to disqualify Mr S  , applied with equal force as regards the decision to conviction.

[17]     Mr  Coles  acknowledged  that,  before  the  District  Court  Judge,  he  had focussed on the question of the discretion not to disqualify.  He noted – and this was not disputed by the Crown – that the District Court Judge himself had raised an issue

– not referred to in his Sentencing Notes – of whether he should enter a conviction for driving with excess blood alcohol, or for the lesser offence of careless use of a motor vehicle.  Mr Coles said his submission had been that a conviction on the lesser charge was the appropriate outcome.

[18]     Before me, Mr Coles quite properly acknowledged therefore that the question of the District Court Judge not entering any conviction at all had not been argued. Nevertheless, Mr Coles argued that such a submission was open on appeal.   By analogy, and in response to a question from me, he submitted that on appeal it would be open for a convicted person to argue that he or she should have been discharged pursuant to ss 106 and 107 of the Sentencing Act, notwithstanding that a submission to that effect had not been made to the sentencing Judge.

[19]     Mr Hall argued that the District Court Judge had – in deciding to enter a conviction and impose a fine – made a decision open to him in his discretion, and one that was not subject to any error of law, nor in respect of which he had taken account of any irrelevant considerations or failed to take account of any relevant considerations, nor one that was plainly wrong.   Responding to Mr Coles’s proposition that, for the reasons the District Court Judge had exercised the available

discretion not to disqualify Mr S   so should he have discharged Mr S   without conviction, Mr Hall submitted that the discretion based on special reasons only went to the question of the sentence of mandatory disqualification, not to the issue of whether a conviction should be entered.  The presumption created by s 77(1) of the Act required that a conviction be entered.

Discussion

[20]     This appeal raises three points for consideration:

a)       Whether, given Mr Coles’s acknowledgement that the issues raised by him in this appeal had not directly been raised before the District Court Judge, those issues are appropriate ones on which to base this appeal?

b)        If those issues are properly to be considered, whether the District

Court Judge had a discretion not to convict Mr S  ?

c)       If the District Court Judge did have such a discretion, whether, in the circumstances and given the findings of fact the District Court Judge made,  he  should  have  exercised  that  discretion  in  Mr  S  ’s failure?

Issues raised within scope of appeal?

[21]      The general principle is that matters can only be raised on appeal that were raised before the Judge whose decision is being appealed.  On that basis, it would be appropriate to dismiss Mr S  ’s appeal.  In my view, however, the terms of the District Court Judge’s decision themselves provide a proper basis for considering Mr S  ’s appeal, and I will therefore do so.

Existence of discretion not to convict?

[22]     The  issue  here  is  whether,  notwithstanding  the  conclusive  presumption created by s 77(1), the District Court Judge nevertheless had a discretion not to enter a conviction against Mr S  .

[23]     The answer to that question seems relatively clear.

[24]     The word “conclusive” was inserted into the statutory predecessor of s 77(1) to confirm a majority decision of the full Supreme Court (as it then was) in Stewart v Police [1970] NZLR 560 (Wild CJ and Turner J; North P dissenting). Stewart had held the presumption to be irrebuttable – even without the use of the word “conclusive”.

[25]     Becroft and Hall’s Transport Law describes the result of the presumption, and the other presumptions found in s 77, in this way:

The presumptions are irrebuttable throughout the whole proceedings as to guilt or innocence.  The decision of Eliot v Auckland City [1971] NZLR 824, to the extent that it holds that the presumption also applies to proceedings relating to sentence, is overruled by the Court of Appeal in Transport Ministry v Sowman [1978] 1 NZLR 218.

In Sowman (now the leading case on this issue) it was accepted that evidence as to the real level alcohol at the time of the offence can be considered for the purposes of assessing culpability at sentencing.

[26]    In terms of s 106 of the Sentencing Act, it is clear that, following the establishment of guilt, the question of whether or not to impose a conviction is a matter going to sentencing.   On that basis, the District Court Judge did have a discretion not to enter a conviction against Mr S  , notwithstanding the conclusive presumption created by s 77(1).

[27]     The further question is whether the mandatory disqualification provisions of s 77(1) mean that s 106 cannot apply, because the Court is required to impose a minimum sentence.

[28]     This question has been answered by the Court of Appeal in Police v Wise

[1987] 1 NZLR 290.

[29]     The Court of Appeal in Wise held that where an otherwise mandatory period of disqualification is called for, but a Court may by reference to special reasons dispense with that penalty, then where the Court does do so a minimum sentence is not – in terms of s 106 of the Sentencing Act – provided for.  In other words, given that the District Court Judge decided that special reasons applied to relieve Mr S   from the penalty of mandatory disqualification, he could also decide to discharge Mr S   without conviction.

[30]     The learned District Court Judge himself would appear to have recognised all of this when he noted, at [11], that he had to determine whether or not it would be appropriate to penalise Mr S   at all.

Did the Judge err in not discharging Mr S   without conviction?

[31]     In making his original factual findings, on the basis of which he concluded that there may be special reasons why Mr S   should not be disqualified, the District Court Judge expressed himself, in terms of the views he had reached, on the balance of probabilities.  He said, as I have noted above, that the original amount of alcohol consumed was not such as to take Mr S   to a point where he was “likely” to be over the limit.  Based on the evidence of Mr S  ’s companion, the District Court Judge said he could not dismiss the “probability” of Mr  S   having originally consumed alcohol in the way he had stated. That being so, the District Court Judge said “on the balance of probabilities” he thought it was “more probable than not” that Mr S   did consume alcohol in the car in the parking lot in the way that he had described.  I refer in particular to paras [11] and [12] of the oral judgment the District Court Judge gave on 20 June.   I note, moreover, that I think the summary of the position he set out at para [7] of his Sentencing Notes for 7

September is to be understood in light of those earlier findings.

[32]     This was not, therefore, an unequivocal finding of fact that Mr S   had not drunk alcohol at all prior to driving nor that he was not, at the time of his driving, in fact over the legal blood alcohol limit.

[33]     In terms of Mr Coles’s submission that the entry of conviction on these facts represented a manifest injustice, and a wrongful exercise of the Court’s discretion as to penalty, Mr Coles referred in particular to the significance of this conviction, for the possible consequence of a subsequent blood alcohol conviction or convictions.  I am not persuaded that those considerations mean that the Judge’s decision  was wrong in principle.  I think the point here is that any such consequences depend on Mr S   being convicted again for excess breath or blood alcohol.  The entry of the conviction does not, therefore, in and of itself have that effect.   That effect depends upon a subsequent conviction.

[34] Mr Coles also referred to the Judge’s concluding remarks, as recorded at [16]. In my view, those concluding remarks can be understood by reference to the manner in which, that is on the balance of probabilities, the Judge reached the factual findings – which some might say were in the circumstances themselves somewhat favourable to Mr S – that a basis existed for finding there were special reasons not to disqualify Mr S .

[35]     More generally, and given the purpose of the presumption found in s 77, the Judge’s discretionary decision not to impose the mandatory disqualification, but to enter a conviction and impose a fine and an order of costs, can be seen as one which given his earlier findings of fact, was open to him.  If he had reached the view, for example, that the respondent had not drunk at all prior to driving, and that therefore the test results were all attributable to post-accident drinking which was not of a “masking” kind, the position might have been different.  That was not, however, the position.  Rather, his findings of fact clearly left open the possibility that the position was other than as asserted by Mr S  , and that accordingly the test results were, in fact, properly attributable to Mr S   at the time he was driving, as required by the statutory conclusive presumption in terms of the establishment of guilt.  Given the purpose of that conclusive presumption, and the accepted rarity of cases where drinking after driving will be considered relevant at all as regards the establishment of “special reasons”, the Judge’s decision was not, in my view, an unreasonable one.

[36]     Siegel v Ministry of Transport [1989] 4 CRNZ 183 provides an example of a similar sentencing outcome.   There the appellant was convicted of driving with

excess blood alcohol.  The District Court Judge, however, found special reasons not to impose the mandatory disqualification.   Those reasons would appear to have related to the appellant’s evidence that he had been drinking after the accident which gave rise to the charges, and the length of time which passed between the accident and the administration of the breath testing procedure.  On appeal, the High Court upheld the appellant’s conviction.  In doing so, it noted that the Judge had exercised his discretion in favour of the appellant by not disqualifying him, commenting that in doing so the Judge had taken into account the possibility that the level of alcohol in the breath test could have been affected by post-accident drinking, thereby at least to some extent alleviating what could otherwise have been an element of injustice in the statutory presumption.

[37]   In my judgement, and particularly by reference to the Judge’s explicit consideration of whether he should impose any penalty on the respondent at all, the Judge would appear to have undertaken a similar exercise – albeit in the context of findings as to what probably, rather than possibly, the actual position was.

[38]     Therefore, Mr Coles has not established that the District Court Judge erred in principle in entering a conviction against Mr S  , and this appeal is accordingly dismissed.

[39]     I make one final comment.   I am of the view that the District Court Judge should have approached the question of whether to impose any penalty at all on the appellant in terms of the relevant provisions of the Sentencing Act, and in particular s 24.  In my view, that would have provided the appropriate framework for the type of exercise the District Court Judge undertook.

“Clifford J”

Solicitors:        Peter Sidney Coles, Palmerston North for Appellant

Crown Solicitor, Palmerston North for Respondent