Selwyn v Police
[2015] NZHC 3185
•15 December 2015
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2015-419-38 [2015] NZHC 3185
BETWEEN ANARU PHILLIP SELWYN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 December 2015 Counsel:
S Mills for Appellant
J E Tarrant for RespondentJudgment:
15 December 2015
JUDGMENT OF BREWER J
This judgment was delivered by me on 15 December 2015 at 11:00 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors: Lance Lawson (Rotorua) for Appellant
Almao Douch (Hamilton) for Respondent
SELWYN v POLICE [2015] NZHC 3185 [15 December 2015]
Introduction
[1] The appellant, Mr Selwyn, was convicted in the Huntly District Court on
3 July 2015 on one charge of driving whilst disqualified and one charge of refusing to provide a blood specimen.1 The hearing took place on 17 June 2015 before Judge GS Collin. Both charges were heard together as one Judge-alone trial.
[2] Mr Selwyn was sentenced on 11 September 2015. Judge Collin ordered that his motor vehicle be confiscated and he received an indefinite disqualification. He was also disqualified for a finite period of six months, fined $500 and ordered to pay Court costs of $130.00.
[3] Mr Selwyn now appeals his conviction and sentence. The sentence appeal depends on the outcome of the appeal against the charge of driving while disqualified.
[4] Mr Selwyn’s case is that he was not driving at the relevant time and so should
not have been convicted.
Factual background
[5] Mr Selwyn is the owner of a black 2009 Holden Cruze motor vehicle with the number plate FCR681.
[6] On 16 February 2014 at about 7:56 am, that car was driven south on State Highway One at speed and in an erratic manner. A witness, Mr Rowe, described the vehicle as trying to overtake him, as driving dangerously close, and after dropping behind him coming up again at speed. The car eventually passed him and Mr Rowe observed it pull over on the side of the road. He rang 111 and reported that location to the Police.
[7] The Police located the car about four minutes later at 8:03 am in the region described by Mr Rowe. Mr Selwyn was alone in the vehicle, reclined in the front passenger seat. The Police attempted to get his attention, but he remained
unresponsive. Police Sergeant Alderton used a baton to break the back rear window of the vehicle. At this point Mr Selwyn got out of the car. He was clearly affected by alcohol.
[8] After exiting the car, Mr Selwyn was requested to undertake a breath screening test at 8:35 am. He refused to do so. He was therefore requested to accompany Senior Constable Missen to the Huntly Police Station for the purposes of undertaking the breath or blood test procedures.
[9] At 9:07 am, Mr Selwyn was given his Bill of Rights which were read to him from the Breath and Blood Alcohol Procedure sheet. Mr Selwyn elected to consult a lawyer, but chose not to consult one from the list provided by the Police. Rather, he chose to contact Mr Andrew Schulze. Mr Selwyn did not know Mr Schulze’s number, so instead rang his mother (who worked for Mr Schulze’s wife) and spoke to her. The Judge found, without analysis, that Mr Selwyn did not tell the Police that he had not spoken to Mr Schulze (Mr Selwyn gave evidence that he had).
[10] At 9:10 am, Mr Selwyn was requested to undertake the evidential breath test, but refused to do so. Mr Selwyn was again given a Bill of Rights warning. He refused to sign an acknowledgment that this had occurred.
[11] At 9:20 am, a blood test was required of Mr Selwyn. He refused to supply blood.
[12] Mr Schulze telephoned the Police station at 9:23 am. He spoke to Mr Selwyn, who advised him that he had been taken to the Police Station and had gone through the alcohol procedures, but had refused to supply either a breath alcohol sample or blood because he was not the driver of the vehicle. Mr Schulze told Mr Selwyn that he needed to undertake the breath and blood testing procedures so as not to be charged with refusing.
[13] Mr Schulze then spoke to Senior Constable Missen who explained that the procedures required for the provision of breath and blood alcohol samples had been carried out and that Mr Selwyn had refused to undergo a breath screening test or
supply a blood sample. The phone was handed back to Mr Selwyn who obtained further advice.
[14] At 9:35 am Mr Selwyn asked whether he could now complete a breath test. The request was declined by Senior Constable Missen on the grounds that the procedures had been completed and that Mr Selwyn had refused to supply the breath or blood samples in accordance with the requests that had been made.
The decision of Judge Collin
[15] I set out Judge Collin’s reasons for finding that the driving while disqualified charge was proved beyond reasonable doubt before turning to consider the refusing charge.
The driving while disqualified charge
[16] The Judge began by setting out Mr Selwyn’s evidence, which was to the effect that:2
(a) On 15 February 2014 Mr Selwyn travelled from Rotorua to Auckland to attend an Eminem concert. Mr Selwyn was disqualified at the time, and so he travelled in his car with his then partner who was the driver.
(b)Following the concert, Mr Selwyn had a fight with his partner and she left him at the hotel where they were staying to go to town with her friends. Mr Selwyn decided he would return to Rotorua.
(c) Mr Selwyn phoned a friend of his, a Josh Parker, whose phone number he had obtained when coming across him at the Eminem concert. He called Mr Parker to see whether he would drive him to Rotorua and said that he was anxious to leave before his partner returned. Mr Parker agreed.
(d)Mr Parker picked Mr Selwyn up from a hotel in the middle of Auckland at around 4:30 am. He arranged for Mr Parker to drop him off in the Hillcrest area of Hamilton at his friend Ngatai’s place. Mr Parker’s girlfriend would follow in a rental car that she and Mr Parker had hired, and they would continue on to Tauranga.
(e) Mr Selwyn called another friend, Chris Miller, to meet him in
Hamilton to drive his vehicle to Rotorua.
(f) Mr Selwyn was asleep between 4:30 am and 7:56 am, when the car was observed by Mr Rowe in Huntly. No explanation was provided for why it took so long to get to Huntly.
(g)At Huntly, Mr Parker told Mr Selwyn that he was unable to drive anymore for an unknown reason. Mr Selwyn replied “sweet as”. The car was pulled over onto the side of the road and Mr Parker exited the car, got into the rental car driven by his girlfriend and left.
(h) Mr Selwyn remained asleep in the passenger’s side of the car and was
still there when Senior Constable Missen arrived at around 8:05 am.
[17] The Judge then set out the evidence of Mr Rowe, who was the first witness called by the prosecution. Mr Rowe said:3
(a) He was driving his vehicle south on State Highway One from Auckland to New Plymouth. He described the conditions as foggy in patches.
(b)A vehicle came up behind him that was speeding and being driven erratically. The vehicle tried to overtake him. Mr Rowe touched his brakes to encourage the driver to drop back. Initially this worked but the car came up behind him dangerously close and at speed. The car then overtook him.
(c) As the car was overtaking him, Mr Rowe observed that the driver was either Polynesian or Maori and wearing a black cap, in his mid to late
20s or early 30s. Mr Rowe was clear he could see into the vehicle past the passenger seat to the driver.
(d)Mr Rowe accepted he may not have been able to see a person lying down in the passenger seat. He also agreed that the time he had to observe the inside of the car was short as the vehicle went past quickly.
(e) Mr Rowe memorised the number plate and called the Police. He was talking on the phone when the car braked and pulled onto the side of the road. Mr Rowe continued south to Huntly.
[18] The Judge found that Mr Rowe’s evidence was reliable and largely confirmed
by the transcript of the 111 call.4
[19] The Judge addressed the evidence of Senior Constable Missen, who said:5
(a) While on patrol, he observed a vehicle fitting the description given by Mr Selwyn stationary on the roadside at about 8:03 am, approximately four minutes after the vehicle was observed by Mr Rowe to have pulled onto the side of the road. No other car was in the locality.
(b)Mr Selwyn appeared to be asleep in the passenger seat with the seat folded down and the vehicle locked. Constable Missen tapped the window and pushed the vehicle several times to get a response.
(c) When reinforcements arrived, the Police became concerned that the
occupant was either dead, needing assistance or “playing possum”. A
decision was made to smash a window.
4 At [21].
(d)Sergeant Alderton smashed the window with his baton. When he did so Mr Selwyn awoke. He was observed to be affected by alcohol.
(e) Mr Selwyn gave details including his name, address and date of birth.
But Mr Selwyn refused to complete a breath screening test on the basis that it was Josh Parker who was the driver, not himself.
(f) When spoken to, Mr Selwyn said he had been dropped off by a friend at 6:30 am that morning and his friend had been picked up by another associate who continued to Hamilton. This comment was noted in Constable Missen’s notebook.
[20] After setting out the evidence of the witnesses, the Judge set out the reasons for his decision:
[27] In a number of respects Mr Selwyn was vague in his evidence and was unable to provide information which would corroborate his version of events. I have formed the view that Mr Selwyn’s version of events lacked detail and credibility. Mr Selwyn admitted in cross-examination that his recollection of some of the evening events was not that good.
[28] I am satisfied that Mr Selwyn was the driver of the vehicle for the following reasons.
(a) The vehicle observed by Mr Rowe was the vehicle owned by Mr Selwyn and the vehicle in which he was found on the roadside by Senior Constable Missen;
(b) I accept Mr Rowe’s evidence that he was able to see into the vehicle and observe the driver, who was a man aged 25 to 30 of darker skin, probably Maori or Polynesian. This description fits generally with that of Mr Selwyn;
(c) I accept Mr Rowe’s evidence that the car passed beside him within one metre and that he had an unobstructed, although brief, view of the interior of the car and observed only one person in it. I treat this evidence with caution, given Mr Rowe’s concession that if a person had been lying in the front passenger seat, his view may have been obstructed;
(d) Mr Rowe’s evidence was in almost all respects corroborated by the 111 call and the call report form produced as Exhibit A;
(e) I accept that Mr Rowe saw Mr Selwyn’s car pull over onto the side of the road and stop and Senior Constable Missen’s evidence that he arrived at the scene within a period of about
four minutes. I accept Mr Rowe’s evidence that no other car was observed to be following the car owned by Mr Selwyn, nor was there any other car observed by Senior Constable Missen at or leaving the site where Mr Selwyn’s car was parked;
(f) I accept the constable’s evidence that when Mr Selwyn alighted from the car he said that he had been dropped off at the road at 6:30 am. This clearly conflicts with the evidence that the car was observed travelling in an erratic manner at
7:58 am.
[29] I reject Mr Selwyn’s evidence that Mr Parker was the driver of the car and that he for no apparent reason changed his mind about driving him into Hamilton and left him abandoned on the side of the road.
[21] Accordingly, the Judge found Mr Selwyn guilty on the charge of driving a
motor vehicle whilst disqualified from holding or obtaining a driver’s licence.
The refusing to give a blood sample charge
[22] After setting out the factual basis upon which the refusing charge had been brought, Judge Collin set out his reasons for finding the charge provided:
[41] I am satisfied that the police had good cause to suspect that Mr Selwyn was the driver of the vehicle and no issue was taken as to the requirement that he undertake the evidential breath and blood procedure.
[42] I also find that Senior Constable Missen clearly requested Mr Selwyn to undertake an evidential breath screening test which Mr Selwyn refused and then at 9:20 am, after having read Mr Selwyn his Bill of Rights, required a blood sample to be taken. Mr Selwyn refused and the fact of refusal was noted by Senior Constable Missen by entry into his notebook.
[43] I find as a matter of fact that the request to Mr Selwyn was made in clear terms so that it was clear to Mr Selwyn what he was required to do, and that he refused to do it.
[44] There is no evidence that Mr Selwyn failed to understand what was being requested of him and indeed no issue was taken with the procedures adopted by Senior Constable Missen.
[45] I find that Mr Selwyn knew and understood that he was being asked to permit a specimen of blood to be taken and at the time he was able to comprehend what was required of him, but made a deliberate decision not to have a blood sample taken.
[46] Even if I had found that Mr Selwyn was not the driver of the vehicle
I remain satisfied that Senior Constable Missen had good cause to suspect
that he was, and that in those circumstances, the request to provide a blood sample was properly made.
[23] Accordingly, the Judge also found Mr Selwyn guilty of the charge of refusing
an officer’s request for a blood specimen.
The grounds of appeal
[24] Mr Selwyn appeals his conviction for driving whilst disqualified on the basis that Judge Collin erred in law by effectively treating Mr Rowe’s description of the driver as visual identification evidence when it was actually circumstantial resemblance evidence, and failed to give an identification warning pursuant to s 46A of the Evidence Act 2006.
[25] Mr Selwyn appeals his conviction for refusing to provide a blood specimen on two grounds:
(a) First, there was no good cause to require a breath screening test.
(b)Second, the Judge erred in law in finding Mr Selwyn refused to give blood in that Mr Selwyn offered to give a blood sample once he had received legal advice which he had clearly indicated he wished to receive before continuing the process.
Issues
[26] I see the issues to be:
(a) Did Judge Collin treat the evidence of Mr Rowe as visual identification evidence and fail to give himself an identification warning?
(b) Was there good cause to require a breath screening test? (c) Did Mr Selwyn refuse to give a blood specimen?
Appeal against conviction – principles
[27] I can only allow Mr Selwyn’s appeal if I conclude that Judge Collin erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred, or if for any other reason a miscarriage of justice has occurred.6
[28] An appeal against conviction proceeds by way of rehearing. I am therefore required to carefully consider all matters that were before Judge Collin, but ultimately I must reach my own decision on the merits. The weight I give to the evidence is a matter for my judgment. If I conclude that the Judge below was
wrong, I must act on my own view of what the outcome should be.7 It is, however, a
general principle that an appeal Court will only interfere with a trial judge’s findings of fact in “exceptional circumstances”.8 While I may come to my own view on the facts, I should remain mindful of the inherent advantage that Judge Collin had in determining the facts of the offending as he had the benefit of seeing and hearing from the witnesses first hand.9
Did Judge Collin treat the evidence of Mr Rowe as visual identification evidence and fail to give himself an identification warning?
[29] Mr Selwyn complains that Judge Collin erred in law by effectively treating the evidence of Mr Rowe as visual identification evidence when it was actually circumstantial resemblance evidence. The error was compounded by the Judge failing to give an identification warning pursuant to s 46A of the Evidence Act 2006. This is submitted to have resulted in a miscarriage of justice.
Mr Selwyn’s argument
[30] Mr Mills for Mr Selwyn referred me to two paragraphs of the decision of
Judge Collin:
[25] On Mr Selwyn’s behalf, it was submitted that there is no
identification evidence that Mr Selwyn was the driver of the vehicle and that
6 Criminal Procedure Act, s 232(2)(b)–(c).
7 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
8 Jeffries v R [2013] NZCA 188 at [91]–[95].
9 Sullivan v NZ Police HC Auckland CRI 2008-404-152, 2 October 2008 at [30].
the requirements of s 45 of the Evidence Act 2006 were not complied with in that no formal identification procedure was followed.
[26] Having listened to the evidence, I am satisfied that there was a good reason for not following the formal procedure as set out in the Evidence Act, on the basis that Mr Selwyn was identified as the occupant of the vehicle by Senior Constable Missen within a four to five minute period of being reported and in the course of his initial investigation.
[31] Mr Mills submits that the Judge treated the evidence of Mr Rowe as visual identification evidence, but no actual identification ever occurs. Mr Rowe only provides a general description. Nor is the police officer aware of the description when he first approaches the vehicle. Mr Mills said that the question of identification is clearly an issue because there is no direct evidence whatsoever to show that Mr Selwyn was the driver of the motor vehicle and he was never found by anyone in the driver’s seat, nor properly identified by anyone as the driver. So, Mr Mills submits, the Judge needed to make it abundantly clear and obvious that he had taken into account the identification warning and exercised the caution required.
[32] Mr Mills submitted to me that the mistake in law made by the Judge in considering the evidence to be visual identification evidence is significant. This is because the prosecution case rests on two pieces of circumstantial evidence which are disjointed by a period of about four or five minutes. In the four or five minute gap, the prosecution can tender no evidence of what happened in the motor vehicle.
[33] Mr Mills further said that the reason why the Judge had to treat Mr Rowe’s evidence with caution was because the weather conditions were foggy; he only had a fleeting glance of the driver; it is conceivable that there was someone lying down in the passenger seat and he identified the person as a male Maori or Pacific Islander (which is not accepted by Mr Selwyn as a description of him).
[34] According to Mr Mills, the Judge, by treating the evidence as visual identification evidence, elevated the weight of the evidence to a level that is not appropriate. Indeed the identification evidence became a reason for a finding that the defendant was the driver of the vehicle in the Judge’s decision. Mr Mills submits there is nothing in the Judge’s decision that would indicate the risk of
misidentification or mistake had been identified and that he had applied caution to it accordingly.
Discussion
[35] I cannot accept Mr Mills’s submissions.
[36] I accept that the evidence given by Mr Rowe was clearly description evidence and therefore a type of resemblance evidence forming circumstantial evidence of identification. It is not direct visual identification evidence.
[37] If Judge Collin found that there had been evidence of identity, then he would have been required to bear in mind the need for caution as set out in s 46A of the Evidence Act 2006. But the Judge never found there to be any direct evidence put forward by the prosecution that identified Mr Selwyn as the driver. Instead, the Judge was satisfied that Mr Selwyn was the driver based on description evidence provided by Mr Rowe of the car, its number plate and the occupant of the car, plus the other circumstantial evidence as provided by the Police as to what they found.
[38] The only point where identification evidence was mentioned by the Judge, was as a response to submissions on behalf of Mr Simpkins for Mr Selwyn, which is discussed at [25]–[26] of the Judgment (set out in part below at [40]). In those paragraphs, the Judge is dismissing a line of argument. The Judge is not saying that the observations of Mr Rowe “identified” Mr Selwyn as the driver. Those paragraphs address a completely different point, namely that there was no need to require Senior Constable Missen to undertake the formal procedure to identify Mr Selwyn as the occupant of the vehicle in order to make admissible the evidence that the Senior Constable found Mr Selwyn in the vehicle at around 8:05 am.
[39] Upon reading the judgment as a whole, it is clear that Judge Collin did not treat the evidence of Mr Rowe as identification evidence. Rather, he clearly treated it as circumstantial description evidence. Accordingly, there was no requirement under s 46A of the Act for the Judge to give himself a warning.
[40] In any event, the Judge did actually warn himself about the reliability of the
Mr Rowe’s description evidence. The Judge said:10
I accept Mr Rowe’s evidence that he was able to see into the vehicle and observe the driver, who was a man aged 25 to 30 of darker skin, probably Maori or Polynesian. This description fits generally with that of Mr Selwyn;
I accept Mr Rowe’s evidence that the car passed beside him within one metre and that he had an unobstructed, although brief, view of the interior of the car and observed only one person in it. I treat this evidence with caution, given Mr Rowe’s concession that if a person had have been lying in the front passenger seat, his view may have been obstructed.
(Emphasis added)
[41] It is evident that the Judge acknowledged the need to treat the resemblance evidence with caution in the light of the fact that Mr Rowe only got a brief look and there was a possibility that Mr Selwyn was lying down.
Was there good cause to require a breath screening test?
Legal principles
[42] Section 68 of the Land Transport Act 1998 (“the LTA”) provides that an enforcement officer may require a person to undergo a breath screening test without delay if he or she is a person whom the officer has good cause to suspect has recently committed an offence against the LTA that involves the driving of a motor vehicle. The officer must have “had reasonable grounds for suspecting that person he was interviewing was the worse for liquor”.11
[43] The test as to whether the officer had good cause does not depend on the officer’s belief. Rather, it is a question of fact that is to be determined by the Court.12 That must, of course, be based on the evidence available to the officer at the time. Officers may have regard not only to their own observations, but also to what they have been told by others.13 It follows that the Court must be satisfied on the
balance of probabilities that on the objective facts known to the officer, he or she had
10 Police v Selwyn, above n 1, at [28](b)–(c).
11 Police v Anderson [1972] NZLR 233 (CA) at 242.
12 At 248.
13 Police v Bradley [1974] 1 NZLR 113 (CA).
reasonable grounds for suspecting that the person had committed a specified offence.14
Mr Selwyn’s argument
[44] Mr Mills submits that there was no good reason for Senior Constable Missen to suspect that Mr Selwyn had recently committed an offence by driving. This was because there is no evidence that Mr Selwyn was the driver. In support of this submission, Mr Mills highlights the following facts:
(a) No description of the driver was relayed to Senior Constable Missen.
(b)The only evidence Senior Constable Missen had to indicate that Mr Selwyn had been driving was the absence of anyone else in the vehicle.
(c) Mr Selwyn was in the passenger’s seat, the seat was reclined and he
was fast asleep.
(d)Senior Constable Missen had not had a constant view of the motor vehicle.
(e) There is a five minute gap where no one else saw what was happening in the vehicle.
(f) Mr Selwyn immediately gave an explanation that he was not the driver and named who the driver was.
Discussion
[45] Again, I do not accept Mr Mills’s argument.
[46] There was a sufficient temporal connection from when Mr Rowe saw the vehicle belonging to Mr Selwyn to when Senior Constable Missen found the vehicle
14 Francis v Police HC Auckland A114/01, 4 September 2001; Shackleford v Police [2007] DCR
744 (HC).
parked where Mr Rowe reported it to be for the officer to have good cause to suspect that Mr Selwyn had recently committed an offence against the LTA. Furthermore, there was circumstantial evidence available to Senior Constable Missen that would also give rise to good cause, including the fact that Mr Selwyn smelt of alcohol, the vehicle was registered in his name and that he was the only person in the vehicle very shortly after an incident involving that vehicle had been reported.
[47] I am satisfied on the balance of probabilities that Senior Constable Missen had good cause to require Mr Selwyn to undertake a breath screening test.
Did Mr Selwyn refuse to give a blood specimen?
[48] I now turn to consider whether the Judge erred in law in finding Mr Selwyn refused to give a blood sample in that Mr Selwyn offered to give a blood sample once he had received legal advice.
Legal principles
[49] Upon refusing to undergo the breath screening test on the roadside, Mr Selwyn was required to go with the officer for an evidential breath test or blood test.15 A person is required to undergo the evidential breath test or blood test
“without delay” when required by an enforcement officer.16 If a person fails or
refuses to undergo without delay an evidential breath or blood test after having been required to do so by an enforcement officer, he or she must permit a medical practitioner or medical officer to take a blood specimen.17 If the person refuses to
have a blood sample taken without delay, then he or she commits an offence.18
[50] In order to establish a failure to permit a specimen of blood to be taken, the prosecution must show beyond reasonable doubt that the defendant consciously appreciated that he or she was required to permit a specimen to be taken.19 The offence is complete once a sufficient final refusal is made. Some vacillation is
permitted as long as it “forms part of a real and honest continuous decision making
15 Land Transport Act 1998, s 69(1)(c).
16 Quintal v Police [1992] 3 NZLR 499 (HC).
17 Land Transport Act 1998, s 72(1)(a).
18 Section 60.
19 C v Police AP111/94, 7 December 1994.
process, that does not expand to permitting a change of mind once a definite
(‘sufficient’) decision to refuse has been made”.20
[51] The text for what amounts to a refusal was succinctly articulated by
Eichelbaum J in Vitullo v Ministry of Transport:21
The question whether the suspect has refused has to be determined on a consideration of the whole of his conduct and the totality of his statements, set against the background circumstances. The issue whether the suspect refused to permit a specimen to be taken involves taking those common words in their ordinary meaning and making a factual decision. The section envisages a practical situation where the Legislature could not have intended to surround the concepts of permission and refusal with any undue complexity.
Mr Selwyn’s argument
[52] Mr Mills submits that the prosecution has failed to satisfy the threshold of beyond reasonable doubt in proving that at 9:20 am Mr Selwyn had a guilty mind when refusing to give a blood specimen. Mr Mills relies on evidence that Mr Schulze gave during the trial to the effect that when Mr Schulze talked to Mr Selwyn on the phone, Mr Selwyn did not understand or appreciate the legal position he was in when requested to provide the sample.22 In his submission, the prosecution evidence does not satisfy the requisite standard of proof because there is very little information available as to the exact conversation between Senior
Constable Missen and Mr Selwyn. There is nothing in addition to the fact that Mr Selwyn would not sign the form to indicate a refusal to give a blood specimen. On the other hand, the evidence of Mr Schulze and Mr Selwyn is to the effect that he did not understand the process.
Discussion
[53] When Mr Selwyn refused to give a roadside breath screening test, he was taken to the Huntly Police Station for an evidential breath test. Upon being read his
rights, Mr Selwyn asked to speak to his lawyer. He chose not to pick a lawyer from
20 See, for example, Davison v Ministry of Transport (1987) 2 CRNZ 426.
21 Vitullo v Ministry of Transport (1988) 3 CRNZ 227 (HC) at 230. Similar comments were made by Holland J in Hanning v Ministry of Transport HC Dunedin AP87/90, 18 September 1990 at
6–7.
22 Notes of evidence at 76.
the list provided, but rather to contact Mr Schulze from Rotorua. Mr Selwyn was left in private to do this. Mr Selwyn did not ring his lawyer but rather his mother. He spoke to his mother. Following their conversation, his mother then managed to contact Mr Schulze.
[54] Mr Selwyn returned to the room with the Police. Mr Selwyn was again asked to provide an evidential breath test and was provided his rights again, which included the right to speak to a lawyer. The Judge found, and was entitled to find, that Mr Selwyn did not say that he had not spoken to a lawyer. Instead, he remarked that Senior Constable Missen should be reading the information to the driver of the car. He also refused to sign an acknowledgment that he had been read his rights. Mr Selwyn was then asked to undergo a blood test with a registered medical practitioner. He refused to do so at 9:20 am. After that, Mr Schulze rang the station and asked to speak to Mr Selwyn.
[55] Whether conduct amounts to a refusal must be assessed in the light of all the circumstances, and particularly in the light of the conduct of Mr Selwyn when the procedures were being undertaken. Accordingly, I have considered the notes of evidence,23 Senior Constable Missen’s notebook and the forms completed at the time in reaching my conclusions on this ground.
[56] The Police had clearly articulated to Mr Selwyn several times the reason why he was being detained. He chose to be uncooperative and obstructive. He refused to carry out any evidential tests or sign any forms. His explanation was that he would not do the tests because he was not the driver. The giving of this reason indicates to me that Mr Selwyn consciously appreciated the process that he was going through and knew what he was doing when he refused to take the tests. When Senior Constable Missen informed Mr Selwyn that he was required to give a blood sample and told him of the consequences of not providing a sample, Mr Selwyn refused to give one. The refusal was noted by Senior Constable Missen in his notebook at
9:20 am.
23 At 15–20 (evidence in chief of Senior Sergeant Missen), 25–27 (cross-examination of Senior Sergeant Missen), 31–32 (re-examination of Senior Sergeant Missen), 42–43 (evidence in chief of Mr Selwyn), 53–54 (cross-examination of Mr Selwyn), 72–73 (evidence in chief of Mr Schulze) and 74–76 (cross-examination of Mr Schulze and questions from the Court).
[57] The fact that the refusals were made before any legal advice was obtained was a direct result of Mr Selwyn’s actions. This is not a case where Mr Selwyn indicated a willingness to provide a test, but had made it clear to the officer that he wanted to first discuss the matter with his lawyer.24 The Police gave Mr Selwyn an opportunity to contact his lawyer. He did not advise the Police that he had not made contact with a lawyer and he continued to behave in an obstructive way.
[58] In these circumstances, it was appropriate for Senior Constable Missen to treat the decision to refuse to give a blood sample at 9:20 am as a final decision. Mr Selwyn’s actions at 9:20 am cannot be said to be part of a larger, continuing decision-making process. I am satisfied that the refusal to provide a blood sample was a conscious, definite decision on Mr Selwyn’s part, the significance of which he appreciated. It does not matter that he later changed his mind having spoken to Mr Schulze.
[59] It follows that Judge Collin was entitled to find it proved beyond reasonable doubt that, by 9:20 am, Mr Selwyn had been given a reasonable opportunity to complete an evidential breath test and blood test, and that Senior Constable Missen had fairly and reasonably concluded that Mr Selwyn had refused to undergo these tests. Judge Collin was entitled not to give legal weight to Mr Schulze’s opinion that Mr Selwyn did not appreciate the position he was in at the time. The mental element is not that a person thought they were justified in refusing to give a sample, it is that he or she knew what they were required to do and consciously decided to refuse to
comply.25 No miscarriage of justice occurred in Judge Collin convicting Mr Selwyn
of this charge.
Decision
[60] In deciding these appeals, I have focused on the arguments of counsel for the appellant. The arguments go to perceived weaknesses of detail and inference. I have given my views on them. I have also stood back and looked at the evidence as a whole. It is compelling, and easily justified Judge Collin’s decisions finding the
charges proved beyond reasonable doubt.
24 See, for example, Thompson v Police HC Dunedin AP23/97, 22 October 1997.
25 Police v Costley [1994] 2 NZLR 443.
[61] The prosecution’s evidence as to the driving charge had to be answered if conviction was not to follow. Mr Selwyn gave evidence and told his story. But he did not call any corroborative evidence. There was, of course, no legal onus on him to do so. But the result was that on the evidence the Judge had to consider there was no reasonable possibility that Mr Selwyn’s story could be true.
[62] As to the charge of refusing to provide a blood specimen, it would mock the intention of Parliament as clearly legislated if the Police were found to be at fault in the circumstances which Judge Collin addressed.
[63] The appeal against conviction is dismissed. It follows that the appeal against sentence is also dismissed.
Brewer J
2
1