Singleton v Police
[2012] NZCA 618
•21 December 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA548/2012 [2012] NZCA 618 |
| BETWEEN SHAUN GEORGE SINGLETON |
| AND NEW ZEALAND POLICE |
| Court: Randerson, Harrison and Stevens JJ |
| Counsel: Z K Mohamed for Applicant |
| Judgment: 21 December 2012 at 10:00am |
(On the papers)
JUDGMENT OF THE COURT
AThe application for leave to appeal is dismissed.
BThe applicant must pay to the respondent costs for a standard application on a Band A basis for leave to appeal and usual disbursements.
____________________________________________________________________
REASONS
(Given by Randerson J)
The applicant was convicted following a defended hearing in the District Court on 23 April 2012 of one charge of driving with excess breath alcohol, contrary to s 56(1) of the Land Transport Act 1998. His appeal against conviction was dismissed by Clifford J on 1 June 2012.[1] An application for leave to appeal was subsequently declined by Priestley J on 13 August 2012.[2]
[1]Singleton v New Zealand Police [2012] NZHC 1220.
[2]Singleton v New Zealand Police [2012] NZHC 2063.
The applicant now seeks special leave to appeal under s 144 of the Summary Proceedings Act 1957 to appeal to this Court on seven questions which, it is submitted, constitute questions of law. Randerson J earlier determined under s 392A of the Crimes Act 1961 that the application be determined on the papers.
Section 144 provides:
144 Appeal to Court of Appeal
(1)Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 or against any determination of the High Court on a question of law arising in any general appeal:
Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(2)A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that 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.
(3)Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that 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.
In evidence in the District Court, the arresting officer stated that when the applicant was asked to undergo an evidential breath test, this resulted in a reading of 448mg (per litre of breath). During his evidence-in-chief, the arresting officer said he could not recall all the relevant details of the process and procedures he adopted without reference to the standard checklist used in prosecutions of this type. The officer was permitted by the District Court Judge to refresh his memory from the checklist which was shown to him by the prosecuting sergeant with a copy given to the applicant’s counsel.
Later in his evidence, when asked about the giving of advice to the applicant about the result of the test and the ten minute period available to the applicant to decide whether to choose to take a blood test, the arresting officer was again obliged to refresh his memory. At the end of the arresting officer’s evidence-in-chief, the prosecutor sought to produce the checklist but counsel objected and it was not in the end produced. It appears from the transcript at the District Court hearing that the Judge considered the relevant evidence had been given orally by the officer.
A further issue raised at the District Court hearing related to the identification of the evidential breath testing device administered to the applicant. The officer produced as an exhibit the evidential breath testing device certificate and certificate of compliance. He informed the court that it was the Drager Alcotest 9510NZ with the serial number 5001. In cross-examination, the officer said he had obtained the name of the device and the serial number from the certificate of compliance. In answer to a question from the court, the officer confirmed that the checklist gave the same details of the device and the serial number.
The points which the applicant wishes to argue on appeal can be summarised as these:
(a)Was the evidence the officer gave by refreshing his memory from the checklist admissible without production of the checklist?
(b)Was the evidence about the evidential breath testing device admissible without production of the result card or printout from the testing device or any reference to it?
(c)Was the High Court Judge entitled to examine the checklist on the appeal?
(d)Is there any duty on defence counsel in a prosecution of this type to assist the prosecution in relation to the production of documents?
An applicant for special leave to appeal is required by s 144(3) to satisfy this Court that:
(a)There is a question of law;
(b)The question of law is one that ought to be submitted to this court by reason of its general or public importance, or for some other reason; and
(c)The court is of the opinion that it ought to be submitted.
It is well established that these criteria are to be strictly applied[3] and that s 144 does not provide a second tier of appeal from the District Court.[4]
[3]R v Slater [1997] 1 NZLR 211 (CA) at 215.
[4] Nottingham v T CA216/00, 26 March 2001 at [13].
We accept that the first two questions summarised at [7], raise questions of law but we are satisfied that neither has any reasonable prospect of success. With the permission of the District Court Judge, the arresting officer was entitled to refresh his memory from the checklist he made at the time by virtue of s 90(5) of the Evidence Act 2006. This provision codifies a longstanding tradition enabling a witness to refresh memory where the witness has no or only a partial recollection of the relevant events.
The evidence given in this way is not hearsay as the officer was present as a witness.[5] The officer’s evidence was admissible under the general provisions of ss 7 and 8 of the Evidence Act. No question is raised as to the reliability of the checklist nor as to its accuracy. If there had been, it could have been admitted under s 35(3)(b) of the Evidence Act as a prior consistent statement. It would be a most surprising outcome if the applicant were now permitted to complain about the non-production of the checklist when his counsel had objected to its production at the hearing in the District Court.
[5] See the definition of hearsay statement in the Evidence Act 2006, s 4.
Similar reasoning may be applied to the second question. The certificate of compliance was conclusive proof of the matters stated in it.[6] The officer’s evidence about the type and serial number of the device was taken both from the certificate of compliance and from the checklist by the officer legitimately refreshing his memory. The officer’s evidence was not hearsay and was admissible.
[6] Land Transport Act 1998, s 75A(2).
The applicant seeks to argue that the evidence about the result of the breath test was not given in accordance with the Land Transport (Breath Tests) Notice 2009. We accept the submission made on behalf of the respondent that Step 3(i) of cl 8 of the Notice does not control the admissibility of the result of the test. It simply states as a matter of fact that the test result are shown on the result card or printout. There is no need to produce the printout although it is desirable to do so in case any challenge to its accuracy is made. The officer’s evidence as to result was sufficient. In the absence of evidence of any challenge to the officer’s evidence, it is reasonable to infer that he derived the test result from the printout.
The applicant seeks to raise a related point about the sufficiency of the officer’s evidence as to the advice required under s 77(3) of the Land Transport Act relating to the ten minute period. Again, this point was not challenged during cross‑examination. The officer said he had explained the “10-minute process to him about choosing blood”. We accept that it is arguable the officer’s evidence was insufficient on this point but we do not regard this as a matter of sufficient importance to raise on a second appeal. If there had been any challenge to this, the officer could have produced the checklist.
The last two questions are not questions of law. They raise matters of process or procedure. In any event, the High Court Judge was entitled to call for and examine the checklist in order to determine the admissibility issue raised. Had there been a material discrepancy between the officer’s evidence and the checklist, the outcome might have been different. We also observe that it is axiomatic that defence counsel is not obliged to assist the prosecution or to consent to the introduction of documents or other evidence unless he or she wishes to do so. But the failure to challenge the detail or accuracy of the evidence during the hearing may have adverse consequences if a defendant later seeks to take evidential or procedural points such as those raised in the present case.
We can only endorse the observations of the Supreme Court in Aylwin v Police[7] that Parliament has legislated to ensure that drink driving offenders do not escape responsibility through technical and unmeritorious defences. The matters the applicant seeks to raise on this appeal clearly fall within that category.
[7] Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.
Since we have determined that the points the applicant wishes to raise have no prospect of success or do not warrant a second appeal, the application for special leave to appeal is dismissed. The applicant must pay costs to the respondent as for a standard application on a Band A basis with usual disbursements.
Solicitors:
Crown Law Office, Wellington for Respondent
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