Singleton v Police

[2012] NZHC 2063

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-131

CRI-2012-404-137 [2012] NZHC 2063

BETWEEN  SHAUN GEORGE SINGLETON Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 August 2012

Appearances: Z Mohamed for the Applicant

A Longdill for the Respondent

Judgment:      13 August 2012

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

Z Mohamed, P O Box 39119, Howick, Manukau 2145.

A Longdill, Crown Solicitor, Auckland. Email: [email protected]

SINGLETON V NEW ZEALAND POLICE HC AK CRI-2012-404-131 [13 August 2012]

[1]      The applicant seeks leave to appeal to the Court of Appeal on questions of law.  I shall detail the background shortly.

[2]      The relevant provisions are ss 144(1) and (2) of the Summary Proceedings

Act 1957 which provide:

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 of this Act 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]      It is trite law that in criminal proceedings of this type one right of general appeal is extended to all who are convicted.  The provisions of s 144, however, are not designed to provide a second right of general appeal.  Certainly the provision is not to be used to encourage repetition of points which have failed at lower levels.

The dictum of Thomas J in R v Slater[1] makes this clear.

[1] R v Slater [1997] 1 NZLR 211, 215.

[4]      The applicant, again in circumstances I shall describe, was unsuccessful in his appeal to Clifford J.[2]  Clifford J, at the time he heard the appeal, was in Auckland dealing with the appeals list.   Because he is a Wellington-based Judge the normal protocol of him dealing with this leave application cannot be followed.  Hence my

presiding over this application.

[2] Singleton v NZ Police [2012] NZHC 1220.

[5]      The applicant was routinely prosecuted in the Manukau District Court for driving a motor vehicle whilst the alcohol level in his breath exceeded the permitted maximum.  The then alleged offending occurred in Manurewa in November 2010. There was a defended hearing before Judge Andrée Wiltens in April 2012.   The applicant was convicted.  The Judge commented, during the course of his sentencing remarks, that it was something of a mystery to him why the charge was defended at all. That, however, was the applicant’s right.

[6]      Four points were raised by Mr Mohamed on the appeal before Clifford J.  In short they pointed to a paucity of sufficient evidence and in particular the failure of the prosecution at the hearing to produce the common form “Breath & Alcohol Procedure Sheet” (the sheet).

[7]      The four grounds overlapped to some extent, as indeed do Mr Mohamed’s submissions today. They were first, that the Judge had convicted the applicant on the basis of inadmissible hearsay evidence (this in essence being a reference to the relevant police officer refreshing his memory from the sheet).  The second appeal point was that there was generally insufficient evidence before the Court that the applicant had been processed in such a way that it complied with s 23 of the New Zealand Bill of Rights Act 1990.  The third point was insufficient compliance with s 77(3) of the Land Transport Act 1998.  In particular, the print-out was not produced which had recorded a breath alcohol level of 448 micrograms.  The final point was that  there  was  insufficient  admissible  evidence  relating  to  the  certificate  of compliance of the breath alcohol device used.  Clifford J, at the appeal hearing dealt with these four points in turn.

[8]      Of some relevance is the point relating to s 77(3) of the Land Transport Act

1998. This is best approached by setting out Clifford J’s comments.

[8]       Section 77(3) of the Land Transport Act provides that the result of a positive evidential breath test is not admissible in evidence unless the person who undergoes that test is advised by an enforcement officer, without delay after the result of the test is ascertained, that the test was positive and that if the person does not request a blood

test within 10 minutes that the test could of itself be conclusive evidence and lead to that person’s conviction for a breath alcohol offence under the Act.

[9]      Again, the constable gave evidence of his having:

...read through the part on the checklist that explains the 10-minute process to him about choosing blood.  Um, I can’t recall the exact wording without reading off the sheet I’m sorry.  After reading him that, um, I’ve given him his Bill of Rights again ... After that was done I then started the 10-minute period, um, but I can’t say the time I actually started that ‘cos I can’t read off the piece of paper.

[10]     The  Judge  then  suggested  to  the  constable  that  he  refresh  his memory by reference to the procedure sheet and the constable gave evidence that the starting point of the 10 minute period had been 27 past midnight, and that it had ended at 38 minutes past midnight.

[11]     Again, as best as I can understand Mr Mohamed’s submission, it would appear to be that because the constable has not recorded the exact words used to advise Mr Singleton of the requirements of s 77(3), then there has been insufficient evidence of compliance with that requirement.  Again, I conclude that there is simply nothing in this point.   If there had been any challenge to the words actually used  –  which  as  I  had  already  explained,  there  was  not  –  the constable would again have been entitled to refer to the contemporaneous record to refresh his memory.  Alternatively, if the evidence was in fact challenged, that procedure sheet may well have been a previous consistent statement that could have been used to rebut the challenge.  I move on to Mr Mohamed’s final point.

General analysis

[9]      As is apparent from the above extract, the central core of Mr Mohamed’s arguments, both before Clifford J and me, was the significance of the sheet.   The sheet was used during the District Court hearing as a document from which the police officer is able to refresh his memory.  For some reason, however, it was never formally produced.  It is easy to see how this oversight occurred.

[10]     The drama, such as it is, is quite apparent from the District Court notes of evidence (NOE 5-7).   Initially the police officer was reading from the sheet.   Mr Mohamed objected to that and his objection was upheld.  Mr Mohamed indicated to the Judge he had no difficulty with the witness refreshing his memory but that it should not become oral evidence and read word for word.  The prosecuting Sergeant obliged  and  asked  the  witness  to  turn  the  sheet  over.    When  the  witness  had completed his evidence-in-chief, before there was cross-examination, the prosecuting

Sergeant sought to produce the sheet as an exhibit.   The transcript records an objection from Mr Mohamed and the cryptic words “Your Honour, I will get to that”. Whether there was an objection to the admissibility of the document, the grounds, and indeed whether the document was ultimately produced, is unclear.  But for some reason the document never formed part of the District Court file.

[11]     One can perhaps understand why defence counsel was content for the sheet not to have been produced.  The sheet, which runs to some four pages, makes it clear that,  at  every  relevant  step  along  the  way,  procedures  were  explained  to  the applicant; he was given the necessary cautions; and he has signed acknowledgements to that effect.  Certainly there is nothing arising out of the sheet which would have provided a shred of any substance for a defence.

[12]     What  emerged  at  the  hearing  was  that  the  police  officer  gave  various shorthand descriptions of what in fact appeared on the sheet had he been allowed to read from it or refresh his memory in any substantial way.  He states, for instance, that he administered the Bill of Rights to the applicant by following the format which was taped inside his notebook.  He also relevantly gave evidence as follows:

... He blew on the machine. ... Upon doing the second test the machine gave a result of 448, ... I advised him of his result again and then read through part on the checklist that explains the 10-minute process to him about choosing blood. ... I can’t recall the exact wording without reading off the sheet  I’m sorry.  After reading him that ... I’ve given him his Bill of Rights again and asked him if he wanted to consult with a lawyer.   He said no and from memory he signed the sheet saying he did not want to speak to a lawyer. After that was done I then started the 10-minute period, ... but I can’t say the time I actually started that ‘cos I can’t read off the piece of paper.

Discussion

[13]     Mr Mohamed’s salient point is that it is not for defence counsel to assist the prosecution by cross-examining in such a way that gaps in the prosecution evidence might be filled.  The strongest points on which Mr Mohamed relied were first, that the print out which showed the 448 reading should have been produced.  Secondly, given the nature of the evidence I have outlined, it was far from clear whether the relevance of the 10 minute stand down period had been explained to the applicant. Mr Mohamed of course accepted that the relevant time periods and explanations all

appeared on the face of the sheet and that the applicant had acknowledged all this by his signature.   Mr Mohamed’s point was the sheet had never been produced in evidence.

[14]     Mr Mohamed also took objection to the sheet (which was not in evidence) being shown to Clifford J.   Mr Mohamed’s submissions do not rely on anything which is contained in the sheet, but rather the total absence of the sheet at trial.

[15]     The difficulty with this submission, of course, is that the essential ingredients of what was necessary to found a successful prosecution were in evidence, albeit in somewhat abbreviated form.  The fact that the applicant had been given his Bill of Rights was the subject of evidence.  So too was the 448 reading.  So too was the 10 minute stand down period. And so too was the s 75A device approval.

[16]     Mr  Mohamed’s  point,  to  the  effect  that  the  print  out  should  have  been produced but was not does not, with respect, strike me as being a critical matter, given that the police officer who gave evidence was able accurately to recall the relevant breath alcohol reading.

[17]     Of critical importance in a s 144 leave application must be the overarching issue  of  a  question  of  law  which  gives  rise  to  a  matter  of  general  or  public importance.  In an endeavour to create an issue of public importance Mr Mohamed raised  a  number  of  points.    Some  of  these  in  fact  were  detailed  in  supporting affidavits  filed by the  applicant.   The  real  drift  of Mr Mohamed’s  submissions

included:

The  large  number  of  prosecutions  for  blood  alcohol  and  breath  alcohol

matters.

Theundesirability of prosecutors in this area just producing the sheet alone without amplifying the details on that sheet with viva voce evidence from a relevant police officer.

Theimportance of ensuring, in this are, that prosecutors follow, to the letter, relevant procedures and do not cut corners.

[18]     One of course must be mindful, in this area, of the Supreme Court judgment of Aylwin v New Zealand Police,[3]  where, in a succinct single unanimous judgment, the Supreme Court made reference to the fact that the days of technical defences in prosecutions of this type lay in the past.

[3] Aylwin v New Zealand Police [2009] 2 NZLR 1.

[19]     Looking at the issue which I have described as “overarching” – the general or public importance of the points raised by counsel, I fail to see anything .  It seems to me that in both the District Court, and in the High Court before Clifford J, the correct result was reached.  The failure to produce the sheet was not, in the circumstances of this case, and on the evidence before the District Court Judge fatal to a conviction. The points raised by Mr Mohamed, with respect, strike me as being little more than an attempt to relitigate legal issues which did not succeed at two levels.

[20]     I am of the firm view that there are no matters arising out of the background of the applicant’s conviction which give rise to matters of general or public importance.   The points raised by Mr Mohamed are essentially procedural points dressed up as questions of law.  A critical procedural point is, of course, capable in an appropriate case of becoming a question of law.  But this is not such a case.

[21]     The s 144 threshold has not been crossed.  For this reason leave is refused.

.......................................…

Priestley J