Slater v Police

[2015] NZHC 1726

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2015-454-4 [2015] NZHC 1726

BETWEEN

EDMUND ROGER SLATER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 July 2015
Counsel:	G A Paine for Appellant M J Blaschke for Respondent
Judgment:	27 July 2015

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

3.45 pm on the 27th day of July 2015

Solicitors:           Paine Law, Dunedin, for Appellant

Crown Solicitor, Palmerston North for Respondent

SLATER v NEW ZEALAND POLICE [2015] NZHC 1726 [27 July 2015]

[1]      The appellant was convicted at a judge alone trial before Judge Binns in the District Court at Palmerston North on 1 April 2015 on one charge of attempting to drive  with  excess  breath  alcohol  (third  or  subsequent).1    He  appeals  against

conviction, on two grounds:

(a)	that the Judge was wrong to speculate on what the arresting officer
may have done if the appellant’s explanations had been given at the time;  and
(b)	that the acts of the appellant did not amount to an attempt.
[2]	The	circumstances    were    that    at    approximately    2.45 pm    on    Friday

17 October 2014, the appellant emerged from the restaurant in Palmerston North where he had lunched, said goodbye to his lunch companion, and moved towards his car parked on Cuba Street.  A police officer observed him as being unsteady on his feet.  The appellant got into the driver’s seat, closed the door, and switched the key on to bring power to the stereo but not to start the engine.  The officer knocked on the car door to get the appellant’s attention.  The officer spoke to the appellant, both while he was sitting in the car and then on the footpath, until an officer arrived with a breath testing device.  The appellant said that he had consumed two glasses of wine during lunch.  A subsequent evidential blood test returned a reading of 354 mgs of alcohol per 100 mls of blood (approximately 4.4 times the limit of 80 mgs).

[3]      The two main issues at trial, and on this appeal, are:

(a)      whether the prosecution had proved, beyond reasonable doubt, that the appellant had an intent to commit the offence of driving with excess breath alcohol, in terms of s 72(1) of the Crimes Act 1961;  and

(b)      whether   the   appellant’s   acts   committed   with   that   intent   were

immediately or proximately connected with the intended offence, so as to constitute an attempt under s 72(3).

1      Police v Slater [2015] NZDC 5669.

[4]      Both the police officer, Sergeant Hogan, and the appellant gave evidence. The Judge described their evidence in these terms:

[5]       In evidence, Sergeant Hogan said the weather was clear.  He did not recall if it was windy as was put to him.   He said that it was less than a minute  between  leaving  his  workplace  and  approaching  the  defendant’s motor vehicle.  It was put to the sergeant that the defendant was trying to operate a cellphone.  He had no recollection of that.  He accepted that the engine had not been started.  He was unsure whether the vehicle was in gear. He did not recall if the dashboard was lit, but he accepted the engine had not been started, and that the vehicle had not been engaged in any motion.

[6]       Sergeant Hogan did not accept that the defendant had said that he was not going to drive.  There was no reference in the sergeant’s notes that he told the defendant to put his cellphone down, as alleged by the defendant. The sergeant did not recall seeing the cellphone, or the defendant using his cellphone.

[7]       The sergeant said that no explanation was given by the defendant at the time, that he was trying to phone for a taxi, even though that was the defendant’s position.  Sergeant Hogan said he was eager to ensure that the defendant not drive.  He was anxious to stop him.  His concern was that the defendant was under the influence of alcohol.  He said he had to act quickly when he saw Mr Slater move to the car as he was not in a patrol car and he would not have been able to stop him, if he had left.  He said that he had to “make a call” as it would have been unsafe to allow Mr Slater to drive, so he approached him directly.

[8]       Mr Slater’s evidence was that he hopped into his car [and] put the key in the ignition to turn on the radio.  He said he turned the key to the first notch for that purpose.  He said he tried to call a taxi but he was not able to find the number.  He referred to his cellphone, moving quickly through the letters A to Z.  He said that he was going to drive, then he decided it was a bad idea, and he decided to get a taxi.   He said he had told his lunch companion that he was going to catch a taxi, and that he told the sergeant on the day, but he “didn’t wanna know”.

[5]      The Judge expressed her findings on that evidence in these terms:

[25]      Turning to discuss this case; firstly, the defendant’s evidence was that the sergeant told him to turn his cellphone off and stop using it.   I consider that, had that occurred, it would have been noted and/or recalled by the sergeant.

[26]     I found the sergeant to be professional.  He made a clear record of what occurred.  On the day, he had noted matters carefully.  My assessment of  him is  that  he  was  extremely  concerned  about  the  potential  that  the defendant would drive.

[27]      At the hearing, the defendant says that he was going to drive, but he had thought better of it.  He said that he told his lunch companion that he was  going  to  get  a  taxi.    That  witness  was  not  called  to  confirm  that evidence.

[28]      The defendant said that he gave the explanation that he had hopped in his vehicle to phone a taxi, to the sergeant at the time.  I consider that, had that explanation been given at the time, it would have been noted by the sergeant, and that the sergeant would have made a note of the issues relating to the cellphone, i.e.  Was it there?  Had it been in use?  Was it in use? Also, was the radio on as the defendant alleged?

[29]     I find in the circumstances of this case, that the acts done by the defendant were with an intent to commit an offence.  I do not find that they were preparation only.  The intent to commit the offence was clearly stated by the defendant.  I accept that, it was his intention to drive when he hopped in his car.

[6]      Mr Paine for the appellant takes issue with the findings at [25] and [28].  He submits:

21.In circumstances where it was directly put to the Police Officer these actions had occurred it is submitted that Her Honour went further than  the  evidence  and  indeed  in  making  an  assessment  of  the evidence concluded that the evidence of the Police Officer was such that  had  certain  things  occurred  he  would  have  noted  them and therefore by not noting them they cannot have occurred.

22.That with respect, flies in the face of the evidence given under oath by the defendant and the unchallenged evidence of the Police Officer that he did not recall a number of these issues put to [him] i.e. wind, cellphone and radio on.

[7]      The case essentially turned on credibility, in particular as to the appellant’s intention.  Sergeant Hogan’s evidence was that while the appellant was sitting in the driver’s seat with the driver’s door closed, the appellant stated he was about to drive to Bunnythorpe and that he shouldn’t be driving.  The appellant’s evidence was as described by the Judge in [8], set out above.  The Judge had to determine whether she  accepted  that  explanation  of  the  appellant’s  intention,  assessing  both  his evidence and that of Sergeant Hogan.   In making that assessment, she took into account that Sergeant Hogan, whose evidence she accepted at [26], did not recall events happening as the appellant described.   She did not accept the appellant’s evidence.  Her statement that the Sergeant would have noted these things if they had happened was not speculation.  It was an integral part of her reasons for rejecting the appellant’s explanation.

[8]      A judge making an adverse credibility finding may couch that in language

which avoids a bald assertion that the witness is not believed. The Judge’s comments

at [25] and [28] are of that sort, but they make it quite clear that she did not believe the appellant’s evidence that he used his cellphone, or that he gave the explanation he claimed to the Sergeant.

[9]      That finding of credibility was one for the Judge to make.   It cannot be assailed on this appeal.  On the evidence which the Judge accepted, the inference that the appellant intended to drive, and that he knew that he was over the limit, were inferences the Judge could properly draw from the facts which she found proved.

[10]     The question whether an act is sufficiently proximate to constitute an attempt is closely allied to the question of intent.  The Court of Appeal in R v Harpur made it clear that the two ingredients of an attempt, the mens rea and the actus reus, are not to be looked at completely separately.2   Any analysis of the actus reus must be done in conjunction with the mens rea.3   Where the act relied on is consistent only with an

intention to commit the offence, that is relevant to the assessment of proximity. Where the act relied upon is equivocal, in the sense that it is potentially consistent with both an intention to commit the offence,  and some innocent intention, the prosecution must exclude the innocent intention as a reasonable possibility.

[11]     The   Judge’s   factual   finding,   rejecting   the   appellant’s   explanation, distinguishes this case from the two decisions considered by Judge Binns:  Berry v Police4  and Taia v Police.5     In both of those cases the defendant had offered an innocent explanation which was consistent with all of the actions taken, and which was not excluded as a reasonable possibility.  In Berry v Police, Pankhurst J said that an attempt to drive requires actions which occur within a period of seconds.   He continued:

[21]     … the actions necessary to constitute the actual driving of a motor vehicle are typically momentary. At a minimum they comprise getting into the  vehicle,  starting  the  engine  and  its  engagement  in  order  to  achieve forward motion. The dividing line between an attempt, and commission of the actual offence of driving, is necessarily fine – essentially one merges into the other as the vehicle is mobilised over a few seconds.

2      R v Harpur [2010] NZCA 319, (2010) 24 CRNZ 909.

3 At [25].

4      Berry v Police [2007] DCR 471 (HC).

5      Taia v Police HC Napier CRI-2011-441-9, 15 June 2011.

[22]     Second, the inquiry whether particular acts constitute an attempt or not is necessarily fact specific. For example, it is one thing for the police to apprehend an intoxicated person as they turn the engine on seconds after entering their vehicle on the one hand, as compared to an apprehension where the suspect has been asleep in the car for an appreciable time on the other. In the former case the circumstances speak strongly as to the person’s intention, and it is a short step to the conclusion that turning on the engine is an action beyond mere preparation. But where the person is found asleep any interpretation of their earlier actions lacks the same sense of immediacy, so that inferential proof may be less obvious.

[23]     To my mind the factual issue in this case can be reduced to the following propositions. Can it be inferred that in starting the engine Mr Berry had commenced to drive? Or, is there reasonable doubt as to that issue,  for  example  because  he  started  the  engine without  any conscious intention to set the vehicle in motion? By a small margin I think the proper answers to these questions are “No” and “Yes”, respectively.

[12] As Pankhurst J describes, the inquiry whether any action in the sequence of commencing to drive constitutes an attempt is fact specific. In this case, the appellant had got into the driver’s seat and turned the ignition key to the first position where the radio was turned on. The inquiry in this case can be formulated broadly in the way Pankhurst J describes at [23]. Can it be inferred that the appellant’s actions in getting into his car and turning on the key were proximately connected with his intention to drive, or is there reasonable doubt that he had carried out those actions for some other purpose? The Judge’s rejection of the appellant’s explanation necessarily excluded the only other purpose suggested. In the light of the Judge’s finding that his intent was to drive, those actions were sufficiently proximate to constitute an attempt. The attempt was complete, and the appellant was correctly convicted.

[13]     For these reasons the appeal is dismissed.

A D MacKenzie J