Sullivan v Police
[2018] NZCA 336
•31 August 2018 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA166/2018 [2018] NZCA 336 |
| BETWEEN | STRUAN ANTHONY SULLIVAN |
| AND | NEW ZEALAND POLICE |
| Hearing: | 16 August 2018 |
Court: | Kós P, French and Miller JJ |
Counsel: | T J Jackson for Applicant |
Judgment: | 31 August 2018 at 11 am |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Mr Sullivan was convicted of driving with excess blood alcohol following a defended hearing in the District Court before Judge Maze.[1] Mr Sullivan appealed his conviction to the High Court. The appeal was dismissed by Davidson J.[2]
[1]Police v Sullivan [2017] NZDC 25905 [DC decision].
[2]Sullivan v Police [2018] NZHC 397 [HC decision].
Dissatisfied with that outcome, Mr Sullivan now wishes to appeal to this Court. Because it would be a second appeal, leave is required under s 237 of the Criminal Procedure Act 2011.
Background
Police stopped a vehicle being driven by Mr Sullivan and administered a breath alcohol test. The result indicated he was over the limit. He then accompanied the officer to the police station. After advising him of his rights, police administered an evidential breath test which was also positive.
Mr Sullivan was advised of the test result at 22.23 and told pursuant to s 70A of the Land Transport Act 1998 that he had 10 minutes in which he could elect to have a blood test. He was advised of his right to seek legal advice. He indicated at 22.23 that he wished to speak to a lawyer. There was an argument about signing an acknowledgment he had been advised of his rights. At 22.26 he again said he wanted to speak to a lawyer. At 22.34, with the officer’s permission, he left the station to go to his vehicle to get his lawyer’s contact details.
The officer told him he must return within 10 minutes if he wanted to have a blood test taken. It was common ground this was incorrect advice because of established authority that any time reasonably taken in the exercise of the right to consult a lawyer should be excluded from the calculation of the 10 minutes.[3]
[3]Rae v Police [2000] 3 NZLR 452 (CA) at [53].
After speaking to a lawyer, Mr Sullivan returned to the station at 22.59 and requested a second evidential breath test. When this was declined, he asked for a blood sample to be taken. At 23.05, the officer again read him his rights and although the officer considered the 10 minute time period had expired he was prepared to accede to the request for a blood test. Mr Sullivan was then driven to the hospital where a sample of blood was taken.
At trial, the officer testified that he despatched the sample to ESR for analysis. The prosecution produced a certificate of analysis from ESR stating that the sample contained 134 plus or minus 6 mg of alcohol per 100 ml of blood.
The proposed appeal
Mr Sullivan seeks leave to appeal the decision on two grounds relating to the admissibility of the blood test results. Both grounds were raised and rejected in the Courts below.
In order to obtain leave to appeal to this Court, Mr Sullivan must persuade us that the proposed appeal involves a matter of general or public importance or that a miscarriage of justice has occurred or may occur unless the appeal is heard.[4]
Ten minute period
[4]Criminal Procedure Act 2011, s 237(2).
The first proposed ground concerns the 10 minute election period and compliance with s 70A. Mr Sullivan wishes to argue that on the evidence there is too much uncertainty about when the 10 minute period began, was suspended and ended. And that as a result his right to an uncluttered election was or may have been compromised.
Mr Sullivan further wishes to argue there was non-compliance with s 70A because he was not under direct supervision or observation when he went to his car and therefore ceased to be detained. In his submission, this raises the general issue of whether s 70A permits “discretionary detention”.
For the following reasons, we are not persuaded that these matters justify granting leave to appeal.
(a)This calculation of the 10 minute period is case specific and not of general importance.
(b)Both the District Court and the High Court found the election was made within 10 minutes.[5] The period was held to have begun at 22.26 but was immediately suspended because of discussions about contacting a lawyer and resumed only when Mr Sullivan returned to the police station. Leave is not usually granted where there are concurrent findings of fact.[6]
(c)Even if that concurrent finding of fact is wrong and the time period was longer than 10 minutes, there has been no prejudice to Mr Sullivan and thus no risk of a miscarriage.
(d)No issue of discretionary or non-discretionary detention arises. The interval between a positive breath test and the blood test election has been held by this Court to be a state of detention.[7] Further, and in any event whether Mr Sullivan was or was not detained would make no difference to the outcome.
The certificate of analysis
[5]DC decision, above n 1, at [24]; and HC decision, above n 2, at [31].
[6]O’Sullivan v R [2018] NZCA 201 at [24]; R (CA176/2016) v Police [2016] NZCA 403 at [26]; Butler v Police [2016] NZCA 27 at [3]; and Warren v R [2016] NZCA 108 at [30].
[7]Rae, above n 3, at [45]. See also Taueki v Police [2017] NZCA 113, [2017] 3 NZLR 179 regarding the meaning of custody when a police officer allowed a defendant arrested for being unlawfully in a building to drive a motor vehicle.
The certificate of analysis produced at trial recorded — as did the unchallenged blood specimen certificate prepared by the police officer — that the sample was taken from Struan Anthony Sullivan of 63 King Street Temuka. The blood specimen certificate was blank where ordinarily the occupation would be listed. The certificate of analysis recorded “Occupation Not Stated”.
Section 76 of the Land Transport Act creates a presumption that the specimen was taken from the defendant if the certificate names a person having the same name, address and occupation as the defendant. Mr Sullivan argues that the failure to provide an occupation means the sample is unable to be attributed to him.
In the High Court, Davidson J rejected that argument, invoking s 64(2) of the Act. Section 64(2) prevents a defendant from relying on non-compliance with certain provisions of the Act as a defence if there has been reasonable compliance with the provision in question. The Judge found there had been reasonable compliance and accordingly any defect in the certificate was cured.[8]
[8]HC decision, above n 2, at [45]–[46].
On appeal, Mr Sullivan wishes to argue that the curative powers of s 64(2) were not available to the Judge because, in contrast to the position that pertained under the previous Transport Act 1962, s 76 is no longer one of the provisions specified in s 64(2).
We accept that the issue of what significance (if any) should attach to the exclusion of s 76 from s 64(2) is a general issue and not case specific. However, the answer has already been provided by a High Court decision, Moore v Police dating back to 2009.[9] In Moore, Keane J pointed out that the presumption in s 76 relates to a certificate given under s 75 and that s 75 is expressly covered by the reasonable compliance provision. Therefore, any deficiency in the certificate was capable of being cured by the reasonable compliance provision. It followed that nothing turns on the omission of s 76 from s 64(2). It was simply unnecessary to list s 76 as well as s 75.[10]
[9]Moore v Police HC Tauranga CRI-2008-470-35, 10 June 2009; and see similarly Byrman v Police [2008] DCR 241 (HC) at [18]–[21].
[10]Moore, above n 9, at [49]–[50].
We are not persuaded the reasoning in Moore requires revisiting. As the High Court Judge in this case observed, it gives a straightforward construction to the words of the statute and accords with the underlying policy that defendants should not escape convictions for drink driving on unmeritorious technicalities.[11]
Outcome
[11]HC decision, above n 2, at [45]–[46].
In our view, none of the arguments which Mr Sullivan seeks to advance on appeal meets the test for granting leave.
The application for leave to appeal is accordingly declined.
Solicitors:
Quentin Hix Legal, Timaru for Applicant
Crown Law Office, Wellington for Respondent
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