Sullivan v Police

[2018] NZHC 397

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE TIHI-Ō-MARU ROHE

CRI-2017-476-000014 [2018] NZHC 397

STRUAN ANTHONY SULLIVAN

v

NEW ZEALAND POLICE

Hearing:	23 February 2018
Appearances:	T Jackson for Appellant A R McRae for Respondent
Judgment:	12 March 2018

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1]      Mr Sullivan was convicted on one charge of driving with excess blood alcohol in the District Court on 3 October 2017.1   He appeals the conviction on the grounds

that the blood test on which he was convicted should not have been admitted as evidence.

Background

[2]      On 15 March 2017, Police stopped the vehicle driven by the appellant, and administered a breath alcohol test.  The result indicated he was over the limit, and he

1      Police v Sullivan [2017] NZDC 25905.

accompanied the officer to the station. His rights were read to him and he elected not to seek legal advice. An evidential breath test was then administered. On the officer’s evidence it started at 22:13, but the print out from the testing device recorded 22:12. At 22:19 the officer advised the appellant the test was positive.

[3]      The officer then advised the appellant that he had 10 minutes in which he could elect to have a blood test.  According to the officer, at 22:23 the appellant refused to sign the record that he had been so advised.  His rights were repeated and he elected to speak to a lawyer.  At 22:26 he again refused to sign the acknowledgment that he had been advised of his rights.  Mr Sullivan had contact details of his lawyer in his vehicle.   The officer agreed he could  get them, but said he must return within

10 minutes if he wanted to have a blood sample taken.   According to the officer the appellant left the station at 22:34, and the 10 minute period began again.

[4]      At 22:59 the defendant returned and asked for a second evidential breath test to be taken. When this was declined, he asked for a blood sample to be taken. At 23:05 the officer again read him his rights, and took the appellant to hospital for the sample to be taken.

[5]      The officer couriered the sample to ESR, the customer portion of the tracking label reading E20-76614465.   The Certificate of Analysis dated 20 March 2017 certifies that the blood sample delivered by NZ Couriers 2TDAE20 7661446527, taken from Struan Anthony Sullivan of 63 King Street Temuka, occupation not stated, contained 134 plus or minus 6 milligrams of alcohol per 100 millilitres of blood.

District Court decision

[6]      Before  Judge  Maze,  it  was  argued  on  Mr  Sullivan’s  behalf  that  the discrepancies between the customer tracking label and the certificate, and the failure to include the appellant’s occupation, amounts to sufficient ‘proof to the contrary’ under ss 75 and 76 of the Land Transport Act (“the Act”) to render the certificate without evidential value.    It was also argued that the evidence failed to prove the election to have a blood test was made within the 10 minute period, and that the defendant understood his rights in that respect.

[7]      As to the first ground, Her Honour summarised the relevant sections of the Act. Section 75(1) provides that the certificate is sufficient evidence, in the absence of proof to the contrary, of the matters stated in the certificate.  Section 76(1)(a) also provides that “in the absence of proof to the contrary” if the certificate under s 75 lists the same name, address and occupation of the person who supplied the blood sample as given by the defendant, it is presumed that specimen was taken from the defendant.

[8]      Section 64(2) (“the reasonable compliance provision”) says that it is no defence that a provision within ss 68-75A has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as do apply.  As the Judge observed, the Court of Appeal in Coltman v Ministry of Transport held the reasonable compliance provision can apply if there is a mistake in the certificate.2

[9]      The Judge said the phrase “in the absence of proof to the contrary” means a defendant must prove on the balance of probabilities that the certificate contains an error (for s 75) or that the nominated supplier of the blood sample was not the defendant (for s 76).

[10]     The Judge accepted that “occupation not stated” on the certificate was a failure to state the occupation of the provider of the blood sample for the purposes of s 76. However, Her Honour noted the failure conforms exactly with the blood specimen medical certificate prepared by the police officer, the admissibility of which was not challenged. Given the match between these two documents the Judge was satisfied that the description referred to the appellant. The appellant had not established on the balance of probabilities that someone else probably supplied the blood sample analysed in the s 75 certificate and as such the sample was presumed to be from

Mr Sullivan.  In any event, the Judge was satisfied that the letters and numbers in common in the respective references meant that the defendant had not established on the balance of probabilities that ESR wrongly attributed the sample to him in the

certificate.

2      Coltman v Ministry of Transport [1979] 1 NZLR 330 (CA).

[11]     On the second ground, the Judge set out the relevant sections of the Act. Section 70A states that anyone who has undergone an evidential breath test with a result over 400 micrograms of alcohol per litre of breath may, within 10 minutes of being advised of that result, elect to have a blood test undertaken.  As Mr Sullivan’s result was over 400 micrograms of alcohol per litre of breath, he was entitled to request a blood test.

[12]     The Judge observed that if Mr Sullivan’s submission is correct, and the blood test result is inadmissible because he failed to elect a blood test within the 10 minute period, the evidential breath test would then become admissible. That is because s 77 only renders the breath test inadmissible if the election is made within the 10 minutes. His Honour commented that “the normal course of events” should the blood test be rendered inadmissible would be for the charge to be “amended to conform with the admissible   evidence”,   that   is,   be   amended   to   a   breath-alcohol   rather   than blood-alcohol charge.

[13]     Putting that to one side, the Judge considered the submission of the prosecution that the reasonable compliance provision applies to the 10 minute period, and that any reasonable time taken in consulting and instructing a solicitor must not be counted within the 10 minute period.

[14]     The Judge found as fact that the officer began the 10 minute period at 22:26, but as a result of attempts to contact a lawyer the “clock” was stopped almost immediately. The officer considered the 10 minute period started again as 22:34.  By law reasonable time taken to consult a lawyer does not count towards the 10 minutes. The  Judge  “inferred  as  the  only  reasonable  conclusion  on  the  evidence”  that

Mr Sullivan did return to his vehicle and contact a lawyer, and returned at 22:59. That was a reasonable amount of time, and thus the 10 minute period started again, and his election then to have a blood test was within the 10 minutes allowed.

[15]     The Judge also held, following Auckland CC v Adam, that a police officer has a  discretion  to  allow  longer  than  the  10  minute  period  and,  provided  there has otherwise been reasonable compliance in all the circumstances, the positive blood

test can found a prosecution.3    Even if the amount of time engaging, or trying to engage, with the lawyer was unreasonable and the 10 minute period exceeded, the officer could still have agreed to allow the test be taken at the request of the appellant.

[16]     The Judge said that there had been no breach of the defendant’s rights, and there was no prejudice or disadvantage to him in the blood test being taken.  Finally, given the number of times his rights were repeated and evidence of the appellant’s actions at the time, the submission that he did not understand his rights was roundly rejected.

Jurisdiction and approach to appeal

[17]     Mr Sullivan appeals as of right.4   As an appeal against conviction, the Court must allow the appeal if it finds that the Judge erred in assessing the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason.5    Miscarriage of justice is defined in the Criminal Procedure Act 2011 as any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.6

[18]     The appeal proceeds by way of rehearing, and the Court on appeal must examine the Judge’s reasoning and come to its own decision on the facts.7

Grounds of Appeal

[19]     Mr Sullivan advances five grounds of appeal.  They are summarised for this judgment in three discrete arguments:

(a)       The appellant’s evidential breath test result was inadmissible by virtue of s 77 of the Act.

3      Auckland CC v Adam [1981] 2 NZLR 352 (CA).

4      Criminal Procedure Act 2011, s 229.

5      Criminal Procedure Act, s 232(2).

6      Section 232(4).

7      R v Slavich [2009] NZCA 188.

(b)The  appellant’s  right  to  make  an  election  pursuant  to  s  70A was breached in a way which could not be said to have been reasonably compliant in terms of s 64(2). Accordingly, the blood test result was inadmissible.

(c)      The ESR certificate was defective such that it cannot be presumed to be proof of the appellant’s blood alcohol level.

Ground (a) – admissibility of breath test result

[20]     As Mr McRae for the respondent submits, this ground is not relevant to the determination of this appeal.  The Judge’s comments on admissibility of the breath alcohol test were obiter dicta, and the appellant was convicted of excess blood alcohol. If the appeal is allowed, that may be relevant to whether this Court should order a retrial, but in light of my findings on the other grounds of appeal, it is unnecessary to say more.

Ground (b) – right to make election/admissibility of blood test result

Submissions

[21]     Mr Jackson for the appellant submits it is “difficult, if not impossible, to conclude from the evidence when the 10 minute period began, was suspended and ended, its exact duration”.  He says it cannot be the case that there was compliance with s 70A, and the issue is compounded by the failure of the officer to maintain the appellant’s detention for the duration of any 10 minute period.

[22]     He says the evidence was “consistent with the officer having taken the view that the process was complete, the appellant had left and may or may not return, and the appellant, upon his return, having been required to knock at the locked back door of the Police Station to gain access”.  He says that Rae v Police is authority that the officer was obliged to enforce the detention.8

[23]     Given that the appellant asked for another breath test on returning from the

20 minute break, Mr Jackson submits the Court cannot be confident Mr Sullivan understood his rights or had a reasonable opportunity to get advice.  On that point

Mr Jackson  challenges  the  Judge’s  inference  from  the  facts  that  advice  was successfully sought during that period.

[24]     He  submits  that  “on  any  analysis  the  election  process  was  “wholly non-compliant and wide of any reasonable margin” for the reasonable compliance provision to apply.  He says “it cannot be the case that reasonable compliance will, in all cases,  cure  fundamental  failures  where those  failures  do  or may result  in  a compromise to the appellant’s statutory right to make a considered election about submitting to a blood test”.

[25]     Mr McRae submits, to the contrary, that the factual circumstances “clearly disclosed the start of the 10 minute period and when that period was stopped”.  All other aspects of the excess blood alcohol procedure were correctly followed, and as such the evidence was admissible and there was no miscarriage of justice.

Analysis

[26]     In De Jong v Police the appellant was advised of his rights and the 10 minute period commenced.9   When it ended he still had not sought legal advice, and had not advised whether he elected a blood test.  13 minutes after the start of the 10 minute period, the appellant sought legal advice. 26 minutes after the 10 minute period began, the appellant elected a blood test. At trial and on appeal the appellant argued that non-compliance  with  the  10 minute  period  meant  the  blood  test  results  were inadmissible.

[27]     Wild J rejected that argument.  Referring to Kaisuva v Police,10  His Honour said:

[13]      The focus in Kaisuva was on the interruption to the 10-minute period. The case establishes the principle, since widely followed, that a suspect is entitled to an uninterrupted 10-minute period in which to make a decision as

9      De Jong v Police (2000) 18 CRNZ 128 (HC).

10     Kaisuva v Police (1993) 11 CRNZ 151 (HC).

to whether or not to request a blood test. If the period is interrupted, for example in order to enable the suspect to obtain legal advice, then the “clock” must be stopped while advice is taken, and started again once advice has been obtained.

[28]     In other words, the “suspect” must be advised his or her rights and then

10 minutes allowed for the decision to be advised. That period is for decision making, and does not include trying to get, or taking legal advice.

[29]     The Judge extended that principle to the circumstances in that case where the

10 minute period had entirely elapsed before advice was sought. When the time taken to consult a lawyer was excluded from the calculation, there had only been a three minute delay, which was reasonable compliance.

[30]     I agree with Judge Maze that the time in which the appellant was allowed to go to his car to try and contact his lawyer was reasonable, and as a result that period should be excluded from the 10 minute period. Like the Judge, I am of the view that the best inference from the evidence is that Mr Sullivan did contact his lawyer during that period.  However even if he did not, that was still a reasonable period to give him the opportunity to take advice.

[31]     When that period is taken out of the calculations, the election was made within the 10 minute period.   Even if it had not been, and there had been a delay of several minutes after the 10 minutes was up, the Police could, at their discretion, take the sample  after  that  time  period.    The  Court  must  bear  in  mind  the  purpose  of the 10 minute period. As this Court said in Leota v Police:11

it has long since been recognised that the 10-minute reflection period is designed to ensure that a suspect has a reasonable and uncluttered period of time in which to consider whether to progress to the blood test stage. That right has assumed even greater importance in recent years because (as the Supreme Court noted in Aylwin v Police), a blood test is now the only way that a person may be able later to contest the correctness of an evidential breath test.

[32]     Rarely there  will  be  any  prejudice  to  a  defendant  who  is  allowed  more

“uncluttered” time in which to consider their choice. In fact, the opposite is true, as

the alcohol in the blood if anything slowly reduces rather than increases and the defendant gets more time to work through the options.

[33]     Nor can it be said there was any error in the Police not waiting for the remainder  of the  10 minutes  after Mr Sullivan  returned.   As Wylie J  observed, dismissing an appeal:12

an election can be made at any time within the 10 minute period. The Act does not require that an appellant be given the full 10 minutes, or the remainder of any 10 minute period to consider his or her position once he or she has made the election.

[34]     The submission based on Rae v Police that allowing Mr Sullivan to leave the station meant Police forfeited the ability to obtain a blood test must also fail.  That case is authority that the Police are entitled to continue the detention throughout the testing process; a detainee cannot unilaterally decide to leave as soon as the election is made.  That is not to say that the Police cannot permit a detainee to temporarily leave and go to a car park, as here, for the purpose of obtaining legal advice.  In these circumstances that was reasonable and caused no prejudice to Mr Sullivan.

[35]     I reject the submission that the legislation requires the Police to hold and observe the defendant in detention in the period within which the 10 minutes is calculated. There is no suggestion Mr Sullivan consumed more alcohol when he went to his car, but if he had, that would count against him. Mr Jackson said the 10 minutes allowed, or any extension, should be “under observation” but nothing on the facts suggests there is any consequence of Mr Sullivan being allowed to go to his car unaccompanied.

[36]     Nor am I persuaded that Mr Sullivan did not understand his rights.  His rights were read to him three times, and he clearly understood the right to counsel enough to request to fetch his lawyer’s details from his vehicle. He was advised of his right to a blood test within the timeframe, and nothing on the facts suggests his agreement in the end to undertake a blood test was made under any misapprehension as to what that meant.

Ground (c) – ESR certificate deficiencies

Submissions

[37]     Mr Jackson submits the ESR certificate is deficient in two material respects: it fails to record the appellant’s occupation, and the reference number and letters in it do not correspond to the letters and numbers in the Police record or Courier tracking document.

[38]     He  says  that  the  Judge  misapplied  the  presumptions  in  ss  75  and  76. Section 75, he says, means that unless proved to the contrary, the certificate can be “taken as read”.  The appellant takes no issue with that.  Section 76(1)(a) says the certificate is presumed to be that of the defendant, provided it refers to a person of the same name, address, and occupation as the person from whom the specimen of blood was taken.   The s 64(2) reasonable compliance provision does not apply

to s 76.

[39]     Mr Jackson says Judge Maze’s reasoning, that the “occupation not stated” on the ESR certificate was consistent with the lack of an occupation stated in the medical certificate, and thus that there had been reasonable compliance, was incorrect. He says the case relied on by the Judge, Coltman v MOT, was under s 58B(9) of the Transport Act 1962, which was subject to a reasonable compliance section.  He submits that the exclusion  of s  76  from  the  reasonable  compliance provisions  under  the current legislation means the presumption cannot apply unless all three particulars, including occupation, are correctly stated.

[40]     Mr Jackson says that because the records did not match on this point, there was no presumption. Add in the discrepancy with the tracking number and the Judge could not have been reasonably satisfied on the evidence that the specimen was taken from the appellant.

[41]     Mr McRae simply says that the ESR certificate can be presumed to be proof of its contents and the only reasonable inference on the evidence was that it was the sample taken from the appellant.

Analysis

[42]     Under the Transport Act 1962 the case law was clear that an error such as in this case, where the occupation was omitted from the certificate, could be remedied by reference to the reasonable compliance provision. Thus, in Coltman, the omission of the defendant’s address did not rebut the presumption because the certificate correctly recorded his name and occupation and as such there was reasonable compliance.   Even more on point, in Quinn v MOT a form which included the defendant’s name and address but no occupation was reasonably compliant.13

[43]     However, Mr Jackson’s argument is that under the present legislation, the exclusion of s 76 from the reasonable compliance provision means these authorities no longer have application.

[44]     This argument has been made in this Court on a previous occasion, and was rejected. In Moore v Police, there was an error on the certificate.14 Mr Moore’s street address was recorded with the wrong house number, and that was inconsistent with the traffic offence notice filled out by the Police. The submission made was that Coltman did not apply because of the exclusion of s 76 from the reasonable compliance provision in the current legislation. The Judge addressed the argument as follows:

[48]     Mr Nabney's final point is, however, that since these cases were decided the ability to cure any inaccuracy in name or address, going to the identity of the person named in the certificate, and the related presumptions, has been taken away. Section 64(2), that now gives the remedy of reasonable compliance, does not apply to s 76. That is literally true but it is without significance. The answer lies in this.

[49]      Originally  s  75(1),  (2)(a)  were  to  be  found  in  s  58G(1)(a),  and s 76(1)(a)  was  to  be  found  in  s  58G(3)(a).  The  reasonable  compliance provision, s 58I, by referring to s 58G happened to capture both. But it did not need to do so. The presumptions in s 76, linking the defendant to the analysis made, come into play as a result of the certificates given under s 75. If the certificates prove invalid then the s 76 presumptions are rendered devoid of force. But if any deficiency in a s 75 certificate is cured by s 64(2) the presumptions revive.

[50]      There was never any need, therefore, for the curative power now given by s 64(2) to apply to the presumptions now set out in s 76. Indeed it could

13     Quinn v MOT HC Wellington M176/81, 27 November 1984.

14     Moore v Police HC Tauranga CRI-2008-470-35, 26 May 2009.

not  do  so.  Section  76  imposes  no  duty  to  which  s  64(2)  could  attach. Section 64(2) rightly makes no reference to it.

[45]     I respectfully agree with this reasoning. The exclusion of s 76 from the reasonable compliance provision is of no import. That section can cure the defective certificate issued under s 75, and thus the presumption under s 76 will still apply. That approach gives a straightforward construction to the words of the statute and fits with the broader scheme of the Act which in general made it more difficult for a defendant to  escape  conviction  on  a  technical  point.     As  the  Supreme  Court  said  in Aylwin v Police:15

[17]      Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable. The great majority of drivers comply with their obligations in this respect. A small minority do not. Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences. The Courts must give full effect to that clear Parliamentary indication.

[46]     This is such a case, where the appellant has brought the appeal on technical and unmeritorious grounds. On the whole, the Police and medical practitioners involved complied with the provisions of the Act, and there is no doubt or prejudice arising from the omission of the appellant’s occupation on the certificate.

Conclusion

[47]     The appeal is dismissed.

……………………………………….

Nicholas Davidson J

Solicitors:

Gresson Dorman & Co., Timaru

Quentin Hix Legal Limited, Timaru

15     Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.