T v Police HC Whangarei CRI 2007-488-72

[2008] NZHC 651

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2007-488-72

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 May 2008

Appearances: G Anson for Appellant

A L Hyndman for Respondent

Judgment:      7 May 2008

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Auckland

T  V POLICE HC WHA CRI 2007-488-72  7 May 2008

[1 T   stands convicted of driving on 2 February 2007 at Moerewa with an excess breath alcohol level. That level was 782 micrograms per litre of breath. The offence is in the aggravated category that he has at least twice before offended in that way. He was sentenced to 300 hours community work and disqualified for 14 months.

[2]      Mr T   appeals his conviction on the single basis that the Judge was wrong to hold admissible the positive excess breath alcohol reading.

[3]      Firstly, the Judge was wrong, Mr T   contends, to conclude that he was allowed the ten minutes accorded him by s 70A(1) of the Land Transport Act 1998 within which to elect whether to have a blood test. The time he was allowed was less than that and the breath test result is rendered inadmissible by s 77(3)(b). Secondly, Mr T   contends, the Judge was wrong to conclude that if he was allowed less than ten minutes, that was capable of being excused under s 64(2) on the basis of reasonable compliance. That latter ground, his counsel accepts, however, may no longer be able to be advanced in this Court.

[4]      The appeal proceeds on the facts as found by the Judge, both generally and on the very point of the appeal.

Hearing

[5]      On 1 January 2007 at 2.05 am, the Judge found, Mr T   was stopped on State Highway 1, Moerewa. He underwent a passive breath test and then, at 2.09 am, a breath screening test. The result was ‘fail general’ and at 2.11 am he was required to go to the Kawakawa Police Station, cautioned and advised of his right to advice.

[6]      At the police station he was again cautioned and advised of his right to advice.  He  was  required  to  undergo  an  evidential  breath  test.  That  test  was completed at 2.36 am. It was positive and resulted in a reading of 782 micrograms of alcohol per litre of breath. The constable then completed the positive evidential breath test form, which he read to Mr T   before having him sign it. This form

informed Mr T   that he had ten minutes within which to elect a blood test and that if he did not make that election the breath test result could be conclusive.

[7]      This took until 2.44 am. The constable then advised Mr T   a third time of his right to advice, completing a second time the advice form customarily used. That took, the Judge found, until 2.46 am. The constable concluded the ten minute period at 2.56 am.

[8]      Mr  T  ’s  defence  was  that  the  evidential  breath  test  result  was inadmissible against him because he had not been given ten minutes within which to elect a blood test. The two minute period, between 0244 – 0246 am, he contended, ought to be excluded. Also, he contended, the time he was given was interrupted by the constable raising with him an issue involving his ex partner.

[9]      The Judge concluded that Mr T   had been allowed between 10.44 am –

10.56 am, between 11 and 12 minutes, to decide whether to elect a blood test. The

Judge allowed a minute’s latitude because the timings may not have been exact.

[10]     Within that period, the Judge held, the reiterated advice of the right to advice between 2.44 – 2.46 am and any discussion relating to Mr T  ’s former partner, to which he ascribed 30 seconds, were very minor interruptions. They did not adversely affect Mr T  ’s ability to make his decision within the time prescribed. The Judge found that there had been no undue interruption to the ten minute period.

[11]     Alternatively, the Judge concluded, if the two minutes between 2.44 – 2.46 were excluded the time allowed Mr T   to elect a blood test, between 2.46 –

2.56 am, nine or ten minutes, sufficed. Any non-compliance, the Judge held, was minimal. Mr T   was unprejudiced. Any loss of time ought to be excused under s

64(2) on the basis of reasonable compliance.

Ten minute period

[12]     In  advancing  the  primary  point  taken  appeal  for  Mr  T  ,  Mr  Anson submits, the Judge melded two separate defence submissions. One was that the

period allowed, whatever that may have been, had been interrupted. In that he was referring to the time taken to discuss Mr T  ’s ex-partner. The other, the point of this appeal, was that as to the actual length of the period allowed. It could not have begun, Mr Anson then contended, until 2.46 am. Relying then, as he does now, on Rae v Police [2000] 3 NZLR 452, CA, the two minute period between 2.44 –

2.46 am, he argued, ought to be excluded.

[13]     The Judge, Mr Anson points out, did not refer to Rae v Police. Instead the Judge relied on authorities that went to whether the ten minute period had been unduly interrupted. In this, Mr Anson submits, the Judge applied a different test and as to this separate question the wrong test.

[14]     That question, however it is framed, is to be resolved, counsel agree, against two majority statements made in Rae v Police, the first of which, at paragraph [53], can be understood as emphatically endorsing the need to accord a motorist ten interrupted minutes within which to consider whether to elect a blood test. Any exercise of the right to consult and instruct a lawyer, the Court held, ought to be excluded from that period.

[15] The second passage on which counsel for the police relies is at paragraph [59]. There, speaking of the need to facilitate the right to advice, the Court commended the police practice of repeating the full Bill of Rights advice at the beginning of the ten minute period even if the right had already been exercised. In this, counsel for the police contends, the majority countenanced what happened here.

[16]     I do not consider that paragraph [59] can be read in that literal way. To do so would be to cut across what the Court said in paragraph [53] about the need for the period to be uninterrupted. Conversely, I see no error in the Judge omitting to refer to that decision. Its focus was different. It was as to whether there is a continuing right  to  advice,  under  s 32(1)(b)  of  the  New  Zealand  Bill  of  Rights  Act  1990, throughout the procedure, and whether there had been a detention.

[17]     In paragraph [53] the majority did indeed endorse the need for the ten minute period to be uninterrupted but that was not its principal concern. That concern was to

ensure that any exercise of the right to advice, which the majority described as fundamental, was not eroded by being compressed within the ten minute period. And the Judge was fully alive to the need, however he framed it, for the ten minute period to be substantially uninterrupted.

[18]     Relying on  Lawrence  v  Ministry  of  Transport  [1982] 1 NZLR 219, and decisions of this Court, the Judge held that the ten minute period must be given without any undue interruption and that if there is an interruption its extent must be assessed with care. And that is what he did, when considering the effect of the reiteration of the right to advice and the extraneous discussion. The Judge concluded that within the span 2.44 – 2.56 am, eleven or twelve minutes, both were very minor interruptions.

[19]     The Judge did not stop there. He then made a finding that answers this point on the appeal. He excluded the two minutes, 2.44 – 2.56 am, from the calculation. He found that if that were excluded Mr T   would have had in all likelihood less than ten minutes, perhaps as little as nine minutes, to consider his election.

[20]     In this I consider the Judge was right. Two minutes, devoted to the right to advice, cannot have assisted Mr T   to decide whether or not to elect a blood test. To that issue it was a distraction. The judge was then obliged, as he did, to consider whether a period slightly less than ten minutes, conceivably nine minutes, could be excused under s 64(2).

Reasonable compliance

[21]     In concluding that any such non-compliance could be excused the Judge’s decision, to  my mind, is unassailable. In Police v Tolich; Police v Hunt CA 119/03, CA 120/03, 3 July 2003 the Court concluded, at paragraphs [21] – [22], that in 2001 the s 77(3) stipulation was brought deliberately within the remedial scope of s 64(2). That s 77(3) is expressed in terms of admissibility, the Court held, made no difference.

[22]     On this appeal Mr Anson contends that this statement was not essential to the Court’s decision. Section 77(3) was not in issue, nor was it apparently the subject of argument. He asks me to note his submission that s 64(2) is inapt to resolve a question of admissibility.

[23]     What the Court of Appeal said, however, is emphatic and clear and it is not for me to depart from it. The Judge was, I conclude, entitled, as he did, to apply s 64(2). Nor can his conclusion be questioned as unreasonable. He made no error in

entering the conviction he did. The appeal will be dismissed.

P.J. Keane  J