Taghipouran v Police

[2012] NZHC 2001

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000112 [2012] NZHC 2001

NASIM TAGHIPOURAN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 August 2012

Counsel:         O Hintze for Appellant

J Wall for Respondent

Judgment:      7 August 2012

JUDGMENT OF ASHER J

Solicitors/Counsel:

O Hintz, PO Box 38 474, Howick, Auckland. Email:  [email protected]

Crown Solicitor, DX CP24063, Auckland 1140. Email:  [email protected]

TAGHIPOURAN V NZ POLICE HC AK CRI-2012-404-000112 [7 August 2012]

[1]      On 17 July 2011 at 3.35am the appellant Nasim Taghipouran was stopped by Police on City Road in Auckland.  She underwent a passive breath test which proved to be positive.   She then undertook a breath screening test which again proved positive.     She  accompanied  Sergeant  Nelson  to  the  Police  Station  and  there undertook an evidential breath test.  The test returned a level of 486 micrograms of alcohol per litre of breath.  Before and after giving the test she spoke to her lawyer.

[2]      She was charged with driving with excess breath alcohol under s 56(1) of the

Land Transport Act 1998.  She defended the charge and it was heard on 27 March

2012.  Judge Treston convicted her and sentenced her to a fine of $700 with a six month disqualification from driving.

[3]      In the written submissions three grounds of appeal emerge.  First, it is argued that the Judge should have excluded the evidential breath test on the basis of unfairness according to s 30(4) of the Evidence Act 2006.  Second, that the Judge erred in concluding that Ms Taghipouran did not elect to give blood within the 10 minute  period.   Third,  that  the  Judge  made  an  error  in  his  judgment  when  he observed that a certain point raised in support of Ms Taghipouran’s case was not put to the police officer during cross-examination.

[4]      Mr Hintze appeared in support and fairly explained that the primary ground for appeal that he had hoped to put forward, which was to be based on new evidence about what the lawyer had advised Ms Taghipouran, had not become available and as a  consequence  he  was  somewhat  hamstrung  in  supporting  the  appeal.     He nevertheless advised that his instructions were to proceed with the appeal, although he did not elaborate on his written submissions.  It is necessary for me to consider the submissions made, albeit in the circumstances somewhat more briefly than I might otherwise do.

[5]      Both Sergeant Nelson and Ms Taghipouran gave evidence.  A clear sequence of events can be discerned from the evidence.  It is convenient to set out by times for the avoidance of confusion:

3.55am                Rights read and signed by Ms Taghipouran.

3.57 – 4.25am     Ms Taghipouran spoke to a lawyer by telephone.

4.25 – 4.30am     Ms Taghipouran used the bathroom.

4.31 – 4.32am     Ms Taghipouran undertook an evidential breath test.

4.36am               Sergeant  Nelson  advised  Ms  Taghipouran  that  the  test returned a level of 486 micrograms of alcohol per litre of breath; exceeding the 400 micrograms limit.

4.39am               Sergeant Nelson commenced reading to Ms Taghipouran the document headed “Advice of positive evidential breath test”.  This involved him setting out for Ms Taghipouran her rights under s 77(3)(a) of the Land Transport Act.

4.40am               When Sergeant Nelson came to advise Ms Taghipouran under the Bill of Rights Act of her right to consult a lawyer she stated that she wished to consult a lawyer (this being for the second time).   He therefore asked her to sign the first part of the form which she did at 4.40am.

4.40am                At  this  point  Ms  Taghipouran  rang  her  lawyer  for  the second time and spoke to him until 4.59am.

5.00am               Ms Taghipouran having finished her phone call, Sergeant Nelson explained to her that the 10 minute timeframe that had been referred to under s 77(3)(a) now commenced.

5.01 – 5.04am     Ms Taghipouran used the bathroom.

5.14am                Ms Taghipouran was informed by Sergeant Nelson that the timeframe had come to an end.

5.15– 5.16am     Ms Taghipouran requested that a blood sample be taken (the evidence being that she made this request “one or two minutes” after she had been informed the 10 minute timeframe had ended).

[6]      Ms  Taghipouran  gave  evidence  that  she  requested  a  blood  test  on  four occasions. These being:

(a)       After her first conversation with her lawyer.

(b)      After her second conversation with her lawyer.

(c)       Immediately after Sergeant Nelson told her that the 10 minute period had begun.

(d)      At the conclusion of the 10 minute period at 5.15 or 5.16am.

Ms Taghipouran also claimed that Sergeant Nelson was not in the room for the entire

14 minute period between the advice of the commencement of the period, and the advice that it was over.   She stated that when she returned from the bathroom at

5.04am he did not return until the end of the 14 minute period.

[7]      Sergeant Nelson did not agree with these points when they were put to him. He gave evidence that at no stage did she make a request to give a blood sample prior to and during the 10 minute period.  He agreed that she did make a request after he had told her that the 10 minute period had expired.

The decision

[8]      Judge Treston had observed that the sole issue for determination was whether Ms Taghipouran had made a valid request for a blood test during the 10 minute period.    He  approached  the  case  on  a  credibility basis.    He  concluded  that  he preferred Sergeant Nelson’s evidence and noted a number of points that supported this conclusion.  I do not propose setting these out in detail or analysing as they have not been the subject of any particular submission.

[9]      The Judge had no doubt that if Ms Taghipouran had requested a blood test that   Sergeant   Nelson   would   have   made   a   note   of   this.      He   noted   that Ms Taghipouran’s version of events lacked specific detail and surprisingly she did

not recall the name of the lawyer she had telephoned.  He thought her recall would have been clouded by the alcohol that was shown to be in her system.

Did Ms Taghipouran elect to give blood?

[10]     A reading  of  Sergeant  Nelson’s  evidence  shows  that  it  was  given  in  a straightforward manner without contradiction.   Ms Taghipouran’s evidence, in contrast, contained the elements already referred to indicating a lack of complete recall.   The impression given is that the Sergeant was an experienced and careful officer endeavouring to meet his duties.  I agree with the Judge it could be expected that he would have noted any request for a blood test by Ms Taghipouran.

[11]     I consider that the conclusion that Sergeant Nelson’s evidence was credible was entirely open to the Judge.   Indeed, it appears to me to have been the right conclusion.  There was no request to give a blood sample.  There was therefore no basis on which to exclude her evidence for unfairness reasons under s 30(4) of the Evidence Act.

[12]     In the written submissions there was also some criticism of the officer’s refusal to extend the 10 minute period when after 14 minutes Ms Taghipouran stated that she now wished to give a blood test.

[13]     This  is  not  a  sound  ground  of  appeal  and  was  not  pursued  in  oral submissions.  While an officer has a discretion to extend the 10 minute period once that period has expired and the window of opportunity to elect a blood test is lost, an officer is not bound to extend the period on request.[1]

The cross-examination point

[1] Auckland City Council v Adam [1981] 2 NZLR 352 at 353.

[14]     The relevant extract from the judgment that sets out the Judge’s observation about cross-examination is as follows:[2]

[2] Police v Taghipouran DC Auckland CRI-2011-004-20253 at [5] and [6].

She said that she also repeated that after she had spoken to the lawyer on the second occasion because she again spoke to the lawyer from 4.40 am until

4.59 am and she also, in evidence, said that she had requested a blood test immediately after the officer had told her that the 10 minute period had

begun.

Significantly, that was never put to the officer for his comment, but in any event, she said that the officer had not been in the room the whole time when the 14 minute period, as it transpired, took place and that another officer had spoken with her during that period as well.

[15]     The  Judge  is  not  saying  that  it  was  never  put  to  the  officer  that Ms Taghipouran had requested a blood test.  Rather, the Judge is commenting that it was not put to her specifically that she had requested a blood test immediately after the officer had told her that the 10 minute period had begun.   A reading of the evidence shows that this was an entirely accurate observation by the Judge.  No such question was put.  The questions were rather general questions about the blood test or directed to other times.

[16]     I also comment this point does not appear to have been given any particular weight by the Judge, but was rather a matter of observation.  He goes on to state “... but in any event ...” and then to recount what she said.  An overall reading of the judgment does not show that it influenced the Judge’s decision.

Result

[17]     As I have already said, there was ample material before the Judge for him to conclude in any event that the Sergeant’s evidence was to be preferred to that of Ms Taghipouran. The grounds of appeal have not been made out.

[18]     The appeal is dismissed.

……………………………..

Asher J