Talwar v New Zealand Police

[2013] NZHC 315

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-391 [2013] NZHC 315

BETWEEN  PRAVEEN TALWAR Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         11 February 2013

Counsel:         RD Mulgan and A Simpson (on instructions from P Winkler) for

Appellant
B Hamlin for Respondent

Judgment:      26 February 2013

JUDGMENT OF BREWER J

This judgment was delivered by me on 26 February 2013 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS/COUNSEL

Patrick Winkler (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

TALWAR V POLICE HC AK CRI-2012-404-391 [26 February 2013]

Introduction

[1]      The appellant appeals his conviction by Judge DA Burns in the District Court at Auckland on 8 October 2012.  The conviction was on a charge that the appellant drove a motor vehicle on a road while having excess breath alcohol.

[2]      The basis of the appeal is that the District Court Judge should have accepted a “no case to answer” submission made by Mr Mulgan on behalf of the appellant at the close of the prosecution case.  The Judge, in a reserved decision dated 23 April

2012, refused the submission.  Instead, at a further hearing on 26 September 2012, he permitted the prosecution to call further evidence.  The Judge then heard evidence from the appellant.

[3]      My task is to decide if the District Court Judge was right to refuse to acquit the  appellant  at  the  point  at  which  Mr Mulgan  made  the  “no  case  to  answer” submission.

[4]      An  appeal  against  conviction  proceeds  by way  of  rehearing,    In  Austin, Nichols & Co Ltd v Stichting Lodestar, Elias CJ said:1

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment.   If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[5]      I must, therefore, form my own view of the evidence.

The point at issue

[6]      Section 77(3) of the Land Transport Act 1998 (the Act) provides that the result of a positive evidential breath test is not admissible in evidence if the person

who underwent the test is not advised by an enforcement officer (without delay after

1      Austin, Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR 141 at [16].

the result of the test is ascertained) that the test was positive and what the consequences for the person will be if he does not request a blood test within

10 minutes.

[7]      This requirement is subject to s 64(2) of the Act.   Strict compliance is not required so long as there has been reasonable compliance with the provision in question.

[8]      In this case, a police officer gave evidence that he required the appellant to undergo an evidential breath test without delay at 3:40 am.   The appellant then underwent the test.  It gave a positive result of 560 micrograms of alcohol per litre of breath and the officer said that he informed the appellant of that result immediately after it was printed, and that was at 3:50 am.  Having handed the appellant a copy of the printed result from the testing device, the police officer said he read the form to him and explained about the 10 minute period to request a blood test.  The police officer said that he recorded the time he completed reading the advice as 3:56 am. That makes a total of 16 minutes.   The testing device, on its printout, records the

time at which the test started and the time at which the result was advised.2    The

duration from start to result was six minutes.   Therefore, the entire procedure according to the Police witness took 16 minutes of which six minutes was occupied by the actual test. The Defence submission was that 10 minutes were unexplained.

[9]      Mr Mulgan submitted to the District Court Judge that the unexplained delay in completing the advice was fatal on the accepted line of authorities.3

[10]     In summary, his argument was that s 77(3) required the Police to advise the appellant of the required information “without delay”.  Where a delay is apparent, the case law provides that the onus is on the prosecution to explain it in order for the reasonable compliance safeguard to operate.  In this case, there was an unexplained

delay of 10 minutes, this was on the case law an undue delay and accordingly the

2      There was, at the hearing, quite a lot made of a 10 minutes difference between the times recorded by the police officer and the times noted by the testing device.  The evidence of the police officer was that his watch was purposely kept 10 minutes fast.  There is nothing hanging on this.

3      Kavanagh v Police HC Christchurch CRI-2005-409-231, 27 February 2006; Ariki v Police

HC Auckland CRI-2007-404-000174, 6 November 2007; Wheeler v Police HC Auckland CRI-
2009-404-000150, 31 August 2009.

evidence of the evidential breath test could not be used in evidence against the appellant. There was, therefore, no case to answer.

The District Court Judge’s decision

[11]     The District Court Judge did not base his refusal of Mr Mulgan’s submission on the arguments raised by Mr Mulgan.  Instead, the Judge held that Mr Mulgan had breached his cross-examination duties under s 92 of the Evidence Act 2006:4

[16]     In  this  case  the  issue  of  delay  and  the  need  to  satisfy  the requirements of s 77(3)  of  the Act are clearly significant  matters in  the proceeding.  It is an issue which is relevant and an issue in the proceeding. The submissions that have been put asked the Court to draw a conclusion which contradicts the evidence of the witness and I find that the Sergeant could be expected to be in a position to give admissible evidence on the issue of delay and be able to provide an explanation for it had it been put to him.   Accordingly I find that the four conditions which are required to trigger s 92(1) have been established.

[12]     The District Court Judge went on to find that if the appellant elected to give evidence he would likely contradict the evidence of the police officer.  In the Judge’s view, s 92 required Mr Mulgan to cross-examine on significant points of what his client might say:5

[18]      In order to determine this issue I have to speculate to a degree as to what is the likely evidence that the defendant will give if called to give evidence.  This is difficult when of course he has not done so.  I conclude however that it is likely he will give evidence which is going to be contradictory to that of the Sergeant in relation to timing and in particular the amount of time that he took to leave the booze bus and urinate.  There also is likely to be contradictory evidence as to how long it took for the form to be read out.  It is possible that he will not contradict the timing set out in the form but the very fact that his counsel has raised this as a significant issue on a submission of no case to answer I can only include (sic) on the basis of probability that it is likely that the issue of delay will be squarely the subject of contradictory evidence.   Because of that it should have been put to the Sergeant in a straightforward and fair manner and he given a full opportunity to give evidence and reply and provide an explanation in the event that he is able to.

[19]      I accept that s 92 does not impose a duty of cross-examination in general.  The authors of the text say that it does not grant parties the right to cross-examine that is not otherwise provided for under the Evidence

4      Police v Talwar DC Auckland CRI-2011-004-008871, 23 April 2012.

5      Ibid.

Act or some authorising law.  Clearly that is not applicable in this case and there was a clear duty on Mr Mulgan in this case.

[20]     The Court is entitled to the best evidence available to it.

[13]     Having found, on this basis, that there had been a breach by Mr Mulgan of his duty to cross-examine, the District Court Judge then considered the remedy available under s 92(2) of the Evidence Act and gave permission for the police officer to be recalled and questioned about “the contradictory evidence”.

The appellant’s submissions

[14]     Mr Mulgan submits that the crucial point is that the submission he made of no case to answer did not involve a dispute of facts.  The submission was advanced solely in reliance upon the prosecution evidence.  His argument is that it was for the prosecution  to  explain any delay apparent  on  the prosecution  evidence.    In  the absence of such explanation, the reasonable compliance shelter is not available to the prosecution.  The Defence was entitled to point out to the Judge that the statutory requirement of advice without delay has not, on the face of the prosecution evidence, been complied with. That should bring an end to the case.

[15]     In  Mr  Mulgan’s  submission,  the  District  Court  Judge  focused  on  the existence of a factual dispute and found that he was being asked to draw an adverse conclusion on the facts contrary to the evidence of the police officer.  That was not the case.  The submission was simply that on the face of the evidence there was no case to answer.

The respondent’s submissions

[16]     Mr Hamlin for the respondent relies on the Supreme Court decision of Aylwin v Police.6   In that case, the Supreme Court considered a challenge to a conviction for refusing to accompany an enforcement officer after failing a breath screening test and driving with excess breath alcohol.   The police officers involved had given

general evidence of their actions taken to comply with the breath testing legislation.

6      Aylwin v Police [2009] 2 NZLR 1; [2008] NZSC 113.

The point that the Supreme Court was called upon to decide was whether those general statements were sufficient to satisfy the onus on the prosecution or whether a more detailed explanation was required. The Supreme Court held:7

...  In  the  absence  of  challenge  by cross-examination  or  evidence  to  the contrary,  the  first  of  these  elements  could  simply  be  established  by the officer  saying  that  a  breath-screening  test  was  undertaken  by  a  driver. Where police officers in their evidence refer to a term which is defined in the Act, such as a “breath screening test”, they should be taken, in the absence of cross-examination about what they meant, to have been referring to the expression as defined, thereby incorporating the elements of the definition.

[17]     Mr Hamlin referred me to the evidence of the police officer where he was asked:8

Q.        Was there a result produced from the defendant using that device?

A.       Yes he gave a positive result of 560 micrograms per litre of breath, micrograms of alcohol per litre of breath.

Q.        And did you inform the defendant of that result?

A.        Yes  immediately  after  the  result  was  printed  I  informed  him  at

3.50 am of that result.

[18]     Mr Hamlin submits that on the Aylwin principle that answer disposes of the argument that there is on the face of the evidence delay.

[19]     Further,  in  the  Court  of Appeal’s  decision  in  R  v  Aylwin,9   the  test  for reasonable compliance is linked to correctness of result and risk of injustice:10

The test as to whether there has been reasonable compliance has been seen as involving the consideration of two questions, as set out in Soutar v MOT [1981] 1 NZLR 545 (CA), at p 550, and Aualiitia v MOT [1983] NZLR 727 (CA), at p 729. The first question is whether the extent of the non- compliance gives rise to a reasonable doubt about the correctness of the result. The second question is whether there is a risk of the defendant suffering injustice or unfairness. The need for this test to be applied liberally was reiterated by this Court in Shaw v Police 21/9/95, CA212/95. Accordingly, where the non-compliance does not create the possibility or likelihood of error, it should be saved by reasonable compliance.

7 Ibid, at [6].

8      Notes of evidence taken before Judge DA Burns, 19 January 2012, at 6.

9      R v Aylwin (2008) 24 CRNZ 87 (CA).

10 Ibid, at [41].

[20]     In summary, Mr Hamlin’s submissions are that the police officer’s evidence, taken at face value, does away with the argument of there being a delay.  Even if that was  not  the  case,  there  is  no  allegation  of  inaccuracy  of  result  or  injustice. Therefore, the reasonable compliance shelter is available.

Discussion

[21]     The fundamental point is that the onus is on the prosecution to prove its case. That onus is not confined to the elements of the offence.  It extends to all matters upon which the trier of fact must be satisfied before it is entitled to find a charge proved.

[22]     It is trite to say that a defendant need prove nothing.  The appellant at trial was entitled not to ask any questions at all, let alone be required to cross-examine on a perceived weakness in the prosecution case.

[23]     The District Court Judge erred in holding that  s 92 of the Evidence Act required  Mr Mulgan  to  cross-examine so  as  to  provide the Court  with  the best evidence available.

[24]     Section 92 is an expression of the common law duty on a party, in fairness, to cross-examine another party’s witness if it is intended to call evidence which would materially contradict the witness.11   Section 92(1) sets this duty out as follows:

In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.

[25]     The section does not impose a duty on Defence counsel to cross-examine on defects in the Crown case.  A person charged with an offence is entitled to have the prosecution prove it.

[26]     The section may come into play if, following the close of the prosecution case, the defendant elects to give or call evidence and that evidence contradicts the

11     R v Stojanovich [2009] NZCA 210.

prosecution’s evidence to a relevant extent.   If the Defence evidence could have, materially, been commented on by one or more prosecution witnesses but they were not cross-examined on the evidence, then the remedies set out in s 92(2) can be invoked. Those remedies are aimed at ensuring fairness between the parties.

[27]     There will be cases where the prosecution’s evidence will predictably cross the prima facie threshold and where Defence counsel will be in breach of the s 92 duty if  proper cross-examination  on  intended Defence evidence does  not  occur. Section 92(2) gives a range of remedies sufficient to address such breaches to restore balance to the trial.

[28]     In this case, the police officer gave evidence that he informed the appellant of the result of the evidential test immediately after the result was printed.  But s 77(3) of the Act also requires advice of the consequences if a blood test is not requested within 10 minutes.  The requirement is that the advice be given without delay after the result of the test is ascertained.  On the prosecution evidence, the advice was not finalised until 10 minutes later.  There is no explanation for the delay.  The case law

is clear that 10 minutes can constitute a delay.12

[29]     The reasonable compliance shelter afforded by s 64(2) cannot be entered without an explanation which shows the delay to be reasonable.  There is a positive obligation on the prosecution to provide that explanation.  The prosecution did not provide any explanation in this case.

[30]     The failure to provide an explanation which could be found to be reasonable meant that the District Court Judge should have concluded that the requirement to provide advice without delay had not been met.  The consequence should have been that the evidence of the breath test was ruled inadmissible.  Therefore, there was no case to answer.

[31]   For completeness, the dicta of the Supreme Court in Aylwin which the prosecution relies on is an orthodox restating of the common law.  A prosecution

12     Ariki v Police, above n 3.  In this case, a delay that was between nine and 11 minutes was held to be fatal.

Kavanagh v Police, above n 3. In this case, a delay of eight minutes was held to be fatal.

witness who, in general terms, has given evidence of compliance with a particular procedure can be taken to have provided evidence that the procedure was complied with.  If there is no cross-examination on the point, the Defence cannot claim that particular aspects of the procedure were not proven.   But that is not the situation here.   In this case, the prosecution evidence shows a delay.   There is no general statement that the delay was reasonable.  There is a statement only to the effect that the result of the test was advised immediately after the result was printed.

[32]     The  dicta  in  the  Court  of Appeal’s  discussion  of  the  Aylwin  case  as  to reasonable compliance being linked to correctness of result does not arise either. This case is not about correctness of result but rather about an evidential onus which must be satisfied where there is evidence of undue delay.

Decision

[33]     The  appeal  is  allowed.    The  conviction  is  quashed.    I will  not  direct  a rehearing because, as Keane J held in Ariki v Police,13 to allow a rehearing would be to dilute the policy consideration that the Police must anticipate defects in their case arising from the procedure adopted and bring sufficient evidence to the Court to

make out the charge.

Brewer J

13     Ibid.