Tatarzycki v Police
[2022] NZHC 1465
•27 June 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000079
[2022] NZHC 1465
BETWEEN ANDREW RICHARD TATARZYCKI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 June 2022 Counsel:
A J Haskett for Appellant
P E Hayward for Respondent
Judgment:
27 June 2022
JUDGMENT OF DOWNS J
This judgment was delivered by me on Monday, 27 June 2022 at 12 pm.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Auckland. A J Haskett, Auckland.
TATARZYCKI v POLICE [2022] NZHC 1465 [27 June 2022]
The appeal
[1] This appeal again raises what is known as the “Block J” warning, an aspect of a form used by Police in the context of suspected drink-drive offending. It concerns events of two and a half years ago.
The offending
[2] Andrew Tatarzycki was driving in or about Auckland late on the evening of 24 January 2020. He had earlier drunk “four beers”.1 At midnight, Senior Constable Matthew Wickens stopped Mr Tatarzycki for apparent speeding. The officer noticed Mr Tatarzycki’s speech was slurred, his eyes were bloodshot, and he smelt of alcohol.2
[3] Senior Constable Wickens required Mr Tatarzycki to undergo an evidential breath screening test. Mr Tatarzycki blew more than 400 micrograms of alcohol per litre of breath. The officer then required Mr Tatarzycki to accompany him to the Orewa Police Station for an evidential breath test, blood test or both; and told Mr Tatarzycki of his right to counsel.3
[4] Once at the station, the officer again told Mr Tatarzycki of his right to counsel. He then conducted an evidential breath test. Mr Tatarzycki blew 575 micrograms of alcohol per litre of breath. Senior Constable Wickens told Mr Tatarzycki unless he requested a blood test within 10 minutes, the evidential breath test “he had just undergone could of itself be [conclusive] evidence in a prosecution against him under the Land Transport Act 1998”. He also told Mr Tatarzycki if he underwent a blood test, the evidential breath test “cannot be used in court proceedings to support a charge of driving … with excess breath alcohol … but the result of the blood test may be used to support a charge based on analysis of the blood alcohol concentration”. The officer gave Mr Tatarzycki a form recording both pieces of advice, which Mr Tatarzycki signed.
[5]Mr Tatarzycki did not elect to have a blood test.
1 Exhibit 1 in the District Court, p 1.
2 The officer circled the “YES” box for each on the form he made at the time.
3 New Zealand Bill of Rights Act 1990, s 23(1)(b).
[6] Mr Tatarzycki was charged with speeding and driving with excess breath alcohol. In relation to the latter, he pleaded not guilty. Mr Tatarzycki’s defence to that charge is best explained after brief discussion of the applicable law.4
The law
[7] Section 77 of the Land Transport Act 1998 provides an evidential breath test is conclusive evidence of the alcohol in the defendant’s breath in relation to a breath alcohol offence. The result of such a test is not admissible at the hearing of the charge unless the defendant is told certain things when the test is taken, most importantly, that it is conclusive evidence “to lead to that person’s conviction for an offence against this Act” unless the defendant elects to have a blood test within the required time.5
[8] An evidential breath test can also be conclusive evidence the defendant has committed an infringement offence if the defendant is younger than 20 and other circumstances exist.6 Again, the defendant must be told certain things when the test is taken, including that it is conclusive evidence “the person has committed an infringement offence against this Act”.7 An infringement offence does not result in a conviction.
[9] Police have used one warning to address these different situations. The warning is recorded on a standard Police form, in a box labelled “Block J”. In Re Solicitor-General’s Reference (No 1 of 2020),8 the Court of Appeal was asked to determine if the Block J warning complied with s 77 of the Act.
[10] The Court concluded the warning did in relation to the situation at [7]. It held Block J’s language conveyed “the sense and effect of the warning required”.9 A motorist “could only reason”:10
(a)The EBT result is “evidence” against me.
4 I use the term “defence” loosely, and not in a technical sense.
5 Land Transport Act 1998, s 77(3A)(a).
6 Section 77(3A)(b).
7 Section 77(3A)(b).
8 Re Solicitor-General’s Reference (No 1 of 2020) [2020] NZCA 563.
9 At [44].
10 At [41].
(b)Which could of itself be conclusive.
(c)In a “prosecution” against me.
And therefore:
(d)I am liable to be found guilty of an offence as a result of (a)–(c).
[11] In McKinney v Police, the Supreme Court declined permission for an appeal directed at challenging the Court of Appeal’s reasoning in Re Solicitor-General’s Reference (No 1 of 2020).11 The Supreme Court concluded, “We do not see the arguments the applicant wishes to raise as having sufficient prospects of success to justify a reconsideration of that exercise”.12
[12] I pause to add Senior Constable Wickens advised Mr Tatarzycki in accordance with the Block J warning. And, as observed, Mr Tatarzycki signed a form containing this advice.
[13] In the recent case of Singh v Police,13 the Court of Appeal was asked to revisit its reasoning in Re Solicitor-General’s Reference (No 1 of 2020). The Court declined to do so. In so doing, the Court said:14
The ratio of the decision therefore concerns the formal compliance of wording used by police officers with the requirement in s 77 to give a warning in particular terms before an EBT result is admissible in evidence against a motorist. It does not, as the appellant’s argument sought to suggest, preclude an argument that the motorist did not in fact understand his rights (either under s 23 of the New Zealand Bill of Rights Act 1990 or s 77 of the present Act). As Ms Brook acknowledged on the Crown’s behalf, the Court’s reasoning in the decision “is not inconsistent with the Police taking extra steps to ensure an individual driver’s comprehension if there are reasons to doubt she or he has understood the advice given”.
[14] It is therefore open to a defendant in this context to argue she or he did not understand what they were told under s 77, even though Police used the Block J warning to convey that provision. Obviously, such an argument would need to have
11 McKinney v Police [2021] NZSC 68.
12 At [11].
13 Singh v Police [2021] NZCA 91, (2021) 29 CRNZ 665.
14 At [19].
evidence to support it. This elementary principle is implicit to Re Solicitor-General’s Reference (No 1 of 2020) and explicit to Singh and antecedent case law concerning administration of a defendant’s rights, including R v Mallinson:15
Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused’s answers at face value. If following advise as to the right to a lawyer the accused responds affirmatively to the question whether he or she understands the position, the obvious inference is that the accused did indeed understand his or her rights.
And later from Mallinson:16
Unless there is an evidential basis justifying a contrary conclusion, proof that the police advised the suspect of the … rights should lead to the inference that the suspect understood the position.
[15]A final aspect of law is relevant. Section 64(2) of the Act provides:
64 Defences
...
(2) It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 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 apply.
[16] So, if Police reasonably comply with their obligations under s 77, it is no defence to a charge of driving with excess breath alcohol they did not strictly do so. Whether there has been reasonable compliance typically turns on the extent of compliance with the provision in question; prejudice, if any, to the defendant; the likelihood an element of the charge has not been established; and the reasonableness of the exercise of any Police discretion.17
The District Court hearing
[17] The charge was heard by Judge E M Thomas 22 February 2022. Mr Tatarzycki did not challenge any aspect of the sequence described earlier. Rather, on his behalf,
15 R v Mallinson [1993] 1 NZLR 528 (CA) at 531.
16 At 532.
17 Anna Longdill and others Law of Transportation (online looseleaf ed, Thomson Reuters) at [LT64.03].
Mr Haskett elicited from Senior Constable Wickens that (a) Mr Tatarzycki had no convictions and (b) told the officer he was born in Zimbabwe.
[18] Mr Tatarzycki then testified. He said this about his state of mind when dealing with the officer, then later when he appeared in court:18
Q. All right. Now when you signed … [Block] J what was your understanding as to the consequences of that breath test?
A. That I had been drinking and it was positive and it was high, or at least – yeah, it was over the limit.
Q. All right. At that time did you know what the limit was?
A. No I didn’t I’m afraid.
Q. Did you know how many limits the law has for excess alcohol?
A. No.
Q. What’s your understanding today about the consequences of that breath test, that evidential breath test?
A. That I would be coming to court and when I came first time to court, when I spoke to the lawyer that was assigned to me, he said that I was facing criminal charges which I – yeah was, really quite shocked, and I ask can I stop at this point, because I need to speak to someone on this.
Q. So, when you came to court on that first occasion, how many charges were there at court?
A. Two, for high blood alcohol and speeding.
Q. All right, so on the night when the senior constable dealt with you, what was your understanding about any distinction between the speeding charge and the drink driving charge?
A. That they were both going to court and – I didn’t have a real distinction between the two, yeah I – yeah, both traffic offences and yeah, I was – I’ve had traffic offences before and they’ve been dealt with, with fines and suspension of my licence and that’s what I was really expecting.
Q. Right. So with the excess breath alcohol now before the court, what’s your understanding in terms of the consequence of that, or a potential consequence?
A. That I could have a criminal record.
Q. Right. Now knowing that, on reflection, could that have made any difference to – decisions made on the night?
18 Notes of evidence, pp 11–13.
A. Absolutely. The criminal record is – I’ve never been in trouble with the law ever, I’d be probably the first in my family to have a criminal record, on the – yeah I would’ve really wanted to have made sure that this level was the correct level and I would’ve sought legal advice on the night.
Q. So on the night, you agree with Mr Wickens’ evidence earlier that you were given a 10 min period in which to consider the option of doing a blood test?
A. Yes.
Q. Do you have any comment on that?
A. Just, I would’ve really taken that option if I’d known how bad this was.
Q. And when you say how bad this was you mean?
A. This level.
Q. All right. And what do you mean by this level?
A. The alcohol breath level 575.
Q. On the night did you know that level of 575?
A. After I blew it yes.
Q. Yes?
A. Yes.
Q. What was the consequence in your mind on the night compared to now?
A. Again I thought it was potentially I’d lose my licence and have a hefty fine.
Q. So, how much alcohol had you consumed before driving that night?
A. From what – I think it was about four beers.
Q. All right, so when you jumped in the car to drive, how were you feeling about your level of intoxication or your ability to drive?
A. I did think I was fine, I really did, even stuff like when the officer stopped me, I didn’t just – it was on a dual carriageway so I didn’t just pull over on the dual carriageway, I actually looked for a safe place to stop, turned off onto a side road and parked up there, I was being responsible during driving.
Q. Right.
CROSS-EXAMINATION: SERGEANT GALLAGHER
Q. How often do you consume that amount of alcohol and hop in a car and drive?
A. No I wouldn’t, I don’t drink a lot at all so I don’t – especially now I don’t, don’t drink at all.
Q. But you’re aware that (inaudible 12:52:13) drinking and driving is against the law.
A. Absolutely being over the limit yes.
[19] Mr Haskett argued the prosecution had failed to establish Mr Tatarzycki had been informed the evidential breath test could be conclusive evidence leading to his conviction for an offence under the Act, for, Mr Tatarzycki’s evidence implied he did not appreciate he was in jeopardy of conviction. Judge Thomas recorded this submission, then said:19
Any defendant can say: “I didn’t understand that” and if you do say that, you say the police are required to prove that you did understand that. I take no issue with that.
The Court of Appeal said you only need to understand the advice that is contained in that form. That is all that the police need to give you. That they do not need to talk to you about anything more than that because people draw their own conclusions about what that means. The Court of Appeal suggested the conclusions that people can draw from that advice. It said this is what people would understand that advice to mean and therefore that advice is sufficient.
Having decided that that advice is enough for the police to give that advice, it is difficult then for me to accept that by raising your lack of understanding at trial, they are actually required to prove that you understood more than they are required to tell you. That might be one of the difficulties with the way they framed their decision but that is still the situation that we end up with.
The police are only required to show reasonable compliance. What is reasonable is an objective view. What is reasonable depends on all the circumstances of a case. The police read what they were supposed to read. They read what the Court of Appeal has said is enough for them to read. They got no indication from you that you were confused about any of that. They got no indication from you that you did not understand any of that. They had no reason to think that you might not understand any of that. There was nothing from you that put them on notice that they needed to go any further with you in relation to that advice or making sure you understood it.
Given what the police were faced with there is nothing more they could have done. It must be then that at the very least they are able to show reasonable compliance.
Result
The charge is proved.
19 Police v Tatarzycki [2022] NZDC 3054 at [9]–[14] (footnotes omitted).
Mr Tatarzycki’s appellate case
[20] Mr Haskett contends the Judge erred to find the charge proved because of the argument he raised in the District Court. Mr Haskett says the mere fact Police used the Block J warning was not decisive, and the Judge appears to have concluded otherwise.
[21] Mr Haskett emphasises the question is not what Senior Constable Wickens told Mr Tatarzycki; rather it is whether Mr Tatarzycki understood his jeopardy under s 77. Mr Haskett argues the right to a blood test is an important aspect of the regime and if “a motorist believes the drink driving allegation is a traffic offence akin to speeding, then the motorist has not been made aware of the significance of the jeopardy”.
Analysis
[22] The Judge did not directly grapple with whether Mr Tatarzycki understood he was liable to conviction for the offence of driving with excess breath alcohol. He appears to have considered this question less important than whether the Police reasonably complied with s 77. Indeed, the Judge appears to have concluded because there was reasonable compliance with s 77, the earlier question of whether Mr Tatarzycki understood his jeopardy need not be determined.
[23] This means I am without the benefit of first-instance determination of Mr Tatarzycki’s appreciation, or lack thereof, of his risk of conviction under s 77. To compound matters, the topic was approached elliptically during evidence-in-chief20— Mr Tatarzycki was not directly asked if he understood he was liable to conviction when he made the election not to seek an evidential blood test—and even more elliptically in cross-examination. The prosecutor did no more than have Mr Tatarzycki’s confirm he understood drinking and driving “is against the law”, to which Mr Tatarzycki responded, “Absolutely being over the limit yes”.
20 A direct question would not have been leading in terms of ss 4(1) or 89 of the Evidence Act 2006 provided it did not directly or otherwise suggest the answer. The learned authors of Mahoney on Evidence: Act and Analysis (Thomson Reuters, Wellington, 2018) at [EV89.05] also observe “it will not normally be objectionable … to use leading questions to focus a witness’s mind on a particular point”.
[24] All of which introduces the important question: has the prosecution established Mr Tatarzycki understood he was at risk of conviction for driving with excess breath alcohol when he made the election not to seek a blood specimen?
[25]I make five points.
[26] First, the language used by Senior Constable Wickens—the Block J warning— is ordinarily sufficient to convey the risk of conviction to a defendant. This follows from Re Solicitor-General’s Reference (No 1 of 2020) (and McKinney). While this aspect is not determinative given the evidence of Mr Tatarzycki, it is not irrelevant either. In short, on this question, Re Solicitor-General’s Reference (No 1 of 2020) exercises some gravitational pull.
[27] Second, Mr Tatarzycki said nothing during the incident to suggest he did not understand he was at risk of conviction for the offence, or his rights more generally. Senior Constable Wickens said this about his interactions with Mr Tatarzycki in response to the question whether he had any problems communicating with him:
Not at all, he was very chatty, he was following the process on the way home. I was quite frank about the process and what we had done and I was quite open with him and he was asking a lot of questions around the breath and the blood results and we had quite a discussion on the way back to his address … where we spoke openly. The defendant was quite chatty and happy to talk, quite happy.
[28] Relatedly, Senior Constable Wickens was asked if Mr Tatarzycki posed him any questions prior to the 10-minute blood election:
Yes, I do recall him asking me questions around what he should do. At that stage I was clear that if he had any questions he could speak to a lawyer but he was – at each of the points where he could speak to a lawyer, he didn’t want to. And so, any time he had a question relating to the breath test or the blood test or what he should do, I just said to him I couldn’t answer those questions and if he had any questions he needed to speak to a lawyer about those things.
[29] Third, there is no suggestion—let alone evidence—Mr Tatarzycki suffers an intellectual or cognitive impairment, or any other difficulty that might have affected his understanding of what Senior Constable Wickens told him.
[30] Fourth, when he testified, Mr Tatarzycki was necessarily reconstructing what he understood at the time of the incident. That incident occurred 25 months earlier, late at night, and after Mr Tatarzycki had consumed four beers. Senior Constable Wickens said Mr Tatarzycki was not “highly intoxicated”. The implication of this evidence is that Mr Tatarzycki was at least somewhat intoxicated. These aspects— delay, time of day and intoxication—are relevant to the assessment of the reliability of Mr Tatarzycki’s evidence, which again, necessarily involved reconstruction as to what he understood at the material time.
[31] Fifth, Mr Tatarzycki said in evidence that on the night, he believed he was “fine” to drive and “being responsible” while driving. Plainly, Mr Tatarzycki was wrong about both that evening. This is also relevant to the reliability of Mr Tatarzycki’s evidence, insofar as it involves reconstruction of his thinking at the time.
[32] Given this mix, I find the prosecution has established Mr Tatarzycki was aware he was at risk of conviction at the material time, despite his somewhat contrary evidence.21 I say “somewhat contrary evidence” because of the way it was elicited by Mr Haskett and the (lay) trial prosecutor.22 I consider that evidence unreliable given the circumstances identified above.
[33] This conclusion does not reflect adversely on Mr Tatarzycki’s credibility. That he thought his situation serious when he reached court does not mean he did not appreciate the seriousness of the situation on the night. Again, the point is that in all likelihood, Mr Tatarzycki has, by combination of circumstance, mis-remembered what he believed.
21 Or, expressed in terms of R v Mallinson [1993] 1 NZLR 528 (CA) at 531, I am satisfied the officer “brought home” to Mr Tatarzycki the effect of s 77.
22 The high point of Mr Tatarzycki’s evidence probably lies in this sequence:
Q. All right, so on the night when the senior constable dealt with you, what was your understanding about any distinction between the speeding charge and the drink driving charge?
A.That they were both going to court and – I didn’t have a real distinction between the two, yeah I – yeah, both traffic offences and yeah, I was – I’ve had traffic offences before and they’ve been dealt with, with fines and suspension of my licence and that’s what I was really expecting.
[34] That Mr Tatarzycki was born in Zimbabwe23 and charged with a speeding infringement offence—points relied on by Mr Haskett—are not determinative. There is no evidence Zimbabwe treats drink-driving less seriously than New Zealand, or exclusively as an infringement offence. And, the speeding infringement offence point is a dual-edged sword. It must have been obvious to Mr Tatarzycki that Senior Constable Wickens’ focus that night was the drink-drive offence, not the speeding one. That says something about relative seriousness and associated criminal jeopardy.
[35] Mr Haskett also argues the prosecution did not satisfactorily challenge Mr Tatarzycki’s evidence under s 92(1) of the Evidence Act 2006. This section requires cross-examination of a witness “on significant matters that are relevant and in issue … if the witness could reasonably be expected to be in a position to give admissible evidence on those matters”. I do not doubt the cross-examination was imperfect in terms of the provision. However, I have considered this in reaching my factual conclusion at [32]; I have assumed Mr Tatarzycki would have maintained the evidence he gave in chief had he been further taxed in accordance with s 92(1).
[36] Even if I am wrong about Mr Tatarzycki’s knowledge at the time, this case affords an obvious instance of reasonable compliance in terms of s 64(2) of the Act.24 My reasoning mirrors much of that above. Senior Constable Wickens used language that would ordinarily be sufficient to convey the risk of conviction. Mr Tatarzycki said nothing to suggest he did not understand he was at risk of conviction, or his rights more generally. And, Mr Tatarzycki blew 575 micrograms of alcohol per litre of breath, a far from marginal result. No doubt attaches to any element of the offence.
[37]Justice has not miscarried for these reasons.25
23 There is no evidence as to how long Mr Tatarzycki has been in New Zealand.
24 It is beyond argument s 64(2) can apply to s 77. The former was amended from 29 December 2001 to allow just this; see 5(1) of the Land Transport (Road Safety) Enforcement Amendment Act 2001 (2001 No 104).
25 Criminal Procedure Act 2011, s 232(2)(b) and (c).
Reliance on an affidavit from another case
[38] Mr Haskett’s bundle of authorities included an affidavit before the Court of Appeal in Re Solicitor-General’s Reference (No 1 of 2020).26 I know of no authority that allows a party to rely on evidence adduced in wholly unrelated litigation, particularly when there is nothing to suggest that evidence has been reproduced with the permission of the other litigant or Court. I did not consider the affidavit for this reason. Nothing was said about the affidavit at the hearing.27
Result
[39]The appeal is dismissed.
……………………………..
Downs J
26 That Court declined to receive it for reasons that need not be elaborated here.
27 Albeit Mr Haskett’s written submissions referred to it.
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