The Queen v Lapalapa
[2003] NZCA 55
•24 March 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA372/02
THE QUEEN
v
JEROME LAPALAPA
Hearing:17 March 2003
Coram:Blanchard J
Robertson J
William Young JAppearances: RAA Weir for Appellant
J C Pike for Crown
Judgment:24 March 2003
JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J
Introduction
[1] The appellant was convicted by a jury of a charge of driving with an excess proportion of alcohol in his breath. He has previous convictions for offending of this sort; hence his right to trial by jury.
[2] He now appeals against conviction.
Background facts
[3] The appellant was driving in Auckland in the early hours of 24 May 2001. His manner driving attracted the attention of Constable Nadine Larsen who was on patrol. She stopped his vehicle and spoke to him. The constable smelt alcohol on his breath and noted that his eyes were bloodshot and his speech was slurred. In response to a question from her, the appellant admitted drinking earlier that night.
[4] Constable Larsen administered a breath screening test which he failed. She then took the appellant back to the Auckland Central Police Station where she required him to provide an evidential breath sample. The device used was an Intoxilyser R5000. This recorded a breath alcohol level of 701 micrograms of alcohol per litre of breath.
[5] There was no challenge to the procedures carried out by Constable Larsen. Instead the appellant ran what is known as a McKay defence challenging the reliability of the particular Intoxilyser device which she used.
[6] Before discussing what happened at trial, the Judge’s summing up and the appellant’s complaints, it is appropriate to explain, briefly, just what the McKay defence is.
The McKay defence
[7] The charge against the appellant alleged that he drove a motor vehicle on a road:-
“… while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath …”
So expressed, the charge did not follow, with precision, the language of s56 Land Transport Act 1998 which makes it an offence for any person to drive a motor vehicle on a road:-
“… while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.”
[8] The Courts have been much occupied by challenges to the reliability of breath tests. This has required the Courts to consider the circumstances in which such challenges may be permitted and, as well, the extent to which defendants facing breath alcohol charges can require the prosecution to make available the manufacturer’s instructions associated with the use and maintenance of breath testing devices.
[9] For the purposes of this case, the underlying issues are sufficiently discussed in the judgment of Tipping J in R v Livingston [2001] 1 NZLR 167 at 171-172:-
[9] When a device of an approved kind is operated in an approved manner, the statutory intent must be that the result is generally presumed to be reliable. Parliament cannot have intended the person accused to be able to challenge the general reliability of approved devices, or the general reliability of approved methods of operating them. In saying this we have not overlooked Police v McKay [1995] 1 NZLR 303 (CA) at p 305. There Cooke P in an oral judgment appeared to accept a concession of counsel in these terms:
“There are two safeguards. First, the Minister may always revoke an approval if satisfied that a particular model of a device is defective or unreliable. Secondly, if there is in any case evidence raising a reasonable doubt as to the accuracy of the results produced by the model, when properly used as prescribed by the Breath Tests Notice or the instructions on or with the machine, then that device cannot be treated as within the ministerial approval. Mr Pike unhesitatingly accepted the existence of both safeguards.”
That statement should not be read as permitting a general attack on the reliability of tests when an approved device has been operated in an approved manner. That would undermine the whole purpose of the statutory approval regime.
[10] There may, however, be occasions when it is not the reliability in general terms of the approved device or its method of operation which is in issue, but rather a specific complaint that the device did not for some particular reason produce a reliable result on the particular occasion. Examples given by counsel were lack of proper maintenance, or the machine having been dropped just prior to the test. In such circumstances it must be open to the person accused to challenge the reliability of the device so far as their particular test is concerned.
[11] It can be seen from the foregoing that matters pertaining to whether the device was of an approved kind, or whether it was operated in an approved manner, are aspects of whether the test carried out fulfils the statutory definition of an evidential breath test. Such matters can for present purposes be called definitional issues. As such they are to be treated as matters of law, even if they involve issues of fact. They are for the Judge to decide if put in issue. In essence the Judge rules on whether the test carried out qualifies as an evidential breath test at all. If it does not, the case collapses. If it does, the jury is directed that the test carried out was an evidential breath test within the meaning of the section.
[12] We acknowledge that this approach means that the Judge has to determine any issue of operator error, whereas, as we discuss below, any issue of mechanical error is for the jury. This distinction may be thought rather anomalous. It is however the product of the way in which the breath and blood-alcohol legislation is framed. It is also necessary to accommodate the concept of reasonable compliance which is not in the nature of a jury issue. Furthermore the distinction is the logical corollary of the cases we mention in para [15] below.
[13] There remains what can be called the reliability issue, by which we mean the issue whether the machine produced a reliable result on the particular occasion when it is claimed there was some particular malfunction. If a reliability issue in this sense is raised by the accused person, the point is for the jury. But in order to have the point left to the jury the accused must satisfy an evidentiary threshold. The Judge should not leave the point to the jury, unless by reason of something in the Crown’s evidence or something in the evidence called by the accused, the Judge is of the view that the jury could be left with a reasonable doubt about the reliability of the device on the particular occasion. Mere assertion, or inconsequential questions in cross-examination of Crown witnesses, will not be enough. The accused must be able to point to a sufficient evidential foundation for the suggestion that the device was unreliable in the relevant sense, before being entitled to have the point considered by the jury. If there is such a foundation, the Crown must establish reliability beyond reasonable doubt. Without such foundation the presumptive reliability of a test which has been properly conducted with an approved device will prevail, as must have been the legislative intention: compare the analogous certificate provisions in blood-alcohol cases as per s 75 of the Land Transport Act 1998.
[10] In the course of argument Mr Pike advised us that the availability of the McKay defence is likely to be challenged by the Crown in an appeal which this Court is to hear some time later this year. The Crown, however, was content for this case to be decided on the assumption that the McKay defence, as explained by Tipping J in Livingston, was available, potentially, to the appellant.
[11] For completeness we record that amendments to the Land Transport Act which took effect late last year now make it clear that a McKay defence is not available in relation to events occurring after 29 December 2001.
The challenge at trial to the reliability of the Intoxilyser 5000 used by Constable Larsen
[12] The defence challenged, at trial, the reliability of the Intoxilyser device used by Constable Larsen. This challenge was based substantially on the evidence of Mr John Churchill, an electronics expert, who focussed on the maintenance history of the particular Intoxilyser machine which was used. He said that this maintenance history pointed to unreliability.
[13] The jury also had the benefit of expert evidence from Dr Allan Gainsford who is an analytical chemist employed by the ESR who has had many years of experience with Intoxilyser devices. His evidence to the jury was that the Intoxilyser device used by Constable Larsen was reliable.
[14] It is clear from the jury’s verdict that it preferred the evidence of Dr Gainsford.
Grounds of appeal
[15] The conviction is challenged on the basis of what we regard as three discrete contentions:-
1.The Judge wrongly left it to the jury to convict if satisfied beyond reasonable doubt that the appellant’s breath alcohol level as analysed was over 400 micrograms per litre of breath rather than if satisfied beyond reasonable doubt that the actual reading (701 micrograms of alcohol per litre of breath) was accurate;
2.The Judge wrongly indicated to the jury that evidence of Constable Larsen as to the lack of sobriety of the appellant was relevant to the reliability issue; and
3.Dr Gainsford should not have been permitted to give expert evidence as to the reliability of the Intoxilyser device used by Constable Larsen as he is an analytical chemist and not an electronics expert.
[16] In the succeeding sections of this judgment we will evaluate the appellant’s case by reference to these contentions.
First contention: The Judge wrongly left it to the jury to convict if satisfied beyond reasonable doubt that the appellant’s breath alcohol level as analysed was over 400 micrograms per litre of breath rather than if satisfied beyond reasonable doubt that the actual reading (701 micrograms of alcohol per litre of breath) was accurate
[17] In order to understand the arguments of Mr Weir for the appellant, it is necessary to set out a reasonably significant portion of the Judge’s summing up:-
You need to find that this charge against the accused has been proved beyond reasonable doubt. In this particular trial, that is really more important than it is in most trials. Reasonable doubt, for all that it is a hackneyed phrase, means what it says. You are sitting in that jury box because you are 12 intelligent men and women with the ability to assess the strengths and weaknesses of various things that you are told, and you are expected to use that common sense in determining this issue of proof beyond reasonable doubt. You have to be sure that the Crown has proved to you that this machine was reliable and that the accused committed the offence with which he has been charged. You do not have to find that it is proved for certain.
The two men you have heard giving evidence have used that kind of language from time to time and they have talked to you about the possibilities of error in this machine, but the Crown does not have to prove to you that this machine is reliable one hundred percent of the time all the time and could never be anything else. The Crown has to prove to you beyond reasonable doubt that, on 24 May 2001, this machine was reliable to the extent that the card it spewed out after this breath test is an accurate record of the breath alcohol content in the diffused breath. That is all. So that is what the Crown needs to prove.
You have to be sure that, on that day, the result that was obtained showed that the accused’s breath alcohol level was in excess of 400 micrograms per litre of breath. It goes without saying, I hope, that the verdict that you reach has to be the unanimous verdict of all 12 of you.
I want you to have a look at the indictment, which is the document that sets out this charge against the accused. It alleges that, on or about 24 May 2001 at Auckland, he drove a motor car on a road, namely Sandringham Road, while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath. There are a number of ingredients in that crime, all of which need to be proved to the standard I have referred to. There are really four of them.
The first and second of them are that the accused drove a car on Sandringham Road on or about 24 May. There is no argument about that. You have heard the uncontested evidence of Constable Larsen. Those elements of the crime are not in dispute.
Thirdly, you have to be satisfied that, at the time when he drove this motor vehicle, the alcohol in his breath exceeded 400 micrograms per litre of breath. Then fourth and finally you have to be satisfied that that breath alcohol level was ascertained by an evidential breath test undergone under the relevant provisions of the Act in question.
The only thing that is in issue here, obviously is whether or not on that day, while driving the car, his breath contained more than 400 micrograms of alcohol per litre of breath. The law is that if the breath test shows a level in excess of that, then he is deemed to have had that level at the time he was driving the car.
I am satisfied, as a matter of law, that this intoxiliser test was properly carried out, and I have no difficulty in coming to that conclusion because it has never been challenged. You will have no difficulty in concluding that all the other elements of the offence have been proved.
The only issue is whether or not the printout card, which showed that his level was 701 micrograms, can be accepted by you as a reliable result from the machine. You have heard evidence to suggest that this intoxiliser 5000 might have produced an unreliable result on this occasion and whether or not that is so is simply a question for you. So that is really all that you need to grapple with.
If you are sure that this machine was reliable, and that Exhibit 2, which you have in front of you, can be accepted by you as accurate, then the Crown has proved its case. If you are satisfied of that beyond reasonable doubt, that is the end of it.
If you are not so satisfied, if you are not sure, that that test and Exhibit 2 proves that the man was driving with a breath alcohol level in excess of 400, then you will find him not guilty.
…
So you may say to yourself well thanks Judge that is great but it does not help us a great deal and perhaps it does not but I cannot do any more than that. I can only ask you to take into account all of the evidence as well as the expert evidence and come to a conclusion as to whether or not the Crown has discharged the onus of proving to you beyond reasonable doubt, not with mathematical certainty, but beyond reasonable doubt that on 24 May this machine gave an accurate reading of the breath alcohol content of the accused to the extent that it exceeded 400 micrograms of alcohol per litre of breath. I am afraid I cannot help you any more than that.
The second of the two passages which we have cited was right at the end of the summing up. We have italicised the particular remarks made by the Judge which are most germane to the argument advanced by Mr Weir.
[18] It is true, as Mr Weir said, that the Judge did at times focus on the reliability of the actual result produced by the Intoxilyser device, that is the reading of 701 micrograms of alcohol per litre of breath, and at other times on the question whether the test showed that the appellant’s breath alcohol level at least exceeded 400 micrograms of alcohol per litre of breath.
[19] The metes and bounds of the McKay defence have not been explored in great detail in this Court. In particular, there is no explanation which identifies the benchmark (if one is appropriate) against which the reliability/alleged unreliability of a particular Intoxilyser device is to be assessed.
[20] Mr Weir’s argument to us was that the Crown must prove that the particular device employed was reliable as to the precise result reached. On this approach, if the jury is not satisfied beyond reasonable doubt that the precise result produced by the Intoxilyser is accurate it should acquit even though the jury is nonetheless satisfied beyond reasonable doubt that the machine’s analysis of the breath sample established that that sample contained in excess of 400 micrograms of alcohol per litre of breath.
[21] This argument was a little theoretical given the context of the present appeal. If the concerns raised by Mr Churchill were sufficient to impugn the reliability of the machine in terms of producing an accurate reading of 701 micrograms of alcohol per litre of breath, the logic of his evidence was that that unreliability would have raised a reasonable doubt as to whether that reading established that the breath alcohol level was in excess of 400 micrograms of alcohol per litre of breath. Further, Dr Gainsford did not seek to contend, even as an alternative to his principal thesis, that the machine, though possibly unreliable in terms of its actual reading, was nonetheless reliable enough to establish beyond reasonable doubt that the sample analysed contained more than 400 micrograms of alcohol per litre of breath. So, Dr Gainsford was saying that the machine was absolutely reliable and this was challenged by Mr Churchill.
[22] Given this, and given the way in which the Judge, in the summing up, paraphrased the cases of the Crown and the defence, it rather appears as though the jury was presented with a general challenge by the defence to the reliability of the machine and that the Crown’s response was to deny that the machine was unreliable. Presumably it was for this reason that the Judge did, from time to time, invite the jury to determine whether the 701 micrograms of alcohol per litre of breath reading was accurate and reliable.
[23] The Judge, however, was required to sum up to the jury not only in terms of the cases advanced by the parties but also by reference to the legal elements of the charge.
[24] It will be recalled that s56 requires proof that the proportion of the alcohol in the breath of the appellant:-
“… as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.”
Reliability for the purposes of the McKay defence could be treated as referable to the ascertainment exercise and thus to the reliability of the reading produced by the evidential breath testing device. This is the approach which Mr Weir, for the appellant, urged on us. Alternatively, the reliability issue could be treated as referable to whether the result produced by the evidential breath testing device established conclusively that the breath alcohol level of the defendant exceeded 400 micrograms of alcohol per litre of breath even if it did not establish conclusively what that breath alcohol level was.
[25] There is a limit to what can usefully be said as to which of these approaches should be adopted. Obviously, the scheme and purpose of the legislation as a whole are important. In our view it is consistent with that scheme and purpose to hold that a conviction under s56 is appropriate where an evidential breath testing device has produced a reading which, allowing for any possible unreliability in the device itself, establishes beyond reasonable doubt that the defendant’s breath sample contained more than 400 micrograms of alcohol per litre of breath. It follows that the jury was not required to be satisfied beyond reasonable doubt that the result of the test established conclusively that the appellant’s actual breath alcohol level was 701 micrograms of alcohol per litre of breath.
[26] That is broadly the way in which the Judge summed up. To the extent to which the Judge indicated to the jury that it was required to be satisfied that the 701 micrograms of alcohol per litre of breath reading was accurate, this was unduly favourable to the appellant and therefore is immaterial in terms of the present conviction appeal.
[27] In those circumstances, this ground of appeal fails.
[28] In reaching this conclusion, we have not overlooked s65(3), Land Transport Act. The mandatory indefinite disqualification and requirement to attend an Assessment Centre provided for by s65(1) in the case of repeat offending only apply where one of the qualifying offences involves a breath alcohol level in excess of 1,000 micrograms of alcohol per litre of breath or a blood alcohol level in excess of 200 milligrams of alcohol per 100 millilitres of blood. The language of s65(3) corresponds broadly to the language of s56. Faced with the prospect of orders being made under s55(1) a defendant may seek to challenge, on the McKay grounds, the reliability of a breath testing device which recorded his or her breath alcohol level as being in excess of 1,000 micrograms of alcohol per litre of breath. How such a challenge should be dealt with is not the subject of the present appeal and it is best that we say nothing about it.
Second contention: The Judge wrongly indicated to the jury that evidence of Constable Larsen as to the lack of sobriety of the appellant was relevant to the reliability issue
[29] In his argument Mr Weir treated this contention as part of his first general argument. It is, however, more conveniently dealt with as a separate issue.
[30] In his summing up, the Judge said this:-
As far as the evidence is concerned, I do not really want to say a great deal about it because, as I have told you, it is really a matter of you assessing the expert evidence that you have heard, but please do not ignore, among other things, the evidence that you have already heard from Constable Larsen about how this all came about. You have to take that into account, of course. She gave evidence that she stopped the accused, that she gave him a breath screening test, that his breath smelt of alcohol, he was unsteady on his feet, his eyes were bloodshot and he admitted consuming alcohol. Those are undisputed facts.
[31] Relying on an English decision, Hughes v McConnell [1996] All ER 268, Mr Weir argued that the Constable’s evidence was irrelevant to the reliability of the Intoxilyser device in question.
[32] Hughes v McConnell concerned a charge which was broadly comparable to the charge faced by the appellant. In that case, the Court held that it was not open to the defendant to challenge the reliability of the evidential breath testing device solely on the basis of evidence that his consumption of alcohol had been so moderate that the result produced could not have been generated by a properly calibrated and reliable machine. We see the conclusion reached by the Court in that case as inevitable. It would have been entirely inimical to the scheme of the relevant legislation to have permitted the reliability of the breath testing device to be impugned on the basis of evidence of that sort. For that reason, we see that case as rather different from the present.
[33] In the present case, the defence was that the Intoxilyser device in question produced infrequent but random errors. In light of the remarks of Tipping J in Livingston, this raised the question whether the Intoxilyser device had produced a reliable result on the morning of 24 May (see para [13] of his judgment which is reproduced in para [17] above). The defence theory in running the McKay defence would have been more credible if there had been an incongruity between what the constable observed of the appellant’s sobriety and the result produced by the Intoxilyser. That there was no incongruity was therefore relevant to the jury’s task and the Judge was entitled to draw the attention of the jury to it.
[34] Accordingly, we see nothing in the second point raised on behalf of the appellant.
Third contention: Dr Gainsford should not have been permitted to give expert evidence as to the reliability of the Intoxilyser device used by Constable Larsen as he is an analytical chemist and not an electronics expert
[35] This argument proceeded very much on the basis that another electronics expert had been involved in the maintenance of the Intoxilyser device in question and that he could have given better evidence as to its reliability (in the specific context of Mr Churchill’s complaints) than Dr Gainsford.
[36] We can deal with this point comparatively briefly.
[37] In his argument, Mr Weir complained that the evidence of Dr Gainsford was not the “best evidence”.
[38] It is at least open to question whether Mr Weir’s proposition is even literally correct. Dr Gainsford is an analytical chemist with very extensive hands-on experience of Intoxilyser devices, including the device in question in the case. As an analytical chemist he is well placed to express a view as to the reliability of a piece of equipment which he uses and maintains in the course of his work. This is despite the possibility that an electronics expert might have a more sophisticated understanding of the intricacies of the device’s operation.
[39] But even if we were prepared to accept that an electronics expert could have given “better” evidence than Dr Gainsford, the jury was required to determine the case on the basis of such evidence as was available. There is no rule of law pursuant to which the evidence of a well-qualified expert becomes inadmissible because there exists an even better qualified expert who could have given evidence.
[40] As we have said, Mr Weir’s challenge to Dr Gainsford’s evidence came down to his complaint that an electronics expert would have been a better witness. When it became apparent to him that the members of the Court did not regard the possibility that there may have been a better witness than Dr Gainsford as rendering his evidence inadmissible, Mr Weir rightly accepted that Dr Gainsford’s expertise as an analytical chemist and his hands-on experience with the Intoxilyser devices and this device in particular was sufficient to entitle him to give evidence as an expert.
[41] Accordingly, there is nothing in this ground of appeal.
Disposition
[42] For the reasons given, the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington, for Respondent
0
0
0