The Queen v Livingston
[2000] NZCA 234
•12 October 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA232/00 CA233/00 |
THE QUEEN
V
JOSEPH PETER LIVINGSTON
SHANE WILLIAM KENNER
| Hearing: | 13 September 2000 |
| Coram: | Gault J Keith J Blanchard J Tipping J McGrath J |
| Appearances: | W M Johnson and I N Sylvander for Appellants C L Mander for Crown |
| Judgment: | 12 October 2000 |
| JUDGMENT OF THE COURT DELIVERED BY TIPPING J |
Introduction
These applications for leave to appeal involve various issues which arise when blood or breath alcohol charges are tried before a Judge and jury. Our ultimate conclusion is that at this pre-trial stage we have no jurisdiction to decide the applications themselves. We will nevertheless offer guidance on the primary points arising, after an examination of the statutory regime.
The appellants, Messrs Livingston and Kenner, are each charged under s56 of the Land Transport Act 1998 with driving while the proportion of alcohol in their breath, as ascertained by an evidential breath test subsequently undergone by them, exceeded 400 micrograms of alcohol per litre of breath. They both had at least two similar previous convictions and, if convicted as charged, they would have committed an indictable offence rendering them liable to a maximum penalty of 2 years imprisonment or a fine of $6000. First and second breath or blood alcohol offenders commit summary offences only, for which the maximum penalty is 3 months imprisonment or a fine of $4500.
When introducing the more serious category of offending, Parliament deliberately made the offence concerned indictable and accordingly gave those charged a right to elect trial by jury. A number of problems derive from the fact that in indictable cases of this kind, where trial by jury has been elected, the jury determines all matters of fact, and the Judge all matters of law. In summary cases the Judge is of course responsible for deciding all matters, both of fact and law. The overriding issue is to determine which aspects of the blood and breath alcohol regime are matters of fact for the jury, and which are matters of law, and what happens if an issue is one of mixed fact and law.
The legislation gives no guidance; albeit in indictable cases Parliament must have intended the jury to have some meaningful fact-finding role, otherwise there would have been no point in making such cases indictable, save only to preserve the general rule that offences carrying a maximum penalty of more than 3 months imprisonment involve a right of trial by jury.
Legal ingredients
Before examining the rulings made in the District Court in the present case, it is useful to consider the legal ingredients of an offence under s56(1):
56 CONTRAVENTION OF SPECIFIED BREATH OR BLOOD-ALCOHOL LIMIT-
(1) A person commits an offence if the person drives or attempts 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.
The offence thereby created, has the following elements:
[a]driving or attempting to drive,
[b]on a road,
[c]while the proportion of alcohol in the breath exceeds 400 micrograms of alcohol per litre of breath,
[d]as ascertained by an evidential breath test undergone under s69.
Element (a), driving or attempting to drive, is obviously a question of fact for the jury, but will seldom be in issue. Whether such driving was on a road is primarily, but not always entirely a question of fact. Again, it is hardly ever in issue. Whether the evidential breath test reading exceeded 400 micrograms is again a question of fact but, as a reading, it can hardly be disputed, ie. it can hardly be disputed that the device actually gave a reading of say 500 micrograms. In practical terms everything will usually turn on whether the ostensible result, giving the proportion of alcohol, was a result "ascertained by an evidential breath test undergone under s69".
An evidential breath test is defined in this way in s2:
"Evidential breath test" means a test carried out by means of an evidential breath-testing device in a manner prescribed in respect of that device by the Minister of Police, by notice in the Gazette:
And an evidential breath-testing device is defined as:
"Evidential breath-testing device" means a device of a kind approved for the purpose of evidential breath tests by the Minister of Police, by notice in the Gazette:
Analysis of legal ingredients
The concept of the proportion of alcohol being "as ascertained by an evidential breath test subsequently undergone under s69" contains two discrete ingredients. First, there must have been an evidential breath test; second, it must have been undergone under s69. The first ingredient can itself be further broken down. Whether there has been a qualifying evidential breath test depends (a) on whether the test was carried out by a device of a kind approved for the purpose by the Minister of Police by notice in the Gazette; and (b) on whether the test was carried out in a manner prescribed, in respect of the device used, by the Minister of Police by notice in the Gazette. In short, the device used must be of an approved kind, and must be operated in an approved manner.
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, 305 (CA). 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.
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.
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.
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.
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 s75 of the Land Transport Act 1998.
The second ingredient, as mentioned in para [8] above, is that the evidential breath test must have been undergone under s69. This requires the Crown to establish, if the matter is properly put in issue, that all the necessary procedural steps anterior to and involved in s69 have been properly carried out. Issues raised in this area, which can be called procedural issues, are questions of law or at least questions of mixed fact and law. They may also involve questions of reasonable compliance under s64(2).
All such procedural issues, even if they include issues of fact, are for the Judge (Police v Anderson [1972] NZLR 233 (CA) and R v Gallagher [1991] 3 NZLR 163 (CA)). They do not represent ultimate ingredients of the offence. They are matters of an incidental or qualifying kind which are akin to matters of admissibility. They govern whether the test is "evidential". If a required procedural step is absent, then, subject to reasonable compliance, the result of the test cannot found a conviction. Alternatively it can be said that in such circumstances the test does not qualify as a test for the purposes of s56, having not been lawfully undergone under s69. On that view, any procedural flaw would be akin to a definitional inadequacy. The immediate point is that all questions in this area should be determined by the Judge, not the jury. As with definitional issues, if there is a procedural flaw undermining the result of the test, the case collapses. If not, the Judge simply directs the jury that the test was "undergone under s69".
As regards most issues which the Judge has to decide before or in the course of a criminal jury trial, the standard of proof in relation to disputed facts is the balance of probabilities. The Crown has the onus to that standard. There is no basis for applying the higher standard of proof beyond reasonable doubt to the kind of issues which are likely to arise in the present context. The matters involved are not ultimate issues, nor is there any policy reason to treat them as such for standard of proof purposes, as with the voluntariness of a confession (R v McCuin [1982] 1 NZLR 13 (CA)).
The present cases
Against that background we turn, to the extent necessary, to the circumstances of the present cases. Both appellants have been committed for trial by jury in the District Court at Wellington on breath alcohol charges under s56(1). The Crown applied under s344A of the Crimes Act 1961 for orders declaring admissible at the forthcoming trials the evidence of named police constables concerning the result of the relevant evidential breath tests. They were said to show, in the case of Mr Kenner, a level of 1039 micrograms and, in the case of Mr Livingston, a level of 833 micrograms. In the first case the grounds for the Crown's application were that "it appears that the admissibility of the test result will be challenged by defence counsel". In the second, the Crown's grounds were that it appeared "defence counsel intends to challenge the compliance with the legally specified procedures used to obtain the evidential breath test and to challenge the reliability of the evidential breath testing device", and "in doing so the defence is challenging the admissibility of the evidential breath test result". The Crown's applications were heard on 12 June 2000. The following day the Judge issued a minute saying, so far as is relevant to the present issues:
1. The issue unresolved at the conclusion of the hearing under s344A on 12 June 2000 was whether, to give the application complete formal effect, a ruling was required on evidence of contested admissibility. The difficulty then was that there is no contest as to the admissibility of any of the depositions evidence. The contest is rather as to when and how that evidence is to be led and to what standard it must go.
2. In R v Accused (CA 32/91) (1991) 7 CRNZ 2301, CA, it was held by a majority that s344A is not confined to what evidence may be adduced, it extends to issues about the manner in which evidence is adduced.
3. I intend, that being so, unless any counsel raises objection, to express the Crown's application in that way, and to rule on it, without the Crown's witnesses being required to appear to give viva voce evidence according to their depositions.
The Judge gave his substantive ruling on 30 June 2000. He noted that the present cases were among the first instances of the exercise of the newly introduced right of trial by jury in this field. The Judge indicated that on the first morning of the trial he had invited the Crown to make application under s344A and had suggested that, whatever his ruling might be, it ought to be appealed "to obtain a definitive charter on the interrelated issues of principle and practice". The Judge then noted a number of issues which potentially arose. These included whether the defence could be required to disclose its hand in advance of the trial, what standard of proof applied in various respects and on whom the burden rested, and which matters were for the Judge to determine and which for the jury. He noted Mr Johnson's reservation about whether a s344A application was apt to determine the issues arising. As to that the Judge relied on R v Accused (CA32/91) (1991) 7 CRNZ 230 (CA) to which he had already referred in his earlier minute.
Having referred to counsel's submissions, the Judge addressed the relevant aspects of the Land Transport Act 1998 and then considered the difference between what he described as conditions precedent to an offence and its actual ingredients. He cited several cases including Police v Anderson (supra), and R v Gallagher (supra), and noted the recent decision of Judge Abbott in a case raising the same issues as the present - R v Butterfield, District Court, Christchurch, T16/00, 22 May 2000.
Following his careful survey of these matters, the Judge expressed his answers to the Crown's applications by giving what he described as "the following directions":
1. The Crown is to lead at trial the evidence in the depositions, to supply the jury with the full narrative, and is required to prove at trial to the criminal standard:
(i) the primary issues of fact: the identity of the accused, the time, the place, the act of driving, and the status of the vehicle and roadway, unless any of these are conceded; and any going to any claim of total absence of fault:
(ii) the accuracy of the evidential breath test, if there is a challenge ruled prior to trial to have a foundation, and compliance with the evidential breath test procedure.
2. The defence is to make, preferably at the initial callover, and certainly before a trial date is allocated:
(i) any challenge to the admissibility of the evidential breath test result, relying on lack of compliance with the procedure prior to the evidential test, so that this can be determined to the balance of probabilities, once and for all, prior to trial, on a s344A application:
(ii) any challenge to the accuracy of the evidential device, so that any issue of discovery can be resolved prior to trial, as also whether the challenge has a proper evidential foundation.
Jurisdiction
We now address the question whether this Court has jurisdiction to give leave to appeal against the Judge's directions, as sought by Messrs Kenner and Livingston. Section 344A of the Crimes Act 1961 states:
344A. INTERLOCUTORY ORDER RELATING TO ADMISSIBILITY OF EVIDENCE -
(1) Where any person is committed for trial and--
(a) The prosecutor or the accused wishes to adduce any particular evidence at the trial; and
(b) He believes that the admissibility of that evidence may be challenged,-
he may at any time before the trial apply to a Judge of the Court by or before which the indictment is to be tried for an order to the effect that the evidence is admissible.
(2) The Judge shall give each party an opportunity to be heard in respect of the application before deciding whether or not to make the order.
(3) The Judge may make an order under this section on such terms and subject to such conditions as he thinks fit.
(4) Nothing in this section nor in any order made under this section shall affect the right of the prosecutor or the accused to seek to adduce evidence that he claims is admissible during the trial, nor the discretion of the trial Judge to allow or exclude any evidence in accordance with any rule of law.
The Crimes Act, which governs indictable cases, gives rights of appeal from the trial Court in three situations. First, there is the conventional right of appeal against conviction and sentence afforded by s383. That right is exercisable only after trial. Second, rights of appeal arise under ss380 and 381 on questions of law reserved during or after trial or where the trial Court has declined to reserve such a point. Third, at the pre-trial stage the accused has the rights specified in s379A which covers the field for pre-trial purposes, save only for questions of bail and costs which are dealt with under ss379B, 379C, 379CA and 379D.
Thus, if there is any right to seek leave to appeal from the Judge's directions in this case, it must be found in s379A. The only part of that section which could apply is s379A(1)(aa) which gives a right of appeal by leave of this Court:
(aa) Against the making of an order under section 344A of this Act, or against the refusal of a Judge to make such an order:
The Judge was here dealing with an application purporting to be brought under s344A but its purported foundation is not the real issue. It is necessary to determine the nature of the order the Judge actually made to see if it is of a kind to which para (aa) applies. It should be noted that it is against the order made, not against any refusal to make an order, that Messrs Kenner and Livingston seek leave to appeal. Specifically the challenge is to para 1(ii) and para 2 of the Judge's directions. It is patent from the terms of those directions that the Judge was not deciding whether any particular evidence was admissible at the forthcoming trials. No question of admissibility in any relevant sense is addressed in the directions, save in para 2(i) which, on its face, does not determine any question of admissibility but simply directs the defence to make a s344A application. Hence this Court has no jurisdiction under s379(1)(aa) to grant leave to appeal from the Judge's directions. No other source of jurisdiction was suggested. The present case is not covered by R v Accused (supra para [15]) on which the Judge relied. In that case the mode of giving evidence was equated with admissibility. No such equation can be made in present circumstances.
Our earlier review does, however, demonstrate that the Judge's direction 1(ii) is not, with respect, the correct approach to the issues arising. We will summarise the essentials of our earlier discussion at the end of this judgment, after we have considered the matters arising from para 2 of the Judge's directions.
Advance disclosure of defence case
In para 2 the Judge was addressing the "ambush" issue. He was endeavouring to find a way in which any challenge to the breath alcohol result could be identified and dealt with before trial. The difficulty is that the Judge was unable to demonstrate any lawful basis upon which to require the defence to disclose its hand in this respect before trial. This is not surprising because, as the law stands, there is no basis for requiring such disclosure. The dictates of efficiency and case management cannot create a power which does not otherwise exist. Indeed the content and structure of the Crimes Act militate against there being any power to require an accused person to give advance particulars of the defence case. It was, for example, necessary to make express statutory provision for alibi notices: see s367A introduced in 1973. A similar requirement might be desirable in the present field. There can be no suggestion of trial Courts having an inherent power to require particulars of an accused person's defence. Thus, the directions given by the Judge in para 2 were not in accordance with the law. Section 344A is empowering, not mandatory. Nothing we have said should be construed as inhibiting responsible co-operation by the defence in order to have matters of dispute dealt with before trial when that can properly be done.
The absence of any power to require the defence to disclose its hand before trial does not mean that the Crown can be successfully ambushed at trial. If no or insufficient advance warning has been given of a particular line of defence, being something which the Crown could not reasonably have anticipated, the Crown will generally be entitled to call evidence in rebuttal and, if necessary, to have the trial adjourned for that purpose. This situation is not covered by s368 which looks at a similar problem from the accused's point of view. The Court is thereby empowered to adjourn the trial and, if necessary, to discharge the jury, but only on the application of the accused. Section 367(2) contemplates the Crown calling evidence in rebuttal. It must follow that the Court has a power to adjourn the trial if such be necessary for that purpose: see s373. If the adjournment is short, no major problem or inconvenience will arise from the jury's point of view. But there may be cases in which the time necessary for the Crown to assemble rebuttal evidence, will be longer than can be accommodated by an adjournment. In that situation the question arises whether the Judge can discharge the jury on the application of the Crown so as to allow the Crown time to present rebuttal evidence at the new trial. That point is not addressed, even implicitly, in either s367 or s368. The only general power to discharge the jury, after the accused has been put in charge, is to be found in s374, of which ss(1) is the only provision which could be relevant to the situation under discussion. It provides:
(1) Subject to the provisions of this section, the Court may in its discretion, in the case of any emergency or casualty rendering it, in the opinion of the Court, highly expedient for the ends of justice to do so, discharge the jury without their giving a verdict.
The point turns on whether the need for the Crown, in the interests of justice, to seek to rebut an unheralded challenge to the breath alcohol result can properly be described as an emergency or casualty. The learned authors of Adams on Criminal Law 1992 (loose-leaf edition) state in their notes to s374 that the term "casualty" appears to mean no more than "a chance event". The word "casualty" is an unusual one in the present context. It must be seen as adding materially to the concept of an emergency.
In R v Tatana (1994) 11 CRNZ 708 (CA) the trial Judge had discharged the jury following the failure of a Crown witness to appear, and the failure of another Crown witness to come up to brief. This Court held the circumstances came within the concept of casualty. Hence the discharge was within the discretionary jurisdiction of the Judge, albeit this Court may not have exercised the discretion in the same way. At 711 Holland J, giving the judgment of Eichelbaum CJ, Gault J and himself, said:
Although we may not have exercised our discretion in the way that the trial Judge did we are nevertheless satisfied that he had jurisdiction under the section to do so. The words "emergency" and "casualty" are common words. It would be difficult to conclude that the circumstances in this case amounted to an "emergency". "Casualty", however, is defined in the New Shorter Oxford Dictionary as being "a chance occurrence, an accident, a mishap, a disaster". The circumstances in which it may be desirable in the interests of justice to discharge a jury under S.374 are multifarious and possibly indefinable. We do not see any need to adopt a strained or limited interpretation of "casualty".
To similar effect are the decisions in R v Thompson CA182/85, 13 December 1985 and R v Henare CA187/00, 26 July 2000.
It follows from this approach to the jurisdiction given by s374(1) that if a person accused of a breath or blood alcohol offence raises a defence entitling the Crown to call evidence in rebuttal, and in circumstances which make it desirable to discharge the jury, the Judge has the power under s374 to direct such discharge on the application of the Crown. An accused who raises without notice an unforeseeable defence in the blood or breath alcohol field, knowing that technical evidence will be required to meet it, can hardly complain if the jury has to be discharged to allow the Crown to call appropriate evidence to rebut that defence. It will not usually be in the overall interests of justice to allow a defence to succeed by ambush rather than intrinsic merit.
In paragraph 2 (ii) of his directions, the Judge mentioned the question of discovery. An accused who is dissatisfied with the Crown's stance on this front should raise the matter with the Judge in sufficient time before the commencement of the trial. Questions relating to discovery and its adequacy should not be raised in the presence of the jury. Whether the Crown has made appropriate discovery is a matter for the Judge, having as it does potential evidentiary connotations.
Summary
We will now summarise the main points which emerge from the foregoing discussion:
All definitional and procedural issues, as so described in paras [11] and [14], relating to the validity of an evidential breath or blood test are for the Judge to decide.
The onus is on the Crown to establish on the balance of probabilities all disputed facts involved in the determination of such definitional or procedural issues.
All reliability issues, as so described in para [13], in relation to the particular evidential breath test result are for the jury to decide; but only if the accused has laid a sufficient evidential foundation for the assertion of unreliability.
If a reliability issue is left to the jury the onus is on the Crown to establish beyond reasonable doubt that the test result was reliable.
An accused cannot be required to disclose his or her defence in advance of trial but reasonable co-operation between Crown and accused in this respect is to be encouraged.
If the Crown is ambushed by a non-disclosed defence, and it becomes necessary to do so in the overall interests of justice, the Judge may discharge the jury under s374 and direct a retrial.
Formal orders
For the reasons given above we have no jurisdiction formally to deal with these applications. They are accordingly dismissed but without any orders for costs.
Solicitors
Crown Solicitor, Wellington
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