W v Police HC Auckland Cri-2009-404-150
[2009] NZHC 940
•31 August 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-404-000150
W
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 7 July 2009
Appearances: S Blake for the Appellant
E C Finlayson-Davis for the Respondent
Judgment: 31 August 2009
JUDGMENT OF DUFFY J
This judgment was delivered by Justice Duffy on 31 August 2009 at 12.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: S Blake P O Box 12705 Penrose Auckland 1642 for the Appellant
Solicitors: Meredith Connell P O Box 2213 Shortland Street Auckland 1140 for the
Respondent
W V POLICE HC AK CRI-2009-404-000150 31 August 2009
[1] W has appealed against the conviction entered against him in the District Court at Manukau for driving with excess breath alcohol. This was his third such conviction. He was sentenced to 120 hours’ community work, disqualified from holding or obtaining a driver’s licence for 18 months, and indefinitely disqualified from driving under s 65 of the Land Transport Act 1998 (the Act).
[2] In the course of the appeal hearing, the Crown very helpfully drew the Court’s attention to a lack of jurisdiction on the part of the District Court to impose a finite term of disqualification. To enable that matter to be resolved, the Crown indicated that it would not oppose an appeal against sentence out of time in relation to the disqualification. This would permit the Court to rule on the issue.
[3] After the appeal hearing, Mr W filed a memorandum seeking leave to appeal the disqualification aspect of his sentence out of time. Since that will not be opposed, I will deal with that issue on the papers.
Conviction appeal
[4] The only ground of appeal is that the Constable who conducted the evidential breath test did not comply with s 77(3)(a) of the Act. In this regard, the appellant contends that he was not advised of the positive result of the test and informed of his statutory right to elect a blood test “without delay”, as is required by that provision.
[5] The complicating factor in this case is that there is an ambiguity in the prosecution evidence that results from there being a time difference between the time recording of the evidential breath test device and the Constable’s time recordings, which were taken from his wristwatch. The Constable acknowledged this ambiguity in his evidence, but nothing further was said by way of explanation for there being a difference of about 10 minutes.
[6] The ambiguity in the prosecution’s evidence is significant. The evidential breath test device recorded a result at 20.31 hours, whereas the Constable’s record in his notebook was that the result was obtained at 20.41 hours. The formal notification of the result and the statutory right to elect a blood test is recorded as
being given at 20.48 hours, this time record being based on the Constable’s notebook entry. If the time gap between the obtaining of the result and the giving of the formal advice is calculated from the Constable’s notebook entries (all of which were taken from his wristwatch), there is a seven minute gap. But if the time difference is taken from the time recorded on the testing device (20.31 hours), the gap between the obtaining of the result and the formal notification of the result to Mr W is
17 minutes. This later gap is likely to fall outside the bounds of acceptable delay in terms of the Act’s requirements. It follows that a close analysis of what eventuated at the time of the testing, as well as the legal principles relating to proof in criminal cases, and the drawing of permissible inferences, will have to be undertaken.
[7] Section 77(3) of the Act provides:
77 Presumptions relating to alcohol-testing
…
(3)Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—
(a)The person who underwent the test is not advised by an enforcement Constable, [without delay] after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes,—
(i) In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds
400 micrograms of alcohol per litre of breath, the
test could of itself be [conclusive] evidence to lead to that person's conviction for an offence against this Act; or
(ii) In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds
150 but does not exceed 400 micrograms of alcohol per litre of breath, the test could of itself, unless the person is 20 or older, be [conclusive] evidence to
lead to that person's conviction for an offence against this Act; or
(b) The person who underwent the test—
(i)Advises an enforcement Constable, within 10 minutes of being advised of the matters specified in paragraph (a), that the person wishes to undergo a blood test; and
(ii) Complies with section 72(2).
…
[8] Section 64(2) is also relevant. It is a savings provision, which provides some accommodation of non-compliance. Provided the prosecution can show there has been reasonable compliance with the requirements of s 77(3), a failure to strictly comply with those requirements will not be fatal to the admissibility of the evidence obtained from the evidential breath test. The section 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.
…
[9] The prosecution evidence is that on 2 February 2008, Police Constable Mark Downie saw Mr W driving a black Subaru. Mr W was stopped by the Constable and required to undergo a roadside breath test. This produced a failed result. Mr W then underwent a breath screening test, which also produced a failed result. Following the administering of a caution under the New Zealand Bill of Rights Act 1990, Mr W accompanied the Constable to the Waiuku Police Station for the purpose of undergoing an evidential breath test.
[10] The Constable had recorded that they arrived at the Police Station at 20.00 hours. At the Police Station, Mr W was provided with a form, which sets out the caution under the New Zealand Bill of Rights Act and advises a suspect person of his or her right to remain silent and to obtain legal advice. The time at which this form was given to Mr W is recorded on the form. The time recorded is 20.19 hours. There was some discussion about Mr W contacting his lawyer, but this was ultimately abandoned. The Constable then gave evidence of a series of timed events, which were taken from his wristwatch and which had been recorded in his notebook. However, nothing is said about how or when the record in the notebook
was made. It is not clear from the evidence whether the notebook record of each timed event was made at the exact time or entered shortly thereafter.
[11] The Constable said that at 20.33 hours, in response to a question about whether he wanted to obtain legal advice, Mr W declined. The Constable said that at 20.34 hours he required Mr W to undergo an evidential breath test “without delay”. The testing device was assembled, there is no evidence about how long this took, and Mr W blew two samples of breath into the device. The Constable said that the test produced showed a positive result and that at 20.41 hours the “print-out of the machine was filled out and a copy was given to the defendant”.
[12] Then the Constable completed the form entitled “advice of positive breath test” and gave it to Mr W . The time recorded on this form is 20.48 hours. This is the form which advises Mr W of the result of the breath test and of his statutory right to require a blood test. The advice contained in this form is the advice which, under s 77(3) of the Act, had to be given to Mr W without delay. After this, from 20.49 hours, the 10 minute period for Mr W to consider if he would undergo a blood test commenced running. It was stopped at 21.02 hours. Mr W did not elect to have a blood test.
[13] The time record made by the evidential breath test device conflicts with the times given by the Constable. The print-out from the test device shows it commenced operation at 20.28 hours and the result was given at 20.31 hours. The Constable’s evidence was that Mr W was not directed to undergo the test until
20.34 hours, and a result was obtained at 20.41 hours. Hence, there is a difference of
10 minutes between the time shown on the test device for the result and the time recorded by the Constable.
[14] The Constable was asked a question, which I understand (the notes of evidence use the word “succint”) as being “was your watch synchronised with the evidential breath testing device?” The Constable gave a negative answer. He then went on to say that the test device was working fine and to confirm it had no faults. He had earlier given evidence that the device had been subject to and passed the usual checks.
[15] The Constable was not cross-examined. The prosecution then closed its case. Mr W submitted there was no case to answer on the ground the evidence did not establish that the required statutory advice was given to Mr W “without delay”. Consequently, under s 77(3), the results of the evidential breath test were not admissible. Without those results, there was nothing to prove that Mr W had been driving with excess breath alcohol.
[16] The District Court Judge found that all that needed to be proved was the fact that the breath screening test was conducted, the evidential breath test was conducted, the result of the test, and that Mr W was advised of his right to give blood. Since those matters had been proved, the Judge entered a conviction against Mr W . As regards the time differences between the record of the evidential breath test and the Constable’s record of when a result was obtained from the test, the Judge found, relying on Aylwin v Police [2009] 2 NZLR 1, that they were immaterial to the outcome of the case. He said:
It seems to me there is absolutely no defence and whatever differentials there might be as to timing between what is on the officer’s watch and what is recorded at various times in his notebook or on some machine is just immaterial.
Because the Judge had concluded that the differences were immaterial, he did not address the issue of whether the statutory advice was given without delay and, if not, whether s 64(2) was applicable.
[17] The respondent did not attempt to support the finding that the time differences were immaterial. This is understandable. With respect, unlike the Judge, I do not read the Supreme Court’s decision in Aylwin to be supportive of such a finding.
[18] In Aylwin, the Supreme Court found that it was not necessary for the prosecution to adduce evidence of the manner in which the breath screening test and the evidential breath test were administered. This finding appears to rest on the presence of s 64(4) and (5), which preclude a defendant from challenging the correctness or accuracy of the test results on the ground of machine or operator error. Provided the test was done with an approved device in the prescribed manner, the
effect of s 64(4) and (5) is that the result will be treated as reliable and correct. The statement by the Supreme Court that it is sufficient for the prosecution to prove the tests were administered and a positive result obtained was said in the context of what was required to establish the manner in which the breath screening test and the evidential breath test were administered. As there was no issue of delay in terms of s 77(3), the Supreme Court did not need to consider the admissibility of the positive test result in terms of s 77(3).
[19] I do not consider that the findings in Aylwin can be transposed onto the body of law that has developed on the application of s 77(3). Moreover, in Aylwin the Supreme Court expressly recognised the right to elect to have a blood test and the right to be advised of that right as protections from the consequences of the restrictions in s 64(4) and (5). Those restrictions prevent any challenge to the accuracy or correctness of the breath screening test and the evidential breath test. At [11] the Supreme Court said:
The legislative intent is clear: the subsection precludes any challenge to the result of a breath screening test or an evidential breath test, and any claim that an evidential breath test should not have been undertaken because of an error in a prior test. It is irrelevant whether the error was a machine error or an operator error. The right of election to have a blood test and the right to be advised of that right, conferred by s 70A, must be regarded as providing effective protection against the consequences of an error in a breath screening test or an evidential breath test.
Given the protective importance the Supreme Court has attributed to those rights, it is hardly likely that the Supreme Court would consider adherence to the procedural requirements attached to those rights to be immaterial. For if those rights could be undermined by procedural laxity, beyond that permitted by s 64(2), there would be no protection from errant test results. It follows that I do not consider that there is anything in Aylwin that makes the time differences in this case immaterial to a consideration of the admissibility of the results obtained from the evidential breath test.
[20] I now turn to consider whether the evidence shows that the results of the evidential breath test and the right to elect to have a blood test were conveyed to Mr W without delay. And, if not, whether, nonetheless, there was reasonable
compliance in terms of s 64(2) that would enable the evidential breath test results to be admitted into evidence.
[21] The appellant is challenging the admissibility of the evidential breath test result on the ground it fails to comply with s 77(3) and it cannot qualify for admission under s 64(2). This is a procedural challenge that raises issues that are not ultimate ingredients of the offence. R v Livingstone [2001] 1 NZLR 167 makes it clear that for such challenges, even in the context of a criminal prosecution, the appropriate standard of proof when making factual determinations is the balance of probabilities.
[22] If only the Constable’s timekeeping record was to be relied upon, the difference between when the test result was obtained (20.41 hours) and when the statutory advice was given (20.48 hours) would be seven minutes. The respondent has invited the Court to work solely from the Constable’s records and to disregard the time recorded by the evidential breath test device. This is the approach that was taken in Geard v Police HC WHA CRI 2007-488-66 5 May 2008, Keane J. In that case, Keane J found there was a clear discrepancy between the time recorded from the Police Officer’s watch and that recorded by the evidential breath testing device. At [8] Keane J concluded:
I can only conclude that the officer’s evidence, which the Judge accepted as scrupulous and accurate, is to be preferred.
[23] The respondent very properly acknowledged that in the case on appeal, the District Court Judge made no finding on the quality of the Constable’s evidence. Since the Judge regarded the time discrepancy between the Constable’s records and that of the evidential breath testing device as unimportant, this was to be expected.
[24] The reason for the time discrepancy was not explained in evidence. I have difficulty with disregarding the time recorded by the evidential breath testing device. An evidential breath testing device certificate of compliance was produced in accordance with s 75A of the Act. The combined effect of s 75A and s 64(4) and (5) is to create a statutory presumption that requires the evidential breath test to be treated as accurate and reliable. I recognise that s 64 does no more than to preclude a
defence based on the device being inaccurate or unreliable. Nonetheless, I find it hard to see how, in the face of s 75A and s 65, the prosecution could advance an argument that the evidential breath test device was in error, or that information it produced should be disregarded. Moreover, in this case, the Constable gave evidence that there were no faults with the test device, that the machine did the calibration checks and, if there had been faults, the machine would have showed that. I consider, therefore, that the test device must be treated as having recorded an accurate and reliable time for when the test commenced (20.28 hours) and when the result was produced (20.31 hours).
[25] This means the only way of reconciling the discrepancy is to view the Constable’s watch as being in error by 10 minutes. However, there is no direct evidence to explain there was such an error. This is not a case where the Constable gave evidence that at the time the evidential breath test process was underway, he realised there was a 10 minute discrepancy between the time of the test device and that of his watch. The Court is left to infer this discrepancy from the available evidence. The problem with doing so is that since the Constable did not, at the time of the test, turn his mind to noting the actual discrepancy, it is hard to know if 10 minutes is an accurate assessment of the discrepancy.
[26] Mr W contends that at an earlier time in the process, the evidential breath test device records the test started at 20.28 hours, whereas the Constable said he required the evidential breath test to be taken at 20.34 hours. Mr W says the discrepancy between the Constable’s time of when he required the test to be undertaken and when the test device recorded the test commenced is six minutes. If this is so, it does not fit with a later discrepancy of 10 minutes between the test device and the Constable’s watch.
[27] The respondent contends that the event of requiring Mr W to take an evidential breath test is not the same event as when the test commenced. However, the Constable’s evidence is that:
At 20.34 hours [he] required [Mr W ] to undergo an evidential breath test without delay.
The Constable goes on to describe the type of test device used and then to say that Mr W blew two samples of breath into the test device. Whilst in other parts of his evidence the Constable has directly referred to Mr W using a delaying tactic when it came to carrying out the Constable’s directives, nothing is said about that here.
[28] For the discrepancy between the time recorded by the device and that recorded by the Constable to be consistent, it would mean that after the Constable directed Mr W to take the evidential breath test without delay, Mr W in fact delayed doing so for four minutes. That is the only way that the six minute discrepancy between the test device’s commencement time and the Constable’s time record can be explained. In the contest of a process which is worked through in a step by step manner and where 10 minutes is allowed to make a decision on whether or not to elect a blood test, a four minute delay would be noticeable.
[29] Either there was a four minute delay between the directive to undergo the test and when Mr W commenced doing so, which the Constable omitted to describe in his evidence, or there was no such delay. But, if it is the latter, this means that the time difference between the Constable’s watch and the test device was not constant. This opens up the possibility that the Constable’s time records were not carefully recorded, which, in turn, casts doubt on their reliability.
[30] The difficulty I have with drawing the necessary inferences from the circumstantial evidence to reach a view on how to explain the time discrepancy is that I am faced with more than one inferential explanation for the discrepancy. When it comes to drawing inferences from proven facts, a helpful explanation of how the Court should approach this task is to be found in R v Haarhaus HC AK CRI
2007-004-18646 4 June 2009, Stevens J. At [15], Stevens J said:
A common sense view is called for in deciding what inferences or conclusions should be drawn from the evidence. The question is whether there is a factual basis and a logical process which leads to a conclusion from other proven facts, thus enabling inferences to be drawn. In this connection, it is appropriate to consider the surrounding evidence that I find to be reliable and ask whether it is safe, logical and rational to draw the conclusion contended for. Finally, it must be logical and rational and must never be speculation or guesswork. I bear in mind that, in relation to any aspect of proof of the alleged aggravating features, where the evidence
would support two conclusions of similar weight, to then choose between them would be to guess, which is not permissible: see R v Puttick (1985) 1
CRNZ 644 (CA) at 647.
[31] I consider that to arrive at a view on how to reconcile the six minute time difference between the Constable directing Mr W to undergo an evidential breath test, and the time recorded by the test device of when the test commenced, I would have to guess. This is because I am faced with two competing inferential explanations of equal weight. Once I cannot reconcile this discrepancy, I have nothing to work from in order to infer an explanation for how the 10 minute discrepancy relating to the time the test result was obtained has come about. It follows that the prosecution evidence does not provide sufficient facts to construct a factual basis from which I can draw a logical, reliable and rational inferential explanation which satisfies me, on the balance of probabilities, that the time discrepancy is simply one of the Constable’s watch being 10 minutes fast.
[32] I am left with the following factual information. The evidential breath test result was obtained at 20.31 hours. Mr W is recorded as being given the “advice of positive breath test form” at 20.48 hours, although this time is inaccurate as it was taken from the Constable’s watch, which was fast. How fast the Constable’s watch was is not clear to me and I am not prepared to speculate. In these circumstances, I must determine if the statutory advice required to be given under s 77(3) was given “without delay”. It is for the prosecuting authority to satisfy me on the balance of probabilities that the statutory advice was given “without delay”.
[33] It is clear to me from the above facts that the statutory advice was given within a timeframe of no more than 17 minutes, but I can conclude no more than that. Is this enough to enable me to conclude on the balance of probabilities that the statutory advice was given “without delay”?
[34] In Kavanagh v Police HC CHCH CRI 2005-409-000231 27 February 2006, Fogarty J held that absent a proper explanation or reason why a delay of some nine minutes had occurred was fatal to the prosecution. In McCarthy v Police HC WN AP312/02 19 February 2003, Chisholm J accepted that a delay of 10 minutes did not
meet the requirements of s 77(3), although he did find the delay was excused in terms of s 64. In Kydd v Police HC CHCH CRI 2007-409-134 & 136 29 June 2007, Chisholm J found that a delay of eight to 10 minutes did not satisfy s 77(3). At [14] he said:
I proceed on the basis that “without delay” is synonymous with “forthwith”
or “immediately” …
And in Ariki v Police HC AK CRI 2007-404-000174 6 November 2007, Keane J was not prepared to accept that a delay of nine to 11 minutes met the requirements of s 77(3). When I take account of the findings in these cases, it becomes obvious to me that what has happened in Mr W ’s case cannot be described as having occurred “without delay”.
[35] There was no cross-examination of the Constable on whether or not the statutory advice was given without delay. However, this is unimportant. Ariki makes it clear that the defence is under no duty to put the prosecution on notice that delay is in issue. With the present case, the prosecution has adduced evidence of the various times on which it relies. Mr W does not seek to contradict these times. He simply relies upon the apparent conflict in the prosecution’s own evidence, and argues that there is insufficient reliable evidence before the Court to satisfy it that the statutory advice was given in accordance with the requirements of s 77(3). This entails a legal determination. It follows that cross-examination was unnecessary.
[36] I now turn to consider whether the prosecution can establish on the balance of probabilities that what occurred amounts to reasonable compliance in terms of s 64.
[37] It is for the prosecution to explain any delay: see Ariki at [50]. Absent an explanation for delay, s 64 cannot be relied upon to save the prosecution case: see Kavanagh v Police.
[38] In Mr W ’s case, the discrepancy between the two timepieces means the Court cannot be certain of the time when the statutory advice was given. This knowledge cannot be gained from guesswork or speculation.
[39] The prosecution did not explain how it was that there was this discrepancy between the evidential breath testing device and the Constable’s watch. This is unsatisfactory. The concept of reasonable compliance carries with it the expectation that there will be a reasonable explanation for the departure from the requirement to give the statutory advice without delay. Examples of circumstances that are considered capable of excusing delay include the officer conducting the evidential breath test concerned being diverted by an urgent telephone call or an accident: see Kavanagh at [13].
[40] In Kavanagh, Fogarty J saw a failure to provide the statutory advice without delay as being more than a purely technical and non-prejudicial error. He considered that the statutory requirement forms part of a statutory process that subjects those being tested to detention by the Police for the purpose of obtaining evidence for a potential prosecution. As such, this process imposes a constraint on the liberty of those being detained, which, for this reason, should be for no longer than necessary. I concur with Fogarty J’s view.
[41] Apart from the constraint on the liberty of the person being tested, there is another aspect of the statutory process, which reinforces the importance of compliance and which shows that non-compliance is more than just a technical and non-prejudicial error. This is brought home by the Supreme Court’s decision in Aylwin. Speaking for the Supreme Court, Wilson J described the right of election to have a blood test, and the right to be advised of that right, as being effective safeguards against the consequences of an error in a breath screening test or an evidential breath test: see [11].
[42] Since the legislation precludes any challenge to the result of a breath screening test or an evidential breath test on the ground of error either by the machine or the operator, adherence to the requirements of the statutory safeguards is important. The Court should do all it can to uphold them.
[43] When it comes to considering whether or not there has been reasonable compliance with the statutory safeguards, I consider it is incumbent on the Police to adduce evidence that either proves their time recordings of the testing process are
accurate, or provides a contemporaneous explanation for any discrepancy. I can see no reason why timekeeping devices cannot be synchronised before the testing procedure is commenced. If that is not possible, an identification of, and explanation for, any discrepancy between the timekeeping devices should be done at the time the testing procedure is undergone. Only in this way can some precise knowledge of the various timed events, which form part of the statutory process, be gained. Without this knowledge, the Court is in no position to determine if a departure from the requirement of “without delay” can be excused on the ground it qualifies as reasonable compliance.
[44] The prosecution sought to rely on the fact that before the formal advice of the breath test result and the right to elect a blood test was given to Mr W , he was informally advised that he had tested positive. This argument relies on Kydd v Police and McCarthy v Police. In both those cases, Chisholm J found there was partial compliance with s 77(3), through an officer informally advising the person being tested that a positive result had been obtained. This advice was given in advance of the full and formal advice contemplated by s 77(3). Such an approach has difficulties, if it were to be applied to this case.
[45] First, I have already found that the time the test result obtained must be taken from the record made by the evidential breath testing device. It would be a nonsense for me to work from this time when considering reasonable compliance under s 64, and compare it with the Constable’s time of 20.41 hours when he says he provided Mr W with a print-out of the result from the test device. This is because, on the Constable’s evidence, the time of 20.31, as recorded by the test device, and the time of 20.41, as recorded by him, are one and the same time. I cannot treat times that I know to be different recordings of the same time as individual start and end points for the purpose of assessing whether or not there has been reasonable compliance with the statutory requirements.
[46] Secondly, unlike Kydd and McCarthy, in this case there is no evidence that the Constable informed Mr W he had tested positive. The print-out from the test device does not state the test was positive. It simply provides a reading of the breath alcohol level. To know the test was positive, the person receiving the print-
out would need to be able to read the breath alcohol level as shown on the print-out, recognise it for what it was, and compare it with the statutory limit, which would also need to be known. I am not prepared to infer that someone who has just undergone an evidential breath test, with all that that entails in terms of a potential prosecution, has the presence of mind to work out from data shown on a test print- out, whether he or she was over the limit. Consequently, I cannot find that Mr W was ever informally informed that he had tested positive.
[47] Thirdly, the Supreme Court’s recognition in Aylwin of the statutory protections afforded by the right to elect a blood test and to be advised of that right carries with it the implicit recognition that those protections must be adhered to in their entirety. For the protections to work effectively, persons who have been breath tested need to know more than that they have tested positive. They also need to know there is an alternative to the results of that test being used as evidence against them. Without that knowledge, they are in no position to consider whether or not they should seek the protection of Parliament’s safeguards against potential errors in the breath testing process. When looked at in this way, it is hard to see how advice that the breath test has been positive can amount to a partial compliance with s 70A that is sufficient to constitute reasonable compliance under s 64. Thus, I do not accept that informing a person within sufficient time of part of the requirements of s 70A can suffice when it comes to reasonable compliance. It follows that I do not consider there has been reasonable compliance in this case and, therefore, s 64 cannot save the prosecution case.
[48] The next question is whether this is a case that could be dealt with by reference back to the District Court for rehearing, or whether I should allow the appeal.
[49] In both Kavanagh and Ariki, the Court decided against a rehearing on the ground it would dilute the policy considerations which the Court had identified. Fogarty J (at [15]) in Kavanagh said:
In my view it is important that the police provide explanations for delays when seeking to rely on reasonable compliance. Setting aside the conviction and not directing a rehearing signals the importance of this requirement.
I am of the same view. This is not the first case where there has been a time discrepancy between the evidential breath test device and an officer’s watch. Absent evidence from the prosecution that establishes that such discrepancies cannot be avoided and that accurate explanations of the discrepancy cannot be made at the time, I am not prepared to assume the prosecution cannot reasonably supply this information. I can see no reason why, at the very least at the time of an evidential breath test, a record could not be made of any time discrepancy between the testing device’s time record and any other time keeping device the Police Officer administering the test has relied upon. In that way, the Court would have available to it a reliable basis for determining the timeliness of when the statutory advice was given. The importance of this aspect of the breath testing procedure was recognised in Aylwin. It is, therefore, unsatisfactory for the prosecution to present a case that entails some degree of guesswork on the part of the Court before it can determine the time at which the steps in this procedure were taken. It follows that Mr W has succeeded in his appeal against conviction.
[50] It is unnecessary to consider the appeal against sentence. However, since both the prosecution and Mr W drew my attention to the finite sentence of disqualification which the District Court imposed, I consider I should deal with this appeal as well. This would have been Mr W ’s third conviction of driving over the permissible limits. The result under s 65 is an automatic indefinite disqualification. No finite period of disqualification should have been imposed. That aspect of the sentence was wrong in law. This has been responsibly and helpfully recognised by the prosecution. Having drawn the Court’s attention to this issue at the hearing, the prosecution subsequently did not oppose an appeal against sentence being filed out of time and after the appeal hearing. The prosecution then filed a memorandum acknowledging that the appeal against the imposition of a finite sentence of disqualification must be granted. Had the appeal against conviction failed, I would have allowed the appeal against sentence to the extent that I quashed the disqualification period the District Court imposed.
Result
[51] The appeal against conviction is allowed and the conviction is set aside.
Duffy J
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