W v Police HC Wellington CRI-2009-485-37
[2009] NZHC 614
•25 May 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2009-485-37
W
v
NEW ZEALAND POLICE
Hearing: 19 May 2009
Appearances: Mr Bourke for the appellant
Mr Murray for the respondent
Judgment: 25 May 2009 at 3 pm
JUDGMENT OF MALLON J
Introduction
[1] Mr W was convicted, following a defended hearing in the District Court, on a charge of driving with excess breath alcohol (s 56(1) of the Land Transport Act 1998). He appeals against that conviction contending that:
a) The Judge erred in finding that the police officer had good cause to suspect that he had recently committed an offence involving the driving of a motor vehicle before requiring him to undergo a breath screening test (s 68(1)(b) of the Land Transport Act); and
b)The Judge erred in finding that Mr W had been adequately informed of his rights under the New Zealand Bill of Rights Act 1990
W V NEW ZEALAND POLICE HC WN CRI-2009-485-37 25 May 2009
and that a statement made by Mr W was admissible against
him.
The facts
[2] At 8.10 pm on 6 August 2008 a police officer was dispatched to an incident in Port Road, Seaview. There, the officer found a red van, which was stuck, with a woman sitting inside and Mr W next to another vehicle which was about 100 metres from the red van. Upon speaking to Mr W , the officer arrested him, charging him with unlawfully entering this other vehicle. The officer advised him of his rights to remain silent and to consult a lawyer, and that anything he said would be recorded and might be given in evidence. Mr W acknowledged his rights by stating “yep, yep”.
[3] The following exchange then took place:
Q. Have you been consuming alcohol tonight? A. Yep.
Q. When were you drinking?
A. I drove here sober, then I wanted to rotate the vehicle to get a better view of the harbour so I reversed and got stuck.
Q. You drove backwards? A. Yeah.
[4] The police officer then required Mr W to undergo a breath-screening test. When he held the mouth piece near Mr W ’s face and instructed him to blow into it, the defendant pulled away stating “fuck off cunt, you’re not having me for fucking DIC”.
[5] The police officer then required Mr W to accompany him to the police station for the purpose of an evidential breath test, blood test or both. (There is a conflict in the evidence as to whether Mr W was readvised of his rights at this point. On this appeal the respondent concedes that on the state of the evidence it would not be safe to infer that he was and I proceed on that basis.) Mr W did not offer a response to the request to accompany the officer to the police station.
While transporting Mr W to the police station, Mr W stated: “Yeah I
came down here, started drinking after I got here, then I reversed and got stuck.”
[6] Mr W and the police officer arrived at the police station at 8.40 pm. At this point a form setting out Mr W ’s rights under the New Zealand Bill of Rights Act was read out to him. He was also asked to read the form and sign it. Mr W refused to sign the form and said he did not wish to speak to a lawyer. At 8.47 pm Mr W was required to undergo an evidential breath test. He returned a positive result of 903 micrograms of alcohol per litre of breath. He was read the advice of his positive breath test but refused to sign it. At 8.59 pm Mr W was again advised of his rights. He declined to speak to a lawyer. He also declined to elect a blood sample.
[7] Arising out of these events Mr W was charged with unlawfully getting into a motor vehicle (s 226(1) Crimes Act 1961) to which he entered a guilty plea. He was also charged with driving a motor vehicle on a road with excess breath alcohol which proceeded to a defended hearing and which is the subject of this appeal.
Good cause to suspect
[8] An officer may require a person to undergo a breath screening test where the officer has good cause to suspect that the person has recently committed an offence involving the driving of a motor vehicle (s 68(1)(b) of the Land Transport Act).
[9] The District Court Judge found that there was good cause to suspect a recent driving offence because:
a) The Judge considered that from the exchange set out [3] above it could be inferred that Mr W had been drinking after he had arrived (when he said he had driven here sober) and before driving (when reversing to get a better view of the harbour). This was because of the structure of the answer Mr W had given to the question and because it was not credible that a driver would
commence drinking after having got stuck (it being more likely that he would attend to freeing up his vehicle upon becoming stuck);
b)Mr W admitted to drinking “tonight” so, given the time of the discussion between the officer and Mr W , there could not have been more than an hour or so prior to the conversation with the police officer before Mr W had consumed alcohol.
[10] For Mr W it is submitted that there was not a proper basis for the Judge’s finding. It is said that it is the officer that must have good cause to suspect, and that the Court cannot substitute another reason for conducting a breath-screening test should the officer’s belief be found wanting (Price v Davey HC WN M335/83
11 November 1983; Sokolich v Ministry of Transport [1992] 2 NZLR 637). This submission relies on the following exchange in the evidence between the police officer and the Court:
Q. Constable you can answer the question. You were explaining – you were addressing Mr Bourke’s proportion [sic] that you can’t have had good cause to suspect that he was driving and so how are you going to answer that question?
A. Well I had good cause to suspect that he was driving because he admitted it, and like I said before at the time I arrested him I arrested him for unlawfully getting into a motor vehicle, which he stated to the original complainant in the matter that he –
Q. So you say that he had good cause to suspect for two reasons, the first is that he admitted it?
A. Yes.
Q. Okay and the second reason is that you arrested him – what was it about entering a motor vehicle.
[11] It is submitted that the officer cannot rely on having been told that Mr W was entering another vehicle. It is said that this was irrelevant because there was no evidence that Mr W was driving or attempting to drive that vehicle and so this would not qualify as recent offence involving the driving of a motor vehicle. It is submitted that this then leaves the first reason given by the officer, namely that he admitted it. It is submitted that this was merely an admission of driving, and not an admission of a recent driving offence.
[12] Reference is also made to other parts of the notes of evidence where the officer said that he had not seen Mr W driving, had not been told by anyone else that they had seen him driving, that the officer did not know the exact time Mr W had been drinking, that he did not know what time the vehicle had been reversed, that he did not know whether Mr W had been drinking before he reversed the car and that he did not know the timeframe of the driving offence.
[13] I accept that what must be shown is that the officer had good cause to suspect that Mr W had recently committed an offence involving the driving of a motor vehicle, not whether amongst all the circumstances there would have been good cause to suspect. In this case the offence suspected was driving a motor vehicle with excess breath alcohol. This is apparent from the officer’s evidence that he required Mr W to undergo a breath screening test immediately after the exchange which is set out at [3] above and also from the following evidence elicited in cross-examination:
Q. Now you required Mr W to undergo the breath screening test, and the reason for that was because you suspected that he drove his vehicle while he was intoxicated is that correct?
A. Yes.
[14] This distinguishes the case from Wynn-Williams v New Zealand Police CA400/03 15 June 2004, which counsel for Mr W placed particular reliance on, because the issue considered by the Court of Appeal in that case related to whether there was good cause to suspect that a person was driving or attempting to drive a motor vehicle (s 68(1)(a) of the Land Transport Act).
[15] I consider that the evidence establishes that the officer did have good cause to suspect that Mr W had recently driven a motor vehicle while intoxicated. That follows from the officer’s evidence that he was dispatched to investigate a person who was seen to be apparently unlawfully entering a parked motor vehicle, that when he arrived he saw Mr W and arrested him for unlawfully entering a motor vehicle, that he asked Mr W the questions set out at [3] above and then required him to undergo a breath test.
[16] Mr W had admitted to drinking that night. He had also admitted to driving, but having got stuck. The officer was not required to accept Mr W ’s answer that he had driven there “sober”. Even if Mr W had not been drinking before he had driven there then he must have started drinking after he had arrived. Mr W had admitted to rotating the vehicle by reversing and getting stuck and it was after this that he was attempting to get into the other vehicle. The officer’s understanding at this time was that he was trying to take the other vehicle to move his own one. Counsel is correct that Mr W did not say he was drinking before he was driving, but it is clear from the following questions and answers in cross-examination that the officer suspected in these circumstances that Mr W had been drinking before reversing:
Q. The only evidence you had of any driving was that Mr W told you correct
A. That’s correct.
Q. And he told you he drove sober? A. He drove sober.
Q. That’s what he told wasn’t it?
A. Then he told me he began drinking down there and that’s when he reversed his vehicle to get a better view.
Q. Well let’s just check what he said. He stated, “I drove her sober then I wanted to rotate the vehicle to get a better view of the harbour, so reversed the car and got it stuck”, that’s what he said wasn’t it?
A. Yes.
[17] As the District Court Judge identified (refer [9] above) the structure of Mr W ’s response, together with the unlikely scenario that Mr W would begin drinking only after getting stuck rather than attending immediately to freeing his vehicle, gave the officer good cause to suspect that Mr W had been drinking before driving.
[18] Counsel for Mr W goes on to say that there were not good grounds to suspect that an offence had occurred “recently”, because the officer said he did not know the timeframes. However, the officer did not need to know exactly when
Mr W had been driving or drinking. As it was around 8.10 pm when the officer arrived, the drinking and driving must have been some time in the early evening before the officer arrived. This distinguishes the case from Williams v New Zealand Police HC AK AP 135/97 8 August 1997, relied on for Mr W , because there about four hours had elapsed between the evidence as to the time of drinking and the evidence as to the time of driving.
[19] This ground of appeal therefore fails even on the basis of only the evidence up to the point that Mr W was required to accompany the officer to the station. As it happened Mr W went on to admit to drinking before reversing when accompanying the officer to the police station.
Informing Mr W of his rights
[20] The District Court found that the police officer was required to give Mr W his rights when he required him to accompany him to the police station. The District Court also found that Mr W had been given his rights at this time. Although in cross-examination the officer had been unclear about whether he had given Mr W his rights at this time, the Judge considered the officer had been confused in cross-examination. The Judge considered that he should rely on the officer’s brief of evidence which made it clear that he had advised Mr W of his rights and this time.
[21] On this appeal the respondent concedes that it would not be safe to find that the officer had advised Mr W of his rights at this time. This is partly because of the confusion when the officer was cross examined about this, but also because the version of the officer’s brief of evidence which was disclosed to Mr W ’s counsel differed from the version as read in court by the officer. The version supplied to Mr W ’s counsel did not say that Mr W ’s rights were given to him at the time the officer required Mr W to accompany him to the police station. This was not known to the District Court Judge when he made his finding.
[22] Counsel for Mr W submits that Mr W was required to be re- informed of his rights. He says that the earlier advice given to Mr W related
to the unlawfully entering a motor vehicle matter and not to the driving with excess breath alcohol matter. He submits that the admission made by Mr W on the way to the station (see [5] above) was therefore unlawfully obtained and should be ruled inadmissible under s 30 of the Evidence Act 2006.
[23] The respondent says that the officer was not required to give Mr W his rights at this time. This is because Mr W was already detained as a result of his arrest for unlawfully entering a motor vehicle. He was advised of his rights at that time which had occurred only a short time before the request to accompany the officer to the station for a breath screening test. It is said that because there was no change in his status when this request was made, there was no need for Mr W to be again advised of his rights. It is further said that even without the admission made in the car the officer had good cause to suspect.
[24] The right to be informed of the reason for an arrest or detention, to consult and instruct a lawyer without delay and to be informed of that right, and to refrain from making a statement and to be informed of that right, arise when a person is arrested or detained under any enactment: s 24 NZBORA. There is authority to the effect that where the reason for an arrest changes or where there is a new and independent reason for an arrest and detention the person should be informed of this and readvised of his or her rights. However in this case the failure to do this is immaterial. I have already found that the officer did have good cause to suspect a recent offence involving a motor vehicle before the admission made by Mr W on the way to the station (see [15] to [18] above).
[25] It therefore becomes unnecessary to decide whether, if the admission had been improperly obtained, excluding that evidence would be a proportionate response to the impropriety. I note, however, that it is clear that Mr W knew what the officer suspected and required him to do (see [4] above). It is also clear that Mr W had just a few minutes earlier been informed of his rights in relation to unlawfully entering a motor vehicle. Immediately after being informed of his rights Mr W freely answered the officer’s questions as to whether he had been drinking (refer [3] above). At this point the officer had already determined to administer the breath screening test A short time later, before the breath test was
administered, Mr W was readvised of his rights and he elected not to speak to a lawyer. Overall the failure to advise Mr W of his rights between the first and second occasions on which he was made aware of them does not appear to have been unfair to Mr W .
Final matter
[26] At the hearing on the appeal Mr W ’s counsel raised a further matter. He said that if Mr W had only been drinking after arriving at Port Road and before reversing then it had not been proven that Mr W was driving on a road. This issue was not raised at the defended hearing. Nor was it alerted to in the written submissions filed for this appeal. It is too late to raise the point now when the officer has not had the opportunity to address the issue in his evidence. To the extent that there is evidence it indicates that the requirement would be met. The definition of “road” in the Land Transport Act is a wide one. The evidence is that the vehicle was on the grass on the foreshore of Port Road with a view of the harbour. It therefore appears to be an area where the public have access and accordingly a road for the purposes of the definition.
Result
[27] The appeal is dismissed.
Mallon J
Solicitors:
N Bourke, Upper Hutt Law, Upper Hutt, [email protected]
I Murray, Luke Cunningham Clere, Wellington, [email protected]
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