W v Police HC Wellington CRI 2010-435-2

[2010] NZHC 1035

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-435-2

BETWEEN  W

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         18 May 2010

Counsel:         JKW Blathwayt for Appellant

K E Salmond for Respondent

Judgment:      19 May 2010

JUDGMENT OF MILLER J

[1]      Mr W   appeals against conviction on a charge of driving with excess blood alcohol.

[2]      The issue is whether Constable Cadwallader had good cause to suspect, for purposes  of  s  68  of  the  Land  Transport  Act  1998,  that  Mr  W    had committed a driving offence against the Act.   If not, the Constable was without power  to  require  the  breath  screening  test  that  eventually  led  to  an  analyst’s certificate establishing that Mr W  ’s blood alcohol level was 163 millilitres of alcohol per 100 millilitres of blood.

[3]      On 5 January 2010 a resident at Riversdale took exception to the manner in which a car was being driven.   He remonstrated with the driver, whom the Judge found was Mr W  , and scuffled with a passenger.  Mr W   drove the car to the nearby surf club where he and his passengers, together numbering five, say

they drank heavily and swiftly, consuming a cask and a half of wine between them.

W V NEW ZEALAND POLICE HC WN CRI 2010-435-2 19 May 2010

[4]      In the meantime the still-irate resident called the police.  Some 20-30 minutes after the group parked at the surf club Constable Cadwallader approached them.  He asked the person in the driver’s seat about the incident.  Mr W  , who was outside the vehicle, approached the officer and identified himself as both owner and driver.

[5]      The officer formed the view that Mr W   had been drinking and required him to undergo a breath screening test, which he failed.  About an hour and

20 minutes later he underwent a blood test at Masterton.

[6]      Section 68(1) of the Act provides:

(1)      An enforcement officer may require any of the following persons to undergo a breath screening test without delay:

(a)A driver of, or a person attempting to drive, a motor vehicle on a road:

(b)A person whom the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle …

[7]      The Judge found that up to 30 minutes had passed between Mr W   last driving the car and the officer speaking to him.   She identified the issue as whether Mr W   could still be regarded  as the driver for purposes of s

68(1)(a);  alternatively, whether he had recently committed an offence (s 68(1)(b)).

[8]      Referring to Wynn-Williams v Police, the Judge appeared to accept that there was not a sufficiently proximate connection between driving and the moment at which a breath screening test was required.1   However, the officer had good cause to suspect Mr W   of a driving offence, for the resident had complained of the car “skidding along the road”, which she identified as Blue Pacific Parade, Riversdale.

[9]      Much of the evidence focused on the intervening drinking, but the Judge held, following Ministry of Transport v Sowman, that that was relevant only to

sentencing.2    The presumption in s 77 of the Act applied, meaning that his alcohol level when driving was presumed to be the same as when the blood sample was taken.  Mr W   was convicted.

[10]   On 18 February he was sentenced by a different Judge to six weeks disqualification with a fine of $150 and costs and expenses.  He had not persuaded the Judge that he “did not consume any alcohol immediately prior to this incident”, and the remarkably lenient sentence was described as a “halfway house”.

[11]     On appeal Mr W   maintains that the Judge was wrong to find:   a) that he had driven his car along Blue Pacific Parade with an excess blood alcohol level and;  b) that the Constable did not have good cause to suspect him of a driving offence.  Mr W   had admitted being the driver “at some unspecified point prior to the Constable commencing his inquiries”.   But the finding that he was driving when the resident accosted the car lacked support in the evidence.

[12]     There was no real dispute in the District Court that Mr W   was the driver at the time.  Indeed, he admitted as much in evidence.  He was asked a series of questions in cross-examination which all proceeded on the explicit premise that he had been driving during the incident that led to the resident confronting him.  At no time did he state that anyone else was driving.

[13]     Mr Blathwayt’s point, however, is that at the time the officer approached Mr W   he did not have good cause to suspect him of having been the driver when the car was driven carelessly.  He pointed out that although Mr W   admitted having driven the car, the officer knew that the resident had remonstrated with a different person, who might have been the driver at that time.  Mr W   may have been admitting that he had driven it at some other time recently.

[14]     However, the Constable said in evidence that he explained he had had a complaint about the driver and Mr W   responded that he had been driving the vehicle.   In his own evidence Mr W   admitted that the Constable had spoken to him about the driving incident and he had owned up to being the driver.

The inference is irresistible that he admitted being the driver at the time of the incident, because that was the context in which the question was asked.

[15]     Further, Mr Blathwayt assumed that the offence of which Mr W   was suspected involved careless use of the car.  It might have done, but the offence that the police actually focused on was driving with excess alcohol.  Mr W   admitted driving recently and the officer smelt alcohol on his breath.  That in itself might establish good cause to require a breath test.  It certainly did so in combination with the resident’s complaint and Mr W  ’s admission that he had been driving.

[16]     Accordingly, the evidence sufficed to show on the balance of probabilities that on the objective facts known to the Constable he had reasonable grounds for suspecting that Mr W   had committed an offence against the Act.3   It is an offence against the Act to drive with an excess alcohol level.  There must be good cause to suspect that an offence had been committed “recently” but 30 minutes can be recent.4   The facts on which the officer might rely include those he learned from others.5

[17]     It is not in dispute that the presumption in s 77 applied in this case. [18]       The appeal is dismissed.

Miller J

Solicitors:

WCM Legal, Carterton for Appellant

Crown Solicitor’s Office, Wellington for Respondent

3      Police v Anderson [1972] NZLR 233 (CA).

4      Clarke v Police HC Rotorua CRI 2004-403-119, 2 June 2005.

5      Police v Bradley [1974] 1 NZLR 113 (CA), Police v Cooper [1975] 1 NZLR 216 (CA).