Wahed v Police
[2023] NZHC 407
•6 March 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2022-463-57
[2023] NZHC 407
UNDER the Criminal Procedure Act 2011 IN THE MATTER OF
an appeal against conviction
BETWEEN
MD ZAKARIA WAHED
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 February 2023 Appearances:
T J Conder and S T Hartley for the Appellant
J L C Manera and C A Bourke for the Respondent
Judgment:
6 March 2023
JUDGMENT OF PALMER J
Solicitors
Holland Beckett Law, Tauranga
Crown Solicitor, Pollett Legal Ltd, Tauranga
WAHED v NEW ZEALAND POLICE [2023] NZHC 407 [6 March 2023]
What happened?
[1] On 8 May 2021, Mr Md Zakaria Wahed, who is now 48, made a U-turn before approaching a Police alcohol breath testing checkpoint in Papamoa, Tauranga. Constable Hannah followed him and pulled him over. Mr Wahed admitted to having drunk three glasses of red wine with dinner, three hours beforehand, after breaking his Ramadan fast. He failed a breath test and was taken to the “booze bus” for an evidential breath test. That showed he had 493 micrograms of alcohol per litre of breath. He was charged with driving with excess breath alcohol, over the 400-microgram limit, under s 56 of the Land Transport Act 1998 (the Act).
[2] On 28 April 2022, in the District Court at Tauranga, Judge W Lawson conducted a judge-alone trial of Mr Wahed.1 The Judge identified the main issue as whether Mr Wahed fully understood the process and could make an informed decision in requesting to give a blood sample in the allowed 10-minute period following the breath test.2 In relation to that, relevantly, he stated:
[10] At this point it was suggested by Mr Mitchell, on behalf of Mr Wahed, that Mr Wahed had requested a blood test at that point in the process. What became clear when Mr Wahed gave evidence was not that he had requested directly a blood test at that stage but had made an enquiry about whether they were going to complete a blood test. According to Mr Wahed, the response from Constable Hannah was that, “no, we are not at that stage yet” or words to that effect and were going for an evidential breath test.
[11] The significance of that is that what was put by Mr Mitchell was a suggestion that there was a request for a blood test from the very outset. That is certainly not my understanding of the evidence that Mr Wahed gave on that point. Mr Wahed gave a very clear account where he believed he had made a general enquiry about whether the blood test was at that stage. Be that as it may, Constable Hannah was very clear that there was no request for a blood test throughout the process and the notes and records identified in the breath and blood alcohol procedure sheet are very clear about the process that Constable Hannah followed and demonstrate to me a significant level of conscientiousness and care about the following of the processes.
…
[17] Mr Wahed adamantly maintained that he wanted a blood sample, although he, as Mr Mitchell has suggested, said that the second request may well have come after the 10 minute period had concluded. Constable Hannah was very clear that there was no request for blood. He maintained from the outset that there was no such request. Mr Wahed, on the other hand, says that
1 New Zealand Police v Wahed [2022] NZDC 9330.
2 At [3].
there was a request for blood and that was declined because Constable Hannah was hungry and wanted to go home. I note immediately that that second aspect, that Constable Hannah was hungry and wanted to go home, was not put to him. So that goes to the weight of the evidence that can be placed on it.
(emphasis added)
[3] The Judge emphasised that Mr Wahed was given at least four opportunities to contact a lawyer to get legal advice, which he declined.3 He said he was “still at a loss to fully understand exactly what the defence is”, preferred the evidence of Constable Hannah, found the elements of the offence proved beyond reasonable doubt, and found Mr Wahed guilty.4 He apparently disqualified Mr Wahed from driving for six months and fined him $600, but deferred the disqualification pending determination of this appeal. Mr Wahed appeals his conviction.
Law of appeal
[4] Under s 232(2) of the Criminal Procedure Act 2011, I must allow the appeal against conviction if satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or there has been a miscarriage of justice for any reason. A miscarriage of justice means any error, irregularity or occurrence in the trial that has created a real risk its outcome was affected or resulted in an unfair trial. Case law clarifies that:
(a)A “real risk” that the outcome was affected exists when there is a reasonable possibility a more favourable verdict might have been delivered if nothing went wrong.5
(b)It is for the appellant to show an error has been made and the appellate court must take into account any advantages a trial judge may have had.6 That means an appellate court will exercise “customary caution” to a challenge to credibility findings based on contested oral evidence.7
3 At [13].
4 At [19]-[20].
5 R v Sungswan [2005] NZSC 57, [2006] 1 NZLR 730 (SC) at [110].
6 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
7 At [38]; citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 at [13].
(c)If the appellate court comes to a different view of the evidence, the trial judge must necessarily have erred and the appeal must be allowed.8
The evidence
[5] Mr Wahed’s instructions to his lawyer before trial about what happened are that he requested a blood test: immediately after receiving the breath screening test; while he was waiting for the result of the evidential breath test; when the Constable returned after the 10-minute period; again after that; and in the car when the Constable gave him a lift home.
[6] At trial, the evidence of both sides, that was relevant to the issue on appeal, was more confused:
(a)Under cross-examination, Constable Hannah first said he could not remember whether, and then said he was certain that, Mr Wahed did not say he wanted a blood test after he failed the breath-screening test.9 He repeated his certainty later in his evidence.10 But the Constable also acknowledged there may have been a conversation after the 12-minute period he provided to Mr Wahed after the evidential breath test, where Mr Wahed was asking for a blood test. He also said he did not recall Mr Wahed asking for a blood test but acknowledged he may have asked for one.11
(b)Mr Wahed gave evidence mainly in English but also sometimes through an interpreter. His evidence is not very clear in general, due to language issues. But his evidence in chief was clear that, before having the evidential breath test, he asked the Constable “[d]o I need to do a blood test” (through the interpreter), “[a]re we have to do the blood test”, and “[a]re you going to the blood test?”.12 During the 10 or 12 minute period, his evidence is that he asked “[w]hat are you doing for the blood
8 At [38].
9 Notes of Evidence (NOE) at 9/1-9.
10 NOE at 18/23.
11 NOE at 12//14
12 NOE at 22/20, 22/28, and 25/29.
test?”.13 Mr Wahed’s evidence is that he asked for a blood test on at least four separate occasions.14 Mr Wahed stated that he wanted a blood test because it would be an accurate recording of his blood alcohol. Mr Wahed also explained that he was sure it would prove he was not over the limit.15
(c)During Mr Wahed’s evidence in chief and under cross-examination it was clear he did not understand the purpose of the 10-minute period.16 Neither did he understand what the Constable asked him to sign, when he signed it (or afterwards).17
[7] On two occasions during trial, when Mr Mitchell was leading Mr Wahed’s evidence in chief, Mr Wahed started discussing when he asked for a blood test before the evidential breath test.18 On both occasions, the Judge interjected that the question was not put to “the witness”, presumably Constable Hannah. However, such a question was put to Constable Hannah.19 In giving his verdict, the Judge also stated that the proposition the Constable had refused to take Mr Wahed for a blood test because he was hungry and impatient for a break had not been put to Constable Hannah.20 But that proposition had been put too.21
Relevant law
[8] The breath-testing and blood-testing procedures for suspected drink-driving are set out in pt 6 of the Act. Relevantly:
(a)Section 68 empowers an enforcement officer to require a driver to undergo breath screening.
13 NOE at 24/10.
14 NOE at 22/20, 23/11, 23/24, and 30/7.
15 NOE at 25/8–25/12.
16 NOE at 23/15–23 and 30/15–30/30.
17 NOE at 31/14.
18 NOE at 22 and 25–26.
19 NOE at 18/20–23.
20 New Zealand Police v Wahed, above n 1, at [17].
21 NOE at 19/5–10.
(b)If breath screening exceeds 250 micrograms of alcohol per litre of breath, s 69 empowers an enforcement officer to require the driver to accompany them to undergo an evidential breath test or a blood test or both.
(c)Section 72 requires a person who has tested positive in an evidential breath test to have a blood test if, relevantly, they have failed a breath screening test. Where the person has tested positive in an evidential breath test, they may subsequently advise the enforcing officer that they wish to undergo a blood test. The person must advise the officer within 10 minutes of being informed of their ability to give a blood test, and the admissibility of their evidential breath test.
(d)Sections 77, 70A and 72 sets out a series of interlocking presumptions and exceptions and a right to elect a blood test:
77 Presumptions relating to alcohol-testing
(1)For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant’s breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant’s breath indicated by the test.
(2)For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which a blood specimen was taken from the defendant under section 72 or section 73, it is to be conclusively presumed that the proportion of alcohol in the defendant’s blood at the time of the alleged offence was the same as the proportion of alcohol in the blood specimen taken from the defendant.
(3)Except as provided in subsections (3B) and (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 officer, without delay after the result of the test is ascertained,—
(i)that the test was positive; and
(ii)of the consequences specified in subsection (3A), so far as applicable, if he or she does not request a blood test within 10 minutes; or
(b)the person who underwent the test—
(i)advises an enforcement officer, 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).
(3A) The consequences referred to in subsection (3)(a)(ii) are—
(a)that the positive test could of itself be conclusive evidence to lead to that person’s conviction for an offence against this Act if—
(i)the test indicates that the proportion of alcohol in the person’s breath exceeds 400 micrograms of alcohol per litre of breath; or
…
72 Who must give blood specimen at places other than hospital or medical centre
(1)A person must permit a health practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—
…
(b)the person has undergone an evidential breath test under section 69(4), and—
(i)it appears to the officer that the test is positive; and
(ii)within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), the person advises the officer that the person wishes to undergo a blood test;
70A Right to elect blood test
(1)A person has the right, within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), to elect to have a blood test to assess the proportion of alcohol in his or her blood, if the result of that person’s evidential breath test appears to be positive, and—
(a)the result of the person’s evidential breath test indicates that the proportion of alcohol in the person’s breath exceeds 400 micrograms of alcohol per litre of breath; …
(emphasis added)
[9]Neither counsel nor I have identified case law relevant to the issue raised here.
Submissions
[10]Mr Hartley, for Mr Wahed, submits:
(a)The principal issue is whether the Judge erred in assessing the evidence or was correct in determining Mr Wahed did not request a blood test in the relevant period of time under s 77(3) of the Act. Mr Wahed, without a strong facility in English, made a number of requests for a blood test which the Constable simply ignored. In the context of his previous requests, and his difficulties with English, Mr Wahed’s question within the 10-minute period about whether he needed a blood test should have been understood as a request for a blood test. That is consistent with use of the word “advise” in s 77(3) and the exclusionary purpose of that section, when interpreted consistently with the New Zealand Bill of Rights Act 1990 (Bill of Rights). Mr Wahed should not be in an ironically worse position than if he had refused to do a breath test, which would have led to him being required to have a blood test.
(b)The Judge misapprehended what had been put to Mr Wahed and prevented evidence from being given that would have allowed Mr Wahed to succeed. The evidence was relevant to the credibility of both witnesses and to whether s 77(3) was satisfied or not. It had a significant impact on the trial and verdict, leading to a miscarriage of justice. This is not a case where the trial judge enjoyed an advantage. He was not sure what the defence was and appears to have been confused about what had been put to Mr Wahed.
(c)Mr Wahed’s right to counsel under s 23 of the Bill of Rights was not effective. He may have literally understood the words. But they did not make him aware in a meaningful sense of his right to reasonable access to free legal advice, which has the purpose of reminding the citizen of the jeopardy they face while potentially subject to the State’s power.22
[11] Mr Manera, for the Police, submits there were questions posed about the allegation the Constable was tired and hungry, but the matter was not put to Constable Hannah simply and his responses disproved the proposition. There was no reason to put weight on that evidence. Section 77 creates a conclusive presumption which, combined with the breath screening and evidential breath test results and the advice to Mr Wahed of his right to have a blood test, establishes an offence was committed. The evidence of Constable Hannah is consistent and unchallenged that Mr Wahed did not request a blood test within the 10-minute timeframe. The Judge’s conclusion that he made an enquiry, rather than a request, is justifiable on the evidence. It was not a misapprehension by the Judge but a lack of substantiating evidence that led to the verdict. The Judge was entitled to conclude Mr Wahed had some comprehension of the process, sufficient to make informed decisions.
Request for blood test
[12] I accept that the freewheeling nature of the questioning at trial, and the difficulty in understanding Mr Wahed’s somewhat elliptical responses, would have made it difficult for the trial judge to evaluate the evidence during the trial. His comment in delivering his verdict, that he was still at a loss to fully understand what the defence was, affirms that was so. This case may be an exception to the general rule that the trial judge has an advantage over an appellate court in understanding the evidence.
[13] The Judge identified the key issue at trial as being whether Mr Wahed fully understood the process and could make an informed decision in requesting to give a blood sample in the allowed 10-minute period following the breath test. But reviewing
22 Noort v Ministry of Transport [1992] 3 NZLR 260 (CA) at 279.
the transcript, with the benefit of hindsight, suggests the real issue was different. It was whether Mr Wahed had made such a request.
[14] With the benefit of the transcript, I do not agree with the Judge that the evidence was clear Mr Wahed made “an enquiry” about a blood test rather than requested one. The Constable’s evidence involved contradictions as to whether he remembered Mr Wahed saying he wanted a blood test. He acknowledged he may have done. It is clear from the transcript of Mr Wahed’s evidence that he was fixated on getting a blood test. He made an early request for a blood test, when first accompanying the Constable to the booze bus. He understood he needed to comply with the Police procedure to get one. He clearly did not understand the purpose of the 10-minute period. As far as he was concerned, he was waiting for his blood test. His evidence is that he made what he understood to be several requests for a blood test. In giving evidence he phrased that in terms of questions.
[15] As Judge W Hastings said in Police v Coric in relation to the requirement for “advice” of a request for a blood test within the 10-minute period:23
The words used do not matter if the meaning is effectively communicated. Effective communication requires that a message is conveyed by a sender and that the same message is received by the recipient. Effective communication therefore also requires accuracy. In order to effectively communicate advice, three things are required: the information must be accurately conveyed by the sender, accurately received by the recipient, and the sender must be assured that the recipient has received the intended meaning. Whether or not the advice was effectively communicated is therefore a factual inquiry.
[16] Mr Wahed’s repeated questions, understood in context, indicate he was making requests for, not enquiries about, a blood test. His lack of facility with English should not count against him through a literal interpretation of his words. That request was operative throughout the required 10-minute period, in the unusual circumstances of this case. That was certainly his understanding. And it is a tenable interpretation of the evidence. Ironically, if Mr Wahed had been less cooperative, and refused to give an evidential breath test, he would have got his blood test, under s 72(1)(a) of the Act.
23 Police v Coric [2020] NZDC 14016 at [6].
[17] In this respect, I consider the Judge erred in his assessment of the evidence. Furthermore, in inadvertently misapprehending the nature of the issue in the midst of a difficult trial, and the points which had and had not been put to the Constable, the Judge prevented questions being put to Mr Wahed which could have provided further relevant evidence as to whether s 77(3) was satisfied or not. In retrospect, this was a clear error. Together, these errors created a real risk the outcome of the trial was affected. Accordingly, I am satisfied on the facts that there was a miscarriage of justice.
[18] While drink-driving is serious, the alleged offending here was relatively minor and occurred 21 months ago. There is a lengthy backlog of matters in the District Court to deal with. It is not in the interests of justice to order a retrial of this matter.
Result
[19] I uphold the appeal, quash the conviction and sentence, including Mr Wahed’s liability to pay the fine imposed. If the fine has been paid, it should be remitted to him. And he needs to be more careful about drinking and driving.
Palmer J
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