Wilton v Police
[2015] NZHC 872
•29 April 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-463-14 [2015] NZHC 872
BETWEEN COLIN MAXWELL WILTON Appellant AND
NEW ZEALAND POLICE Respondent
Hearing: 29 April 2015 Appearances:
P Fisher for the Appellant
S-L Tapsell for the RespondentJudgment:
29 April 2015
(ORAL) JUDGMENT OF WOODHOUSE J
Solicitors:
Mr P Fisher, Clancy Fisher Oxner & Bryant, Solicitors, Tokoroa
Ms S-L Tapsell, Gordon Pilditch, Office of the Crown Solicitor, Rotorua
WILTON v POLICE [2015] NZHC 872 [29 April 2015]
[1] In reserved judgment dated 19 February 2015 the appellant, Mr Colin Wilton, was convicted in the District Court by Judge Cooper on a charge of driving with excess breath alcohol. Mr Wilton appeals against his conviction on the grounds that the Judge erred in a finding that a certificate of compliance under s 75A of the Land Transport Act 1998 (the Act) sufficiently complied with the provisions of the Act in respect of an authorised signatory.
[2] In the District Court the appellant argued that the certificate of compliance for a Dräger Alcotest breath testing device, dated 14 November 2013, was not valid because, under the signature, it was recorded that it was signed by “a person authorised for the purpose by the Minister of Research, Science and Technology”. The point is that there was no Minister (or Ministry) with that designation.
[3] The statutory amendments and restructuring of Government departments were summarised by the Judge as follows:
[8] Section 75A(1) refers to “a person authorised for the purpose by the
Science Minister” (emphasis added).
[9] Section 2 Land Transport Act 1998 provides:
““Science Minister” means, subject to any enactment, the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of [the Research, Science, and Technology Act
2010]:”
[10] Prior to the enactment of the Research Science and Technology Act
2010 (which came into force on 1 February 2011), the definition of “Science
Minister” in the Land Transport Act 1998 was “the Minister of the Crown
who, under the authority of any warrant or with the authority of the Prime
Minister, is for the time being responsible for the administration of the
‘Foundation for Research Science and Technology Act 1990.’”.
[11] The Foundation for Research Science and Technology Act 1990 was repealed by the Research Science and Technology Act 2010.
[12] At this stage, a Ministry of Science and Innovation was established. However, in 2012, the functions of the Ministry of Science and Innovation; the Ministry of Economic Development; the Department of Labour; and the Department of Building and Housing were all brought together under a new Ministry: the Ministry of Business Innovation and Employment.
Relevant provisions of the Act
[4] Section 75A(1) of the Act provides:
An evidential breath-testing device must be supported by a certificate of compliance given under this section by a person authorised for the purpose by the Science Minister.
[5] Section 75A(4) makes provision for proof in respect of a certificate as follows:
In the absence of proof to the contrary, a document purporting to be a certificate of compliance or a certified copy of a certificate of compliance—
(a) must be treated as such a certificate or certified copy; and
(b) is conclusive evidence of the sufficiency of the authority of the person who signed the document.
[6] Section 2 contains the definition of “Science Minister” being the Minister referred to in s 75A. The definition of Science Minister is set out above in the paragraphs from the District Court judgment. The Judge emphasised the references to the Minister rather than to a particular Ministry in respect of the words used in s 75A. I agree that that emphasis is important.
[7] The remaining provision of relevance is s 64(2). This is the well known provision relating to strict compliance: it is not a defence to proceedings for an offence against specified provisions, including the one in question here, if there has not been strict compliance, or if a provision has not been complied with at all, provided there has been reasonable compliance.
The District Court decision
[8] The Judge concluded that the certificate was valid. His reasons followed the summary of the statutory amendments and the departmental reorganisations referred to above. He said:
[13] The defendant’s submission confuses the “Science Minister” with the particular Ministry associated with that role. At the date of the alleged offence, although the Ministry of Research Science and Technology had ceased to exist, there was still a Science Minister. This was the Honourable Steven Joyce, appointed as Minister of Science and Innovation in December
2011; the Minister responsible for the administration of the Research Science and Technology Act 2010.
[14] The certificate of compliance refers to the Minister of Research, Science and Technology. (emphasis added) This is a misdescription in that it refers to the name of the old Ministry. Nevertheless, it is a reference to the Minister of Science.
Summary
[15] Section 75A Land Transport Act 1998 requires the certificate of
compliance to be signed by a person authorised by the “Science Minister”.
[16] Although the reference to Minister of Research Science and Technology in the certificate of compliance should more accurately read simply “Science Minister”, the expression “Minister of Research Science and Technology” (emphasis added) encompasses within its wording “Minister of Science” i.e. “Science Minister”. Although there is no longer a Ministry of Research Science and Technology, there was at the date of the alleged offence, and there still is, a Science Minister, namely the Minister responsible for the administration of the Research Science and Technology Act 2010.
[17] I am satisfied that the wording of the certificate of compliance is sufficient to show that the certificate was signed by a person authorised by the Science Minister as required by s 75A Land Transport Act 1998 and the certificate of compliance is therefore valid.
Submissions
[9] Mr Fisher’s submissions, for Mr Wilton, covered a number of points. They included a submission that this was not simply a technical argument, but one that was squarely put before the informant, the New Zealand Police, well before the hearing, with the arguments that were advanced set out in a letter to the police prosecutor. The point was that the informant had been given ample opportunity to provide proof that the person who signed the certificate was in fact authorised strictly in accordance with the relevant provisions of the Act that applied at the date of the certificate. Further submissions were made in that broad context.
[10] Mr Fisher agreed with me that, if evidence was not advanced by police going behind the certificate, then the issue stands or falls on the validity of the certificate as presented to the Judge. An absence of proof from Police that might have been available simply does not advance the matter one way or the other. Mr Fisher accepted that that is the position.
[11] I have mentioned that broad background to come to what Mr Fisher accepted is the single point on appeal (although putting it in that way is not meant to diminish the point being made). The central submission for the appellant is that this is not a certificate in accordance with s 75A – a certificate signed by a person authorised by “the Science Minister”. Mr Fisher submitted that the Judge was in error to describe the wording of the certificate simply as a “misdescription”. He submitted that this involved a reinterpretation of the words actually used. The submission was that it is not a certificate signed by a person authorised by the Minister of Science; it is a certification authorised, as earlier quoted, by “the Minister of Research, Science and Technology”.
[12] Ms Tapsell, for the Crown, submitted, in effect, that the Judge was right for the reasons he gave. Those submissions were fully set out in written submissions received before the hearing and it is unnecessary to seek to summarise them.
Analysis
[13] In my judgment there was no error by the Judge. The critical question is whether it can be said that the certificate of compliance was given by a person authorised for that purpose by the Science Minister. To answer that question it is legitimate to consider the statutory history and the restructuring of Ministries. That was done by the Judge. It was done not only by consideration of statutory amendments, including the repeal of the earlier Act. It was also done by having regard to documents effectively put in evidence (through submissions sought by the Judge) by the informant. This followed the original hearing at the end of which the Judge had sought submissions for Mr Wilton, as defendant, and for Police as informant. The Judge was provided with the following: the Ministerial list from the Cabinet Office dated 13 October 2014; the Ministerial list for announcement on 12
December 2011; a copy of a New Zealand Gazette announcement of the disestablishment of the Innovation Board pursuant to a provision of the Research, Science and Technology Act 2010, together with an amending notice; particulars relating to the Ministry of Business Innovation and Employment, including the responsible Minister; and a Ministry of Business Innovation and Employment
briefing paper recording portfolio responsibilities for the “Minister of Science and
Innovation”.
[14] I also note that another document had earlier been put in evidence which is relevant. This is a New Zealand Police instrument of authorisation for the purposes of, amongst other provisions, s 75A of the Act.
[15] It is against that background that I am satisfied the Judge came to the correct conclusion. The fact that the Minister referred to on the certificate is not referred to precisely in terms of s 75A does not justify a conclusion that the person who signed was not authorised by the Minister of Science. The Act does not require the correct Minister to be identified, nor is the name of the Ministry itself relevant to the definition under s 2. I have referred to the body of information that was available to the Judge, and on which he plainly relied without setting it out in his judgment. Given that background information, together with the reasoning of the Judge as earlier recorded in this judgment, I am satisfied, as I have already indicated, that he came to the correct conclusion. A decision to broadly similar effect in this Court is a
decision of Stone v Police.1 Another decision of some relevance in respect of
matters of form as opposed to substance is a decision of this Court in Campbell v
Police.2
[16] I have concluded that there was no error by the Judge having full regard to Mr Fisher’s further submission that s 75A is a statutory provision which enables proof of matters simply on the basis of a certificate without direct proof of matters that are certified. Mr Fisher initially described this as an indulgence. I do not regard it as an indulgence. But it is a matter which can obviously result in serious consequences for a defendant. I have come to this conclusion giving due weight to that submission.
[17] The essential point is that the Judge was entitled to conclude on the basis of the certificate before him that there had been fully adequate certification of the
1 Stone v Police HC Wellington, CRI-2003-485-92, 12 December 2003. And, on an application for leave to appeal, 18 March 2003.
2 Campbell v Police, HC Auckland, A 110/00, 1 September 2000.
particular device notwithstanding some infelicities in the wording. It is quite clear that what has occurred has simply been continued use of an old document. The Government department responsible for this might be criticised, but it does not justify a conclusion that the device was not properly certified.
[18] If the conclusion for all of those reasons was wrong I would in any event conclude that there was sufficient compliance in terms of s 64(2).
[19] For these reasons the appeal is dismissed.
[20] The disqualification of Mr Wilton pursuant to the original conviction has been suspended pending determination of this appeal. Mr Wilton needs to travel back to his home in the Coromandel. In consequence the period of suspension will
not commence until 1:00 am on 30 April 2015.
Woodhouse J
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