Wood v Police
[2024] NZHC 1825
•5 July 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-45
[2024] NZHC 1825
BETWEEN SIMON LUKE WOOD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 July 2024 Appearances:
K Jefferies for the Appellant
B Wilkins and M Story for the Respondent
Judgment:
5 July 2024
JUDGMENT OF GORDON J
This judgment was delivered by me on 5 July 2024 at 3 pm
Registrar/Deputy Registrar Date:
Solicitors:
Crown Solicitor, Wellington Jefferies Law, Wellington
WOOD v NEW ZEALAND POLICE [2024] NZHC 1825 [5 July 2024]
Introduction
[1] Mr Wood was convicted of one charge of driving with excess breath alcohol (EBA)1 by Judge J A R Johnston in the Wellington District Court on 23 May 2024. 2 He appeals against his conviction.
[2] The sole issue raised by the appeal is whether the Police constable allowed Mr Wood an uninterrupted 10 minute period to consider the election of blood pursuant to s 70A of the Land Transport Act 1998 (the Act) following a failed evidential breath/alcohol test.
Background
[3] At approximately 5.20 pm on 24 May 2023 Mr Wood was stopped at an alcohol screening point on Adelaide Road, Berhampore, Wellington. Constable Fuller conducted a breath screening test with a result of over 400 micrograms of alcohol per litre of breath. The Constable then required Mr Wood to accompany him to his patrol vehicle and read him his rights. He advised Mr Wood that he was required to undergo an evidential breath test without delay. At approximately 5.33 pm the evidential breath test commenced and at approximately 5.39 pm Constable Fuller advised Mr Wood of a positive result of 533 micrograms of alcohol per litre of breath.
[4] Constable Fuller then advised Mr Wood that he could elect to complete a blood test within 10 minutes in place of his evidential breath test result. Mr Wood acknowledged this.
[5] Then, for approximately 12 minutes between 5.47 pm and 5.59 pm, Constable Fuller sat next to Mr Wood in the back of the patrol vehicle. Mr Wood was on the passenger side, and the Constable was on the driver’s side. Although the length of the election period was accepted, one event during the election period was in dispute.
[6] Constable Fuller gave evidence that for the entire election period, he sat with Mr Wood in the back of the patrol vehicle in silence.
1 Land Transport Act 1998, s 56(1).
2 Police v Wood [2024] NZDC 3653.
[7] Mr Wood contends that during the election period another officer knocked on the window beside the Constable. The window was wound down, and for approximately 30 seconds words were exchanged between the officers to the effect of: “I’ve finished up here, I’m going back to base, will see you back there”. Mr Wood said this interaction was a “distraction” that was “more intrusive” than a passing car or the radio being on. During cross-examination it was put to Mr Wood that this did not affect or influence his decision-making for the election of a blood test, to which Mr Wood answered: “I can’t say.”
District Court decision
[8] In a detailed reserved decision, Judge Johnston dealt with three issues, one of which was whether there was an uninterrupted 10 minutes as to electing blood. The Judge set out the relevant purpose of the uninterrupted election period as follows:3
In the case of Leota v Police, Ellis J described the purpose of the ten-minute period as providing a reflection period where the suspect has a reasonable and uncluttered period to consider whether to elect to have a blood test.
Tipping J, in his decision in Wren v Police, stated:
“I am not suggesting that the suspect must be placed in isolation or solitary confinement for the period of 10 minutes. What I am saying is that the suspect must be left to think about his position for at least 10 minutes. As with many questions ultimately it will be a matter of degree.”
Accordingly, it is settled that the ten-minute period must be free from undue interruption. That being said, it has been accepted that brief interruptions such as casual conversations between police officers and the suspect or a break to use the bathroom may not breach the requirement.
(footnotes omitted)
[9] The Judge also made reference to several cases involving interruption of the election period.4
[10] Judge Johnston heard evidence from Constable Fuller and Mr Wood. The Judge preferred the Constable’s evidence as to the election period, describing his
3 Police v Wood, above n 2, at [20]–[22].
4 At [23]–[25]. See Wren v Police (1989) 4 CRNZ 421; Zhao v Police [2017] NZHC 195; Police v Gibson [2019] NZDC 23586.
account as “coherent, consistent, detailed and corroborated by the EBA procedure sheet” and his evidence overall as “honest and sincere”.5 In particular the Judge accepted that the alleged interruption of another Police officer knocking on the patrol car window and speaking to Constable Fuller in the back seat did not occur.6 In contrast, the Judge was concerned with Mr Wood’s credibility, describing his account as “inconsistent, lacking in detail, unconvincing, and at times his answers were either guarded or evasive and self-serving”.7
[11] Even if Mr Wood’s account was truthful, the Judge considered that if the officers’ conversation had occurred, it would not have taken Mr Wood’s attention away from contemplating his election for the blood test, as the subject matter of the conversation did not involve him. The Judge contrasted the present facts with circumstances where the election period may be interrupted:
[66] That is not to say that such circumstances could never interrupt or interfere with the ten-minute period insofar as causing non-compliance. It is clearly possible for circumstances to give rise to a disruption to the defendant's ability to consider their election in the 10 minutes (such as radios going off, officers conversing in the front, officers detaining another person, or similar) creating a risk of unfairness or injustice. However, that was not the case here.
[12] Accordingly, the Judge held that Mr Wood had the ability to and indeed did make a clear and informed decision, and that his election period was uninterrupted. The Judge considered that the procedure occurring in the back of a patrol vehicle in the presence of Constable Fuller had not disturbed Mr Wood’s election period.
Approach on appeal
[13] Mr Wood appeals his conviction as of right.8 This Court must allow the appeal if it is satisfied that, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason.9 A miscarriage of justice is defined as an error, irregularity, or occurrence in or in relation to or affecting the trial
5 Police v Wood, above n 2, at [55].
6 At [63]–[64].
7 At [54].
8 Criminal Procedure Act 2011, s 229.
9 Section 232(2)(b)–(c).
that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.10
[14] An appeal against conviction proceeds by way of rehearing.11 If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed.12 The appellant must show that an error has been made. The appellate court must remember the advantages a trial judge has, especially where the challenge is to credibility findings based on contested oral evidence.13
Submissions
[15] Mr Jeffries, counsel for Mr Wood, submits that the mere presence of the Constable sitting in the back of the patrol vehicle with Mr Wood during the election period constitutes a total interruption that was intrusive, a distraction, and served to impede rational and free decision-making. Mr Jeffries did not advance an argument based on Mr Wood’s account of the 30 second interaction between the Constable and another officer. He accepted that the Judge had made a factual finding to the contrary.
[16] Mr Jeffries relies upon Tipping J’s decision in Wren v Police for the proposition that “the suspect must be left to think about his position for at least 10 minutes” 14 and submits that this did not occur in the present case.
[17] Mr Jeffries refers to Zhao v Police15 as authority for the proposition that the failure to provide the 10 minute uninterrupted election period is a serious and significant breach in the process, and cannot be cured by s 64(2) of the Act, which provides as follows:
It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, 77, and 77A 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.
10 Section 232(4).
11 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].
12 At [38].
13 At [38].
14 Wren v Police, above n 4, at 424–425.
15 Zhao v Police, above n 4, at [22].
[18] Mr Wilkins, counsel for the respondent, submits that the Judge did not err in determining that there was no interruption of the election period by the mere fact that Constable Fuller was seated in the back of the vehicle with Mr Wood during this time. He notes that it has not been suggested that the Constable placed any pressure on Mr Wood or otherwise attempted to influence his decision either way.
[19] Mr Wilkins submits that a Constable is empowered by s 69(1) of the Act to require Mr Wood to go to “a place” to carry out an evidential breath or blood test. There is no legislative proscription as to where the election period must take place, and there are good policy reasons for such discretion, such as those of efficiency and timeliness.
[20] Mr Wilkins distinguishes the present facts from those in Zhao v Police.16 In Zhao v Police, the appellant was brought to the Police station for his election period. After approximately four minutes, another Constable arrived and began questioning the appellant for approximately three minutes, mistakenly assuming the testing procedures had already been completed. The appellant then spent a further three to four minutes considering whether to give blood. Justice Lang held that the election period was unduly interrupted in the following way:17
As the Judge acknowledged, the ten minute period must be free from undue interruption. Brief interruptions such as those involving casual conversation between police officers and the suspect or a break to use the bathroom may not breach the requirement. I do not consider that to be the position in the present case, however, because the nature and duration of the interruption effectively deprived Mr Zhao of the benefit of the ten minute period prescribed by s 70A(l). Constable Takuira's questions required Mr Zhao to divert his attention away from the issue he was required to consider for approximately three minutes.
[21] Mr Wilkins refers to Thorpe v Police where Eaton J quashed the appellant’s conviction because she had only been given an election period of nine minutes and one second.18 Importantly, he submits the Court took no issue with the election period taking place in the back of a patrol vehicle with a Constable seated next to the appellant.
16 Zhao v Police, above n 4.
17 At [21].
18 Thorpe v Police [2022] NZHC 2507.
[22] In both Zhao and Thorpe, the appellant’s conviction was quashed not because of the mere presence of a Police officer, but instead due to a period of election that amounted to less than 10 minutes. This is not in issue on this appeal. Accordingly, Mr Wilkins submits that the appeal should be dismissed.
Discussion
[23] Section 70A of the Act provides that a person has the right, within 10 minutes of being advised by an enforcement officer of the matter specified in s 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.
[24] In Wren v Police Tipping J referred to the decision of the Court of Appeal in Lawrence v Ministry of Transport where Woodhouse P, delivering the judgment of the Court, said:19
The purpose of the statutory period of 10 minutes and the use of the word “forthwith” is to enable a suspect to have adequate time without undue pressure in which to make up his mind about a blood test.
[25] Justice Tipping went on to consider what was meant by the words “undue pressure”. He said:20
I do not consider that these words are intended to denote a concept such as coercion or duress. I think what is being spoken of is undue pressure of time. It is after all in the context of a 10 minute statutory interval that the concept of pressure is being discussed. The question in my judgment becomes whether or not in substance the suspect has had at least 10 minutes of uninterrupted time for reflection.
…
I am not suggesting that the suspect must be placed in isolation or solitary confinement for the period of 10 minutes. What I am saying is that the suspect must be left to think about his position for at least 10 minutes.
(emphasis added)
19 Lawrence v Ministry of Transport [1982] 1 NZLR 219 (CA) at 221, as cited in Wren v Police, above n 4, at 423.
20 At 424–425.
[26]The 10 minute period has also been described in this Court as:21
… an uninterrupted 10 minute period in which to make a decision as to whether or not to request a blood test and that the 10 minute reflection period is designed to ensure that a suspect has a reasonable and uncluttered period of time in which to consider whether to progress to the blood test stage.
(footnote omitted)
[27] The essence of Mr Jefferies’ submission is that the mere presence of a Police constable in the back of the Police car during an otherwise silent and uninterrupted 10 minute period renders that period interrupted.
[28] I do not accept that submission. The purpose of s 70A(1) is to give drivers a sufficient period of time for reflection on whether or not to accept the results of the evidential breath test or to seek a blood test. In that regard I respectfully agree with the statement of Tipping J in Wren as referred to in [25] above.
[29] There is no reason, in my view, to make a distinction between the defendant sitting at a table opposite a Police officer in a Police station, as occurred in Zhao22 and being seated in a Police car next to a Police constable, as occurred in this case and in Thorpe.23
[30] The appeals in both Zhao and Thorpe were allowed, but on different grounds. I accept that the point was not argued but in neither appeal did the Court advert to the presence of the Police officers having any bearing on the ability of the defendant to have 10 minutes of uninterrupted time to consider their position, despite both appeals being brought on the basis of an interruption of the 10 minute period.
[31] As Mr Wilkins submits, there is no provision in the Act that requires the 10 minute election period to occur in any particular place. Mr Jefferies specifically did not take issue with a car being a “place”.
21 Coleman v Police [2019] NZHC 140 at [35]; citing De Jong v Police (2000) 18 CRNZ 128; Kaisuva v Police (1993) 11 CRNZ 151; Leota v Police HC Auckland CRI-2009-404-373, 4 March 2010.
22 Zhao v Police, above n 4, at [15].
23 Thorpe v Police, above n 18, at [5].
[32] As Mr Wilkins also submits, there are good policy reasons for giving the Police a discretion as to where the election period occurs. Alcohol screening can take place on any public road in New Zealand and may be in a location that is not within a short drive to a Police station. In a number of instances it may be significantly more efficient to allow the 10 minute period to be conducted in a patrol car at the scene of a vehicle stop or checkpoint. Although, if an election is made, it is not suggested that the blood sample be taken in a patrol car.
[33] In short, Mr Wood had a silent and uninterrupted 10 minute period to consider whether to elect to have a blood test. The fact that he was seated in the rear of a patrol vehicle with a Police officer, who remained silent, did not interrupt the 10 minute period.
Result
[34]The appeal is dismissed.
Gordon J
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