Woods v Police
[2017] NZHC 2593
•24 October 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-000121 [2017] NZHC 2593
IN THE MATTER OF an appeal against conviction and sentence BETWEEN
TIFFANY KATISHA WOODS Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 1 September 2017 and 19 June 2017 Counsel:
A J Haskett for the Appellant
G A Campbell for the RespondentJudgment:
24 October 2017
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 24 October 2017 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
WOODS v POLICE [2017] NZHC 2593 [24 October 2017]
Solicit ors : Legal Defence Service Ltd, Auckland
Meredith Connell, Auckland
Introduction
[1] Ms Woods was convicted of one charge of driving with excess blood alcohol1 following a judge alone trial in the District Court.2 She appeals that conviction on the grounds that:
(a) The Judge erred in finding that there was an election to undertake a blood test; or
(b)If there was an election, it was not valid as there was non-compliance with the requirements of s 72(1)(b)(ii) of the Land Transport Act 1998 (Act). That section requires any election to be made within 10 minutes of being advised of the matters set out in s 77(3) of the Act.
[2] Crown counsel says that there was a valid election, and that to the extent there was non-compliance it is saved by s 64(2) of the Act because there was “reasonable compliance” with the requirements of s 72(1)(b)(ii).
[3] The key questions on appeal are:
(a) Did the Judge err in finding that there was an election?
(b) Does s 64(2) apply?
(c) If so, has there been reasonable compliance?
Legislative framework
[4] To understand the arguments on appeal, it is first necessary to understand the relevant legislative provisions.
1 Land Transport Act 1998, s 56(2).
2 New Zealand Police v Woods [2017] NZDC 9692.
[5] The charge was brought under s 56(2) of the Act, which provides:
56 Contravention of specified breath or blood-alcohol limit
…
(2) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.
…
(emphasis added)
[6] Section 56(2) refers to a blood specimen taken from a person under s 72. Section 72(1) lists the circumstances in which a person must give a blood specimen. The relevant subsection in this case is subs (1)(b), which provides:
72Who must give blood specimen at places other than hospital or surgery
(1) A person must permit a … medical 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;
or
…
(emphasis added)
[7] Section 70A is also relevant. It provides that a person has the right, within 10 minutes of being advised by an enforcement officer of the matters specified in s 77(3)(a), to elect to have a blood test in circumstances where the evidential breath test exceeds 400 micrograms of alcohol per litre of breath.
[8] Both s 72 and s 70A refer to the matters set out in s 77(3)(a). That section provides:
77 Presumptions relating to alcohol-testing
…
(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
…
[9] The consequences specified in subs (3A) are that the positive test could, of itself, be conclusive evidence to lead to that person’s conviction for an offence against the Act in a variety of circumstances. The circumstances which are relevant in this case are the fact that the person’s breath exceeds 400 micrograms of alcohol per litre of breath (ss (3A)(a)(i)).
Evidence at trial
[10] The officer was the only witness who gave evidence at trial. She confirmed that Ms Woods’ vehicle was stopped at a checkpoint at midday on 18 September 2016. A roadside breath test was administered which Ms Woods failed. A breath screening test was subsequently administered which Ms Woods also failed. The officer then required Ms Woods to accompany her back to the police station.
[11] At the police station, the officer advised Ms Woods of her rights under the New Zealand Bill of Rights Act 1990 and then administered the evidential breath test. The results of the evidential breath test showed that Ms Woods had 455 micrograms of alcohol per litre of breath.
Police alcohol procedure form
[12] The rest of the officer’s evidence in chief was in accordance with the police alcohol procedure form.
[13] Block J records the s 77(3) advice required to be given in the event of a positive evidential breath test. The form records that Ms Woods signed that she had received this advice at 12.35 pm.
[14] Block K on the form is entitled “advice prior to the 10 minute period”. It sets out further advice under the New Zealand Bill of Rights Act 1990. Ms Woods elected not to speak to a lawyer and the form records that she signed block K at 12.37 pm.
[15] Block L of the form at the bottom of the page records the time that the 10 minute period commenced, and the time that the 10 minute period finished. It also includes a yes/no question as to whether the driver has elected to undergo a blood test. The word “yes” is circled on the form. That part of the form also records that the 10 minute period commenced at 12.38 pm, and that Ms Woods had made her election at
12.39 pm.
[16] Block M, on the back of the form, contains advice regarding the blood test. That part of the form records that the officer required a blood specimen at 12.40 pm and that Ms Woods consented to the taking of blood.
[17] In summary therefore, the police procedure form records that the s 77(3)
information had been given at 12.35 pm, the 10 minute period had started at 12.38 pm,
Ms Woods had elected a blood test at 12.39 pm, and she had consented to the taking of a blood specimen at 12.40 pm.
[18] A blood specimen was taken by a police blood nurse shortly after 1.00 pm. The test results of that blood specimen showed 100 milligrams (plus or minus five
milligrams) of alcohol per 100 millilitres of blood.
CCTV footage
[19] CCTV footage was also produced at trial. It shows the officer and Ms Woods in a small testing room at the police station. The footage does not include sound, and the timestamp on the CCTV differs to the times recorded on the form.
[20] The evidential breath test results can be seen printing out from the machine on the desk in the room. Almost immediately afterwards, the officer is seen talking to Ms Woods. Ms Woods is seen nodding and there appears to be an exchange between the two. The conversation comes to an end when Ms Woods appears to say something like “yup”.
[21] Immediately after this conversation the officer returns to the form. She can be seen filling out the section showing the results of the evidential breath test. She then turns to the page containing blocks J, K and L.
[22] The officer can then be seen reading out the advice in block J. The form is handed to Ms Woods to sign that she has received the advice. Ms Woods does not appear to say or do anything at this time but simply signs the form and returns it to the officer.
[23] The officer then proceeds to read block K. Again, Ms Woods does not appear to say anything after block K is read, but simply signs the form. As she is doing so, the officer can be seen looking at the notice board in front of her. On receiving the signed form back she immediately makes a phone call. It is common ground that the phone call was to a blood nurse.
[24] There is periodic talking and laughter by Ms Woods in the 10 minute period which immediately follows the reading of block J. The CCTV footage ends when she leaves the room with the officer.
Officer’s evidence
[25] During cross-examination, and before viewing the CCTV footage, the officer confirmed that she did not recall mentioning anything about a blood test election at
any other stage other than when she read block J verbatim. She said if Ms Woods had indicated that she wanted a blood test during the 10 minute period, she would have asked her to confirm her election before circling “yes” in block L. She also confirmed that Ms Woods had made her election verbally, and not by nodding her head.
[26] However, on viewing the CCTV footage, the officer conceded that there was insufficient time between recording the commencement of the 10 minute period and filling out block L for Ms Woods to have made an election or confirmed an earlier election. She also said she could not say with any certainty that Ms Woods had elected blood prior to the start time of 12.38 pm written on the form. However, she said that she would not have called a blood nurse if Ms Woods had not elected the blood test.
District Court decision
[27] The key issue before the District Court Judge was whether or not the Court could be sure that Ms Woods had in fact requested to elect blood or whether it was “possible that the officer went on an agenda of her own to get the blood nurse without the defendant electing that course”.3
[28] The Judge then reviewed the evidence relevant to this issue. He referred to the officer’s firm response under cross-examination that she would not have any reason to call the nurse if Ms Woods had not elected to take the blood test. That evidence was characterised as an assertion that there was an election to proceed to blood, that it was made soon after the commencement of the 10 minute period, and that it was “the defendant herself who brought the process of reflection for the purposes of considering a blood test to a close”.4
[29] In evaluating that evidence, the Judge said:
There is an underlying or overarching common sense dimension to the officer’s responses that indeed, notwithstanding other options that were put, the defendant did in fact elect. There would be no reason for her, the officer, to override the procedure by unilaterally and without request for blood moving to a blood process, when the process up until then in the light of that R v Aylwin state of the law, had been a satisfactory process producing an excess breath alcohol reading, namely positive, and that with that background all the officer
3 New Zealand Police v Woods [2017] NZDC 9692 at [7].
4 At [11].
would have had to do was to wait for the 10 minute period and if there was no election in that period then in effect, to use the vernacular, the case was done and dusted in all likelihood. So there is no reason. Why would she jeopardise the level of certainty by invoking a procedure which involved more time and some quite complex additional steps, when she had the driver in all likelihood satisfactory caught by the evidential breath test result? It makes no sense, which underscores why she would repeatedly have said she would not call the blood nurse unless there was an election.
(footnote omitted)
[30] In terms of the CCTV footage, the Judge referred to the fact that Ms Woods can be seen signing the acknowledgment of the advice, looking for the blood nurse’s phone number, and then filling in block L of the form once Ms Woods hands it back to her. The Judge observed that there cannot be anything wrong with a processing officer preparing to call a medical practitioner or a blood nurse in the event that an election might be made.5
[31] The Judge then referred to, and relied on, the judgment of Dunningham J in R v Keen.6 Applying the principles in that case, the Judge found that the 10 minute period was triggered when the officer recorded that the advice had been given in block J of the form. Using the times recorded in the form, the Judge found that the 10 minute period was triggered at 12.35 pm, and by 12.39 pm the request for blood had been communicated.7
[32] Accordingly, the Judge found that there was proof that a request for blood was made, and that the offence had been proved. A conviction was entered accordingly.
Approach on appeal
[33] Section 229 of the Criminal Procedure Act 2011 provides a right of appeal against conviction. An appeal court must allow the appeal if 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 a miscarriage of justice has
occurred for any reason.8
5 New Zealand Police v Woods [2017] NZDC 9692 at [16].
6 R v Keen [2016] NZHC 373.
7 New Zealand Police v Woods [2017] NZDC 9692 at [20].
8 Criminal Procedure Act 2011, s 232.
[34] A miscarriage of justice means any error, irregularity or occurrence in relation to or affecting the trial that created a real risk that the outcome was affected or resulted in an unfair trial or a trial that was a nullity.9 A “real risk” is a reasonable possibility that a not guilty or more favourable verdict would have been delivered if nothing had gone wrong.10
[35] The appeal proceeds by way of rehearing and the principles in Austin, Nicols
& Co Inc v Stichting Lodestar apply.11 The appellant is therefore entitled to the independent opinion of this Court even where it involves an assessment of fact and degree, and entails a value judgment.
[36] However, as the Court of Appeal recently said in Green v Green, the appellant still bears the onus of persuading this Court to reach a different assessment.12 In considering each of the errors alleged, the particular advantages enjoyed by the trial court where assessments of credibility and reliability are concerned are taken into account.
Did the Judge err in finding there was an election?
[37] Mr Haskett’s primary ground of appeal is that there is no evidence that
Ms Woods elected a blood test at all. In the alternative, Mr Haskett submits that any election was not valid as it was not made within 10 minutes of Ms Woods being given her s 77(3)(a) advice as required by s 72(1)(a)(ii).
[38] I have considered the evidence afresh. However, in doing so, I have taken into account that the appellant bears the burden of showing the Judge was in error, and I have taken into account that the Judge both heard and saw the officer give evidence. I have assessed whether there was an election, and whether the s 72 requirements have
been complied with, on the balance of probabilities.13
9 Criminal Procedure Act 2011, s 232(4).
10 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
11 Austin, Nicols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
12 Green v Green [2016] NZCA 486, [2017] NZLR 321 at [26]–[34].
13 Wheeler v Police HC Auckland CRI-2009-404-150, 31 August 2009 at [21]; R v Livingstone
[2001] 1 NZLR 167, (2000) 18 CRNZ 162 (CA); R v Gallagher [1991] 3 NZLR 163, (1991) 7
CRNZ 283 (CA).
[39] The first question is whether there is evidence that Ms Woods made an election for blood. The Judge found that there was an election made after the block J advice was given. I do not consider the CCTV footage supports that finding. Ms Woods cannot be seen saying anything at all immediately after the block J and block K advice is read out. Although there is some laughter and a few words exchanged in the 10 minutes after the block J advice is read out, on the balance of probabilities, I do not consider that evidence can be construed as a positive election for blood at that time.
[40] The Crown does not contend otherwise. Following review of the CCTV footage at the appeal hearing, Crown counsel accepted that there was no evidence of Ms Woods electing blood after the block J advice was given. To the extent the Judge found that there was an election at this point in time, I consider such a finding to be in error.
[41] However, I do consider that Ms Woods made an election. As the Judge observed, the officer would hardly have rung the blood nurse if there had not been an indication by Ms Woods that she wanted to give blood. There is no suggestion that Ms Woods was forced to give blood, changed her mind, or otherwise refused to give blood. I agree with the Judge that Ms Woods must have agreed to take a blood test at some point in time.
[42] I consider it probable that the election was made during the conversation between the officer and Ms Woods after the breath test results were obtained. On the CCTV footage, Ms Woods can be seen nodding her head, talking, and saying something like “yup” to the officer concerned. I consider it likely that the officer was giving Ms Woods information about the blood test election at this time. Crucially however, in the absence of any sound, I am unable to ascertain what the officer was saying. I am not prepared to find, even on the balance of probabilities, that the s
77(3)(a) advice was given at this time.
[43] It follows that the Judge did not err in finding that there was an election, but he did err in finding that such an election was made after the s 77(3) advice had been given. The election was likely made before the s 77(3) advice was given, and therefore outside the 10 minute period.
[44] Consequently, there has not been compliance with s 72(1)(b)(ii), and a statutory pre-requisite for the taking of a blood specimen has not been met. That non- compliance operates as a defence to the charge unless s 64(2) of the Act applies and the prosecution can show there has been reasonable compliance. Those two questions are considered below.
Does s 64(2) apply?
[45] Section 64(2) provides:
It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A and 77 has not been strictly complied with or has not be complied with at all, provided there has been reasonable compliance with such of those provisions as apply.
[46] Mr Haskett submits that s 64(2) does not apply in these circumstances because it only relates to procedural non-compliance by an officer, and not to the motorist’s right of election. He submits that s 64(2) cannot be used to create a valid consent where there is none.
[47] Mr Haskett’s submissions are premised on the basis that Ms Woods did not make any election at all. But, for the reasons set out above, I have concluded that there was an election, albeit prior to the s 77(3) advice being given. This is not, therefore, a case of s 64(2) being used to plug a hole in the evidence by constructing an election where there was none.
[48] The provision that has not been complied with is s 72(1)(b)(ii). Specifically, it is the requirement that the election be made within 10 minutes, after the s 77(3) advice was given. In this case, the election was made before the s 77(3) advice was given and outside the 10 minute period.
[49] In my view, s 64 (2) does apply in those circumstances. It applies to “a provision forming part of sections 68 to 75A” and therefore applies specifically to s 72. And, it applies where there has not been strict compliance or where there has not been any compliance at all with those provisions.
[50] I therefore find that s 64(2) does apply in this case. The next question is whether there has been reasonable compliance with s 72(1)(b)(ii).
Has there been reasonable compliance?
[51] In R v Aylwin, the Court of Appeal reviewed the legislative history and relevant case law on s 64(2) and stated the applicable test as follows:14
[41] The test as to whether there has been reasonable compliance has been seen as involving the consideration of two questions, as set out in Soutar v Ministry of Transport [1981] 1 NZLR 545 at 550 (CA) and Aualiitia v Ministry of Transport [1983] NZLR 727 at 729 (CA). The first question is whether the extent of the non-compliance gives rise to a reasonable doubt about the correctness of the result. The second question is whether there is a risk of the defendant suffering injustice or unfairness. The need for this test to be applied liberally was reiterated by this Court in Shaw v Police CA212/95
21 September 1995. Accordingly, where the non-compliance does not create the possibility or likelihood of error, it should be saved by reasonable
compliance.
[52] The Court of Appeal’s decision was upheld on appeal.15 The Supreme Court observed that Parliament had legislated to remove technical and unmeritorious defences and that the courts must give full effect to that clear parliamentary intention.16
[53] The issue in Aylwin was the manner in which the breath screening test and evidential breath test had been carried out and whether it was in compliance with the Transport (Breath Tests) Notice (No 2) 1989. A number of authorities since Aylwin have sought to limit the test to cases where the correctness of the result was directly in issue.17 Others, however, have applied the reasonable compliance test more widely.18
[54] Mr Haskett submits that the reasonable compliance test does not equate to a prejudice test and other factors are also relevant to the inquiry. He draws support for
14 R v Aylwin [2008] NZCA 154.
15 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.
16 At [17].
17 See for example Talwar v New Zealand Police [2013] NZHC 315 at [32]; Wheeler v Police HC Auckland CRI 2009-404-150, 31 August 2009 at [18] and [19]; Harrison v Police [2014] NZHC
197.
18 R v Keen [2016] NZHC 373; Brett v Police [2016] NZHC 201.
that submission from the Supreme Court decision in Birchler v Police.19 That case involved compliance with statutory pre-requisites. The Supreme Court said:
[18] In qualifying what it said in Aylwin in the passage to which Joseph Williams J referred, set out in [13] above, this Court recognised that, in order to justify a decision to require a driver to undergo an evidential breath test, the prior breath screening test must have been lawfully required in terms of s 68. In the later passage at [14] of Aylwin setting out what the prosecution was required to establish to prove the charge under s 56 it was assumed that any necessary pre-requisites for requesting the breath screening and evidential breath tests had existed because there had been strict compliance or reasonable compliance with ss 68 and 69. No such matter was in issue in Aylwin where the argument unsuccessfully raised for the appellant related to the manner in which the testing was conducted, rather than whether a pre- requisite step had been followed.
(emphasis added)
[55] It is somewhat strained to infer from the above passage that the Supreme Court was endorsing a different approach to be taken in cases involving compliance with statutory pre-requisites. Nevertheless, as the correctness of the blood test result is not in issue in this case, I consider a broad inquiry into whether there has been reasonable compliance is appropriate. Accordingly, I have not limited the inquiry to the likelihood or possibility of error, but have also considered the extent of the non- compliance measured against the purpose of the requirements in s 72(1)(b)(ii), and the reasons for that non-compliance.
[56] The starting point is to consider the underlying purpose of the requirements in s 72(1)(b)(ii). It is convenient to set out the subsection again:
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 …
[57] The provision at issue in this case stipulates a statutory pre-requisite to the taking of a blood specimen, but the election of a blood test is also a statutory right under s 70A of the Act. That right assumes particular importance in breath alcohol cases. In Aylwin v Police, the Supreme Court confirmed that the right of election to
have a blood test and the right to be advised of that right “… must be regarded as
19 Birchler v Police [2010] NZSC 109, [2011] 1 NZLR 169.
providing effective protection against the consequences of an error in a breath screening test or an evidential breath test”.20
[58] The election is also important in blood alcohol cases. If the pre-requisites in s 72(1)(b) are met, and the person advises the officer that they wish to undergo a blood test, they are required to permit the medical officer to take that blood. A subsequent refusal or failure to permit the blood specimen to be taken constitutes an offence under s 60 of the Act.
[59] Where there is no evidence of an election at all, then there is no statutory obligation to permit the taking of blood, and the subsequent provision of a blood specimen may be unlawful. In New Zealand Police v Waata,21 there was no evidence of a request for blood, whether within 10 minutes or at all. The only proved consent was to the taking of blood in response to the demand by the officer. Baragwanath J held that the taking of blood without either free consent or statutory authority constituted a trespass prohibited both at common law and by s 21 of the New Zealand Bill of Rights Act 1990.22
[60] The purpose of ensuring that the election is made after the s 77(3) advice is given is self-evident. It is to ensure that any decision to elect blood is fully informed. Similarly, the 10 minute period specified in s 72(1)(b)(ii) 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.23
[61] Measured against the underlying policy and purpose of the requirements, I consider the extent of the non-compliance with s 72(1)(b)(ii) is significant. In particular, the election was not made after the s 77(3) advice was given nor within the
10 minute period; and there is no evidence of a 10 minute period of reflection having
been afforded.
20 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [11].
21 New Zealand Police v Waata [2006] DCR 738.
22 At [17].
23 See Leota v Police HC Auckland CRI-2009-404-373, 4 March 2010 at [26].
[62] The extent of the non-compliance is greater than it was in R v Keen and in R v Brett.24 In both of those cases the election was made after the s 77(3) advice had been given and the issue concerned the commencement of the 10 minute period.
[63] In terms of explanation for this non-compliance, I note at once that there is no allegation of bad faith against the officer concerned. She appears to have followed the blood alcohol procedure form methodically, and, had there been sound on the CCTV footage, the result of this case may be quite different. However, the officer has been unable to offer any reasons for the non-compliance in this case.25 It may be inferred from the CCTV footage that the officer has simply assumed that Ms Woods maintained her election for blood even after the s 77(3) advice was given. The officer may also have assumed that the same decision would be made even if the 10 minute reflection period was afforded. But, given the importance of an informed and considered election, I do not consider an assumption that the same decision will made within 10 minutes after the s 77(3) advice is read out constitutes an adequate reason for the non- compliance in this case.
[64] As to prejudice, I accept that, from one angle, it appears that Ms Woods has not suffered any prejudice as a result of the non-compliance. It has not affected the end result of either her blood test or her breath test. Furthermore, unlike the position in Neiman v Police, she has not lost the opportunity to have a blood test,26 and there is no suggestion that she would have changed her mind had she been asked to reconfirm her election after being given the s 77(3) advice.
[65] However, viewed from another angle, there is a risk of unfairness resulting from the non-compliance. The lack of compliance means that Ms Woods’ election for blood was neither fully informed, nor considered. That undermines the very purpose of the requirements and poses a real risk of injustice occurring in the future should
such compliance be considered reasonable.
24 R v Keen [2016] NZHC 373; Brett v Police [2016] NZHC 201.
25 The relevance of the reasons for the non-compliance is discussed in Coltman v Ministry of
Transport [1979] 1 NZLR 330 (CA); Kavanagh v Police HC Christchurch, CRI-2005-409-231,
27 February 2006; Ariki v Police HC Auckland, CRI-2007-404-000174, 6 November 2007 at [24];
and Wheeler v Police HC Auckland CRI 2009-404-150, 31 August 2009 at [37].26 Neiman v Police HC Wellington, CRI-2006-485-125, 14 February 2007 at [16].
[66] Overall, I consider the importance of the right to elect blood, the absence of a reasonable explanation for the non-compliance, and the fact that Ms Woods’ election was neither informed nor considered means that the compliance in this case cannot be considered reasonable.
[67] I find that the non-compliance with s 72(1)(b)(ii) is not saved by s 64(2). That means the non-compliance operates as an effective and complete defence against the charge, and the appeal must therefore be allowed.
Result
[68] The appeal is allowed. There is no outstanding factual question left to be determined and so there is no reason to send the proceeding back to the District Court. Accordingly, the conviction is quashed.
Edwards J
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