Young v Police

[2017] NZHC 1642

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000151 [2017] NZHC 1642

BETWEEN

FREDERICK YOUNG

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	17 July 2017
Counsel:	RR Roy for Appellant CP Howard for Respondent
Judgment:	18 July 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 18 July 2017 at 11 am.

Registrar/Deputy Registrar

Solicitors:

Public Defence Service, Manukau.

Kayes Fletcher Walker Ltd, Manukau.

YOUNG v POLICE [2017] NZHC 1642 [18 July 2017]

The issue

[1]      The  appellant  was  convicted  of  reckless  driving  and  refusing  a  blood specimen, both contrary to the Land Transport Act 1998.  He pleaded guilty to the first, but defended the second.   He appeals conviction on the basis the evidence could not sustain the offence of refusing a blood specimen.

Background

[2]      On 12 September 2015 the appellant was driving towards Auckland.   He passed a car, forcing other drivers to take evasive action.  One called Police.  The appellant continued to drive poorly, drifting in and out of lanes and almost hitting the pole of a street light.  Police stopped the appellant near the Karaka motorway exit.

[3]      Constable Dawson said the appellant was unstable on his feet, smelt slightly of alcohol and had glassy eyes.  The appellant refused to give the officer his details. The appellant refused to say whether he had been drinking, and refused both the passive drink/drive test and breath screening test.   Constable Dawson required the appellant to accompany him to the Manukau Police Station for an evidential breath or blood test. The appellant agreed to do so.

[4]      En route, the appellant fell asleep.  Once at the Police Station, the appellant refused to comply with the evidential breath testing procedure.  He declined to sign a written acknowledgement of the administration of his rights.   Constable Dawson said:

OK, so Mr Young was sitting next to the desk where the evidential breath testing machine was placed so I gave him his Bill of Rights again which he did not acknowledge at all.  He just kept staring straight ahead.  I asked him to sign the form to say that he had received his Bill of Rights caution.  Once again, he refused to do that.  So from there I turned on the machine, let it go through its warm-up procedure.  It was indicating time to do the breath test. I put a tube on the end of the hose and asked him to blow into the machine for the purposes of an evidential breath test.  He still refused to even look at me, just looked straight ahead so I asked him several times.  Then I placed the hose with a tube on it next to him and but he didn’t pick up just as before, looked straight ahead and refused even to acknowledge me and then eventually  the  time  on  the  machine  lapsed  so  producing  a,  well  not producing, a result from the test, so I carried on through the form again. Yeah, so once again I gave him his Bill of Rights and then requested once again to sign a form to say that he had been given his Bill of Rights which he

somewhat again refused to look at me and looked straight ahead and then requested from him that I needed to do a blood test as he failed to produce a breath test, and once again he just refused to acknowledge me at all just staring straight ahead and kind of like fixated on the wall.  So from there, he just refused everything.  I said to him “we’ll call a nurse to come and do the test, will you allow us to take blood from you”, and once again he just looked at me, didn’t acknowledge me at all.  Just probably went off (sic) for maybe three of four minutes trying to get either a yes or no out of him, whether it was me calling a nurse and then in the end it just wasn’t going to happen, so we left it at that.

[5]      Constable Dawson told the appellant he was required to permit a medical practitioner to take a blood specimen for evidential purposes.  The appellant refused to answer Constable Dawson’s questions, and would not engage with the procedure.

[6]      The appellant was arrested.  He was advised of the requirement to provide a sample of DNA.  He declined to provide a blood sample, but later agreed to and did provide a buccal sample.

[7]      A second officer, Senior Constable Dixon, also gave evidence.  He said the appellant sat in the evidential suite with his head between his knees, looking at the floor.   He said the appellant would not speak to them and made no attempt to co-operate during the evidential test procedures.

[8]      Judge Blackie observed:1

… the defendant never expressly positively refused to undergo the blood test,  rather  he simply did  not  respond to the  requests he  should  do  so. Inaction can be a strong indication of an intention to refuse.

And:2

In my view, having regard to the evidence that I have heard, the defendant adopted an attitude of being totally unengaged with the passive breath test procedure, breath screening test procedure, evidential breath test procedure and the blood sample procedure.  Looking at his conduct as a whole, there is overwhelming evidence that the defendant was refusing to permit a blood sample to be taken.   His silence is not an issue of Bill of Rights, it is an attitude of defiance.  The evidence is further strengthened by the defendant’s refusal to co-operate in respect of a blood sample being taken for a DNA test but subsequently agreeing to an oral sample being taken.   This strongly

indicates that the defendant was making a conscious decision not to engage in the process.

[9]      The Judge had “no hesitation” in finding the charge proved.3

The respective cases

[10]     The appellant contends the Judge erred in his assessment of the evidence to such an extent a miscarriage of justice has occurred.4    On behalf of the appellant, Mr Roy submits the evidence does not establish a failure or refusal on the part of the appellant to permit a blood sample to be taken.  In essence, the appellant did no more than remain silent.  Or, as it was also put:

It is submitted that the basis of the error in the assessment of the evidence stems [from] an erroneous mindset.  The exercise of a right is seen as not doing what the police want.  Not doing what the police want is described as a lack of cooperation.   A lack of cooperation is then misconstrued as a refusal.   The subtle glissade from one meaning to another leads to error. This  mindset  colours  interpretation  of  the  facts.    Passivity  is  equally consistent with cooperation, yet depending on one’s attitude, it is viewed as refusal.    Being required  to  permit  a  blood  specimen  to  be  taken  by an enforcement officer imposes no requirement to do anything; there is nothing with which to co-operate.

[11]    For the Police, Mr Howard submits there was “an ample basis” for the conclusion the appellant committed the offence having regard to the totality of his conduct.

Principle

[12]     Section 60(1)(a) of the Land Transport Act creates an offence when a person “fails or refuses to permit a blood specimen to be taken after having been required to do so … by an enforcement officer”.   It will be noted the single offence can be committed in two different ways: by the defendant’s failure to permit a blood sample to be taken, or by his or her refusal to permit a sample to be taken.   The former implies omission; the latter some positive conduct.

[13]     In identifying and proscribing both species of conduct under the umbrella of a single offence, it is likely Parliament has sought to “cover the field” of human behaviour in response to an enforcement officer’s demand, presumably in the public interest having regard to the efficacy of law enforcement in a drink-drive context. Obviously, each species of conduct requires fault.

[14]     Support for these propositions is found in Tikao v Ministry of Transport, in which Holland J observed:5

If the appellant knew and understood that he was being asked to permit a specimen of blood to be taken his refusal or failure to permit the specimen to be taken creates the offence unless it can be shown that that refusal or failure was not an act of his own volition. The onus, however, remains on the Crown to prove beyond reasonable doubt that the refusal was a conscious deliberate decision of the appellant but the Court is not concerned at the reasoning process which persuaded the appellant to reach that conclusion.

[15]     Other cases establish:

(a)      The offence is complete once a defendant makes a final refusal to provide a sample.6

(b)Some vacillation on the defendant’s part is permissible, so as long as it is part of a genuine decision-making process vis-à-vis provision of a sample.7

(c)      Whether the defendant has failed or refused to permit a sample to be taken  is  a  question  of  fact  turning on  the whole of that  person’s conduct and totality of circumstance.8   So:

(i)       It  is  not  necessary  for  the  defendant  to  say  “no”,  or,  “I

refuse”.9

5      Tikao v Ministry of Transport (1986) 2 CRNZ 703 at 705.

6      Selwyn v Police [2015] NZHC 3185 at [50].

7      Davidson v Ministry of Transport (1987) 2 CRNZ 426 (HC) at 431.

8      Vitullo v Ministry of Transport (1988) 3 CRNZ 227 (HC) at 230.

(ii)A refusal can arise in many ways, including by simply not granting the permission sought.10

[16]     The  last  proposition  derives  from  Neve  v  Police.11      There,    Holland  J

observed:

It is important to remember that the refusal required to be proved is a refusal to give permission.  In the case of a conscious person where there is no need for blood to be taken for medical purposes, such cannot lawfully be taken without the permission of that person.  A refusal to give permission can be demonstrated in several ways.  The first and obvious one is for the person to say “I refuse” or to answer the question “No” but, because the obligation is to give permission, a refusal to grant that permission can arise in many ways by simply not granting the permission sought.  The question is whether the person concerned is deliberately refusing permission.

Analysis

[17]     While the appellant argues his conduct was equivocal and no more than the exercise of his general right to silence, the propositions above in the context of the evidence demonstrate it was open to the Judge to conclude the appellant had failed or refused to permit a blood specimen to be taken.   The totality of circumstance included the appellant’s refusal:

(a)       To answer questions once stopped.

(b)To complete any form of breath test (the appellant turned his head away).

(c)       To acknowledge rights’ administration.

(d)      To conduct an evidential breath test.

(e)       To say whether he agreed to provide a blood specimen.

(f)       To   engage   more   generally   with   Constable   Dawson   or   Senior

Constable Dixon.

10     Neve v Police (1994) 11 CRNZ 374 (HC).

11     At 378.

[18]     Nor is it an answer to assert the appellant was doing no more than exercising his right to silence.  The statutory obligation on a driver in these circumstances is to provide a blood sample.   This is not to criminalise silence, for, the New Zealand Supreme Court has held the right to silence does not attach to “refusing to supply physical evidence which exists and can be found independently of any testimony of

the individual, such as bodily samples”.12   As explained by that Court, the right to

silence is directed at testimonial compulsion—nothing more. [19]     The appeal is dismissed.

……………………………..

Downs J

12     Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [47].