Zhao v Police
[2017] NZHC 195
•20 February 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-356 [2017] NZHC 195
BETWEEN YAN ZHAO
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 13 February 2017 Appearances:
H Laubscher for Appellant
D M A Wiseman for RespondentJudgment:
20 February 2017
JUDGMENT OF LANG J [on appeal against conviction]
This judgment was delivered by me on 20 February 2017 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
ZHAO v NEW ZEALAND POLICE [2017] NZHC 195 [20 February 2017]
[1] Mr Zhao was charged with driving a motor vehicle with excess breath alcohol and careless use of a motor vehicle. He pleaded guilty to the charge of carelessly using a motor vehicle, but not guilty to the charge of driving with excess breath alcohol. Following a defended hearing involving evidence that spanned two days, Judge P J Sinclair found Mr Zhao guilty of that charge in a decision delivered on
18 November 2016.1 Mr Zhao appeals against conviction on the charge of driving
with excess breath alcohol.
[2] The appeal raises two issues. The first is that Mr Zhao’s limited grasp of the English language meant that he did not fully understand crucial aspects of the breath testing procedure and his legal rights in respect of that procedure. The second ground of appeal is that Mr Zhao was not given an uninterrupted ten minute period within which to decide whether or not to provide a blood sample for the purposes of analysis.
Background
[3] The events giving rise to both charges occurred on 26 July 2015. In the early hours of that day the police became aware of an incident in which the motor vehicle driven by Mr Zhao had collided with a parked vehicle on East Coast Road. Two police officers, Constables Takuira and Chueh, were despatched to deal with the incident.
[4] When they arrived at the scene, the officers found Mr Zhao standing beside his vehicle. After ascertaining that he was not injured, Constable Chueh required Mr Zhao to undergo a breath screening test. When this returned a positive result, Constable Chueh required Mr Zhao to accompany him to the North Shore Policing Centre for an evidential breath test, a blood test or both.
[5] After arrival at the police station, Constable Chueh required Mr Zhao to undergo an evidential breath test. Before doing so, Constable Chueh advised Mr Zhao of his rights under the New Zealand Bill of Rights Act 1990. These
included the right to obtain legal advice without delay and in private. Constable
1 New Zealand Police v Zhao [2016] NZDC 21447.
Chueh took Mr Zhao’s response to indicate that Mr Zhao did not wish to obtain the services of a lawyer. The evidential breath test that was then undertaken produced a result of 560 micrograms of alcohol per litre of breath.
[6] Mr Zhao subsequently declined to provide a sample of his blood. As a result, the prosecution relied on the result of the evidential breath test to establish the charge.
Was Mr Zhao given an uninterrupted ten minute period within which to decide whether to provide a blood sample?
[7] I deal with this issue first, because I have concluded that it must be decided in
Mr Zhao’s favour.
[8] Section 70A of the Land Transport Act 1998 relevantly provides as follows:
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; or
(b) the person is apparently younger than 20; or
(c) the person holds an alcohol interlock licence or a zero alcohol licence.
(2) A person does not have the right to elect to have a blood test to assess the proportion of alcohol in his or her blood if the result of the person's positive evidential breath test indicates that the proportion of alcohol in the person's breath exceeds 250 micrograms of alcohol per litre of breath but does not exceed 400 micrograms of alcohol per litre of breath.
…
[9] Section 77(3) then 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
(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).
[10] Where there has been non compliance with the requirements of either section, the admissibility of the test result may nevertheless be saved or cured by s 64(2) of the Act, which provides:
64 Defences
(2) 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 been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.
[11] In the present case the evidential breath test returned a result of 560 micrograms of alcohol per litre of breath. This meant that Mr Zhao had the right, within ten minutes of being advised of the matters contained in s 70A(1), to elect to provide a blood sample to assess the proportion of alcohol in his blood. In that event, the result of the blood test would provide conclusive evidence of the amount of alcohol in Mr Zhao’s blood and the prosecution could not rely upon the evidential
breath test result.2
2 Land Transport Act 1998, ss 77(2) and (3).
[12] Constable Chueh said that he advised Mr Zhao of the result of the evidential breath test and of his right to give blood at 1:47 am. He then gave Mr Zhao ten minutes within which to decide whether or not to provide a blood sample.
[13] The ten minute period was interrupted when Mr Zhao asked to use the bathroom. Whilst Mr Zhao was in the bathroom, Constable Chueh heard him talking on his cellphone to another person. Constable Chueh ascertained that Mr Zhao had used his visit to the bathroom to telephone his father in China in order to seek advice as to whether or not he should provide a blood sample.
[14] Once Mr Zhao emerged from the bathroom Constable Chueh decided to restart the ten minute period within which Mr Zhao was required to decide whether or not to provide a blood sample. This commenced at about 1:55 am and was therefore scheduled to end at about 2:05 am. The ground of appeal arises because, at approximately 1:59 am, Constable Takuira began talking to Mr Zhao about the circumstances in which Mr Zhao’s vehicle had collided with the parked vehicle. Constable Takuira had not been present when Constable Chueh had administered the evidential breath test procedure because he had returned to the scene of the collision to make arrangements for Mr Zhao’s vehicle to be towed away. It appears that he returned to the police station after Constable Chueh had restarted the ten minute period within which Mr Zhao was required to decide whether to provide a blood sample.
[15] Constable Takuira was clearly not aware of that fact when he began talking to Mr Zhao about the collision. He assumed that all of the testing procedures had been completed and that Mr Zhao was waiting to leave the police station. Constable Takuira said he decided to assist Constable Chueh by completing part of a form headed “Traffic Accident Report”. Constable Chueh had begun completing that form but he had not completed section 6 of the form, which was headed “Driver Interview Notes”. Constable Takuira said he completed this section by asking Mr Zhao questions about the collision and then converting Mr Zhao’s answers into narrative form. He undertook this process whilst standing beside Mr Zhao in the room where he was sitting at a table opposite Constable Chueh. Constable Chueh did not intervene at any stage to tell Constable Takuira that Mr Zhao was part way
through the ten minute period within which he needed to decide whether to provide a blood sample.
[16] The interview resulted in Constable Takuira inserting the following notes into the Traffic Crash Report form:
I was at a karaoke bar at Wyndom [sic] Street in Auckland city and I drank three bottles of beer over 3 hours. I was driving home to my house at 10
Kirkdale Place Northcross. I was driving north on East Coast Road and when I drove around the corner past Spencer Road I crashed into silver
coloured car that was parked on the side of the road. My airbag deployed and I am not injured.
[17] After completing the driver interview notes, Constable Takuira took the form to Mr Zhao and asked him to read it and sign the notes correct. This part of the process occupied approximately 26 seconds, and was captured on film footage from a closed circuit television camera installed in the room where the discussion occurred. The film footage was played at the trial. After reading the notes, Mr Zhao duly signed the form and gave it back to the constable. Constable Takuira then returned to his seat and Mr Zhao was again left to consider whether he should provide a sample of his blood.
[18] The Judge referred to authorities confirming that s 70A requires a liberal approach to be taken, and that some elasticity may be permitted.3 She concluded that the interaction between Mr Zhao and Constable Takuira occupied no more than
26 seconds. As a result, the Judge held that there had been no breach of Mr Zhao’s
right to have ten minutes within which to make his decision.
[19] During the hearing before me, however, both counsel agreed that the
26 second period related only to that portion of the exchange in which Constable Takuira asked Mr Zhao to read the notes he had prepared and to sign them. Counsel agreed that, in total, the exchanges between Constable Takuira and Mr Zhao caused a three minute interruption. This comprised approximately two and a half minutes during which Constable Takuira asked Mr Zhao questions about the collision and recorded his answers in narrative form, together with the 26 seconds taken by
Mr Zhao to read and sign the notes.
3 Hutchinson v Police High Court Rotorua CRI-2010-463-109, 3 September 2010.
[20] This means that Mr Zhao had an initial period of approximately four minutes within which to consider whether to give a blood sample. He then spent approximately three minutes dealing with Constable Takuira in relation to the Traffic Crash Report before spending a further three to four minutes considering whether to give blood.
[21] As the Judge acknowledged, the ten minute period must be free from undue interruption.4 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.5 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(1). Constable Takuira’s questions required Mr Zhao to divert his attention away from the issue he was required to consider for approximately three minutes. Furthermore, Mr Zhao was clearly still undecided about that issue. This is demonstrated by the fact that a short time earlier he had taken the step of contacting his father in China to discuss whether he should provide a blood sample.
[22] Although the questioning arose through inadvertence on the part of Constable Takuira, nevertheless I consider it breached the requirements of s 70A. The manner in which events occurred also prevents the prosecution from relying upon the reasonable compliance exception contained in s 64(2).
[23] Furthermore, a breach of s 70A cannot be cured by the balancing process contained in s 30 of the Evidence Act 2006.6 The appeal must accordingly be allowed.
Did Mr Zhao understand the breath testing procedure and his rights in respect of that procedure?
[24] This issue arises because English is Mr Zhao’s second language. His primary language is Mandarin. Mr Zhao’s evidence was to the effect that he did not
4 Kaisuva v Police (1993) 11 CRNZ 151 (HC) at 153.
5 See eg Baxter v Ministry of Transport (1990) 6 CRNZ 445 (HC); Scown v Police [2015] NZHC
106 and Stewart v Police [2014] NZHC 274.
6 Birchler v New Zealand Police [2010] NZSC 109, [2011] 1 NZLR 169 at [17].
understand critical aspects of the advice given to him by Constable Chueh in relation to the breath testing procedure and his rights in respect of that procedure. Mr Zhao also called evidence from a linguistics expert who said that tests she had carried out showed that Mr Zhao had a limited command of the English language, and would struggle to understand language of any complexity. She considered the advice given to Mr Zhao fell within the description of complex language.
[25] Given my finding in relation to the first issue it is not necessary for me to reach any firm conclusion regarding this ground of appeal. I would, however, have been reluctant to interfere with the Judge’s conclusion that Mr Zhao had sufficient command of English to understand the advice given to him by Constable Chueh. I make that observation notwithstanding the evidence given by the linguistics expert.
[26] The Judge had the benefit of seeing and hearing the witnesses give evidence and, in that respect, enjoyed a distinct advantage that is not available to this Court. Furthermore, the Judge gave detailed reasons for her decision. Although Mr Laubscher challenged each of the reasons given by the Judge for rejecting Mr Zhao’s evidence, this Court can only interfere if it is satisfied the ultimate decision is wrong.7 Like the Judge, I consider it significant that Constable Chueh also speaks Mandarin, and he dealt with Mr Zhao for a considerable period of time during the evening in question. At no stage did he consider it necessary to resort to Mandarin in
order to ensure Mr Zhao understood what he was saying.
[27] The issues raised under this ground of appeal nevertheless highlight the need for the police to take care when dealing with persons for whom English is a second language. During the hearing in the District Court, Mr Laubscher put to Constable Chueh a printed form produced by the police setting out advice in Mandarin about the evidential testing procedures and the rights of a suspect who is required to undergo those procedures. Constable Chueh confirmed that he did not provide this form to Mr Zhao, presumably because he was satisfied that Mr Zhao understood the advice he was giving in English. With the benefit of hindsight, however, it may have
been safer for the Constable also to have provided Mr Zhao with a copy of the form.
7 Austin Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].
That would have precluded the argument that Mr Zhao advanced under this ground of appeal.
Result
[28] The appeal against conviction is allowed. The conviction is quashed, as is the fine and order for disqualification imposed by the Judge.
Lang J
Solicitors:
Crown Solicitor, Auckland
3
1