Zou v Police

[2013] NZHC 352

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000323 [2013] NZHC 352

XIN ZOU

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 February 2013

Appearances: J Moroney for the Appellant

K Francis for the Respondent

Judgment:      28 February 2013

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 28 February 2013 at 2:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Thode Utting & Co., Barristers & Solicitors, PO Box 300885, Albany, North Shore City 0752. Crown Solicitor, Auckland.

ZOU V POLICE HC AK CRI-2012-404-000323 [28 February 2013]

Summary

[1]      Mr Zou appeals against his conviction for driving a motor vehicle while the proportion of alcohol in his blood was 229 miligrams of alcohol per millilitre of blood.  The appeal is brought on the basis that the District Court erred in finding that Mr Zou was the driver of the vehicle and that his rights under the New Zealand Bill of Rights Act had not been breached.

Background

Facts

[2]      In the early hours of 20 February 2012, Mr Zou was found by Police next to a motor vehicle which had been involved in a recent collision.  One of the attending officers, Constable Morrison, asked Mr Zou who had been driving.   Mr Zou responded, “I was.”  There was one other person nearby.  The officer did not record this conversation in his notebook but noted Mr Zou’s details under a heading “Driver”. A passing motorist had also identified the driver of the vehicle as the taller of the two persons at the scene.  Mr Zou was the taller of the two.

[3]      Mr Zou was required by Constable Morrison to accompany him to the police station after failing a breath screening test.  He was given his Bill of Rights at the road side.  At the police station, he was again informed of his rights and read a Bill of Rights form which he signed without requesting a lawyer.   Mr Zou was then required to undergo an evidential breath test, which he was unable to complete. Mr Zou was again read the Bill of Rights form which included the statement “You have been detained for the purpose of breath or blood test procedures for alcohol.” This time when asked if he would like to consult with a lawyer, Mr Zou said “yes”. Mr Zou then spoke to a lawyer before being requested, but not required, to provide a blood sample.  Mr Zou was detained from 3.16 am, the time at which he was unable to complete an evidential breath test, until 3.45 am when he was requested to provide a blood sample.

[4]      Mr Zou then agreed to provide a sample of his blood.  The blood sample later taken provided a result of 229 milligrams of alcohol per 100 millilitres of blood.

[5]      Constable Morrison later amended the procedure sheet detailing the breath and blood alcohol tests.  However, Constable Morrison then noted on the procedure sheet that he had done this by mistake and spoke to his supervisor.  No changes were made to the part of the sheet relevant to proof of the identity of the driver or proof of the excess blood alcohol charge.

District Court decision

[6]      In an oral judgment delivered on 6 September 2012, Judge Sinclair addressed the two issues raised by the defence, which are the same as those raised on this appeal.  The first was whether there was sufficient evidence to establish that Mr Zou was the driver of the vehicle.  Judge Sinclair found Constable Morrison’s evidence that Mr Zou identified himself as the driver credible.  His explanation that he did not record the conversation as there was no ambiguity or doubt over the driver’s identity was accepted.

[7]      The second issue was  whether there had been  any breaches of the New Zealand Bill of Rights Act by the Police, resulting in the unlawful detention of Mr Zou.  The defence submitted that during the period of time between the failure to complete an evidential breath test and the giving of the blood sample, Mr Zou was unlawfully detained as he was not immediately advised that he was required to undergo a blood test.   Judge Sinclair considered however that Mr Zou’s detention was ongoing and did not end when he was informed of the result of the evidential breath test.  He had been advised that he was detained for the purpose of breath and blood test procedures.   There was therefore no breach of ss 22 or 23 of the New Zealand Bill of Rights Act.  The period of time Mr Zou was detained was also not unreasonable.

[8]      Judge  Sinclair  considered  the  “irregularities”  of  being  requested,  not required, to provide a blood sample and Mr Zou being given his Bill of Rights before being required to give a blood sample were cured by s 64(2) Land Transport Act, the

“reasonable compliance” provision. This was because any non-compliance was minimal and Mr Zou was not prejudiced by the possible non-compliance.

[9]      Judge Sinclair also considered that even if there had been breaches of the New Zealand Bill of Rights Act and the procedural irregularities could not be cured by s  64(2),  the  evidence  of  the  blood  test  should  not  be  excluded  under  s  30

Evidence Act, which requires a balancing exercise to be carried out if evidence is improperly obtained.

[10]     Having convicted Mr Zou, Judge Sinclair fined him $1,100 and disqualified him from driving for seven months.

Ground of Appeal

[11]     Mr Zou appeals his conviction on the following grounds:

(a)      That the District Court Judge erred in fact by finding that Mr Zou was the driver of the motor vehicle.

(b)That the District Court Judge erred in finding that Mr Zou’s rights under the New Zealand Bill of Rights Act had not been breached and that consequently evidence relating to his blood alcohol level should have been excluded.

Appellant’s Submissions

[12]     The  appellant  submits  that  the  District  Court  Judge  erred  by incorrectly assessing the evidence, leading to the erroneous conclusion that Mr Zou was the driver of the motor vehicle beyond reasonable doubt.   The appellant submits the following facts amount to reasonable doubt (summarised from the appellant’s submissions):

(a)       Mr Zou was not in the vehicle when the Police arrived at the scene;

(b)      there was one other person who had been in the vehicle; (c)    the vehicle was not registered in Mr Zou’s name;

(d)Constable Morrison did not record the conversation in which Mr Zou said he was the driver of the car in his notebook;

(e)      Constable Morrison gave evidence that “due to his intoxicated state, I did not believe that it was very fair that I took a full statement from him as to who the driver was”, which brought into question the details of the conversation where Mr Zou said he was the driver;

(f)       The witness who said the driver was the “taller of the two persons”

was not called by the Police;

(g)Constable Morrison was confused about aspects of the breath and blood alcohol procedures and three months later attempted to amend the breath and blood alcohol procedure sheet.

[13]     The appellant submits that the District Court Judge also erred in not finding that there were any errors or breaches of the New Zealand Bill of Rights Act by the Police resulting in Mr Zou having been unlawfully detained.

[14]     The submissions relating to the New Zealand Bill of Rights Act are the same arguments put forward in the District Court.   The appellant submits that he was entitled to leave the police station in the period following the failed evidential breath test.  The fact that he was held at the police station during this period is therefore said to be an unlawful detention in terms of s 22 of the New Zealand Bill of Rights Act.  As in the District Court, the appellant also submits that on receiving the result of the evidential breath test that particular ground for his detention was no longer applicable and he should have been advised of a new ground for his detention. Instead of consulting his lawyer before being informed of the new ground for his detention (requiring a blood test), he should have then been permitted to consult his lawyer after being informed of this new ground for his detention.

[15]     The appellant’s submissions refer to Rae v Police1 which held that the right to a lawyer is a continuing right as is the obligation of a police officer to facilitate that right.   The appellant submits that this means that after receiving the result of the evidential breath test, which was after he had spoken to a lawyer, he should then have had the opportunity to consult a lawyer again.

[16]     The appellant further submits that as Mr Zou’s rights were breached under ss 22 and 23 of the New Zealand Bill of Rights Act, s 64 Land Transport Act and s 30 Evidence Act should not be invoked and used to cure the breach identified.  The breaches  of  Mr  Zou’s  rights  were  not  merely  technical  and  they  substantively affected his ability to exercise his right to a lawyer at a time when the nature of his jeopardy ought to have been communicated to him.  The evidence of the blood test should therefore be excluded.

Analysis

[17]     An appeal against conviction is by way of rehearing.  Section 121(2) of the Summary Proceedings Act 1957 allows the High Court to confirm the conviction, set it aside, or amend it.

[18]     In Austin, Nichols & Co Ltd v Stichting Lodestar Elias J stated:2

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances, it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[19]     According to O’Neill v Police,3  in coming to its own judgment, the appeal court should pay appropriate deference to findings made by a Judge who had the

1      Rae v Police [2000] 3 NZLR 452 CA.

2      Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

3      O’Neill v Police [2009] DCR 131 (HC) at [5].

advantage  of  hearing  the  witnesses  on  questions  of  credibility,  but  it  must nevertheless review the evidential basis for factual findings carefully.

Driver of the vehicle

[20]     Mr Zou was charged under s 56(2) Land Transport Act which provides:

S 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.

[21]     Mr Zou was required to undergo a breath screening test under s 68(1)(c), which provides:

S 68     Who must undergo breath screening test

(1)       An enforcement officer may require any of the following persons to undergo a breath screening test without delay:

(c)      If an accident has occurred involving a motor vehicle,—

(i)        The driver of the vehicle at the time of the accident;

or

(ii)      If the enforcement officer is unable to ascertain who the  driver  of  the  motor  vehicle  was  at  the  time  of  the accident,  a  person  whom  the  officer  has  good  cause  to suspect was in the motor vehicle at the time of the accident.

[22]     Counsel for Mr Zou submitted in the District Court that, while there was no issue with Mr Zou being required to undergo a breath screening test under s 68, the fact of having undergone one does not prove that he was a driver for the purposes of s 56 of the Land Transport Act.  The test of whether someone is a “driver” for the purposes of s 68(1)(a) is that there must be “no such intervention of time, circumstance and conduct that the person must be seen as separated from the road

and the act of driving”.4     However, s 68(1) applies to “a driver of, or a person

attempting to drive, a motor vehicle on a road”.  Section 68(1)(c) therefore does not

4      Wynn-Williams v Police CA400/03, 15 June 2004 at [28].

require the proximate connection to actual driving on the road at the time of the breath test and that test is not relevant.  In R v Pedersen,5 the defendant was found to be a driver even though she had gotten out of her car and taken a few steps away.  To hold  otherwise  would  be  “an  affront  to  language,  commonsense,  and  the  clear purpose of the legislation.”6

[23]     In Police v Bradley,7  the defendant was seen some distance from a vehicle which the police officer suspected he had been driving shortly beforehand.   The Court held that an officer need not acquire good cause to suspect a driving offence before a suspect does a fresh act unconnected with the driving in question.8     In Mehrtens v Police,9 inference was used to determine whether a person was a driver. The defendant was found asleep or unconscious in the driver’s seat of a vehicle that

was found off the road.   In Danaher v Police, the defendant appealed the District Court’s  finding  that  he  was  the  driver  of  a  vehicle  at  the  relevant  time.    The defendant was the sole occupant of the vehicle and was found in the driver’s seat. Harrison J rejected the submission that the finding that the defendant was the driver was guesswork.   It was “the inexorable result of the judicial process of drawing logical inferences from proven facts.”10     While Mehrtens and Danaher cases are factually different from Mr Zou’s case as the defendants were found in their vehicles, they demonstrate the straight forward approach taken by the Courts in determining whether a person was a driver.

[24]     There may be an evidential foundation for raising the issue of reliability of Mr Zou’s statement that he was the driver.   Mr Zou’s intoxication and Constable Morrison’s response in cross examination that “due to his intoxicated state, I did not believe that it was very fair that I took a full statement from him as to who the driver was” are pieces of evidence that may suggest that the statement was unreliable. However, it is my opinion that the circumstances in which the statement was made were reliable on the balance of probabilities.  Although Mr Zou was intoxicated, the

question of who was driving was straight forward and easily understandable.  The

5      R v Pedersen (2004) 21 CRNZ 580 (CA).

6 At [31].

7      Police v Bradley [1974] 1 NZLR 113 (CA).

8      Brookers Law of Transportation (online looseleaf ed, Brookers) at LT56.03.

9      Mehrtens v Police [2005] DCR 857 (HC).

10     Danaher v Police HC Auckland CRI-2007-404-97, 3 September 2007 at [15].

facts here are distinguished from R v Sant11as there was nothing in the circumstances which would lead to a situation creating an untrue admission of guilt.  Mr Zou was not going to get any advantage from admitting that he was driving when he in fact was not driving.

[25]     Any errors made by Constable Morrison in amending the procedure sheet, which counsel submitted were overlooked by the District Court Judge in determining that Mr Zou was the driver of the vehicle beyond reasonable doubt, are irrelevant.

[26]     While it is correct that the fact of having undergone a breath screening test does not prove that Mr Zou was the driver, Mr Zou was asked to undergo a test because he said he was the driver.   While that only proves that he said he was driving, the finding that he was the driver of the vehicle was open to the District Court Judge on the evidence.

[27]     Constable  Morrison’s  evidence  that  Mr  Zou  told  him  he  was  driving  is credible.  The evidence that he did not record the conversation because there was no doubt  or  ambiguity is  also  credible.    No  alternative  narrative  was  presented  to explain who was driving or why Mr Zou would say that he was driving if he was not. There is no reason to think that Mr Zou would have lied.

[28]     To find that Mr Zou was not the driver would be to import unreasonable doubt and promote uncertainty, and as in Pedersen, would be an “affront to commonsense”.  The witness’s account that the driver was the “taller of the two”,12 recorded in the event chronology, corroborates the finding that Mr Zou was the driver.   Counsel for the appellant submitted that this evidence was not called and therefore there was insufficient evidence to support the finding that Mr Zou was

driving beyond reasonable doubt.  That this witness was not called is, in my opinion, irrelevant  because the event chronology was  admitted into evidence by defence counsel referring to it during cross examination.   He sought its production as a defence exhibit, Exhibit A.

Breach of Bill of Rights Act

[29]     Mr Zou’s second ground of appeal is that the District Court judge erred in finding that his rights under s 22 and/or s 23(1)(a) of the New Zealand Bill of Rights Act were not breached by Constable Morrison’s actions.

[30]     Section 22 provides:

22       Liberty of the person

Everyone has the right not to be arbitrarily arrested or detained.

[31]     Section 23 provides:

23       Rights of persons arrested or detained

(1)       Everyone who is arrested or who is detained under any enactment—

(a)      Shall be informed at the time of the arrest or detention of the reason for it;

(b)      Shall have the right to consult and instruct a lawyer without delay and to be informed of that right;

[32]     The appellant argued that he was arbitrarily detained for the period after receiving  the  failed  evidential  breath  test  result  but  before  being  requested  to undergo a blood test.  On this argument, Mr Zou was free to leave the police station after receiving the breath test result and if a blood test was required, should have been detained a second time and informed of the reason for that second detention. He should then have been entitled to contact his lawyer, rather than what actually happened, which was him contacting the lawyer after receiving the breath test result but before being requested to undergo a blood test.  The breach of s 23 follows on

from breach of s 22, if such a breach is established.  However, Rae v Police states:13

We are therefore satisfied that the lawful detention after s 69 is invoked must be taken to continue throughout the breath and/or blood testing procedures and, where there is a positive evidential breath test and a consequential right to ask for a blood test, that detention does not come to an end until the testing procedures are completed — either upon expiry of the 10 minute

period or upon the completion of the taking of blood, where an election is made to have a blood test

[33]     The defendant in Rae was able to complete the evidential breath test, which then gave her the option to elect to take a blood test.  Mr Zou was unable to complete the  breath  test,  meaning  s  70  of  the  Land  Transport Act  applied,  allowing  the enforcement officer to require Mr Zou to undergo a further evidential breath test, or proceed as if s 72(1)(c) applied.  Section 72(1)(c) 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—

(c)       An evidential breath testing device is not readily available at the place to which the person has accompanied an enforcement officer under section 69 (whether or not at the time the requirement was made it was likely that the person could undergo an evidential breath test at that place) or to which the person has been taken under arrest (as the case may be), or for any reason an evidential breath test cannot then be carried out at that place;

[34]     The  reasoning  in  Rae  is  equally  applicable  to  this  scenario  so  that  the detention of Mr Zou was ongoing. The justification was explained as:14

It seems unlikely that Parliament intended that the motorist's detention which begins under s 69 should come to an end before a decision not to request a blood test is made irrevocably and the procedures are accordingly at an end.

Parliament could not have intended that an individual is no longer detained at the point of failing to complete an evidential breath test, before the enforcement officer uses his or her discretion under s 70 to require a blood test.

[35]     In Bush v Police,15  the “requirement to accompany for the purposes of an evidential breath test or blood test or both” was held to adequately explain the purpose of the detention.   Constable Morrison said in evidence that following the positive  breath  screening  test,  Mr  Zou  was  required  to  accompany  Constable

Morrison  “for  the  purpose  of  an  evidential  breath  test,  blood  test  or  both”.16

Mr Zou’s detention was ongoing from that point and did not end after being given the evidential breath test result, when he spoke to his lawyer.   He also had been adequately informed of the grounds for his continued detention.

[36]     Applying Rae v Police,  Mr Zou’s  detention  was  ongoing throughout  the breath and blood testing procedures.  He was therefore not arbitrarily detained and s 22 of the New Zealand Bill of Rights Act was not breached.   The appellant’s reliance on Rae therefore does not assist his argument.  As he was informed that he was detained for the purpose of breath or blood test procedures for alcohol, s 23 of the New Zealand Bill of Rights Act was also not breached.  He was informed of this before he spoke to his lawyer so could have discussed the possibility of a blood test with his lawyer.   Counsel for the appellant submitted that the alleged breaches of Mr Zou’s rights under the New Zealand Bill of Rights Act “substantively affected his ability to exercise his right to a lawyer at a time when his jeopardy ought to have been communicated to him”.  It is my opinion that, as he was informed that he was detained for the purpose of breath or blood test procedures or both, his jeopardy had been communicated to him and his ability to exercise his right to a lawyer was not impacted.

[37]     As I do not consider that the New Zealand Bill of Rights Act was breached, s 30 Evidence Act is not engaged as the blood test evidence was not improperly obtained.

Conclusion

[38]     The  finding  that  Mr  Zou  was  the  driver  beyond  reasonable  doubt  is established by the evidence and was therefore open to the District Court Judge.

[39]     Mr Zou’s rights under the New Zealand Bill of Rights Act were not breached as his detention was ongoing and did not end after receiving the evidential breath test result. Mr Zou had been adequately informed of the reason for his detention

[40]     The appeal is accordingly dismissed.

……………………………..

Woolford J