Police v Tolich [2003] NZCA 134; (2003) 20 CRNZ 150 (3 July 2003)

Last Updated: 17 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA119/03POLICE

v

IRENE LOUISE TOLICHCA120/03POLICE

v

ANDREW THOMAS HUNT

Hearing: 3 July 2003

Coram: Gault P Keith J Anderson J

Appearances: J C Pike for Police
Z K Mohamed for both Respondents

Judgment: 3 July 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1] These are appeals brought by special leave under s144 of the Summary Proceedings Act 1957 from decisions of the High Court allowing appeals against summary conviction in the District Court on informations alleging driving with excess breath alcohol contrary to s56(1) of the Land Transport Act 1998. In each case the driving in question occurred in the year 2002 when the administration of the evidential breath testing and optional blood testing regime affected by s9(1)(b) of the Land Transport (Road Safety Enforcement) Amendment Act 2001 had come into force. The purpose of the amending act was to remove the defence of error or possible error in the result of an evidential breath test and ensure that an evidential breath test is conclusive subject to safeguards for the protection of the rights of defendants. Before the amendment a driver who had been required to take an evidential breath test and whose test result was between 400 micrograms and 600 micrograms per litre of breath had a statutory right to elect the taking of a blood test. The right was not available to persons whose test result exceeded 600 micrograms per litre of breath.
[2] One of the statutory safeguards introduced with the new regime of conclusive breath testing was a right to elect a blood test in any case where the breath test result exceeded 400 micrograms per litre of breath.
[3] Both before and after the introduction of the amendments a defendant entitled to elect a blood test had to be informed that the result of the evidential breath test was positive and what the consequences would be if the subject did not request a blood test within ten minutes. The present provision, s77(3) of the Land Transport Act is in these terms:

(3) Except as provided in subsection (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, that the test was positive and that, if the person does not request a blood test within 10 minutes,—

(i) In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be conclusive evidence to lead to that person's conviction for an offence against this Act; or

(ii) In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 150 but does not exceed 400 micrograms of alcohol per litre of breath, the test could of itself, unless the person is 20 or older, be conclusive evidence to lead to that person's conviction for an offence against this Act; 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).

[4] Before the amendment the information required to be given to the subject was not that “the test could of itself be conclusive evidence” as appearing in subs (3)(a)(i) and (ii) but rather that “the test could of itself be sufficient evidence”.
[5] Obviously to encourage uniformity and accuracy the Police, from time to time, create standard forms of advice to be given to suspects. In cases where a person required to undertake an evidential breath test has returned a positive result it is the Police practice to read and/or give to the subject a form headed “Advice of Positive Evidential Breath Test” which advises the positive result in terms of micrograms of alcohol per litre of breath and states that if the person does not request a blood test within 10 minutes, what the consequences of that will be. Before the amendments a standard form referred to that matter in the following terms.

If you do not request a blood test within ten (10) minutes, the test you have just undergone could of itself be sufficient evidence to lead to your conviction for an offence against the Land Transport Act 1998.

If you wish to undergo a blood test you must request one within ten (10) minutes.

[6] Whilst that form would have been entirely appropriate before the 2001 amendments it arguably may not strictly comply with the amended requirements which used the adjective “conclusive” rather than, as formerly, “sufficient”.
[7] After the amendments came into force the Police, no doubt through oversight, failed to change their standard form. Each of the respondents returned a positive evidential breath test result and were advised in accordance with the unchanged form. The respondents contend that the advice which referred to “sufficient” instead of “conclusive” did not comply with s77(3) and that they were entitled to be acquitted.
[8] In her summary trial Ms Tolich did not take the point but raised it in a general appeal to the High Court. Chambers J held that Ms Tolich was not precluded from raising on appeal the issue whether there had been such a failure to comply with s77(3) as to entitle her to an acquittal.
[9] Mr Hunt, in his trial, took the point on an application for an order that there was no case to answer at the conclusion of the prosecution evidence. The District Court Judge held there was a case to answer on the basis that there had been reasonable compliance with s77(3). Mr Hunt adduced no evidence and was convicted. He also filed a general appeal to the High Court which dealt with the appeals consecutively on the same day.

Proceedings in the High Court

[10] The verbal distinction between the statutory requirement and the Police ad hoc form being obvious, Chambers J succinctly outlined the legislative differences between the pre and post amendment breath testing regime. In the light of that analysis the crucial issues were whether the Police were entitled to rely on the reasonable compliance provisions of s64(2) of the Land Transport Act which is in the following terms.

(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] The Police also raised the question of the application of s204 of the Summary Proceedings Act 1957 which provides:

204 Proceedings not to be questioned for want of form

No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any District Court or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.

[12] Chambers J examined the application of s204 and concluded that it could not be called in aid to save the conviction. Mr Pike has not sought to invoke that section before this Court. Because we have not heard argument on that section we leave open the question whether it could be invoked in a case such as the present.
[13] The learned High Court Judge noted in his ex tempore judgment that counsel then appearing for the Police “conceded that he did not consider that s64 could apply in this case as a means of rectifying the Police error”. Mr Pike respectfully informed this Court that Chambers J was mistaken in his interpretation of the Police stance. He explained that the point was taken by counsel but in the face of inquiries from the Judge he ceased pursuing the matter at a certain point. Mr Mohamed, who appeared in the High Court, did not demur at this explanation. In any event, the learned High Court Judge proceeded to indicate in a carefully reasoned and detailed way why, in his view, s64(2) would not avail the Police. He noted the reference to safeguards and the express purpose of the amending act and observed that the amendments introduced a package of reforms including the removal of a defence that an evidential breath testing device was not working properly. Such a defence is necessarily excluded by provisions relating to a certificate which for all purposes is conclusive evidence of the matters stated in it and other provisions precluding any issue relating to, in effect, the functioning of the evidential breath testing device.
[14] Amongst the safeguards concomitant with the new regime is that the subject may request a blood test and must be told of the right to request a blood test in the event that the evidential breath test return is positive. The Judge considered that it is very significant that Parliament saw fit to change the reference from “sufficient evidence” to “conclusive evidence”. He concluded:

[13] While the ‘reasonable compliance’ concept may be available with regard to certain matters in s77(3), I consider it is essential that the police officer must tell the driver of the fact that, unless a blood test is requested, the evidential breath test could of itself be conclusive evidence. If the courts permitted ‘reasonable compliance’ to apply to the extent that it was good enough if the officer said that the evidential breath test could be sufficient evidence (the wording prior to the 2001 amendment package coming into force), it would mean that Parliament’s endeavour to provide an overall fair package would be seriously undermined. Drivers would effectively get the burdens of the new enforcement package without its safeguards. One of the purposes of the 2001 Amendment Act would be defeated.

[14] It is accepted in this case that the police officer did not provide advice of the kind specified in s77(3)(a)(i). That being so, the results of the positive evidential breath test did not become admissible.

Arguments on this appeal

[15] In granting special leave to appeal to this Court Chambers J saw the question of law in terms of whether he was correct in holding that the result of the positive evidential breath test was not admissible. Mr Pike, however, submitted that the appropriate question was that formulated in the application for special leave in the following terms:

In a case where a suspect in a proceeding for excess breath alcohol has declined a blood sample option having been advised that if that option is declined the breath test result could be sufficient evidence to lead to a conviction, rather than could be conclusive evidence to lead to a conviction (as provided by s77(3) of the Land Transport Act as amended in 2001) does the fact alone of the use of the words “sufficient evidence” preclude the application of s64(2) of the Land Transport Act 1998 (the substantial compliance rule)?

[16] With respect, we consider that Mr Pike’s formulation of the question captures the relevant issues more acutely.
[17] Mr Pike argued that it cannot be supposed that in substituting “conclusive” for “sufficient” Parliament’s intention was to do other than reinforce the conclusivity regime once a blood option was given and declined. In the absence of any real evidence that a suspect declined a blood test because of an officially induced understanding that he or she could nevertheless challenge the reliability of the conclusive device, s64(2) must be seen as potentially curative. However, the principal submission for the appellant is that a suspect is in the same position as he or she always was and has been so informed; that is, having been told that without a blood option the breath test is likely to lead to a conviction. To the extent that the Judge considered that up until 2001 it had been possible for a defendant to “escape conviction” on the basis that the evidential breath test device was not working properly, the Judge was wrong. That possibility had effectively been precluded by this Court’s decision in Police v McKay CA394/94 2 December 1994. See also Livingston v Institute of Environmental Science and Research Ltd & Anor (No 2) CA148/02 19 June 2003.
[18] He submitted that the failure of the Police to substitute the word “conclusive” for the word “sufficient” could not be seen as so plainly misleading, taking the phrase in which the words appear, as to raise the likelihood that a suspect would wrongly conclude that a McKay defence could be run if a blood test was declined. Section 64(2) cannot be seen, accordingly, as per se inapplicable. And in the context of the information given in the Police form s64(2) must be seen as clearly applicable. He noted that the forms were signed by both respondents and in his submission they complied with the law.
[19] For both respondents, Mr Mohamed’s principal submission was that the issue is whether a reasonable person would be likely to be misled when told that the result of the evidential breath test could be sufficient evidence to convict instead of being told that it could be conclusive evidence to convict. He asked, rhetorically, would a reasonable person think that in English language “sufficient” means “conclusive” and submitted the reasonable person would not so think. In his submission, whether the so-called McKay defence was available or not is of no concern to the suspect at the time. The question is whether a suspect’s election not to take a blood test may have been made on a misinformed basis.
[20] Mr Mohamed emphasised the matter of safeguards and generally supported the reasoning of Chambers J. He further submitted that s64(2) is usually applied only when some minor error is made and such error is unlikely to prejudice a defendant. It ought not be invoked where non-compliance relates to the question of an election under the statutory regime. In response to the appellant’s references to Police v McKay he pointed out that the conclusive regime is in fact a legislative response to a possible defence based on or derived from this Court’s judgment in that case.

Discussion

[21] It is plain that when enacting the 2001 amendments the legislature deliberately intended that s64(2) should apply to the requirements of s77(3). Section 77 was specifically brought, for the first time, within the scope of the reasonable compliance provision.
[22] Although s77(3) is expressed in terms of a test of admissibility the specific reference to it in s64(2) indicates that the words “it is no defence” are to be read as contemplating the evidential characterisation of s77(3). This must be so given that a close examination of the whole of s77 shows that subs (3)(a) is the only element in the whole of the section to which s64(2) could possibly have any application. Section 77 subs (1) and (2) create the conclusive presumption; s77(3)(b) relates to the person who undergoes the test and the remaining subsections are concerned with the position of a suspect and not procedures to be undertaken by enforcement officers.
[23] It is not appropriate to examine the words “sufficient” and “conclusive” for the purposes of s64(2), without reference to their context and the information or advice which, in conjunction with related words they convey or connote. That being the case the question is whether in its syntactical context “sufficient” in lieu of “conclusive” is reasonable compliance with the relevant provisions. In our view it is. There might be a cognitive difference between “could of itself be sufficient evidence” on the one hand and, on the other hand “will of itself be conclusive evidence” but the differences in the language are not of that degree. The phrases “The test could of itself be sufficient evidence to lead to that person’s conviction” and “The test could of itself be conclusive evidence to lead to that person’s conviction” are cognitively identical. Each phrase indicates conditionality and each indicates that the test could lead to the person’s conviction. The word “could” so qualifies both the alternative words in question as to render their contextual meaning the same.
[24] This Court has previously stated a need for liberal approach to the reasonable compliance section. In Shaw v Police CA212/95, 21 September 1995, Cooke P referred to Coltman v Ministry of Transport [1979] 1 NZLR 230n and Aualiitia v Ministry of Transport [1983] NZLR 727 and noted:

The judgments in both cases emphasise the need for a liberal approach to the reasonable compliance section, the extent of any non-compliance and whether there is any real possibility of prejudice to the defendant being highly material.

[25] We remark that it has not been contended in either of these cases that subjectively there was any real possibility of prejudice, no evidentiary basis for such a proposition having been laid. For the reasons in para [23] above we find no objective basis for concern.
[26] For these reasons we posit the relevant question in the terms submitted on behalf of the appellant namely,

In a case where a suspect in a proceeding for excess breath alcohol has declined a blood sample option having been advised that if that option is declined the breath test result could be sufficient evidence to lead to a conviction, rather than could be conclusive evidence to lead to a conviction (as provided by s77(3) of the Land Transport Act as amended in 2001) does the fact alone of the use of the words “sufficient evidence” preclude the application of s64(2) of the Land Transport Act 1998 (the substantial compliance rule)?

And we answer it “No”.

[27] Mr Mohamed drew this Court’s attention to the fact that Chambers J, in view of the conclusion he reached relating to s64(2), found it unnecessary to deal with two other grounds of appeal which Mr Mohamed had raised on behalf of Ms Tolich. He submitted that in the event that the appellant succeeded on these appeals the case relating to Ms Tolich should be remitted to the High Court for determination of each of those two grounds of appeal. We think that course is appropriate.
[28] Mr Mohamed also submitted that even should the appellant succeed, costs should be awarded to the respondents on a solicitor client basis because these are essentially test cases affecting a great number of people and the present respondents have been brought to this Court at the behest of the Police. However, we do not think it is an appropriate case to make any award of costs. It was the respondents who took appeals to the High Court. In so doing, they must be taken to have assumed the consequences of the continuation of proceedings. There will accordingly be no order as to costs.

Result

[29] In each case the appeal is allowed with no order as to costs. The question of law and our answer is as set out in para [27]. Pursuant to s144(5) of the Summary Proceedings Act 1957 the cases are remitted to the High Court:

1. In the case of Mr Hunt, for entry of judgment in that Court, in respect of the appeal to it from the District Court, that such appeal is dismissed.
2. In the case of Ms Tolich, for quashing of the order allowing the appeal to the High Court from the District Court, with a direction that the High Court shall give judgment on that appeal having regard to the undetermined grounds advanced by the appellant and in view of this Court’s answer to the above question.
   

Solicitors:
Crown Law Office, Wellington for Police
Zahir Mohamed, Auckland for Respondents