Wynn-Williams v Police CA400/03 [2004] NZCA 425 (15 June 2004)

Last Updated: 30 December 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA400/03

LUKE ERNEST WYNN-WILLIAMS

v

NEW ZEALAND POLICE

Hearing: 23 March 2004

Coram: Anderson P Glazebrook J Hammond J

Appearances: C S Withnall QC for Appellant
J C Pike for Crown Judgment: 15 June 2004

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1] Mr Wynn-Williams was convicted in the District Court at Alexandra on 27 June 2002 of driving with excess breath alcohol. He appealed against both his conviction and sentence and his appeal was dismissed on 27 August 2003 by John Hansen J. On 9 October 2003 he obtained leave from the High Court to appeal to this Court pursuant to s144 of the Summary Proceedings Act 1957. The appeal turns on the interpretation of s68 of the Land Transport Act 1998 and in particular whether Mr Wynn-Williams should have been required to undergo a breath

WYNN-WILLIAMS V NEW ZEALAND POLICE CA CA400/03 [15 June 2004]

screening test. This in turn depends on whether he was, at the relevant time, a driver of a motor vehicle on a road.

The legislation

[2] Section s68(1) of the Land Transport Act 1998 reads as follows:

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:

(a) A driver of, or a person attempting to drive, a motor vehicle on a road:

(b) A person whom the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:

(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.

Background facts

[3] On 29 December 2002 Constable Mark Scott was working in Wanaka as part of a team. At about 10pm they were sent to the Albert Town Camping Ground to investigate a complaint of a vehicle speeding around the camp. They arrived about 10 minutes later. Constable Scott testified that on arrival he saw a large cloud of dust on the road to the right of the camp entrance. In the dust cloud there was a vehicle. He went up to the vehicle but there was no one in it. He then went and spoke to a group of youths some 15 metres away and returned to the vehicle. While there, he was approached by Mr Wynn-Williams. Mr Wynn-Williams said that it was his car and that he had driven the vehicle to the camp some 20 minutes earlier. He denied that he had been driving in the camping ground. Another constable was at the time, however, taking a statement from a person who said that Mr Wynn-Williams had been driving the car around the camping ground.
[4] Constable Scott had noticed that Mr Wynn-Williams had been drinking and he admitted that he had drunk a couple of stubbies since arriving at the motor camp. Constable Scott said that, in his experience, people always underestimate the amounts they have had. He was asked if, based on what he had been told and what he had observed, he believed that Mr Wynn-Williams had been drinking either while driving to the camp or before driving to the camp. The constable answered that he had no grounds to substantiate that. He said that he just believed that Mr Wynn- Williams had been drinking and that he had driven 20 minutes prior to arriving at the camp. The constable said that he put Mr Wynn-Williams to the test to see what his level was.

[5] Constable Scott accordingly administered a breath screening test which produced a failed result. He then required Mr Wynn-Williams to accompany him to the police station for the purpose of undertaking an evidential breath test or blood test. This was done at 10.50pm and produced a level of 400 micrograms of alcohol per litre of breath. Mr Wynn-Williams is under 20 and he was therefore charged with driving on State Highway 6 with excess breath/alcohol.

The District Court trial

[6] The sole issue at the trial before Judge MacAskill was whether or not Constable Scott had good cause to suspect that Mr Wynn-Williams had been driving on State Highway 6 with excess breath alcohol and, if not, whether that was fatal to the prosecution. This turned on the constable’s powers to require Mr Wynn-Williams to undergo the breath screening test.

[7] Judge MacAskill pointed out that Constable Scott knew from Mr Wynn- Williams’ admission that he had driven to the camping ground. Given that he had also admitted that he owned the vehicle, the Judge found that he was also the driver of the vehicle in the camping ground. We note at this point that it is common ground that there was no or insufficient evidential foundation for that finding.

[8] Judge MacAskill then went to say that, although Mr Wynn-Williams was not actually driving the car at the time he was required to undergo the breath screening
test, the request to do so was so proximate to the driving to the camping ground and that therefore, in the camping ground Mr Wynn-Williams was a driver within the meaning of s68(a). The fact that the constable did not have good cause to suspect that Mr Wynn-Williams had been driving with excess breath alcohol on State Highway 6 was, in his view, immaterial. Mr Wynn-Williams was, like any other driver, caught by the statutory presumption that he was driving with the breath alcohol level revealed by the breath test.

[9] The Judge also found that Constable Scott had good cause to suspect that Mr Wynn-Williams had recently committed an offence against the Land Transport Act in that the constable had been informed that a witness had made a statement to the effect that the defendant had been driving the motor vehicle in the camping ground. While the constable did not specify any particular suspected offence in giving his evidence the Judge considered it plain from the totality of his evidence that the constable believed that Mr Wynn-Williams’ vehicle had been driven carelessly if not recklessly. For these reasons, the Judge also considered that the constable was entitled to rely on s68(b) as well.

[10] The Judge also rejected Mr Wynn-Williams’ submission that this deprived him of the opportunity to show that he had consumed alcohol only after arriving at the camping ground and, therefore, that he did not commit the offence of driving on State Highway 6 with excess breath alcohol. The Judge considered that this was the inevitable result of the statutory presumption in s77(1).

Judgment of John Hansen J

[11] On appeal, John Hansen J first considered whether the provisions of s68(1)(a) applied. He pointed out that Mr Wynn-Williams had admitted driving to the camping ground and that the constable had formed the view that he had been drinking. The constable spoke to Mr Wynn-Williams within 20 to 35 minutes of the driving. In John Hansen J’s view that was clearly sufficiently proximate for s68(1)(a) to be applicable and for the District Court Judge to be able to find as a matter of fact that Mr Wynn-Williams was a driver. The Judge also said that it was clear to him that Mr Wynn-Williams could not have achieved the level he achieved in the
evidential breath test from the two “stubbies” that he admitted drinking at the camping ground.

[12] As regards s68(1)(b), the Judge found that it had been open to Judge MacAskill to find on the evidence that Constable Scott had been told by another constable, before asking Mr Wynn-Williams to undergo the breath screening test, that a person had made a statement to the effect that Mr Wynn-Williams had been driving the car around the camping ground. This would have given Constable Scott good cause to suspect that there may have been an offence in the camping ground.

[13] However, the Judge pointed out that the “good cause to suspect” related only to the camping ground driving, and that Mr Wynn-Williams was not charged with driving in the camping ground. Indeed, if he had been, then the case would have been defended on the basis that he was not the driver at that time. The case had not been approached either on the basis that there was one continuous act of driving starting on the highway. As the charge related to driving on State Highway 6 and not in the camping ground, the Judge held that the constable was not able to rely on s68(1)(b).

Leave to appeal

[14] On 9 October 2003 John Hansen J gave leave to appeal to this Court under s144 of the Summary Proceedings Act on the following question:

Is a person a driver of, or attempting to drive, a motor vehicle for the purpose of s68(1)(a) of the Land Transport Act 1998, when if at the time of being spoken to by an enforcement officer, the person is not in the motor vehicle and had not been in the motor vehicle or driven the motor vehicle for between 20 to 35 minutes prior to being spoken to by the enforcement officer?

Submissions of Mr Wynn-Williams

[15] Mr Withnall QC, on behalf of Mr Wynn-Williams, submitted that the distinction between s68(1)(a) and (b) is in temporal terms. In his submission, para (a)
is intended only to apply to a person then in the act of driving or attempting to drive at the time of being spoken to by the officer. If the person is not then in the act of driving or attempting to drive the power to require a breath screening test exists only if there are grounds to suspect the recent commission of a driving offence during some earlier driving. He submitted further that this temporal distinction is continued in para (c), which refers to an earlier accident.

[16] Mr Withnall submitted further that another difference between para (a) and the other two paragraphs is the absence of the words “good cause to suspect” in para (a). This means, in his submission, that the officer, before invoking para (a), must act on his or her own knowledge as to whether the person is a driver, either by direct observation or by an admission from the suspect. In this case, the only admission was to driving on the highway some 20 to 35 minutes earlier. That, in Mr Withnall’s submission, was past driving which could only trigger para (b), and then only if there was good cause to suspect the recent commission of a driving offence at that time.


[17] Mr Withnall did not suggest that a person ceases to be the “driver” the moment the vehicle stops or the engine is switched off or even when the person previously driving alights from the vehicle. He referred to the case of Chatha v Police HC PMN AP47/01 8 May 2002 where Neazor J said at para [40] that the word driver must be given a wide meaning to include those whom the circumstances of time, place and otherwise, warrant their still being regarded as such at the time the request is made.

[18] He also submitted that the English authorities are relevant to this question. Although the English legislation refers to a person “driving”, he submitted that there is no practical distinction between “driving” and the “driver” as the driver must be the person driving. He referred in particular to the House of Lords decision in Sakhuja v Allen [1973] AC 152 where Lord Bridge said that what is happening at the time of the request has to be “part of the same chain of events – or one might say that same occasion, or the same incident or the same transaction or the same set of res gestae” as the literal antecedent driving. Although that case was distinguished by this Court in Police v Bradley [1974] 1 NZLR 113 he submitted that this was on the
basis of the use of the past tense in the New Zealand legislation at the time as against the present tense in the United Kingdom, a distinction no longer applicable.

[19] He submitted further that it is not necessary to lay down any rules of general application as to when the point is reached when a person is not a driver. However, in his submission, if a person is not in the vehicle, the engine is switched off, the person is not in the immediate vicinity, and has not been in the vehicle for 20 to 35 minutes, in common parlance that person is then neither the driver nor attempting to drive. Any driving admitted at an earlier time can only be past driving. The answer to the question of law posed should therefore be “No” as there were no valid grounds for the commencement of the statutory procedures.

[20] Finally, Mr Withnall submitted that the presumption in s77(1) of the Land Transport Act does not assist the prosecution. The reason an evidential breath test was required of Mr Wynn-Williams was the officer’s belief that Mr Wynn- Williams was responsible for the driving in the camping ground. The proceedings were for an offence of driving on State Highway 6 some time previously and the officer had no cause to suspect the commission of any offence at that time. The proceedings therefore did not arise out of the circumstances in respect of which the test was undergone – see Higgan v Ministry of Transport HC DUN AP140/91 17 September 1992.

Police submissions

[21] Mr Pike submitted that the purported question of law before the Court does not state a question of law of general or public importance. In his submission, the issue is one of mixed law, fact and judgment and the answer to it is reliant on the timing and circumstances of the s68(1)(a) request. He accepted, however, that there must come a point where the time between the completed act of driving and the request is such that Parliament would have intended that only s68(1)(b) could apply.

[22] On the facts, that time had not arrived in his submission. Mr Wynn-Williams was believed to have been driving on a road (that in the camping ground) some 10 minutes before being required to undertake the breath screening test. In these
circumstances it could not be said that the requirement was made at a time or circumstance so remote from the driving that Mr Wynn-Williams would be considered in ordinary language to have lost the status of the driver of a motor vehicle on a road.

[23] In his submission, it does not therefore matter that Mr Wynn-Williams was charged with driving on State Highway 6 where he had been driving some 20-35 minutes before. Mr Wynn-Williams had admitted driving to the camp some 20-35 minutes before. His driving could not be said to be so remote from the time and circumstances in which he was required to undergo the breath test that there was no legitimate law enforcement purpose in that requirement. Mr Pike pointed out that Mr Wynn-Williams also appeared to have been drinking alcohol, although he said that was after his arrival at the camp. In these circumstances, the officer could not be said to be acting arbitrarily in requiring the test. In Mr Pike’s submission, s68(1)(a) was introduced so that there would be the power to undertake random breath testing and it should be interpreted in that light.

[24] Mr Pike submitted further that the United Kingdom cases, while giving some guidance, cannot be seen as authoritative, given the difference in terminology. In his submission, whether a person is a driver is a question of status. This is different from the United Kingdom test, which requires a person to be driving. He also pointed out, however, that the United Kingdom cases treat this question essentially as one of fact.

Discussion

[25] We accept Mr Withnall’s submission on the structure of s68(1). We agree that para (a) is concerned with whether a person is a driver of a motor vehicle on a road (or a person attempting to drive) at the time the officer requires the breath screening test. Para (b), on the other hand, is concerned with past conduct and para
(c) with the situation at the time of an accident.

[26] We also accept Mr Withnall’s submission that the absence of the words “good cause to suspect” in para (a) is significant. This means that the officer can
only require a person to undergo a breath screening test if the person is actually the driver of the car at the time or is attempting to drive. If this is proved to be the case at trial, then this will suffice. In this case, however, it is agreed that it was not proved at trial that Mr Wynn-Williams drove, or attempted to drive, the car in the camping ground. This means that it is not possible to rely on the camping ground driving insofar as para (a) is concerned.

[27] Mr Wynn-Williams, however, admitted to Constable Scott that he had driven to the camping ground some 20-35 minutes earlier. Insofar as para (a) is concerned, the question for this appeal is whether Mr Wynn-Williams could still be considered the driver at the time he was required to undergo the breath screening test on the basis of this earlier driving.

[28] We accept Mr Pike’s submission that the question of whether someone is a driver is a question of status. In ordinary English parlance a person may say that they are a driver of a car even if it is sitting in the driveway of their home and they have not driven it for some time. We consider that the addition of the words “on a road” in para (a), however, means that there must be a proximate connection to actual driving on the road for a person to be a driver. This means 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.

[29] In our view, this fits in with the policy of para (a), which was to allow random breath testing of motorists on the roads. At the time the predecessor s68(1)(a) was introduced, the Hon Paul East, the then Attorney-General, when reporting to Parliament on the New Zealand Bill of Rights Act implications of the proposed new regime made it clear that the Bill was to give enforcement officers the power to undertake random breath testing at the time they had stopped a driver. He said at (1991) 521 NZPD 6367, December 17, 1991:

Even though a traffic officer is empowered to stop a driver randomly he is not empowered to breath-test randomly. If the Bill becomes law, traffic officers will be so empowered.

[30] It cannot have been the purpose of the legislation to allow a breath screening test to be required of a person at home, for example, merely on the basis that they
were the driver of a car some hours previously. This would be particularly harsh given the presumption in s77(1) and points away from an expansive definition of driver being intended. It would also arguably render otiose s68(1)(b), which provides that a person whom an officer has good cause to suspect has recently committed an offence against the Act involving driving may be required undergo a breath test.

[31] As to what is a sufficiently proximate connection with actual driving and the road we consider that the United Kingdom cases referred to by Mr Withnall will have some relevance, despite the different wording of the legislative provisions. We consider, however, that the word “driver” has a less restrictive interpretation than “driving”. It appears to us, for example, that a person would be held still to be a driver in circumstances such as pertained in Pinner v Everett [1969] 3 All ER 257. In that case, the appellant was stopped by police because his rear number plate was not illuminated. The officers, after a period of discussion about why he had been stopped, noticed that his breath smelt of alcohol, and then required him to undergo a breath test. The House of Lords, by a majority, held that he was not driving. It appears to us, however, clear from these facts that there was, in this case, likely to have been a sufficiently clear and continuing connection to the road so as to render the appellant, in terms of the New Zealand legislation, a “driver of...a motor vehicle on a road”.

[32] We therefore accept Mr Pike’s submission that the question put to us in the leave application is not capable of a definitive answer as it will depend on the factual circumstances as to whether the gap of 20-35 minutes breaks proximity. We are in no doubt, however, that in this case, at the time of the request to undergo breath screening, Mr Wynn-Williams was so separated in time, conduct and circumstance from his driving on the highway some 20-35 minutes before that he was a driver for the purposes of para (a). We have to assume for these purposes that there was no continuation of driving in the camping ground and therefore that other activities unconnected with driving by Mr Wynn-Williams had occurred in the interval while he was at the camping ground. For the judge to have decided otherwise, he must have been applying an incorrect test of proximity.
[33] We comment on one further matter. John Hansen J found that it was open to the District Court judge to find that Constable Scott had good cause to suspect that Mr Wynn-Williams was the driver in the camping ground, the hearsay evidence from the other constable being of course able to be taken into account for this purpose. While the Judge did not explicitly say so, he must be taken also to have accepted Judge MacAskill’s finding that there was reasonable cause to suspect that there had been an offence of at least careless driving in the camp. He, however, considered that the constable was not able to rely on s68(1)(b) as the offence Mr Wynn-Williams was charged with did not relate to driving in the camping ground. The District Court judge took a different view on this point.

[34] We were not asked to decide whether John Hansen J was correct to hold that the constable was not able to rely on s68(1)(b) in these circumstances, although, as indicated above, Mr Withnall did refer us to the decision of Fraser J in Higgan v Ministry of Transport. We are not to be taken as expressing any view on this topic. It remains open. For the purposes of this case, however, John Hansen J’s judgment on this point must stand.

Result

[35] For the reasons set out above, the appeal is allowed and Mr Wynn-Williams’ conviction is quashed.

Solicitors:

Farry & Co, Dunedin for Appellant Crown Law Office, Wellington