The Queen v Munro [2006] NZCA 6 (23 February 2006)

Last Updated: 25 March 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA432/05

THE QUEEN



v



BRETT IAN MUNRO

Hearing: 13 February 2006

Court: Anderson P, Hammond and O'Regan JJ

Counsel: Z K Mohamed for Applicant
A M Powell and J D Sutton for Crown

Judgment: 23 February 2006

JUDGMENT OF THE COURT

A Special leave to appeal is declined except on the issue whether the High Court should have remitted the case to the District Court for further consideration rather than for entry of a conviction.
B On that issue the appeal is allowed and the case is remitted to the District Court for further consideration.

____________________________________________________________________

REASONS

(Given by Anderson P)

[1]	This is an application for special leave to appeal from a judgment of the High Court at Auckland, pursuant to s 144(3) of the Summary Proceedings Act 1957. In order to be granted leave the applicant must satisfy this Court that there is a question of law which, by reason of its general or public importance, or for some other reason, ought be submitted to this Court.
[2]	Mr Munro was tried summarily in the District Court at Manukau for allegedly driving with excess breath alcohol in contravention of s 56(1) Land Transport Act 1998. The evidential breath testing device used was a Seres Ethylometre 679T which is an approved device in terms of the Transport (Breath Tests) Notice (No 2) 1989. By virtue of s 75A of the Land Transport Safety Act 1998 the use of such an approved device must be supported by a certificate of compliance, and at any trial or defended hearing for an offence involving excess breath alcohol recorded by such device, the prosecution must produce to the court a certified copy of the certificate of compliance.
[3]	The prosecution evidence at the applicant’s summary trial involved the production of an appropriate certificate of compliance. That certificate related to a Seres Ethylometre Model 679T, Device Serial No. 3220. An issue arose whether there was sufficient evidence to show that the device actually used to test Mr Munro’s breath alcohol level was the device to which the certificate of compliance related.
[4]	Another issue related to the adequacy of the form of advice of positive evidential breath test handed to Mr Munro following the test. This stated:

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.

[5]	The question was whether the advice was defective because it referred to "sufficient evidence" rather than "conclusive evidence".
[6]	The evidence on the first issue was adequate at a point in the evidence in chief of a constable when he said:

I obtained a certificate of compliance for the evidential breath test machine serial no. 3220.

[7]

It transpired in cross-examination, however, that the constable believed that the particular machine had a serial number 3220 because he saw a plastic label, bearing that number, stuck on the top surface of the machine. It seems that the maufacturer’s serial numbers are affixed to the back of such machines causing some impediment to their being read when, as in this case, the machine is positioned against a wall. The constable understood that a sergeant had sought to avoid that difficulty by writing the number stuck to the top.

[8]

The evidence produced by the constable included a written evidential breath test print out which the machine itself produced. Amongst the information recorded on the print out are the words:

SERES ETHYLOMETRE
MODEL 679T – S/N 3220

[9]	The late Judge K R R Williams, before whom the trial was conducted, held that there was insufficient proof that the certificate of compliance related to the device which the constable had used. She concluded that the charge had to be dismissed for that reason, and found it unnecessary to go on and consider the second ground of challenge relating to the adequacy of the advice of positive evidential breath test.
[10]	Judge K R R Williams held that the constable’s evidence regarding the serial number was hearsay. The constable did not check the back of the machine himself for the number and no other evidence was called from a police officer confirming the consistency of the top placed number with that on the back of the machine. She further held that the reference to the machine and its number on the evidential breath test print out could not be relied upon because, in her view, the legislative authority for the use of the print out is to prove the level of breath alcohol only, as set out in s 56(1) Land Transport Act and the Transport (Breath Tests) Notice (No 2) 1989.
[11]	Upon receipt of the District Court decision the police promptly appealed by way of Case Stated.
[12]	The question stated for the opinion of the High Court was expressed in the following terms:

Whether my decision was erroneous in point of law and, in particular, in considering the case of Transport Ministry v Markland [1977] 1 NZLR 11, whether or not there was any relevant, admissible and sufficient evidence that the device used was that identified in the certificate of compliance; namely a "Seres Ethylometre Model 679T, Serial No. 3220".

[13]	In the High Court, Simon France J found that there was sufficient evidence. On one view the terms of the formal case stated themselves disposed of the point because it recorded:

Constable Vincent later obtained a certificate of compliance for the Seres Ethylometre 679T which he produced as Exhibit 4.

[14]	Simon France J came to the following view:

[28] In my view, whilst the fact that someone else had written the number might go to reliability and probative value, it cannot change the nature of the evidence in each case. Whether reading it from the tag or from the back of the machine, conceptually it is the same exercise. If this type of evidence is hearsay, then the difference is that the plastic tag would carry the infirmities of double hearsay.
[29] However, I do not consider testimony of the original number or the plastic label is correctly classed as hearsay. The proper classification turns, as always, on the purpose for which the evidence is given. In my view the evidence is given as a piece of identification evidence, circumstantial in nature, from which one might infer that the device is the device to which the Certificate refers. It is no different from saying the machine had a spot of red varnish on it, or a scratch on the top left corner.
[30] The following passage from Cross and Tapper on Evidence (Butterworths, London, 1995, 8th ed – it does not appear in the 9th ed – at page 576) sums up the point:

It is submitted that in principle such a writing can be admitted consistently with the hearsay rule only when it is an identifying part of an object the identity of which is in issue, and not when it simply asserts a characteristic of the object ... In these cases it seems that the writing when properly admissible at all, is relevant not as an assertion of a state of facts, but as itself a fact which affords circumstantial evidence upon the basis of which the jury may draw an inference as it may from any other relevant circumstance of the case.

[31] The well-known case of Patel v Comptroller of Customs [1966] AC 356 illustrates the point. There, evidence was led that a bag of coriander seeds had inscribed, on the outside, the label "Produce of Morocco". The purpose of the evidence was to show the bag originated in Morocco. This was held to be hearsay. It would not be so, however, if the purpose of the evidence was to identify the bag rather than where it came from. Similar reasoning was applied by the Court of Appeal in Markland (per Woodhouse J at p 14, 1.8).
[32] Accordingly, I would hold that the Officer’s evidence was admissible to prove the identity of the device he used. For myself, I do not consider that the fact that it was taken from a tag on the top rather than directly from the back affects the reliability to an extent that makes the evidence insufficient in itself to prove the link.
[33] I do not need to discuss the printout. It is not clear when it will be necessary to rely on it to prove identity. Brown is authority for the proposition that it may be admissible under the Evidence Amendment Act (No. 2) 1980, provided the appropriate evidence is led. Whale, Pethig and Newton (1990) 6 CRNZ 232 are probably authority for the proposition that it may be admissible anyway under the general exception to hearsay most recently discussed in R v Manase [2001] 2 NZLR 197. It is preferable to leave discussion of this option to a case where it is pivotal to the outcome. A crucial issue will be whether it is established that the maker of the statement is "unable" to testify.
Conclusion
[34] There was evidence independent of the excluded hearsay which was sufficient to prove the charge. In any event, the statement by the officer identifying the machine by reference to the number recorded on the plastic tag was not hearsay. These conclusions are sufficient to dispose of the Case.

[15]

Simon France J also came to a view on the question of the wording of the advice notice. He concluded there was no suggestion of any risk of any real prejudice. He therefore answered the single question posed by the Case Stated in the affirmative and remitted the matter to the District Court for "entry of a conviction in accordance with this decision, and sentencing".

The questions of law

[16]	The questions of law which the applicant has posited in his notice of application for leave to appeal to this Court are expressed in the following terms:
1.	Is a constable’s identification of an evidential breath testing device by a Plastic tag or a sticky label written and affixed on top of the evidential breath testing device by another person, when the constable did not himself check the number stencilled onto the back of the machine, admissible? If so, is it reliable and/or sufficient to prove the link with the certificate of compliance for a conviction when the constable’s experience is limited?
2.	Having regard to s.2 (4), Land Transport Act 1998, (which provides the method of identification of the makes and models of the devices but does not provide as to how any particular device could be identified) if a person affixes a plastic tag, supposedly a serial number, on top of the device, does the number on that tag identify the particular device?
3.	On an appeal by way of case stated on points of law only, where the finding of the facts are stated in the case as agreed to by the parties and the Judge: (1) are the parties bound by the facts as stated or is the Appellant allowed to refer to the notes of evidence at the hearing of the appeal in the High Court and (2) is it open to the High Court to refer to the notes and make a finding as to the sufficiency of evidence different from that made by the District Court and (3) is it open to it to overturn the District Court’s decision as to credibility?
[17]	As far as question 3 above is concerned, the fact that the question in the Case Stated asks whether there was sufficient evidence to prove a particular point must import at least some consideration of the evidence such as, for example, the documents in issue. But the extent to which the appellate Court may go beyond the limits of the Case Stated is moot in this particular case because the relevant evidence, including references to the documents, is itself embodied in the terms of the Case Stated.
[18]	The real issue for consideration relates to the adequacy or otherwise of the evidence relied on to link the certificate of compliance with the machine actually used.
[19]	Whether there is sufficient evidence to prove a particular issue is a question of law. But whether it is one of sufficient general or public importance to warrant consideration by this Court will depend on the generality of the relevant evidence. If the facts are reasonably idiosyncratic the test of general or public importance would not be satisfied.
[20]	We do not have before us any figures indicating the generality or otherwise of the issue. We are prepared to accept, however, that where people have been prosecuted on the basis of the so called "booze bus" operations it is likely that similar factual issues will have arisen because in such cases, of which the present is one, the space constraints in the vehicle are likely to have resulted in similar difficulties in reading the manufacturer’s serial number.
[21]	A similar matter arose for the consideration of a Full High Court in Brown v New Zealand Police HC CRI 419-87-04 Hamilton Registry 22 October 2004. In that case the issue was whether the information contained in the test result print out provided a sufficient link between the device and the certificate of compliance. The High Court found that the serial number of the particular device could not be proved by reference to the print out because of the statutory limitations on what a print out can be used to prove.
[22]	The High Court took the view that the serial number recorded on the print out was prima facie inadmissible hearsay evidence as to the serial number on the device and that in the particular factual circumstances that hearsay was not rendered admissible by s 3 of the Evidence Amendment Act (No 2) 1980 because the conditions of admissibility proscribed in s 3(1)(a) and (b) of that Act were not satisfied by evidence. The relevant statutory provisions are as follows:

(1) Subject to subsection (2) of this section, and to sections 4 and 5 of this Act, in any proceeding where direct oral evidence of a fact or an opinion would be admissible, any statement made by a person in a document and tending to establish that fact or opinion shall be admissible as evidence of that fact or opinion if--

(a) The maker of the statement had personal knowledge of the matters dealt with in the statement, and is unavailable to give evidence; or
(b) The document is a business record, and the person who supplied the information for the composition of the record--

(i) Cannot with reasonable diligence be identified; or
(ii) Is unavailable to give evidence; or
(iii) Cannot reasonably be expected (having regard to the time that has elapsed since he supplied the information and to all the other circumstances of the case) to recollect the matters dealt with in the information he supplied;

[23]	The High Court concluded:

[47] Accordingly, where the computer or device simply prints out information previously recorded and stored by the "maker" for the purposes of s3, and the other provisions of s3(1) are satisfied, the documentary hearsay exception described in s3 of the Evidence Amendment Act (No 2) 1980 could apply to the print out. In this case, the serial number has been recorded by the "maker", the person who programmed the device to print out its serial number, each time it printed out a breath test result. That information is stored, and constantly reiterated on every printout from the device. If an evidentiary foundation had been laid to satisfy the preconditions to admissibility stipulated for in s3(1)(a) and (b), the Court is of the view that the printout would be admissible evidence as to the serial number of the device under the provisions of s3. However, the Court was not referred to any evidence that would satisfy the requirements of s3(1)(a) or (b) and accordingly is not prepared to rule that the printout was admissible evidence of the serial number on that basis.

[24]	In the present case, however, the evidential basis for establishing a link is not confined to the information produced by the machine and its print out. It includes a corresponding number affixed to the machine itself. We think, with respect, that Simon France J correctly identified the issue in [29] of his judgment set out earlier. The correct way to consider the information relating to the machine’s serial number on the test print out is that it is an identifying characteristic of the machine as much as a manufacturer’s number stamped, pressed or otherwise documented on the back of the machine. The number on the back is hearsay as to its enumeration in the manufacturer’s records but primary evidence of that particular identifying feature of the machine. In just the same way a document produced by the machine in the course of its intended operation, documenting its serial number, is another identifying feature of the machine. Absent any evidence at all to indicate that the machine produces records of random serial numbers, or that someone has mistakenly or deliberately tampered with the machine in a way which results in false identifying characteristics, the presumption must be that a machine which has the number 3220 affixed to its top and which produces its own records indicating a corresponding number is identifiable by reference to a serial number 3220.
[25]	In the result, we consider that it is not sufficiently arguable that on the facts of this case there was no adequate evidential basis to prove that the certificate of compliance relates to the device which was actually used. We are not prepared to grant leave on that issue.
[26]	There is, however, another issue which requires consideration by us. As we mentioned earlier in this judgment, Simon France J took the view that there was no substance to the second question which Mr Munro, by counsel, raised before Judge K R R Williams. That is, the implications of the wording of the advice of positive test result. There has been no finding by the District Court on that issue. That question was not included in the Case Stated for determination by the High Court and warranted remitting to the District Court for any findings thereon. It was therefore not appropriate for Simon France J to remit the case for entry of a conviction. Counsel for the applicant and for the Crown are of the same view on that issue.
[27]	In order to correct the position we formally grant special leave on a question framed thus:

Should the High Court have remitted the case to the District Court for further consideration rather than for entry of a conviction?

[28]	We answer that question in the affirmative and remit the case to the District Court for further consideration.

Solicitors:
Crown Law Office, Wellington