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The Queen v Allen [2006] NZCA 77 (4 May 2006)

Last Updated: 1 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA15/06

THE QUEEN

v

DAVID RICHARD ALLEN

Hearing: 11 April 2006

Court: William Young P, Chambers and O'Regan JJ

Counsel: D J Allan for Appellant
A M Powell and J D Sutton for Crown

Judgment: 4 May 2006

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS

(Given by O’Regan J)

Admissibility of evidence of an evidential breath test

[1] The appellant was convicted after a jury trial at the Hamilton District Court on one count of driving while the proportion of alcohol in his breath exceeded 400 micrograms per litre of breath, having been convicted at least twice previously of such an offence (s 56(1) and (4) of the Land Transport Act 1998). He was sentenced by the trial Judge, Judge MacLean to imprisonment for a term of 12 months. He now appeals against his conviction, on the basis that the Judge made an error of law in admitting as evidence a printout obtained from the evidential breath-testing device used to test the appellant. He argued that the Judge ought to have excluded it under a residual discretion to rule unsafe evidence of a positive evidential breath test inadmissible where the validity of the test is in doubt.
[2] The police officer who conducted the breath test gave evidence that he stopped the vehicle driven by the appellant just after midnight on New Years Day 2005. The appellant underwent a passive breath test which he failed, and was then asked to undergo a breath screening test. He refused. The principal factual issue at the trial was whether the appellant had in fact refused this test, but the jury obviously found that he had. If he had not, there would have been no proper basis for the subsequent actions taken by the police officer.
[3] The appellant was taken to the police station for an evidential breath test. This was undertaken using a Seres Ethylometre machine. The test was conducted in accordance with clause 10 of the Transport (Breath Tests) Notice (No 2) 1989 and appropriate cautions were given. The result was an evidential breath reading of 509 micrograms of alcohol per litre of breath.
[4] There were two unusual aspects of the test, however. The first was that the appellant made six unsuccessful attempts to generate adequate samples of breath, and one successful subject test was taken. Normally the machine records a positive evidential breath test from the lower of two successful tests. The second was that the card on which the machine prints the result of the evidential breath test jammed. Consequently, the printed card did not include the serial number of the testing machine or the complete record of the steps taken in reaching the evidential breath test result. The device normally produces a results card which records both of these matters. The police officer noticed at the time that the card did not record the device’s serial number and hand wrote the serial number on the card.

Submissions

[5] The appellant submitted that the result card was a substantially incomplete record as it did not include the serial number or the results of each of the attempted breath tests made by the appellant. It was argued that, as the police officer gave evidence of only one test made with sufficient breath to record a result when normally a completed evidential breath test required two, there was legitimate concern over the safety of the evidence of a positive result. The appellant contended that the Judge had a residual discretion to rule the evidence unsafe and, therefore, inadmissible despite the apparently conclusive language of the Act, and ought to have made such a ruling in this case.
[6] The Crown submitted that in effect the appellant was arguing that the testing device malfunctioned and that such a defence has been extinguished by ss 64 and 75A of the Act. There was no reason to rule the result card inadmissible.

Admissibility ruling

[7] All of the evidence relating to matters in dispute in the trial, including whether or not there had been a refusal to take the roadside breath screening test and all the details of the manner in which the evidential breath test was taken at the police station was heard by the Judge and the jury. At the end of the Crown case, the Judge was asked to make a ruling on the admissibility of the result card from the testing machine. He ruled it was admissible. No reasons were given for this decision. It is this ruling which is at the heart of the appeal.

Role of Judge and jury

[8] We note in passing that, as this Court said in R v Livingston [2001] 1 NZLR 176, evidence relevant to the admissibility of the test card ought to have been heard before the Judge alone, because it was evidence that was relevant only to the legal issue relating to the admissibility of the result card. It did not have any bearing on the factual issues which the jury had to decide. It is problematic whether the evidence about the refusal to take the breath screening test at the roadside ought to have been heard by the jury as well. Arguably it was also relevant only to the admissibility of the result card in that it bore only on the legal issue as to whether the police officer was entitled to require the appellant to return to the police station for the evidential breath test. The District Court Judge appears to have proceeded on the basis that this evidence was relevant to the jury’s decision as well, because of the requirement of s 56(1) that the Crown prove that the evidential breath test was undergone by the accused under s 69 of the Act. However, we think it is clear from the decision of this Court in R v Livingston at [11] that the issue of compliance with s 69 is a legal issue for the Judge to decide, so this evidence should also have been heard by the Judge alone.
[9] In the light of the decision in R v Livingston, and the subsequent amendment to the Act by the insertion of s 75A, the role of a jury in trials for offending of this kind appears to be restricted to an extent that calls into question the utility of a jury trial. Section 75A provides that a certificate of compliance is conclusive proof of the accuracy of the breath-testing device. Under s 75A(2) the prosecution must produce to the Court a certificate of compliance for the device which was used for the evidential breath test, or a certified copy of such certificate. Whether the document produced to the Court in a particular case meets the requirements of s 75A will be for the Judge to decide.
[10] Given this context there will normally be virtually no issue for the jury to decide other than that the accused was driving a motor vehicle on a road, the test was carried out using a device to which the certificate of compliance produced under s 75A refers and the result card indicated a result higher than 400 micrograms of alcohol per litre of breath. Once all legal issues have been resolved by the Judge, the evidence which the jury will need to hear would normally take only a few minutes, unless there is a real dispute as to whether the accused was driving the motor vehicle or whether the vehicle was on a road.

Discretion to exclude evidence

[11] A notable feature of the present case is the impact of the amendments made to the Act in 2001. Section 64(4)(a) was amended to refer to an evidential breath test, and a new s 75A was inserted into the Act. The effect of these amendments was outlined by this Court in Livingston v Institute of Environmental Science and Research Limited [2003] NZCA 114; (2003) 20 CRNZ 253 at [48]- [49] as follows:

[48] We also consider it significant that Parliament recognised the existence of a defence of malfunction in the 2001 amendments. The purpose of the Land Transport (Road Safety Enforcement) Amendment Act 2001, as set out in s 3(a), is to improve road safety by:

Removing the defence of error or possible error in the result of an evidential breath test and ensuring that an evidential breath test is conclusive, but subject to safeguards to protect the rights of defendants. In addition, s 5(2) amended s 64(4)(a) of the Land Transport Act (contained under the heading of "defences") which now reads that it is no defence to proceedings for an offence against the Act that: "there was or may have been an error in the result of the breath screening test or evidential breath test" (emphasis added).

[49] The 2001 amendments introduced a new s 75A which provides for a certificate of compliance to be provided in respect of a device. Under s 75A(3) the certificate must be treated as conclusive evidence of the matters stated in the certificate and neither the matters stated in the certificate nor the manufacturer's specifications for the device concerned may be challenged, called into question or put in issue in any proceedings in respect of an offence involving excess breath alcohol recorded by the device. These amendments were fully debated and Parliament added a new safeguard by providing the possibility of blood tests in cases where the result is over 600 as well as where it is under 600. That can be regarded as a quid pro quo for the removal of the ability to challenge the reliability of a breath testing device on a particular occasion.

[12] In the light of the 2001 amendments, it is clear that there is now no defence that the breath testing device has malfunctioned. If a motorist has any concerns about the result of a breath test, the appropriate course of action to take is to undergo an evidential blood test, which renders the evidential breath test irrelevant.
[13] The appellant is seeking to achieve through a ruling declaring the result card inadmissible as evidence an effective outcome that the Act specifically provides cannot be achieved by way of a defence. If we were to allow that to occur, we would be undermining the very purpose for which the 2001 amendments were passed.
[14] Mr Allan, counsel for Mr Allen, suggested that in appropriately rare cases the Court does have a residual discretion to rule unsafe evidence of a positive evidential breath test inadmissible, where the validity of the test is in doubt. We cannot accept that submission. While some residual discretion as to admissibility of evidence may remain – the point does not need to be determined in the present case – we have no doubt that there is no discretion to exclude as evidence the card recording the result of an evidential breath test on the basis that the result may be affected by a malfunction of the breath testing device.
[15] Accordingly, the only point raised on appeal cannot succeed.

Addendum

[16] The manner in which the trial was conducted raises another issue, which was not referred to by counsel. In this case the evidence relating to the alleged refusal of the appellant to undergo a roadside breath screening test was heard by both Judge and jury. It should have been heard by the Judge alone because it was relevant only to the decision as to whether the circumstances permitting the taking of an evidential breath test existed. In addition, the jury was required to decide whether there had been a refusal to undergo a breath screening test in this case, when the Judge ought to have made that decision.
[17] The same applies to the evidence relating to the manner in which the test was conducted (see [7] above). Again, the jury ought not to have heard that evidence. However, the Judge did make a ruling on the admissibility of the result card, and did not leave this to the jury.
[18] We have considered whether a miscarriage of justice resulted. We are satisfied that that did not occur, for these reasons:

(a) The jury must have been satisfied beyond reasonable doubt that there had been a refusal of a roadside breath screening test because the Judge directed the jury to acquit if it was not so satisfied. In those circumstances it is clear that, if the Judge had decided the point applying the "balance of probabilities" standard, he would have reached the same result;
(b) The evidence relating to the manner of taking the test had no relevance to anything the jury had to decide, but also had no prejudicial effect. It was redundant information from the jury’s point of view, but it could not have affected adversely the jury’s decision on the issues the jury had to decide.

Result

[19] We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington

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[1]	The appellant was convicted after a jury trial at the Hamilton District Court on one count of driving while the proportion of alcohol in his breath exceeded 400 micrograms per litre of breath, having been convicted at least twice previously of such an offence (s 56(1) and (4) of the Land Transport Act 1998). He was sentenced by the trial Judge, Judge MacLean to imprisonment for a term of 12 months. He now appeals against his conviction, on the basis that the Judge made an error of law in admitting as evidence a printout obtained from the evidential breath-testing device used to test the appellant. He argued that the Judge ought to have excluded it under a residual discretion to rule unsafe evidence of a positive evidential breath test inadmissible where the validity of the test is in doubt.
[2]	The police officer who conducted the breath test gave evidence that he stopped the vehicle driven by the appellant just after midnight on New Years Day 2005. The appellant underwent a passive breath test which he failed, and was then asked to undergo a breath screening test. He refused. The principal factual issue at the trial was whether the appellant had in fact refused this test, but the jury obviously found that he had. If he had not, there would have been no proper basis for the subsequent actions taken by the police officer.
[3]	The appellant was taken to the police station for an evidential breath test. This was undertaken using a Seres Ethylometre machine. The test was conducted in accordance with clause 10 of the Transport (Breath Tests) Notice (No 2) 1989 and appropriate cautions were given. The result was an evidential breath reading of 509 micrograms of alcohol per litre of breath.
[4]	There were two unusual aspects of the test, however. The first was that the appellant made six unsuccessful attempts to generate adequate samples of breath, and one successful subject test was taken. Normally the machine records a positive evidential breath test from the lower of two successful tests. The second was that the card on which the machine prints the result of the evidential breath test jammed. Consequently, the printed card did not include the serial number of the testing machine or the complete record of the steps taken in reaching the evidential breath test result. The device normally produces a results card which records both of these matters. The police officer noticed at the time that the card did not record the device’s serial number and hand wrote the serial number on the card.

[8]	We note in passing that, as this Court said in R v Livingston [2001] 1 NZLR 176, evidence relevant to the admissibility of the test card ought to have been heard before the Judge alone, because it was evidence that was relevant only to the legal issue relating to the admissibility of the result card. It did not have any bearing on the factual issues which the jury had to decide. It is problematic whether the evidence about the refusal to take the breath screening test at the roadside ought to have been heard by the jury as well. Arguably it was also relevant only to the admissibility of the result card in that it bore only on the legal issue as to whether the police officer was entitled to require the appellant to return to the police station for the evidential breath test. The District Court Judge appears to have proceeded on the basis that this evidence was relevant to the jury’s decision as well, because of the requirement of s 56(1) that the Crown prove that the evidential breath test was undergone by the accused under s 69 of the Act. However, we think it is clear from the decision of this Court in R v Livingston at [11] that the issue of compliance with s 69 is a legal issue for the Judge to decide, so this evidence should also have been heard by the Judge alone.
[9]	In the light of the decision in R v Livingston, and the subsequent amendment to the Act by the insertion of s 75A, the role of a jury in trials for offending of this kind appears to be restricted to an extent that calls into question the utility of a jury trial. Section 75A provides that a certificate of compliance is conclusive proof of the accuracy of the breath-testing device. Under s 75A(2) the prosecution must produce to the Court a certificate of compliance for the device which was used for the evidential breath test, or a certified copy of such certificate. Whether the document produced to the Court in a particular case meets the requirements of s 75A will be for the Judge to decide.
[10]	Given this context there will normally be virtually no issue for the jury to decide other than that the accused was driving a motor vehicle on a road, the test was carried out using a device to which the certificate of compliance produced under s 75A refers and the result card indicated a result higher than 400 micrograms of alcohol per litre of breath. Once all legal issues have been resolved by the Judge, the evidence which the jury will need to hear would normally take only a few minutes, unless there is a real dispute as to whether the accused was driving the motor vehicle or whether the vehicle was on a road.

[12]	In the light of the 2001 amendments, it is clear that there is now no defence that the breath testing device has malfunctioned. If a motorist has any concerns about the result of a breath test, the appropriate course of action to take is to undergo an evidential blood test, which renders the evidential breath test irrelevant.
[13]	The appellant is seeking to achieve through a ruling declaring the result card inadmissible as evidence an effective outcome that the Act specifically provides cannot be achieved by way of a defence. If we were to allow that to occur, we would be undermining the very purpose for which the 2001 amendments were passed.
[14]	Mr Allan, counsel for Mr Allen, suggested that in appropriately rare cases the Court does have a residual discretion to rule unsafe evidence of a positive evidential breath test inadmissible, where the validity of the test is in doubt. We cannot accept that submission. While some residual discretion as to admissibility of evidence may remain – the point does not need to be determined in the present case – we have no doubt that there is no discretion to exclude as evidence the card recording the result of an evidential breath test on the basis that the result may be affected by a malfunction of the breath testing device.
[15]	Accordingly, the only point raised on appeal cannot succeed.

[16]	The manner in which the trial was conducted raises another issue, which was not referred to by counsel. In this case the evidence relating to the alleged refusal of the appellant to undergo a roadside breath screening test was heard by both Judge and jury. It should have been heard by the Judge alone because it was relevant only to the decision as to whether the circumstances permitting the taking of an evidential breath test existed. In addition, the jury was required to decide whether there had been a refusal to undergo a breath screening test in this case, when the Judge ought to have made that decision.
[17]	The same applies to the evidence relating to the manner in which the test was conducted (see [7] above). Again, the jury ought not to have heard that evidence. However, the Judge did make a ruling on the admissibility of the result card, and did not leave this to the jury.
[18]	We have considered whether a miscarriage of justice resulted. We are satisfied that that did not occur, for these reasons: