Downes v Police [2011] NZCA 172 (4 May 2011)

Last Updated: 11 May 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA822/2010 [2011] NZCA 172

BETWEEN DAVID SAMUEL DOWNES Applicant

AND POLICE Respondent

Hearing: 30 March 2011

Court: Glazebrook, Chambers and Lang JJ

Counsel: K I Jefferies for Applicant K A L Bicknell for Respondent

Judgment: 4 May 2011 at 3pm

JUDGMENT OF THE COURT

The application for special leave is dismissed.

REASONS OF THE COURT
(Given by Glazebrook J)

Introduction

[1] On 16 February 2010 Mr Downes, after a defended hearing before Judge Grace,[1] was convicted of driving with excess blood alcohol. It was his third conviction for that offence. The reading on this third occasion was 708 micrograms of alcohol per litre of breath.
[2] Mr Downes’ appeal against his conviction was dismissed by MacKenzie J on 27 August 2010[2] and his application for leave to appeal was similarly dismissed by MacKenzie J on 26 November 2010.[3]
[3] Mr Downes seeks special leave to appeal to this Court against his conviction under s 144(3) of the Summary Proceedings Act 1957. His application is on the basis that the certificate under s 75A of the Land Transport Act 1998 was not properly produced.

The legislation

[4] Section 75A of the Land Transport Act 1998 provides in relevant part:

75A Certificates of compliance for evidential breath-testing devices

(1) An evidential breath-testing device must be supported by a certificate of compliance given under this section by a person authorised for the purpose by the Science Minister.

(2) At any trial or defended hearing for an offence involving excess breath alcohol recorded by the device (being an offence committed on or after the commencement of this section), the prosecution must produce to the court a certified copy of the certificate of compliance. The certification must be given by a person authorised for the purpose by the Commissioner and must state that the copy is a true copy of the original certificate.

(3) Subject to subsection (4), a certificate of compliance or a certified copy of it that is produced under subsection (2) is for all purposes 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.

(4) In the absence of proof to the contrary, a document purporting to be a certificate of compliance or a certified copy of a certificate of compliance—

(a) must be treated as such a certificate or certified copy; and

(b) is conclusive evidence of the sufficiency of the authority of the person who signed the document.

Hearing before Judge Grace

[5] At the conclusion of the evidence for the prosecution, Mr Jefferies, counsel for Mr Downes, submitted that the charge against Mr Downes should be dismissed. One of the grounds was that the prosecution had failed to produce the s 75A certificate of compliance in respect of the evidential testing device.
[6] Over the objection of Mr Jefferies, Judge Grace allowed the prosecution to hand up the certificate of compliance after the close of the prosecution’s case. Mr Jefferies was granted leave to “recall evidence” but asked merely that this objection be recorded. The Judge said that he did not think it “appropriate to allow a technicality such as that to defeat the course of justice”.

MacKenzie J’s judgment on the appeal

[7] MacKenzie J dismissed Mr Downes’ appeal against his conviction. On the issue of the s 75A certificate, the Judge said that the requirement of s 75A is that the certificate of compliance must be produced to the Court. Contrary to Mr Jefferies’ submission, there is no requirement that a witness who is able to depose to the matters certified be called to produce the certificate.
[8] In MacKenzie J’s view, such a requirement would frustrate the essential purpose of the certification process, which is to avoid the need for such persons to give evidence. The production of the certificate in the way it was did not deprive Mr Downes of an opportunity to cross-examine as to the matters certified. The statutory scheme does not envisage that such an opportunity will generally be available.
[9] As to allowing the prosecution to hand up the certificate after the close of the case, MacKenzie J said that he considered that that course was fully open to Judge Grace. It appropriately reflected the approach, directed by the Supreme Court in Aylwin v Police,[4] that the Court must give full effect to the clear Parliamentary indication that alcohol impaired drivers should not escape responsibility through technical and unmeritorious defences.

Leave to appeal

[10] Mr Downes applied to the High Court for leave to appeal to this Court on the question of whether s 75A requires a certificate of compliance to be produced into evidence as opposed to merely being handed up and on whether s 130 of the Evidence Act 2006 applied,[5] and if so, had been complied with.
[11] MacKenzie J declined leave. He said that he had already determined on the substantive appeal that the certificate was properly produced and had involved no breach of fair trial rights. There was no question of law of sufficient importance to justify a grant of leave.[6]
[12] MacKenzie J accepted that the application of s 130 (and possibly also of the reasonable compliance provision in s 64(2) of the Land Transport Act) may be a question of law sufficiently important to satisfy s 144(2) of the Summary Proceedings Act. As the issue had not been considered in the District Court or on appeal in the High Court, however, he did not consider it appropriate to grant leave.

Special leave application

[13] The application for special leave is made on essentially the same grounds as those put forward before MacKenzie J.
[14] There is no merit in the proposed appeal. Section 75A of the Land Transport Act uses the term “produce”[7] in the sense of the prosecution providing the certificate to the Court. There is no need (or indeed contemplation) that it be produced by a witness for the reasons articulated by MacKenzie J.[8]
[15] There is no ability to challenge the content of a certificate,[9] and only limited ability to challenge the authenticity of a certificate.[10] Further, any such challenge to authenticity must be by way of proof to the contrary.[11]
[16] The provisions of s 75A clearly override those of the Evidence Act[12] and this means that s 130 of that Act has no relevance.

Result

[17] The application for special leave is dismissed.

Solicitors:
Jefferies & Raizis, Wellington for Applicant
Crown Law Office, Wellington for Respondent

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[1] Police v Downes DC Wellington CRI-2009-085-7506, 16 February 2010.

[2] Downes v Police HC Wellington CRI-2010-485-61, 27 August 2010.

[3] Downes v Police HC Wellington CRI-2010-485-61, 26 November 2010.

[4] Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.

[5] Section 130 of the Evidence Act 2006 sets out a procedure by which a party may offer a document in evidence without calling a witness to produce the document.

[6] Downes v Police HC Wellington CRI-2010-485-61, 26 November 2010 at [4].

[7] The natural and ordinary meaning of “produce” is to “bring [something] forward ... for inspection or consideration”. See Shorter Oxford English Dictionary (5th ed, Oxford University Press, 2002) at 2357

[8] See at [7] and [8] above.

[9] Land Transport Act 1998, s 75A(3). See also R v Allen CA 15/06, 4 May 2006.

[10] See s 75A(4) of the Land Transport Act 1998. Even now, there is no suggestion that there were any grounds to challenge the certificate on this basis.

[11] Land Transport Act 1998, s 75A(4).

[12] Section 5(1) of the Evidence Act 2006 provides that where there is an inconsistency between the provisions of the Evidence Act 2006 and any other enactment, the provisions of the other enactment prevail (unless the Evidence Act 2006 provides otherwise).