Oscilowski v Police [2016] NZCA 195 (12 May 2016)

Last Updated: 23 May 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA602/2015 [2016] NZCA 195
BETWEEN	STANLEY OSCILOWSKI Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	8 March 2016
Court:	Winkelmann, Peters and Collins JJ
Counsel:	A J Haskett for Applicant A J Ewing for Respondent
Judgment:	12 May 2016 at 11.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

[1] The applicant, Mr Oscilowski, seeks leave to bring a second appeal against his conviction for refusing to permit a blood specimen to be taken, having been required to do so under s 72 of the Land Transport Act 1998 (LTA).^[1] Such a refusal constitutes an offence under s 60(1)(a) of the LTA.
[2] Mr Oscilowski was convicted following a judge-alone trial before Judge Wade in the District Court at Auckland. Andrews J dismissed his appeal against conviction.^[2]
[3] The Court may not grant leave to bring a second appeal unless satisfied that the appeal involves a matter of general or public importance, or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.^[3]

Background

[4] At approximately 12.45 am on 3 January 2014, Mr Oscilowski was at a police station for the purpose of undergoing an evidential breath test.
[5] The first test Mr Oscilowski undertook did not produce a result. The Constable required Mr Oscilowski to undergo a second evidential breath test.
[6] In the course of the second test Mr Oscilowski blew into the machine twice. The machine indicated both samples of breath were insufficient to produce a result. The Constable then abandoned the second evidential breath test and required Mr Oscilowski to permit a blood specimen to be taken. The Judge accepted the Constable’s evidence that he asked Mr Oscilowski five times to permit a blood specimen to be taken and on each occasion Mr Oscilowski refused to answer him.
[7] Mr Oscilowski was charged under s 60(1)(a) of the LTA, which provides:

60. Failure or refusal to permit blood specimen to be taken or to undergo compulsory impairment test

(1) A person commits an offence if the person—

(a) fails or refuses to permit a blood specimen to be taken after having been required to do so under section 72 by an enforcement officer;

...

[8] The relevant provision within s 72 is s 72(1)(a) which provides:

72. Who must give blood specimen at places other than hospital or surgery

(1) A person must permit a medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—

(a) the person fails or refuses to undergo without delay an evidential breath test after having been required to do so by an enforcement officer under section 69;

...

[9] There was and is no dispute that Mr Oscilowski had been required to undergo an evidential breath test under s 69 of the LTA.

District and High Court judgments

[10] The principal issue in the District and High Courts was whether Mr Oscilowski had failed or refused to undergo an evidential breath test within the meaning of s 72(1)(a). If Mr Oscilowski had not so failed or refused, the Constable was not entitled to require Mr Oscilowski to permit a blood specimen to be taken. If the Constable were not so entitled, Mr Oscilowski could not have offended under s 60(1)(a) of the LTA.
[11] Judge Wade found that Mr Oscilowski, by his conduct, had “failed or refused” to undergo an evidential breath test within the meaning of s 72(1)(a) of the LTA and that, as a result, the Constable was entitled to require him to permit a blood specimen to be taken.^[4] In particular, the Judge found that Mr Oscilowski was “deliberately refusing to provide an adequate specimen of breath”.^[5]
[12] The Judge also rejected Mr Haskett’s submission that the Constable had acted unfairly and/or unreasonably in concluding that Mr Oscilowski had failed or refused to undergo the test.^[6] It is not necessary for us to address that particular point in this judgment.
[13] In the High Court, Mr Haskett submitted that there could be no failure or refusal to undergo an evidential breath test for the purposes of s 72(1)(a) of the LTA prior to the test being “completed” within the meaning of cl 8(b)(iii) of the Land Transport (Breath Tests) Notice 2009 (cl 8).
[14] This submission was based on evidence given by the Constable in the District Court, to the effect that he required Mr Oscilowski to permit a blood specimen to be taken after Mr Oscilowski had blown twice in the course of the second evidential breath test but before the breath testing device had “timed out”.
[15] Andrews J rejected Mr Haskett’s submission and upheld the Judge’s finding that Mr Oscilowski had “refused” to undergo the evidential breath test.^[7] In particular, Andrews J referred to several High Court authorities in which it has been held that a person may, by his or her conduct, refuse to undergo an evidential breath test.^[8]

Grounds of appeal

[16] The grounds that Mr Oscilowski seeks to pursue on appeal may be summarised as follows:

• (a) There was insufficient evidence on which the Courts below could conclude that Mr Oscilowski had deliberately failed to blow sufficiently so as to prevent the evidential breath testing machine from giving a result.
• (b) There can be no “refusal” to undergo an evidential breath test prior to completion of the “testing sequence” under cl 8.

[17] The first ground is unarguable, given the concurrent factual findings of the Courts below that Mr Oscilowski deliberately thwarted both evidential breath tests.
[18] The second ground is based on the definition of “evidential breath test” in s 2 of the LTA and cl 8.
[19] Section 2 of the LTA provides in material part:

evidential breath test means a test carried out by means of an evidential breath-testing device in a manner prescribed in respect of that device by the Minister of Police, by notice in the Gazette

[20] Clause 8 prescribes the manner of the test and provides:

8. Manner of carrying out evidential breath tests by means of Dräger 9510NZ, Intoxilyzer 5000, or Seres

Evidential breath tests ... must be carried out in the following manner:

(a) Step 1: Start of testing sequence

The officer must depress the button for starting the test

(b) Step 2: Evidential breath test

The officer must carry out the testing sequence in accordance with the instructions appearing on the display panel on the device, and—

(i) the officer must attach a new mouthpiece to the breath inlet tube and instruct the person being tested to blow through the mouthpiece; and

(ii) the person being tested must blow through the mouthpiece to provide a subject breath specimen sufficient for analysis, when instructed by the officer; and

(iii) Step 2(i) and step 2(ii) must be repeated, as required, until the testing sequence is completed.

(c) Step 3: Results of test—

(i) The results of the various steps in the testing sequence will be shown on the result card or print-out, including the Evidential Breath Test Result (which must be taken to indicate the number of micrograms of alcohol per litre of breath of the person tested).

(ii) If the Evidential Breath Test Result is “Incomplete Test”, the test has been unable to be carried out.

[21] Before us Mr Haskett acknowledged that the Constable could have required provision of a blood specimen after the first test failed to produce a result.^[9] However, as in the High Court, he submits that, as the Constable had commenced the second “testing sequence” under cl 8(a), Mr Oscilowski could not be held to have “refused to undergo” that test until the “testing sequence [was] completed” under cl 8(b)(iii).
[22] For the sake of argument, we assume that the “testing sequence” is not completed until the machine times out.
[23] Nevertheless, the difficulty with Mr Haskett’s argument is that the cl 8 process requires actions to be taken by both the officer and the person being tested.^[10] If the person being tested refuses to cooperate, the process cannot be completed. In those circumstances, it would be nonsensical to require the officer to repeat the instruction referred to in cl 8(b)(i) until the machine had timed out before there could be said to be a refusal to undergo the test. Nothing in the statutory language supports such a construction of s 72.

Result

[24] The matters proposed to be raised on appeal do not meet the required threshold for leave. No matter of general or public importance arises and there is no risk that a miscarriage of justice may occur if the appeal is not heard. We decline this application accordingly.

Solicitors:
Legal Defence Service Ltd, Auckland for Applicant
Crown Law Office, Wellington for Respondent

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^[1] Police v Oscilowski [2015] NZDC 7451 at [18] [DC decision].

^[2] Oscilowski v Police [2015] NZHC 2255 at [36] [HC decision].

^[3] Criminal Procedure Act 2011, s 237; and McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [26]–[45].

^[4] DC decision, above n 1, at [16].

^[5] At [16].

^[6] At [16].

^[7] HC decision, above n 2, at [34].

^[8] At [26]–[29]: Police v Rimene HC Masterton M4/2000, 21 December 2000 at [18], [20], [21] and [27]; Pakai v Police HC Invercargill CRI-2008-425-37, 13 March 2009 at [21]; and Lysy v Police (1999) 18 CRNZ 137 at [10] and [11].

^[9] LTA, s 70(1).

^[10] Clause 8(b)(ii).