Yoganathan v R [2017] NZCA 225 (31 May 2017)

Last Updated: 15 June 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA614/2015 [2017] NZCA 225
BETWEEN	RAGULAN YOGANATHAN Appellant
AND	THE QUEEN Respondent

Hearing:	9 May 2017
Court:	Harrison, Gilbert and Katz JJ
Counsel:	A J Haskett for Appellant JEL Carruthers for Respondent
Judgment:	31 May 2017 at 2 pm

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The conviction entered against the appellant in the District Court is set aside.

__________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] The appellant, Ragulan Yoganathan, was found guilty following a defended hearing in the Manukau District Court on one charge of driving under the influence of drink to such an extent as to be incapable of having proper control of a motor vehicle (otherwise known as “driving under the influence of alcohol”) under s 58(1)(a) of the Land Transport Act 1998.^[1] Judge Russell declined Mr Yoganathan’s application for discharge without conviction and imposed a sentence of six months’ disqualification from holding or obtaining a driver’s licence.^[2] Edwards J dismissed his appeal to the High Court.^[3] This Court has granted him leave to bring a second appeal.^[4]
[2] While identification of a question of law is not a prerequisite to obtaining leave,^[5] this Court’s leave judgment indicated that the issue would be whether a miscarriage of justice occurred by reason of the District Court’s reliance on the evidence of a medical practitioner, Dr Umesh Parbhu, or the evidence of breath alcohol obtained by way of a roadside screening test.^[6]

District Court

[3] The police originally charged Mr Yoganathan both with driving under the influence of alcohol and refusing to supply a breath or blood specimen. The latter charge was withdrawn during the defended hearing.
[4] Certain facts are not now or cannot be in material dispute. During the evening on 25 July 2015 Mr Yoganathan was driving his motor vehicle in Manukau. His passenger was Amit Prakash. Constable Jermaine Morgan and another constable were parked in a patrol car on Albert Road, a cul-de-sac adjacent to Reagan Road. The police were operating a breath alcohol checkpoint on Reagan Road. Constable Morgan was a prosecution witness at the defended hearing but the other officer did not give evidence.
[5] Mr Yoganathan drove his vehicle off Reagan Road and into Albert Road. Constable Morgan inferred that Mr Yoganathan was attempting to avoid the police checkpoint. He parked near the police vehicle. Constable Morgan asked him to undergo a passive breath test by speaking into a handheld device which shows whether a person has recently consumed alcohol. A positive reading was recorded. Constable Morgan said he then administered a roadside screening test on Mr Yoganathan using a Drager 9510, a small electronic device in which Mr Yoganathan had to blow. The test disclosed a level of alcohol above 400 micrograms per litre of breath. Mr Yoganathan denied that this second test was undertaken and much of the evidence at trial was apparently taken up with this defence. As we shall explain, this focus diverted attention away from what ought to have been the real issue.
[6] Constable Morgan said he requested Mr Yoganathan to accompany him to the Manukau Police Station. We recite Judge Russell’s findings on subsequent events as follows:^[7]

[6] What occurred then is a very unfortunate set of events. It appears that Mr Yoganathan disputed that he was seen driving the motor vehicle. Constable Morgan’s evidence was clear that he did observe him driving into Albert [Road] to the point where he parked on the side of the road. I accept Constable Morgan’s evidence about this. Mr Yoganathan did not readily accompany Constable Morgan pursuant to his request to the Manukau Police Station. An unfortunate set of events followed whereby Mr Yoganathan was forcibly removed from his car, was handcuffed and was taken by two police constables back to their patrol car at the end of the culde-sac. The distance is unclear, but could be as much as 30 metres. Mr Yoganathan has resisted the police notwithstanding that he was handcuffed and when outside the patrol car was forced to the ground.

[7] In the course of his being moved from his own vehicle to the patrol car at the end of the road Mr Yoganathan has suffered a broken collar bone and three fractured ribs. Constable Morgan called for assistance. Another police car arrived, and Mr Yoganathan has been placed in that vehicle and transported back to the Manukau Police Station. He was asked to undergo the [evidential] breath screening procedures at the police station. This was not able to be completed and Constable Morgan requested a medical practitioner be called to the station.

(Our emphasis.)

[7] Dr Parbhu responded to Constable Morgan’s call and attended Manukau Police Station, not to treat Mr Yoganathan’s injuries but to assess his capability to drive. The officer noted that:^[8]

During the whole procedure the defendant [pretended] to be paralysed/dead and refused to accommodate the [officer in charge]. Medical doctor has examined the defendant and found nothing wrong with the defendant.

[8] Dr Parbhu said that on arrival he found Mr Yoganathan behaving strangely. He was on the floor calling for a ventolin inhaler. Mr Yoganathan had refused to walk on his own. He was walking on his knees. But at that time Dr Parbhu was unaware of the nature and extent of Mr Yoganathan’s injuries; it was not until the following afternoon that they were confirmed by Middlemore Hospital. Nevertheless, even armed with this evidence at trial, Dr Parbhu’s evidence was that in 25 years of medical practice he had not yet seen a patient with a fractured rib who was unable to walk. He did observe though that Mr Yoganathan needed the assistance of arresting officers to walk. Mr Yoganathan declined the doctor’s request to undertake a physical examination.
[9] Judge Russell summarised the doctor’s further observations as follows:

[11] Dr Parbhu recorded Mr Yoganathan did admit that he had been drinking alcohol. He refused to co-operate with the testing procedures. He refused to walk to the cells and two custody officers were required to get him to the cells. Dr Parbhu noted Mr Yoganathan was complaining of pain to his back and to the side of his chest but not to his head. When pressed on his left side of his body Mr Yoganathan complained of pain on his right side. Dr Parbhu noticed Mr Yoganathan smelt of alcohol and noticed that his eyes were red. He concluded Mr Yoganathan was under the influence of alcohol, but was not able to establish however whether there were any drugs or other substances which he had taken. The doctor concluded that he was not capable of controlling a motor vehicle. He noticed superficial abrasions on his abdominal wall, and on his right knee there were also superficial abrasions. He again recorded that Mr Yoganathan was complaining of pain to his right side, which is consistent with the injuries to his ribs.

[10] In finding the charge proved, Judge Russell relied on the following features of Constable Morgan’s evidence:^[9]

• (a) Mr Yoganathan admitted he had been consuming alcohol, which he smelt on his breath.
• (b) When he first encountered Mr Yoganathan in his vehicle, his speech was slurred and, when he later submitted to the breathtesting procedures, his eyes were glazed and bloodshot. But this evidence was subject to the important qualification that Constable Morgan’s observations were at night and the street lighting was limited. The Judge had earlier found that the street lighting “appeared to be poor if not nonexistent”.^[10]
• (c) The passive test indicated a failed result and the screening test showed a reading in excess of 400 micrograms.

[11] In addition the Judge relied on Dr Parbhu’s observation that Mr Yoganathan’s eyes were red, which he associated with the consumption of alcohol, and his conclusion that Mr Yoganathan was not fit to drive.^[11] The Judge found that none of these factors could be attributed to the injuries suffered by Mr Yoganathan.^[12]
[12] Judge Russell was satisfied that the effects of Mr Yoganathan’s consumption of alcohol were such that he would not have had proper control of his vehicle.^[13] The Judge also accepted Constable Morgan’s evidence that Mr Yoganathan was arrested at the end of the processing procedures at Manukau Police Station for refusing to supply a blood specimen; and that after the initial breath tests he refused a request to go to the police station “for the purposes of completing the testing process”.^[14] He rejected a submission of unlawful arrest.^[15] In any event, if the evidence was obtained unlawfully, he would have ruled it admissible after undertaking the balancing test required by s 30 of the Evidence Act 2006.^[16]

High Court

[13] Mr Yoganathan’s appeal to the High Court was advanced on the primary grounds that Judge Russell erred in three material respects: (a) by failing to give adequate weight to adverse credibility findings when weighing other aspects of the evidence necessary to establish the charge; (b) by finding that Mr Yoganathan was incapable of having “proper control” of the vehicle; and (c) equating any excess alcohol level with an individual’s incapability of having proper control.^[17]
[14] Despite Mr Haskett’s submissions to the contrary, we are not satisfied that Edwards J erred in rejecting each of the three discrete grounds of appeal. Mr Haskett’s primary argument on appeal, as it was in the High Court, was an attempt to revisit Judge Russell’s credibility finding that Constable Morgan did in fact administer the roadside screening test. While Mr Haskett mounted a sustained challenge to the officer’s evidence on that point, his failure to challenge his evidence of a 400microgram reading is unhelpful. Counsel are under an obligation to confront squarely a police officer with a specific allegation of fabricating evidence. More significantly, we cannot discern any arguable basis upon which we should follow the unusual course of interfering with the trial Judge’s credibility finding.
[15] However, Mr Haskett advanced a secondary ground of appeal in the High Court which did not enjoy apparent prominence at trial. He submitted that evidence on which the prosecution relied was improperly obtained as a result of the police unlawfully detaining Mr Yoganathan by handcuffing and physically moving him to the police station and therefore should have been excluded.^[18] The significance of this argument was likely obscured at the defended hearing by what Judge Russell described as Mr Haskett’s lengthy (and we would add unnecessarily argumentative) cross-examination of Constable Morgan about the whole testing process.^[19] Similar criticisms can be made of the prosecutor’s cross-examination of other witnesses.
[16] Edwards J dismissed the unlawful detention argument for these brief reasons:

[42] I agree with the Judge’s conclusion that any impropriety that occurred in the process of taking Mr Yoganathan from his car to the police station does not justify the exclusion of Dr Parbhu’s evidence. Mr Yoganathan was lawfully required to accompany the officers to the police station. If he refused to accompany the officers, they were entitled to arrest him. He was advised of his rights under the New Zealand Bill of Rights Act [1990 (the NZBORA)] multiple times. Dr Parbhu’s evidence is cogent and reliable. In those circumstances, the Judge’s conclusion is justified.

Decision

(a) Unlawful detention

[17] The unlawful detention ground of appeal calls for a detailed review of the evidence. Judge Russell accepted Constable Morgan’s evidence that he conducted the screening test while Mr Yoganathan was still in his vehicle. After it yielded a reading of 400 micrograms the officer advised Mr Yoganathan that he was required to accompany him to the Manukau Police Station for the purpose of an evidential breath test or blood test. He said Mr Yoganathan made no comment. Constable Morgan did not suggest that Mr Yoganathan manifested or communicated a refusal of his request.
[18] Constable Morgan said he then advised Mr Yoganathan of his rights under the NZBORA and enquired whether Mr Yoganathan understood. Again Mr Yoganathan made no comment. The officer then removed him from his vehicle, handcuffed him and walked him to the police car. We shall return to Constable Morgan’s evidence that Mr Yoganathan became resistant when approaching the police car. Constable Morgan agreed with a proposition in cross-examination that he had arrested Mr Yoganathan in Albert Road, presumably when he handcuffed him. However, as noted, Judge Russell found that “Mr Yoganathan was arrested at the end of the processing procedures, and this was for refusing to supply the blood specimen”.^[20] He was referring to an event about an hour later at the Manukau Police Station.
[19] The first question is whether Constable Morgan’s actions in removing Mr Yoganathan from his vehicle and handcuffing him amounted to a detention or arrest for the purposes of ss 22 and 23 of the NZBORA. Under the former provision “[e]veryone has the right not to be arbitrarily arrested or detained”; and under the latter a person “who is arrested or ... detained under any enactment” is vested with certain rights. The degree of overlap between the concepts of detention and arrest is immaterial to resolution of the present appeal.^[21] Constable Morgan did not purport to exercise his power of arrest under any enactment when removing Mr Yoganathan from his car. He did, however, expressly exercise that power an hour later at the police station.
[20] The test for a detention under the NZBORA, said to be of a mixed objective and subjective nature, is whether the suspect has “a reasonably held belief, induced by police conduct, that he or she is not free to leave”.^[22] A commonsense question to ask is whether there was some form of substantial interference with Mr Yoganathan’s personal liberty in the light of the nature, purpose, extent and duration of the constraint.^[23] Something more is required than a “temporary check, hindrance or intrusion on the citizen’s liberty”.^[24] Whatever test is applied, we are in no doubt that Constable Morgan detained Mr Yoganathan when he applied the handcuffs by his vehicle. There was a substantial interference with Mr Yoganathan’s liberty for at least an hour. He was unquestionably not free to leave.
[21] The second question is whether the detention was lawful. By s 69(1)(ab) of the Land Transport Act an enforcement officer may require a person to accompany him or her to a place where the person can undergo an evidential breath test or blood test if that person has undergone a breath screening test which recorded an excess of 250 micrograms. When making that request an enforcement officer is obliged to advise the person that he or she is required to comply with the request without delay. Satisfaction of that obligation can be by the use of appropriate words, the conduct and actions of the officer or the context of the request.^[25] The person must accompany the officer to the place, normally a police station, when required to do so.^[26] In the event that the person contravenes this requirement, s 69(6) empowers the officer to arrest him or her without a warrant.
[22] We accept Mr Haskett’s submission that there was insufficient evidence Constable Morgan made Mr Yoganathan aware of the need to accompany him immediately or without delay following the positive result from the breath screening test. The officer’s evidence was simply that he requested Mr Yoganathan to accompany him and, in the absence of a response or comment, he physically removed him from the car. There is no requirement on a person to accompany an officer immediately; he or she is entitled to a reasonable amount of time to comply.^[27] And a logical corollary is that an officer should warn the person of the consequences of refusing to comply with the request in order to avoid misunderstanding and to obtain informed cooperation.^[28]
[23] We are satisfied that Judge Russell’s finding that Mr Yoganathan refused Constable Morgan’s request to accompany him to the police station, upheld by Edwards J, is unsupported by the facts. There is no evidence that Constable Morgan discharged his obligation to inform Mr Yoganathan that he must accompany him without delay while permitting a reasonable time for that purpose.
[24] Moreover, Constable Morgan did not purport to arrest Mr Yoganathan in exercise of his s 69(6) powers. Mr Yoganathan was never charged with the offence of failing to accompany without delay.^[29] And we cannot follow Constable Morgan’s purpose in advising Mr Yoganathan of his rights under the NZBORA, presumably the procedural rights set out under s 23, immediately following his request for Mr Yoganathan to undergo an evidential breath test and before he had a response. Constable Morgan’s detention of Mr Yoganathan by handcuffing him at the roadside was unlawful.

(b) Exclusion of improperly obtained evidence

[25] It follows that all the evidence obtained by the police after Mr Yoganathan’s detention was obtained while he was unlawfully in custody and therefore in breach of s 22 of the NZBORA. It was improperly obtained within the meaning of s 30(2)(a) and (5)(a) of the Evidence Act. The next question is whether its exclusion would be proportionate to the impropriety.^[30] A balancing exercise is required, giving appropriate weight to the impropriety but also taking proper account of the need for an effective and credible system of justice.^[31] Its significance here is to Dr Parbhu’s evidence.
[26] The specific statutory factors relevant to the balancing process do not require full recitation. Our primary focus is with the first two enumerated by s 30(3): (a) the importance of Mr Yoganathan’s right breached by the impropriety and the seriousness of the intrusion on it; and (b) the nature of the impropriety, in particular, whether it was deliberate, reckless or done in bad faith. Both can be considered in a composite way.
[27] Breach of the right to be free from unlawful detention is of itself serious and normally counts in favour of exclusion. Our focus is on both the breach itself and its duration. Certain critical facts are beyond dispute. In the period between his original detention and placement in the police car Mr Yoganathan was seriously injured. He suffered a broken collar bone and three broken ribs. All his injuries are consistent with the application of considerable force to two different parts of his body on two separate occasions. They were sustained while his hands were locked behind his back and could not be used. He was handcuffed and placed in unlawful police custody.
[28] Constable Morgan described Mr Yoganathan as being resistant, swearing and pushing his partner while being placed inside the police vehicle. It was said that he was using his shoulder to “barge” or “nudge”. While Mr Yoganathan was in what was called the escort hold, Constable Morgan said:

[I]t was as if he became like dead weight as he was being placed [in the police vehicle] and then he was then let go by us and he fell to the ground, to his side as his handcuffs were behind him, down to the ground.

[29] Mr Yoganathan was said to have fallen “face forward to the ground”. Constable Morgan denied that any force was applied. According to the officer, once he fell to the ground Mr Yoganathan “complained as if he had hurt himself”. When in that position he became “very aggressive”. Under cross-examination, Constable Morgan consistently could not recall whether he had bent or twisted Mr Yoganathan’s wrist down in what is called a pain compliance move. He could not recall also whether he had thrown Mr Yoganathan to the ground.
[30] Significantly, Mr Yoganathan’s account of his injuries was not materially challenged in crossexamination. He said that Constable Morgan forcibly removed him from his vehicle. Shortly afterwards he twisted his hand behind his back, held his neck and slammed his body into the road when he felt “this massive, intense pain”. Within seconds he felt another blow to the lower or middle region of the right side of his back. He said it “felt like somebody took a sledge hammer and ... smashed it on [his] back”.
[31] Mr Prakash’s corroborating evidence was that Constable Morgan had pulled Mr Yoganathan from the car, grabbed his right arm and twisted it back. He heard a thumping noise, heard Mr Yoganathan cry out in pain and saw him on the ground. Constable Morgan’s knee was then in the centre of Mr Yoganathan’s back and near the region of his shoulder.
[32] While Mr Haskett’s cross-examination was unfocussed, he did challenge Constable Morgan’s account of the circumstances surrounding Mr Yoganathan’s injury. Constable Morgan denied using his knee or foot to apply extreme pressure to Mr Yoganathan’s back while he was on the ground. However, Judge Russell’s finding that Mr Yoganathan “was forced to the ground” is a rejection of the officer’s account that the fall was accidental.^[32]
[33] Also, the Judge’s questions of Constable Morgan suggest a degree of incredulity at an explanation that Mr Yoganathan’s body weight caused his fall and such serious injuries. The officer agreed with the Judge that a person who has broken three ribs and a collar bone would be in severe pain. At another point the Judge commented, by reference to the constable’s account of Mr Yoganathan’s injuries, “I did not come down in the last shower”.
[34] Judge Russell did not make findings about whether Mr Yoganathan was unlawfully detained at his motor vehicle or whether he was subjected to the use of excessive force while in police custody. These omissions are consistent with the misguided defence focus at trial. However, it must follow from Judge Russell’s finding that Constable Morgan forced Mr Yoganathan to the ground that Mr Yoganathan’s own body weight could not have caused his broken collar bone and three broken ribs. Constable Morgan’s suggestion that injuries of such severity, to two different parts of the body, must have occurred when the officers “let him drop ... to the ground” was plainly implausible and was not accepted by the Judge. The only inference available from the primary evidence is that the injuries were caused by the intentional application of considerable external force while Mr Yoganathan was unlawfully detained in police custody, whether before or while he was on the ground. They cannot be credibly explained in any other way.
[35] While acknowledging Judge Russell’s reference to the sequence of events as “unfortunate”, Mr Carruthers relied on the Judge’s finding that Mr Yoganathan resisted Constable Morgan and his colleague as they escorted him from his vehicle to the police car where he was eventually forced to the ground. There was no doubt that Mr Yoganathan offered a degree of resistance during this time. But on Constable Morgan’s evidence it was limited to the extent of a shoulder barge or nudge when he was being placed into the police car, some 30 metres from where he was originally detained. Constable Morgan does not suggest that Mr Yoganathan’s injuries were sustained because the officer was using force to overcome Mr Yoganathan’s force in resisting execution of a process.^[33]
[36] In applying the balancing process mandated by s 30(2)(b) and (3) of the Evidence Act we are satisfied that exclusion of all evidence obtained subsequent to Mr Yoganathan’s unlawful detention is proportionate to the impropriety and its immediate consequences. The breach of Mr Yoganathan’s right under s 22 of the NZBORA was significant. While he was unlawfully detained and in police custody he suffered serious injuries. We are not satisfied that any of the other statutory factors, such as the seriousness of the offence, count against exclusion. Dr Parbhu’s evidence of his later observations of Mr Yoganathan is inadmissible as a result.

(c) Residual evidence of driving under the influence of alcohol

[37] As a result, the only evidence available to support the prosecution case are the three features of Constable Morgan’s evidence identified by Judge Russell recited at [10] above. By reference to each:

• (a) Mr Yoganathan’s consumption of alcohol is not in dispute but of itself does not establish the charge.
• (b) Again, the fact that Mr Yoganathan’s speech was slurred, while adding to the evidence of alcohol consumption, is not of itself decisive. The officer’s evidence that his eyes were glazed and bloodshot must carry little weight given the Judge’s finding that the street was dark due to the absence of proper lighting.
• (c) A screening test is simply that — it does not purport to provide a reliable guide as to intoxication. It is simply a preliminary process. Its inferior reliability is illustrated by the strict procedural steps prescribed by Parliament under the Land Transport Act which must be followed in order to obtain evidence of a sufficient standard to ground a conviction of this kind, usually through the person’s failure of an evidential breath test or blood test.^[34]

[38] Mr Carruthers acknowledges that a breath screening reading of 400 micrograms is not of itself a sufficient evidential foundation for a charge of driving under the influence of drink to such an extent as to be incapable of having proper control of a motor vehicle. The other evidence has limited probative value. The result is that the evidence does not sufficiently support proof of the charge beyond reasonable doubt. Mr Yoganathan’s appeal against the conviction must succeed.

Result

[39] The appeal is allowed.
[40] The conviction entered against Mr Yoganathan in the District Court on a charge of driving under the influence of alcohol is set aside.

Postscript

[41] It will be apparent that we regard the events which immediately followed Mr Yoganathan’s unlawful detention as a cause of considerable concern. They raise questions about the circumstances in which he suffered serious injuries while unlawfully in police custody. We assume that the Crown Law Office will refer this judgment for further consideration by the appropriate authorities.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Police v Yoganathan [2015] NZDC 14062 [Oral judgment].

^[2] Police v Yoganathan [2015] NZDC 14056 [Sentencing notes].

^[3] Yoganathan v Police [2015] NZHC 2320 [First appeal].

^[4] Yoganathan v Police [2016] NZCA 169 [Leave judgment].

^[5] Criminal Procedure Act 2011, ss 237 and 340(3)(a).

^[6] Leave judgment, above n 4, at [1]. It is common ground that the Court’s reference to an “evidential breath test” is in error. No evidential breath test was administered. It is therefore assumed that the Court intended to refer to a roadside screening test.

^[7] Oral judgment, above n 1.

^[8] Quoted at [8].

^[9] At [21].

^[10] At [5].

^[11] At [21].

^[12] At [23].

^[13] At [25].

^[14] At [26].

^[15] At [26].

^[16] At [26].

^[17] First appeal, above n 3, at [2].

^[18] At [40]–[42].

^[19] Oral judgment, above n 1, at [13].

^[20] At [26].

^[21] See R v Goodwin [1993] 2 NZLR 153 (CA).

^[22] R v M [1995] 1 NZLR 242 (HC) at 245 adopted in Everitt v Attorney-General [2002] 1 NZLR 82 (CA) at 87.

^[23] Police v Smith and Herewini [1994] 2 NZLR 306 (CA) at 316–317.

^[24] At 317.

^[25] R v Deam [2002] NZCA 233; [2003] 1 NZLR 57 (CA) at [26].

^[26] Land Transport Act 1998, s 69(5)(a).

^[27] Bush v Police HC Auckland AP162/94, 14 September 1994 at 14.

^[28] Langton v Police [1992] NZCA 179; [1993] 1 NZLR 655 (CA) at 658.

^[29] Land Transport Act, s 59(1)(b).

^[30] Evidence Act 2006, s 30(4).

^[31] Section 30(2)(b).

^[32] Oral judgment, above n 1, at [6].

^[33] Crimes Act 1961, s 39.

^[34] See generally Birchler v Police [2010] NZSC 109, [2011] 1 NZLR 169 at [3]–[6] and Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.