R v Huang [2020] NZDC 10304 (5 June 2020)

Last Updated: 19 December 2021

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2019-004-000198

[2020] NZDC 10304

THE QUEEN

v

[LIN HUANG]

Hearing:	5 June 2020
Appearances:	F Culliney for the Crown A Haskett for the Defendant
Judgment:	5 June 2020

ORAL JUDGMENT OF JUDGE R J COLLINS

[1] The defendant Mr [Huang] is charged that on the first day of January 2019 at Auckland he drove a motor vehicle on a road, namely New North Road, while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath in that it was 600 micrograms of alcohol per litre of breath. He was stopped by the police regarding concerns around passengers in the tray of his Toyota Hilux Utility. In any event, he underwent the breath testing procedures starting with a passive breath test, then breath screening test, request to accompany, and an evidential breath test which recorded a reading of 600 micrograms of alcohol per litre of breath. All the relevant Bill of Rights advices in the course of that were given, again advice that he could consult with a lawyer after the result of the test had been given to him and when he had been advised that he could elect a blood test. Mr [Huang] did in fact consult

R v [LIN HUANG] [2020] NZDC 10304 [5 June 2020]

with a lawyer and then was given a 10-minute period at which point he declined or did not invoke the right to a blood test.

[2] Today the prosecution has proceeded. Those matters have been proved. But for Mr [Huang], Mr Haskett says the evidence of the evidential breath test is inadmissible because s 77(3) Land Transport Act 1998 was not complied with. That is a prerequisite to the admissibility of the evidential breath test and therefore on account of that noncompliance the evidence is inadmissible and in the circumstances of this case it is inappropriate for the Court to invoke the provisions of s 64(2) and find that there has been reasonable compliance.

[3] I agree with Mr Haskett. I have heard today helpful submissions from Ms Culliney and Mr Haskett. I will give in a summarised form my reasons why I agree with Ms Haskett but there will be a decision released this week in a case of Police v [Briggs] where the reasoning will be set out in full. I simply advise the parties of that today.1 The reason I am giving this decision today and not reserving it is that it is 20 past four on a Friday afternoon in the Auckland District Court. Mr [Huang]’s case is one of 50 Judge alone trials scheduled for the last three days of this week and one of some 500 Judge alone trials scheduled over the next five and a half weeks. Given that I have come to a decision, it is not appropriate for him to have to wait to learn the fate as far as he is concerned of this charge.

[4] Section 77(3) Land Transport Act provides that, except as provided in subs (3)(b) and (4), the result of a positive evidential breath test is not admissible in evidence in proceedings unless, there then follow a number of preconditions. One of those preconditions is that the consequences specified in subs (3A) are advised by the enforcement officer to the motorist. Of the consequences in (3A), one of them that must be advised is that the positive test could of itself be conclusive evidence to lead to that person’s conviction. The police breath and blood alcohol procedure sheet, otherwise known as a checklist is used routinely by police officers. In that motorists are told not that the breath test could lead to a conviction but that it could be conclusive

1 Police v [Briggs] [2020] NZDC 11392.

evidence in a prosecution as opposed to being conclusive evidence to lead to that person’s conviction.

[5] In an earlier decision in Police v Gagas2 when this matter was argued before me, in summary I found that there was no material difference and admitted the evidence. I found that, because in my view then, there was no material difference that s 64 reasonable compliance was not engaged. What I did not address and deal with in Gagas was the now two-tier prosecution regime, to give it that title. If someone returns a breath reading between 250 and 400 they commit an offence, it is an infringement offence, it does not attract a conviction and it does not attract of itself disqualification. Over 400 results in a conviction and in the overwhelming majority of cases inevitable mandatory disqualification. The statutory exceptions to that mandatory disqualification are very rare indeed so there in my view is a very significant difference between a prosecution which does not lead to a conviction, does not lead to disqualification and does not then potentially lead to a whole series of consequences for a motorist which follow from that initial conviction.

[6] Section 77(3A) has not been complied with. The section specifies what is required before the evidential breath test becomes admissible. Because in my view the difference is significant and substantial and I readily acknowledge that I am taking a position which is quite different or completely different to that I took in Gagas I do not believe that s 64(2) is to be appropriately resorted to in this case.

[7] In [Briggs] I will set out fully my reasoning around the importance of the right to elect blood because of the presumptive provisions in the Land Transport Act and to use the words of the Court of Appeal in Livingston3 the right to elect blood was the quid pro quo for the rights which were taken away from defendants. Procedures around the election of a blood test are extremely important. The change in the advice that a motorist is given departs from the wording of the statute provided by Parliament. The police have made a conscious decision not to use that wording. This is a material factor for not invoking s 64(2). This is not an inadvertent difference taken by a particular officer in the heat of the moment that produces no material difference. This

2 Police v Gagas [2015] NZDC 25831.

3 Police v Livingston [2000] NZCA 234; [2001] 1 NZLR 167 (CA).

is a conscious decision that the police have taken not to follow the words or use the word that the statute provides.

[8] In those circumstances, s 77(3A) has not been followed. The evidence then is inadmissible and I decline to invoke s 64(2) to save the noncompliance in this case and therefore the charge is dismissed.

R J Collins

District Court Judge