Police v Gibson [2021] NZDC 17020 (10 September 2021)

Last Updated: 30 June 2022

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

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.html

IN THE DISTRICT COURT AT GISBORNE I TE KŌTI-Ā-ROHE KI TŪRANGANUI-A-KIWA

CRI-2020-016-001499 [2021] NZDC 17020

NEW ZEALAND POLICE Prosecutor

v

[TYLER GIBSON] Defendant

Hearing:	13 April 2021
Appearances:	A Gordon for the Prosecutor S Cullen for the Defendant
Judgment:	10 September 2021

JUDGMENT OF JUDGE W P CATHCART

Introduction

[1] Properly framed, the primary issue in this case is whether the police, avoiding a real risk of misunderstanding, conveyed the sense and effect of the statutory advice set out in s 69(4A)(b) of the Land Transport Act 1998 to a motorist who elected to undergo a blood test and now faces a charge of driving with excess blood alcohol.

NEW ZEALAND POLICE v [TYLER GIBSON] [2021] NZDC 17020 [10 September 2021]

[2] On that issue, Mr [Gibson], [occupation deleted], argues the police failed that test because the language used in the relevant police form does not comply with statutory language. He says the critical evidence obtained against him is accordingly inadmissible thereby leading to dismissal of the charge.

[3] Having considered detailed competing arguments, I found the police met the requirements of that test. Having so found, consideration of subsidiary issues fell away. More about that later.

Common ground

[4] Given the sole admissibility issue in the case, the parties agreed on essential facts.1

[5] Mr [Gibson] is a [occupation deleted] working in Gisborne. At about 7 pm on 10 July 2020 he drove a vehicle on Stout Street near Wi Pere Street carelessly.2 His vehicle hit a kerb. Two males were seen running off by a member of the public. The police were notified. Through standard inquiries they became aware the vehicle was owned by Mr [Gibson].

[6] When [Constable A] arrived at the scene Mr [Gibson]’s vehicle, a [make and model deleted], was predominantly facing in an easterly direction with the front of the vehicle on an angle towards the centre-line. It was thus blocking the lane and was in a dangerous position should another vehicle attempt to turn into Stout Street from Wi Pere Street.

[7] Also, it was dark at the time, but the sky was clear. The road was dry. Stout Street is in a residential area. It has a 50-kph speed limit.

[8] Extensive damage to the front of the vehicle had occurred. The left-hand mag wheel was smashed. The bottom suspension arm and struts had been pushed back into the rear of the wheel arch.

1 An agreed brief of evidence was presented to the court along with factual stipulations pursuant to s 9 of the Evidence Act 2006.

2 Mr [Gibson] pleaded guilty to a charge that he operated a vehicle carelessly on Stout Street on 10 July 2020 contrary to s 37 of the Land Transport Act 1998.

[9] A scene examination was undertaken. Evidence on the kerb behind the vehicle pointed to the area of impact where there were fresh scuff marks and broken pieces of concrete from the damaged kerb. The scene examination suggested the left-front wheel of Mr [Gibson]’s vehicle had hit the kerb.

[10] Also, there were no ignition keys in the vehicle nor any signs of damage to the ignition area. The headlights were in the off position. And the vehicle was unlocked.

[11] During the course of the evening, [Constable A] received a telephone call from Mr [Gibson]. Mr [Gibson] said he had been driving the vehicle down Wi Pere Street and was about to turn into Stout Street when an oncoming vehicle, driving at speed, caused him to accelerate to make it around the corner. However, he clipped the centre island, he claimed. He said that after travelling on for about 10 metres into the Stout Street area, the car stopped. And he could not start it again. He said he and his passenger then walked to the latter’s address where Mr [Gibson] got a ride home.

[12] Aspects of that explanation did not match the scene investigation. For instance, [Constable A] checked the centre island near the crash site and found no evidence of it being hit or clipped by the vehicle.

[13] Later that evening, [Constable A] and [Senior Constable B] went to Mr [Gibson]’s address. Mr [Gibson] repeated his explanation that he had clipped the centre island. He said he had had “two or three beers” at a local bar. And that other [people of the same occupation] were present at the bar. And that he had been at the bar for two to three hours.

[14] At about 8.25 pm [Constable A], having good cause to suspect Mr [Gibson] had recently committed an offence under the Land Transport Act involving a vehicle, advised Mr [Gibson] he was going to require him to undergo a breath-screening test. Mr [Gibson] agreed to that process.

[15] As part of the breath and alcohol procedure administered by [Constable A], he relied on and completed the New Zealand Police Breath and Alcohol Procedure Sheet, commonly known as POL 515, the contents of which were produced by consent. The admissibility point raised focuses on the language of Block H in that form.

[16] The breath-screening test produced a positive 400+ reading. Accordingly, [Constable A] advised Mr [Gibson] he was required to accompany him for the purpose of undergoing an evidential breath test or blood test or both. And Mr [Gibson] was given his standard rights advice.

[17] At 8.26 pm Mr [Gibson] agreed to accompany [Constable A]. At 8.38 pm, after completing the evidential breath test, Mr [Gibson] was advised the result was 531 micrograms of alcohol per litre of breath.

[18] After reading the advice from POL 515 prior to the statutory 10-minute period Mr [Gibson] elected to speak to a lawyer. At 8.53 pm, [Constable A] contacted Mr Mark Sceats, a local Gisborne lawyer, and left Mr [Gibson] to speak to his counsel in private.

[19] At 9.11 pm, having completed his discussion with counsel, Mr [Gibson] advised [Constable A] that he elected to undergo a blood test. Mr [Gibson] was transported back to the Gisborne Police station where a blood sample was taken at

9.33 pm. Save as to admissibility issue, it is not disputed the test revealed a proportion of alcohol in Mr [Gibson]’s blood of 110 micrograms per 100 millilitres of blood. And he was charged under s 56(2) of the Land Transport Act 1998 accordingly.

The primary issue

[20] Framing of the primary issue relied on a well settled and recently affirmed legal test. I found the impugned wording in Block H in POL 515 conveyed the sense and effect of the warning required by s 69(4)(a) avoiding a real risk of misunderstanding, and thus complied in law. As noted earlier subsidiary issues fell away.

[21] My reasons follow.

Analysis

[22] The Land Transport Act 1998 requires that a driver undergoing an evidential breath test must be given certain advice without delay. One such requirement is captured by s 69(4A)(b).

[23] It reads:

If the result of a blood test indicates the presence of alcohol in the person’s blood, the person may be issued with an infringement offence notice or charged with an offence, depending on the proportion of alcohol.

[24] The police did not use that precise statutory formula. The impugned wording of Block H being:

If that blood specimen indicates the presence of alcohol, proceedings may be taken against you.

Interpretative approach

[25] Precise adherence to the language of a statutory provision like s 69(4A)(b) is unnecessary.3 In McKinney, the Supreme Court without hint of criticism approved the approach adopted by the Court of Appeal in Solicitor-General’s Reference (No 1 of 2020), a recent case that in the main unsuccessfully challenged the wording of Block J in POL 515. The Supreme Court noted the “sense and effect” approach has been followed in case law since the 1980s.4 Specifically, the Supreme Court approved the continuation of the test framed as follows:5

It is essential only to convey the ‘sense and effect’ of the statutory language to a motorist, avoiding any real risk of misunderstanding, rather than any specific formula.

[26] There is no principled reason why the same interpretative rule does not apply to cases involving the wording of Block H. After all, when boiled to its essence, the test is an appeal to the concept of materiality. Because there is no requirement to slavishly follow precise statutory language, the test basically focuses on whether the motorist been misled as to any material particular. The test designed thereby to ensure substance trumps form—an infixed legal approach.

3 Barr v Ministry of Transport [1983] NZLR 720 at 722; Solicitor-General’s Reference (No 1 of 2020)

[2020] NZCA 563.

4 McKinney v Police [2021] NZSC 68 at [10]; Aylwin v Police [2008] NZSC 113 at [17].

5 McKinney at [7]; Barr at 722; Boyd v Auckland City Council [1980] NZCA 71; [1980] 1 NZLR 337 at 341–342; at [6]. See also, Singh v Police [2021] NZSC 78 at [6] where the Supreme Court also declined leave to appeal for the same reasons it gave on this issue in McKinney.

The statutory scheme in operation

[27] Where s 69(4A) is triggered, a motorist, like Mr [Gibson], has already failed a breath-screening test. And he is required to accompany the officer to a testing place where an evidential breath test, blood test or both can be taken. After arriving at the testing place he is informed his detention is for the purpose of breath or blood alcohol testing. He is read his rights alerting him to potential general jeopardy and is asked if he would like to speak to a lawyer. After making that election, he is told he is required to undergo an evidential breath test without delay. And that if he fails or refuses to undergo that test, he will be required to permit a blood specimen to be taken. Recital of rights is repeated.

[28] The advice that follows is designed to adequately inform him of his liability to prosecution consequential on the proportion of alcohol in the blood sample. The motorist must be advised he “may be issued with an infringement offence notice or charged with an offence depending on the proportion of alcohol”—the defence focus here.6 But the extent of this advice does not stop there; further elaboration must be given. The motorist must be told he may be liable to pay a blood test fee and associated medical costs, whether or not the result of the blood test establishes the person has “committed an offence against the Act”.7 And of “the infringement fee for breach of s 56(2B) of the Act”.8 Cross-referenced to s 56(2B), this last stipulation requires the motorist to be advised that where the blood specimen analysis is between 51 and 80 milligrams of alcohol per 100 millimetres of blood, he may be issued with an infringement notice.

[29] This consequential advice is composite. The motorist is told he is under compulsion to permit the taking of a blood specimen. And depending on the proportion of alcohol discovered, he is warned he is in jeopardy the drink driving process may proceed down one of two prosecution routes—he may be charged with an offence or be issued with an infringement fee notice. To make sure he knows under what circumstances the infringement fee route is applicable, he is told about the material factual parameters that trigger that liability including the level of basic

6 Section 69(4A)(b).

7 Section 69(4A)(d).

8 Section 69(4A)(c).

penalty. Also, the motorist is to be told he may be liable to pay a blood test fee and associated medical costs whether or not the blood test result establishes an offence under the Act. The motorist is reminded thereby of the other prosecution route in the drink-driving process—he may be charged with an offence under the Act.

The immaterial variation from statutory formula in Block H

[30] To repeat, Mr [Gibson]’s focus is on the wording in Block H that reads, “If [the] blood specimen indicates the presence of alcohol, proceedings may be taken against you”. On the primary issue, Mr [Gibson] says that advice fails to comply with the precise language of s 69(4A)(b) and he is thereby misled as to his jeopardy because he does not know what type of proceedings may be taken against him. Specifically, he says he does not know he may be issued with an infringement notice or charged with an offence, depending on the proportion of alcohol in the blood sample.

[31] This argument collapses under scrutiny. Under the legal test failure to use precise statutory language is not fatal. Verbal recitation of statutory wording is not a pre-requisite here.9 Nor, without more, will it be adequate in some areas. If, for example, Block H repeated verbatim the advice required to be given under s 69(4A)(c) the motorist would not really understand when and why he may be liable to be issued with an infringement fee notice. The advice given in Block H provides that information.

[32] This helps to illustrate the legal test at work. The sense and effect of the advice given must be assessed in the context of the wording of Block H as a whole. That approach allows a proper determination as to whether the motorist was misled as to any material particular. To hold otherwise, wrongly assumes the motorist has not read all the information in Block H. Moreover, plucking a single statement out of immediate context runs an obvious risk of a nit-picking interpretation that ignores the sense and effect of advice given.

9 Solicitor-General’s Reference (No 1 of 2020) [2020] NZCA 563 at [37].

[33] With great respect, the argument here is a by-product of that overly narrow approach. I make the following points. As a whole, Block H advice provides the motorist with all material information about his jeopardy under the infringement fee notice route. The motorist is informed of the field covered by that prosecution route. He is not misled as to any material particular because he understands why he may be liable to be issued with an infringement notice. The only remaining route of liability is where the motorist may be charged with an offence under the Act. On that score, he is told he may be liable to pay certain associated costs whether or not he has committed an offence under the Act. By necessary implication the motorist understands the general nature of his jeopardy under the alternative prosecution route—he may be charged with an offence.

[34] Now combine all of this advice with the impugned statement in Block H where the motorist is told that if the blood specimen indicates the presence of alcohol, “proceedings may be taken against you”. The motorist is not misled as to any material particular here. This is because the whole context informs the understanding of the questioned statement. Having read Block H advice, the motorist is aware of the circumstances where he may be issued with an infringement fee notice because he is told precisely of the factual parameters governing that jeopardy. And he is made aware of the only other prosecution route available—he may be charged with an offence under the Act. The motorist thus understands the sense and effect of what is meant by the wording “proceedings may be taken against you”. He knows it must be proceedings connected to the drink-driving process. And he is made aware of the two possible routes of prosecution both of which are conceptually speaking proceedings. The absence of the statutory words—“may be issued with an infringement offence notice or charged with an offence”—makes no material difference. In short, the composite Block H wording conveys, adequately, the sense and effect of the warning required by s 69(4A)(b).10

10 As will be apparent, I have not addressed the reasoning employed by Judge Phillip in Police v Hooper [2021] NZDC 5619; nor the reasoning of Judge Roberts in Police v Richter [2021] NZDC 1815 on this Block H point. I reached the same result but with quite different reasoning.

Conclusion

[35] For all these reasons, I consider the Block H wording complies with s 69(4A)(b). The critical evidence is admissible. Subsidiary issues as to whether there has been reasonable compliance with the Land Transport Act 1998 in terms of s 64(2) falls away; as does the residual admissibility issue under s 30 of the Evidence Act 2006.

[36] Whilst my answer to the primary issue renders these subsidiary questions moot, I have reservations about whether the police may seek refuge in the reasonable compliance test if compliance with the sense and effect of s 69(4A)(b) had not been established. This is because the test requires avoiding any real risk of misunderstanding by the motorist. If the motorist is misled as to a material particular, it is hard to see how that could satisfy reasonable compliance under the s 64(2) test. Likewise, there is not much that commends admissibility under s 30 of the Evidence Act 2006 if the motorist has been materially misled. But a conclusive view on those issues was not required here.

[37] For all these reasons, the charge against Mr [Gibson] is proved.

W P Cathcart District Court Judge