G v Police HC Tauranga CRI-2009-470-8 [2009] NZHC 708 (16 June 2009)

Last Updated: 8 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

_{CRI-2009-470-8}

G

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 16 June 2009

(Heard at ROTORUA)

Appearances: Mr Z Mohamed for Appellant

Ms C Harold for Crown

Judgment: 16 June 2009

(ORAL) JUDGMENT OF LANG J [on appeal against conviction]

Solicitors:

Crown Solicitor, Tauranga

Counsel:

_{Mr Z Mohamed, Howick, Auckland}

G V NEW ZEALAND POLICE HC TAU CRI-2009-470-8 16 June 2009

[1] Mr G faced a charge in the District Court of driving with excess breath alcohol. The charge followed an incident in the early hours of the morning of 17

August 2008 when the police stopped Mr G at a breath-testing checkpoint on the causeway leading to the bridge connecting Tauranga and Mt Maunganui.

[2] The evidence revealed that the police initially stopped Mr G at around

12.30 am. At around 12.33 am a police officer required Mr G to undergo a breath-screening test. He duly did so and failed the test. At approximately 12.33 am the police officer who had administered the breath screening test advised Mr G of the fact that he had failed the test. He then required Mr G under s 69 of the Land Transfer Act 1998 to accompany him to a nearby “booze bus” for the purposes of undergoing an evidential breath test or a blood test or both.

[3] The officer did not, however, administer the evidential breath test until approximately 12.56 am. As a result, there was a delay of approximately 20 minutes between the time at which the officer required Mr G to accompany him and the time at which the evidential breath test was administered.

[4] The evidential breath test revealed that Mr G had been driving with 537 micrograms of alcohol per litre of breath. This led to the charge that he faced.

[5] In the District Court counsel for Mr G submitted that the 20-minute delay between the requirement to accompany and the administration of the evidential breath test was too long. He contended that it amounted to a breach of Mr G ’s right to be free from arbitrary arrest or detention under the New Zealand Bill of Rights Act 1990. As a result, he contended that the charge against Mr G should be dismissed.

[6] In a reserved decision delivered on 17 February 2009, His Honour Judge Rollo rejected these submissions. He found that the 20-minute delay was reasonable in the circumstances, and he convicted Mr G on the charge of driving with excess breath alcohol.

[7] Mr G now appeals to this Court against conviction. In essence, the argument that his counsel advances is the same as that which he advanced in the District Court. He contends that the police unlawfully detained Mr G between

12.33 am and 12.56 am. The unlawful detention arose because of the fact that the police took too long to administer the evidential breath test.

The approach on appeal

[8] An appeal to this Court is an appeal by way of re-hearing. This requires the Court to reach its own decision based on the evidence given in the Court below. The Court will give due deference to findings of the Court below when issues of credibility are involved but this does not impact on the requirement that the appellate Court must form its own opinion based on the evidence: Austin Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.

Decision

[9] In my view the issue is relatively clear-cut in the present case. The issue of the length of time that the enforcement officer took to administer the evidential breath test arose for the first time in the cross-examination of that officer.

[10] When counsel for Mr G put to the officer the proposition that he had waited for 20 minutes before asking Mr G to undergo an evidential breath test, the officer replied as follows:

A. Ah yes, because Mr G had stated that he had had some alcohol very early previously, he mentioned about two minutes, he indicated that he had come from a restaurant just down the road, which is almost in sight from the checkpoint, um, I believe it’s fair to allow any residual alcohol in his mouth to be out of his mouth after doing the breath screening test because he could fail the breath screening test but then pass the evidential breath test. So that’s why I allowed that. Also the number of people in the business at the time, being a busy night, meant that the test didn’t go ahead anyway within 20 minutes.

Q. Sergeant could you tell His Honour what special authority do you have to detail subject for 20 minutes, or in this case 26 minutes?

A. Ah that’s in my belief, that’s a reasonable time, um, I was unable to do the test any earlier, if I was purposely detaining him purely for a 20 minute period, then I would have conducted the test directly after 20

minutes. The reason why it’s 26 is because the machines were not available to me to do it exactly 20 minutes, um, it’s similar to transporting him to a place in a rural setting.

Q. Sergeant if you wont mind just answering the question directly. Your primary reason for detaining him for 20 minutes was because he had consumed the alcohol only a short while before the breath screening test is that correct?

A. Yes.

[11] Counsel for Mr G put to the officer the proposition that he had deliberately waited for 20 minutes in order to obtain a higher reading. He posed that question in the following terms:

Q. You waited for 20 minutes because if you had carried out the evidential breath test soon after the breath-screening test the result might have been against you, in other words it might have been below

400?

A. Sorry, could you just repeat the question.

Q. You waited for 20 minutes because if you had carried out the evidential breath test soon after the breath-screening test the result might have been against you, in other words it might have been below

400?

[12] The officer denied that he was motivated by a desire to obtain a higher reading and said:

A. No, the reason would be that if there was residual mouth alcohol, um, which the defendant said he’d come from the restaurant which I could still see, the result of the evidential breath test would contain that mouth alcohol and he could be very much higher than what he would have. It would be like blowing into the machine with a mouth full of vodka, so he could quite easily blow up in the high hundreds, so by allowing that, I gave him a drink of water to wash his mouth out as well, um, because if you blow with residual mouth alcohol you’re gonna get a huge high result. So which could be not accurate for him.

[13] It seems to me there must always be some delay between a requirement to accompany and the evidential breath test being carried out. As the Judge noted, in rural areas this may well involve a suspect being transported from the point at which his or her vehicle has been stopped to a police station some distance away for the purpose of carrying out an evidential breath test or blood test. The fact that the police make breath and blood testing facilities available on a “booze bus” obviously shortens the period of any delay. Nevertheless, it must be accepted that delay will

inevitably arise because of the need to process more suspects than there are machines available.

[14] In advancing the appeal, counsel for Mr G endeavoured to argue that the police had not established a satisfactory factual basis for the proposition that the two machines were fully occupied before Mr G was given the opportunity to undergo an evidential breath rest. The evidence of the officer was, however, to the effect that it was a very busy night and it was also to the effect that the machine was not available for the full 20 minute period before he required Mr G to undergo the evidential breath test at 12.56 am. In the absence of further cross-examination to discredit this evidence or to amplify it in any way, I consider that the only conclusion that can be drawn is that the evidence is correct. Counsel for Mr G did not endeavour to cross-examine the officer any further on this aspect of this evidence.

[15] Counsel for Mr G also endeavoured to argue that this Court should infer that the officer had an ulterior motive for waiting the full 20-minute period before requiring Mr G to undergo the evidential breath test. That motive, of course, was a desire to obtain a higher reading. The officer’s evidence was, however, to the contrary. As can be seen from the passage cited above at [12], he denied any intention to obtain a higher reading from Mr G by creating a 20-minute delay.

[16] In those circumstances I consider that the only realistic conclusion is that the officer was indeed motivated to wait the 20-minute period in order to ensure that Mr G was treated fairly and that an artificially high breath reading would not be obtained.

[17] For these reasons I am satisfied that the Judge was entitled to reach the conclusion that he did, namely, that the delay that occurred in this case was reasonable. There can be no question that the officer was acting in good faith. He was, in my view, motivated to ensure that Mr G undertook the evidential breath test in a manner that would produce a fair and just outcome.

[18] For these reasons alone the appeal cannot succeed.

[19] I record, however, that, even if counsel for Mr G had been able to establish a breach of Mr G ’s rights, he would still have had to satisfy the Court that exclusion of the breath test result was a proportionate response to the breach. This would require the Court to have regard to the factors set out in s 30(3) of the Evidence Act 2006.

[20] A brief review of the factors listed in s 30(3) makes it clear that exclusion of the evidence would have been an entirely disproportionate result in the present case. First, the police did not detain Mr G in an arbitrary or capricious manner. Rather, the enforcement officer had a right under s 69(1) of the Act to require Mr G to accompany him to a place where he could undergo an evidential breath test or blood test or both. Mr G had no right to refuse to accompany the officer. This means that the Legislature has accepted that detention of a suspect is justified in circumstances where he or she falls within one or more of the categories listed in s 69(1) of the Act. If Mr G ’s rights were to be breached in any way, it could only be because the detention became unauthorised by virtue of the fact that it was too long.

[21] Given that there must be some inevitable delay between a requirement to accompany and the undertaking of the evidential breath test, this means that any undue delay in the present case could only have been a matter of minutes.

[22] Secondly, there is no suggestion that Mr G felt that his rights were being impinged upon during the period in which he was in the booze bus. He did not give evidence at the hearing in the District Court and so his feelings on that subject are completely unknown. If the officer had advised him, however, that he proposed to delay the test for a short period in order to ensure that residual alcohol in his mouth had dissipated, no doubt he would have gladly accepted that respite.

[23] Thirdly, the evidence in question is important and, indeed, is crucial. It is the sole basis on which the police can obtain a conviction. For that reason it is of the highest nature and quality in terms of s 30(3)(c).

[24] Fourthly, the nature of the impropriety cannot be described as being deliberate, reckless or done in bad faith. Rather, as I have already found, the delay was caused in circumstances where, as a matter of good faith, the officer was endeavouring to ensure a fair outcome for Mr G .

[25] Next, this is not the most serious of offences but it certainly cannot be categorised as a minor or trivial offence. A charge of driving with excess breath alcohol must, in my view, be regarded as being of moderate seriousness.

[26] In those circumstances, even if I had been satisfied that the officer had breached Mr G ’s right not to be arbitrarily or unduly detained, nevertheless I would have held that exclusion of the evidence would have been a disproportionate response. I note that Keane J reached a similar conclusion in the context of drink driving offending in Gallichan v Police HC AK CRI 2008-404-184 1 October 2008. Stevens J upheld a similar result, albeit using the Shaheed principles in the case of Barry v Police HC Whangarei CRI 2007-488-0029 3 April 2008.

[27] The appeal therefore is without merit and is dismissed.

Lang J