Collin v Police HC Wellington CRI-2011-485-79 [2011] NZHC 1210 (11 October 2011)

Last Updated: 23 October 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI-2011-485-79}

XAVIER COLLIN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 4 October 2011

Counsel: K I Jefferies for Appellant

S A McClean for Respondent

Judgment: 11 October 2011 at 4:00 PM

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 4pm on the 11th day of October 2011.

_{RESERVED JUDGMENT OF MACKENZIE J}

[1] The appellant, who was born on 26 January 1991, was stopped at a police alcohol checkpoint on the morning of 20 June 2010. He underwent a screening test which showed the result of “failed youth”. He was taken to Wellington Central police station for an evidential breath screening test and subsequently opted to undergo a blood test. Analysis of the sample showed a blood alcohol level of

36 milligrams of alcohol per 100 millilitres of blood. The permitted limit, for a

_{person under 20 years of age, is 30 milligrams.}

COLLIN V NEW ZEALAND POLICE HC WN CRI-2011-485-79 11 October 2011

[2] The appellant was convicted following a defended hearing on 10 May 2011. An application that he be discharged without conviction under s 106 of the Sentencing Act 2002 was declined. He was convicted, disqualified for three months and ordered to pay medical and analyst expenses of $295.00.

[3] The appellant initially appealed against both conviction and sentence. He subsequently abandoned the appeal against sentence and this hearing proceeded as an appeal against conviction only.

[4] The single point in issue in the appeal is whether the prosecution established, to the requisite standard of beyond reasonable doubt, that the appellant was aged under 20 at the time of the incident.

[5] The prosecution relied upon two items of evidence to establish age. The first was the evidence of the officer who dealt with the appellant at the scene. He described what happened after he administered the breath screening test as follows:

I showed the result, which was an orange light, and the words „fail youth” on

the readout to the defendant. I asked him his age and he told me that he was

19 years of age. I asked him to produce his driver‟s licence, which he did. I

confirmed his name as Xavier Collin, the driver‟s licence number and his

date of birth, which was in January 1991, from memory, which made him

19 years of age at that point. ...

[6] The second was a certificate from the NZ Transport Agency which the officer then produced. The certificate described the subject of the certificate as Xavier Collin, and his date of birth as 26 January 1991. It gave his driver licence number and confirmed that that was issued on 19 October 2006.

[7] In support of the appeal, Mr Jefferies submits that if there is not a formal admission of facts under s 9 of the Evidence Act 2006, it is inappropriate for the prosecution to rely on the information as submitted by the prosecution witnesses at the hearing. Any out of Court statements by the defendant are not automatically admissible unless taken formally with all necessary cautions and any such admissions should only be admitted in any event by way of hearsay application which should be submitted prior to the hearing. He further submits that a reading

together of ss 143 and 78 of the Land Transport Act 1998 (the Act) does not make the certificate admissible evidence of age.

[8] In a ruling given in response to a no case submission at the end of the prosecution case, Judge Tuohy held that the certificate was admissible, and on that basis there was sufficient proof that the defendant was under 20. He said that if he was wrong in that he considered that the balance of evidence in any event is sufficient in the absence of evidence to the contrary to satisfy the Court that the defendant was under 20. He affirmed that ruling in his judgment.

[9] I deal first with the admissibility of the certificate. This turns on the inter- relationship between ss 78 and 143 of the Act. Section 78 provides:

Presumptions as to age of driver

If a certificate referred to in section 143 is produced in proceedings for an offence against this Part involving a person who is apparently younger than

20, it is to be presumed, in the absence of proof to the contrary, that the date stated in the certificate as being the date of birth of the person to whom the

certificate relates is accurate.

[10] Section 143 provides:

Evidence of driver licence

(1) This section applies to offences alleged against paragraph (a) or paragraph (b) of section 31(1).

(2) In proceedings against a person for an offence to which this section applies, a certificate that meets the requirements of subsection (3) and purports to be signed by a sworn or non-sworn member of the Police or an employee of the [Agency] is, in the absence of proof to the contrary, sufficient evidence of the matters contained in the certificate.

(3) A certificate referred to in subsection (2) must state that the member or employee has checked the register of driver licences kept by the [Agency] under section 199 and—

(a) Has found no record showing that, on or before the date of the alleged offence, the person had ever held a driver licence; or

(b) Has found a record showing that the person has held a licence to drive a vehicle of the class referred to in the proceedings, and that, at the date of the alleged offence, the licence had expired; or

(c) Has found a record showing that, at the date of the alleged offence, the person held a licence to drive a vehicle, but not a vehicle of the class referred to in the proceedings; or

(d) Has found a record showing that the person held a licence to drive a vehicle, but not a vehicle of the class referred to in the proceedings, and that, at the date of the alleged offence, the licence had expired.

[11] The drafting of these sections is clumsy. Section 78 refers to a certificate referred to in s 143. Section 143 deals with certificates for offences against s 31, which is concerned with offences relating to driver licensing. Section 143 provides for proof of a person‟s status as a licence holder or otherwise by means of a certificate. Nowhere in s 143 is there any requirement that a certificate must, or may, specify the age, or date of birth, of the person concerned. It appears, from the certificate produced in this case, that it may be the practice of NZ Transport Agency to record the date of birth as stated on the relevant driver‟s licence, but that is not a requirement of s 143. The cross-referencing of the two sections does not represent best drafting practice.

[12] It is necessary to ascertain the meaning of s 78 from its text and in the light of its purpose, under s 5 of the Interpretation Act 1999. When that is done, I consider that, despite the drafting deficiencies, the intended effect of s 78 is to render admissible a certificate purporting to be signed by an employee of NZ Transport Agency which describes the state of the records of the agency as to the holding of a driver‟s licence by any person, and which contains the date of birth of that person. Unless that interpretation, rather benevolent to the drafter, is given to s 78, the clear purpose of s 78 is not achieved, and the section is deprived of any effect.

[13] Such a certificate, when produced in a proceeding for an offence against Part

6 of the Act, gives rise to a presumption, rebuttable by proof to the contrary, that the date of birth is accurately stated. There is such a certificate in this case, and its accuracy is not challenged. The certificate provided sufficient proof of age.

[14] Mr Jefferies submits that an admission by a person undergoing testing by the police office should not be admissible in evidence unless taken formally with all

necessary cautions. He further submits that its admission requires the giving of a hearsay notice under s 22 of the Evidence Act 2006.

[15] The officer had power, under s 114(3)(b)(i) of the Act, to require that the driver of a vehicle give certain details, including the driver‟s date of birth. There is no requirement that a caution be administered before requesting that information, or before giving evidence of the driver‟s response to that request for information, even where the information may be self-incriminating. In Gledhill v Police,[1] Eichelbaum CJ relied upon the equivalent provision in the Transport Act 1976 in upholding the admissibility of evidence from a police officer as to the age of the driver.

[16] Admissions by a defendant have long been an exception to the hearsay rule. That is given effect in s 27 of the Evidence Act, under which evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant.

[17] I consider that the evidence given by the police officer was admissible, and sufficient, in the absence of evidence to the contrary, to prove the age of the appellant beyond reasonable doubt. The appeal must accordingly be dismissed.

“A D MacKenzie J”

Solicitors: Jefferies Raizis, Wellington for Appellant

Luke Cunningham & Clere, Wellington, for Respondent

---

[1] Gledhill v Police HC Wellington AP138/98, 2 July 1997.