Tarry v Police HC Rotorua CRI 2011-470-000019 [2011] NZHC 1229 (19 September 2011)

Last Updated: 26 October 2011

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI 2011-470-000019}

BETWEEN ROGER ALAN TARRY Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 19 September 2011 (Heard at Hamilton)

Appearances: T J Leigh for Appellant

S E Simmers for Respondent

Judgment: 19 September 2011

_{JUDGMENT OF KEANE J}

Counsel: T J Leigh, Barrister, PO Box 4033, Mt Maunganui South, Mt Maunganui 3149

_{Solicitor: Ronayne Hollister-Jones Lellman, PO Box 13063, Tauranga 3110 (S E Simmers)}

ALAN TARRY V POLICE HC ROT CRI 2011-470-000019 19 September 2011

[1] On 30 May 2011 in the District Court, Tauranga, after a defended hearing, Judge McKegg convicted Roger Tarry of driving at Tauranga on 7 October 2010 with an excess breath alcohol level. The level was 560 micrograms.

[2] At the hearing there was a single issue; whether, after the evidential breath test proved positive and within the 10 minute prescribed for the purpose, Mr Tarry had elected to exercise his right to have a blood specimen taken.

[3] Mr Tarry did not give evidence but his position was, as conveyed to the officer who tested him when he was cross-examined, this; that he had elected to have blood taken, first before the 10 minute period after advice, then by a consistent remark within the period, and then immediately after when charged, with a protest.

[4] Judge McKegg however, whilst satisfied that when, within the 10 minute period, Mr Tarry made the remark consistent with his expectation that blood would be taken, he did not confirm that in the form of a request. He remained silent.

[5] On this appeal, Mr Tarry contends primarily, the officer fell short, within the

10 minute period, of bringing home to him the need to elect to have blood taken within whatever time remained. That duty was encumbent on the officer, Mr Tarry contends, because he had both before the period and during it intimated his fixed intention to have blood taken; a stance confirmed by his protest afterwards.

[6] The position for the Police is that the Judge was plainly entitled to find that, when during the 10 minute period Mr Tarry made the remark he did, suggesting that he expected a doctor soon to arrive, the officer did all that was necessary to confirm whether he really did wish to have blood taken. He remained silent and that was fatal.

Constable’s evidence

[7] The evidence of the constable was that at 2:21am after the evidential breath test had proved positive, Mr Tarry spoke to a lawyer and at 2:29am told her that the lawyer had advised him to opt for blood. To that the constable replied, ‘that’s fine

but we need to read the 10 minute period first’; in that referring to the advice of

evidential breath test form invariably used by the Police for this purpose.

[8] The form begins by advising the motorist that his or her evidential breath test has proved positive and continues to say, ‘If you do not within 10 minutes request a blood test, the test you have just undergone could of itself be conclusive evidence to lead to your conviction for an offence against the Land Transport Act 1998.’ It then spells that out more precisely, but that is its essence.

[9] After the officer read out the form, she said, she took the starting point for the

10 minute period 2:31am. Mr Tarry asked, she said, ‘Is the doctor coming?’ To that she responded, she said, ‘You haven’t actually requested blood, so there is no doctor coming. Would you like to request blood?’ Mr Tarry, she said, did not reply. The next thing that he did was to ask if he could use the toilet. The officer told him that he could not until the 10 minute period was up. Allowing 12 minutes, the constable ended the period at 2:43am.

[10] In the charge room afterwards, the officer said, Mr Tarry said to her, ‘I want to request blood’. To that she responded, she said, ‘Well you had that 10 minute period to request it, which you didn’t’. It was on that basis that Mr Tarry was charged with the offence.

Decision under appeal

[11] In his decision, Judge McKegg, having narrated the Constable’s evidence as I

have, said this:[1]

[8] ... Although Mr Tarry had indicated an intention to take blood, during the reflective period of the 10 minutes, he made no request for blood. He may have suffered from some confusion but, on the other hand, he may simply have thought better of it.

[9] The request made outside the 10 minute period is not valid. The request made prior to the 10 minute period is not valid. To be within the rules it must be within the 10 minute period.

[10] There being no request made, the constable must rightfully proceed on the basis of the information that she has; even thought it could have been, perhaps, more forcefully enquired as to whether blood was to be sought.

[11] However, it was not and Mr Tarry did not follow the instruction he was given. Therefore, I find this matter established beyond reasonable doubt. There has been no breach of the rules.

Statutory presumption

[12] Mr Tarry’s conviction for driving with an excess breath alcohol level rests on the conclusive presumption set out in s 77(1) of the Land Transport Act 1998. It says this:

For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant’s breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant’s breath indicated by the test.

[13] That presumption is subject, however, to the right which the Act accords to a motorist who has been subjected to an evidential breath test, conferred by s 70A(1). It says:

If the result of a person’s evidential breath test appears to be positive, the person has the right, within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), to elect to have a blood test to assess the proportion of alcohol in his or her blood.

[14] Section 77(3)(a) renders the presumption in s 77(1) inadmissible where an testing officer has not advised the motorist without delay that the test was positive and, furthermore, that if he or she ‘does not request a blood test within 10 minutes ... the test could of itself be conclusive evidence to lead to that person’s conviction for an offence against ... (the) Act.’

[15] The presumption is also inadmissible under s 77(3)(b) where the motorist exercises the right conveyed; that is to say, where he or she advises the testing officer within 10 minutes of being advised of the matters just specified, that he or she does elect to have blood taken, and then complies with that election by providing a sample of blood.

[16] In order, therefore, to rely on the s 77(1) presumption underpinning the conclusive effect of the evidential breath test result, the prosecution must, when put to it, first prove to the balance of probabilities that neither of these exceptions to the presumption comes into play: R v Gallagher.[2] It must establish to the civil standard that the motorist was adequately advised of his or her right to elect to have blood taken, and that he or she either did not exercise it, or exercised it but withheld blood.

[17] In this the prosecution will be able to rely, as to the adequacy of the advice, on that formally given using the standard advice of positive evidential breath test form. It conveys in the most literal sense what s 77(3)(a) calls for. However that will not invariably be enough.

[18] There are two cases, to which the Judge was not referred, where issues whether the advice was adequate, and whether the motorist sufficiently exercised the right to have blood taken, impinged on one another. In those cases the Court recognised that more may be called for.

[19] In Nieman v Police[3] the motorist, when told that the evidential breath test had proved positive, immediately requested a blood test. As to that the testing officer responded ‘no problem’ but said that there was a form to be filled out first; in this referring to the advice of positive evidential breath test form. After that advice was given the officer and motorist sat out the 10 minutes in silence, and that once it was complete the motorist asked ‘What about my test’, only to be told that it was too late.

[20] In the District Court the motorist was held not to have made a lawful request for a blood test, and was convicted, relying on the then conclusive effect of the evidential breath test. On appeal, by contrast, Simon France J concluded that more on the part of the officer had been called for. He quashed the conviction.

[21] The officer, he held, was under a case specific duty to convey to the motorist what his rights and duties were. The standard form of advice, he held, did not suffice

_{in that case. Even before it was given the motorist had asked for blood to be taken.}

The officer could not then rely on the motorist’s silence during the 10 minutes. He should have brought home to the motorist that only a request made within the 10 minutes could be effective. How he did that could not be prescribed. It depended on how the motorist responded. What was essential was that the right be conveyed, and it had not been.

[22] In Dunbar v R,[4] where the motorist was a serving police officer, there was no issue that he had been advised, by use of the standard form, of his right within the 10 minutes prescribed to request a blood sample taken or accept the conclusive effect of the evidential breath test result. He maintained that when the 10 minutes began he exercised that right.

[23] As to that, there was a conflict in evidence. The motorist’s evidence was that just as the 10 minutes began he nodded his head and at the same time said, ‘Yes I will’. The testing officer, however, was adamant that no such request had been made. Had it been made, he said, he would have certainly have heard it.

[24] It was undisputed that the two sat out the 10 minutes together while the testing officer completed his paper work and that, when the motorist asked him what he was doing, he said that he was ‘filling in time’ or ‘killing time’. Also that after the 10 minutes the motorist became agitated and maintained that he had made a request within time, only to be told that it was too late.

[25] In the District Court the Judge accepted that the motorist may have requested a blood sample be taken but he accepted also that the testing officer had not heard any such request if it were made. He held that the motorist had not therefore made a sufficient request, more especially as he could have repeated his request once it was plain that the testing officer was only completing his paperwork and that no doctor was to be called.

[26] Woolford J upheld that conclusion, and dismissed the appeal. The motorist,

he held, was under a positive ‘responsibility’ to elect a blood test and needed to do so

_{sufficiently liably to convey it to the testing officer. He had not done so. At the}

same time, Woolford J said that the officer had to be ‘alert to any indication’ that the

motorist might have wanted a blood test.

[27] The position might have been different, the Judge said, had the motorist asked ‘What’s happening about my request’ or ‘What are you doing about my request’. Then the officer would have been put on notice. He would have had to do more.

Conclusion

[28] In this instance, as the Judge held, the officer conveyed to Mr Tarry twice his right to elect to have blood taken, if he wished to challenge the otherwise conclusive effect of the breath test result.

[29] The officer took Mr Tarry through the standard form of advice, before the 10 minute period began, and again once it began when Mr Tarry asked her whether the doctor was coming. She said to him plainly that no doctor was coming because he had not requested one, and asked him whether he did wish to have a blood sample taken; a question to which he did not reply.

[30] In many cases that will be quite enough. In this case there has to be an issue whether it was. As the Judge recognised, Mr Tarry had, before the 10 minutes began, told the Constable that he had been advised to elect to have blood taken and, consistent with that, during the 10 minutes, he asked whether the doctor was coming, evidently assuming that he had already made the election he was called on to make.

[31] Mr Tarry may not have replied to the officer’s direct question, but that what connotes is less than clear. Immediately after the 10 minutes was over he confirmed that he had wanted blood to be taken. And it is telling that, although the Judge held that Mr Tarry had not made a sufficient election, the Judge himself remained unclear whether that was because Mr Tarry had thought better of it, or whether it had resulted from Mr Tarry suffering from some confusion.

[32] It seems to me, therefore, that on the evidence as the Judge identified it and on the possibilities as he saw them, he cannot have been convinced to the balance of probabilities that there had been a failure to elect a blood test. Or, to put that conversely, on the evidence there had to be an issue whether the right had been sufficiently conveyed.

[33] In contrast to the Judge I conclude that the officer should not have taken so literally Mr Tarry’s failure to respond to her question, whether he wished blood taken. This was the second instance on which he had raised the issue with her. She should then have brought home to him that he had one chance to request blood to be taken. That he had to make that request within the 10 minute period. That he had still whatever minutes remained within which to make it. And that if he did not he would have to accept the conclusive effect of the evidential breath test result.

[34] The right to have blood taken is the safeguard for the motorist in the face of the conclusive presumption on which these convictions rest ultimately. It is a right that must be unambiguously conveyed and declined before the presumption can

_{safely be allowed its effect. The conviction will be quashed.}

P.J. Keane J

---

[1] Police v Tarry DC Tauranga CRI-2010-070-008291, 30 May 2011.
[2] _{R v Gallagher CA387/90 18 March 1991.}
[3] Neiman v Police HC Wellington CRI 2006-485-125 14 February 2007, Simon France J.

[4] Dunbar v R, DC Rotorua CRI-2011-463-000004 28 April 2011, Woolford J.