Little v Police HC Auckland CRI-2011-404-000187 [2011] NZHC 1306 (5 July 2011)

2011, the appellant was convicted of driving a motor vehicle on a road while the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per

100 millilitres of blood in that it was 114 milligrams of alcohol per 100 millilitres of blood. He was ordered to pay Court costs of $132.89 and disqualified from holding or obtaining a driver’s licence for six months.

(a) The information charged a drink/drive offence committed on Kaipatiki Road and the evidence disclosed one committed on Beach Haven Road;

(b) The District Court Judge asked a question to link the appellant to the offence and helped establish identity; and

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[3] As to the first ground of appeal, the appellant refers to the case of Chignell and Walker v R[1] as authority for the proposition that the scene of crime must be proved beyond reasonable doubt. In Chignell and Walker, the victim could have died either in Auckland or Taupo and the Court of Appeal said that the jury should have been directed that before convicting the appellants it had to be unanimous, not only that murder had occurred, but where it had occurred.

[4] The appellant submits that Kaipatiki Road is a different crime scene from Beach Haven Road and the District Court Judge either had to amend the charge or dismiss it. The essence of the defence submission to the District Court Judge was

_{the prosecution could only seek an amendment to Beach Haven Road if it
had a good}

faith belief that the offence occurred on Beach Haven Road. In the face of that challenge from the defence, the prosecution did not seek an amendment of the information. Hence, it would be wrong for the District Court Judge to amend the charge to a fiction if the prosecution case was still that the event occurred in Kaipatiki Road and their witness had simply misspoken.

[5] As to the second ground of appeal, the appellant submits that the only conceivable reason that the District Court Judge asked the question that he did was that he was unsure of the identity of the defendant. In so doing, the District Court Judge filled a gap in the evidence which was not permissible.

[6] As to the third ground of appeal, the appellant points to the lack of any reference in the information or the notes of evidence to the occupation of the appellant as being retired. Notwithstanding that, the analyst’s certificate set out his name and address which details did accord with both the details on the information and the evidence as led in the District Court.

[7] As to the first ground of appeal, the Crown submits that the offence of driving with excess blood alcohol required proof that the appellant was driving a car on a road while he had excess blood alcohol. The prosecution was not required to prove that the appellant drove on a particular road, just that he drove on a road. Accordingly, given that the evidence of the enforcement officer was that the appellant was driving on Beach Haven Road, being a road, when he was stopped, the charge was proven.

[8] In any event, the Crown seeks the Court’s leave pursuant to s 119(3) Summary Proceedings Act 1957 to amend the information that is the subject of the appeal by deleting the words “namely Kaipatiki Road” and replacing them with “namely a road in Beach Haven.”

[9] Section 204 Summary Proceedings Act 1957 operates to prevent any appeal by reason of defect, irregularity, omission or want of form, unless there was a miscarriage of justice. The Crown submits that a miscarriage of justice does not

arise if the information is amended as sought given the prosecution proved that the appellant had driven on a road while he had excess blood alcohol.

[10] As to the second ground of appeal, the Crown accepts that the District Court Judge asked the enforcement officer to whom his evidence related and that the enforcement officer confirmed that he was speaking of the appellant. However, the Crown notes that the question occurred at the end of the hearing and that the enforcement officer had already identified the appellant as Brian Little and that he was the defendant present in Court at the time of the hearing. The Crown therefore submits that the question posed by the District Court Judge was merely one of clarification and not a question to fill a vacuum in the evidence given the prior evidence of the enforcement officer.

[11] As to the third ground of appeal, the respondent does not concede that there is a lack of evidence, that the person named in the analyst’s certificate is the appellant and there is no admissible evidence as to the appellant’s name, address and occupation such as to enable the presumption in s 76 Land Transport Act to operate.

[12] The notes of evidence record that the enforcement officer gave evidence that the appellant was named in the analyst’s certificate, which recorded the appellant’s name and address. The enforcement officer had earlier given evidence that the same named individual was the defendant who was present in Court for the purposes of the defended hearing. Accordingly, the Crown submits that s 76 Land Transport Act

[13] The Court of Appeal laid down in Queen v Livingston[2] the four elements that have to be proved for an offence against s 56(1) Land Transport Act which equally applies to s 56(2).

[14] The Supreme Court in Aylwin v Police[3] has more recently held that essentially all that the prosecution has to prove for a charge under s 56(1) (and in effect s 56(2)) is:

(a) The fact that a breath screening test was conducted; (b) The fact that an evidential breath test was conducted; (c) The results of these tests; and

[15] The Supreme Court directed all Courts to give full effect to s 64(2) to (5) of the Act:[4]

Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences. The Courts must give full effect to that clear Parliamentary indication.

[16] As to the place where the offence took place, the information does allege that the driving occurred on a road particularised as Kaipatiki Road. In evidence the enforcement officer initially said that he was conducting a police check point on Beach Haven Road. Later in the hearing in response to a specific question about the

road he was on when he conducted the check point, the enforcement officer replied:[5]

It’s where Kaipatiki meets Beachhaven, just on the straight – I believe it is

[17] The issue was raised in the District Court and Judge Johnson ruled that no amendment was necessary given that the offence had been proven – the appellant

[18] As noted above the appellant relies on Chignell and Walker. The case of Chignell and Walker can however be distinguished on the basis that it involved charges of murder. It was essential in that case that the jury’s mind be directed to the issues of the act or acts causative of death, and the persons responsible as well as their intent at the time of the victim’s death. That is why the issue of where the crime occurred was so integral as to whether the offence was committed and by whom.

[19] This is in my view quite different thing to a Judge alone defended hearing in respect of driving with excess blood alcohol. Proof of the exact road on which a driver was stopped is not essential for the charge to be proven as long as it was proven that the appellant was driving on a road within the meaning of s 2 Land Transport Act 1998.

[20] I agree with the Crown that the description of the road is Kaipatiki Road is a particular and need not be proved by the prosecution. If need be, I would have given leave under s 119(3) Summary Proceedings Act 1957 to amend the information by deleting the words “namely Kaipatiki Road” and replacing them with “namely a road in Beach Haven” but in my view, that is unnecessary in all the circumstances.

[21] As to the second ground of appeal, it is my opinion that the intervention by the District Court Judge was unremarkable. The appellant had already been conclusively identified in evidence by the enforcement officer. The following

	Q.	Just pause there, the driver you were dealing with, did he give you a name?
	A.	Ah yes on the roadside he gave his full name, Brian Little, who I identify as the defendant before the Court today.
[22]	Not	only was the appellant specifically identified at that stage, the

enforcement officer referred to the defendant or Mr Little throughout the remainder of his evidence. The case of Keatley v Police[7] relied upon by the appellant does not

_{apply in these circumstances. Here the enforcement officer had already
identified}

the appellant prior to the District Court Judge clarifying the issue by asking a non- leading question as to whom all of his evidence related to. There was no vacuum in the evidence prior to the District Court Judge asking the question of the enforcement officer.

[23] Finally, as to the third ground of appeal, the enforcement officer gave evidence that he received an analyst’s certificate advising him of the result of a blood test and that the name on the certificate was Brian Little of 38A Cresta Avenue, Beach Haven.

[24] Although s 76 Land Transport Act 1998 provides that in proceedings for an offence against the Act it is to be presumed, in the absence of evidence to the contrary, that if a certificate names a person having the same name, address and occupation as the defendant as the person from whom the specimen of blood was taken, the specimen was taken from the defendant. In this case, the information did not disclose an occupation for Mr Little. He did not, however, have an occupation being retired. His date of birth was clearly set out on the information as 7 April 1946 which made him 65 years old. In any event, even without the presumption, the District Court Judge was able to draw the conclusion that the analyst’s certificate did refer to the appellant. This was a point not taken during the hearing and so the Judge did not rule on that aspect in the Lower Court.

[26] The period of disqualification, at the specific request of Mr Mitchell, will start tomorrow, being 6 July 2011.

[2] [2001] 1 NZLR 167.
[3] _{[2008]
NZSC 113 at
[14].}
[4] _[17].
[5] NOE p 15 line 1-2.
[6] _{NOE p 5
lines 9-10.}
[7] HC Auckland, 3 February 1989, Robertson J.

High Court of New Zealand Decisions

Little v Police HC Auckland CRI-2011-404-000187 [2011] NZHC 1306 (5 July 2011)