Chang v Police HC Christchurch CRI-2011-409-000106 [2011] NZHC 2039 (13 December 2011)

Last Updated: 14 February 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CRI-2011-409-000106}

HSIANG-LING CHANG

v

POLICE

Hearing: 17 November 2011

Appearances: P J Doody for Appellant

N M Robson for Respondent

Judgment: 13 December 2011

_{RESERVED JUDGMENT OF HON JUSTICE FRENCH}

Introduction

[1] Ms Chang was charged with careless use of a motor vehicle and driving while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle.

[2] She pleaded guilty to the careless use charge, but defended the charge under s 58(1)(a) of the Land Transport Act 1998 of driving while incapacitated.

[3] Following a defended hearing, a District Court Judge found the charge proved. The Judge disqualified Ms Chang from driving for six months, and fined her

$700 plus Court costs.

_{[4] Ms Chang now appeals the conviction for driving while incapacitated.}

CHANG V POLICE HC CHCH CRI-2011-409-000106 13 December 2011

Factual background

[5] The charges arose out of an accident which occurred in the early hours of 15

May 2010. Ms Chang drove into the back of a stationary vehicle that was part of a line of traffic stopped at a police checkpoint.

[6] At the hearing, the prosecution called two witnesses, Mrs Kaisser and a police officer, Senior Constable Smith, who was on duty that night at the checkpoint.

[7] Mrs Kaisser was the owner of the stationary vehicle. She testified that after the crash, Ms Chang and Ms Chang‟s friend came up to her, both laughing. Ms Chang‟s breath smelt “a wee bit” of alcohol and she was unsteady on her feet. When asked if she had noticed any injuries, Mrs Kaisser stated that Ms Chang had a mark on her forehead. Ms Chang said to Mrs Kaisser, “no worries, I'm insured”.

[8] Senior Constable Smith was a police officer with 26 years‟ experience in road policing. He was trained in assessing alcohol impairment. He did not actually see the crash, but heard a screech of brakes and then approached the vehicles involved. He said Ms Chang was smiling, and “very very unsteady” on her feet. Her speech was slurred and she lacked co-ordination. She was unable to turn the car stereo off, despite several attempts. She smelt strongly of alcohol, as did her car.

[9] He required Ms Chang to undergo a breath screening test. However, she was unable to put her lips to the mouthpiece, blowing from a distance of approximately

200 millimetres. He then required her to accompany him to the police station for an evidential breath test, blood test or both. She appeared unable to understand. He could not understand her speech, as she was incoherent. He called for a Chinese- speaking officer who arrived, and who spoke for about ten minutes to Ms Chang. Ms Chang was vomiting on the side of the road.

[10] Senior Constable Smith testified that he also spoke to Ms Chang‟s friend, who told him Ms Chang had consumed a bottle of wine. Ms Chang and her boyfriend had split up and she was upset.

[11] In Constable Smith‟s mind, the bottle of wine explained the vomiting. After observing Ms Chang vomiting for twenty minutes on the roadside, he released her into the care of her friend, with a suggestion they should possibly go to the emergency department at the hospital.

[12] Constable Smith did not see any mark on Ms Chang‟s forehead, and accepted

that if he had seen it, he might have handled the matter differently.

[13] Sometime later, he attended at Ms Chang‟s workplace to advise her of the charges. During the course of their conversation, he asked her how much alcohol she had consumed that night and she told him that she had consumed a bottle of wine prior to driving.

[14] The allegation that she had consumed a bottle of wine was disputed by Ms Chang, who also gave evidence. She claimed that she had only consumed one glass of wine and half a bottle of beer before driving.

[15] Ms Chang further testified that she continued to feel unwell for several days after the accident, with dizziness, ongoing headaches, blurred vision, continued vomiting and nausea. She consulted a doctor on four separate occasions. The doctor‟s written evidence was admitted by consent. He confirmed that Ms Chang presented with a contusion to the forehead, and that her symptoms were likely to be the result of concussion sustained due to hitting her head in the accident.

[16] As regards Senior Constable Smith‟s visit to the workplace, Ms Chang said she could not recall his questions, but that she felt nervous and scared and that her English was not good.

[17] The defence also called evidence from Ms Chang‟s friend, a Ms Yung Hua. She testified that both she and Ms Chang only drank one glass of wine each that night and half a bottle of beer. She also stated that this was what she had told Senior Constable Smith at the roadside.

The Judge’s decision

[18] In her decision, the Judge identified the elements of the offence which the police were required to prove beyond reasonable doubt:

[2] ... The first is that she was driving a motor vehicle. In fact that is not in dispute. The second is the one that is in dispute and that is whether or not she was under the influence of drink. The third element which is required to be proved beyond a reasonable doubt is the extent of alcohol that she had consumed rendered her incapable of having proper control of that vehicle. I do not see the third element as being contested if the second element is proved beyond a reasonable doubt.

[19] The Judge then summarised the evidence. She noted the defence case was that Ms Chang‟s observed demeanour on the night was not as a result of alcohol impairment, but the result of concussion.

[20] The Judge went on to say that “the biggest problem” Ms Chang had was the unchallenged evidence of Mrs Kaisser and Senior Constable Smith about the very strong smell of alcohol emanating from Ms Chang and her car, which the Judge said was inconsistent with Ms Chang having only consumed one glass of wine and half a bottle of beer. The Judge did not accept the defence evidence on that point, and stated that where there were issues of credibility, she preferred the evidence of Mrs Kaisser and Senior Constable Smith.

[21] In finding the charge proved, the Judge accepted that some of Ms Chang‟s symptoms may have been contributed to by the contusion. However, the Judge was satisfied that at the time of the collision Ms Chang was heavily under the influence of alcohol and that had been the catalyst for the accident, Ms Chang being at that point incapable of driving her vehicle in the normal manner. Ms Chang was travelling too fast and did not see the vehicle stopped in front of her. The concussion was the result of the accident, not its cause.

Grounds of appeal

[22] Counsel, Mr Doody, advanced two main grounds of appeal:

(i) That as a matter of law, the police could only resort to the offence under s58(1)(a) if, having initiated testing procedures, there was some legitimate reason to abort them. On the evidence, the police did not have a legitimate reason.

(ii) The Judge erred in her analysis of the evidence and placed disproportionate weight on testimony that was either unreliable or inadmissible. The existence of a plausible alternative explanation for Ms Chang‟s appearance and behaviour meant there must be a reasonable doubt about

_capacity.

Discussion

Did the police have a legitimate reason to abort testing procedures?

[23] The offence under s 58(1)(a) is often described as “the traditional offence” to

distinguish it from charges laid under the breath/blood testing regime.

[24] It was common ground that so long as there is a legitimate reason, the police are entitled to rely on s 58(1)(a) rather than the testing regime offences.[1]

[25] It was also common ground that a police officer may opt for a charge under s 58(1)(a), even though they may have initiated but then aborted testing procedures.[2]

[26] Where counsel disagreed was whether, on the facts of this case, there was a legitimate reason, an issue which does not appear to have been addressed by the District Court Judge.

[27] Mr Doody contended there were inconsistencies in the police evidence as to why they decided to rely on the traditional offence. He pointed out that at one part of his evidence, Senior Constable Smith stated he had “sort of made up his mind”

_{that the police station would be the best place to go because if Ms Chang continued}

to vomit, she may need some medical assistance, yet when the vomiting did continue, rather than take her to the police station, he sent her home in her friend‟s car. Mr Doody submitted there was no satisfactory explanation as to why, if Ms Chang was considered fit to go home in her friend‟s car, was she not fit to go to the police station. The decision to send her home was highly prejudicial because it meant she was denied the opportunity to have her capacity and head injury professionally assessed.

[28] It is clear from the evidence that at the point Senior Constable Smith sent Ms Chang home, he had decided not to continue with the evidential breath test procedures, and by implication any charge under that regime. It is also clear from his evidence as a whole that the reason for this decision was because of what had become by then an exceptionally prolonged period of vomiting, and the difficulties of transporting her in that state in a police vehicle. Read in that light, there is no necessary inconsistency in the evidence. The officer said he had never seen vomiting like it in all his experience.

[29] In my view, prolonged vomiting does constitute a legitimate reason, and I am satisfied on the evidence it was a decision made in good faith.

[30] I should add there is no legal requirement that incapacity to drive must be certified by a medical practitioner. The assessment of an experienced police officer, even if based solely on their observations, may be sufficient.

Did the Judge err in her analysis of the evidence

[31] It was common ground the Judge had over-stated Mrs Kaisser‟s evidence about Ms Chang smelling of alcohol. Mrs Kaisser did not say that Ms Chang‟s breath smelt strongly of alcohol. Rather, what she said was that Ms Chang‟s breath smelt “a wee bit of alcohol so I would think she was intoxicated, how much I can‟t tell.”

[32] It was also common ground that, had an application been made, Senior Constable Smith‟s evidence about Ms Chang admitting to having consumed a bottle of wine would have been excluded on the grounds of being unfairly obtained. Senior

Constable Smith did not administer a Bill of Rights caution and English was not Ms Chang‟s first language. Senior Constable Smith knew there were language difficulties from his roadside encounter. He had himself called for an interpreter.

[33] As regards the evidence of the friend saying Ms Chang had consumed a bottle of wine, Mr Doody accepted that evidence was admissible. It was not hearsay, as defined by the Evidence Act 2006, because the friend was a witness. However, Mr Doody submitted the evidence was unreliable. Despite it being a significant statement, the officer had made no note of it and there were also language difficulties, as evidenced by the friend needing an interpreter at the hearing. There could easily have been confusion between the words „glass‟ and „bottle‟.

[34] Ms Robson, for the Crown, acknowledged the difficulties, but submitted that the Judge had not relied on the testimony about consumption of a bottle of wine.

[35] I do not accept that submission. In my view, as the decision and indeed the sentencing notes make clear, that evidence was critical to the Judge‟s reasoning. The Judge had to be satisfied Ms Chang was intoxicated to the point of incapacity.

[36] On the other hand, I also do not accept Mr Doody‟s submission that the evidence of the friend‟s roadside statement should be afforded little or no weight. What makes that evidence credible, in my view, is that it included a reason as to why Ms Chang had uncharacteristically drunk so much that night, namely that she had just split up with her boyfriend. That Ms Chang did not usually drink much alcohol and had indeed split from her boyfriend that night, was something Senior Constable Smith could not have known unless he had been told by the friend. Obviously, too, the giving of a reason for uncharacteristically excessive drinking means there could not have been language confusion between a glass and a bottle.

[37] On appeal, I am required to review the evidence independently, bearing in mind when it comes to credibility issues that the trial Judge has had the benefit of seeing and hearing the witnesses.

[38] I accept it is reasonably possible that the slurred and incoherent speech, the vomiting, the unsteadiness on the feet, and the lack of coordination were all attributable to concussion. I therefore put them to one side.

[39] However, neither one glass of wine nor concussion would explain the strong smell of alcohol coming from the vehicle and from Ms Chang‟s breath. The testimony of Senior Constable Smith on that point was not challenged. Nor, as the Judge pointed out, does concussion explain the accident itself. Mr Doody was critical of the Judge‟s finding that Ms Chang was driving too fast. He submitted there was no evidence of this presented during the hearing.

[40] However, that is not correct. The friend, who said she was travelling immediately behind Ms Chang in another vehicle, did witness the accident. She gives a description which is capable of supporting an inference that Ms Chang attempted to barge her way into an intersection as she turned right, and was speeding.

[41] In my view, the nature of the accident, combined with evidence of the strong smell of alcohol, the consumption of a bottle of wine, and the fact that Ms Chang was of small stature and not used to drinking alcohol constitute sufficient proof of the charge beyond reasonable doubt.

[42] It follows that, in my judgment, appellate intervention is not warranted. [43] The appeal is accordingly dismissed, and the conviction confirmed.

Solicitors:

P J Doody, Christchurch

Crown Solicitor‟s Office, Christchurch

---

[1] _{Hedges v Police HC Auckland CRI-2008-404-000172, 23 September 2008.}
[2] McAuley v Police HC Hamilton AP9/97, 11 July 1997.