Drew v Police [2012] NZHC 1009 (14 May 2012)

Last Updated: 25 May 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000017 [2012] NZHC 1009

BETWEEN RORY CAPSTAN DREW Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 24 April 2012

Further submissions 1 May, 11 May 2012

Appearances: N Silich for Appellant

R Savage for Respondent

Judgment: 14 May 2012

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 14 May 2012 at 4.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: N Silich, Henderson, Auckland

Crown Solicitor, Auckland

DREW V NEW ZEALAND POLICE HC AK CRI-2012-404-000017 [14 May 2012]

Introduction

[1] The appellant was convicted on a charge of driving with excess breath alcohol following a defended hearing in the District Court at Auckland. Judge Burns fined the appellant $700 together with Court costs and disqualified him from holding or obtaining a driver’s licence for seven months.

[2] The appellant appeals against conviction. The disqualification was stayed until this appeal was heard and determined.

[3] The appeal is essentially based on Mr Drew’s complaint that the police failed to respond to his request for disclosure prior to the hearing and the way the Judge dealt with that failure at the hearing.

Facts

[4] At about 7.05 a.m. on 13 February 2011 the appellant was stopped at a breath alcohol check point. The appellant was driving his girlfriend to the airport. She was to leave New Zealand that morning. The appellant and his girlfriend had tried to make arrangements for her to travel to the airport by taxi but, because of time constraints about checking in for her flight, the appellant elected to drive her to the airport.

[5] The appellant accepted that he had consumed alcohol the preceding night and into the early hours of the morning. When the appellant was stopped at the checkpoint, the officer undertook the usual procedure of asking the appellant to state his name and address while the officer carried out a passive test (the sniffer test). The sniffer test detected alcohol on the appellant’s breath. The officer asked him to pull over onto the shoulder of the road. The appellant accepts that procedure took place.

[6] It is at this point the appellant’s evidence varies from that of the officer. The appellant says that he then got involved in helping his girlfriend to get a taxi to go to the airport and the officer did not carry out a breath screening test. A taxi driver had

apparently also been stopped at the checkpoint. The appellant was, he thought, ineligible to continue to drive so he arranged for the taxi driver to take his girlfriend to the airport. The appellant’s substantive defence to the charge was that the police had failed to follow the correct procedure because the officer had failed to administer a breath screening test after the sniffer test before requiring him to accompany the officer to a police station for an evidential breath test (the evidential test).

[7] The officer gave evidence that he did carry out a breath screening test on the appellant, that it returned a failed general test and that he then required the appellant to accompany him to the police station for an evidential breath test. The appellant was initially taken to the Ellerslie Police Station but it appears the evidential testing machine there was inoperable or unavailable. The appellant was then taken to the Auckland Central Police Station where an evidential breath test was administered. That disclosed a reading of 514 micrograms of alcohol per litre of breath, well in excess of the limit of 400.

[8] Before the hearing Mr Silich, counsel for the appellant, received the standard disclosure but requested further disclosure from the police in a faxed letter sent on 1

June 2011. The letter stated inter alia:

I have received a disclosure pack and require the following further information:

A certified true copy of any record and/or memory of any Breath Screening Device for the time period covering the Breath Screening Test of the Defendant.

Copies of any “log book” or “office book” or “field book” each and all or such other record kept by the prosecuting authority and relating to the Breath Screening Testing devices used in processing the Defendant.

[9] The police did not respond to the request. At the outset of the hearing Mr Silich made an application for the information to be dismissed on the grounds the police had breached their disclosure obligations. Counsel relied on the case of Allen

_{v Police.}[1]

[10] In an oral ruling Judge Burns rejected the application to dismiss the prosecution. The Judge considered the relevant provisions of the Criminal Disclosure Act 2008 and concluded that the appropriate response was to rule any copies of records and/or documents relating to the breath screening device together with any copies of log book, office book, or field book relating to the breath screening test device inadmissible.

[11] The prosecution case then proceeded. The Judge rejected the appellant’s evidence that a breath screening test had not been administered. He accepted the officer’s evidence on that issue. The Judge also considered and rejected the further argument that as the Mount Wellington Police Station was closer to the Ellerslie Police Station than the Auckland Central Police Station the evidential test should not be admissible as the delay in conducting the evidential test was not reasonable. The Judge held that it was reasonable for the officer to require the appellant to accompany him to the Auckland Central Police Station rather than the Mount Wellington Station in the circumstances.

The appeal

[12] The principal submission in support of the appeal was that the information should have been dismissed, in accordance with the decision of Allen v Police.

[13] Alternatively, Mr Silich submitted the Judge ought to have excluded all evidence relating to the breath screening procedures which would have led to dismissal of the prosecution.

[14] Finally, in interpreting the disclosure request as a reference to the breath screening test only (as opposed to also the evidential test) Mr Silich submitted the Judge was wrong.

[15] During the course of hearing the appeal on 24 April 2012 I indicated to counsel that I considered the information sought by the appellant was potentially relevant to the defence case. If there was a printout available from the breath screening test used at the roadside that recorded the time and date at which such test

was carried out and/or the results of the test then that could be a significant piece of evidence on the issue of whether or not any such tests had been carried out. In the case of Police v Gollop[2] an Alcotech AR1005 breath screening device had been used. It seemed from the discussion in that case that a printout from the machine was available although it was not clear what level of detail would have been disclosed by that printout.

[16] I adjourned the matter part-heard on the basis that counsel for the police agreed to obtain an affidavit from a senior officer in Road Transport Policing to confirm:

(a) the type of breath screening device used by the officer on the day in question;

(b) what printout or record was obtainable from such device, if any, that would disclose the date and/or time at which tests were administered and whether they were fail or pass or whatever other level of detail such printout from the machine’s memory might disclose; and

(c) whether, if generally such a printout of memory is available, it was still available in relation to that particular incident or not.

[17] Ms Savage has filed an affidavit from Michele Rama de la Cour, the Laboratory Standards Officer, Police Calibration Services. Officer de la Cour confirmed that the device used in the breath screening test of the appellant was a

Dräger 6510. It is now the only breath screening device approved for use by police

(Land Transport (Breath Tests) Notice 2009 SR 2009/386). Officer de la Cour says

that the Dräger 6510 does not provide nor is it capable of providing a printout of

breath screening tests undertaken on the device. It is not possible to download any

breath testing data from it.

[18] While the Dräger 6510 device keeps a simple numerical count of the total number of tests undertaken by it, that appears on its screen and cannot be

downloaded. The number of tests undertaken does not provide any further information. It is not possible to obtain the time and date that each test was conducted.

[19] The previous breath screening device used by police, the Alcotech AR 1005 (as referred to in Gollop v Police) did have some capability of retaining breath test data internally for a short period of time. However, to extract that information the device had to be taken out of service and sent to ESR for downloading, prior to the relevant data being overwritten by subsequent tests.

[20] Mr Silich accepts that evidence, but repeated his submission that the police failed to act on the disclosure request and so breached the Criminal Disclosure Act

2008. I infer he maintains the submission the appeal must be allowed on that basis.

[21] In light of Officer de la Cour’s evidence the principal ground of appeal cannot succeed. In Allen v Police, the police failure to comply with a pre-trial request to discover calibration and certification details of the device was found to be a breach of s 24(a) of the New Zealand Bill of Rights Act 1990. Fundamental to Giles J’s reasoning was that the information was available to the police but was withheld from the appellant. In the present case the short point is that there was no record or any log book, office book, or field book relating to the breath screening testing device used in processing the defendant. The failure to respond to the request and advise the applicant of that fact can have had no prejudicial effect on the appellant. The police cannot provide information they do not hold.

[22] The case of Allen v Police does not have any application on the facts of this particular case. I leave for another day whether that case survives the introduction s 30 of the Criminal Disclosure Act and particularly in light of the sanctions under s 34(4).

[23] Next, s 15(1) of the Criminal Disclosure Act 2008 applies:

15. Prosecutor not required to record information or to obtain information for sole purpose of disclosure

(1) Nothing in this Act requires a prosecutor to disclose information if, at the time a disclosure obligation would, but for this section, arise or at the time a request for disclosure is made, as the case may be,—

(a) the prosecutor is not in possession or control of that information; or

(b) the prosecutor does not hold the information in recorded form.

(2) Nothing in this section limits section 13(5).

[24] The information the appellant sought was not held by the police in any recorded form. Section 13(5), as referred in s 15(2) does not apply because at no time did the information come into the possession or control of the police.

[25] The appellant’s next argument that under s 34(1) of the Criminal Disclosure Act the Judge should have excluded all of the evidence relating to the breath screening test must fail because the evidence of the officer that the breath screening test had been carried out was not based on information that was not disclosed to the appellant. The officer’s evidence was not based on any printout or record from the breath screening test other than the note on the screen of the breath screening test as to the record of fail and the officer’s notes which would have been disclosed in the disclosure pack.

[26] The present case then turns on whether the Judge was right to conclude that the charge was proved beyond reasonable doubt and that the proper process was followed in that the officer carried out a breath screening test following the sniffer test before the appellant was required to accompany for an evidential breath test. The officer gave evidence to that effect. The appellant’s evidence was contrary to that. The Judge accepted the officer’s evidence.

[27] The Judge heard and saw the witnesses. The credibility and reliability of the appellant and the officer was determinative of that issue. The officer was on duty, had the benefit of his notes and had no personal interest in the matter. On the other hand the appellant had been drinking the night before, and given the level of alcohol in his system, was still affected by alcohol. He was also undoubtedly stressed at the time having been stopped on the way to the airport, when he had decided to drive

because of the pressures to get his girlfriend to the airport on time. The appellant would have been distracted by the need to arrange alternative transport for his girlfriend to the airport. The Judge was quite entitled to prefer the officer’s evidence to find the officer had followed the correct procedures: see Austin, Nichols & Co Inc v Stichting Lodestar:[3]

[13] ... The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important. Such caution when facts found by the trial judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd and Rangatira Ltd v Commissioner of Inland Revenue.

[28] The last issue taken by the appellant was to challenge the Judge’s finding that the request for information was limited to information concerning the breath screening machine. Mr Silich argues that the second reference to breath screening testing devices was a reference to the evidential breath machine. That is not what the request said. In this area of the law the three distinct stages are well known – the initial sniffer test, the breath screening test and the evidential breath test. Each are quite separate and distinct stages as this case illustrates. The Judge was quite entitled to take the view that the reference to breath screening test was a reference to the breath screening test device rather than the evidential breath machine.

Result

[29] The appeal must fail. The appellant’s disqualification will apply from midnight on Wednesday 16 May 2012.

_{Venning J}

---

[1] Allen v Police [1999] 1 NZLR 356.

[2] Police v Gollop HC Wellington CRI-2006-091-000253, 16 April 2007.

[3] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 at [13].