Ching-Joyce v Police [2012] NZHC 1053 (17 May 2012)

Last Updated: 28 May 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000021 [2012] NZHC 1053

JAMES CHING-JOYCE

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 16 May 2012

Appearances: P N Dyhrberg for Appellant

K J Basire for Respondent

Judgment: 17 May 2012

_{ORAL JUDGMENT OF CHISHOLM J}

[1] Following a defended hearing in the District Court in Christchurch the appellant was found guilty of driving with excess breath alcohol.[1] The charge he faced had been laid in the aggravated form, that is to say it was alleged that he had been convicted at least twice previously.

[2] Mr Ching-Joyce appeals against that conviction. The appeal concerns the

10 minute period under s 77(3) of the Land Transport Act 1998 within which the suspect can decide whether or not to give a blood sample. It is alleged by Mr Ching- Joyce that this requirement was breached and the evidence of the positive evidential

_{breath test was inadmissible.}

CHING-JOYCE V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000021 [17 May 2012]

Facts

[3] During the early hours of 17 September 2010 the appellant was stopped by Acting Sergeant Crowther. Following a positive breath screening test he accompanied the officer to the Christchurch Police Station where he underwent an evidential breath test. That test produced a result of 715 micrograms of alcohol per litre of breath test.

[4] Having read the Advice of Positive Evidential Breath Test form to the appellant, the officer asked the appellant if he understood it, to which the appellant responded “yes”. The relevant form, which acknowledges that the enforcement officer had advised the appellant of “the matters set out above”, was signed by the appellant. It was produced as an exhibit..

[5] Amongst other things the form that was read to the appellant states:

If you do not within 10 minute 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.

The form continues “If you wish to undergo a blood test you must request one within

10 minutes”. According to the form the advice was given at 3 a.m. Then the officer gave the appellant his Bill of Rights which is timed at 3:10 a.m.

[6] Events from that point are best described in the officer’s own words:

The defendant signed the Advice of Positive Evidential Breath at 3:10 a.m. which I informed him was to start the 10 minute period. At the same time the defendant stated that he did not wish to have a blood test taken and just wanted to go. I then took the defendant through to an interview room where I left him. I then went out of his view to complete personal checks and fill in the required paperwork. At 3:30 a.m. I went back to the defendant and served him with a court summons and a traffic offence notice.

The officer went on to say that there was no request from the appellant for a blood test at 3:30 a.m.

[7] Under cross-examination by Mr Dyhrberg the officer acknowledged that after the appellant said that he wanted to go home he took him to the room in the police station, left him there, and then went on to complete his paperwork. He confirmed

that during that period he was out of sight of the appellant and that the next time he saw him was at 3:30 a.m. when he presented the summons to the appellant.

District Court decision

[8] As I understand it, Mr Dyhrberg’s primary argument in the District Court was that after Mr Ching-Joyce indicated that he did not want a blood test, the officer had unwittingly left the appellant with the impression that he could not change his mind within the 10 minute period that followed. On that basis the positive evidential breath test was inadmissible and there was no case against the appellant.

[9] After summising the evidence the Judge asked himself whether the 10 minute

period given to the appellant was “meaningful”.[2]

Was it in fact a period that allowed Mr Ching-Joyce to make a decision? Well the only evidence on that is what the sergeant says and what he says is upon the conclusion of the total Advice of Positive Evidential Breath Test form at 3:10 a.m. he then informed Mr Ching-Joyce the 10 minute period was to start then and then he left him alone for 20 minutes. He did not see him during the period, did not hear from him, did not talk to him and all he did was prepare the documentation because clearly he had had reasonable indication that that was the case was proceeding. Mr Ching-Joyce did not request blood.

The Judge concluded that there had been no breach of the 10 minute period and found the charge proved.

The arguments

[10] At the forefront of Mr Dyhrberg’s argument is the Court of Appeal decision in Auckland City Council v Haresnape.[3] That decision, submitted Mr Dyhrberg, establishes that if at first a person says that he does not wish to request a blood test, he can still change his mind within the 10 minutes and the officer must not give him the impression that he cannot do so. Counsel submitted that in this case the officer had unwittingly given the appellant such an impression by taking him into a room

out of sight of the officer, following which the officer completed forms on the assumption that no request would be made.

[11] Mr Dyhrberg also relied on the District Court decision, Police v Searancke.[4]

It involved a very similar factual situation, except that in that case the officer checked on the suspect from time to time during the 10 minute period and the officer, while not in the same room, was nevertheless within the view of the suspect. It was held that the officer had unwittingly given the impression to the defendant that he could not change his mind and the information was dismissed. According to Mr Dyhrberg this case is even stronger than Searancke.

[12] A failure of the officer to fill in some times on the form was also raised. There is, however, no challenge to the officer’s evidence as to times and I do not need to consider that point any further.

[13] In response, Ms Basire submitted that there was no evidential basis on which it could be concluded that the appellant had unwittingly given the impression that he could not change his mind. She noted that the appellant had clearly been given time to reflect on his decision and submitted that if he wished to change his mind he could have left the interview room and asked to see the sergeant or he could have told the police officer that he wanted a blood test when the officer returned to the room at

3:30 a.m. Ms Basire also noted that the appellant was no stranger to the procedure and suggested that the reasonable compliance provisions under s 64(2) could be applied.

Discussion

[14] The Court of Appeal decision in Haresnape arose from a situation where on being informed that the evidential breath test was positive Mr Haresnape declined a blood test and left the Auckland City Council Traffic Department offices almost immediately. He had not requested blood. Cooke J said:[5]

If at first a person says that he does not request a blood test he can still change his mind within 10 minutes. The officer must not give him the impression that he cannot do so: see Police v Wilson [1982] 1 NZLR 216. As long as he avoids giving that impression the officer need not expressly say that the person can still change his mind.

The conviction that had been set aside by the High Court was restored by the Court of Appeal. In my view that decision remains good law despite the statutory amendment that I now mention.

[15] In 2001 s 64(2) of the Land Transport Act was amended by (inter alia) adding s 77. Section 64 (2) now reads:

[2] It is no defence to proceedings for an offence that a provision forming part of section 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.

This section was applied by O’Regan J in Drury v Police[6] which also concerned the

10 minute period under s 77(3).

[16] I also note that the Supreme Court made the following observations in

Aylwyn v Police[7] at [17].

[17] Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable. The great majority of drivers comply with their obligations in this respect. A small minority do not. 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.

Those comments are particularly apposite because the Supreme Court had earlier noted[8] that the police could in that proceeding have invoked s 64(2) in relation to one

_{of the charges under consideration.}

[17] A good deal of Mr Dyhrberg’s argument revolved around Searancke. I am not bound by that decision, and I am not at all sure that it was correctly decided. I therefore decline to follow it and approach this appeal afresh.

[18] There is no question that in this case the appellant was given a full explanation about the 10 minute period which accorded with the Act. He would have known that he had 10 minutes to decide whether or not to request a blood test. I also keep in mind that the charge had been laid in the aggravated form from which it can be inferred that the appellant was not entirely foreign to this type of situation.

[19] When the appellant said that he did not wish to have a blood test, there was no obligation on the officer to expressly tell him he could change his mind. On the other hand, the officer was not permitted to give the appellant the impression that he could not do so. As Simon France J said with reference to the 10 minute period in Neiman v New Zealand Police,[9] “context is everything” when determining this type of issue.

[20] Here the appellant was fully informed about the 10 minute period. He knew that he had 10 minutes to make a decision. After the appellant provided his initial response that he did not want a blood test the officer did not say anything that could have left the appellant with the impression that the explanation about the 10 minute period that he had been given earlier ceased to apply.

[21] While it is true that the officer proceeded to work on his papers on the basis that the appellant was not going to elect to have a blood test, that was not known to the appellant. It could not therefore affect the situation. There was no need for the officer to keep on going into the room to see the appellant (as had happened in Searancke) because the appellant had the full 10 minutes to make up his mind.

[22] When the officer came back into the room after what seems to have been a generous 10 minutes the appellant could have asked for a blood test. He did not. Mr Dyhrberg suggested that the evidence indicates that the appellant did not have the

_{opportunity to do so. A touch of reality is required. I do not see any reason why the}

appellant could not have immediately indicated his request for a blood test as the officer entered the room.

[23] In the end result I agree with the Judge that the officer did not wittingly or unwittingly leave the appellant with the impression that he could not change his mind. Given that conclusion it is unnecessary to consider whether s 64(2) applied.

Result

[24] The appeal is dismissed.

Solicitors:

Peter Dyhrberg, [e-mail]

Raymond Donnelly & Co, Christchurch, [e-mail]

Solicitors:

---

[1] _{Police v Ching-Joyce District Court, Christchurch, CRI-2010-009-014146, 30 November 2011.}

[2] _{At [7].}

[3] Auckland City Council v Haresnape [1983] NZCA 23; [1983] NZLR 712 (CA).

[4] _{Police v Searancke [1999] DCR 1088.}

[5] At 713.
[6] _{Drury v Police HC AK, AP 48/03, 5 June 2003.}
[7] Aylwyn v Police [2008] NZSC 113.

[8] At [13].

[9] Neiman v New Zealand Police HC WN, CRI-2006-485-125, 14 February 2007.