Smith v Police [2012] NZHC 1112 (24 May 2012)

Last Updated: 20 December 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000216 [2012] NZHC 1112

HIMIONA JAMES SMITH

Appellant

v

POLICE

_Respondent

Hearing: (On Papers)

Counsel: K Harding for Appellant

Z Johnston for Respondent

Judgment: 24 May 2012

_{JUDGMENT OF WHATA J}

This judgment was delivered by Justice Whata on

24 May 2012 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_Date:

SMITH V POLICE HC AK CRI 2011-404-000216 [24 May 2012]

[1] This is a longstanding matter. For various reasons the appeal has taken nearly one year to resolve. Initially counsel had to file submissions for the appeal hearing in August 2011 without the benefit of notes of evidence because they were not made available to counsel in order to meet the filing deadline. Subsequently, it was established there was in fact no transcript of the notes of evidence, no judgment and the Judge did not keep his own notes. Various exhibits were available and were filed by the appellant.

[2] Mr Smith was charged and convicted for excess breath alcohol. The main issue at the first hearing was whether Mr Smith was afforded the mandatory ten minute period to consider whether to give a blood sample. The police record, signed by Mr Smith and the police officer, Constable Burns, states that Mr Smith was asked to consider taking a blood sample at 1908 and that the period for consideration finished at 1910. If that record was correct, the statutory minimum was not complied with and the evidential breath test was not admissible. It appears that the District Court accepted Constable Burns’ evidence that the period expired at 1920. Mr Smith appealed the conviction.

[3] The critical issue before me at that August hearing was whether I could hear the appeal without the notes of evidence. At that stage I was not prepared to resolve the matter and sought some assistance from the District Court as to the background, if any, that it may have on this matter that might shed some light on the position. It transpires that the District Court has no record or recollection of the matter. That is hardly surprising given the time that had elapsed and the absence of any transcript or notes of evidence.

[4] To compound the delay, my minute of 30 November 2011 was not sent to counsel until 27 February 2012. In that minute I indicated the following:

In those circumstances, I am minded to set aside the conviction and determine the matter on the basis of the information before me. Documentary evidence is one way and the best evidence is that the appellant was afforded only two minutes rather than the mandatory ten minutes for the purposes of undergoing a blood test.

As I indicated in my previous judgment, I am not minded to rehear the Constable’s evidence and it is likely that the lapse of time would cause difficulties for the Constable in any event.

[5] The respondent replied to my minute in a memorandum dated 1 March 2012. Counsel for the appellant was then unable, for good reason, to respond to my minute in March. I received the appellant counsel’s memorandum on 17 April 2012.

Respondent’s position

[6] The respondent considered that there were only four options available to me: (a) Option 1: For the appeal to be determined on the basis of the

evidence that both counsel agree was given in the District Court;

(b) Option 2: Exercise a discretion to rehear the evidence of Constable Burns in the High Court (as provided for by s 119(2) of the Summary Proceedings Act 1957);

(c) Option 3: Set the conviction aside and order a rehearing;

(d) Option 4: Set the conviction aside and decline to order a rehearing.

[7] The respondent, however, did not consider that it was open to me to determine the appeal on the basis of the documentary evidence alone. Further, the respondent contends that it is contrary to the interests of justice for me to set the conviction aside and decline to order a rehearing.

[8] Moreover, the respondent maintains that the most appropriate course is to determine the appeal on the basis of the evidence that both counsel agree was given at the District Court.

[9] More specifically, the respondent says that in the present case it is clearly accepted by the appellant that a veracity and accuracy finding was made in the District Court. That is the sole focus of the appeal.

[10] The relevant information before this Court is then said to be:

(a) Judge Field heard evidence that:

(i) It was the usual practice of Constable Burns to give

12 minutes;

(ii) Constable Burns had processed approximately ten EBA

defendants previously;

(iii) Constable Burns stated that he had noted the ten minute period ending at 19:10 hours when it had been 19:20 hours;

(iv) Constable Burns recorded time from his cellphone rather than a watch.

(b) In reaching his conclusion, Judge Field:

(i) Noted that Constable Burns’ paperwork “left something to

be desired”;

(ii) Noted that the procedure sheet recorded the ten minute period from 19:08 to 19:10;

(iii) Gave weight to the fact that Constable Burns admitted he made errors in the procedure forms;

(iv) Made an assessment of the sincerity of Constable Burns; (v) Concluded that the ten minute period had been provided.

[11] The respondent also says that I can rely on the account given by the

appellant’s counsel of what occurred – including:

(a) “His Honour Judge Field convicted the Appellant on the basis that his Honour accepted the oral evidence of Constable Burns that he made a mistake in his paperwork but that he really did give the Appellant 12 minutes”. (para 4.8)

(b) “Constable Burns said in evidence that it was his practice that he would give a suspect 12 minutes to consider whether to have a blood test.” (para 4.10)

(c) “His Honour said he was satisfied that Constable Burns gave Appellant a [sic] least 10 minutes stating that he reached this decision giving weight to the fact that Constable Burns had admitted he did make errors in the procedure forms.” (para 4.19)

(d) “His Honour accepted Constable Burns’ verbal evidence correcting his written contemporaneous notes...” (para 4.20)

[12] In these circumstances the general thrust of the respondent’s submission is that there is nothing overtly wrong with Judge Field’s conclusion on the evidence, Constable Burns’ account can be accepted and that a ten minute period had elapsed.

Assessment

[13] My jurisdiction on appeal is now reasonably well settled in light of Austin Nichols.[1] I may allow an appeal if I am of the view that the decision was wrong. There is no need for undue deference on questions of fact and I may reach a different conclusion to the Judge. However, I may, if relevant, take into account the advantages that a trial Judge has in the assessment of credibility.

[14] I also accept that this Court may proceed to determine an appeal without a transcript of notes of the hearing, as happened in Lau v Ogle[2] and in Kelly v Police.[3]

[15] The difficulty in this case is that, unlike the position in Lau and Kelly,[4] there is no transcript or other notes of evidence or even a judgment, and Judge Field understandably has no meaningful recollection of what occurred and why. Accordingly I am not in a position in my appellate jurisdiction to test whether the conclusions made by the Judge were properly available to him. With respect to the careful submissions of counsel for the respondent, whether Judge Field’s conclusions were reasonably held is now simply a matter of conjecture. I also firmly reject the suggestion I should simply rely on the recollections of counsel. It would be dangerous to place weight on evidence from counsel except perhaps in the most benign of circumstances. But it cannot be right to rely on evidence from counsel in the context of a criminal trial or appeal where the guilt of an accused is directly in issue. Not only are counsel advocates and palpably conflicted; as Ms Harding submits, memory fades and the passage of time since the first hearing has been substantial. Important evidence, concessions, observations or findings may have been long forgotten or misinterpreted.

[16] By contrast, the note signed by both Mr Smith and Constable Burns records that only two minutes had been afforded to the appellant to make a decision as to

_{whether or not to give a blood sample. The admissibility of the note is not}

challenged. It is a contemporaneous account of the time afforded to Mr Smith. Accordingly, there is a sound evidential basis for a finding that only two not ten minutes were given to Mr Smith to make a decision (and nothing properly before me to contradict such a finding).

[17] I then overlay these facts with the overt policy of s 77(3), namely to secure the procedural and substantive right of persons subject to an evidential breath to be given the opportunity to take a blood test and to be afforded ten minutes to make a decision to have a blood test. Emphasising the importance of the right, Parliament has declared that the result of an evidential breath test is inadmissible in circumstances where that right is not strictly observed.

[18] Against this background the appeal must succeed. The remaining issue is whether I should either hear the evidence said to contradict the police record, or refer this matter for retrial to the District Court or to quash the conviction.

[19] I have some sympathy for the position of the respondent in this case. Plainly the District Court was satisfied that Constable Burns afforded more than ten minutes to Mr Smith to make a decision about a blood test. There is also strong public safety policy underlying drink drive legislation that implores intolerance to drink drivers.[5]

But the genesis of the appeal lies with the police record. At best for Constable

Burns, it was sloppy, flawed work (as the Judge apparently found). At worst Mr Smith was deprived of a statutory right (as the police record attests). Two years have now elapsed since the evidential breath test was done. While I do not discount the possibility that Constable Burns has an unusually acute memory, there must be some real doubt now that we can possibly achieve the requisite accuracy to convict Mr Smith via a retrial.

[20] I am also cognisant that this matter has been locked into the judicial system for some time, and that the appellant has not been well served by it. And as

_{Cartwright J said in Lau v Ogle:}[6]

This is by no means the first time that judges in the District Court have been embarrassed by the fact that notes of evidence in cases heard by them have been obliterated or not recorded at all. The impact on the Courts, the litigants and on the public’s confidence in the justice system is significant. Where, as here, the Court is asked to remit a case to the District Court for re- hearing simply because of negligence or an oversight in the trial court, the impact extends even further. The time of both Courts is wasted and the witnesses are obligated to return to give their evidence again. It is therefore necessary to evaluate whether...this case should be remitted. ...

[21] Given all of the above, in my evaluation, the case should not be remitted or the evidence heard by me. The justice system has expended significant resource on this matter and overall, it would not be fair to Mr Smith to require him to litigate this still further. I am going to exercise my discretion to quash the conviction.

Result

[22] The appeal is allowed and the conviction is quashed.

Solicitors:

Karen Harding Law, Auckland, for Appellant

Meredith Connell, Auckland, for Respondent

---

[1] _{Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141}
[2] _{Lau v Ogle (1998) 12 PRNZ 547.}
[3] _{Kelly v Police HC Whangarei AP41/01, 23 August 2002.}

[4] In Lau, Cartwright J was given the briefs of evidence and meticulous notes of evidence taken by the trial judge. In Kelly, Heath J was given extensive notes of evidence and a carefully written judgment.

[5] _{Aylwin v Police [2008] NZSC 113 at [17].}

[6] Lau v Ogle (1998) 12 PRNZ 547 at 549.