Scott v Police [2012] NZHC 1655 (9 July 2012)

Last Updated: 16 August 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-128 [2012] NZHC 1655

BETWEEN GARY SHANE SCOTT Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 9 July 2012

Appearances: H Laubscher for the appellant

J Wall for the respondent

Judgment: 9 July 2012

ORAL JUDGMENT OF PRIESTLEY (Appeal against Conviction)

Counsel:

H Laubscher, Barrister, Greenhithe. Email: [e-mail]

_{J Wall, Crown Solicitors, Auckland. Email: [e-mail]}

SCOTT V NEW ZEALAND POLICE HC AK CRI-2012-404-128 [9 July 2012]

Introduction

[1] On 9 February 2012, at the conclusion of a defended hearing in the North Shore District Court, Judge N R Dawson convicted the appellant on a charge laid under s 56(1) of the Land Transport Act 1998. That charge was driving a motor vehicle with excess breath alcohol (748 micrograms), in a situation when the appellant had twice previously incurred the same conviction. The previous convictions, for which the appellant was disqualified from holding a driver’s licence, occurred over 20 years ago.

[2] The appellant challenges that conviction (there is no challenge to the disqualification subsequently imposed) on one narrow point.

Background

[3] The appellant was apprehended driving on the Whangaparaoa Peninsula in January 2011. The initial screening test suggested that he was driving having consumed alcohol. He was asked to accompany a police officer, Sergeant J R Roberts, to the nearest police station which was at Orewa. At the police station the appellant submitted to a breath screening test on a standard evidential breath testing device. The test gave a return of 748 micrograms of alcohol per litre of breath. The appellant did not request a blood test to which he had a statutory entitlement. The

748 micrograms of alcohol reading thus formed the basis of the subsequent prosecution.

Timing accuracies

[4] The point taken with clarity and tenacity by Mr Laubscher on this appeal was the identical point taken in the District Court before Judge Dawson. It was that the recorded times of Sergeant Roberts were unreliable. The unreliable time sequences recorded, submitted counsel, contaminated the relevant timelines. There could thus be no certainty that the statutory stand down period of 10 minutes between failure of

a breath test and exercise of the right to submit to a blood test had been properly

observed in the appellant’s case.

[5] It is thus necessary to scrutinise the basis on which this submission was made by the appellant. The times presented by Sergeant Roberts in evidence were as

_follows:

0120 Appellant stopped by patrol car.

0121 Appellant asked to accompany Sergeant Roberts to Orewa police station.

0128 Time recorded (at police station) when appellant received and

_{acknowledged his standard Bill of Rights Act cautions.}

0129 Evidential breath test result.

0131 Appellant informed of result and advised of 10 minute stand down period.

0134 Appellant signs (again at police station) acknowledgement of being

_{advised of his right to a blood test etc.}

0135 10 minute period commences (some six minutes after breath test

_failure).

_{0145 Appellant charged with offence.}

[6] There is no dispute by defence counsel with this chronology. Nor is it disputed that the normal and standard advice was given to the appellant at all appropriate stages. What is disputed, however, is the accuracy of the time of the journey in the police vehicle from where the appellant was stopped to the Orewa police station. This, on the above times, occupied seven minutes. In evidence Sergeant Roberts told the Court that when he recorded times he recorded the immediate past minute. There would thus be no distinction in his time recording

between (say) 0121 and 5 seconds and 0121 and 59 seconds. The police officer would round down rather than round up. Thus, on these times, the journey occupied seven minutes or at the most, making allowance for roundings, eight minutes.

[7] It was on this journey time that the appellant focused at the District Court hearing. The appellant retained for the purposes of the hearing a private investigator who, on three occasions at a similar hour of the morning, travelled from the intersection where the appellant was stopped to the Orewa police station. The elapsed time on each of these three journeys was similar, being between 10 minutes

20 seconds and 10½ minutes. There were three or four traffic lights en route which, given the vagaries of traffic signals, would add to or detract slightly from the journey time.

[8] There was some criticism of the investigator’s evidence by the Judge inasmuch as she failed to record a fourth traffic light. However, I do not consider anything hangs on that so far as the substantive defence was concerned.

[9] The distance to the Orewa police station was 7.9 kms. At a constant speed of

50 kph the journey would have taken approximately 9 minutes 29 seconds. At a constant speed of 60 kph the journey would have taken 7 minutes 54 seconds. To maintain a constant speed, of course, those speeds would have to be exceeded to make up for acceleration and deceleration phases etc. So, the point pressed with vigour by counsel in the District Court, was that Sergeant Roberts’ journey times must have been in error. Such error inevitably led, in the defence submission, to considerable doubt over the accuracy of the other times recorded by the police officer. Thus it could not be said with any certainty that the appellant was afforded his full 10 minute stand down time (to which he had a statutory entitlement) to consider whether or not to submit to a blood test.

Why does this matter?

[10] The importance of affording to drivers who are intoxicated the right to obtain a blood test has rightly been seen by the Supreme Court as a safeguard.[1] The word “safeguards” appears in the purpose s 3 of the Act, but there is no significant distinction between that word and the description of the right of election to have a blood test as providing “effective protection”.[2]

[11] The vagaries of breath tests will not provide as accurate a reading of driver’s alcohol impairment as will a blood test. The latter will assess the level of alcohol in the blood stream and will thus give some indication of a driver’s possible impairment. There are nice tactical considerations which sometimes need to be considered by drivers in this dilemma (assuming that they are sufficiently coherent to consider them), as to whether their blood alcohol levels may be rising or declining, particularly given that blood tests would normally be administered half an hour or more after apprehension.

[12] Mr Laubscher’s substantive point, although he did not put it in these terms, was that the right to elect a blood test is an important component of the relevant legislation. He accepts that whether or not the right of election was given must be something which the prosecution has to prove on the balance of probabilities. But in this case, given the prima facie difficulties presented by Sergeant Roberts’ times, there should have been sufficient doubt on the issue of whether that standard of proof had been reached.

District Court hearing

[13] As I have indicated, this defence issue was run by the appellant at the District Court hearing. On examination of the transcript it seems that the evidence which the defence called from the private investigator was not put to Sergeant Roberts. I

_{indicated to counsel (the point not having been raised previously), that this failure}

appeared to contravene the well known rule of Browne v Dunn.[3] Mr Laubscher submitted that the rule of Browne v Dunn did not apply here. First the police officer accepted in cross-examination he had no knowledge of the distance of the journey. Secondly the evidence of the private investigator did not relate to what occurred on the night of the appellant’s apprehension. For my part I consider the rule of Browne v Dunn applied and that, as a matter of fairness, when a court is being asked to regard the evidence of the witness as unreliable or not credible because contrary evidence will be called on the same point, it is preferable to put the contrary evidence to the witness whose evidence is going to be submitted to challenge. This is not done, as I have said, in this case. However, the matter does not seem to have deflected or troubled the Judge. At the end of the day Browne v Dunn is not a substantive rule relating to admissibility. Failure to put contesting evidence may lead to adverse conclusions as to the weight to be accorded to the evidence of one or other witness, and can also be the subject of adverse comment.

District Court decision

[14] In this case the Judge had a clear view. He concluded, having accurately set

out the substance of defence counsel’s submissions:

[11] I find that the evidence does not raise sufficient doubt about the timings recorded by Sergeant Roberts from his watch, and that there is not sufficient evidence that Mr Scott did not receive other than his full 10 minutes to consider a blood test.

[15] For my part, I consider there could be a number of reasons why the journey times recorded by Sergeant Roberts are questionable. The first might be that in the early hours of that morning he travelled the route at a consistent mean speed of 60 kph and was not delayed by traffic lights. A second explanation may be that one of the times recorded was recorded in error.

[16] The police officer was the sole police officer in the car. As carefully elicited in cross-examination by counsel, the final approach to Orewa police station requires a considerable reduction in speed, negotiation of an access gate, and the logistical

_{task of getting a suspect out of the police car and into the police station. What,}

however, is critical so far as the times are concerned is whether the appellant was accorded his 10 minute stand down period. Of this, on the basis of times, there can be no doubt. If anything the appellant was given a period of somewhat over 10 minutes if one takes as the start point his breath alcohol failure rather than the signing of the acknowledgment form.

[17] Additionally it is always open to a court to accept as credible or reliable parts of the evidence of a witness but not to accept other parts. The focus here was on the

10 minute period. I consider the Judge was justified in concluding that the appellant had indeed been accorded his statutory 10 minute entitlement, regardless of any difficulties there may have been in the accuracy of recording the start time and finish time of the journey to the Orewa police station.

[18] I also record Mr Laubscher’s very proper concession (which he repeated in his analysis of Browne v Dunn) that his submissions were not an attack on the credibility of what was clearly an experienced police officer. His attack related solely to issues of reliability.

Result

[19] The Judge correctly set out and considered the one defence point raised. He obviously did not consider the competing evidence on the journey time raised sufficient “doubt” about the times recorded so far as the 10 minute stand down period was concerned. As he said (supra [14]) there was “not sufficient evidence” that the appellant “did not receive anything other than the full 10 minutes to consider his position”. Indeed there was no evidence that the 10 minute period was not provided.

[20] It thus follows that the appellant was correctly convicted. I can find no fault with the reasoning process of the Judge. That process was consistent with the evidence before him. Accordingly the appeal is dismissed.

..........................................
Priestley J

---

[1] _{Aylwin v Police [2008] NZSC 113; [2009] 2 NZLR 1.}

[2] Ibid at [11].

[3] Browne v Dunn (1894) 6 R. 67 (HL).