McMullen v Police [2012] NZHC 2597; (2012) 2012) 25 CRNZ 817 (5 October 2012)

Last Updated: 17 October 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-000076 [2012] NZHC 2597

BETWEEN BENJAMIN PAUL MCMULLEN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 27 September 2012

Appearances: A Hope for Appellant

J O'Sullivan for Respondent

Judgment: 5 October 2012

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 5 October 2012 at 4.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

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

Solicitors: Crown Solicitor, Hamilton

Copy to: A Hope, Hamilton

MCMULLEN V NEW ZEALAND POLICE HC HAM CRI-2011-419-000076 [5 October 2012]

[1] On 7 September 2011 the appellant, Mr McMullen was convicted on one count of driving while impaired with blood containing evidence of use of a drug, pursuant to s 57A of the Land Transport Act 1998 (the Act).1 The drug was cannabis. Judge Connell imposed a fine of $350 together with Court costs of $130 and disqualified the appellant from holding a driver’s licence for a period of six months.2

[2] Mr McMullen appeals against conviction and sentence. Counsel have confirmed that the disqualification was not suspended and has been served.

Background facts

[3] On 27 July 2010 the appellant was driving a Subaru Forester car in central Cambridge. Police Constable Hamlyn received advice that the occupants of the car were suspected of being involved in a burglary at a Kaipaki Road address. Constable Hamlyn saw the car at about 8.00 pm. He followed it and activated his red and blue lights. The appellant drove into the exit of a KFC drive-through and stopped. When Constable Hamlyn first spoke to the appellant, he smelt cannabis. The constable told the appellant that he wanted to speak to him about what had happened at Kaipaki Road. He also said that he could smell cannabis. The appellant was given his rights. The appellant accepted that he had been at Kaipaki Road. He said that he had been there to speak to someone who lived nearby. He also told the constable he had smoked some cannabis while parked on Kaipaki Road. The appellant and the other occupants of the car agreed to go back to the Cambridge Police Station to speak further to the police about the incident at Kaipaki Road.

[4] Constable Wilson arrived at KFC shortly after Constable Hamlyn had stopped the appellant. By the time Constable Wilson arrived at the scene Constable

_{Hamlyn was already dealing with the appellant.}

1 _{Police v McMullen DC Hamilton CRI-2010-19-7548, 7 September 2011.}

2 Police v McMullen DC Hamilton CRI-2010-19-6846, 7 September 2011.

[5] Constable Wilson helped transport the appellant and one of the other occupants of the car back to the Cambridge Police Station. Constable Hamlyn drove the appellant’s car to the station. Constable Wilson gave the appellant his rights again. When at the police station Constable Hamlyn told Constable Wilson that the appellant had admitted smoking cannabis, presumably because Constable Wilson had been trained to conduct a Compulsory Impairment Test (CIT). In the course of speaking with the appellant Constable Wilson asked the appellant, “When did you last have a smoke of weed (cannabis)?” The appellant replied, “45 minutes ago”. When asked, “Do you think you are too stoned to drive” the appellant said “Nah, not at all”. Constable Wilson then gave the appellant his rights again and completed certain observations regarding the appellant on a standard form.

[6] Constable Wilson recorded the following observations in relation to the appellant: speech normal, eyelids drooping and bloodshot, breathing normal, skin normal, actions restless, movement sluggish, balance normal. In a section described as “evidence of consumption”, the officer recorded smell, utensils and admission and behaviour relaxed. He formed the view there was good cause to suspect that the appellant, as the driver of the Subaru, had taken cannabis. He required the appellant to undergo a CIT at the police station.

[7] The CIT involves three assessments – an eye assessment; a walk and turn assessment; and a one leg stand assessment. Constable Wilson did not consider the appellant completed the tests satisfactorily for the following reasons. There was distinct horizontal and vertical gaze nystagmus in the right eye. On the walk and turn assessment the appellant had made one extra step on both walking out and returning. While carrying out the standing on one leg assessment the appellant had swayed to the left whilst standing on his right foot.

[8] The constable concluded the appellant had not completed the CIT in a satisfactory manner.

[9] The constable then required the appellant to undergo a blood test. The blood test returned positive evidence of a qualifying drug, THC (cannabis).

[10] After referring to the evidence, which was largely not in issue, the Judge concluded as follows:

[15] ... The officer administering the test has been trained in the procedures of the test and what to look for. Given the policy of the Land Transport Act it is understandable that Parliament would envisage a low threshold in order to entitle the officer to compel a blood test. ...

[16] I am of the view that where an officer has given detailed reasons for his view that the impairment test was not completed satisfactorily then to adopt Judge MacKenzie’s words it is not for a Judge to second guess the officer’s reasons. Of course the officer will still need to clear the hurdle of proven beyond a reasonable doubt that the defendant did not complete the test in a satisfactory manner and open to a Court would be always determinations around the carrying out of the steps and the correctness of that procedure. I do not consider that the law allows for a Court, other than in fairly extreme circumstances which I consider existed in the Police v Harding decision to interfere with the assessment of the officer who was present in the course of the test, who observed the defendant and who is trained to conduct the impairment test and with that a Court cannot find an objective basis for the subjective view of the officer or replace it with such.

[17] It is on that basis that perhaps with some reluctance given my view of the results of the test that a conviction will be entered because I have to say I apply the provision of s 57A to the facts as I determine them in this case the position is that Mr McMullen was driving and it is effectively admitted. The position is that he was on a road and that is not in any dispute. On the evidence of the police officer he has not completed a compulsory impairment test in a manner satisfactory to the officer who undertook those tests with him. Then of course the final element being, and again not one in contention, that beyond reasonable doubt has been proven, that there was cannabis in his blood.

The points on appeal

[11] Mr Hope identified the following points to support the appeal:

1. Judge Connell erred in finding at [16] and [17] of his decision that the police officer who conducted the impairment test had an unfettered discretion in determining whether or not the appellant had completed the tests. Alternatively:

2. The Court erred at [16] in accepting the police constable’s subjective

opinion as to whether or not the appellant had completed the tests.

3. The Court erred in finding at [15] that Parliament would envisage a low threshold for the impairment test.

4. The Court erred in failing to finding that the impairment test should have been conducted at the roadside where the appellant was stopped.

5. The Court erred in failing to find the appellant was prejudiced by the delay.

6. The appellant’s right to natural justice was breached in that the constable who carried out the impairment test failed to take into account all relevant factors and failed to take into account the inherent bias in relying on the evidence of the constable that the appellant had not completed the impairment test in a manner satisfactory to him when the constable’s subjective opinion was intimately connected with the success or otherwise of the prosecution.

[12] As to penalty, Mr Hope took the point that there was no evidence of the appellant’s level of impairment. He submitted the Judge should have considered discharging the appellant without conviction or, alternatively, convicting and discharging him.

_{[13] In response the Crown submit:}

The officer did not have an unfettered discretion.

The appellant’s submissions generally invited the Court to interpret the relevant provisions of the Act other than in accordance with their plain meaning and contrary to their purpose.

Parliament did not envisage the Court would make its own independent assessment of impairment.

As to delay, s 71A contemplates the test may be carried out other than at the roadside. The delay in this case was not unreasonable. The appellant was not

_prejudiced.

The appellant’s right to natural justice was not breached. The officer was qualified to give the evidence he gave. Ultimately it was for the Court to determine whether the elements of the charge were proved beyond reasonable

_doubt.

_{The fine and disqualification were not manifestly excessive.}

Decision

Statutory framework

[14] The particularly relevant statutory provisions are s 57A(1) and s 71A(1) and

(2) of the Act:

57A Driving while impaired and with blood that contains evidence of use of qualifying drug

(1) A person who drives or attempts to drive a motor vehicle on a road commits an offence if—

(a) the person does not complete a compulsory impairment test in a manner satisfactory to an enforcement officer, who is trained to give the test, when required to do so by an enforcement officer under section 71A; and

(b) the person's blood, as ascertained from an analysis of a blood specimen subsequently taken under section 72 or 73, contains evidence of the use of a qualifying drug.]]

...

71A Requirement to undergo compulsory impairment test

(1) An enforcement officer may require any of the following persons to undergo a compulsory impairment test given by an enforcement officer trained to give the test if the enforcement officer has good cause to suspect that the person has consumed a drug or drugs:

(a) a driver of, or a person attempting to drive, a motor vehicle on a road:

(b) a person whom the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:

(c) if an accident has occurred involving a motor vehicle,—

(i) the driver of the vehicle at the time of the accident;

or

(ii) if the enforcement officer is unable to ascertain who the driver of the motor vehicle was at the time of the accident, a person whom the officer has good cause to suspect was in the motor vehicle at the time of the accident.

(2) An enforcement officer may require a person specified under subsection (1) to—

(a) remain in the place where stopped, for a period of time that is reasonable in the circumstances, to undergo the compulsory impairment test; or

(b) accompany an enforcement officer to another place to undergo the compulsory impairment test if it would enhance road safety, personal safety, the person's privacy, or the giving or taking of the test.

...

[15] Section 57A provides it is an offence to drive a motor vehicle on a road if the person fails to complete a CIT in a manner satisfactory to an enforcement officer (who is trained to give the test) when required to do so and a subsequent analysis of blood contains evidence of the use of a qualifying drug.

[16] Section 71A provides enforcement officers with authority to require a person to undergo a CIT if the officer has good cause to suspect the person has consumed a drug or drugs.

[17] So the drug driving regime encompasses three distinct steps. First, an enforcement officer must have good cause to suspect use of a drug by a driver. Second, a suitably trained enforcement officer must be satisfied the person has either not completed at all or not completed satisfactorily, the CIT. Finally, the resultant required blood test must disclose the presence of a specified drug or drugs.

[18] Prior to the enactment of these provisions via the Land Transport Amendment Act (No 4) 2009, (the Amendment Act) driving under the influence of a drug was provided for by s 58(1) of the Act which made it an offence to drive or attempt to drive a motor vehicle on a road while under the influence of drink or a drug or both, to such an extent as to be “incapable of having proper control” of the vehicle.

[19] “Incapable of having proper control” was recognised as a comparatively high threshold to meet. It also required establishing that the cause of the incapacity was illegal drugs.

Parliamentary history

[20] Parliament recognised and addressed those issues in enacting the Amendment

Act. The Explanatory Note to the Bill, as introduced to Parliament, provided:3

Drug-impaired drivers

The main purpose of these provisions is to clarify the law regarding drug- impaired drivers. Prosecuting a person driving under the influence of drugs has been difficult under the existing offence, which requires a person to be incapable of having proper control of the vehicle. “Incapable” has been a high threshold to meet, as has establishing that the cause was drugs. The new offence proposed in the Bill is committed when a driver is impaired and there is evidence of illegal drugs in the driver’s blood. Impairment is a lower threshold to meet than incapable of proper control and is determined by a more robust, published test.

[21] On its first reading and before referral to the Select Committee the Minister of Transport, the Hon Annette King, said:4

There was considerable comment from the community about the dangers of drug-driving during the road safety consultation that was undertaken last year by the National Road Safety Committee under the See You There–Safe As banner. The community and the Government have for some time been concerned about the risks of drug-driving. Under this bill we will make it an offence to drive while impaired by illegal drugs.

A roadside impairment test will become compulsory under this bill. When an officer at the roadside has reason to suspect a driver is impaired, the driver will be required to carry out a series of tests. At least 200 police officers will be trained to carry out the roadside impairment testing. There will be occasions where, for safety reasons, an immediate roadside

3 _{Land Transport Amendment Bill (No 4) 2007 (164-1) (explanatory note) at 1.}

4 (16 October 2007) 642 NZPD 12384.

impairment test may not be possible, such as on some busy motorways or narrow roads. It may be that the police will need to take people to a safer and more suitable place in order to carry out the impairment test. ... The impairment test will be published in the New Zealand Gazette. If a driver cannot satisfactorily complete this test, he or she will be required to provide a blood specimen. If an illegal drug is detected in the blood specimen, an offence would have been committed.

[22] Significantly, when the matter was reported back to the House for its second reading on 16 June 2009 the then Minister of Transport, The Hon Steven Joyce, stated:5

People who drive when their judgment and reactions are impaired by drugs are a danger to themselves and to others. ...

It is already an offence under the Land Transport Act to drive while incapable of proper control due to alcohol or drugs, but the existing offence can be difficult to enforce in respect of drugs due to the high evidential burden on the prosecution. This bill will make the task of the police more straightforward. Under this bill, a police officer who suspects a driver of being impaired can require the driver to carry out a compulsory impairment test. This will include examination of the eyes, a one-leg stand test, and a walk-and-turn test. The impairment test is based on procedures used in other countries.

A driver who does not satisfactorily complete this test will be required to provide a blood specimen. A driver who is found to have drugs in his or blood will be prosecuted. “Drugs” means both prescription medicines and controlled drugs under the Misuse of Drugs Act. The penalties for this new offence are the same as the penalties for drink-driving. Blood specimens taken as evidence of alcohol and drug-driving offences will be available for road safety research.

(emphasis added)

The CIT

[23] At the same time as the amendments to the Act were implemented, the Land Transport (Compulsory Impairment Test) Notice 2009 (the Notice) was also enacted to provide for the CIT.

_{[24] The Notice provides that the CIT involves the following:}

5 (16 June 2009) 655 NZPD 4330.

(1) The person being tested must, before or at any time during the CIT, disclose any existing medical condition or disability that could affect their ability to complete the test or the outcome of the test;

(2) an eye assessment as described;

(3) a walk and turn assessment as described; and

(4) a one leg stand assessment.

Each assessment involves a number of considerations. For example, the matters to be recorded in relation to the walk and turn assessment are as follows:

(3) Step 3: Matters to be recorded

(a) The testing officer must record whether the person being tested –

(i) maintains balance:

(ii) starts to walk before being directed to do so: (iii) stops while walking:

(iv) steps off the line:

(v) does not walk heel to toe:

(vi) takes an incorrect number of steps: (vii) does not turn as directed:

(viii) uses 1 or both of his or her arms to maintain balance: (ix) is able to follow directions.

If any one of the assessments is not completed, or not completed satisfactorily, the Notice requires the testing officer to record that fact. The use of the phrases “not completed” and “not completed satisfactorily” in relation to the tests is deliberate.

_{[25] As the Minister noted on the second reading of the Bill:}6

6 (16 June 2009) 655 NZPD 4330.

The bill is amended to clarify that the offence under this legislation comprises two parts: impairment and the evidence of a drug in the driver’s bloodstream. An offence is committed only if both parts of the offence have been detected. The committee has also recommended that the impairment test clause be amended. The bill as introduced refers to a person being “unable to complete” an impairment test. The committee was told that this could cause problems for the prosecution and that the expression “does not complete” would be preferable.

The Gazette notice, improving [sic] the impairment test, will now describe the test in full, instead of just recording that the Minister had approved of the test.

(emphasis added)

[26] Against that background I turn to address Mr Hope’s submissions.

Unfettered discretion/the officer’s subjective opinion

[27] Mr Hope submitted that the District Court Judge had been wrong to express a reluctance to interfere with the constable’s exercise of his discretion. He submitted the Judge had decided the officer effectively had an unfettered discretion which could not be sustained. Mr Hope referred generally to the following passage from GDS Taylor Judicial Review – A New Zealand Perspective (Wellington LexisNexis

2010 at p 728):

The law eschews an alsatia, so there can in law be no truly unfettered discretions. Where a discretion is described by a court as “unfettered”, all it means is that there are no prescribed criteria or factors. Criteria will normally be implied by the court from the purpose and context of the statute.

[28] With respect, Mr Hope’s reliance on this passage is misconceived. The officer does not have an entirely unfettered discretion when determining whether a person such as the appellant has completed the compulsory impairment assessments satisfactorily. The CIT Notice prescribes a number of mandatory steps the officer must take. It also prescriptively sets out the procedures that the officer must consider and record immediately following the assessment.

[29] It is for the officer to determine, having regard to the criteria provided in relation to the assessment of each test, whether the test has not been completed or not completed satisfactorily. However, that assessment is made against the criteria

prescribed for each assessment. The results recorded by the officer inform the

officer’s decision as to whether the tests have been satisfactorily completed or not.

[30] If, for example, each of the criteria prescribed for the assessment test in issue was determined in favour of the person by the officer, the officer would not be entitled to conclude that the suspect had not completed that aspect, or had not completed that aspect of the assessment satisfactorily.

[31] So it is incorrect to suggest the officer carrying out the CIT has an unfettered discretion. The fundamental premise underlying the first ground of appeal is not made out.

[32] Mr Hope next submitted that it was important the Court independently be in a position to make an objective assessment of the manner of driving and impairment at the time the vehicle was stopped rather than rely on the officer’s subjective assessment of the CIT. The blood specimen, which returns a positive reading simply confirms a presence of otherwise of the drug and, in Mr Hope’s submission, is meaningless in terms of identifying the extent of the impairment. He submitted it is critically important for the purposes of imposing a penalty to determine the level of impairment. The test does not do that. Mr Hope noted that there is no equivalent provision to s 77 of the Act relating to alcohol, which provides that:

... it is to be conclusively presumed that the proportion of alcohol in the defendant’s breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant’s breath indicated by the test.

[33] Effectively, Mr Hope’s submission is that it could not be the case that it is an offence per se to drive with a detectable level of a controlled drug in one’s blood stream. But that appears to be exactly what Parliament had in mind. Provided that the initial criteria are satisfied, namely that the officer has good cause to suspect that a person has consumed a drug or drugs, and the person either does not complete or does not complete a CIT in a manner satisfactory to the enforcement officer, then it is an offence if the person has a detectable level of controlled drug.

[34] The level of the drug (which cannot be measured) and the extent of the impairment are not relevant to whether an offence has been committed. That is

precisely what Parliament intended when moving from the more difficult test of “incapable of having proper control”. While I accept the objective level of impairment as disclosed by the actual driving might be relevant to penalty, it is not relevant to whether an offence has been committed or not.

[35] The reason there is no equivalent section to s 77 relating to drug impaired driving is that there is no requirement for there to be a particular level of the prohibited drug present in order for the offence to be committed. Ultimately that was a decision for Parliament to make. There are at least two practical reasons for that. First, it is not an offence to consume alcohol, while it is an offence to be in possession, of, or use, use certain drugs. Second, there are now sophisticated breath screening and testing procedures in relation to alcohol but there are no equivalent tests readily available for recording and detecting levels of a drug in a person’s system.

[36] There is nothing inherently objectionable in requiring the test to be carried out in a manner satisfactory to the enforcement officer. The enforcement officer is qualified by training to determine whether the driver has completed the tests satisfactorily or not. I accept Ms O’Sullivan’s submission that, as in any prosecution, the Court is still entitled to make its own assessment as to the credibility and reliability of the evidence given before it. The officer can be required to give evidence of the process he or she followed, as well as his or her findings. Where the evidence confirms the test has been completed in accordance with correct procedure (which can be tested in the usual way under cross-examination) the subjective finding of the relevant officer as to whether or not the test was completed to his or her satisfaction should be accepted.

[37] As noted, there are safeguards in the process. A driver cannot be required to undertake a CIT unless the officer has good cause to suspect consumption of a drug and, following the CIT assessment. The Court must be satisfied on the balance of probabilities that the officer had reasonable grounds for suspecting that the person

_{had consumed drugs.}7 _{The Court of Appeal has held that this is a question of fact to}

7 Police v Anderson [1972] NZLR 233 (CA) per North P at 242. In that case, the Court of Appeal considered the phrase “good cause to suspect” in the context of the requirement under breath alcohol testing under s 59B of the Transport Act 1962.

be determined by the Court, having regard to the objective facts known to the officer at the time.8 No issue as to the Constable Wilson’s “good cause to suspect” arises in this case.

[38] Finally, there is the further safeguard that the blood test must show the presence of a qualifying drug before an offence is committed.

Breach of right to natural justice

[39] Mr Hope next submitted the appellant’s right to natural justice was breached. First, he submitted that the constable failed to take into account all relevant factors. He noted, for example, that the appellant gave evidence of a previous head injury. He had fallen off a horse and been knocked out. The appellant also said that he had snapped his ankle on a merry-go-round and spent time in Starship when he was younger. Mr Hope submitted that the head injuries could have explained his eye movements and the ankle injury could have affected his balance. Further, it is also possible that tiredness and nervousness because he was being interviewed in relation to the burglary could have influenced the appellant’s performance in the assessment tests. Mr Hope submitted it was impossible to say that the observations recorded by the officer indicated that the appellant had cannabis.

[40] The CIT Notice requires an officer to tell the suspect that before or any time during the CIT the person being tested must disclose to the testing officer any medical condition or disability that he or she has that could affect the person’s ability to complete the test or the outcome of the test. The officer gave that direction to the appellant. The appellant did not mention any of the matters that he later gave evidence of and that Mr Hope now seeks to rely on. The appellant’s failure to mention them at the time meant the officer could not take them into account.

[41] There is a further short answer to Mr Hope’s reliance on those points. Even if the matters raised did influence the outcome of the impairment test, the protection for the appellant is that if he had not consumed drugs then the blood test would be

_clear.

8 Police v Anderson [1972] NZLR 233 (CA) per Turner J at 248.

[42] Put another way, it could be that the failure to satisfactorily complete the CIT is caused or at least contributed to by something other than consumption of drugs, such as tiredness or nervousness. But failing to satisfactorily complete the CIT itself is not an offence. The offence is only completed if, as well as failing to satisfactorily complete the CIT, the resultant blood test confirms the presence of drugs.

[43] Mr Hope’s suggested approach would effectively leave all matters open for determination by a Court months after the actual incident. The Court would be without the benefit of the temporal observation of the enforcement officer and the training that the officer had undergone. Further, the Court would be able to take into account factors that the driver was required to disclose but did not do so at the time. It is not sustainable.

Bias

[44] Next, Mr Hope submitted that there was an inherent bias (in breach of s 27 of the New Zealand Bill of Rights Act 1990) in the Court relying on the evidence of the police constable, when the constable’s subjective opinion was intimately connected with the success or otherwise of the prosecution.

[45] The short answer to that submission is that the majority decision of Blackie v Police9 is still good law, and applies in the present case. Mr Blackie was convicted on a charge that, while under the influence of drink or drug to such an extent as to be incapable of having proper control of a motor vehicle, he drove a motor car on a roadway. The prosecution evidence included the evidence of two traffic officers who attended the scene shortly after Mr Blackie had been involved in an accident. The officers gave evidence of Mr Blackie’s actions and the smell of his breath. Both expressed the opinion that, as a result of taking liquor, he was unfit to be in charge of

his vehicle. The majority of the Court of Appeal held that police and traffic officers who are closely associated with the prosecution are not ipso facto disqualified from giving opinion evidence, but such association may affect the weight to be given to

_{such evidence. They also accepted that a traffic officer or policeman who can show}

9 Blackie v Police [1966] NZCA 14; [1966] NZLR 910 (CA).

he is sufficiently qualified by training or experience may be allowed to an express an

opinion as to a person’s capacity to drive.10

[46] In the present case Constable Wilson gave both direct and opinion evidence. He was qualified to give opinion evidence. He confirmed the training he had undergone. He was qualified to conduct the CIT and assess whether the appellant completed it satisfactorily or not. Constable Wilson first gave evidence of his dealing with the appellant and his conduct and record of the CIT. All that was direct evidence of his observations, rather than his opinion. Ultimately, on the basis of his training and the results of the assessments in the CIT, he gave evidence the appellant had not satisfactorily completed the test. The officer’s opinion evidence was limited to that extent.

[47] Ultimately it remained for the Court to determine whether the elements of the offending, namely good cause to suspect, failure of the CIT and positive blood result were sufficiently established to prove the charge beyond reasonable doubt. The appellant’s guaranteed rights under s 27 were extended to him.

Delay

[48] Mr Hope next submitted that the delay of approximately 45 – 50 minutes after the vehicle was stopped and before the CIT was administered was prejudicial to the appellant. Mr Hope referred to a review prepared for the New Zealand Police by Dr Katherine Papafotiou “Testing Drivers for Impairment Caused by Drugs Other

Than Alcohol Using Sobriety Tests”.11 He submitted the review suggested that

impairment can change over time.

[49] Mr Hope first submitted that the CIT should have been carried out at the roadside, or in the KFC car park. He submitted it was envisaged the test would be

_{conducted on the roadside.}

10 _{At 916-917.}

11 Katherine Papafotiou “Testing Drivers for Impairment Caused by Drugs Other Than Alcohol Using Sobriety Tests” Review prepared for the New Zealand Police, Swinburne University, Melbourne, Australia, 2007.

[50] The short answer to Mr Hope’s submission on this point is again the wording of the section itself. Section 71A(2) provides authority for an officer to conduct a CIT at the roadside, but it also provides that the officer may require the suspect to accompany the officer to another place to undergo the CIT “if it would enhance road safety, personal safety, the person’s privacy, or the giving or taking of the test”. Section 71A(2)(b) thus contemplates that the test may be conducted at some place other than the roadside. An obvious place is a police station, where a person may be required to return for the purposes of the test.

[51] Importantly, in the present case, the appellant accompanied the officer, not pursuant to s 71A(2), but rather at the request of Constable Hamlyn to return to the police station for further discussion about the alleged burglary. It was only when at the station that it came to Constable Wilson’s attention that the appellant had consumed cannabis. The constable then promptly conducted the CIT on the appellant.

[52] However, I do accept that the legislation appears to contemplate the test will either be carried out at the roadside or shortly thereafter, when a person has been required to return to the police station. There may be cases where the only reason the person is required to accompany the officer to the police station is for the conduct of a CIT. In such cases there will come a point in time when the length of detention for that purpose will become unreasonable. That will be a matter of assessment in each case.

[53] In the present case the appellant voluntarily went to the police station to speak with police about an unrelated matter. Even in such a case, there may come a time when the delay before the CIT is carried out becomes unreasonable. However, in the present case the delay in conducting the CIT was not unreasonable. The appellant was stopped just after 8.00 pm. After returning to the station the appellant first spoke about the alleged burglary. The officer then asked him about his consumption of cannabis and then moved to require the CIT. The test was conducted between 8.45 and 8.50 pm. From the time he was stopped, until the test was conducted, the appellant was in the presence of police officers. There is no

suggestion that he consumed cannabis during that time. There is no evidence before the Court that the delay prejudiced the appellant in any way.

[54] Mr Hope noted the Papafotiou report reviewed tests conducted at five minutes after smoking cannabis, 55 minutes after and at 105 minutes after. Dr Papafotiou suggested that the HGN (eye assessment) was not significantly impaired at five minutes after smoking cannabis but was at both 55 minutes and 105 minutes. Performance on the walk and turn test was impaired to the same extent at all times the test was administered. Again, the one leg standing test which was, in the writer’s opinion, “by far the best test of impairment associated with the administration of THC compared to any other sobriety test”, disclosed the same level of impairment at all testing times.

[55] Taken as a whole, the Papafotiou report does not support the submission the appellant was prejudiced by the delay. I remind myself that the purpose of the legislation is road safety. If the officer had not concluded the appellant had failed to complete the tests satisfactorily, the appellant would have been free to leave the station and drive again.

Penalty

[56] The submissions in support of the appeal against penalty are based on the misconception that there was no objectionably measurable and tested evidence relating to the appellant’s impairment. But as in all sentencing, the Court was required to consider all the relevant circumstances of the case. In this case it would be proper for the Court to take into account that there was nothing about the driving itself which led to the apprehension of the appellant. Also, the appellant only failed to complete certain aspects of the CIT. However, even taking those factors into account, it cannot be said that the fine of $350 (when the maximum is $4,500) was manifestly excessive. As noted, the disqualification period was mandatory. There were no special circumstances. The appeal against penalty cannot succeed.

Result

_{[57] The appeals against conviction and sentence are dismissed.}

Venning J