Vickers v Police [2013] NZHC 102 (5 February 2013)

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Vickers v Police [2013] NZHC 102 (5 February 2013)

Last Updated: 19 February 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000416 [2013] NZHC 102

BETWEEN ADRIENNE MARGARET VICKERS Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 5 February 2013

Appearances: A J Haskett for Appellant

B Hamlin for Respondent

Judgment: 5 February 2013

Reasons: 7 February 2013

_{REASONS FOR JUDGMENT OF VENNING J}

This judgment was delivered by me on 7 February 2013 at 4.45 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

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

Solicitors: Crown Solicitor, Auckland

Copy to: A J Haskett

VICKERS V NEW ZEALAND POLICE HC AK CRI-2012-404-000416 [5 February 2013]

[1] At the conclusion of the hearing on 5 February I dismissed the appellant’s appeal against conviction on a charge of driving with excess breath alcohol. The disqualification was confirmed to apply from midnight that day. The reasons were to follow. These are the reasons.

Background

[2] At about 2.20 am on Saturday 5 May 2012 the appellant was stopped by a police patrol. Despite the fact it was in the early hours of the morning the appellant had not put her car lights on. The appellant was plainly intoxicated. Police Constable Roberts administered a road side test which confirmed a reading in excess of the legal limit. An evidential breath test taken at the police station showed a reading of 1,022, more than two and a half times the permitted limit.

[3] No issue was taken with the procedural steps but the charge was defended on the basis that the certificate of compliance produced was not a valid certificate of compliance under s 75A Land Transport Act 1998. The Judge dismissed that objection and found the charge proved.

[4] The relevant provisions of s 75A of the Land Transport Act 1998 provide as follows:

75A Certificates of compliance for evidential breath-testing devices

(1) An evidential breath-testing device must be supported by a certificate of compliance given under this section by a person authorised for the purpose by the Science Minister.

(2) At any trial or defended hearing for an offence involving excess breath alcohol recorded by the device (being an offence committed on or after the commencement of this section), the prosecution must produce to the court a certified copy of the certificate of compliance. The certification must be given by a person authorised for the purpose by the Commissioner and must state that the copy is a true copy of the original certificate.

(3) Subject to subsection (4), a certificate of compliance or a certified copy of it that is produced under subsection (2) is for all purposes conclusive evidence of the matters stated in the certificate, and neither the matters stated in the certificate nor the manufacturer's

specifications for the device concerned may be challenged, called into question, or put in issue in any proceedings in respect of an offence involving excess breath alcohol recorded by the device.

(4) In the absence of proof to the contrary, a document purporting to be a certificate of compliance or a certified copy of a certificate of compliance—

(a) must be treated as such a certificate or certified copy; and

(b) is conclusive evidence of the sufficiency of the authority of the person who signed the document.

[5] Section 75A(1) requires the breath testing device, which produces the reading underlying the prosecution, to be supported by a certificate of compliance given by a person authorised for the purpose by the Science Minister.

[6] By 75A(2) the prosecution is required to produce a certified copy of the certificate of compliance to the Court. This certification must be given by a person authorised for the purpose by the Commissioner. It must state the copy is a true copy of the original certificate.

[7] Section 75A(3) provides for the certificate or certified copy to be conclusive evidence of the matters stated in it. Section 75A(4) provides that, in the absence of proof to the contrary by an accused, the certificate or certified copy must be treated as such and is conclusive evidence of the authority of the person who signed the document.

[8] The certificate in the present case was given by Marie Elizabeth Nicholson. The police also produced a further document, an instrument of authorisation by Mr Perry, Assistant Commissioner approving Ms Nicholson as a person authorised to certify the copy of the certificate of compliance pursuant to s 75A(2). The objection taken on behalf of the appellant was to the wording of the instrument of authorisation. Mr Perry had stated in it:

I, Nick Perry, Assistant Commissioner (Operations), acting pursuant to the Land Transport Act 1998 (‘the Act’) approve Inspector Mark Andrew Stables (MSE873) and Marie Elizabeth Nicholson (MNCA37) as persons authorised: ...

[9] Mr Haskett contrasted that wording with the wording of a previous authorisation given in another matter in which a Mr Jones stated:

I, Gavin Ross Jones, a Superintendent of Police acting pursuant to a written delegation from the Commissioner dated 24 January 2008, and pursuant to the Land Transport Act 1998 ...

[10] Mr Haskett took the point that a written delegation from the Commissioner was required, and that the instrument of authorisation completed by Mr Perry had not confirmed his delegation.

[11] The District Court Judge rejected the appellant’s argument for two reasons. First, he considered it inconceivable that an Assistant Commissioner would certify people to authorise authentification certificates if he did not have the authority to do so and second, there was, in his view, reasonable compliance (inferentially in terms of s 64(2) of the Act).

[12] It is from that decision the appellant appealed to this Court. Pending the appeal the disqualification was suspended. Given the dismissal of the appeal it has been reinstated.

The appellant’s case

[13] Mr Haskett raised the same point on appeal. He submitted that the failure of Assistant Commissioner Perry to state that he was acting under delegated authority meant that there was no evidence Ms Nicholson had in fact been authorised for that purpose by the Commissioner. He emphasised the difference between the two authorisations produced to the Court.

[14] Mr Haskett submitted that s 75A(4)(a) could not apply in this case. On its face the instrument of authorisation confirmed that a copy of the certificate of compliance was not a duly certified copy. It was therefore an inadmissible hearsay document. The prosecution had failed to produce a certified copy.

[15] Mr Haskett submitted that the presumption of s 75A(4)(b) could not arise because that only applied to the authority of the person who signed the document, the document in question being the certificate of compliance.

[16] Finally Mr Haskett submitted there was no admissible evidence on which to consider the question of reasonable compliance so that the matter could not be saved by s 64(2). Mr Haskett relied on the decision of Police v Reynolds[1] in that regard.

The approach to the appeal

[17] As the Supreme Court made clear in Aylwin v Police[2] Parliament has legislated to ensure that drivers who drive with excess breath or blood alcohol do not escape responsibility for the offending through technical and unmeritorious defences. The Courts must give full effect to that clear Parliamentary indication.

[18] The point taken by the appellant in this case falls into the category of such a technical and unmeritorious defence.

[19] To satisfy the requirements of s 75A:

(a) the prosecution must produce to the Court a certified copy of the certificate of compliance;

(b) the certificate of compliance must have been made by a person authorised for the purpose by the Science Minister;[3]

(c) the certification must be by a person authorised for the purpose by the

Commissioner;

(d) the certificate must state that the copy is a true copy of the original certificate.

[20] In the present case the prosecution produced a certified copy of the certificate of compliance as exhibit 1. The copy was certified in the following way:

I, Marie Elizabeth Nicholson, certify that the affixed document is a true copy of the original Certificate of Compliance.

DATED this 7th day of August 2012.

Signed: “M E Nicholson”

A person authorised by an Assistant Commissioner, the delegate of the Commissioner of Police acting pursuant to Section 75A(2) of the Land Transport Act 1998.

[21] On its face the document presented as exhibit 1 was a certified copy of the certificate of compliance given by Allan Ross Gainsford in relation to the relevant breath testing device. In the original certificate Mr Gainsford was stated to be a person authorised for the purpose by the Minister of Research, Science and Technology.

[22] The certification was given by Ms Nicholson, who on the face of the document the certificate stated she was authorised by an Assistant Commissioner, the delegate of the Commissioner. The certificate also stated the certificate of compliance was a true copy of the original certificate. All of the requirements of s 75A(2) were met by exhibit 1. In the absence of proof to the contrary, this aspect of the prosecution was made out.

[23] There was no need for the instrument of Ms Nicholson’s authorisation to be produced to satisfy the requirements of s 75A. It is not an element that is required to be proved by the prosecution.

[24] In Sutton v Police[4] Potter J came to the same conclusion. In that case the police produced an instrument of authorisation which, on its face, had no link to the certified copy of the certificate of compliance. Potter J rejected the submission the instrument of authorisation suggested the signatory on the certificate was not

_{authorised to sign it and thus the certificate was inadmissible. She held:}[5]

... no evidence of the authority of the certifier is required under s 75A. The instrument of authorisation may thus be regarded as irrelevant to the certificate of compliance and its certification. ...

[25] Mr Haskett sought to distinguish that case but, on the material point, whether the prosecution must prove authority of the certifier, the case is in my view indistinguishable.

[26] As s 75A was complied with by the production of the certified copy which, on its face entirely satisfied the requirements of s 75A(2), that is sufficient to determine the appeal. The instrument of authorisation was an irrelevant and unnecessary document.

[27] However, in any event, if necessary the police could rely on s 75A(4). In the absence of proof to the contrary the effect of that subsection is that the certified copy of the certificate:

(a) must be treated as a certified copy of the certificate; and

(b) is conclusive evidence of the sufficiency of the authority of the person who signed the document.

[28] Mr Haskett submitted that the person referred to in (b) must be the person executing the original certificate of compliance, not the certifier. That is one interpretation. However, I note that the introductory words of subcl (4) “a document purporting to be a certificate of compliance or a certified copy of a certificate of compliance ...” identifies both the certificate of compliance and the certified copy of the certificate as a document, so the document in s 75A(4)(b) could also refer to the authority of the certifier.

[29] Further, there is no need for the police to rely on (4)(b) as (4)(a) itself provides that, in the absence of proof to the contrary, the certified copy must be treated as a certified copy. That must mean a certified copy in accordance with the preceding s 75A(2). It could only be a certified copy if it was given by a person authorised by the Commissioner.

Hilton v Police.[6] At best from the appellant’s point of view the instrument of authorisation is silent as to the actual terms of the delegation to the Assistant Commissioner. It is certainly not proof that he did not have the necessary delegated authority to approve Ms Nicholson as a certifier.

[31] Further, as the District Court Judge noted it is inconceivable that an Assistant

Commissioner would certify people without himself having the relevant authority.

[32] There is one final point on this issue. Section 17 of the Policing Act 2008 provides for the delegation of the Commissioner’s powers. Section 17(1) and 17(4) provide:

17 Delegation of powers, functions, or duties of Commissioner

(1) The Commissioner may, as he or she thinks fit, delegate to any person any of his or her powers, functions, or duties under this Act or any other enactment.

...

(4) Every person purporting to act under any delegation under subsection (1) is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation.

[33] In appointing Ms Nicholson as a certifier under s 75(2)(a) Mr Perry was purporting to act pursuant to a delegation. Again, in the absence of proof to the contrary, he is presumed to be acting in accordance with the terms of the delegation.

[34] In the circumstances it is unnecessary to rely on the application of s 64. I note, however, that the case of Police v Reynolds relied on by Mr Haskett is, in any event, distinguishable from the present case. In that case the evidence established that the particular certificate had not been signed by an approved analyst but rather was signed on a pp basis by a person other than the analyst in question. In the circumstances Young J understandably held that the reasonable compliance provision, s 64(2) could not apply. The present case is quite different. There is no suggestion Ms Nicholson did not sign the certificate. However, the issue of s 64 is

_{moot because s 75A was complied with.}

Venning J

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[1] _{Police v Reynolds HC Invercargill AP No 16/99, 7 September 1999.}
[2] _{Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.}
[3] Now the Minister of Research, Science and Technology.

[4] _{Sutton v Police [2012] NZHC 1398.}

[5] At [63].

[6] Hilton v Police HC Wellington AP105/01, 23 August 2001.