Constable v Police [2014] NZHC 1970 (20 August 2014)

Last Updated: 19 September 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-14 [2014] NZHC 1970

BETWEEN	CORRINE MARIE CONSTABLE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 August 2014
Appearances:	J Farrow for Appellant R D Smith for Respondent
Judgment:	20 August 2014

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 20 August 2014 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

CONSTABLE v NEW ZEALAND POLICE [2014] NZHC 1970 [20 August 2014]

[1] After a defended hearing in the District Court, Judge Bouchier convicted Ms Constable on a charge of driving with excess breath alcohol.¹ Ms Constable now appeals to this Court against conviction.

[2] The issue raised by the appeal is whether the constable who administered the breath testing procedures complied with the requirements of the Land Transport Act

1998 (“the Act”). More particularly, the appeal raises the issue of whether there was reasonable compliance with the requirement under s 70A of the Act that Ms Constable was to be given ten minutes after failing an evidential breath test within which to elect to undergo a blood test to assess the proportion of alcohol in her blood.

Background

[3] At approximately 8.35 pm on 28 October 2013, Constable Braid was monitoring vehicle speeds on Quarry Road near Mosgiel. He noted a black Suzuki Swift motor vehicle approaching his position, and locked the speed of the vehicle at

65 kilometres per hour. This was 15 kilometres per hour faster than the permissible speed limit in the area. The constable stopped the vehicle, and found that Ms Constable was the driver. After issuing Ms Constable an infringement notice for speeding, Constable Braid required Ms Constable to submit to a passive breath test. This returned a positive result, as did a subsequent breath screening test. Constable Braid then required Ms Constable to accompany him to the Mosgiel Police Station to undergo an evidential breath test, blood test or both.

[4] The evidential breath test revealed that Ms Constable had 547 micrograms of alcohol per litre of breath. At 9.15 pm, Constable Braid advised Ms Constable that she had ten minutes within which to elect whether or not she wished to undergo a blood test.

[5] Approximately three minutes later, Ms Constable asked whether she had to stay at the police station any longer. She said she was worried about what her three

¹ New Zealand Police v Constable DC Dunedin CRI-2013-012-3051, 28 April 2014.

children would be thinking, because she had been away from home longer than they would expect her to be. At that point the constable told Ms Constable she had fulfilled her legal obligations, and that he was not able to require her to remain at the police station any longer. Ms Constable then said she wanted to go home. Constable Braid told her he would take her home as soon as he had prepared a summons.

[6] Ms Constable then waited for the constable to prepare the summons. He served this on her at 9.20 pm. Constable Braid then drove Ms Constable home. On the way, they drove past her car where she had left it parked on Quarry Road. At Ms Constable’s request, Constable Braid shifted her vehicle into a safer position.

[7] As their vehicle approached Ms Constable’s home, Constable Braid told her that the ten minute period within which she could elect to undergo a blood test was well and truly over. He said that if she wanted a blood test she could request it, and he would carry on with the procedure. Ms Constable told Constable Braid that she knew she had done wrong, and that she did not like needles anyway. He took this as further confirmation that she did not want to undergo a blood test. He then delivered Ms Constable to her home.

The legislation

[8] Section 70A of the Act provides as follows:

70A Right to elect blood test

(1) If the result of a person's evidential breath test appears to be positive, the person has the right, within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), to elect to have a blood test to assess the proportion of alcohol in his or her blood.

(2) This section is for the avoidance of doubt.

[9] Section 77(3)(a) of the Act requires a motorist who has returned a positive evidential breath test to be informed without delay that the test was positive. The person must also be advised that if he or she does not request a blood test within ten minutes, the evidential breath test result could of itself be conclusive evidence for the purposes of a conviction for an offence under the Act. Any request to undergo a blood test must be made within ten minutes of being advised of these matters.

[10] Section 64 of the Act provides for defences. Relevantly for present purposes, s 64(2) provides:

64 Defences

...

(2) It is no defence to proceedings for an offence that a provision forming part of sections 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.

[11] Where there has been reasonable compliance with the prescribed breath and/or blood testing procedures, s 64(2) precludes a defendant from successfully defending a prosecution on the basis that the strict requirements of the Act have not been complied with. It is now well established that s 64(2) needs to be applied in a

liberal manner.² This reflects the fact that this particular legislation is an important

part of Parliament’s efforts to dissuade motorists from driving after they have consumed too much alcohol. It is now well recognised that the social cost of drink driving warrants the adoption of an approach that leaves little scope for technical defences. The Supreme Court explained this in Alwyn v Police, where it said:³

[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.

[12] The focus of the present appeal is on the fact that Ms Constable elected not to undergo a blood test well before the expiry of the ten minute period given to her to enable her to decide whether or not to undergo a blood test. The issue is whether, given that Constable Braid accepted her decision not to give blood after just three

_{minutes, there has been reasonable compliance with the requirements of s 70A.}

² Shaw v Police CA 212/95, 21 September 1995; Police v Tolich [2003] NZCA 134; (2003) 20 CRNZ 150 (CA);

_{Aylwin v Police [2008] NZCA 154 at [41].}

³ Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.

[13] In Alwyn, the Court of Appeal observed that the test as to whether there has been reasonable compliance involves the consideration of two questions:⁴

(a) whether the extent of the non-compliance gives rise to a reasonable doubt about the correctness of the result; and

(b) whether the non-compliance creates a risk of the defendant suffering injustice or unfairness.

[14] There is no suggestion in the present case that Constable Braid’s failure to provide Ms Constable with the full ten minute period within which to make up her mind gave rise to a reasonable doubt about the correctness of the evidential breath test result. The only issue is whether there is a risk that Ms Constable may have suffered injustice or unfairness as a result of the non-compliance.

The argument on appeal

[15] Counsel for Ms Constable argued that his client potentially suffered unfairness or an injustice because she was not given the full ten minutes within which to make up her mind. He submitted that this risk arose because, had Ms Constable been given the full ten minute period, she may have changed her mind and elected to undergo a blood test.

[16] Counsel for Ms Constable also pointed out that the courts have held that the purpose of the statutory ten minute period is to enable a suspect to have adequate time without undue pressure within which to make up his or her mind whether or not to undergo a blood test.⁵ The enforcement officer administering the testing procedure must not do or say anything within the ten minute period that would reasonably leave the suspect to believe that an initial decision not to undergo a blood

_{test is final and cannot be reversed within that period.}⁶ _{Even where there has been}

⁴ Alwyn v Police above n 3 at [41], citing Soutar v Ministry of Transport [1981] 1 NZLR 545 (CA)

_{at 550 and Aualiitia v Ministry of Transport [1983] NZLR 727 (CA) at 729.}

⁵ _{Lawrence v Ministry of Transport [1982] 1 NZLR 219 (CA).}

⁶ Auckland City Council v Haresnape [1983] NZCA 23; [1983] NZLR 712 (CA) at 715.

an initial refusal, the officer should still give the suspect the balance of the ten minute period to consider whether or not he or she wishes to adhere to that refusal.⁷

[17] Counsel for Ms Constable submitted that Constable Braid had effectively brought the testing procedure to an end once he told her she had complied with her obligations and was free to leave. At that point the officer began writing out the summons, which would clearly have given Ms Constable the impression she had made a final decision and that she could not change her mind. He submitted that there could be no more clear an example of indicating to a defendant that his or her decision has been treated as final than by issuing the summons. He emphasised that the testing procedure came to a halt at a point where Ms Constable had had less than one-third of the time she was entitled to take in order to make her decision. He therefore submitted that the level of non-compliance was such that prosecution could not rely on s 64(2).

Decision

[18] Several factors are relevant to the assessment of whether or not there was reasonable compliance with the statutory requirements in the present case. First, there can be no doubt that the testing procedure was brought to a conclusion well before the statutory ten minute period had expired. Had the constable caused that situation to occur, s 64(2) could not apply. Although the courts have emphasised that there must be some room for elasticity in the period of time given to a suspect in this

context,⁸ a period of just three minutes could not generally be viewed as complying

with the requirements of s 70A.

[19] It is important, however, to have regard to the context in which the non- compliance occurs. In the present case Ms Constable made it clear as soon as she failed the evidential breath test that she was not interested in having a blood test. As Constable Braid was reading the advice that she was entitled to ask for a blood test within the next ten minutes, she told him she did not like needles and would not be having a blood test. Three minutes later she asked whether she had to remain at the

_{police station for the balance of the ten minute period, and indicated she wanted to}

⁷ _{Newlands v Police [1990] NZHC 1530; (1990) 6 CRNZ 430 (HC).}

⁸ Rae v Police [2000] NZCA 156; [2000] 3 NZLR 452 (CA) at [52]- [56].

go home because her children would be concerned at the length of time she had been away from home. It was at this point that she made her formal election not to undergo a blood test.

[20] It is therefore clear that Ms Constable made her decision at such an early stage for two reasons. The first was that she did not want to give blood because she did not like needles. The second was her concern for her children, who were at home alone. Both of those matters were personal to Ms Constable, and not driven in any way by the constable. He did not place any undue pressure on her to make her decision. Rather, he respected the decision she had made.

[21] It can be argued that the constable ought to have declined to accept Ms Constable’s initial decision, and insisted that she remain at the police station for the entire ten minute period. Had he done so, there is no doubt that Ms Constable would have complied with his request. In terms of the principles enunciated by the Court of Appeal in Alwyn, the Court needs to consider whether a risk of injustice or unfairness has arisen because there is a reasonable possibility that, if the constable had taken that step, Ms Constable may have changed her mind and elected to undergo a blood test.

[22] Several aspects of the evidence are relevant to this issue. First, the two factors that prompted Ms Constable to make her initial decision were unlikely to become less significant for her if she had been asked to remain at the police station for another seven minutes. Her dislike of needles was likely to remain constant, whilst her concern for her children is likely to have become more acute.

[23] Secondly, Constable Braid said in cross-examination that when he told Ms Constable that she was free to leave after just three minutes, he believed he did not have the power to detain her until the end of the ten minute period. He also said he had subsequently been advised that he did possess the necessary power to detain her for the whole of the ten minute period. The legal position is that the constable did not have the power to detain Ms Constable against her will once she had completed the evidential breath test. Although the ten minute period constitutes a period of lawful detention for the purposes of the rights granted under the New Zealand Bill of

Rights Act 1990, there is no power to arrest a suspect if he or she chooses to leave the police station during that period.⁹ A power of arrest does not arise until the suspect refuses to comply with a requirement to go to, and remain at, another place for the purpose of providing a blood sample after having elected to undergo a blood test. If he or she refuses to comply with either of those requirements, s 72(5) permits the person to be arrested without warrant. It follows that Constable Braid’s initial

view of the law was correct, and he correctly advised Ms Constable that he had no power to detain her once she had decided not to undergo a blood test. He did not mislead her as to her legal position.

[24] Although this issue was the subject of considerable cross-examination during the hearing in the District Court, it is not of any real moment so far as the present appeal is concerned. The real point is that, although in practical terms the constable could have required Mrs Constable to remain at the police station for the full ten minute period, such a requirement was unnecessary in the face of repeated indications that she had made up her mind and wanted to leave. The object of the ten minute period is to enable the suspect to make a considered decision whether or not to undergo a blood test. If he or she makes an informed decision not to take advantage of that opportunity, and is not pressured into making a premature decision, the decision should be respected provided there is no risk of injustice or unfairness to the suspect as a result. The suspect is, however, require to accept the consequences of the decision.

[25] The approach that enforcement officers take will necessarily be dependent on context. In some cases it will be important to ensure that a suspect is given the full ten minutes within which to make the decision. Examples of such situations may include those where the suspect is equivocal as to whether or not to undergo a blood test, or where the evidential breath test produces a reading close to 400 micrograms of alcohol per litre of breath. In the present case, however, Ms Constable had made it clear from the outset that she did not want to undergo a blood test. She repeated this view on two further occasions. Her position throughout was therefore that she

_{did not want to undergo a blood test. There is nothing in the evidence to suggest Ms}

⁹ Rae v Police, above n 8 at 462-463.

Constable was equivocal in her view, or that she may have changed her mind had she been given the opportunity to remain at the police station for the full ten minutes.

[26] Finally, there is no suggestion that the evidential breath test result was incorrect, or that the prosecution had failed to prove any other ingredient of the charge. The reading produced by the evidential breath test is also significant. It was well over the permissible limit of 400 micrograms of alcohol per litre of breath. The prospect that a blood test may have exonerated Ms Constable even if she had requested one was therefore remote.

[27] Although the brevity of the period within which Ms Constable made her decision means that further enquiry is clearly appropriate, I have concluded that no risk of injustice or unfairness arose as a result of the constable’s decision to terminate the testing procedures after just three minutes. It follows that Judge Bouchier was correct to hold there had been reasonable compliance with the requirements of the Act.

Result

_{[28] The appeal against conviction is dismissed.}

Lang J

Solicitors: