Wiri v Police [2014] NZHC 2460 (7 October 2014)

Last Updated: 23 October 2014

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000033 [2014] NZHC 2460

ROBERT KINGI JAMES WIRI Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	2 October 2014
Appearances:	Zahir Mohamed for the Appellant Andrew Hill for the Respondent
Judgment:	7 October 2014

RESERVED JUDGMENT OF MOORE J [Appeal against conviction]

This judgment was delivered by on 7 October 2014 at 3:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

WIRI v NEW ZEALAND POLICE [2014] NZHC 2460 [7 October 2014]

Introduction

[1] Mr Wiri was convicted by Judge Cooper in the Rotorua District Court on

10 June 2014 on a charge of driving with excess blood alcohol.

[2] The conviction arose out of events in late 2013 when Mr Wiri’s erratic driving brought him to the attention of a passing Police patrol. His car was pulled over and a passive breath screening test was administered. This was positive resulting in the administration of a breath screening test which also returned a positive result. As a consequence Mr Wiri was required to accompany the officer to the Rotorua Police station where an evidential breath test was carried out. That too returned a high positive reading. Mr Wiri was advised of his right to a blood test. He elected a blood test which returned a high reading of 245 milligrams of alcohol per 100 millilitres of blood.

[3] Mr Wiri’s appeal is narrow in focus. He advances four grounds of appeal,

namely:

(a) the Judge erred in admitting and/or relying upon the analyst certificate;

(b) the Judge erred in applying s 64(2) of the Land Transport Act 1998

(“the LTA”);

(c) the Judge ignored the large number of discrepancies in the constable’s

evidence and documents; and

(d) the prosecutor’s conduct amounted to prosecutorial misconduct.

[4] The first three grounds are inter-related. In essence, the claim is that the Judge erred in admitting as evidence the analyst’s certificate because under s 76(1)(a) the LTA certificate may only be relied on if it names a person having the same name, address and occupation as the defendant as the person from whom the specimen of blood was taken.

[5] In this case there is a discrepancy between the two key documents. The charging document and summons which Mr Wiri answered refers to Robert Kingi James Wiri whilst the analyst’s certificate which was used to prove the blood/alcohol level refers to Kingi Robert James Wiri. Thus there is a transposition of the first or Christian name of the person. In other words, there is not a perfect alignment or correspondence between the name recorded on the charging document and the name recorded on the s 75 evidential certificate.

[6] Mr Mohamed, for the appellant, goes further and submits that this defect is so fundamental it is incapable of being cured by resort to the reasonable compliance provision contained in s 64(2) of the LTA and, in any event, such were the number of discrepancies in the constable’s evidence and the documentation that the Judge was wrong to “ignore” these.

[7] The fourth ground of appeal relates to prosecutorial misconduct and is dealt with separately.

District Court decision

[8] In the District Court Mr Mohamed’s submission was that the analyst’s certificate did not have the same name, address and occupation as the defendant and, as such, was not admissible in terms of s 75 as proof that the blood specimen analysed was, in fact, taken from the defendant.

[9] As noted, the difference is the transposition of the first two Christian names of Mr Wiri. In the charging document the defendant is named Robert Kingi James Wiri. However, in the analyst’s certificate, the defendant is named as Wiri, Kingi Robert James. The balance of the details of the address and occupation of the defendant corresponds exactly with those details on the charging document.

[10] Thus the issue before his Honour was whether the discrepancy in the transposition of the two first names of Mr Wiri in the charging document and the analyst’s certificate was a fatal flaw in proof or whether the defect could be cured by resort to the reasonable compliance provision in s 64(2) of the LTA.

[11] His Honour, in deciding that s 64(2) operated to cure the defect, noted that the discrepancy was relatively minor, there was no real prejudice to the defendant and the constable had given evidence as to how the difference in the description of the first names had come about.¹

[12] His Honour convicted Mr Wiri and sentenced him. [13] Mr Wiri now appeals the conviction.

Appeal

[14] Section 229 of the Criminal Procedure Act sets out a person’s right to appeal

against conviction.

[15] Under s 232(2)(b) and (c), the High Court can only allow an appeal if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any reason.”

[16] “Miscarriage of justice” is defined in s 232(4) as: “any error, irregularity, or

occurrence in or in relation to or affecting the trial that:

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.”

[17] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.² The error or irregularity must lead to either of the consequences listed in paras (a) or (b)

[18] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if

¹ His evidence was that when he obtained the details of the defendant’s name and address from the defendant he was told the defendant’s name was Kingi Robert James Wiri. However, later at the Police station, the Police’s database showed that he was also known by the name of Robert Kingi James Wiri.

² “A miscarriage is more than an inconsequential or immaterial mistake or irregularity.”: Matenga v R

[2009] NZSC 18 at [30].

nothing had gone wrong.”³ This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe”⁴ but that there is a real possibility the verdict would be unsafe.⁵

[19] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.⁶ Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.⁷

Appellant’s Submissions

[20] Mr Mohamed for the appellant advances the four grounds of appeal set out in

[3] above.

[21] The first three grounds may be dealt with together because they are related and their resolution is dependent on the same principles. The fourth ground will be discussed separately.

[22] Section 76 of the LTA is reproduced below:

76 Presumptions relating to blood specimens

(1) In proceedings for an offence against this Act it is to be presumed, in the absence of proof to the contrary, that,—

(a) if a certificate referred to in section 75 names a person having the same name, address, and occupation as the defendant as the person from whom the specimen of blood was taken, the specimen was taken from the defendant:

...

_{(Emphasis added)}

³ _{R v Sungsuwan [2005] NBSC 57[2005] NZSC 57; , [2006] 1 NZLR 730 (SC) at [110] per Tipping J.}

⁴ _{At [10].}

⁵ _{At [110].}

⁶ _{Condon v R [2006] NZSC 62 at [78].}

⁷ Randall v R [2002] UKPC 19; [2002] 1 WLR 2237 (PC) per Lord Bingham, cited with approval by the Supreme Court in Condon v R, above n 4, at [78].

[23] For the presumption under s 76(1)(a) to operate the s 75 evidential certificate must “... name a person having the same name, address and occupation as the defendant as the person from whom the specimen of blood was taken, the specimen was taken from the defendant.”

[24] The “same” in this context means “correct”.⁸ In Coltman v Ministry of Transport the defendant’s address was recorded as 44A Muratai Road when his correct address was, in fact, 440 Muritai Road.⁹ The relevant provision at the time, s

58B(9) of the Transport Act 1962 used the same wording as the present s 76. The

Court of Appeal held:¹⁰

In its ordinary and natural meaning subs (9)(c) is referring to a description of a person who has a name, address and occupation which is in fact the same as the defendant. No doubt this is the normal situation, and thus this special statutory rule of evidence is helpful to the prosecution in the great majority of cases. If it is thought necessary, in the light of experience, then it should not be too difficult for the Act to be amended in some suitable way. In my opinion however the analyst's certificate in the present case did not refer to a person having the same address as the defendant — the discrepancy was too great in the street number even if it were possible to regard the spelling mistake in the name of the road as so minor that it should be disregarded.

[25] Mr Mohamed submits that because the s 76 evidential certificate referred to a person whose name was different to that of the defendant named in the proceedings, the requirements of s 76(1)(a) were not met and thus the evidence of the blood alcohol analysis was inadmissible with the result that an essential element of proof of the charge, namely that the blood on analysis showed a level of alcohol in excess of the prescribed level, was not proved beyond a reasonable doubt. As a consequence,

_{he submits, the charge should have been dismissed.}

⁸ _{Brookers Law Transportation (online looseleaf ed, Brookers) at LT 76.02.}

⁹ _{Coltman v Ministry of Transport [1979] 1 NZLR 330 (CA).}

¹⁰ At 333.

[26] Furthermore, he submits with reference to authorities that this fatal failing is incapable of being cured by resort to the reasonable compliance provision in s 64(2).¹¹

[27] In particular, Mr Mohamed places considerable emphasis on the observations of the Court of Appeal in Police v Smith and Coltman v Ministry of Transport.

[28] In Police v Smith the Court discussed the nature of the analyst’s certificate in

the following way:¹²

These provisions of the Transport Act introduce in favour of the prosecution’s statutory exception to the ordinary rules of evidence which would otherwise require the various persons concerned to be called by the prosecution as witnesses. In those circumstances we are of [the] opinion that the conditions of their admissibility should be strictly construed. Those conditions should be regarded as a minimum safeguard prescribed by the Legislature in order to guard against the possibility of error.

[29] Very properly, Mr Mohamed referred me to Haslam v Auckland City Council which, to some extent, operates against his argument where in relation to a case involving a father and son having the same or similar name it was observed:¹³

Mr Mohamed submitted that there was no proof that the appellant was the person named in the order. That submission can be quickly dismissed. The appellant bore the same name and address as the person who had given a name and address to the traffic officer; this was the same person named in the licence and in the purported order. There was no reasonable doubt raised on the evidence that the two were not one and the same person. One can imagine circumstances where, say, father and son shared the same name and address; but there was just nothing in the evidence here to raise that kind of circumstance as a reasonable possibility.

[30] Finally on this point, Mr Mohamed submits that resort cannot be made to s

64(2) because of the number of errors and discrepancies in the documents, particularly the medical and analyst certificates. He submits it was inappropriate to

_{apply on or invoke the reasonable compliance provision in this case.}

¹¹ Coltman v Ministry of Transport, above at n 9; Thompson v Police HC Dunedin CRI-2005-412-52,

31 March 2006; Police v Smith [1975] 2 NZLR 755; Haslam v Auckland City Council CRNZ 590; Young v Police HC Auckland M1750/84, 22 February 1985; Hoopersmith v Police AP1/00, HC Wanganui (1987), 19 July 2000; Wheeler v Police HC Auckland CRI-2009-404-000150, 31 August

2009; Ariki v Police HC Auckland CRI-2007-404-000174, 6 November 2007; Brown v Police [2012] NZHC 1192.

¹² _{Police v Smith, above n 11, at 761.}

¹³ Haslam v Auckland City Council, above n 11, at 593.

[31] In answer to a question from me as to which errors and discrepancies he relied upon, he cited four:

(a) the name was wrong on the analyst’s certificate;

(b) the blood specimen form failed to comply with s 76(1)(a);

(c) there was no clear evidence as to how the analyst came to use the name on the evidential certificate; and

(d) there was no clear evidence as to what the defendant’s name actually was by reference to the charging document or the analyst certificate. In relation to this ground, Mr Mohamed accepted that it was essentially the same claim as (a).

Analysis

Grounds 1 to 3

[32] It is correct, as already noted, that there is a discrepancy between the defendant’s name as recorded on the charging document and the name on the evidential certificate. There is also a minor error on the blood specimen form where the name Robert is spelled “Rober”. On all other documents, namely the medical certificate, the summons and charging document, traffic offence notice, procedure sheet, constable’s statement, registered post receipt and suspension notice, the surname Wiri is consistently used and the first names of Robert and Kingi are variously transposed. As noted earlier the description of the occupation and the residential address corresponds exactly and consistently across all documents.

[33] The proper focus in the present case must be on the correspondence between the evidential certificate and the charging document which caused the appellant to appear in Court to face the charge. However, reasonable compliance under s 64 can apply to a mistake in the certificate. Section 64(2) of the LTA relevantly 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.

[34] In Coltman the Court of Appeal considered whether s 64’s earlier iteration¹⁴

should apply:¹⁵

After giving the matter considerable thought I have come to the conclusion that the more liberal view ought to be preferred. It seems to me very much in the public interest that s 58(2) should be construed in a way which gives some latitude in relation to errors in certificates given either under s 58B(5) or s 58B(9).

[35] In determining whether there had been reasonable compliance in Coltman the

Court of Appeal considered the purpose of certificate:¹⁶

The purpose of subs (9)(c) is to enable the certificate to speak for itself without reference to any other evidence except such evidence as may be before the Court regarding the actual name, address and occupation of the defendant. If, in the light of that evidence, the overall description in the certificate is sufficiently close to a true description to leave the tribunal in no doubt that the defendant is the person therein referred to then there will have been reasonable compliance with subs (9)(c). The Court will then go on to consider whether, in the light of all the evidence, including the certificate, the prosecution case has been proved. This simple and obvious approach was, as I understand it, the one which found favour with Quilliam J in the present case and with McMullin J in Scott's case. I agree with Quilliam J that the errors in the present certificate are minor ones; when taken along with the entirety of the particulars given in the certificate they create no real doubt as to whether the defendant is indeed the person therein referred to. Further, the other evidence given in the case strengthens rather than weakens the statutory presumption that the specimen of blood was in fact taken from the defendant. That is as far as it is necessary to go for the purposes of the present case, and I prefer to leave open the question whether a gross disparity between a certificate and a true description of a defendant can in some circumstances be cured by s 58(2). In practice I would think that a discrepancy of that kind would or should come to the notice of the prosecution in ample time to call the analyst to give evidence linking up the sample he received from the constable or traffic officer with the sample which he analysed.

_{(Emphasis added)}

¹⁴ _{Transport Act 1962, s 58.}

¹⁵ _{Coltman v Ministry of Transport, above n 9, at 334.}

¹⁶ At 334.

[36] Cooke J added:¹⁷

The cases drawn to our attention did not include any in which the discrepancies between a certificate and the true name, address and occupation were wide, but it is conceivable that there could be a wide or even total discrepancy if, for instance, a defendant were to give wrong information to a traffic officer. The greater the discrepancy, the slower the Court would be to find reasonable compliance. But if the evidence satisfactorily accounts for the discrepancy, in the sense that there is no reasonable doubt that the certificate does relate to the defendant's blood and reasonable care has been taken in obtaining the particulars, I think, like Woodhouse J, that the Court would usually be entitled to find reasonable compliance. There appears to be no injustice in this approach.

(Emphasis added)

[37] The Courts take a liberal approach to the use of reasonable compliance provisions, examining the following:¹⁸

(a) the extent of non compliance;

(b) whether there is a real possibility of the defendant being prejudiced by non-compliance;

(c) whether there is reasonable doubt that an ingredient of the charge has been proved;

(d) whether an enforcement officer has to exercise a discretion and has acted reasonably and treated the defendant fairly.

[38] Breath and blood alcohol prosecutions are not to be defeated by purely technical and non-prejudicial errors or omissions.¹⁹

[39] In Police v Orr, the defendant had given his brother’s name (Nigel William Orr) instead of his own (Kevin Howard Orr). Documentation for the offence of driving with excess blood alcohol was completed in the name of Nigel. Kevin Orr later admitted that he had given a false name and his name was Kevin. The High

_{Court had to determine beyond a reasonable doubt whether uncontradicted evidence}

¹⁷ _{Coltman v Ministry of Transport, above n 9, at 337.}

¹⁸ _{Brookers Law of Transportation (online looseleaf ed, Brookers) at LT64.03(1).}

¹⁹ Shaw v Police CA212/95, 21 September 95.

that the person who was charged, appeared and pleaded was also the same person who drove the motor vehicle and had given the blood sample. Had the prosecution proved that the person named in the information as Nigel was the same person as Kevin. Gendall J would have held that there had been reasonable compliance, even with such a wide discrepancy. That was because “if the evidence proves the true facts beyond reasonable doubt, the Court can find reasonable compliance as a matter

of justice and common sense.” Gendall J noted: ²⁰

A name is simply a way of identifying a person and it is possible for a person to change his or her name, or go under more than one name yet they will still be the same person. The certificate of analysis does not identify the defendant, but rather it identifies the specimen of blood. If the prosecution is able to establish by some evidence, outside the certificate itself, that the certificate and analysis relates to and was intended to relate to the person who is the defendant then in my view the contrary has been proved. Examples of this commonsense approach can be seen in the decision of Lockhart v Akana (1987) 2 CRNZ 345. It is not the name that matters, otherwise any offender could avoid the consequences of his offence simply by giving any name. The issue is whether there was proper proof beyond reasonable doubt that this respondent committed this offence and this analysis of blood related to this respondent. It is immaterial that the respondent's admission that he gave an incorrect name was excluded by the Judge.

[40] It is apparent from Judge Cooper’s decision that he took into account and examined the relevant considerations in determining whether, in the circumstances, there had been reasonable compliance with ss 75 and 76. The relevant considerations in my view are as follows:

(a) First, to the extent that there is non-compliance by reason of the transposition of Mr Wiri’s first names, it is minor even in comparison with other cases of non-compliance.²¹

Although the first names are transposed they are spelled the same

way. Furthermore, Mr Wiri’s third name, James, when used always

_{precedes his surname.}

²⁰ _{Police v Orr HC Palmerston North AP16/98, 17 February 1999.}

²¹ Such as Coltman v Ministry of Transport, above n 9, at 337

Additionally, there is a correspondence across both documents in terms of Mr Wiri’s occupation and the details of his residential address.

(b) Secondly, I am satisfied that there is no prejudice arising from this transposition, a matter which his Honour specifically dealt with in his judgment. When the arresting officer was cross-examined he confirmed that Mr Wiri requested the officer to refer him as “Kingi” as opposed to “Robert”. However, following their arrival at the Rotorua Police station, the constable made an enquiry through the Police’s national intelligence database. This showed that Mr Wiri was also known by the name of Robert Kingi James Wiri. This explains the transposition of names.

(c) There is no evidence that the Police, throughout their dealings with

Mr Wiri, acted reasonably and treated him fairly.

[41] As noted earlier, the third ground of appeal is that the Judge ignored the large number of errors and discrepancies in the constable’s evidence and documents. However, on examination, these discrepancies all relate to the central issue involved in this appeal and that is the transposition of the two first names of the appellant. There are no other relevant discrepancies involved.

[42] It thus follows the discrepancy in the present, such as it is, is minor in the extreme and explicable on the evidence. There can be no doubt that there is such a degree of correspondence between the name and details of the appellant on the charging document and the name of the person whose blood was analysed and is referred to in the analyst’s certificate that they are one in the same. I come to that conclusion on the evidence without the need to resort to s 64(2) and reasonable compliance.

[43] However, even if I am wrong, I am satisfied that s 64(2) operates to cure any discrepancy given its modest nature, its explanation on the evidence, the absence of

prejudice and the conduct of the enforcement officers. I am fortified in this view by the following:

(a) The preponderance of higher court authority which has found reasonable compliance in cases where the discrepancy has been more significant than the present.

(b) The need for Courts to take a liberal approach to the use of reasonable compliance provisions.

(c) The need to ensure that breath and blood alcohol prosecutions are not defeated by purely technical and non-prejudicial errors or omissions.

[44] On the evidence I am satisfied that Judge Cooper was correct when he concluded that the charge against Mr Wiri had been proved beyond a reasonable doubt.

Ground 4 – prosecutorial misconduct

[45] Mr Mohamed submits that through the improper actions of the prosecutor irrelevant and prejudicial evidence was wrongly presented. He submits that as a result the trial Judge was improperly influenced and this resulted in a miscarriage of justice.

[46] The circumstances are as follows. In the course of the evidence the prosecuting sergeant asked the constable if he had made any other enquiries into Mr Wiri’s history. The trial transcript records that at this point, and before an answer was obtained from the constable, Mr Mohamed addressed the Court. It is not clear from the record what the exchange was because it was not transcribed and Mr Mohamed now has no recollection of why he interrupted or what he or the Judge said. However, given the circumstances, it seems likely that he was either making an objection or was, at the least, registering his concern over where the questioning was going. Despite this, the questioning continued with the sergeant asking whether the constable had obtained certificates of Mr Wiri’s previous convictions. Again the proceedings were interrupted with Mr Mohamed recorded as addressing the Court.

Despite this, the question was repeated and the constable answered that Mr Wiri had two previous drink driving convictions and produced certified copies of them.

[47] It is common ground that the proof of previous convictions was not an element of the charge which Mr Wiri faced. Why the prosecutor asked these questions is unexplained.

[48] At the close of the prosecution’s case Mr Mohamed submitted that there was no case to answer. This argument was based on the name transposition issue only, although Mr Mohamed also registered his concerns about the prosecution introducing irrelevant and prejudicial material. The exchange between Mr Mohamed and the Court at this point is reproduced below:

The Court:

Anything further Mr Mohammed?

Mr Mohammed

I wouldn’t have, but because the Sergeant has placed before Your Honour, two certificates of the previous convictions, Your Honour, those are not an ingredient of the offence.

The Court:

No

Mr Mohammed:

As long as that’s clear, Your Honour, I would be wasting Your Honour’s time at this stage to advance any further submissions on that, although I have got a number of submissions as to the admissibility of previous convictions for example in this case, in one certificate it does not say who the Judge was. I’ve got a copy of that case in which I had appeared which was supposed to be before a Judge in Dunedin.

The Court:

This is a new submission, not advanced previously.

Mr Mohammed:

I shouldn’t worry, Your Honour, at this stage.

The Court:

Alright.

[49] The Judge agreed that the previous convictions were not an ingredient of the offence. Mr Mohamed did not invite the Court to dismiss the charge or invite the Judge to recuse or disqualify himself and/or declare a mistrial.

[50] There is nothing in the record or in his Honour’s decision which might suggest that Judge Cooper paid improper regard to the previous convictions when coming to his decision. He knew the evidence was inadmissible. In Judge alone trials it is not uncommon for prejudicial inadmissible evidence to be adduced. It is for the Judge to put it to one side and I can see no grounds to conclude that the Judge failed to do just that in the present case. Furthermore, the primary defence was a technical one which did not rely on issues of credibility or an assessment of Mr Wiri’s character or reliability

[51] I am not satisfied that this highly experienced Judge was influenced in any way by the introduction of this inadmissible material. Nor am I satisfied that this is the case where the conduct of the prosecution was sufficiently contumelious that it deserves the extreme sanction of dismissing the charge on the grounds there was a miscarriage of justice. I find against the appellant on this ground of appeal also.

Result

_{[52] The appeal is dismissed.}

Moore J

Solicitors:

Mr Mohamed, Auckland

Crown Solicitor, Rotorua