Faiva v Police [2016] NZHC 2882 (1 December 2016)

Last Updated: 7 December 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-202 [2016] NZHC 2882

BETWEEN	LOPETI FAIVA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	28 November 2016
Appearances:	M Ryan for Appellant R N T Thompson for Respondent
Judgment:	1 December 2016

JUDGMENT OF LANG J

_{[on appeal against pre-trial ruling and conviction]}

This judgment was delivered by me on 1 December 2016 at 4.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

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

FAIVA v NEW ZEALAND POLICE [2016] NZHC 2882 [1 December 2016]

[1] Mr Faiva faced a charge of driving a motor vehicle with excess breath alcohol.¹ He challenged the admissibility of the evidential breath test result that the prosecution relied upon to prove the charge. In a pre-trial ruling delivered on 20

_{May 2016, Judge Jelas held that the evidence was admissible.}² _{Mr Faiva then}

entered a guilty plea to the charge.

[2] Mr Faiva appeals against conviction on the basis that the Judge wrongly held the evidential breath test result to be admissible.

Background

[3] The evidence is silent as to the circumstances surrounding Mr Faiva’s detention for the purpose of providing an evidential breath test. I infer, however, that he had earlier failed a passive screening test after being stopped in circumstances indicating he had been driving. He was then required to accompany a police officer to a mobile processing facility, commonly known as a “booze bus”, for an evidential breath test to be carried out.

[4] The police officer who gave evidence before the Judge completed a standard form as he went through the breath testing procedure. This showed that the officer advised Mr Faiva of the reasons for his detention and his rights in respect thereof at

23.47 hours, or 11.47 pm. Mr Faiva signed the form to confirm the correctness of this information. The form then recorded that the evidential breath testing procedure commenced at 23.49 hours.

[5] The police officer also produced as an exhibit a copy of the printout provided by the evidential breath testing device. Consistently with the form completed by the officer, the printout showed that the machine commenced the breath testing procedure at 23.49 hours. The machine conducted a calibration check at 23.49 hours, and Mr Faiva then provided a sample of his breath at 23.50 hours. This returned a result of 549 micrograms per litre of breath at 23.50 hours. Mr Faiva then attempted to provide a second sample of his breath at 23.52 hours, but this proved to

_{be insufficient. He provided a third sample of his breath at 23.53 hours, and this}

¹ _{Land Transport Act 1998, s 56(1).}

² Police v Faiva [2016] NZDC 8753.

produced a reading of 559 micrograms of alcohol per litre of breath. The printout recorded that the device then conducted a further calibration check at 23.54 hours before producing the final result. In advising the final result the machine defaulted to the lower of the two readings it had obtained, meaning that Mr Faiva returned a final test result of 549 micrograms of alcohol per litre of breath.

The statutory regime

[6] Section 77(3) of the Land Transport Act 1998 provides as follows:

77 Presumptions relating to alcohol-testing

...

(3) Except as provided in subsections (3B) and (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—

(a) the person who underwent the test is not advised by an enforcement officer, without delay after the result of the test is ascertained,—

(i) that the test was positive; and

(ii) of the consequences specified in subsection (3A), so far as applicable, if he or she does not request a blood test within 10 minutes; or

(b) the person who underwent the test—

(i) advises an enforcement officer, within 10 minutes of being advised of the matters specified in paragraph (a), that the person wishes to undergo a blood test; and

(ii) complies with section 72(2).

[7] Where there has been non compliance with the requirements of the section, the resulting inadmissibility of the test result may nevertheless be cured by s 64(2) of the Act, which 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.

[8] The focus in the present case is on the time taken by the officer to advise Mr Faiva that he had returned a positive result and the consequences of that result. The officer provided the former advice to Mr Faiva two minutes after he had obtained the result of the evidential breath test, and he provided the remaining advice some five minutes later. In all, therefore, the officer took approximately seven minutes to provide both sets of advice to Mr Faiva. Mr Ryan argues on Mr Faiva’s behalf that an unexplained delay of this magnitude cannot constitute advice given without delay in terms of s 77(3), and that in the absence of explanation it cannot be cured by s

64(2).

[9] There is no dispute that, where an evidential breath test result is deemed inadmissible for non-compliance with s 77(3), the Court cannot re-consider the issue of admissibility under s 30 of the Evidence Act 2006.³

The Judge’s decision

[10] After setting out the background, the Judge rejected Mr Ryan’s submission that time began to run for the purposes of s 77(3) at 23.53 hours. This was the time at which the printout from the device recorded the second test result as having been obtained. The Judge’s conclusion that the result must have been printed out at some time after 23.53 hours was clearly correct. As previously observed, the printout from the machine device records that it conducted a further calibration test at 23.54 hours. The device could not have printed out the final test result until after it had conducted and recorded the result of the calibration test. For that reason time began to run for the purposes of s 77(3) from 23.54 pm.

[11] The Judge then observed:

[10] In determining what length of time has been considered to be “unexplained delays” under s 77(3) I note in the recent decision of Zhao v New Zealand Police Justice Keane observed that from his observation of recent relevant cases unexplained delays of between nine-11 minutes have been found to be fatal. The time period here was less than eight minutes. How much less than eight minutes I cannot speculate but the period is less

³ Birchler v New Zealand Police [2010] NZSC 109, [2011] 1 NZLR 169 at [17].

than the trigger nine minute period when the delay has been found to be unreasonable and fatal.

[11] Therefore, in reliance on Zhao and other authorities cited within that case, I find there was no breach of s 77(3) of the Act. The positive evidential breath test is admissible as evidence against the defendant that he was driving with excess breath alcohol.

[12] Mr Ryan submits that the Judge erred in her decision because she omitted to have regard to other cases in which a delay of less than nine minutes has resulted in the evidential breath test result being ruled inadmissible.

The cases

[13] Mr Ryan relies upon several cases in support of his assertion that the delay in the present case was too long. Several of these were decided some time ago, but others are relatively recent.

[14] In Twiss v Police, John Hansen J reviewed several cases decided under the Transport Act 1962, the predecessor to the Land Transport Act 1998.⁴ In those cases the comparable provision in the legislation used the term “forthwith” rather than “without delay”. The courts had held that the term forthwith meant “as soon as reasonably practicable”.⁵ Recent cases appear to have proceeded on the basis that the change in wording did not create any substantive change in the statutory requirement.⁶ The cases to which John Hansen J referred included the following:

(a) Roundill v Police, in which advice given within four minutes was held to have been given forthwith.⁷

(b) Barton v Ministry of Transport, in which an unexplained seven minute delay meant that the advice had not been provided forthwith.⁸

⁴ _{Twiss v Police HC Christchurch AP81/100, 7 July 2000.}

⁵ _{Scott v Ministry of Transport [1983] NZCA 16; [1983] NZLR 234 (CA) at 236.}

⁶ See eg Kydd v Police HC Christchurch CRI-2007-409-134 and 136, 29 June 2007 at [14] per

_{Chisholm J.}

⁷ _{Roundill v Police HC Auckland AP30/89, 15 April 1989 per Robertson J.}

⁸ Barton v Ministry of Transport HC Auckland M1270/84, 15 November 1984 per Barker J.

(c) Pemberthy v Ministry of Transport, in which a delay of nine minutes called for explanation, in the absence of which the appellant was entitled to succeed.⁹

(d) Liddington v Ministry of Transport, in which an unexplained delay of seven minutes between the obtaining of a result and the completion of advice was held to be fatal.¹⁰

(e) Fairley v Ministry of Transport, in which an unexplained delay of ten minutes was held not to comply with the legislation.¹¹

(f) Kryke-Smith v Ministry of Transport, in which an unexplained delay of nine minutes was held to be too long.¹²

(g) McCorkindale v Ministry of Transport, in which a gap of seven minutes during a “continuum of activity” did not prevent the appellant from having been advised “forthwith”.¹³

[15] In Twiss, John Hansen J held that a delay of eight minutes was too long, and observed that the enforcement officer “need[ed] to go further when there [was] a gap” of that magnitude.¹⁴

[16] More recently, in Kydd v Police and McCarthy v Police, Chisholm J held that overall delays of eight to ten minutes and ten minutes respectively did not render the test results inadmissible.¹⁵ Although the unexplained time lapse in each case prevented the advice from being given without delay in terms of s 77(3), Chisholm J held that s 64(2) cured the resulting breach. In each of those cases, however, the evidence disclosed that the enforcement officer had advised the defendant of the test

_{result within a few minutes of the result becoming available. In McCarthy the}

⁹ _{Pemberthy v Ministyy of Transport HC Hamilton AP149/86, 5 December 1986 per Gallen J.}

¹⁰ _{Liddington v Ministry of Transport HC Hamilton AP157/86, 9 December 1986 per Gallen J.}

¹¹ _{Fairley v Ministry of Transport HC Auckland M1728/84, 4 March 1985 per Prichard J.}

¹² _{Kryke-Smith v Ministry of Transport HC Wellington AP233/89, 6 November 1989 per Savage J.}

¹³ McCorkindale v Ministry of Transport HC Auckland AP288/91, 24 February 1992 per

_{Penlington J.}

¹⁴ _{Twiss v Police, above n 4, at [13].}

¹⁵ McCarthy v Police HC Wellington AP312/02, 19 February 2003; Kydd v Police, above n 6.

enforcement officer advised the defendant of the test result after four minutes and then advised the defendant of his rights approximately six minutes later. In Kydd, the defendant was advised of the test result immediately after it had been printed out by the evidential breath testing device. He was then provided with the remaining advice eight to ten minutes later.

[17] In Kavanagh v Police, the trial Judge had held that an unexplained delay of approximately nine minutes was in breach of s 77(3), but that the breach could be cured by s 64(2) because it did not prejudice the defendant.¹⁶ On appeal, Fogarty J accepted that s 64(2) was to be applied liberally, and that the issue of whether or not the defendant had suffered prejudice may be a relevant consideration. He did not consider, however, that the test was solely related to prejudice because that would substitute a prejudice test for a reasonable compliance test.¹⁷ Fogarty J held that in cases where the prosecution seek to rely upon s 64(2) it is necessary for it to provide an explanation for any breach that has occurred.¹⁸ Fogarty J distinguished McCarthy on the basis that the enforcement officer in McCarthy had advised the defendant of the test result within a relatively short time after it had been obtained. This meant that the delay was partly explained, and did not show “any complete failure of communication with the driver after the machine produced its result”.¹⁹ His Honour held that in the absence of an explanation for the delay, the resulting breach of s 77(3) could not be cured by s 64(2).

[18] In Kydd, Chisholm J distinguished Kavanagh on the ground that the enforcement officer in Kavanagh had not advised the defendant of the test result at an early stage, as was the case in Kydd. Chisholm J accepted the Crown’s submission that Kydd was indistinguishable from McCarthy. ²⁰

[19] In Ariki v Police there was a gap of nine to eleven minutes between the result being obtained and the required advice being given to the defendant.²¹ The trial

_{Judge held that the delay was too long, but that the resulting breach was cured by}

¹⁶ _{Kavanagh v Police HC Christchurch CRI-2005-409-231, 27 February 2006.}

¹⁷ _{At [13].}

¹⁸ _{At [13].}

¹⁹ _{At [14].}

²⁰ _{Kydd v Police, above n 6, at [22].}

²¹ Ariki v Police HC Auckland CRI-2007-404-174, 6 November 2007, Keane J.

invoking s 64(2). Keane J agreed that the delay amounted to a breach of the requirements of s 77(3). He also held that where the prosecution relied on s 64(2), it needed to explain the delay sufficiently to satisfy the Court that there had been reasonable compliance with the requirements of the section. In the absence of any such explanation, Keane J allowed the appeal and set the conviction aside.

[20] In Leota v Police the principal issue to be determined flowed from the discrepancy between the times recorded by the evidential breath testing device and those recorded by the officer on forms completed during the course of the breath testing procedure.²² The enforcement officer had recorded the latter from times taken from his watch. On one view of the evidence, the delay between obtaining the result and providing advice was approximately seven minutes. On the other, the delay was approximately 19 minutes. On appeal, Ellis J held that the evidence established the delay to have been approximately seven minutes. She observed that

counsel for the defendant had accepted that this would not provide a tenable argument for an argument based on delay.²³

[21] In Zhao v Police, the case upon which the Judge relied in the present case, an issue arose regarding discrepancies between times recorded by the evidential breath testing device and those recorded by the enforcement officer using his cellphone.²⁴

The defence contended that the evidence established a delay of nine to ten minutes before the officer had provided the defendant with the advice required under s 77(3). Keane J observed, citing Talwar v New Zealand Police²⁵ and Cullen v New Zealand Police,²⁶ that unexplained delays ranging between nine and 11 minutes “have been

_{found to be fatal”.}²⁷ _{Keane J also referred to Wheeler v New Zealand Police, in}

which there were again discrepancies between the times recorded by the evidential breath testing device and those recorded by the enforcement officer.²⁸ In that case Duffy J presumed the device to be accurate, and held that the delay in complying

_{with the requirements of s 77(3) was likely to be greater than the seven minute delay}

²² _{Leota v Police HC Auckland CRI-2009-404-373, 4 March 2010, Ellis J.}

²³ _{At [6].}

²⁴ _{Zhao v Police [2014] NZHC 1328.}

²⁵ _{Talwar v Police [2013] NZHC 315, [2013] NZAR 291.}

²⁶ _{Cullen v Police [2014] NZHC 1252.}

²⁷ _{Zhao v Police, above n 24, at [25].}

²⁸ Wheeler v Police HC Auckland CRI-2009-404-150, 31 August 2009.

recorded by the officer. Duffy J held that she was required to proceed on the basis that the delay may have been up to 17 minutes. This was fatal to the admissibility of the test result and, in the absence of explanation, to the invocation of s 64(2) to cure the breach.

[22] In Zhao, counsel for the defendant had argued that the evidence disclosed a delay of nine to ten minutes before the officer provided the defendant with the required advice under s 77(3). Keane J upheld the finding of the trial Judge, however, that the records kept by the officer were reliable. These confirmed he had provided the defendant with the required advice immediately after the test result was obtained from the device. For that reason there was no delay in complying with the requirements of s 77(3).

[23] In Gill v Police an issue arose regarding the duration of the testing process.²⁹

The enforcement officer said the test had commenced at 4.10 pm, and that he had advised the defendant of the result of the test at 4.20 pm. The form filled in by the officer as he carried out the procedure indicated that he completed his advice regarding the consequences of the result at 4.24 pm. The printout was not to the same effect. It indicated the test had commenced at 4.08 pm and had been completed at 4.15 pm, a period of approximately seven minutes.

[24] The trial Judge had noted that the defence had not challenged the officer’s evidence that he advised the defendant of the result at 4.20 pm. If the test had commenced at 4.10 pm as the officer said and had taken seven minutes as indicated by the device, the Judge concluded it must have been completed at approximately

4.17 pm. As a result, the officer’s advice as to result was given approximately three minutes after completion of the test. There would then have been a further delay of approximately four minutes before the remaining advice was given. The Judge did not consider that either delay was sufficient to breach the requirements of s 77(3), and held that the test result was admissible.

[25] On appeal, Duffy J noted that the overall delay was between four minutes and nine minutes depending on the records taken from the different timing devices. She

²⁹ Gill v Police [2016] NZHC 1790.

considered that a period of between four and nine minutes “rests at the threshold of what is acceptable under s 77(3), but it does not cross over into the territory of unacceptable delay”.³⁰ She therefore upheld the trial Judge’s conclusion that there had been no breach of the requirements of s 77(3).

Decision

[26] In the present case there is no discrepancy between the times recorded by the enforcement officer and those recorded by the device. The only issue is whether a total elapsed time of approximately seven minutes in completing delivery of the required advice prevented it from being given without delay. As both counsel acknowledged, the test result in the present case sits on the cusp of admissibility having regard to decisions reached in earlier cases.

[27] In this context the length of the delay in terms of minutes is not the only factor to be taken into account. This has been recognised by reference in some of the cases to the relevance of a “continuum of activity” during the period leading up to the delivery of the required advice.³¹ It must also be borne in mind that some time will necessarily be taken in actually providing the advice, although there is no evidence in the present case as to how long the process took. It is also reasonable to

assume that the officer must be permitted some time to record the result of the test and other information germane to the testing process.

[28] I consider the most important factor in the present case to be the timing of the two sets of advice that the enforcement officer provided to Mr Faiva. As I have already observed, the officer advised Mr Faiva after just two minutes that the evidential breath test had produced a positive result. That would clearly amount to advice provided without delay in terms of s 77(3). There was then a further delay of approximately five minutes until the officer completed providing Mr Faiva with advice regarding the consequences of the result. This included three essential components, all of which were set out on the form the officer used as an aide memoire in his dealings with Mr Faiva. The first was that the result of the evidential

_{breath test could be used as conclusive evidence in a prosecution for driving with}

³⁰ _{At [32].}

³¹ See eg McCorkindale v Ministry of Transport, above n 13, at 16.

excess breath alcohol if he did not request a blood test within ten minutes. The second was that a request for a blood test would prevent the result of the evidential breath test being used as evidence. The third was that the result of any blood test could be used to support a charge of driving with excess blood alcohol.

[29] Early advice as to result followed by subsequent advice as to consequences has resulted in the test result being ruled admissible in several cases. In McCorkindale, Penlington J referred³² to Bree v Ministry of Transport, in which the defendant had been advised of the result within three minutes and then provided advice as to the consequences four minutes later.³³ Jeffries J rejected an argument that the delay of four minutes meant that the test result was inadmissible. In doing so he observed:

To place an obligation upon a traffic officer to reduce further the period of four minutes might create an unreal situation where a traffic officer is dealing with a suspect. I have little hesitation in reaching the conclusion that a gap of four minutes is within the period contemplated by the statute as being reasonably practicable.

[30] In McCorkindale, the defendant had been told of the result four minutes after it was available and was then given advice as to the consequences three minutes later. Penlington J saw no distinction between the facts in the case before him and those in Bree. He also considered the facts of the case to be similar to those in Roundill v Police, where a delay of four minutes was held not to be outside the available range.³⁴ In Roundill, Bree and McCorkindale none of the delays that occurred caused the police to breach the statutory obligation to provide the required advice forthwith, or as soon as reasonably practicable. For that reason the test

results in those cases were ruled admissible.

[31] Chisholm J reached the same ultimate conclusion, albeit by a different route, in McCarthy and Kydd. In McCarthy, the Judge at first instance had implicitly held that the enforcement officer had breached the requirements of s 77(3) by providing advice in a truncated fashion over periods of eight to ten minutes. The trial Judge

_{had also concluded, however, that the breach could be cured by applying s 64(2).}

³² _{At 15.}

³³ _{Bree v Ministry of Transport HC Wellington M 105/87, 28 August 1987 per Jeffries J.}

³⁴ Roundill v Police, above n 7.

Chisholm J held that the delay that had occurred was “not such as to render s 64(2) beyond the reach of the Judge”.³⁵ In Kydd, Chisholm J did not uphold the trial Judge’s finding that the advice had been provided without delay, but he applied s

64(2) to cure the resulting breach.

[32] In the present case the Judge found there was no breach of the requirements of s 77(3). In doing so she effectively relied upon Keane J’s observation in Zhou that earlier cases demonstrated that a delay of nine to ten minutes would amount to a breach of s 77(3). I see no reason to depart from the Judge’s ultimate conclusion on this point because I consider it is justified using the reasoning contained in Bree, Roundill, McCorkindale and Gill. I consider there was full compliance with s 77(3) in terms of the advice as to test result, and that the required advice as to the consequences followed within a reasonably practicable period thereafter. I therefore uphold the Judge’s conclusion that the enforcement officer did not breach the requirements of s 77(3).

[33] Having reached that conclusion it is not strictly necessary for me to consider whether s 64(2) would cure any breach had it occurred. In case I am wrong in relation to the issue of breach, however, I propose to briefly consider the application of s 64(2) to the facts of the present case.

[34] In short, I would apply s 64(2) for essentially the same reasons I have found no breach to exist. In doing so I would be acting consistently with the approach taken by Chisholm J in both McCarthy and Kydd.

[35] I am conscious that there is at present significant inconsistency in the approach taken in different decisions of this Court regarding the need for the prosecution to explain any delay that may have occurred if it seeks to rely upon s

64(2) to cure a failure to comply with s 77(3). In both Kavanagh and Ariki Fogarty and Keane JJ held that it was incumbent on the prosecution to explain the delay if it wished to avail itself of s 64(2). Duffy J took the same approach in Wheeler and Gill. Chisholm J appears to have taken a different approach in McCarthy and Kydd,

_{and Ellis J has taken a significantly different approach again in Leota. This is}

³⁵ McCarthy v Police, above n 15, at [13].

obviously an unsatisfactory state of affairs, and I hesitate to muddy the waters further by contributing to the debate by way of comments that are clearly obiter. Nevertheless I consider it important to bear in mind the context within which evidential breath tests are often administered.

[36] As the cases demonstrate, evidential breath test procedures will often be carried out in busy mobile facilities in which tests are being carried out one after the other. That can be discerned from cases in which the court has recorded that the defendant was required to wait for some time before the procedure began. I accept that in cases where there has been a significant delay it will be incumbent on the prosecution to provide an explanation for the delay. Where, however, the delay is of the order of five minutes or so I do not consider such a requirement to be realistic or practicable. An enforcement officer cannot reasonably be expected to recall, when giving evidence several months after the event, why it may have taken that length of time to complete giving a suspect the advice required under s 77(3). I consider s 64(2) should be available to cure any resulting breach in such cases because advice given within that type of time frame amounts, in my view, to reasonable compliance with the section. For that reason I do not consider there should be a universal requirement that the prosecution must provide an explanation in any case where it seeks to rely upon s 64(2).

Result

[37] The Judge’s ruling that the evidential breath test result was admissible is

_{confirmed. The appeal is dismissed.}

Lang J

Solicitors:

Crown Solicitor, Auckland