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High Court of New Zealand Decisions |
Last Updated: 20 December 2018
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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
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CRI 2018-454-13
[2018] NZHC 3380 |
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BETWEEN
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MARCUS KONRAD WELBY TAMAIRA
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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6 November 2018
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Counsel:
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P L Murray for Appellant
M G Wilkinson and S P Poulton for Respondent
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Judgment:
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18 December 2018
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JUDGMENT OF SIMON FRANCE J
[1] Following a motor vehicle accident involving a car which he was driving, Mr Tamaira was located at a petrol station. He had walked there in order to ring a taxi. It was apparent he had been drinking. Breath alcohol procedures were initiated. The ultimate outcome was a blood alcohol reading of 243 mg of alcohol per 100 ml of blood, nearly five times the legal limit.1 Mr Tamaira was duly convicted.2
[2] On appeal Mr Tamaira renews a challenge to the process by which that blood alcohol reading was obtained. It is claimed that in the early stages of the process there was non-compliance with statutory procedures, and a short period of unlawful detention, the consequence of which should have been exclusion of the blood alcohol evidence.
1 Land Transport Act 1998, s 56(2) and (2A).
2 New Zealand Police v Tamaira [2018] NZDC 18334.
TAMAIRA v POLICE [2018] NZHC 3380 [18 December 2018]
[3] The procedural route to the blood alcohol test, was:
(a) a passive screening test that recorded the presence of alcohol;
(b) a breath screening test that gave a reading over the statutory limit;
(c) an evidential breath test which did likewise; and
(d) as requested by Mr Tamaira, a blood alcohol test.
[4] Two challenges are made here:
(a) first, it is submitted it was not established on the evidence that the second step of a breath screening test was done at all; and
(b) second, if it was, the method by which it was done is said to have involved an unlawful detention requiring exclusion of evidence as a response.
Was there a breath screening test?
[5] Mr Tamaira was located by police at the petrol station where he had gone to ring a taxi. The police officer had in his hand an alcohol screening device. This device performs two functions. A passive screening test can be done by requiring the driver merely to speak into the device. It will read positive or not to the presence of alcohol. The device can also be used for the breath screening process but this requires a plastic tube to be fitted to it. The driver then blows into it and an actual reading is obtained, although it will only be something such as “over 400” (the previous limit).
[6] CCTV footage of the incident appears to show that inside the petrol station the device being carried by the police officer did not have a tube attached, nor did the officer appear otherwise to be carrying one. Consistent with this, the officer testified that he keeps the tubes in the police car. Mr Tamaira can be seen to speak at the device (the passive test). The officer looks at it. There is conversation and then Mr Tamaira
and the officer head out to the police car which is parked immediately outside the front doors of the petrol station.
[7] Mr Tamaira maintained there was only ever one test, namely that done in the petrol station. He did, however, recall the officer speaking about a reading over 400. The officer’s notebook recorded a breath screening test being done, but the timings in the notebook do not match the CCTV footage. The appellant’s position is that:
(a) the notebook timings are unreliable;
(b) the objective evidence of the CCTV footage showed a window of no more than 25 seconds in the police car for such a test to be done; and
(c) Mr Tamaira was adamant only the test inside the police station was done. This could only be the passive test.
[8] Two of these points require expansion. Concerning Mr Tamaira’s evidence, weight was placed on his recollection of being told of a reading “over 400”. This could only be a reference to the result a breath screening test, and was understandably used by the District Court as support for the proposition that such a test was undertaken. However, Mr Murray submits that all the rest of Mr Tamaira’s evidence, both on this event and the earlier traffic incident, was rejected. It is therefore submitted to be incorrect to just rely on this one aspect of his evidence.
[9] In relation to the point about there being only a 25 second window in which to conduct the test, the police car actually sat there with Mr Tamaira in it for 48 seconds. However, the car’s brake lights came on after 25 seconds, indicating the engine had been started. Mr Murray submits it is unlikely the driver would have turned on the engine until the result of the breath screening test were known; hence, the claim the window of opportunity is only 25 seconds.
[10] I agree with the District Court that the evidence establishes a breath screening test was conducted. The officer says he did one, and the contemporaneous notebook entry confirms that. Errors in the times and timing recorded do not undermine the core
fact that a test was done. I also observe it is inherently unlikely, given its central place in the well-known procedures, that such a test would not have been done. On top of this, Mr Tamaira’s recall about “over 400” is also telling. There is simply no explanation for it other than that it was prompted by an actual breath screening test. Finally, the analysis of timings based on the CCTV footage and the car brake lights is too speculative. What can be said is that there were 48 seconds before the car drove off. There is no evidence to say that is inadequate time to conduct the test.
[11] A supplementary point raised concerning this evidential issue related to the applicable standard of proof. Mr Murray noted that for a charge under s 56(1), being the breath alcohol offence, it is necessary to prove the fact of an evidential breath test to the criminal standard.3 He submits the same should apply for s 56(2), the blood alcohol offence. A defendant’s election, following a positive evidential breath reading, to have a blood alcohol test done should not alter the standard of proof regarding the same steps preliminary to both. It adds another layer but cannot alter the evidential requirements concerning the preceding steps.
[12] There is logic to the point but it is not the law. The criminal standard applies only to elements of an offence. All other aspects that must be proved, such as ancillary preliminary steps, or say an alleged Bill of Rights breach, attract the civil standard. The breath screening test is not an element of an offence under s 56(2). Accordingly, these ordinary principles apply, and the fact of a breath screening test must only be proved to the civil standard. The difference in position between the two offences can be explained by the different level of confidence applicable to blood alcohol readings. Once there is a blood alcohol reading, the breath alcohol readings become very much part of the background. The anomaly, if there be one, is that the criminal standard applies to the preliminary breath screening test under s 56(1). There is nothing about s 56(2) that requires the extension of this anomaly to the blood alcohol offence.
Was the detention unlawful?
[13] The final appeal issue focusses on the process of moving Mr Tamaira from the scene of the passive breath test (inside the petrol station) to the scene of the breath
3 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [14].
screening test (inside the police car). There is a body of authority that holds there is no detention power under the relevant breath screening provision – s 68 of the Land Transport Act 1998.4 It follows that if the police required Mr Tamaira to accompany them on this short excursion of 10 metres or so, it was an unlawful detention until the “over 400” breath screening test was obtained.
[14] The evidence about the point was quite vague because of the different positions taken. The officer could not recall what happened but deduced he undertook the breath screening procedure in the car. That means that following the passive screening test, Mr Tamaira went to the car either because directed to by the police, or voluntarily – presumably in preference to the more public venue inside the petrol station. Mr Tamaira maintained the position that there was only the one passive test done inside the service station. On this theory, it is unclear why he went to the car.
[15] The onus to establish unlawful detention lay on Mr Tamaira. I doubt it has been discharged in the sense that there is no evidence to suggest he did not voluntarily go to the police car but the point is of little import in this case. The case for inadmissibility under s 30 of the Evidence Act 2006, if there were a brief period of unlawful detention, is weak.
[16] It is common ground the police could have conducted the breath screening test in the service station. So, the same limited detention was going to occur. It is a minimal further intrusion into liberty to require Mr Tamaira to walk 10 metres or so to the police car. The effect was to conduct the exercise in more privacy and the shift involved no danger to Mr Tamaira. Drink driving is of considerable public concern and in the circumstance exclusion of the evidence would be a disproportionate response. There was no bad faith on the part of the officers and obtaining the evidence was a necessary next step in the process. There is no suggestion the detention affected what was going to be an inevitable outcome, wherever the breath screening was done. Accordingly, the evidence is admissible.
[17] One gets to this position of unlawful detention and a s 30 analysis by virtue of a tight reading of s 68 of the Land Transport Act that sees no power at all to detain in order to give effect to the power to test (other than an obligation on the suspect to await the outcome). This approach is reflected in the comment by Nicholson J in Excell v New Zealand Police that there are no lawful shades of grey between the white of liberty and the black of arbitrary detention.5 It is Excell that is most relied upon for the current view, a recent example of which is Dryden v New Zealand Police.6 Some older cases have taken a broader view of the power, reading into the section a limited power of reasonable detention, but these have not prevailed.7
[18] It may be that the area merits appellate attention. It would, in my respectful opinion, be surprising if Parliament has conferred a power (to require the person to take the test) but afforded no control mechanism at all. One can readily imagine situations of safety arising, such as at the roadside. Or a need, as here, to return to the police car to obtain the device. The person concerning whom there is good cause to suspect has committed a relevant offence must seemingly be left unaccompanied while this occurs. No doubt any capacity to detain would be very constrained, and be situation specific, but the idea of no power at all seems to create surprising practical difficulties and risks.
[19] The appeal is dismissed.
Simon France J
5 Excell, above n 4, at [20].
6 Dryden v New Zealand Police [2016] NZHC 92.
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