Police v Kelly Hc Gis
| Jurisdiction | New Zealand |
| Judge | Andrews J |
| Judgment Date | 17 November 2011 |
| Court | High Court |
| Docket Number | CRI 2011-416-000019 |
| Date | 17 November 2011 |
IN THE MATTER of an appeal from a determination of the District Court At Gisborne
CRI 2011-416-000019
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
Appeal against District Court's dismissal of charges under s56(1) Land Transport Act 1998 (“LTA”) (driving motor vehicle with excessive alcohol breath level)— respondent's evidential breath test recorded excessive alcohol breath level — police constable identified s114(1) LTA (power to require driver to stop and give name and address, etc) as basis of authority for conducting test — no specific evidence given as to whether police constable was in uniform, or wearing a distinctive cap, hat, or helmet, with a badge of authority affixed to it — officer used passive voice in giving evidence rather that stating that he had administered the test — whether it had been proved that police officer who had administered the passive breath and breath test was an enforcement officer wearing a uniform or other symbol of his authority; and whether judge was correct to conclude that it was not proved that police constable had administered the evidential breath test.
S Manning for Appellant
D J Sharp for Respondent
(RESERVED) JUDGMENT OF Andrews J
Mr Kelly was the driver of one of two cars involved in a collision on the night of 25 December 2009. He failed a passive breath test and a breath screening test administered at the scene. Mr Kelly was then taken to the Gisborne Police Station where an evidential breath test recorded his breath alcohol level as 978 micrograms of alcohol per litre of breath.
Mr Kelly was charged under s 56(1) of the Land Transport Act 1998 (the Act) with driving a motor vehicle on a road while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath. The charge was heard in the District Court at Gisborne on 21 September 2010. In a reserved judgment delivered on 8 November 2010, Judge Maze dismissed the charge. 1 The Police have appealed by way of case stated on a question of law.
Two broad issues require determination in this appeal. They are, first, whether the Judge was correct to conclude that it was not proved beyond reasonable doubt that the Police Officer who administered the passive breath and breath screening tests was an enforcement officer wearing a uniform or other symbol of his authority; and, secondly, whether the Judge was correct to conclude that it was not proved beyond reasonable doubt that the Police Officer had administered the evidential breath test.
At the hearing of this appeal, Mr Manning on behalf of the Police advised the Court that, should the appeal succeed, the Police did not seek to have the matter sent back to the District Court.
The Police relied on the evidence of Constable Jeremy McGrath. Constable McGrath said that he was a Police Constable currently stationed in Gisborne. On 25 December 2009, he was working a swing shift as a general duties constable. At
around 11 that evening he responded to a two-vehicle collision. There was an ambulance in attendance as well as “another patrol vehicle”Constable McGrath spoke first to the driver of a vehicle that had rear-end damage. He administered a passive breath test on the driver of that vehicle. That driver passed the test. He then conducted “a second breath screening test” on the driver of the second vehicle involved in the collision. That driver was Mr Kelly. The test recorded a “Failed General” result. Constable McGrath then required Mr Kelly “to undergo a breath screening test without delay”. That test was conducted at 11:33pm. The device again recorded a “Failed General” result. Constable McGrath used a Dräger 6510 device for both of these tests.
Constable McGrath then said he showed Mr Kelly the Failed General result and required Mr Kelly to accompany him to the Gisborne Police Station for an evidential breath test, blood test, or both. Constable McGrath and Mr Kelly then “went back to the patrol car”, where the constable gave Mr Kelly his rights, by reading the rights from a note card in his notebook. He then asked Mr Kelly a series of questions, recording the questions and answers in his notebook. The questions concerned what Mr Kelly had had to drink.
At the Gisborne Police Station, Constable McGrath gave Mr Kelly his rights again. He then prepared the Seres Ethylometre device for the evidential breath test. At 11:58pm Constable McGrath required Mr Kelly to undertake an evidential breath test without delay. His evidence then was that “[Mr Kelly] completed both blows” of the evidential breath test. The result of the test was printed out by the Seres Ethylometre. Constable McGrath said that the printed results recorded that Mr Kelly's first blow was at 12:02am, and recorded 978 micrograms of alcohol per litre of breath, and that his second blow as at 12:04am and recorded 995 micrograms of alcohol per litre of breath. He said that the machine “takes the lowest result as the record” which was 978 micrograms of alcohol per litre of breath.
Constable McGrath said that immediately on seeing the result he advised Mr Kelly of it. At 12:11am he again advised Mr Kelly of the result, by reference to a “POL510” form headed “Advice of Positive Evidential Breath Test”. He said that he read the advice to Mr Kelly and after that Mr Kelly read it himself and signed it. The constable then started the “10 minute period” within which Mr Kelly could request a blood test. At the end of that period, at 12:23am, he asked Mr Kelly if he wanted a blood test. Mr Kelly replied that he did not. Thereafter, Mr Kelly was processed in the usual manner and released on bail.
Constable McGrath was cross-examined on two points. First, he was asked the following question:
What authority did you rely upon to be doing breath screening tests and evidential breath tests on the night in question, Christmas Day, last year?
to which he replied:
Section 114 of the Land Transport Act.
The second point of cross-examination related to an injury to Mr Kelly's arm.
The Judge rejected claimed defences to the effect that identity had not been proved sufficiently, and that Constable McGrath should have had Mr Kelly checked medically (in relation to an injury to his arm) before proceeding with his inquiries. However, the Judge accepted two further defences.
First, the Judge accepted the defence submission that Constable McGrath did not give evidence that he was in uniform, or wearing a hat, cap, or helmet with a badge on it, when he required Mr Kelly to accompany him to the Gisborne Police Station. This meant that he had failed to lay an evidential basis to rely on the powers given to an enforcement officer under s 114 of the Act. The Judge accepted that Mr Kelly had, therefore, been unlawfully detained and that the results of the evidential breath test were inadmissible.
In doing so, the Judge concluded that no evidence as to “uniform” or “hat, cap, or helmet with a badge” had been given and that, as a consequence, the reasonable compliance provisions contained in s 64 of the Act could not apply. The Judge considered that, in order for those provisions to apply, there had to be evidence of some compliance. 2
Secondly, the Judge accepted the defence submission that there was no evidence that an evidential breath test had been administered in accordance with the Transport (Breath Tests) Notice (No 2) 1989 (“the Notice”). Counsel for the defence had submitted that Constable McGrath had said in his evidence that he had required Mr Kelly to undergo an evidential breath test, and that Mr Kelly had undergone one, but had not said that he had administered the test. The Judge accepted that she could not infer that Constable McGrath had conducted the test; to do so, the Judge said, would be speculation.
The Judge again concluded that Constable McGrath could not avail himself of the reasonable compliance provisions. She accepted that he could only do so by saying the specific words “I administered an evidential breath test”. The Judge held that there was no evidence of Constable McGrath complying with the requirements for conducting an evidential breath test and that, consequently, the results of the use of the Seres Ethylometre machine were inadmissible. 3
The questions for determination by this Court are set out at paragraphs 10 to 12 of the Case Stated, as follows:
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10.Was I correct to require the informant to prove the officer was an enforcement officer as defined by s 114(1) of the Act?
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11. Was I correct to hold that the reasonable compliance section in the Act (s 64) can only save evidence which showed some degree of compliance, which, in turn, the Court can waive for compliance at a reasonable level?
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12. Was I correct to hold that the presumption under Aylwin, that an evidential breath test in a particular case accords, prima facie, with all legal requirements for such tests, is only available when the officer actually administering the test gives evidence to the effect I administered an evidential breath test'? Was I correct to hold that the emphasis is upon the witness taking responsibility for
compliance, and making him/herself available for cross-examination thereon?
The principal issues for determination are set out in the questions contained at paragraphs 10 and 12. The issue raised in question 11 can be considered in the context of each of those issues.
Introduction
It will be recalled that Constable McGrath's evidence...
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