IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CRI [2013] NZHC NEW ZEALAND POLICE Respondent. R K Thomson for Respondent

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CRI [2013] NZHC 3567 BETWEEN AND JOSEPH LOUIS EUGENIOUS SMITH Appellant NEW ZEALAND POLICE Respondent Hearing: 14 October 2013 Appearances: J J Maddox for Appellant R K Thomson for Respondent Judgment: 23 December 2013 JUDGMENT OF KEANE J This judgment was delivered by on 23 December 2013 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/ Deputy Registrar Date: Solicitors: Crown Solicitor, Auckland SMITH v POLICE [2013] NZHC 3567 [23 December 2013]

2 [1] On 4 March 2013 in the District Court, Manukau, after a defended summary hearing, Joseph Smith was convicted by Judge Turner of driving on 21 June 2011 while under the influence of drink or a drug or both to such an extent as to be incapable of proper control. His offence was in the aggravated category. It was a third or later offence. [2] On 30 May 2013 Mr Smith was sentenced by another Judge, Judge Moses, to five months community detention and nine months supervision, and disqualified for one year and one day. Mr Smith at first appealed both his conviction and sentence but has abandoned his appeal against sentence. [3] Mr Smith contends, in essence, that on the evidence as a whole Judge Turner lacked a foundation for his conclusion that on 4 March 2013 Mr Smith drove while he was so under the influence of alcohol as to be incapable. [4] The Judge founded his conclusion on the evidence of the officer who apprehended Mr Smith, in which he first described how Mr Smith drove and then expressed his opinion as to Mr Smith s state when apprehended and tested. The officer accepted that any driving fault on Mr Smith s part was slight and there are four reasons, Mr Smith contends, why the Judge was wrong not to reject the officer s opinion as to his state: (a) The officer did not charge Mr Smith with driving while incapable immediately. In electing to subject him to the compulsory breath and blood testing process he demonstrated a lack of confidence in his assessment of Mr Smith s state. (b) The officer elicited from Mr Smith how much he had been drinking without first cautioning him or advising him of his rights, in breach of s 23 NZBORA. (c) The officer founded his opinion as Mr Smith s state on impression. He could and should have required Mr Smith to undergo a compulsory impairment test under s 71A of the Land Transport Act 1998.

3 (d) The officer could not exclude the possibility that Mr Smith s state, when apprehended, was attributable to a stroke he had suffered two years before, as to which the Judge had evidence. [5] As to the last of those grounds, Mr Smith relied on this appeal on a letter from his general practitioner, stating that on 3 July 2009 he had been admitted to Middlemore Hospital for six days and then been diagnosed to have suffered a stroke, and on related documents. [6] While it was clear from the transcript of evidence that the Judge had received some documents, they were not part of the Court record on appeal. Nor were they itemised as exhibits. So while I accepted Mr Smith s counsel s assurance that the documents had been produced, it remained unclear to me precisely on what basis the Judge had been invited to have regard to them and why and how he did so. [7] Further complicating this issue was that the transcript of evidence itself was incomplete because the recording taken of the hearing was deficient and, as is usual, the transcript did not contain the exchange with the Judge when he elected to receive the documents. [8] I decided therefore to review the recording taken of the hearing as to the part deficiently recorded, and more especially as to the critical exchange when the documents were received. That proved to take some time to accomplish. The first and third grounds of appeal only fully make sense when set against the case as it evolved and I begin there. Evolution of case [9] On 21 June 2011, at 5.45 pm, the officer who apprehended Mr Smith, encountered him in the street where he lives. Coincidentally, Mr Smith had telephoned him that day to complain that a neighbour had been making excessive noise (a complaint he had made before). The officer had gone to the street to check the noise level. It ends in a cul de sac and as he left, it appears, Mr Smith drove down the road towards him.

4 [10] The officer s account, as he gave it at the hearing on 4 March 2013, was that, as Mr Smith s car approached him, it seemed within the speed limit but its headlights were not on. He flashed his own and it was only when Mr Smith did not respond that the officer turned and followed him. Mr Smith drove past his own address for another 50 metres and turned into a right of way serving a number of addresses, including the problematic one. [11] The officer noted a very strong smell of alcohol in the car. He saw a box of 12 bottles of Corona beer on the front seat and two lying empty. Mr Smith s eyes were really blood shot. His speech was slurred. He said that he had consumed quite a few beers. On getting out of the car he staggered and he had to urinate. Mr Smith, the officer concluded, was heavily intoxicated. [12] The officer had Mr Smith undergo a passive breath test, which proved positive, but Mr Smith proved unable, after four attempts, to complete a breath screening test. The officer cautioned him and took him to the Manukau police station. There Mr Smith refused to undergo an evidential breath test. He said that he suffered from a needle phobia. Then, or earlier, he said, arrest me, arrest me. [13] Mr Smith was first charged with refusing to supply a specimen of blood but before the day of hearing, 15 October 2012, his counsel gave the police letters from his general practitioner and the Phobic Trust of New Zealand confirming he did suffer needle phobia. On 15 October, therefore, that charge was withdrawn but Mr Smith was then charged with driving while incapacitated. [14] On 14 March 2013, when the present charge went to hearing, Mr Smith contended for the first time that his state on the night was attributable not to alcohol but to a stroke he had suffered in 2009, he and his daughter gave evidence that he had been impaired since, and he produced the documents to which I have referred. Judgment under appeal [15] In his oral decision the Judge said that two of the elements of the offence with which Mr Smith was charged were not in issue. Mr Smith accepted that he had been driving on the evening of 21 June 2011 and that he had consumed alcohol

5 before or at the time of driving. The issue was, as it is on this appeal, whether he had consumed so much alcohol as to be incapable of driving. [16] The Judge said that while it was usual for medical evidence to be given where this offence is charged, an experienced officer could equally do so and he accepted that the officer in this case was well qualified to express that opinion. [17] Sergeant Easton then had 23 years experience as a police officer, first in England in the military police and in the London police. He had five years experience in New Zealand and had dealt with 40 drink/driving matters here. He had completed the compulsory impairment testing course. His qualifications and experience were unchallenged. [18] The officer, the Judge said, advanced six reasons for his conclusion that Mr Smith was incapacitated by alcohol when he spoke to him and a number were undisputed: (a) Mr Smith smelt strongly of alcohol and accepted that he had consumed alcohol before driving into the street. (b) There was an open box of beers on the front seat and two empty bottles in the foot well. (c) Mr Smith said he had quite a few beers, and admitted to having drunk four bottles, and though Mr Smith said he had only drunk two and a half bottles, the Judge accepted the officer s contemporary note. (d) Mr Smith had bloodshot eyes and though Mr Smith said that since his 2009 stroke he had suffered blood shot eyes and emotional effects, the Judge preferred the officer s evidence that Mr Smith s eyes were more noticeably blood shot than he had noted when dealing with Mr Smith in the past. (e) Mr Smith s speech was slurred and once again the Judge held that this could not be attributable to Mr Smith s stroke or his account that when he was stressed or tired his speech became slurred. The officer had not noticed

6 slurring when they had spoken earlier that day by telephone. During the hearing, when Mr Smith said he was likely to be stressed, he did not hesitate. Nor was his speech slurred. (f) The officer said that Mr Smith was unsteady on his feet and the Judge did not accept the evidence of Mr Smith and his daughter that he often stumbled because his left side had been weakened by a stroke. [19] The Judge regarded three points as decisive. Mr Smith needed to urinate immediately he left the car at the roadside and that must have resulted from how much alcohol he had drunk. His inability to complete the breath screening test despite four attempts was equally telling. So too was the fact that, when asked repeatedly why he could not complete the full compulsory process, he spoke only of a phobic fear of needles. [20] On that basis the Judge was satisfied, he said, beyond reasonable doubt that the officer had rightly concluded that Mr Smith was heavily intoxicated when apprehended and while Mr Smith had suffered a stroke in 2009 that was incidental. It played no part in his state at the time of this offence. [21] The Judge was unpersuaded by the evidence of Mr Smith s daughter that he had been impaired by his stroke since 2009, but was balanced and normal on the night, and that she could not detect alcohol on him, when she took his medication to him. That was after 8pm and this incident occurred at 5.45pm. Before she arrived, on the officer s unchallenged evidence, Mr Smith had been uncooperative. [22] The Judge held finally, that while it was not an element of the offence that Mr Smith s driving was impaired, he drove without his headlights on. Though he said he had turned them off as he approached his neighbour s property, he did so before his own home, not in the 50 metres between his home and that address. He did not see the officer flash his lights. To that extent his driving was impaired.

7 Appeal jurisdiction [23] This is a general appeal under s 115 of the Summary Proceedings Act It is by way of rehearing on the evidence taken in the District Court. 1 On an appeal this Court may confirm or set aside the conviction as it thinks fit. 2 [24] To succeed Mr Barrett must establish that the Judge made an error of fact or law but I must also assess that for myself on a contrast between the Judge s decision and the evidence, always remembering that as to issues of credibility the Judge had the advantage of seeing and hearing the witnesses. 3 [25] As to the inferences on which the judgment rests, I have been especially helped by Hogan v Police 4, a case to which I will return, in which Gendall J held that what counts is what an officer observes, not necessarily the opinion an officer expresses. Ultimately it is the Judge who must decide whether the motorist is in an impaired state by reason of alcohol, against the onus and standard of proof. I agree. First three grounds of appeal [26] Mr Smith s first ground of appeal, that the officer only elected to test him compulsorily because he lacked confidence in his opinion as to Mr Smith s state, is inconsistent with policing practice since 1968 when the compulsory regime was introduced. [27] Since then drivers suspected of intoxication have almost invariably been tested compulsorily and charged accordingly. It is only when that process miscarries that the police fall back on the offence here charged and that is precisely what happened in this instance. [28] Mr Smith s second ground of appeal does not assist him either. Before the officer could require Mr Smith to undergo even the passive breath test he needed Summary Proceedings Act 1957, s 119. Section 121(1), (2). Austin, Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR 141 at [16]; O'Neil v Police HC Auckland CRI , 9 October 2008 at [5]. Hogan v Police HC Wellington CRI , 8 March 2004.

8 good cause to suspect a driving offence against the Land Transport Act When the officer elicited from Mr Smith about how much he had been drinking, that was his focus. Mr Smith was not then detained. Section 23 did not come into play until the officer came under the independent duty to advise Mr Smith of his rights, when he required him under s 69 of the Land Transport Act 1998 to accompany him to the police station. [29] Mr Smith s third ground does not assist him either. The ability to require a motorist to undertake a compulsory impairment test under s 71A of the Land Transport Act 1998 only comes into play where an enforcement officer has good cause to suspect that the person has consumed a drug or drugs. [30] The officer did not begin to think that. All the evidence pointed to the fact that Mr Smith had been drinking and that was the officer s focus. The s 71A process does illustrate how painstaking a full clinical assessment needs to be. That is contextually relevant to, but not decisive as to, Mr Smith s fourth ground of appeal to which I now come. Issue as to capacity [31] It was not incumbent on the police to prove that Mr Smith did drive without proper control. What they had to prove was first that he drove and, secondly, that he did so while under the influence of drink, or a drug, or both, to such an extent as to be incapable of having proper control. Strictly how he drove does not matter. That is not essential to the offence but it can be one basis on which that lack of capacity can be inferred. 6 [32] The question whether the person charged did drive with that lack of capacity has almost invariably been a matter for expert opinion evidence, lying not just within the competence of a medical practitioner, but also of experienced police officers; and the fact that an officer is not independent in the sense that a medical practitioner is goes only to weight Land Transport Act 1998, s 68(1)(b)(iv), (v). Police v Pringle [1970] NZLR 87. Blackie v Police [1966] NZLR 910 (CA).

9 [33] Hogan v Police, 8 to which I referred earlier, is a good illustration. There Gendall J held that an officer s observations, standing alone, can be enough to establish both elements of the offence. [34] There the appellant had driven erratically over two kilometres of motorway. She had admitted to drinking wine at home. There was a strong smell of alcohol in her car. She failed the breath screening test. When she left her car she had to be supported so that she did not fall over. Gendall J said this: 9 In the absence of any reasonable basis to explain such behaviour, or to raise a doubt as to how the appellant came to be apparently incapacitated to the extent observed, the Judge was entitled to conclude that the elements of the charge had been proved by the cumulative force of the evidence. There were no other possible explanations for the appellant s driving. [35] To that conclusion, however, Gendall J added this qualification, If there had been no evidence as to seriously erratic driving and drinking wine at home that afternoon, then the proof may well have been insufficient. 10 That is the issue here. Defence evidence of incapacity [36] In evidence Mr Smith denied the officer s evidence that he had admitted to drinking four bottles of beer. He said that he had drunk no more than two and a half bottles, and he explained turned his headlights off by saying that he did not wish to alert the occupants of the problematic address. The Judge was entitled to reject these assertions but the issue remains whether he was right to reject the defence evidence as to what the cause of Mr Smith s incapacity actually was. [37] Mr Smith said that he had suffered a severe stroke in 2009 and that this had continued to affect him. He started work at 9am, and sometimes finished towards 8pm, and as he became tired his voice slurred. His left side had been weakened by his stroke and that could throw him off balance. He could cry without reason. His eyes were typically bloodshot Above, n 4. At [13]. At [14].

10 [38] When Mr Smith then produced the documents that I am told were those that I received on the appeal, he did not identify them and as the transcript on the appeal then noted, the prosecuting sergeant objected. [39] In the complete transcript I now have, the sergeant put in issue their age and noted the absence of any direct medical evidence for the defence, but the Judge considered those points went only to weight. Mr Smith s counsel said that they were produced only to establish the fact of the 2009 stroke. Mr Smith had given his own evidence as to its effect and his symptoms were common to stroke victims, as appeared from a booklet he also produced. [40] Mr Smith then repeated his evidence as to the ways in which he contends he had been impaired by a stroke since 2009 and said he was on four forms of medication. On the night, he said, he believed he might have suffered a ministroke. When the Judge asked him whether he meant a TIA (a transient ischemic attack) Mr Smith agreed. [41] When cross-examined Mr Smith did not dispute that when he refused a specimen of blood he said arrest me, arrest me and explained that he became a little frustrated. He confirmed that he had not told the officer about his stroke, only that he had a problem with needles. [42] Mr Smith s daughter, as well as giving evidence as to the continuing effect of the stroke, said that after 8pm on the night when she had taken his medication to him they spoke for perhaps 15 minutes in an interview room divided by a screen. He had bloodshot eyes, he was tired, and his speech was slurred. But that was common. Moreover, he seemed completely normal. He was fully composed. When he stood he was in a reasonable state of balance. Documents produced [43] Mr Smith produced four documents, the first being a letter dated 26 February 2013 from Mr Smith s general practitioner confirming that on 3 June 2009 he had been admitted to Middlemore Hospital suffering giddiness, double vision and a

11 failure of coordination and was diagnosed to have suffered a stroke affecting his left mid brain. [44] The second was a report to his general practitioner from Middlemore Hospital confirming he had been admitted on 20 January 2012 after suffering chest pain and a collapse and was discharged the following day. He had proved normal on clinical examination. He was discharged with pain relief. [45] The third was a letter from a stroke physician at Middlemore hospital, dated 15 February 2013, following a telephone conversation they had. Mr Smith had told the physician he suffered from the ongoing problems he described in evidence. The physician told him to see his general practitioner and explained that he could not, over the telephone, assess whether Mr Smith had suffered another neurological event or did have persisting symptoms. [46] Finally, Mr Smith produced a booklet issued by the Stroke Foundation of New Zealand Inc, which sets out a range of effects suffered by stroke victims. Conclusions [47] The Judge concluded that Mr Smith had driven while incapable of having proper control, and that this was attributable to alcohol, relying principally on the six reasons the officer identified. They went not so much as to Mr Smith s manner of driving, as to his state once apprehended. The officer had the advantage of having met Mr Smith before. [48] The only jarring note was Mr Smith s evidence of his 2009 stroke and its continuing effects, corroborated by his daughter. But the Judge was well entitled to find that this evidence fell short of raising any reasonable doubt about the officer s opinion, or his own conclusion, that alcohol was the cause of Mr Smith s impaired state. [49] There was no clinical evidence on which the Judge could begin to rely that in the two years after Mr Smith suffered his 2009 stroke he had continued to be impaired as he described. His general practitioner was not called to say that. Nor

12 did he say that in his letter. Mr Smith s admission to Middlemore Hospital in January 2012, six months after the incident, did not reveal any evidence of stroke impairment. The 15 February 2013 letter from the stroke physician also confirmed that he had not been under continuing clinical review. [50] If Mr Smith had feared on the night that he might have suffered a small stroke, he would surely have told the officer. Also inconsistent with his self diagnosis is that he was then working between 9am and as late as 8pm; and that, when his daughter visited him after 8pm, while his voice was slurred and his eyes bloodshot, he was completely normal. Conclusions [51] The Judge s conclusion that Mr Smith s impaired state that night was attributable to alcohol was open to him on the evidence. Mr Smith has not demonstrated on this appeal that there was a reason for his state that the Judge did not sufficiently consider. His appeal against conviction will be dismissed. [52] The consequence is that Mr Smith s sentence, which he has not appealed, must now commence but given the date on which I am issuing this decision, it will commence for all purposes on 10 January He is, however, to report to the Manurewa Probation Office by Friday, 3 January P.J. Keane J