TATARZYCKI v POLICE [2022] NZHC 1465

TATARZYCKI v POLICE [2022] NZHC 1465 [27 June 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000079[2022] NZHC 1465BETWEEN ANDREW RICHARD TATARZYCKIAppellantAND NEW ZEALAND POLICERespondentHearing: 20 June 2022Counsel: A J Haskett for AppellantP E Hayward for RespondentJudgment: 27 June 2022JUDGMENT OF DOWNS JThis judgment was delivered by me on Monday, 27 June 2022 at 12 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Auckland.A J Haskett, Auckland.The appeal[1] This appeal again raises what is known as the "Block J" warning, an aspect ofa form used by Police in the context of suspected drink-drive offending. It concernsevents of two and a half years ago.The offending[2] Andrew Tatarzycki was driving in or about Auckland late on the evening of24 January 2020. He had earlier drunk "four beers".1 At midnight, Senior ConstableMatthew Wickens stopped Mr Tatarzycki for apparent speeding. The officer noticedMr Tatarzycki's speech was slurred, his eyes were bloodshot, and he smelt of alcohol.2[3] Senior Constable Wickens required Mr Tatarzycki to undergo an evidentialbreath screening test. Mr Tatarzycki blew more than 400 micrograms of alcoholper litre of breath. The officer then required Mr Tatarzycki to accompany him to theOrewa Police Station for an evidential breath test, blood test or both; and toldMr Tatarzycki of his right to counsel.3[4] Once at the station, the officer again told Mr Tatarzycki of his right to counsel.He then conducted an evidential breath test. Mr Tatarzycki blew 575 micrograms ofalcohol per litre of breath. Senior Constable Wickens told Mr Tatarzycki unless herequested a blood test within 10 minutes, the evidential breath test "he had justundergone could of itself be [conclusive] evidence in a prosecution against him underthe Land Transport Act 1998". He also told Mr Tatarzycki if he underwent a bloodtest, the evidential breath test "cannot be used in court proceedings to support a chargeof driving with excess breath alcohol but the result of the blood test may be usedto support a charge based on analysis of the blood alcohol concentration". The officergave Mr Tatarzycki a form recording both pieces of advice, which Mr Tatarzyckisigned.[5] Mr Tatarzycki did not elect to have a blood test.1 Exhibit 1 in the District Court, p 1.2 The officer circled the "YES" box for each on the form he made at the time.3 New Zealand Bill of Rights Act 1990, s 23(1)(b).[6] Mr Tatarzycki was charged with speeding and driving with excess breathalcohol. In relation to the latter, he pleaded not guilty. Mr Tatarzycki's defence to thatcharge is best explained after brief discussion of the applicable law.4The law[7] Section 77 of the Land Transport Act 1998 provides an evidential breath test isconclusive evidence of the alcohol in the defendant's breath in relation to a breathalcohol offence. The result of such a test is not admissible at the hearing of the chargeunless the defendant is told certain things when the test is taken, most importantly, thatit is conclusive evidence "to lead to that person's conviction for an offence against thisAct" unless the defendant elects to have a blood test within the required time.5[8] An evidential breath test can also be conclusive evidence the defendant hascommitted an infringement offence if the defendant is younger than 20 and othercircumstances exist.6 Again, the defendant must be told certain things when the testis taken, including that it is conclusive evidence "the person has committed aninfringement offence against this Act".7 An infringement offence does not result in aconviction.[9] Police have used one warning to address these different situations. Thewarning is recorded on a standard Police form, in a box labelled "Block J". InRe Solicitor-General's Reference (No 1 of 2020),8 the Court of Appeal was asked todetermine if the Block J warning complied with s 77 of the Act.[10] The Court concluded the warning did in relation to the situation at [7]. It heldBlock J's language conveyed "the sense and effect of the warning required".9 Amotorist "could only reason":10(a) The EBT result is "evidence" against me.4 I use the term "defence" loosely, and not in a technical sense.5 Land Transport Act 1998, s 77(3A)(a).6 Section 77(3A)(b).7 Section 77(3A)(b).8 Re Solicitor-General's Reference (No 1 of 2020) [2020] NZCA 563.9 At [44].10 At [41].(b) Which could of itself be conclusive.(c) In a "prosecution" against me.And therefore:(d) I am liable to be found guilty of an offence as a result of (a)–(c).[11] In McKinney v Police, the Supreme Court declined permission for an appealdirected at challenging the Court of Appeal's reasoning in Re Solicitor-General'sReference (No 1 of 2020).11 The Supreme Court concluded, "We do not see thearguments the applicant wishes to raise as having sufficient prospects of success tojustify a reconsideration of that exercise".12[12] I pause to add Senior Constable Wickens advised Mr Tatarzycki in accordancewith the Block J warning. And, as observed, Mr Tatarzycki signed a form containingthis advice.[13] In the recent case of Singh v Police,13 the Court of Appeal was asked to revisitits reasoning in Re Solicitor-General's Reference (No 1 of 2020). The Court declinedto do so. In so doing, the Court said:14The ratio of the decision therefore concerns the formal compliance of wordingused by police officers with the requirement in s 77 to give a warning inparticular terms before an EBT result is admissible in evidence against amotorist. It does not, as the appellant's argument sought to suggest, precludean argument that the motorist did not in fact understand his rights (either unders 23 of the New Zealand Bill of Rights Act 1990 or s 77 of the present Act).As Ms Brook acknowledged on the Crown's behalf, the Court's reasoning inthe decision "is not inconsistent with the Police taking extra steps to ensure anindividual driver's comprehension if there are reasons to doubt she or he hasunderstood the advice given".[14] It is therefore open to a defendant in this context to argue she or he did notunderstand what they were told under s 77, even though Police used the Block Jwarning to convey that provision. Obviously, such an argument would need to have11 McKinney v Police [2021] NZSC 68.12 At [11].13 Singh v Police [2021] NZCA 91, (2021) 29 CRNZ 665.14 At [19].evidence to support it. This elementary principle is implicit to Re Solicitor-General'sReference (No 1 of 2020) and explicit to Singh and antecedent case law concerningadministration of a defendant's rights, including R v Mallinson:15Unless there are circumstances calling for obvious care and further inquirythere is no reason for not taking the accused's answers at face value. Iffollowing advise as to the right to a lawyer the accused responds affirmativelyto the question whether he or she understands the position, the obviousinference is that the accused did indeed understand his or her rights.And later from Mallinson:16Unless there is an evidential basis justifying a contrary conclusion, proof thatthe police advised the suspect of the rights should lead to the inference thatthe suspect understood the position.[15] A final aspect of law is relevant. Section 64(2) of the Act provides:64 Defences...(2) It is no defence to proceedings for an offence that a provision formingpart of sections 68 to 75A, and 77 has not been strictly complied with orhas not been complied with at all, provided there has been reasonablecompliance with such of those provisions as apply.[16] So, if Police reasonably comply with their obligations under s 77, it is nodefence to a charge of driving with excess breath alcohol they did not strictly do so.Whether there has been reasonable compliance typically turns on the extent ofcompliance with the provision in question; prejudice, if any, to the defendant; thelikelihood an element of the charge has not been established; and the reasonablenessof the exercise of any Police discretion.17The District Court hearing[17] The charge was heard by Judge E M Thomas 22 February 2022. Mr Tatarzyckidid not challenge any aspect of the sequence described earlier. Rather, on his behalf,15 R v Mallinson [1993] 1 NZLR 528 (CA) at 531.16 At 532.17 Anna Longdill and others Law of Transportation (online looseleaf ed, Thomson Reuters)at [LT64.03].Mr Haskett elicited from Senior Constable Wickens that (a) Mr Tatarzycki had noconvictions and (b) told the officer he was born in Zimbabwe.[18] Mr Tatarzycki then testified. He said this about his state of mind when dealingwith the officer, then later when he appeared in court:18Q. All right. Now when you signed [Block] J what was yourunderstanding as to the consequences of that breath test?A. That I had been drinking and it was positive and it was high, or at least –yeah, it was over the limit.Q. All right. At that time did you know what the limit was?A. No I didn't I'm afraid.Q. Did you know how many limits the law has for excess alcohol?A. No.Q. What's your understanding today about the consequences of that breathtest, that evidential breath test?A. That I would be coming to court and when I came first time to court,when I spoke to the lawyer that was assigned to me, he said that I wasfacing criminal charges which I – yeah was, really quite shocked, and Iask can I stop at this point, because I need to speak to someone on this.Q. So, when you came to court on that first occasion, how many chargeswere there at court?A. Two, for high blood alcohol and speeding.Q. All right, so on the night when the senior constable dealt with you, whatwas your understanding about any distinction between the speedingcharge and the drink driving charge?A. That they were both going to court and – I didn't have a real distinctionbetween the two, yeah I – yeah, both traffic offences and yeah, I was –I've had traffic offences before and they've been dealt with, with finesand suspension of my licence and that's what I was really expecting.Q. Right. So with the excess breath alcohol now before the court, what'syour understanding in terms of the consequence of that, or a potentialconsequence?A. That I could have a criminal record.Q. Right. Now knowing that, on reflection, could that have made anydifference to – decisions made on the night?18 Notes of evidence, pp 11–13.A. Absolutely. The criminal record is – I've never been in trouble with thelaw ever, I'd be probably the first in my family to have a criminal record,on the – yeah I would've really wanted to have made sure that this levelwas the correct level and I would've sought legal advice on the night.Q. So on the night, you agree with Mr Wickens' evidence earlier that youwere given a 10 min period in which to consider the option of doing ablood test?A. Yes.Q. Do you have any comment on that?A. Just, I would've really taken that option if I'd known how bad this was.Q. And when you say how bad this was you mean?A. This level.Q. All right. And what do you mean by this level?A. The alcohol breath level 575.Q. On the night did you know that level of 575?A. After I blew it yes.Q. Yes?A. Yes.Q. What was the consequence in your mind on the night compared to now?A. Again I thought it was potentially I'd lose my licence and have a heftyfine.Q. So, how much alcohol had you consumed before driving that night?A. From what – I think it was about four beers.Q. All right, so when you jumped in the car to drive, how were you feelingabout your level of intoxication or your ability to drive?A. I did think I was fine, I really did, even stuff like when the officer stoppedme, I didn't just – it was on a dual carriageway so I didn't just pull overon the dual carriageway, I actually looked for a safe place to stop, turnedoff onto a side road and parked up there, I was being responsible duringdriving.Q. Right.CROSS-EXAMINATION: SERGEANT GALLAGHERQ. How often do you consume that amount of alcohol and hop in a car anddrive?A. No I wouldn't, I don't drink a lot at all so I don't – especially now I don't,don't drink at all.Q. But you're aware that (inaudible 12:52:13) drinking and driving is againstthe law.A. Absolutely being over the limit yes.[19] Mr Haskett argued the prosecution had failed to establish Mr Tatarzycki hadbeen informed the evidential breath test could be conclusive evidence leading to hisconviction for an offence under the Act, for, Mr Tatarzycki's evidence implied he didnot appreciate he was in jeopardy of conviction. Judge Thomas recorded thissubmission, then said:19Any defendant can say: "I didn't understand that" and if you do say that, yousay the police are required to prove that you did understand that. I take noissue with that.The Court of Appeal said you only need to understand the advice that iscontained in that form. That is all that the police need to give you. That theydo not need to talk to you about anything more than that because people drawtheir own conclusions about what that means. The Court of Appeal suggestedthe conclusions that people can draw from that advice. It said this is whatpeople would understand that advice to mean and therefore that advice issufficient.Having decided that that advice is enough for the police to give that advice, itis difficult then for me to accept that by raising your lack of understanding attrial, they are actually required to prove that you understood more than theyare required to tell you. That might be one of the difficulties with the waythey framed their decision but that is still the situation that we end up with.The police are only required to show reasonable compliance. What isreasonable is an objective view. What is reasonable depends on all thecircumstances of a case. The police read what they were supposed to read.They read what the Court of Appeal has said is enough for them to read. Theygot no indication from you that you were confused about any of that. Theygot no indication from you that you did not understand any of that. They hadno reason to think that you might not understand any of that. There wasnothing from you that put them on notice that they needed to go any furtherwith you in relation to that advice or making sure you understood it.Given what the police were faced with there is nothing more they could havedone. It must be then that at the very least they are able to show reasonablecompliance.ResultThe charge is proved.19 Police v Tatarzycki [2022] NZDC 3054 at [9]–[14] (footnotes omitted).Mr Tatarzycki's appellate case[20] Mr Haskett contends the Judge erred to find the charge proved because of theargument he raised in the District Court. Mr Haskett says the mere fact Police usedthe Block J warning was not decisive, and the Judge appears to have concludedotherwise.[21] Mr Haskett emphasises the question is not what Senior Constable Wickens toldMr Tatarzycki; rather it is whether Mr Tatarzycki understood his jeopardy under s 77.Mr Haskett argues the right to a blood test is an important aspect of the regime and if"a motorist believes the drink driving allegation is a traffic offence akin to speeding,then the motorist has not been made aware of the significance of the jeopardy".Analysis[22] The Judge did not directly grapple with whether Mr Tatarzycki understood hewas liable to conviction for the offence of driving with excess breath alcohol. Heappears to have considered this question less important than whether the Policereasonably complied with s 77. Indeed, the Judge appears to have concluded becausethere was reasonable compliance with s 77, the earlier question of whetherMr Tatarzycki understood his jeopardy need not be determined.[23] This means I am without the benefit of first-instance determination ofMr Tatarzycki's appreciation, or lack thereof, of his risk of conviction under s 77. Tocompound matters, the topic was approached elliptically during evidence-in-chief20—Mr Tatarzycki was not directly asked if he understood he was liable to conviction whenhe made the election not to seek an evidential blood test—and even more ellipticallyin cross-examination. The prosecutor did no more than have Mr Tatarzycki's confirmhe understood drinking and driving "is against the law", to which Mr Tatarzyckiresponded, "Absolutely being over the limit yes".20 A direct question would not have been leading in terms of ss 4(1) or 89 of the Evidence Act 2006provided it did not directly or otherwise suggest the answer. The learned authors ofMahoney on Evidence: Act and Analysis (Thomson Reuters, Wellington, 2018) at [EV89.05] alsoobserve "it will not normally be objectionable to use leading questions to focus a witness'smind on a particular point".[24] All of which introduces the important question: has the prosecution establishedMr Tatarzycki understood he was at risk of conviction for driving with excess breathalcohol when he made the election not to seek a blood specimen?[25] I make five points.[26] First, the language used by Senior Constable Wickens—the Block J warning—is ordinarily sufficient to convey the risk of conviction to a defendant. This followsfrom Re Solicitor-General's Reference (No 1 of 2020) (and McKinney). While thisaspect is not determinative given the evidence of Mr Tatarzycki, it is not irrelevanteither. In short, on this question, Re Solicitor-General's Reference (No 1 of 2020)exercises some gravitational pull.[27] Second, Mr Tatarzycki said nothing during the incident to suggest he did notunderstand he was at risk of conviction for the offence, or his rights more generally.Senior Constable Wickens said this about his interactions with Mr Tatarzycki inresponse to the question whether he had any problems communicating with him:Not at all, he was very chatty, he was following the process on the way home.I was quite frank about the process and what we had done and I was quite openwith him and he was asking a lot of questions around the breath and the bloodresults and we had quite a discussion on the way back to his address wherewe spoke openly. The defendant was quite chatty and happy to talk, quitehappy.[28] Relatedly, Senior Constable Wickens was asked if Mr Tatarzycki posed himany questions prior to the 10-minute blood election:Yes, I do recall him asking me questions around what he should do. At thatstage I was clear that if he had any questions he could speak to a lawyer buthe was – at each of the points where he could speak to a lawyer, he didn't wantto. And so, any time he had a question relating to the breath test or the bloodtest or what he should do, I just said to him I couldn't answer those questionsand if he had any questions he needed to speak to a lawyer about those things.[29] Third, there is no suggestion—let alone evidence—Mr Tatarzycki suffers anintellectual or cognitive impairment, or any other difficulty that might have affectedhis understanding of what Senior Constable Wickens told him.[30] Fourth, when he testified, Mr Tatarzycki was necessarily reconstructing whathe understood at the time of the incident. That incident occurred 25 months earlier,late at night, and after Mr Tatarzycki had consumed four beers. Senior ConstableWickens said Mr Tatarzycki was not "highly intoxicated". The implication of thisevidence is that Mr Tatarzycki was at least somewhat intoxicated. These aspects—delay, time of day and intoxication—are relevant to the assessment of the reliability ofMr Tatarzycki's evidence, which again, necessarily involved reconstruction as to whathe understood at the material time.[31] Fifth, Mr Tatarzycki said in evidence that on the night, he believed he was"fine" to drive and "being responsible" while driving. Plainly, Mr Tatarzycki waswrong about both that evening. This is also relevant to the reliability ofMr Tatarzycki's evidence, insofar as it involves reconstruction of his thinking at thetime.[32] Given this mix, I find the prosecution has established Mr Tatarzycki was awarehe was at risk of conviction at the material time, despite his somewhat contraryevidence.21 I say "somewhat contrary evidence" because of the way it was elicited byMr Haskett and the (lay) trial prosecutor.22 I consider that evidence unreliable giventhe circumstances identified above.[33] This conclusion does not reflect adversely on Mr Tatarzycki's credibility. Thathe thought his situation serious when he reached court does not mean he did notappreciate the seriousness of the situation on the night. Again, the point is that in alllikelihood, Mr Tatarzycki has, by combination of circumstance, mis-remembered whathe believed.21 Or, expressed in terms of R v Mallinson [1993] 1 NZLR 528 (CA) at 531, I am satisfied the officer"brought home" to Mr Tatarzycki the effect of s 77.22 The high point of Mr Tatarzycki's evidence probably lies in this sequence:Q. All right, so on the night when the senior constable dealt with you, what was yourunderstanding about any distinction between the speeding charge and the drink driving charge?A. That they were both going to court and – I didn't have a real distinction between the two, yeahI – yeah, both traffic offences and yeah, I was – I've had traffic offences before and they'vebeen dealt with, with fines and suspension of my licence and that's what I was really expecting.[34] That Mr Tatarzycki was born in Zimbabwe23 and charged with a speedinginfringement offence—points relied on by Mr Haskett—are not determinative. Thereis no evidence Zimbabwe treats drink-driving less seriously than New Zealand, orexclusively as an infringement offence. And, the speeding infringement offence pointis a dual-edged sword. It must have been obvious to Mr Tatarzycki thatSenior Constable Wickens' focus that night was the drink-drive offence, not thespeeding one. That says something about relative seriousness and associated criminaljeopardy.[35] Mr Haskett also argues the prosecution did not satisfactorily challengeMr Tatarzycki's evidence under s 92(1) of the Evidence Act 2006. This sectionrequires cross-examination of a witness "on significant matters that are relevant andin issue if the witness could reasonably be expected to be in a position to giveadmissible evidence on those matters". I do not doubt the cross-examination wasimperfect in terms of the provision. However, I have considered this in reaching myfactual conclusion at [32]; I have assumed Mr Tatarzycki would have maintained theevidence he gave in chief had he been further taxed in accordance with s 92(1).[36] Even if I am wrong about Mr Tatarzycki's knowledge at the time, this caseaffords an obvious instance of reasonable compliance in terms of s 64(2) of the Act.24My reasoning mirrors much of that above. Senior Constable Wickens used languagethat would ordinarily be sufficient to convey the risk of conviction. Mr Tatarzyckisaid nothing to suggest he did not understand he was at risk of conviction, or his rightsmore generally. And, Mr Tatarzycki blew 575 micrograms of alcohol per litre ofbreath, a far from marginal result. No doubt attaches to any element of the offence.[37] Justice has not miscarried for these reasons.2523 There is no evidence as to how long Mr Tatarzycki has been in New Zealand.24 It is beyond argument s 64(2) can apply to s 77. The former was amended from 29 December 2001to allow just this; see 5(1) of the Land Transport (Road Safety) Enforcement Amendment Act 2001(2001 No 104).25 Criminal Procedure Act 2011, s 232(2)(b) and (c).Reliance on an affidavit from another case[38] Mr Haskett's bundle of authorities included an affidavit before theCourt of Appeal in Re Solicitor-General's Reference (No 1 of 2020).26 I know of noauthority that allows a party to rely on evidence adduced in wholly unrelated litigation,particularly when there is nothing to suggest that evidence has been reproduced withthe permission of the other litigant or Court. I did not consider the affidavit for thisreason. Nothing was said about the affidavit at the hearing.27Result[39] The appeal is dismissed...Downs J26 That Court declined to receive it for reasons that need not be elaborated here.27 Albeit Mr Haskett's written submissions referred to it.