GILBERT v POLICE [2023] NZHC 1252

GILBERT v POLICE [2023] NZHC 1252 [25 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000060[2023] NZHC 1252BETWEEN ANDREW STEVEN GILBERTAppellantAND NEW ZEALAND POLICERespondentHearing: 16 May 2023Appearances: D Hoskin for AppellantH Reid for RespondentJudgment: 25 May 2023JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 26 May 2023 at 12pmRegistrar/Deputy RegistrarSolicitors:Steindle Williams Legal, AucklandMeredith Connell, AucklandIntroduction[1] Andrew Gilbert (the appellant) appeals his conviction and sentence on a chargeof driving on Beach Road, Auckland on 9 January 2020 with an excess breath alcohollevel.[2] He was found guilty and convicted of the charge by Judge S J Maude followinga trial in the North Shore District Court held on 24 November 2022. In a reserveddecision delivered on 6 December 2022, the Judge found the appellant guilty anddirected that he appear before the Court on 20 December 2022 when he was convictedand sentenced to pay a fine of $600 together with Court costs, and he was disqualifiedfrom driving for a period of six months, commencing 30 December 2022.1[3] The appellant says that he was told by the police officer who conducted thebreath testing that if he elected to have a blood test and the results showed him to bedriving with an excess blood/alcohol level, he would be liable to pay the blood nurse'sand analyst's fees for taking and analysing the blood sample, of well over $700. Hesays that the police officer's advice regarding that cost was erroneous and had theeffect of dissuading him from requesting a blood test. And he says the Judge erred bypreferring the evidence of the police officer and rejecting his evidence regarding whathe says she told him. The appellant says that the Judge ought to have excluded theprosecution evidential breath test result as unfairly obtained, and ought to havedismissed the charge.Background[4] The sequence of events that followed the appellant being stopped by police ata checkpoint were described by Constable Sew Hoy (the officer) who was the soleprosecution witness.[5] The appellant was stopped by a Police traffic checkpoint on Beach Road inBrown's Bay, Auckland at around 7.25 pm on 9 January 2022. The officer requestedthe appellant to undergo a passive breath test which indicated the presence of alcohol.1 New Zealand Police v Gilbert [2022] NZDC 23972.The appellant told the officer that he had been drinking and had consumed four to fivebottles of beer.[6] The officer used a Police "Breath & Blood Alcohol Procedure Sheet" "POL515", to record the time at which the appellant's vehicle had been stopped, where ithad been stopped and the steps that she took thereafter in the course of her dealingswith the appellant.[7] The officer then asked the appellant to undergo a breath screening test using aDrager 6510 device which he proceeded to do as requested. The result of theappellant's breath screening test indicated his breath/alcohol level exceeded400 micrograms of alcohol per litre of breath. The officer then advised the appellantthat she would require him to accompany her to the nearby Police bus for the purposeof undergoing an evidential breath test, blood test or both.[8] When making this request the officer read from the POL515 form and informedthe appellant of his rights under the New Zealand Bill of Rights Act 1990 (NZ BORA),including his right to remain silent, not to make a statement, and to speak to a lawyerwithout delay and in private before deciding whether to answer any questions. Havingconfirmed with the appellant that he had understood his rights as read to him, at7.28 pm the officer requested him to accompany her to the Police bus. The appellantco-operated. At the Police bus the appellant provided the officer with his personaldetails of name and address, and produced his drivers' licence which she recorded onthe POL 515 form.[9] The officer then read Block H on the POL515 form to the appellant. Block His comprised of two parts. The first part repeats advice regarding the appellant's rightsunder the NZ BORA, at the conclusion of which the appellant was asked if he wouldlike to speak to a lawyer. He replied saying that he did not. The officer then read thesecond part of Block H to the appellant. It provides:"You are required to undergo an evidential breath test without delay.""If you fail or refuse to undergo the evidential breath test, you will be requiredto permit a blood specimen to be taken.""If that blood specimen indicates the presence of alcohol, proceedings may betaken against you.""Whether or not you blood test result is evidence of an offence under the LandTransport Act 1998, you may be liable to pay a blood test fee and associatedmedical costs.""If you are 20 years of age or over, and you do not hold an Alcohol InterlockLicence or a Zero Alcohol Licence, and you fail or refuse to undergo anevidential breath test when required, and your blood alcohol concentration isbetween 51 and 80 milligrams of alcohol per 100 milligrams of alcohol per100 millilitres of blood, you will be liable to pay an infringement fee of $700."[10] Having read that second part of Block H to the appellant, the officer then askedhim whether he would like to speak to a lawyer, and the appellant replied saying thathe did not. And at the police officer's request, the appellant signed the POL515 format the foot of Block H directly below the following printed statement:I acknowledge that an enforcement officer has advised me of the reason formy detention and of my rights as set out above.[11] The officer noted the time of the appellant signing the form as being 7.40 pm.[12] The officer then proceeded to administer an evidential breath test to theappellant and he co-operated in doing so. The process required the officer to attach anew mouthpiece to the evidential breath test device and instructing the appellant toblow through the mouthpiece. The police officer recorded the time that the evidentialbreath test was undergone as being 7.45 pm. The result obtained from the evidentialbreath test showed the appellant to have a level of 600 micrograms of alcohol per litreof breath. The officer noted on the POL515 form that she had advised the appellantof the evidential breath test result at 7.49 pm.[13] The officer then proceeded to blocks J52 and J6 of POL 515 which she read tothe appellant. This relevantly provides:"The evidential breath test you have just undergone has given a positive resultof 600 micrograms of alcohol per litre of breath."J5. 400 + All drivers. "The test indicates that the proportion of alcohol inyour breath exceeds 400 micrograms of alcohol per litre of breath."2 Block J5 of POL 515 pertains to all drivers whose evidential breath test result exceeds 400micrograms of alcohol per litre of breath."If you do not within 10 minutes request a blood test, the evidential breath testyou have just undergone could, of itself, be conclusive evidence in aprosecution against you under the Land Transport Act 1998.""If you in fact undergo a blood test the result of the evidential breath testcannot be used in court proceedings to support a charge of driving orattempting to drive with excess breath alcohol concentration. But the result ofthe blood test may be used to support a charge based on analysis of your bloodalcohol concentration."J6. "You are advised that if you elect to have a blood test you may be liable topay the blood test fee and associated medical costs whether or not the resultof that blood test establishes that an offence under the Land Transport Act hasbeen committed."[14] The appellant was again requested to sign the POL515 form to acknowledgethat he had been advised of his right to request a blood test provided his request wasmade within 10 minutes. The appellant signed the form to acknowledge that he hadbeen advised of the positive result of his evidential breath test, and of the matters setout in sections J5 and J6 of POL515. The officer then proceeded to Block K of theform which sets out advice to be given to a driver prior to the 10 minute period duringwhich they have to decide whether or not to elect to have a blood sample taken. BlockK requires the officer to repeat the driver's rights under NZ BORA. At the conclusionof this section of the form the appellant was once again asked by the officer whetherhe would like to speak to a lawyer. He responded saying that he did not wish to speakto a lawyer, and once again signed the POL515 form to confirm his response. Theofficer noted the time that she advised the appellant of his right to request a blood testas being at 7.52pm, and the time when the 10 minute period for the appellant toconsider the option to request a blood test commenced as being 7.54pm. The officernoted on the POL515 form that at the conclusion of the 10 minute period at 8.04 pm,the appellant said that he did not wish to undergo a blood test.[15] The officer then prepared a court summons which was given to the appellantand a photograph was taken of the appellant holding the summons to show that he hadbeen served with it. The appellant was informed that he was forbidden to drive for 12hours. And he was then free to leave the Police bus. The officer gave evidence thatshe believed that the appellant was picked up by someone to be driven home.[16] In her evidence the officer said that she had proceeded through the steps setout in the POL515 form and had followed the form to explain the process and theappellant's rights at each stage in accordance with the provisions of the form.[17] In his evidence the appellant said in relation to the contents of Block J ofPOL515, regarding the right to elect a have a blood test, that he recalls the policeofficer reading it out to him. And when asked by his counsel if he could rememberwhat the police officer said to him about it the appellant said:The appellant: Not actually reading as such, but she did state that it would bein excess of $700 if I was found guilty and, prior to saying that, she had toldme it would be at least an hour, if not longer, before they could get someonethat would be available to blood test.Counsel: You said that if you were found guilty you would have to pay $700.Was the officer more specific about what the $700 was for?The appellant: For the cost of the blood test and that if I was found, or failed,that that would then be something I would have to pay for.The appellant: It was $720 or $740, there was sort of spoken about.[18] The appellant said that having been told about the cost he would be liable forif he was found guilty, and the extra time that he was told he would be required to waitfor a blood nurse to come, he declined the option of having a blood test taken.The Judge's decision[19] In his reserved decision delivered on 6 December 2022 Judge Maude notedthat the officer had made several errors when recording on the POL 515 form whattook place during the course of her dealings with the appellant.[20] The Judge noted that the appellant gave evidence that the officer had told himimmediately prior to the 10 minute period he was given in which to elect whether ornot to request a blood test that the medical expenses would be $720 and that therewould be a wait of an hour or more for the arrival of a nurse to take the blood sample.And he also noted that the officer had accepted under cross-examination that she didnot recall whether she had told the appellant prior to the 10 minute period that themedical and analyst's fees would be $720 and there would be a wait of around an hourbefore a nurse would be available to take a blood sample. And that she hadacknowledged that she could possibly have made such a statement.3[21] The Judge also noted the officer's evidence that at the time when she wasdealing with the appellant in January 2020, she was not aware of what the actualmedical and analyst fees were, and he took judicial notice that an analyst's fee istypically $111.99 and medical expenses between $100 and $200.[22] The Judge found that the officer's evidence of what she had said to theappellant in the course of working through the contents of POL515, and particularlythe reference therein to an infringement fee of $700 being payable in respect of areading of between 51 and 80 milligrams of alcohol per 100 millilitres of blood,coupled with the effect of the appellant's alcohol consumption, was likely to haveresulted in him being mistaken about what he was in fact told. The Judge said:[21] Mr Gilbert was adamant, but in respect of the same evening as put tohim was unsure of his recall as to events such as:(a) He did not specifically recall being asked for a breath test.(b) He did not recall what else the officer had said as to his rightsother than that he had been advised of the $720 cost associatedwith seeking a blood test and the nurse's delay in arrival.(c) He was not sure whether he had blown into the same or adifferent machine when giving a breath screening testcompared to the passive test.[22] It is understood that both Constable Sew-Hoy and Mr Gilbert had hazyrecall of the events.[23] It is accepted by me that reference to the costs flowing from electingblood would be something that Mr Gilbert would be more likely to recall thansome of the other more procedural aspects of what occurred on the evening.[24] It is equally possible that Mr Gilbert's recall could have been impactedby reference to the $700 infringement fee payable referenced in block H ofthe POL515 form as an infringement fee if his blood alcohol level wasbetween 51 and 80 milligrams of alcohol per 100 millilitres of blood.3 Gilbert, above n 1, at [14].[25] Mr Gilbert must establish a positive defence on the balance ofprobabilities.[26] I think it more likely than not that Constable Sew-Hoy advisedMr Gilbert that there was likely a wait time for arrival of a nurse to take blood.[37] There is, I observe, a remarkable similarity between the block Hadvice read to Mr Gilbert to the effect that a reading of 51 to 80 milligrams ofalcohol per 100 millilitres of blood would lead to a payment of aninfringement fee of $700 advised to Mr Gilbert at l9:40pm and what MrGilbert claims Constable Sew-Hoy advised him at 19:52pm (12 minutes later)(that the cost of a blood sample being taken would be $720).[38] Mr Gilbert accepted that he had consumed five beers.[44] With doubt as to Mr Gilbert's evidence in my mind, and in my view,a lack of likelihood that the officer would construct in her mind a figure of$720 as a cost, having accepted in her evidence that at the time she did notknow what the actual costs were, I conclude that Mr Gilbe1i is mistaken as tohis belief that the officer told him that the cost of testing would be $720. Ibelieve it more likely than not that Mr Gilbert was confused by reference tothe $700 infringement fee payable in respect of a positive blood test resultreferred to above.[45] Having reached the above conclusion on the evidence, I findMr Gilbert guilty as charged of driving with an excess content of alcohol inhis breath ( 600 micro grams of alcohol per litre of breath).SubmissionsThe appellant[23] Mr Hoskin for the appellant submits that in his analysis and assessment of thefacts the Judge erred in several respects. He says that the Judge erred in finding thatthe appellant did not specifically recall being asked to provide a breath test. And hesubmits that it was unfair of the Judge to find that the appellant was not sure whetheror not he had blown into the same or a different device when he did provide his breathsamples.[24] Mr Hoskin submits the Judge erred in finding that the appellant could not recallbeing asked for a breath test. He notes that in his evidence in chief the appellant saidthat he had been asked by the officer to count into a machine that she put through hiscar window, and that he had given evidence that he was then asked to blow into anothermachine, or possibly the same machine, after the officer had put "something on theend of it". Mr Hoskin submits that it was unfair of the Judge to find that the appellanthad blown into the same or a different machine when giving a breath screening test,when the appellant himself had said that he was unsure if it was the same machine, butthat the officer had put something onto the end of it. He says that as the Policegenerally use the same machine for both a passive test and a breath screening test andattach a mouthpiece to the device for the breath screening test, the appellant'srecollection was not inconsistent with what had occurred.[25] Mr Hoskin says that the Judge considered the interval of some 35 monthsbetween the events when he was stopped and tested and his trial on the charge, togetherwith the alcohol he had consumed had impacted the accuracy of the appellant'smemory, but failed to take into account that the appellant had spoken to his counselabout what had happened the following day.[26] Mr Hoskin submits that it was against the weight of evidence for the Judge toreject the appellant's evidence as to what the officer had told him about his possibleliability for medical and analyst's fees of well over $700 if his blood alcohol level wasfound to have exceeded the legal limit. And counsel submits that there was nosufficient evidential basis for the Judge to find that the appellant was confused by thereference in Block H. Mr Hoskin says that the officer accepted under cross-examination that she has no recollection of what she told the appellant about the costof a blood test, and also accepted the possibility that she could have given the appellanterroneous information about the cost of a blood test. He submits that having regard tothe officer's concessions, the Judge erred by failing to give appropriate weight to theappellant's affirmative account of what he said he was told.[27] Mr Hoskin further submits that the Judge erred in finding that what theappellant was told by the police regarding the likely delay that would be involved inwaiting for the arrival of a nurse to take a blood sample was not something that wouldhave had the effect of dissuading the appellant from requesting a blood sample. Hesubmits that the information given to the appellant by the police officer had the effectof dissuading the appellant from to electing to have a blood sample taken, and theprovision of this erroneous information resulted in unfairness to the appellant.[28] Mr Hoskin submits that the evidence at trial does not support the Judge'sfinding by which he preferred the evidence of the officer over that of the appellant asto what was said and what occurred. He submits that the only remedy which woulddeal with the consequences of the erroneous information given by the police to theappellant is for the result of the evidential breath test to be excluded pursuant to s 30of the Evidence Act 2006, on the basis that it was improperly obtained evidence, andfor the charge brought against the appellant to be dismissed.[29] Although the appellant also appealed against that part of his sentence by whichthe Judge imposed a period of disqualification from driving for a period of six months,on the basis that because of the constraints of the COVID -19 lockdowns in 2020 and2021 the Judge ought to have ordered that the disqualification period shouldcommence on a date some six months prior to his decision so that the appellant wouldhave already served his disqualification period, at the hearing of the appeal Mr Hoskin,as I understood him, effectively withdrew the sentence appeal. And he accepted thatany backdating of the commencement of the disqualification was a matter of judicialdiscretion which he does not challenge.The respondent[30] Ms Reid for the respondent submits that the Judge did not err in his findingsregarding the appellant's difficulties recalling the events of 9 January 2020. Ms Reidnotes that in the course of his evidence the appellant said that he did not recall anumber of things that happened. Counsel notes that the appellant said he could notrecall being asked to produce his driver's licence. The respondent nevertheless acceptsthat when giving evidence-in-chief the appellant did not say that he did not recall beingasked to undergo an evidential breath test. However when cross-examined heappeared to agree that he did not specifically recall being asked to undergo anevidential breath test.[31] Ms Reid submits that in any event, even if the Judge erred in saying that theappellant had said that he did not specifically recall being asked for a breath test, suchan error is not one that affected the outcome of the trial. Counsel notes that the Judgefound that both the officer and the appellant had difficulties recalling details of whattook place, and the Judge's findings and conclusion that the charge was proven wasnot based on his summary of the appellant's evidence and recall of the breath testrequest process. Ms Reid says that having regard to the appellant's uncertainty as towhether the same or a different machine was used for the breath screening testcompared to that used for the passive test, it was open to the Judge to find that theappellant was not sure about it.[32] The respondent submits that the Judge did not err in finding that the passing oftime and the effects of alcohol consumption may have affected the accuracy of theappellant's recall of events. Ms Reid notes that although the appellant said that hespoke to his lawyer the following day about what he said had happened, he did notgive any evidence about his recall ability the following day. Ms Reid says that thereis no identifiable error from the Judge having taken the passage of time and theappellant's consumption of alcohol into account when weighing the different accountsof the officer and the appellant regarding what occurred and what he was told by theofficer.[33] The respondent submits that there was a sufficient evidential foundation forthe Judge's conclusions that on the evidence it was more likely that the appellant hadbeen confused about the $700 infringement fee and what it related to than that theofficer had erroneously stated that as being the cost he would be liable for if he electedto have a blood sample taken.[34] Ms Reid says that the prospect of an hour long wait before a blood samplecould be taken would not have had any effect on the appellant's decision whether ornot to elect to have a blood test. While the wait would be an inconvenience Ms Reidnotes that there is no evidence that Officer Sew Hoy told the appellant that his right toelect a blood test would be affected by having to wait for the sample to be taken, andno evidence that the appellant had indicated that he would have elected to provide ablood sample had there not been a wait of up to an hour involved.[35] The respondent submits therefore that there was no error in the Judge'sassessment of the evidence and no miscarriage of justice has occurred as a result ofthe conviction of the appellant on the charge.Approach on appeal[36] The Criminal Procedure Act 2011 provides a first right of appeal againstconviction.4 The appellate court must allow a conviction appeal from a judge-alonetrial if satisfied that the Judge erred in his or her assessment of the evidence to suchan extent that a miscarriage of justice has occurred or if it is satisfied that a miscarriageof justice has occurred for any reason.5 A miscarriage of justice means any error,irregularity, or occurrence affecting the trial that has created a real risk that theoutcome of the trial was affected or has resulted in an unfair trial, or a trial which is anullity.6[37] When considering an appeal brought under s 232(2)(b) the Court must adoptthe approach explained by the Supreme Court in Austin, Nichols & Co Inc v StichtingLodestar:7Those exercising general rights of appeal are entitled to judgment inaccordance with the opinion of the appellate court, even where that opinion isan assessment of fact and degree and entails a value judgment. If the appellatecourt's opinion is different from the conclusion of the tribunal appealed from,then the decision under appeal is wrong in the only sense that matters, even ifit was a conclusion on which minds might reasonably differ. In suchcircumstances it is an error for the High Court to defer to the lower Court'sassessment of the acceptability and weight to be accorded to the evidence,rather than forming its own opinion.[38] However, it is for the appellant to show that an error has been made, and inassessing whether there has been an error, an appellate court must take into accountany advantages that a trial judge may have had. Where there is a challenge tocredibility findings based on contested oral evidence an appellate court will exercise"customary caution", because the trial will have provided the judge with the advantageof assessing the witnesses give their evidence and have a good opportunity to evaluatethe strengths and weaknesses of a case and the plausibility of what the witnesses havesaid.84 Criminal Procedure Act 2011, s 229(1).5 Section 232(2)(b) and (c).6 Section 232(4).7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16](footnote omitted).8 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].Discussion[39] Although Officer Sew Hoy acknowledged at the appellant's trial in November2022 that she could not recall some of the details of her interactions with the appellantalmost three years previously in January 2020, the reliability of her account of whattook place essentially relied on the record she had made on the POL515 form, andhaving proceeded to follow the steps and wording set out in the form when speakingto the appellant and carrying out the breath screening and evidential breath testprocedures. Although the officer made some errors in completing the form, includingputting a circle around "No Alcohol" instead of "Alcohol" to record the result of theappellant's passive breath test, the errors were not material and had no effect on thebreath screening test that followed.[40] I am satisfied that the officer's evidence that she followed the POL515 formand read its contents to the appellant provides a clear and reliable record of what shetold the appellant as she progressed through the steps following their initialconversation after he was stopped at the Police roadside checkpoint, and said that hehad recently consumed around four to five bottles of beer.[41] In the course of working through the POL515 breath and blood alcoholprocedure sheet, the appellant was asked to sign the form to confirm that he had beenadvised of the matters set out on the preceding section of the form. He signed the formthree times. He signed the form to acknowledge: being advised of his rights underNZBORA and that he had been advised of the reason he was being detained; beingadvised of the positive result of the evidential breath test; and to confirm that he didnot want to speak to a lawyer prior to the commencement of the 10 minute period hewas given to decide whether to elect to give a blood sample for testing.[42] As I have noted above, after he had undergone a breath screening test whichshowed he had a breath/alcohol level over 400 micrograms of alcohol per litre ofbreath, the officer proceeded to read the appellant the contents of Block H of POL515.This included the appellant being advised that he was being required to undergo anevidential breath test, and being told that:"If you are 20 years of age or over, and you do not hold an Alcohol InterlockLicence or a Zero Alcohol Licence, and you fail or refuse to undergo anevidential breath test when required, and your blood alcohol concentration isbetween 51 and 80 milligrams of alcohol per 100 milligrams of alcohol per100 millilitres of blood, you will be liable to pay an infringement fee of $700."[43] In my view this information is an obvious source of the misunderstanding theappellant experienced regarding his possible liability for meeting the cost of medicalexpenses for an amount of $700. Although the officer accepted under cross-examination that as at January 2020 she had only recently joined the Police force somethree months beforehand and although she had been carrying out duties on the "boozebus" for a month she had not previously had an instance of a driver electing a bloodsample, and did not know that an analyst's fee under the Transport Blood Test FeesNotice 2018 was $111.99, I do not consider her lack of experience or her lack ofknowledge regarding the analyst's fee, would have led to her misinforming andunintentionally misleading the appellant regarding the cost he might incur if he choseto have a blood sample taken.[44] I agree with the Judge's observation that the amount the appellant says theofficer spoke to him about is remarkably similar to the sum of $700 referred to inBlock H as being the infringement fee that would apply if the appellant failed orrefused to undergo an evidential breath test when required and his blood/alcoholconcentration was found to be between 51 and 80 milligrams of alcohol per 100millilitres of blood. I also note that the appellant signed the POL515 form directlybeneath that part of the form setting out that advice.[45] Having been advised that he could be liable to pay an infringement fee of $700if he refused to undergo an evidential breath test and his subsequent blood test resultwas between 51 and 80 milligrams of alcohol per 100 millilitres of blood, it is likelyalthough he signed the form to confirm that he had been advised of his rights by anenforcement officer "as set out above", he may have misunderstood what he was told.I find that there is no reliable evidence of the officer telling the appellant anythingdifferent than what is set out on the POL515 form, including what was read to himabout his possible liability for a $700 infringement fee.[46] Having regard to the fact that the appellant had been drinking alcohol in therecent period before he was driving and stopped and the effect of the alcohol is likelyto have impaired his ability to focus his attention and remember what he was told withthe same level of clarity as would be the case had he not been affected by alcohol, Ifind that the evidence well supports the Judge's finding that the officer did not misleadthe appellant either by telling him that he would be liable to pay a medical fee of $720if he elected to have a blood test, or that the time involved in waiting for a nurse tocome and take a blood sample was information that dissuaded him from electing tohave a blood sample taken.[47] In my view the Judge's findings regarding whether or not the appellant couldrecall being asked to undergo a breath test and whether he could recall whether thesame or a different machine was used for the passive test and the breath screening test,were not material in the Judge's reasoning and conclusion regarding the charge. Theappellant obviously could remember that he was asked to undergo an evidential breathtest and he did recall that the officer connected something to the machine he was givenfor the breath screening test, while being unsure whether it was the same device as hadbeen used for the passive test. However I do not consider that the Judge's findingsregarding those matters were of any weight or significance in relation to his findingand rejection of the appellant's claim to have been told by the officer that he would beliable for a medical fee of $720 if he elected a blood test and his blood /alcohol levelwas found to be between 51 and 80 milligrams of alcohol per 100 millilitres of blood.[48] In my view the Judge's conclusion that the charge was proven and his reasonsfor rejecting the appellant's claim were well supported by the evidence. I accordinglyfind that the appellant has failed to show that the Judge made an error or that for anyother reason the entry of a conviction on the charge has resulted in a miscarriage ofjustice.Result[49] The appeal against conviction is dismissed.[50] The appeal against sentence, having being withdrawn by the appellant'scounsel, is also dismissed._____________Paul Davison J