HEDLEY & BULLEID v POLICE [2022] NZHC 714

HEDLEY & BULLEID v POLICE [2022] NZHC 714 [8 April 2022]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2021-425-000016[2022] NZHC 714BETWEEN CLINTON WILLIAM HEDLEYAppellantAND NEW ZEALAND POLICERespondentCRI-2021-425-000017BETWEEN PETER WILLIAM BULLEIDAppellantAND NEW ZEALAND POLICERespondentHearing: 28 March 2022Appearances: A S P Tobeck for the Appellant HedleyS D Cullen for the Appellant BulleidR W Donnelly for the RespondentJudgment: 8 April 2022JUDGMENT OF NATION JIntroduction[1] The appellants, Mr Hedley and Mr Bulleid, were both convicted by JudgeGarland of one charge of driving with excess breath alcohol1 after consecutive Judge-alone trials.2 Together, they appeal their convictions.1 Land Transport Act 1998, s 56(1); maximum penalty three months' imprisonment.2 Police v Bulleid [2021] NZDC 11767; and Police v Hedley [2021] NZDC 11772.Facts[2] The facts were not disputed.[3] On 17 July 2020 at approximately 8:00 pm, Constable Watkinson observed awhite ute pull out of a driveway on the north side of the road at speed. The Constablestopped the vehicle and spoke to the driver, asking if he had been drinking. The driver,Mr Hedley, acknowledged he had consumed a couple of drinks. He was required tocomplete a breath test without delay. This gave a result of over 400 micrograms perlitre of breath. The Constable read Mr Hedley his rights and completed the breath testprocedure per the POL 515 (Breath and Blood Alcohol Procedure Sheet).[4] The Constable advised Mr Hedley of his rights by reading from Block H onthe sheet:H. BORA ACT 1990 – EVIDENTIAL BREATH TEST ADVICE - MOBILE ROAD SAFETYBUS/STATON ACTION• "You have been detained for the purpose of breath or blood test procedures for alcohol."• "You have the right to remain silent."• "You do not have to make any statement."• "Anything you say will be recorded and may be given in evidence in court."• "You have the right to speak with a lawyer without delay and in private before deciding to answerany questions."• "Police have a list of lawyers you may speak to for free."• "These rights will continue throughout the breath or blood alcohol test procedures."• "If you wish to speak to a lawyer a telephone will be made available to you for that purpose assoon as practicable. You will be allowed a reasonable time to consult and instruct a lawyer fromthe time a telephone is made available to you."• "Would you like to speak to a lawyer?" YES NO Comment:• "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 required to permit a bloodspecimen to be taken." [Excerpt 1]• "If that blood specimen indicates the presence of alcohol, proceedings may be taken against you."[Excerpt 2]• "Whether or not your blood test result is evidence of an offence under the Land Transport Act1998, you may be liable to pay a blood test fee and associated medical costs." [Excerpt 3]• "If you are 20 years of age or over, and you do not hold an Alcohol Interlock Licence or a ZeroAlcohol Licence, and you fail or refuse to undergo an evidential breath test when required, andyour blood alcohol concentration is between 51 and 80 milligrams of alcohol per 100 millilitres ofblood, you will be liable to pay an infringement fee of $700." [Excerpt 4]• "Would you like to speak to a lawyer?" YES NO Comment:I acknowledge that an enforcement officer has advised me of the reason for my detention and of myrights as set out above.Driver signature / refused Officer time driver hoursadvised[5] Mr Hedley gave an evidential breath alcohol test (EBA test) result of 600micrograms per litre of breath.[6] The Constable then advised Mr Hedley under Blocks J5 and J6 of the sheet:[7] Mr Hedley did not elect to undergo a blood alcohol test.[8] On 26 September 2020 at 8:00 pm, Mr Bulleid was stopped by ConstableCrawford on the Dipton-Mossburn Highway while heading towards Dipton West inthe Lumsden area. Mr Bulleid smelt of alcohol but was coherent. He admittedconsuming a few cans of beer, so the Constable completed a breath screening test. Thebreath screening test returned a result of over 400 micrograms per litre of breath. TheConstable read Mr Bulleid his caution and followed the Breath and Blood AlcoholProcedure Sheet.Type 1st Advice 2nd Advice 3rd AdviceJ5400+All drivers"The testindicates that theproportion ofalcohol in yourbreath exceeds400 microgramsof alcohol perlitre of breath.""If you do notwithin 10minutes request ablood test, thepositiveevidential breathtest you havejust undergonecould, of itself,be conclusiveevidence to leadto yourconviction for anoffence againstthe LandTransport Act1998.""If you in factundergo a bloodtest the result ofthe evidentialbreath test cannotbe used in courtproceedings tosupport acharge of drivingor attempting todrive with excessbreath alcoholconcentration. Butthe result of theblood test may beused to support acharge based onanalysis of yourblood alcoholconcentration.J6"You are advised that if you elect to have a blood test you may be liable to paythe blood test fee and associated medical costs whether or not the result of thatblood test establishes that an offence under the Land Transport Act has beencommitted."[9] Constable Crawford read from Block H of the sheet, like Constable Watkinsondid with Mr Hedley.[10] Mr Bulleid acknowledged he had been advised of the reason for his detentionand had been advised of his rights. In the patrol vehicle, Mr Bulleid submitted to anEBA test which returned a result of 989 micrograms of alcohol per litre of breath. TheConstable then advised Mr Bulleid of his rights by reading to him the advice underBlocks J5 and J6 on the sheet as above.[11] Mr Bulleid did not elect to undergo a blood alcohol test.The issue[12] The argument in the District Court was, and on appeal is, that s 69(4A) of theLand Transport Act 1998 (LTA) was not complied with. That section provides:69 Who must undergo evidential breath test(4A) An enforcement officer who requires a person to undergo an evidentialbreath test under subsection (4) must, without delay, advise theperson—(a) that if the person fails or refuses to undergo the evidential breathtest, the person will be required to permit the taking of a bloodspecimen under section 72(1)(a); and(b) that if the result of a blood test indicates the presence of alcohol inthe person's blood the person may be issued with an infringementoffence notice or charged with an offence, depending on theproportion of alcohol; and(c) of the infringement fee payable for a breach of section 56(2B); and(d) that the person may be liable to pay a blood test fee and associatedmedical costs, whether or not the result of the blood test establishesthat the person has committed an offence against this Act.[13] Both appellants were given advice from the constable in accordance withBlock H. As will become apparent, the reasons for contending the Block H advice didnot comply with s 69(4A)(b) advanced in this Court were somewhat different fromthose relied on in the District Court.Principles on appeal[14] Section 232 of the Criminal Procedure Act 2011 provides that the High Courtmay only allow an appeal against conviction if satisfied the trial judge "erred in his orher assessment of the evidence to such an extent that a miscarriage of justice hasoccurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.3 In this section, a trial includes a proceeding in which theappellant pleaded guilty.4[15] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied there has been anerror in the imposition of the sentence and that a different sentence should beimposed.5District Court decisions[16] The Judge recorded the submission from Mr Tobeck for both appellants wasthat the Police advice did not comply with the requirements of s 69(4A)(b) and did notprovide information critical to each appellant's decision whether or not to seek advice.This impeded rather than facilitated each appellant's decision to take legal advice sothere was a breach of each appellant's right to legal advice under the New Zealand Billof Rights Act 1990 (NZBORA).[17] The Judge recorded the submission for the appellants was that, with the advicethey received, they would have been oblivious that, with a positive blood alcohol testresult, they would be in jeopardy of being charged with an offence or receiving aninfringement notice. The Judge said it had been submitted each appellant had not beenfully informed when deciding whether to call a lawyer. It had been submitted that, if3 Criminal Procedure Act 2011, s 232(4).4 Section 232(5).5 Sections 250(2) and 250(3).each appellant had known the consequences, each may have called a lawyer whowould have advised him which alcohol test to elect, based on questions about:(a) the type of alcohol consumed;(b) what period the alcohol was consumed over; and(c) the weight of the defendant.[18] In each decision Judge Garland considered recent jurisprudence on s 77 of theLTA from the Court of Appeal in Re Solicitor-General's Reference (No 1 of 2020).6He noted the Court of Appeal had decided that the Block J wording did convey thesense and effect of the warning required by s 77 of the LTA, as there was no materialdifference between "conclusive" evidence in a "prosecution" and "conclusive"evidence leading to a conviction.[19] The Judge found Block H complied with the requirements of s 69(4A). Heconsidered the fact the words "proceedings may be taken against you" are immediatelyfollowed by two paragraphs which provided colour and context. He quoted those,excerpts 3 and 4.[20] The Judge considered, after this was read to a motorist, they would be aware:7(a) depending on the results of [their] blood test, proceedings may be takenagainst [them];(b) the results of the blood test may be evidence of an offence under the LTA;and(c) the results of the blood test may make the defendant liable to pay aninfringement fee.[21] The Judge took judicial notice of the fact the average citizen in New Zealandknows driving with excess blood alcohol is a criminal offence and found it abundantlyclear that Block H refers to criminal proceedings. The Judge said, when a motoristreaches the Block H stage, they have been pulled over by a police officer, failed abreath screening test, been detained by a police office, signed an acknowledgement6 Re Solicitor-General's Reference (No 1 of 2020) [2020] NZCA 563.7 Police v Bulleid, above n 2, at [41]; and Police v Hedley, above n 2, at [33].they know why they have been detained, have been given their rights including theirright to speak to a lawyer and have been told anything they say can be used as evidencein court. The Judge did not consider someone in that position would not realise theywere in jeopardy of criminal proceedings for drink driving. The Judge found therewas no material difference between the wording of Block H and s 69(4A).[22] Alternatively, the Judge indicated he would have found Block H reasonablycomplied with s 69(4A) of the LTA. The Judge indicated he did not perceive anyinjustice even if Block H was materially different to s 69(4A) because it was not theonly juncture where a motorist had the opportunity to call a lawyer. After failing anevidential breath test, the motorist would be given the opportunity to elect a bloodalcohol test with the further advice contained in Blocks J (set out above) and K.8SubmissionsAppellant's submissions[23] Mr Cullen, for Mr Bulleid, began his oral submissions by reminding the Courtthat the legislation for consideration constrains the circumstances in whichindividuals, contrary to the fundamental rights they have under the NZBORA, can berequired to provide evidence, potentially with blood alcohol testing through invasivebodily examination, of criminal offending. He submitted there is a need for the courtsto be vigilant that the Police recognise those constraints but also that lawyers arereminded of how important it is for motorists, in similar circumstances to theseappellants, to be able to obtain properly informed legal advice as to the alternativeways they might deal with the situation confronting them and the consequences of thechoices they might make.8 Block K advises the motorist they have been detained for the purpose of breath or blood testprocedures for alcohol; they have the right to remain silent; they do not have to make anystatements; anything they say will be recorded and may be given in evidence in court; they havethe right to speak with a lawyer without delay and in private before deciding to answer anyquestions; Police have a list of lawyers they may speak to for free; those rights will continuethroughout the breath or blood alcohol testing procedures; and if they wish to speak to a lawyer atelephone will be made available to them for that purpose as soon as practicable. They will beallowed in reasonable time to consult and instruct a lawyer from the time a telephone is madeavailable to them.[24] Mr Cullen submitted the judgment of the Court of Appeal in Re Solicitor-General's Reference was of no relevance.9 That judgment was concerned with theadvice given to motorists after they had undergone an EBA test and the level recordedprovided evidence that an offence had been committed.[25] The Block H advice was given at a time when the motorist could elect toundergo a blood alcohol test but also had the option of not participating in the EBA orblood alcohol testing procedure in any way by first electing to undergo a blood alcoholtest and then refusing to undergo that test.[26] Mr Cullen emphasised this was important because there are ways in which thelevel of alcohol established from such a test will expose the offender to penalties thatcannot be imposed where there has been a refusal to participate, first in the EBA testingand, second, following that refusal, a failure or refusal to submit to a blood alcoholtest.10[27] Mr Cullen referred in particular to the ways in which a high breath alcohol orblood alcohol reading exposes the motorist to an immediate 28 day licence suspensionand the making of an interlock order and/or zero alcohol licence. Mr Cullen submittedthis can be a matter of considerable significance for those in driving occupations wheretheir employer would not permit or enable them to drive a vehicle fitted with aninterlock device.[28] He submitted the potential for such penalties is particularly important giventhe LTA does not permit anyone to obtain either a limited licence or an exemption fromthe requirements of an interlock licence to avoid hardship/extreme hardship in the wayothers, who are subject to a disqualification, may be able to do so as to be able to carryon in employment, although there is provision for the replacement of an interlock witha period of disqualification.119 Re Solicitor-General's Reference (No 1 of 2020), above n 6.10 Land Transport Act, ss 65AB−65AK.11 Land Transport Act, ss 100 and 100B.[29] Mr Cullen argued compliance with s 69(4A)(b) thus required the motorist tobe advised of more than the fact that, if a result of a blood alcohol test indicated thepresence of alcohol in the person's blood (referred to hence as a positive blood alcoholtest), the person might be charged with an offence. Expressly, s 69(4A)(b) providedthat, if the result of a blood alcohol test was positive, the person "may be issued withan infringement offence notice or charged with an offence, depending on theproportion of alcohol". In this instance, with the Block H advice, the motorists hadbeen advised only that with a positive blood alcohol test, "proceedings" might be takenagainst them.[30] Mr Cullen submitted the advice given was materially inadequate in that, if theadvice had been in accordance with all that was set out in s 69(4A)(b), the motoristwould likely realise that the consequences that could flow from positive EBA or bloodalcohol testing could vary. With ignorance as to what the potential consequencesmight be, the person would be more likely to seek legal advice in a situation whereinformed advice could be of benefit to him.[31] Mr Cullen submitted the potential for the motorist to receive that advice andthe potential value of it at the time it had to be given was important. Advice after apositive EBA test would be too late because, with the results of that test, the motoristwould potentially already be liable for the more severe sentence. If he wassubsequently to refuse a blood alcohol test, evidence from the EBA test would beadmissible against him. If he did submit to a blood alcohol test, the result of that testcould provide evidence of offending at a level which could result in more severesentences.[32] Mr Cullen argued, because of this, when the Block H advice given to theappellants did not comply with the requirements of s 69(4A), it could not be consideredreasonable compliance as might be permitted in accordance with s 64(2) of the LTA.He also submitted it was because of this the Judge's reference to Re Solicitor-General'sReference and the Court of Appeal's consideration of the adequacy of the Block Jadvice given after an EBA test was in error.[33] Mr Cullen referred to Police v Richter and Police v Humphreys where DistrictCourt Judges had accepted the same Block H advice as here did not follow strictrequirements of s 69(4A)(b).12[34] For Mr Hedley, Mr Tobeck adopted the submissions he had made in the DistrictCourt but also the submissions made by Mr Cullen for Mr Bulleid.[35] At the hearing of the appeal, Mr Tobeck did not raise criticisms which he hadmade in the District Court of the Block H advice which had not been mentioned bythe District Court Judge in his decision. The focus of Mr Tobeck's submissions in theDistrict Court had been that the Block H advice did not inform the motorist that hewas at risk of being charged with an offence because it had referred to the risk of"proceedings" rather than prosecution and/or conviction. He had also argued theadvice was misleading because it solely referred to the potential outcome of a bloodalcohol test and did not inform the motorist that, if the result of the EBA test indicatedthe presence of alcohol, proceedings might be taken against him.[36] In the District Court, Mr Tobeck had argued, because of the inadequacies inthe Block H advice, the motorist had been denied the opportunity to make an informeddecision as to whether they would seek legal advice and so did not have theopportunity to "enable counsel to advise, on a properly informed basis, whether theperson would be best served to elect a blood test or to remain with a breath test".[37] In his oral submissions, Mr Tobeck focused on the omission of any referencein the Block H advice to the way, through a positive blood alcohol test, the motoristwould be in jeopardy of an infringement notice or charged with an offence, dependingon the proportion of alcohol. He supported Mr Cullen in the submissions he made asto how, with legal advice, a motorist could be made aware that the potentialconsequences of refusing both an EBA test and a blood alcohol test could be lesssevere than the consequences which could flow from an EBA test and/or a bloodalcohol test.12 Police v Richter [2021] NZDC 1815 at [17]; and Police v Humphreys [2021] NZDC 14880.[38] Mr Tobeck suggested the omission of any reference to the potentialconsequences as described in s 69(4A)(b) would not alert the motorist to the potentialneed for and value of competent legal advice. He suggested the motorist would havebeen further distracted from his right to such legal advice through the emphasis in theBlock H advice to the financial costs of electing a blood alcohol test and the fact that,whatever the level of alcohol revealed by such a test, the motorist would be liable forthe costs of that test and associated medical costs.Respondent's submissions[39] For the Police, Mr Donnelly said he accepted there are ways in which thepotential penalties or sentence to which a motorist might be exposed through refusingto undergo both an EBA test and a blood alcohol test could be less severe than thepenalties they would face with the level of alcohol reading from an EBA test or froma blood alcohol test. He also accepted that, if a motorist was to seek legal advice whendetained for an EBA test or at any point during the alcohol testing process, it wouldbe appropriate for a lawyer to advise on the different courses of action that would beopen to the motorist and the potential consequences of each, provided the lawyer didnot encourage the motorist to commit an offence.[40] Mr Donnelly submitted the issue was not whether the motorist had receivedthe legal advice they were entitled to seek. The issue was whether the motorist hadbeen given the advice required by s 69(4A). In that regard, he submitted the way inwhich the Judge had looked at all parts of the Block H advice and the context in whichthat advice was given was appropriate.[41] He submitted the appellants had failed to identify a real error in the Judge'sanalysis.[42] Mr Donnelly submitted Block H did comply with the Act, or, in the alternative,there was reasonable compliance. He maintained the premise of the alleged non-compliance was that Block H referred to proceedings as opposed to criminalproceedings. He submitted the Judge was entitled to take judicial notice of the factthe average New Zealand citizen would know that driving with excess blood alcoholis a criminal offence.Analysis[43] The appeal raises the following issues:(a) whether the advice given strictly complied with s 69(4A)(b);(b) whether the degree of non-compliance resulted in an issue as to thecorrectness of the result or gave rise to a risk of injustice and unfairness(and thereby did not reasonably comply); and(c) whether, if the advice did not strictly or reasonable comply, the evidenceshould have been excluded and a miscarriage of justice resulted.[44] There was no error in the way the District Court Judge referred to the Court ofAppeal's judgment in Re Solicitor-General's Reference and its consideration of theBlock J wording. The Block J wording and the warning required by s 77 of the LTAwere both different from the warning required by s 69(4A) of the LTA and the wordingof the advice in Block H, but it was appropriate for the Judge to refer to the approachof the Court of Appeal in considering the issues in the District Court.[45] Relevantly, in their judgment, the Court of Appeal stated:13• In deciding whether the warning given by the Police was consistent with theadvice required by the relevant statutory provision, the issue is whether thewording used by the Police conveyed the sense and effect of the warningrequired in the relevant statutory provision.14• Verbatim recitation of the statutory wording is not necessarily required for thelaw enforcement process itself to remain lawful.15• In considering the adequacy of the Police advice, it is appropriate to considerwhat the motorist would have made of that advice in the circumstances themotorist was then in.1613 Re Solicitor-General's Reference (No 1 of 2020), above n 6.14 At [35].15 At [37], with reference to statements of the Court of Appeal in Barr v Ministry of Transport [1983]NZLR 720 (CA) at 722.16 At [41].• In considering whether a motorist would have been misled by the advice, it isappropriate to consider what he would have understood, both as to his statusand the risk of the situation he was in with the advice he did receive.17• If the advice given did not comply with the requirements of the particularstatutory provision, the Court will need to consider whether the reasonablecompliance provision of s 64(2) of the Act applies. As to that, the principlesidentified by McMullin J in Soutar v Ministry of Transport will need to beconsidered: whether the degree of non-compliance causes a reasonable doubtabout the correctness of the result and may give rise to a risk of injustice andunfairness.18[46] More recently, in McKinney v Police, the Supreme Court approved theapproach adopted by the Court of Appeal in Re Solicitor-General's Reference as to theconsideration of the Block J advice.19 The Supreme Court said " it is essential onlyto convey the "sense and effect" of the statutory language to a motorist, avoiding anyreal risk of misunderstanding, rather than requiring any specific formula".20[47] I also do not consider there was any error in the way the Judge referred to theBlock J and K advice the motorist would receive after the EBA test showed their levelof alcohol was at a level where they had committed an alcohol driving offence. Thecomplaint advanced in the District Court was that, through the wording of the BlockH advice, the motorist did not seek advice and thus was denied the opportunity ofhaving a lawyer enquire into relevant circumstances and thus advise whether themotorist would be better served by undergoing an EBA test or electing a blood alcoholtest.[48] The Judge referred to the requirement for and nature of the Block J and Kadvice in considering the application of s 64(2), i.e. whether any unfairness or injusticehad arisen from the motorist's decision not to call a lawyer after receiving the BlockH advice.17 At [41].18 At [48], referring to Soutar v Ministry of Transport [1981] 1 NZLR 545 (CA) at 550.19 McKinney v Police [2021] NZSC 68 at [10].20 At [6].[49] As to this, the Judge said:21[50] After failing an evidential breath test the defendant may have electedto submit a blood sample. If he had done so, the evidential breath test wouldno longer be admissible. This again allows him to weigh between theevidential breath test and the evidential blood test. If anything, the defendantwould have been in a better position to make the election because he wouldknow what the result of the breath test was.[51] At this point he would also have all the additional advice provided byBlocks K and J, both of which make it apparent that the defendant is injeopardy of being charged with an offence or issued an infringement notice.The defendant would then have had the opportunity to speak to a lawyer andseek advice on which test is likely to be more advantageous. There is noargument the defendant would be underinformed at this stage. Accordingly,having effectively the same election before him again at a later stageameliorates any potential unfairness.[52] I therefore cannot perceive any unfairness or injustice generated bythe deviance between the wording of Block H and subs (4A). I would havefound reasonable compliance if I were not confident that Block H actuallycomplies with subs (4A).[50] I do not find any error in that reasoning.[51] The Judge appropriately referred to the observation from the Supreme Courtin Aylwin v Police:22Every driver of a motor vehicle on the roads of this country should by now beaware that driving after consuming more than a small amount of alcohol isdangerous, illegal and socially unacceptable. The great majority of driverscomply with their obligations in this respect. A small minority do not.Parliament has legislated to ensure that these drivers do not escaperesponsibility through technical and unmeritorious defences. The Courts mustgive full effect to that clear Parliamentary indication.(emphasis added)[52] Consistent with the Supreme Court's observation, there was no error in theJudge finding that the ordinary New Zealand citizen would be aware driving withexcess blood alcohol is a criminal offence, and therefore would understand"proceedings", as used in the Block H advice, referred to prosecution.21 Police v Bulleid, above n 2. See also Police v Hedley, above n 2, at [42]−[44].22 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].[53] The Constables were required to advise the appellants that, if the result of theEBA test indicated the presence of alcohol in their blood, they might be issued withan infringement notice or charged with an offence depending on the proportion ofalcohol.23[54] The appellants were in fact advised:If that blood specimen indicates the presence of alcohol, proceedings may betaken against you. [Excerpt 2]Whether or not your 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." [Excerpt 3]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 millilitres of blood, you willbe liable to pay an infringement fee of $700. [Excerpt 4][55] The Judge found, from this advice, a motorist would be aware:24(a) depending on the results of his blood test, proceedings may be takenagainst him;(b) the results of the blood test may be evidence of an offence under the LTA;and(c) the results of the blood test may make the defendant liable to pay aninfringement fee.[56] With reference to those matters and also the background to motorists receivingthe Block H advice, the Judge found that, with the Block H advice, the motorists werewarned that, depending on the result of a potential blood test, they were at risk ofprosecution. I do not consider there was any error in either his reasoning or theconclusion he reached as to this.23 Land Transport Act, s 69(4A)(b).24 Police v Bulleid, above n 2, at [41]; and Police v Hedley, above n 2, at [33].[57] On the hearing of this appeal however, the emphasis in submissions for theappellants was that the advice had not referred to the potential for the motorists to be"issued with an infringement offence notice or charged with an offence, depending onthe proportion of alcohol", if the blood alcohol test indicated the presence of alcoholin the motorists blood.[58] In accordance with the approach of the Court of Appeal in Re Solicitor-General's Reference, in deciding whether the advice in Block H complied with therequirements of s 69(4A), the issue is whether the omission of those words would havemisled the motorists as to how the results of a blood alcohol test might put them at riskof prosecution either by way of infringement notice or charge.[59] I do not consider the omission in the Block H advice of the words "dependingon the proportion of alcohol" was in any way misleading. At the time each appellantwas given this advice, he had been told he had been detained for the purpose of EBAor blood alcohol test procedures. Both appellants thus knew such tests would be totest for alcohol and provide evidence as to the level of alcohol in either breath or blood.After being stopped by the Police, they both submitted to a breath screening test andknew the level of alcohol revealed by that test had led to the requirement for them toundergo an EBA test. They would have known that the level of alcohol establishedthrough such testing would determine whether they were liable to prosecution.[60] Excerpt 4 of the Block H advice refers to liability for an infringement fee of$700 for a motorist who is over 20 years of age and alcohol concentration from a bloodalcohol test is between 51 and 80 milligrams of alcohol per 100 millilitres of blood.As was submitted by Mr Donnelly, with that advice, any motorist receiving Block Hadvice was on notice that, with the result of the blood alcohol test, there can beevidence of alcohol in the blood at different levels and, depending on the level, theremay be different consequences.[61] In referring to the potential outcome of a blood alcohol test, the Block H advicehowever did not verbatim say that, if the result of a blood alcohol test indicated thepresence of alcohol in the person's blood, the person might be issued with aninfringement offence notice or charged with an offence depending on the level ofalcohol.[62] Counsel for both appellants submitted that, had such words been included, eachmotorist would have been more likely to appreciate the need for legal advice andwould thus have been better able to make an informed decision at that point whetherthey should seek such advice.[63] I was referred to various decisions where District Court Judges had consideredthe adequacy of the Block H advice that was given here.[64] In Police v Hooper, Judge Phillips decided, with that advice, the personreceiving the advice would be aware that the presence of alcohol in the blood mightresult in prosecution action being taken.25 Prosecution action, given its normalmeaning, would include infringement offences. The word "proceedings" would, inthe circumstances, clearly relate to proceedings of a "criminal or quasi criminalkind".26 Applying what the Judge said was the logic within the Court of Appeal rulingin Re Solicitor-General's Reference,27 the Judge held there had been strict compliance,that they had been given the advice intended by Parliament and, with a positive bloodalcohol test, they might be liable for drink driving proceedings.28[65] In Police v Duffy, in holding that the motorist had not been misled by the BlockH advice, Judge Cathcart said a motorist would not be misled because he wouldunderstand from the Block H advice why he could be liable to be issued with aninfringement notice because he was advised precisely of the factual parametersgoverning that jeopardy.29 He had also been made aware of the only other prosecutionroute available – he might be charged with an offence under the Act.25 Police v Hooper [2021] NZDC 5619 at [59]−[60].26 At [59].27 There appears to have been a slip in the Judge, at different points, citing this judgment as NewZealand Police v Stewart.28 At [60].29 Police v Duffy [2021] NZDC 17020 at [34].[66] In Police v Richter, Judge Roberts was concerned with the same advice as inBlock H.30 The Judge considered the Block H advice did not clearly explain to themotorist that the person may be subject to an infringement notice or be charged withan offence depending on the level of blood alcohol concentration or communicate thatthe motorist might be charged at all. The Judge however applied s 64(2) and said therehad been reasonable compliance with the requirements of s 69(4A)(b) in terms of thetest stated by McMullin J in Soutar v Ministry of Transport.31[67] In Police v Humphreys, Judge Cooper said the "sense and effect of s 69(4A)"was not merely to advise the subject that, if he or she refuses or fails to undergo theevidential breath test, the EBA procedure will continue.32 He said that was spelt outin the prior subsection s 69(4A)(a). He said that, without advice that, if the result ofthe blood alcohol test indicates the presence of alcohol in the person's blood, theperson might be issued with an infringement notice or charged with an offence,depending on the proportion of alcohol, the full sense and effect of s 69(4A) was notconveyed by the words of Block H. He considered, without the relevant words,although the words of Block H did convey that the proceedings would continue if aperson fails or refuses to undergo the evidential breath test, that by itself is insufficient.He concluded there had thus not been strict compliance with s 69(4A).33 He also said,despite this, there had been reasonable compliance in terms of s 64(2).[68] In Re Solicitor-General's Reference, the Court of Appeal considered the BlockJ advice that, if a blood alcohol test was not elected, the EBA test would be conclusiveevidence in a prosecution against the motorist.34 The issue was whether that satisfiedthe requirement for advice that the positive test could be "conclusive evidence to leadto that person's conviction".35 The Court held that the difference in the wording usedin Block J, as compared to the wording in s 77(3A), was "a distinction without amaterial difference".3630 Police v Richter, above n 12.31 Soutar v Ministry of Transport, above n 18.32 Police v Humphreys, above n 12, at [15].33 Police v Humphreys, above n 12, at [16].34 Re Solicitor-General's Reference (No 1 of 2020), above n 6.35 At [18].36 At [41].[69] The Court of Appeal's determination as to that is not directly applicable to whatis at issue on these appeals although, as already referred to, some of their reasoning is.What is significant is that the Court considered, following a positive EBA test, s77(3A) required the Police to warn the motorist that they faced either a criminaloffence or an infringement offence.[70] The Court of Appeal held the warnings required in s 77(3A) required themotorist to be advised:37First, the present status of the motorist: either they face a criminal offence, orthey face an infringement offence. Secondly, that unless they make the bloodsample election, the EBT result could of itself be conclusive evidence againstthem.[71] In the wording of s 69(4A)(b), Parliament required the Police to advise themotorist that, if a blood alcohol test was positive for alcohol, depending on the levelof alcohol revealed by the test, the motorist could be liable to prosecution either byway of an infringement notice or a charge.[72] I accept, consistent with that, the wording of s 69(4A)(b) requires the motoristto be advised and to be able to understand that, depending on the level of alcoholobtained from a blood alcohol test, they could face prosecution down one of twoseparate routes – either through being charged with an offence or being issued with aninfringement offence notice.[73] The Court of Appeal was concerned with the advice which had to be given ata different stage when there was already evidence of an infringement or offencethrough the EBA test. Nevertheless, the Court of Appeal's judgment is consistent withit being important that, with the advice required by s 69(4A)(b), the motorist must bemade aware that the prosecution could be by way of either a charge or infringementnotice.[74] I do not consider it was necessary for the Police to spell out that suchpossibilities would be dependent on the level of alcohol indicated by the blood alcoholtest. That would have been obvious to the motorist.37 At [39].[75] Section 69(4A)(c) required a Police officer to advise "the infringement feepayable for a breach of s 56(2B)".[76] Section 56(2B) states:56 Contravention of specified breath or blood-alcohol limit(2B) A person commits an infringement offence if—(a) the person fails or refuses to undergo an evidential breath test afterhaving been required to do so under section 69; and(b) analysis of a blood specimen subsequently taken from the personunder section 72(1)(a) indicates that the person drove or attemptedto drive a motor vehicle on a road while the proportion of alcoholin the person's blood exceeded 50 milligrams of alcohol per 100millilitres of blood but did not exceed 80 milligrams of alcohol per100 millilitres of blood.[77] The infringement fee payable for such an offence is $700.[78] The Excerpt 4 advice referred to the fee payable for an infringement offence.It went further in referring to the circumstances in which, under s 56(2B), the feewould be payable. Each motorist was thus informed of the potential for a prosecutionto be by way of the infringement route. It was also made clear to the motorist that, inorder to go down the infringement notice route, their blood alcohol result would haveto be between 50 and 80 milligrams of alcohol per 100 millilitres of blood.[79] Because the motorist had been informed there were two prosecution routesavailable and they knew the factual parameters pertinent to one of those routes, theycould have known the prosecution route they might be subject to would depend on thelevel of alcohol revealed by the blood alcohol test.[80] There was accordingly no material gap in the advice provided to each motoristwith the Block H advice. My conclusion as to that is consistent with the approach ofthe District Court Judges in Police v Duffy, Police v Hooper and of the Judge in thecurrent two cases.38[81] There was accordingly no error in the Judge determining in these two casesthat there had been strict compliance with s 64(4A).[82] The Judge however said, had he been wrong in his determination, he wouldhave found there was reasonable compliance in terms of s 64(2).[83] I agree with the Judge that there was reasonable compliance in terms of s 64(2)and the test as stated by McMullin J in Soutar.39[84] With the advice the motorists received, they must have known that, dependingon the level of alcohol established by an EBA test or blood alcohol test, they would beat risk of prosecution for an offence. They were advised that, if they failed or refusedto cooperate with the EBA test, they could be required to undergo a blood alcohol test.They had been advised and must have known that, as a result of a blood alcohol test,they could be prosecuted. They knew from the fact they had failed the breath screeningtest that it was likely either an EBA test or a blood alcohol test would provide evidencethat they had committed an offence and that they would be charged with that offence.[85] The legislation did not require the Police to advise either motorist of thepotential sentences to which they might be subject if they were to be convicted of anoffence. These motorists would have known that, through their being engaged withthe Police and being detained for the purpose of EBA or blood alcohol testing, thePolice were in the process of obtaining evidence as to their offending and ultimatelythat could result in prosecution and sentencing.[86] Knowing that, they had sufficient information to make an informed decisionas to whether they required legal advice as to how they should deal with the situationthey were in. At several points during the process, they were reminded that they hadthe right to seek legal advice and that right remained with them throughout the process.38 Police v Duffy, above n 29; Police v Hooper, above n 25; Police v Bulleid, above n 2; and Policev Hedley, above n 2.39 Soutar v Ministry of Transport, above n 18.[87] There was no evidence to suggest they were either misled or theymisunderstood the situation they faced, either as to their status or the potential forprosecution.[88] The evidence obtained from the EBA testing was reliable and is not challengedin any way.[89] At the point where these motorists were advised of their right to legal adviceand did not seek to exercise that right, they were on notice that they either had toundergo an EBA test or, if they failed or refused to do that, they would be required tosubmit to a blood alcohol test. They could not have known precisely what the level ofalcohol would be in either such test although, given the result of the breath screeningtest and what ultimately emerged from the EBA test, they must have known they wereat risk of a reading significantly in excess of the level at which it could be conclusivelyproved they had committed an offence under the LTA.[90] It was implicitly suggested that, with legal advice, enquiry from a lawyer as totheir particular circumstances and advice as to the potential consequences of bloodalcohol testing, they might have decided to commit the different offence of refusing ablood alcohol test. Whether or not they would have done so is entirely speculativeand lacks any evidential foundation.[91] In considering s 64(2) and in considering whether what happened in each caseresulted in a miscarriage of justice in terms of s 232 of the Criminal Procedure Act,the appellants are asking the Court to find there was potential for an injustice becausethey were both denied the opportunity to decide that, rather than submit to alcoholtesting procedures, they should have had the opportunity to commit another offenceunder the LTA, namely, the refusal of a blood alcohol test.[92] The appellants implicitly suggest, without such an opportunity, the evidenceobtained from the EBA testing was obtained unfairly and conviction based on suchevidence has resulted in an injustice.[93] The evidence obtained from the EBA test proved conclusively they hadcommitted the offenses they were charged with and convicted of. Quashing thoseconvictions is not necessary to avoid a miscarriage of justice.[94] The breath screening test for each of these motorists showed they had likelybeen driving when the alcohol on their breath was over 400 micrograms per litre ofbreath. In such circumstances, through the LTA, Parliament has made it clear thePolice could require them to submit to an EBA test or, if they failed or refused toundergo such a test, then a blood alcohol test. Either test would provide reliableevidence as to the alcohol level at the time they were driving.[95] To set aside their convictions on the basis they should have been given theopportunity to avoid such testing through committing another offence would be tofrustrate the intentions of Parliament rather than to give effect to them, as the SupremeCourt in Aylwin v Police clearly said Judges are required to do.40[96] The appeals in both cases are dismissed.Solicitors:ASP Tobeck, Barrister, SouthlandS D Cullen, Barrister, AucklandRPLaw, Invercargill.40 Aylwin v Police, above n 22, at [17].