SINGH v NEW ZEALAND POLICE [2021] NZCA 91

SINGH v NEW ZEALAND POLICE [2021] NZCA 91 [25 March 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA175/2020[2021] NZCA 91BETWEEN MANINDER SINGHAppellantAND NEW ZEALAND POLICERespondentHearing: 12 February 2021Court: Kós P, French and Gilbert JJCounsel: A J Haskett, Z E Reid and M J Mellin for AppellantC A Brook for RespondentJudgment: 25 March 2021 at 9 amJUDGMENT OF THE COURTA The application to adduce further evidence is declined.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] At 11.50 pm on Tuesday 7 August 2018 police officers found the appellant,Mr Maninder Singh, asleep at the wheel of his van on Gadsby Road, South Auckland.The van was stationary, parked at an oblique angle across both kerb and carriageway,on a broken yellow line, in neutral, with its engine running. The officers removed thekey from the ignition. Mr Singh smelt of alcohol, his eyes were glazed, his speechwas slurred and he lapsed in and out of a stupor.[2] The constable conducted a breath test on Mr Singh, which indicated a breathalcohol level exceeding 400 mcg of alcohol per litre of breath. The constable thentook Mr Singh to Manukau Police Station for an evidential breath test (EBT), whichshowed a result of 986 mcg of alcohol per litre of breath — almost four times the legallimit.[3] Mr Singh was subsequently convicted on one charge of driving with excessbreath alcohol by Judge DJ Harvey in the District Court at Manukau.1 He appealedboth his conviction and the refusal to grant a discharge without conviction to theHigh Court. There were two stated grounds of appeal: first, that the constable lackedproper grounds to require Mr Singh to undergo an EBT, and secondly that Mr Singhshould have been discharged without conviction. On 3 March 2020, Katz J dismissedthe appeal.2[4] Mr Singh then applied for leave to appeal to this Court. The grounds advancedwere materially identical to those advanced before the High Court. The applicationfor leave was decided on the papers. This Court declined leave on the two groundspresented.3[5] Leave was however granted on a third basis, not sought by the appellant.Between Mr Singh filing his leave application and the application being decided, theCourt granted the Solicitor-General leave to refer the issue of whether the wording inthe procedure sheet used by police after administering an EBT (the Block J wording)complied with ss 77(3) and (3A) of the Land Transport Act 1998 (the Act).4That wording seemingly had been used in Mr Singh's case. Some District Courtdecisions had held the wording to be non-compliant, meaning EBT results wereinadmissible in evidence.5 Accordingly, and to preserve Mr Singh's position, thisCourt noted:61 New Zealand Police v Singh [2019] NZDC 10147.2 Singh v New Zealand Police [2020] NZHC 368.3 Singh v R [2020] NZCA 411 [Leave judgment].4 Re Solicitor-General [2020] NZCA 330.5 Leave judgment, above n 3, at [18], citing as examples New Zealand Police v Stewart [2020]NZDC 11392; New Zealand Police v Taylor [2020] NZDC 12166; and New Zealand Policev Koliandr [2019] NZDC 11473.6 Leave judgment, above n 3, at [22].If the approach taken in the District Court is upheld in this Court, there wouldlikely be a miscarriage of justice in Mr Singh's case, assuming that the advicegiven was consistent with the Procedure Sheet. Accordingly, we consider thatit is appropriate to grant Mr Singh leave to bring a second appeal in regard tothis issue.[6] After leave was granted on that limited basis in September 2020, this Courtdelivered its judgment in Re Solicitor-General's Reference (No 1) of 2020 inNovember 2020.7 That decision held the Block J wording conveyed the sense andeffect of the warning required by s 77(3A)(a), and was to that extent compliant withthe statutory requirements.8Scope of leave granted[7] Before us, in written and then oral submissions, Mr Haskett attempted asomewhat athletic, two-part argument. On the one hand, he said, the procedure sheetused by the constable was not produced in evidence. It followed the police had notproved the contentious Block J wording had been directed to Mr Singh at all, and thecharges should be dismissed on that basis. On the other hand, if the evidence sufficedto show the constable had used the Block J wording, that was neither strictly norreasonably compliant with the requirements of s 77, and the EBT was inadmissibleagainst Mr Singh.[8] Leave was granted in September 2020 against the possibility thatRe Solicitor-General's Reference might find the Block J wording non-compliant.It follows the appellant's first argument: (1) was not raised in the District Court;(2) was not raised in the High Court; (3) was not raised in the application for leave;(4) was not the subject of leave granted; and (5) was not the subject of any properapplication for extended leave (for which a Crown application to adduce furtherevidence from the police might have been entertained). In any event, the argument isdifficult to make with any cogency in the face of the constable's evidence at trial.As we made clear at the hearing, we will not entertain it.7 Re Solicitor-General's Reference (No 1 of 2020) [2020] NZCA 563.8 At [35]. It also held that the wording did not strictly comply with s 77(3A)(b). As no casesinvolving that provision were before the Court (involving drivers under 20 years of age, and anEBT not exceeding 150 mcg of alcohol per litre of breath), the issue of whether the Block Jwording was reasonably compliant in such a case, under s 64(2) of the Act, was reserved: at [47].[9] That left the appellant with his second alternative argument. Shorn of anyingratiating embellishments, it is nothing more nor less than an argument that thisCourt's decision in Re Solicitor-General's Reference is per incuriam. That is to say,very wrong indeed.[10] It may be doubted that argument too is within the leave this Court granted inSeptember 2020. The leave judgment was premised on protecting Mr Singh'sposition, on the basis he had received the Block J wording and advice (contrary toargument one), in the event this Court then held in Re Solicitor-General's Referencethat the wording was non-compliant with the Act and the EBTs, in consequence, wereinadmissible. That premise proved unfounded in the outcome. The Crown did nothowever take this point. We will therefore assess the merits of the per incuriamargument. Before doing so, however, we need to deal with the application made toadduce fresh evidence on appealFresh evidence on appeal?[11] Mr Haskett sought to adduce evidence of the history of the police drafts of theBlock J wording, in its various permutations. He asked us to receive backgroundmaterials that the police had given in disclosure. For the reasons given inRe Solicitor-General's Reference — when the Crown made a similar, unsuccessfulapplication — we decline the application to adduce further evidence.9 It has norelevance to the essential question of whether the words used comply with therequirements of the Act. Why they were used is quite beside the point.Is Re Solicitor-General's Reference per incuriam?[12] There are three aspects to this. First, the threshold to establish that a recentdecision of this Court is per incuriam. Secondly, what Re Solicitor-General'sReference actually held (that is, what its ratio decidendi is). Thirdly, whether that ratiois so demonstrably wrong as to meet the threshold in the present case.9 Re Solicitor-General's Reference (No 1 of 2020), above n 7, at [28].The per incuriam threshold[13] In principle the doctrine of precedent (or stare decisis) requires this Court tofollow its own prior decisions. But, as with most principles, there are recognisedexceptions. There are four primary exceptions. First, the Court is not bound to followits prior decision where it conflicts with another such decision. Secondly, it is notbound to do so where the decision conflicts with a decision of a superior court.Thirdly, it is not bound to follow its prior decision if it concludes that decision wasgiven per incuriam. Those three exceptions were identified in 1944 byLord Greene MR in Young v Bristol Aeroplane Co Ltd,10 and they remain true today.[14] In New Zealand a fourth, innominate exception exists, in part because thisCourt has never wholly embraced the classification in Young v Bristol AeroplaneCo Ltd. That was apparent when the question came before the Court three years laterin Re Rayner.11 The fourth exception permits departure in circumstances not coveredby the first three. But in practical terms it is a confined enlargement of the thirdexception: it permits departure from a previous decision that does not meet the morelimited criteria for condemnation as per incuriam. This Court has resisted detailingthe circumstances in which this exception applies, but has said in R v Chilton that itsapproach "will be cautious because of the need for certainty and stability in the law".12Moreover, as Cooke P observed in Dahya v Dahya:13Yet it could not be right for this Court to overrule a prior decision of its own,even when sitting on a later occasion with five Judges, merely on the groundthat on a finely balanced point of statutory construction the later Benchpreferred a different view. Some more cogent reason must be necessary tojustify departure from such degree of certainty as the doctrine of stare decisisachieves.[15] In Dahya the Court noted a number of considerations relevant to whether itshould revisit a previous decision. They included whether there has been anyfundamental general change of circumstance since the prior decision, whether contrarydecisions have since been delivered by persuasive jurisdictions overseas, the numberof judges that sat on the previous decision compared to the number sitting on the10 Young v Bristol Aeroplane Co Ltd [1944] KB 718 (CA) at 725–726 and 729–730.11 Re Rayner [1948] NZLR 455 (CA).12 R v Chilton [2006] 2 NZLR 341 (CA) at [83].13 Dahya v Dahya [1991] 2 NZLR 150 (CA) at 155–156.present case, whether the previous decision had been decided by a majority, the lengthof time the earlier decision has stood, and the nature of the issue the case is concernedwith.14 The primacy of individual justice in criminal cases means a more flexibleapproach may be taken in that context.15[16] It is not suggested this broader, essentially evolutionary fourth exception isengaged in this case. The indicia in Dahya are not relied upon. Rather, it is said thatRe Solicitor-General's Reference, a very recent decision of the Permanent Court, issimply wrong. That engages the third, per incuriam exception, which now calls for alittle exposition. Although the expression "per incuriam" defies definition, the bestknown examples are where a relevant statute, rule or particularly important precedenthave been overlooked (and which, if taken into account, demand a differentoutcome).16 There is a clear analogy here with one of the three circumstances in whicha criminal decision may be recalled — where "counsel have failed to direct the Court'sattention to a legislative provision or authoritative decision of plain relevance".17[17] The essential point we need to make is this: more is required here than just anargument that the prior decision is wrong. To be per incuriam it must be wrong byreason of a fatal and fundamental omission. If so, the decision may be departed fromby this Court. If not, it may only be departed from if it falls into the fourth, innominateor evolutionary category, which was not advanced here. Reversal otherwise mustoccur in the Supreme Court.The ratio decidendi of Re Solicitor-General's Reference[18] Our prior decision holds as follows: despite the Block J wording not literallyconforming to the statutory language in ss 77(3) and 77(3A)(a), it nonetheless14 At 156–157 per Cooke P; and at 168 per Hardie Boys J.15 R v Chilton, above n 12, at [103]; and Moses v R [2020] NZCA 296 at [44].16 See, for example, Young v Bristol Aeroplane Co Ltd, above n 10, at 729; and GW Paton "DecisionsPer Incuriam" (1950) 4(1) Res Judicatae 7 at 8.17 Uhrle v R [2020] NZSC 62 at [22], citing Horowhenua County v Nash (No 2) [1968] NZLR 632(SC) at 633.complies with those provisions because it conveys their sense and effect.18 As we putit:19 it follows that a degree of appreciation is available to the personexercising the statutory duty. Verbatim recitation of the statutory wording isnot necessarily required for the law enforcement process itself to remainlawful.We did however hold that the wording was non-compliant in the case of the warningrequired by s 77(3A)(b) in other cases involving youth motorists.20[19] The ratio of the decision therefore concerns the formal compliance of wordingused by police officers with the requirement in s 77 to give a warning in particularterms before an EBT result is admissible in evidence against a motorist. It does not,as the appellant's argument sought to suggest, preclude an argument that the motoristdid not in fact understand his rights (either under s 23 of the New Zealand Bill ofRights Act 1990 or s 77 of the present Act).21 As Ms Brook acknowledged on theCrown's behalf, the Court's reasoning in the decision "is not inconsistent with thePolice taking extra steps to ensure an individual driver's comprehension if there arereasons to doubt she or he has understood the advice given".Is the per incuriam threshold met here?[20] Mr Haskett advanced 12 reasons why our previous decision was in error.A number of these were repetitive. The essential arguments were that s 77(3A)(a)requires advice of the specified consequence (that is, of a "conviction"); that thedecision perpetuates an outdated objective approach, inconsistent with Scown v Police(a submission we have rejected in [19]); that the decision transfers a duty to engage inlegal reasoning onto motorists (and that they may not reason in the manner suggestedin the decision); and that the decision diverges from a 2003 decision of this Court inPolice v Tolich.2218 Re Solicitor-General's Reference (No 1 of 2020), above n 7, at [35]–[41]. In finding so, this Courtfollowed Boyd v Auckland City Council [1980] 1 NZLR 337 (CA); Barr v Ministry of Transport[1983] NZLR 720 (CA); Sherry v Ministry of Transport CA99/84, 28 September 1984; and Suluyv Ministry of Transport [1986] 2 NZLR 380 (CA).19 At [37].20 At [42]–[43].21 Scown v Police [2015] NZHC 106 at [22].22 Police v Tolich (2003) 20 CRNZ 150 (CA).[21] There were a number of other lesser arguments, but they all suffer from thesame vice as the primary arguments. That is, they are all arguments that our priordecision is wrong, but none of them meet the threshold for, and thereby engage, eitherthe third (per incuriam) or fourth (innominate) exceptions to the principle that thisCourt will follow its own decisions. In these circumstances, reversal, if it is to occur,must be a matter for the Supreme Court.23[22] We pause to address the argument about Police v Tolich. Arguably it engagesthe first exception noted at [13]. We do not consider that authority assists the appellant.Tolich was one of a number of cases arising from a failure by the police after a 2001statutory amendment to advise motorists that without a blood test, the EBT result couldbe "conclusive" evidence leading to a conviction. Instead the standard advicecontinued to be that the EBT could be "sufficient" evidence. In the High Court themotorist's appeal against conviction was allowed.24 The prosecution's successfulappeal in this Court confined itself to an argument that non-compliance with thestatutory wording was excused by reasonable compliance under s 64(2) of the Act.25We address that provision at [46]–[48] of Re Solicitor-General's Reference.Three things may be noted. First, the linguistic divergence in that case arguably wasmore substantial than in this case. Secondly, and perhaps for that reason, neitherBoyd v Auckland City Council nor Barr v Ministry of Transport were referred to orrelied upon by the appellant in Tolich. Thirdly, where (as here) the statute requires awarning, but not explicitly in an exact form, once the true sense and effect of therequirement is conveyed, actual compliance occurs. There is no need to divert to thebackstop statutory provision excusing reasonable (in place of actual) compliance.That very point was made abundantly clear by this Court in both Boyd and Barr.26[23] Finally, we think it worth restating here the passage with which theSupreme Court ends its judgment in Aylwin v Police:2723 See [17] above.24 Tolich v Police HC Auckland A175/02, 10 December 2002.25 Police v Tolich, above n 22, at [15]–[16].26 Boyd v Auckland City Council, above n 18, at 341–343 per Richmond P; and Barr v Ministry ofTransport, above n 18, at 722 per Woodhouse P.27 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1, at [17].Every 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.Result[24] The application to adduce further evidence is declined.[25] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent