WAHED v NEW ZEALAND POLICE [2023] NZHC 407

WAHED v NEW ZEALAND POLICE [2023] NZHC 407 [6 March 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2022-463-57[2023] NZHC 407UNDER the Criminal Procedure Act 2011IN THE MATTER OF an appeal against convictionBETWEEN MD ZAKARIA WAHEDAppellantAND NEW ZEALAND POLICERespondentHearing: 27 February 2023Appearances: T J Conder and S T Hartley for the AppellantJ L C Manera and C A Bourke for the RespondentJudgment: 6 March 2023JUDGMENT OF PALMER JSolicitorsHolland Beckett Law, TaurangaCrown Solicitor, Pollett Legal Ltd, TaurangaWhat happened?[1] On 8 May 2021, Mr Md Zakaria Wahed, who is now 48, made a U-turn beforeapproaching a Police alcohol breath testing checkpoint in Papamoa, Tauranga.Constable Hannah followed him and pulled him over. Mr Wahed admitted to havingdrunk three glasses of red wine with dinner, three hours beforehand, after breaking hisRamadan fast. He failed a breath test and was taken to the "booze bus" for anevidential breath test. That showed he had 493 micrograms of alcohol per litre ofbreath. He was charged with driving with excess breath alcohol, over the400-microgram limit, under s 56 of the Land Transport Act 1998 (the Act).[2] On 28 April 2022, in the District Court at Tauranga, Judge W Lawsonconducted a judge-alone trial of Mr Wahed.1 The Judge identified the main issue aswhether Mr Wahed fully understood the process and could make an informed decisionin requesting to give a blood sample in the allowed 10-minute period following thebreath test.2 In relation to that, relevantly, he stated:[10] At this point it was suggested by Mr Mitchell, on behalf of Mr Wahed,that Mr Wahed had requested a blood test at that point in the process. Whatbecame clear when Mr Wahed gave evidence was not that he hadrequested directly a blood test at that stage but had made an enquiryabout whether they were going to complete a blood test. According to MrWahed, the response from Constable Hannah was that, "no, we are not at thatstage yet" or words to that effect and were going for an evidential breath test.[11] The significance of that is that what was put by Mr Mitchell was asuggestion that there was a request for a blood test from the very outset. Thatis certainly not my understanding of the evidence that Mr Wahed gave on thatpoint. Mr Wahed gave a very clear account where he believed he had madea general enquiry about whether the blood test was at that stage. Be thatas it may, Constable Hannah was very clear that there was no request for ablood test throughout the process and the notes and records identified in thebreath and blood alcohol procedure sheet are very clear about the process thatConstable Hannah followed and demonstrate to me a significant level ofconscientiousness and care about the following of the processes.[17] Mr Wahed adamantly maintained that he wanted a blood sample,although he, as Mr Mitchell has suggested, said that the second request maywell have come after the 10 minute period had concluded. Constable Hannahwas very clear that there was no request for blood. He maintained from theoutset that there was no such request. Mr Wahed, on the other hand, says that1 New Zealand Police v Wahed [2022] NZDC 9330.2 At [3].there was a request for blood and that was declined because Constable Hannahwas hungry and wanted to go home. I note immediately that that secondaspect, that Constable Hannah was hungry and wanted to go home, was notput to him. So that goes to the weight of the evidence that can be placed on it.(emphasis added)[3] The Judge emphasised that Mr Wahed was given at least four opportunities tocontact a lawyer to get legal advice, which he declined.3 He said he was "still at a lossto fully understand exactly what the defence is", preferred the evidence of ConstableHannah, found the elements of the offence proved beyond reasonable doubt, and foundMr Wahed guilty.4 He apparently disqualified Mr Wahed from driving for six monthsand fined him $600, but deferred the disqualification pending determination of thisappeal. Mr Wahed appeals his conviction.Law of appeal[4] Under s 232(2) of the Criminal Procedure Act 2011, I must allow the appealagainst conviction if satisfied the Judge erred in his assessment of the evidence to suchan extent that a miscarriage of justice has occurred or there has been a miscarriage ofjustice for any reason. A miscarriage of justice means any error, irregularity oroccurrence in the trial that has created a real risk its outcome was affected or resultedin an unfair trial. Case law clarifies that:(a) A "real risk" that the outcome was affected exists when there is areasonable possibility a more favourable verdict might have beendelivered if nothing went wrong.5(b) It is for the appellant to show an error has been made and the appellatecourt must take into account any advantages a trial judge may havehad.6 That means an appellate court will exercise "customary caution"to a challenge to credibility findings based on contested oral evidence.73 At [13].4 At [19]-[20].5 R v Sungswan [2005] NZSC 57, [2006] 1 NZLR 730 (SC) at [110].6 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].7 At [38]; citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR141 at [13].(c) If the appellate court comes to a different view of the evidence, the trialjudge must necessarily have erred and the appeal must be allowed.8The evidence[5] Mr Wahed's instructions to his lawyer before trial about what happened arethat he requested a blood test: immediately after receiving the breath screening test;while he was waiting for the result of the evidential breath test; when the Constablereturned after the 10-minute period; again after that; and in the car when the Constablegave him a lift home.[6] At trial, the evidence of both sides, that was relevant to the issue on appeal,was more confused:(a) Under cross-examination, Constable Hannah first said he could notremember whether, and then said he was certain that, Mr Wahed did notsay he wanted a blood test after he failed the breath-screening test.9 Herepeated his certainty later in his evidence.10 But the Constable alsoacknowledged there may have been a conversation after the 12-minuteperiod he provided to Mr Wahed after the evidential breath test, whereMr Wahed was asking for a blood test. He also said he did not recallMr Wahed asking for a blood test but acknowledged he may have askedfor one.11(b) Mr Wahed gave evidence mainly in English but also sometimes throughan interpreter. His evidence is not very clear in general, due to languageissues. But his evidence in chief was clear that, before having theevidential breath test, he asked the Constable "[d]o I need to do a bloodtest" (through the interpreter), "[a]re we have to do the blood test", and"[a]re you going to the blood test?".12 During the 10 or 12 minuteperiod, his evidence is that he asked "[w]hat are you doing for the blood8 At [38].9 Notes of Evidence (NOE) at 9/1-9.10 NOE at 18/23.11 NOE at 12//1412 NOE at 22/20, 22/28, and 25/29.test?".13 Mr Wahed's evidence is that he asked for a blood test on atleast four separate occasions.14 Mr Wahed stated that he wanted a bloodtest because it would be an accurate recording of his blood alcohol. MrWahed also explained that he was sure it would prove he was not overthe limit.15(c) During Mr Wahed's evidence in chief and under cross-examination itwas clear he did not understand the purpose of the 10-minute period.16Neither did he understand what the Constable asked him to sign, whenhe signed it (or afterwards).17[7] On two occasions during trial, when Mr Mitchell was leading Mr Wahed'sevidence in chief, Mr Wahed started discussing when he asked for a blood test beforethe evidential breath test.18 On both occasions, the Judge interjected that the questionwas not put to "the witness", presumably Constable Hannah. However, such aquestion was put to Constable Hannah.19 In giving his verdict, the Judge also statedthat the proposition the Constable had refused to take Mr Wahed for a blood testbecause he was hungry and impatient for a break had not been put to ConstableHannah.20 But that proposition had been put too.21Relevant law[8] The breath-testing and blood-testing procedures for suspected drink-drivingare set out in pt 6 of the Act. Relevantly:(a) Section 68 empowers an enforcement officer to require a driver toundergo breath screening.13 NOE at 24/10.14 NOE at 22/20, 23/11, 23/24, and 30/7.15 NOE at 25/8–25/12.16 NOE at 23/15–23 and 30/15–30/30.17 NOE at 31/14.18 NOE at 22 and 25–26.19 NOE at 18/20–23.20 New Zealand Police v Wahed, above n 1, at [17].21 NOE at 19/5–10.(b) If breath screening exceeds 250 micrograms of alcohol per litre ofbreath, s 69 empowers an enforcement officer to require the driver toaccompany them to undergo an evidential breath test or a blood test orboth.(c) Section 72 requires a person who has tested positive in an evidentialbreath test to have a blood test if, relevantly, they have failed a breathscreening test. Where the person has tested positive in an evidentialbreath test, they may subsequently advise the enforcing officer that theywish to undergo a blood test. The person must advise the officer within10 minutes of being informed of their ability to give a blood test, andthe admissibility of their evidential breath test.(d) Sections 77, 70A and 72 sets out a series of interlocking presumptionsand exceptions and a right to elect a blood test:77 Presumptions relating to alcohol-testing(1) For the purposes of proceedings for an offence against thisAct arising out of the circumstances in respect of which anevidential breath test was undergone by the defendant, it is tobe conclusively presumed that the proportion of alcohol in thedefendant's breath at the time of the alleged offence was thesame as the proportion of alcohol in the defendant's breathindicated by the test.(2) For the purposes of proceedings for an offence against thisAct arising out of the circumstances in respect of which ablood specimen was taken from the defendant under section72 or section 73, it is to be conclusively presumed that theproportion of alcohol in the defendant's blood at the time ofthe alleged offence was the same as the proportion of alcoholin the blood specimen taken from the defendant.(3) Except as provided in subsections (3B) and (4), the result ofa positive evidential breath test is not admissible inevidence in proceedings for an offence against any of sections56 to 62 if—(a) the person who underwent the test is not advised byan enforcement officer, without delay after the resultof the test is ascertained,—(i) that the test was positive; and(ii) of the consequences specified in subsection(3A), so far as applicable, if he or she doesnot request a blood test within 10 minutes; or(b) the person who underwent the test—(i) advises an enforcement officer, within 10minutes of being advised of the mattersspecified in paragraph (a), that the personwishes to undergo a blood test; and(ii) complies with section 72(2).(3A) The consequences referred to in subsection (3)(a)(ii) are—(a) that the positive test could of itself be conclusiveevidence to lead to that person's conviction for anoffence against this Act if—(i) the test indicates that the proportion ofalcohol in the person's breath exceeds 400micrograms of alcohol per litre of breath; or72 Who must give blood specimen at places other thanhospital or medical centre(1) A person must permit a health practitioner or medical officerto take a blood specimen from the person when required to doso by an enforcement officer if—(b) the person has undergone an evidential breath testunder section 69(4), and—(i) it appears to the officer that the test ispositive; and(ii) within 10 minutes of being advised by anenforcement officer of the matters specifiedin section 77(3)(a) (which sets out theconditions of the admissibility of the test), theperson advises the officer that the personwishes to undergo a blood test;70A Right to elect blood test(1) A person has the right, within 10 minutes of being advised byan enforcement officer of the matters specified in section77(3)(a) (which sets out the conditions of the admissibility ofthe test), to elect to have a blood test to assess the proportionof alcohol in his or her blood, if the result of that person'sevidential breath test appears to be positive, and—(a) the result of the person's evidential breath testindicates that the proportion of alcohol in the person'sbreath exceeds 400 micrograms of alcohol per litre ofbreath; (emphasis added)[9] Neither counsel nor I have identified case law relevant to the issue raised here.Submissions[10] Mr Hartley, for Mr Wahed, submits:(a) The principal issue is whether the Judge erred in assessing the evidenceor was correct in determining Mr Wahed did not request a blood test inthe relevant period of time under s 77(3) of the Act. Mr Wahed, withouta strong facility in English, made a number of requests for a blood testwhich the Constable simply ignored. In the context of his previousrequests, and his difficulties with English, Mr Wahed's question withinthe 10-minute period about whether he needed a blood test should havebeen understood as a request for a blood test. That is consistent withuse of the word "advise" in s 77(3) and the exclusionary purpose of thatsection, when interpreted consistently with the New Zealand Bill ofRights Act 1990 (Bill of Rights). Mr Wahed should not be in anironically worse position than if he had refused to do a breath test,which would have led to him being required to have a blood test.(b) The Judge misapprehended what had been put to Mr Wahed andprevented evidence from being given that would have allowed MrWahed to succeed. The evidence was relevant to the credibility of bothwitnesses and to whether s 77(3) was satisfied or not. It had asignificant impact on the trial and verdict, leading to a miscarriage ofjustice. This is not a case where the trial judge enjoyed an advantage.He was not sure what the defence was and appears to have beenconfused about what had been put to Mr Wahed.(c) Mr Wahed's right to counsel under s 23 of the Bill of Rights was noteffective. He may have literally understood the words. But they didnot make him aware in a meaningful sense of his right to reasonableaccess to free legal advice, which has the purpose of reminding thecitizen of the jeopardy they face while potentially subject to the State'spower.22[11] Mr Manera, for the Police, submits there were questions posed about theallegation the Constable was tired and hungry, but the matter was not put to ConstableHannah simply and his responses disproved the proposition. There was no reason toput weight on that evidence. Section 77 creates a conclusive presumption which,combined with the breath screening and evidential breath test results and the advice toMr Wahed of his right to have a blood test, establishes an offence was committed. Theevidence of Constable Hannah is consistent and unchallenged that Mr Wahed did notrequest a blood test within the 10-minute timeframe. The Judge's conclusion that hemade an enquiry, rather than a request, is justifiable on the evidence. It was not amisapprehension by the Judge but a lack of substantiating evidence that led to theverdict. The Judge was entitled to conclude Mr Wahed had some comprehension ofthe process, sufficient to make informed decisions.Request for blood test[12] I accept that the freewheeling nature of the questioning at trial, and thedifficulty in understanding Mr Wahed's somewhat elliptical responses, would havemade it difficult for the trial judge to evaluate the evidence during the trial. Hiscomment in delivering his verdict, that he was still at a loss to fully understand whatthe defence was, affirms that was so. This case may be an exception to the generalrule that the trial judge has an advantage over an appellate court in understanding theevidence.[13] The Judge identified the key issue at trial as being whether Mr Wahed fullyunderstood the process and could make an informed decision in requesting to give ablood sample in the allowed 10-minute period following the breath test. But reviewing22 Noort v Ministry of Transport [1992] 3 NZLR 260 (CA) at 279.the transcript, with the benefit of hindsight, suggests the real issue was different. Itwas whether Mr Wahed had made such a request.[14] With the benefit of the transcript, I do not agree with the Judge that theevidence was clear Mr Wahed made "an enquiry" about a blood test rather thanrequested one. The Constable's evidence involved contradictions as to whether heremembered Mr Wahed saying he wanted a blood test. He acknowledged he may havedone. It is clear from the transcript of Mr Wahed's evidence that he was fixated ongetting a blood test. He made an early request for a blood test, when firstaccompanying the Constable to the booze bus. He understood he needed to complywith the Police procedure to get one. He clearly did not understand the purpose of the10-minute period. As far as he was concerned, he was waiting for his blood test. Hisevidence is that he made what he understood to be several requests for a blood test. Ingiving evidence he phrased that in terms of questions.[15] As Judge W Hastings said in Police v Coric in relation to the requirement for"advice" of a request for a blood test within the 10-minute period:23The words used do not matter if the meaning is effectively communicated.Effective communication requires that a message is conveyed by a sender andthat the same message is received by the recipient. Effective communicationtherefore also requires accuracy. In order to effectively communicate advice,three things are required: the information must be accurately conveyed by thesender, accurately received by the recipient, and the sender must be assuredthat the recipient has received the intended meaning. Whether or not theadvice was effectively communicated is therefore a factual inquiry.[16] Mr Wahed's repeated questions, understood in context, indicate he was makingrequests for, not enquiries about, a blood test. His lack of facility with English shouldnot count against him through a literal interpretation of his words. That request wasoperative throughout the required 10-minute period, in the unusual circumstances ofthis case. That was certainly his understanding. And it is a tenable interpretation ofthe evidence. Ironically, if Mr Wahed had been less cooperative, and refused to givean evidential breath test, he would have got his blood test, under s 72(1)(a) of the Act.23 Police v Coric [2020] NZDC 14016 at [6].[17] In this respect, I consider the Judge erred in his assessment of the evidence.Furthermore, in inadvertently misapprehending the nature of the issue in the midst ofa difficult trial, and the points which had and had not been put to the Constable, theJudge prevented questions being put to Mr Wahed which could have provided furtherrelevant evidence as to whether s 77(3) was satisfied or not. In retrospect, this was aclear error. Together, these errors created a real risk the outcome of the trial wasaffected. Accordingly, I am satisfied on the facts that there was a miscarriage ofjustice.[18] While drink-driving is serious, the alleged offending here was relatively minorand occurred 21 months ago. There is a lengthy backlog of matters in the DistrictCourt to deal with. It is not in the interests of justice to order a retrial of this matter.Result[19] I uphold the appeal, quash the conviction and sentence, including Mr Wahed'sliability to pay the fine imposed. If the fine has been paid, it should be remitted tohim. And he needs to be more careful about drinking and driving.Palmer J