NEW ZEALAND POLICE V BARR CA CA700/2008

NEW ZEALAND POLICE V BARR CA CA700/2008 7 April 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA700/2008 [2009] NZCA 124BETWEEN NEW ZEALAND POLICE Appellant AND LEROY JOHN BARR Respondent Hearing: 29 January 2009 Court: Chambers, Robertson and Arnold JJ Counsel: S J Mount for Appellant A J Bailey and K Cook for Respondent Judgment: 7 April 2009 at 10.30 amJUDGMENT OF THE COURT A The appeal is allowed. B The order made in the District Court requiring the respondent to pay medical expenses incurred in administering a blood test is reinstated. REASONS OF THE COURT(Given by Chambers J)Medical test fee[1] On 5 March last year, Judge Couch convicted Leroy Barr, the respondent, on a charge of driving while the proportion of alcohol in his blood exceeded 80 mg ofalcohol per 100 ml of blood. The judge fined Mr Barr $600 and imposed court costs of $130, medical expenses of $102.60, and an analyst's fee of $93. He also disqualified Mr Barr from holding or obtaining a driver's licence for six months. [2] Mr Barr appealed against the order requiring him to pay medical expenses. The ground of appeal was that the District Court had no jurisdiction to order such disbursements. [3] The appeal, which was in the nature of a test case, was heard by French J. In a reserved decision delivered on 14 August last year, she found in Mr Barr's favour: [2009] NZAR 12. She examined a number of statutory provisions which the police argued might justify the order, but she found none of them did. She quashed the order requiring Mr Barr to pay medical expenses. [4] Subsequently, she granted leave to appeal to this court under s 144 of the Summary Proceedings Act 1957. Before us, the police relied on just one authority as providing jurisdiction, namely the Costs in Criminal Cases Act 1967 (CCCA) and the regulations made under it, the Costs in Criminal Cases Regulations 1987 (the 1987 regulations). They no longer sought to rely on three other sources of statutory authority advanced before French J, namely s 67 of the Land Transport Act 1998, s 32 of the Sentencing Act 2002 (the power to impose a sentence of reparation), and the court's power to impose a fine. [5] We are satisfied that the argument advanced by Mr Mount, for the police, is sound. There was jurisdiction for Judge Couch's order under the CCCA, as supplemented by the 1987 regulations. In the next section of these reasons, we shall explain why we consider that Act provides jurisdiction. We shall then discuss the five arguments Messrs Bailey and Cook put forward on Mr Barr's behalf.The Costs in Criminal Cases Act[6] Section 4(1) of the CCCA provides as follows:Where any defendant is convicted by any Court of any offence, the Court may, subject to any regulations made under this Act, order him to pay such sum as it thinks just and reasonable towards the costs of the prosecution.[7] "Costs" is defined in s 2:Costs means any expenses properly incurred by a party in carrying out a prosecution, carrying on a defence, or in making or defending an appeal.[8] Reading that definition into s 4(1) means the court is empowered, in cases where it is the prosecution claiming costs, to order the convicted defendant "to pay such sum as it thinks just and reasonable towards the expenses properly incurred by [the police] in carrying out [the] prosecution". [9] Section 13(1) empowered the Governor-General, by Order in Council, to make regulations for, among other purposes, "prescribing the heads of costs that may be ordered to be paid under this Act". [10] Regulation 3 of the 1987 regulations provides as follows:Subject to section 13(3) of the Act, the heads of costs and the maximum scales of costs that may be ordered to be paid under the Act shall be those set out in the Schedule to these regulations.[11] Part 3 of the schedule provides as follows:Expenses which may be ordered to be paid under the Act shall be – (b) All other disbursements reasonably and properly incurred; including – (ii) The costs of enquiries and scientific and other investigations and tests.[12] There were provisions to like effect in the original regulations, the Costs in Criminal Cases Regulations 1970. [13] These provisions enable the police, on securing a conviction on a blood alcohol charge, to seek from the court an order that the convicted defendant pay to the Crown a disbursement representing the costs incurred by the police in having amedical practitioner or medical officer take a blood specimen in circumstances where the driver had advised the police officer that he or she wished to undergo a blood test. The taking of a blood specimen by a medical practitioner or medical officer is the first step of the scientific testing of that driver's blood in order to assess the proportion of alcohol in the blood. [14] Of course, the fact the court can order a convicted defendant to pay the costs of scientific testing does not mean an application to recover such disbursements must be granted. The court has a very broad discretion under s 4(1). It will order a defendant to pay costs only to the extent that the court thinks it "just and reasonable" so to order. And further, disbursements are recoverable only if the court considers they were "reasonably and properly incurred". Those are very important safeguards for defendants. There is no need to give "costs" a narrow meaning so as to safeguard defendants' interests; their interests are protected by the fact that no order for costs will (or should) be made unless it is, in the court's view, just and reasonable. Giving "costs" a narrow interpretation could work against defendants in those situations where they are seeking costs from the prosecutor. [15] Further explanation of our reasoning will emerge as we discuss Mr Bailey's five arguments to the contrary.Mr Bailey's five arguments to the contrary[16] These were, in summary form: (a) The statutory provisions permit the recovery of only "court-related costs", which the medical test fee is not; (b) The medical test fee is not recoverable, as it was incurred prior tocarrying out a prosecution, not in carrying out a prosecution; (c) Allowing the police to recover the medical test fee would lead to arbitrary outcomes, as often blood is taken without the police incurring a disbursement;(d) Allowing the police to recover for investigatory costs would lead to negative consequences generally; (e) Allowing the police to recover the cost of medical test fees would render s 67 of the Land Transport Act redundant.Medical test fee not "court-related"[17] Mr Bailey's primary argument was that the court could order and the police recover only "court-related costs", not "investigatory costs". The medical test fee was in the latter category. [18] We do not accept the legislation makes that distinction. Investigatory costs which are "properly incurred by the police in carrying out the prosecution" are recoverable. [19] Further, this submission is directly contrary to that part of the schedule we quote at [11] above. We appreciate that the circumstances in which regulations may be considered as an aid to the interpretation of a statute are limited: see Interfreight Limited v Police [1997] 3 NZLR 688 at 692 (CA) and the discussion in Burrows and Carter Statute Law in New Zealand (4ed 2009) at 250-251. All we say on this topic is that the provision in the regulations is consistent with our interpretation of the CCCA, but inconsistent with the primary approach advocated by Mr Bailey.Medical test fee incurred prior to prosecution[20] If we rejected Mr Bailey's broad proposition as to a distinction between "court-related costs" on the one hand and "investigatory costs" on the other (as we have), then he advanced a second proposition as to why the medical test fee was not recoverable. His argument was that the medical expenses were incurred prior tocarrying out a prosecution, not in carrying out a prosecution, as required by the definition of "costs" in the CCCA. This was the ground on which French J held the medical expenses could not be recovered under the CCCA. She said at [11]:The definition means it is only costs incurred in carrying out a prosecution and so on that are recoverable under the Act and its regulations. The use of the word "in" has been held by this Court to have the effect of limiting recoverable costs to costs incurred after a decision to prosecute has been made (see Accident Rehabilitation and Compensation Insurance Commission v Lovell [1995] NZAR 97. I agree with that analysis, as indeed does the respondent. The medical expenses Mr Barr was ordered to pay were incurred prior to any prosecution being initiated and accordingly, on the authority of Lovell, are not recoverable under the Costs in Criminal Cases Act.[21] Mr Mount challenged that reasoning on two bases. First, he submitted Lovellcould be distinguished. In this case, he said the expenses were incurred after the decision to prosecute, whereas in Lovell the investigation report had been commissioned prior to the decision to prosecute. His second submission was that, in any event, we should prefer the approach of the High Court in Machinery Movers Limited v Auckland Regional Council [1994] 1 NZLR 492 and Interclean Industrial Services Limited v Auckland Regional Council [2000] 3 NZLR 489. In those cases, he said, the High Court had held that the CCCA did not limit recoverable costs to those incurred after the decision to prosecute. [22] We agree with Mr Mount's submission. The relevant statutory provisions must be given a purposive interpretation: see the Interpretation Act 1999, s 5(1). In our view, it is clear that Parliament intended that a prosecutor could recover the costs of scientific testing provided the testing related to the prosecution and the costs were "reasonably and properly incurred". Often, it will be entirely fortuitous whether the police or other investigating authority causes particular testing to be undertaken prior to commencing the prosecution or after its commencement. Parliament cannot have intended the recovery of the disbursement to hinge on the precise time at which the testing is commissioned or the invoice relating to it is received; provided the testing relates to the prosecution, the cost of the testing should be recoverable. Any other interpretation would lead to capricious results from a defendant's point of view. A defendant might be liable for the costs of scientific testing if his or her prosecution was under the control of an officer who believed in getting a prosecution underway and then undertaking scientific testing but not liable if the prosecution was in the hands of a careful officer who believed in getting the testing done prior to commencing the prosecution. Indeed, Mr Bailey's interpretation, under which thetiming of the testing is crucial, might perversely lead police and other prosecutors to defer proper testing until after the prosecution was underway. [23] Mr Mount also made the point that the timing of testing can hinge on a wide variety of factors, quite apart from the personal habits of police officers we have highlighted. He said that sometimes a charge is laid at the very beginning of a police investigation: for example, when a suspect is found in a house with a dead body and is immediately taken into custody and charged with assault or murder. In other cases, the investigation is almost entirely complete by the time the charge is laid. Sometimes this is because the suspect has evaded detection or capture or has fled the country. Mr Mount submitted that Parliament could not have intended that the recoverability of testing costs should be determined "on these accidents of timing". We agree. [24] The view that the timing of the testing is not significant, providing the testing relates to the prosecution, is supported by Machinery Movers. In that case, Barker and Williams JJ, sitting as a Full Court, were considering an appeal against sentence for contravention of s 15 of the Resource Management Act 1991. The District Court judge, following Machinery Movers' conviction, had ordered that company to pay, among other things, two invoices the prosecuting council had received from Allan Aspell & Associates Limited totalling $8,785. Those invoices "were for the provision of laboratory analyses of samples of stream water and water from the tanks plus full reports analysing the affected soil and water": at 509. Machinery Movers challenged the District Court's jurisdiction to order it to pay those invoices on the ground that they "were not solely or even principally for the purposes of instituting or carrying out the prosecution": at 510. The invoices, Machinery Movers argued, "related to the analysis of samples taken from the site and from points in the stream that would necessarily have to be undertaken as part of the ARC's environmental monitoring". The High Court held that the invoices were payable under ss 314 and 339 of the Resource Management Act. The court was also "inclined to think", however, that "there was jurisdiction to order payment of these costs under the Costs in Criminal Cases Regulations 1987": at 510.[25] In Interclean, Randerson J agreed that investigation costs of the sort referred to in Machinery Movers could be recovered either under s 314 of the Resource Management Act or under the 1987 regulations: at [28]. We agree with both judgments. [26] Lovell was dealing with a quite different situation where a report was commissioned before there was any intention whatsoever to prosecute. The case can be distinguished on the facts. We prefer to express no views as the correctness of the legal propositions which found favour with Ellis J. [27] Even if, contrary to our conclusion, timing were essential, we are by no means persuaded that the medical test in this case was commissioned prior to the decision to prosecute. By the time Mr Barr requested that a blood test be taken, the police had already decided to prosecute him for drink driving. It is true that the decision at that stage related to a prosecution for drink driving based on a breath test result, but we do not think that matters. Mr Barr was exercising a right. If the blood test cleared him, then, of course, the prosecution could not continue and, in those circumstances, he would not be liable for the medical fee. If, however, it confirmed an unacceptable level of alcohol in his blood, then the test result would be the vital piece of evidence in his prosecution and the taking of the blood would be the first step towards achieving that test result. We appreciate that, technically, a prosecution based on an evidential breath test is different from a prosecution based on an analysis of a blood specimen, but the reality is both offences relate to driving under the influence. All that differs is the method of proof. If a driver is over the limit on one test, he or she should also be over the limit on the other. The penalties for being over the limit (however measured) are identical. [28] In summary, therefore, we do not accept that the jurisdiction to order a defendant to pay the costs of scientific testing turns on when exactly the testing was done. All that matters is that the testing must relate to the prosecution. Even if we are wrong on that, we consider that the testing in this case was undertaken after the decision had been made to prosecute.Allowing medical test fee to be recovered would be arbitrary[29] Mr Bailey's third argument was that to allow the police to recover medical fees where incurred would lead to arbitrary outcomes. That is because whether the police are charged a fee depends on where the medical test is performed. For instance, we were told that, if the test is undertaken at a public hospital, the police do not incur a fee. As well, we were told that different medical practitioners charge different fees, no doubt based on matters such as how far they have had to travel and the time of day at which their services were required. Mr Bailey submitted it was unfair that a convicted person's liability to pay costs should be so variable, given he or she had little or no control over the quantum of the disbursement. [30] We do not accept that that consideration requires us to read down the statutory provisions. Those who do not have to pay a medical test fee because the police did not incur one should count themselves lucky. It is always the case that a costs-paying party has no direct control over the disbursements incurred by the other party. Our view does not mean, however, that the party seeking to recover a disbursement made in relation to the litigation has carte blanche. The control comes, as we have earlier explained, from the court: the court will never order a party to pay costs, including disbursements, unless it is satisfied that the order is "just and reasonable" in the circumstances.Crown's interpretation would have negative consequences[31] Mr Bailey's fourth argument was that the police's interpretation of the statutory provisions would mean there was "no restriction on the type of costs that could be imposed on a person following conviction". He said that in relation to drink driving cases, the costs "would have the potential to extend to such things as the costs of transporting the person to the police station for testing or even the police time involved in processing the [driver]". For most other offences, potential costs "could be significantly broader and wider".[32] We do not agree. First, we are not deciding that police investigation time could be claimed. That is not a "disbursement" made by the police. Secondly, we reiterate that there remains the fundamental control on any costs order: costs will not be ordered unless the court thinks the order "just and reasonable". [33] Quite apart from these reasons, however, we consider Mr Bailey's submission arises from the wrong mind-set. The underlying assumption is that convicted persons should not have to pay a cent towards the cost of their prosecution. Charging a medical test fee in light of that assumption may seem aberrant. But that is not the correct underlying assumption: on the contrary, the statutory policy is that convicted persons should make a reasonable contribution towards the cost of their own prosecutions. [34] It is true that costs orders tend to be made only with respect to traffic and other summary offences. Only rarely are costs orders made in respect of serious criminal offending. That distinction, however, is not driven by different policy considerations. It simply reflects practicality. Many minor offenders, including drink drive offenders, are people in paid employment and with assets. Because they can afford to pay, judges often consider it is just and reasonable they should contribute towards the cost of their prosecution. Most, indeed nearly all, serious criminal offenders have no or little assets. Many are not employed; if sentenced to imprisonment, they will lose any job they might have had. In those circumstances, it is usually pointless to make a costs order as the offender would not be in a position to pay it. [35] For these reasons, we do not see this decision as having any of the consequences Mr Bailey prophesied. We are doing no more than confirming the status quo, as it existed prior to French J's decision.Police interpretation leads to s 67 of the Land Transport Act 1998 becoming redundant[36] Mr Bailey's last point was that the police's interpretation, which we have adopted, renders s 67 of the Land Transport Act redundant. He further submits that,if it had been Parliament's intention to make drivers liable to pay all costs relating to the taking of blood, s 67 would have been plainly worded to that effect. [37] Section 67 reads as follows:(1) A person who, having undergone a blood test, is convicted of an offence against any of sections 56(2), 57(2), 58, 61(1)(b), 61(2), and 62 is liable to pay the blood test fee that applied on the day on which the offence was committed; and the blood test fee is deemed to be a fine imposed on the conviction of the person for the offence. (2) The Minister of Police may from time to time, by notice in theGazette, prescribe a blood test fee for the purposes of this section.[38] The current notice referred to in subs (2) is the Land Transport (Blood Test Fee) Notice 2001 (SR 2001/417). Paragraph 3 of that notice reads as follows:For the purposes of section 67 of the Land Transport Act 1998, the prescribed blood test fee is $93 (inclusive of any goods and services tax payable).[39] That fee covers the fee incurred by the police for the blood analysis undertaken by the Institute of Environmental Science and Research. [40] We turn to the relevant legislative history to s 67. The use of breath and blood tests to deal with drivers who have been drinking was introduced for the first time in New Zealand in 1969: see the Transport Amendment Act 1968, s 13. In 1987, Parliament passed a Transport Amendment Act, s 4 of which introduced a new penalty. Section 4 inserted a new subsection to the Transport Act, namely subs (3AA) to s 30. The new subsection provided that someone convicted of drink driving by blood was "liable to pay the test fee prescribed by the Minister by notice in the Gazette". Research undertaken by counsel and by us has failed to reveal exactly why that amendment was thought necessary. The Select Committee reports from the Communications and Road Safety Committee reveal nothing on the topic. The only reference to the clause which became s 4, cl 5, was by the Minister of Transport on the second reading of the Bill. He said with respect to cl 5 ((4 June 1987) 480 NZPD 9308):Clause 5 reiterates that a person convicted of driving under the influence of drink and drugs is liable to pay a test fee.[41] The use of the verb "reiterates" suggests that courts had been ordering convicted drivers to pay the test fee and this provision was simply to confirm the lawfulness of that practice. [42] Interestingly, when the Bill which became the Land Transport Act 1998 was introduced into the House, s 30(3AA) of the Transport Act 1962 was not carried across. At Select Committee, however, a new clause was introduced, in similar terms to the existing s 30(3AA): that clause became s 67 of the 1998 Act, which we are currently discussing. Unfortunately, the Select Committee report provides no explanation as to why the clause was added. Nor is there any reference to this clause in the Parliamentary Debates. [43] We do not know exactly why the blood test fee provision was first introduced. We suspect it may have been to remove doubt as to the police's ability to recover this disbursement, a doubt perhaps generated by some judicial decision. In any event, whatever motivated Parliament to pass this specific provision in 1987 and again in 1998 should not affect our interpretation of CCCA. It is not uncommon for there to be more than one authority justifying a particular order. That is demonstrated in the environmental field in the two cases we earlier discussed, where the prosecutor had been held entitled to claim the cost of laboratory analyses and reports under either the Resource Management Act or the 1987 regulations. [44] Further, there is a ready explanation as to why Parliament specified the analysis fee charged by ESR but did not specify a fee to be charged by medical practitioners for taking the blood samples. Parliament may have had no qualms in empowering the Minister of Police to dictate the fee which ESR, a Crown agency, could charge the police for blood sample analyses. It would be quite a different thing to empower that minister to dictate what private professionals could charge the police for taking blood samples. Further, ESR's work in analysing blood samples is completely standard, with no variation from sample to sample. The circumstances under which medical practitioners take blood samples vary significantly as to place and time of day. A standardised fee in those circumstances would be inappropriate. Thirdly, as we have said, the police are not always charged for the taking of the blood sample, whereas they are always charged for the blood test analysis. Giventhose differences, it is entirely explicable that s 67 dealt only with ESR's blood test fee and not with costs sometimes incurred by the police for the taking of the blood in the first place.Result[45] In our view, Judge Couch did have jurisdiction to order Mr Barr to pay the medical expenses the police incurred in administering the blood test. French J's holding to the contrary was, with respect, wrong. Accordingly, we allow the appeal. We reinstate the order made in the District Court requiring Mr Barr to pay medical expenses of $102.60. There was no suggestion that the quantum was unreasonable; nor was there any suggestion that Mr Barr was not in a position to pay such an amount. [46] We conclude by thanking counsel for their excellent submissions. We have effectively adopted Mr Mount's, which speaks for itself. But we also want to mention the skill with which Messrs Bailey and Cook propounded the opposing view.Solicitors: Crown Law Office, Wellington, for Appellant