FREEMAN v NEW ZEALAND POLICE [2018] NZCA 480

FREEMAN v NEW ZEALAND POLICE [2018] NZCA 480 [7 November 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA365/2018[2018] NZCA 480BETWEEN RODNEY ALLEN FREEMANApplicantAND NEW ZEALAND POLICERespondentHearing: 25 October 2018Court: Brown, Courtney and Katz JJCounsel: A S P Tobeck for ApplicantH G Max for RespondentJudgment: 7 November 2018 at 10.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] The applicant Mr Freeman was convicted in the District Court at Tokoroa on1 November 2017 of driving with excess breath alcohol.1 His appeal to the High Courtwas dismissed.21 Police v Freeman [2017] NZDC 23561 [DC judgment].2 Freeman v Police [2018] NZHC 1248 [HC judgment].[2] Mr Freeman seeks leave under s 237 of the Criminal Procedure Act 2011 for asecond appeal to this Court. Section 237(2) provides that the Court must not giveleave for a second appeal unless satisfied that:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unless theappeal is heard.The legislative context[3] The proposed appeal concerns the interpretation of the Land Transport(Breath Tests) Notice 2015 (the 2015 Notice). The predecessor to that notice, theTransport (Breath Tests) Notice (No 2) 1989, provided for the results of an evidentialbreath test from various breath screening devices as follows:10 Manner of carrying out evidential breath tests by means ofDataMaster, Dräger 7110, Intoxilyzer 5000, or Seres(c) Step 3 (results of test):(i) The results of the various steps in the testingsequence will be shown on the result card orprint-out, and will include the Evidential Breath TestResult which shall be taken to indicate the number ofmicrograms of alcohol per litre of breath of theperson tested:(ii) If the Evidential Breath Test Result is "IncompleteTest", the test has been unable to be carried out.[4] In Henderson v Police, where the device failed to print out a result of theevidential breath test in hard copy form, it was held that, as the whole purpose forwhich the device was designed was evidential, the record of result was an integralpart.3 Without such a result recorded in the prescribed form the testing procedurehad to be regarded as incomplete. Goddard J stated:4Whilst it is correct that a police officer is able to observe and make his or herown record of the lowest of the two scores displayed on the screen of thedevice, that does not constitute a result in the prescribed form.[5] To address such an outcome a new provision was introduced in the2015 Notice:9 Manner of carrying out evidential breath tests by means ofDräger 7510NZ or Dräger 9510NZ(c) Step 3: Results of test(i) The result of the Evidential Breath Test (which, undersection 77(1) of the Land Transport Act 1998, it is to beconclusively presumed indicates the number of microgramsof alcohol per litre of breath of the person tested) will appearon the display panel of the device.(ii) If the Evidential Breath Test Result is "Incomplete Test", thetest has been unable to be carried out, and Step 2 can berepeated.[6] Also relevant to the proposed appeal is s 64(2) of the Land Transport Act 1998(the Act) which provides:(2) It is no defence to proceedings for an offence that a provision formingpart of sections 68 to 75A, and 77 has not been strictly complied withor has not been complied with at all, provided there has beenreasonable compliance with such of those provisions as apply.Relevant background[7] On 18 January 2017 Mr Freeman was pulled over when driving.A breath-screening test was conducted on the roadside showing a result of over400 micrograms. Mr Freeman was then taken to the police station where a breath testprocedure was undertaken.3 Henderson v Police [2005] DCR 569 (HC).4 At [8].[8] The evidential breath test was administered in accordance with the2015 Notice. The result of the breath test was 0954. It was recorded by the policesergeant in his handwriting on the procedure sheet and a copy of the printout resultfrom the device was stapled to the procedure page. Mr Freeman did not elect a bloodtest.[9] Mr Freeman argued that the 2015 Notice requires the prosecution to prove theresult that was shown on the display, and that a printout of the result from the machinewas insufficient. At a defended hearing in the District Court at Tokoroa the policesergeant was cross-examined as follows:Q. See at the bottom there, you've got, it's printed on the form, "Resultobtained?"A. Yes.Q. And you've written in there, "0954?"A. Yes.Q. That's being the, as you say, the micrograms of alcohol per litre ofbreath?A. Yes.Q. Now that figure there, you've got from the printout sheet attached tothe back?A. Generally that's written on the machine itself when the machinecomes up with a result, I'll write it but yes that is the result shown onthe, on the receipt from the machine.Q. And that's where you've got the result from wasn't it?A. Yes from the machine.[10] Judge MacKenzie accepted that the prosecution had established that thereference to "from the machine" could only mean the display panel of the device.However the Judge added that even if the police sergeant's evidence had been silentas to the display panel she would have found the charge proved for the same reasonsas in Police v Tolcher,5 namely that it would be nonsensical to suggest that the Courtwas unable to rely on the printout from the device Mr Freeman blew into unless5 Police v Tolcher [2016] NZDC 11890.accompanied by direct evidence of what was actually displayed on the device panel.6In those circumstances the Judge did not find it necessary to consider the applicationof s 64 of the Act.[11] On appeal Brewer J considered that the evidence was equivocal as to whetherthe sergeant had noted the result from the display panel or from the printout.7However, Brewer J observed that there is no prescription in the 2015 Notice as to theevidential form for the reporting of the test result as displayed on the panel, suggestingthat options might include memorisation, manual recording or photographing thedisplay panel.8 The Judge accepted that the printout from the device, unimpeached asto accuracy, would suffice as proof of the result that appeared on the display panel ofthe device.9 Mr Tobeck's submission for Mr Freeman that s 64(2) applies only toprovisions of the Act and not to Notices made pursuant to authority delegated underthe Act was rejected.10Discussion[12] Mr Tobeck submitted that the proposed appeal raised two matters of general orpublic importance:• Under the 2015 Notice what is the evidential status (if any) of a printoutfrom an evidential breath testing device?• Does s 64(2) apply only to the specified sections of the Act or does it extendto regulations made under the authority of the Act?[13] In addition he submitted that there had been an irregularity in the way in whichthe matter had progressed through the court system, namely that because, so it wassaid, there was no fully reasoned decision in the District Court the proposed secondappeal was in substance a first appeal from the High Court on the issue.Consequently if leave to appeal was not granted a miscarriage of justice may occur.6 DC judgment, above n 1, at [34]; and Police v Tolcher, above n 5, at [26].7 HC judgment, above n 2, at [19].8 At [14].9 At [20]–[21].10 At [18].[14] With reference to the first proposed matter, we agree with the submission ofMs Max for the respondent that the 2015 Notice is wider than previous Notices in thatit does not prescribe the evidential form of the result of the breath test procedure.There is no requirement that the result on the display screen be proven only withreference to the display screen. We consider that the prosecution is entitled to establishthe result on the display panel in the various ways described by Brewer J and byreference to the printout. We agree with Ms Max that any other reading would beoverly narrow and inconsistent with the purpose of the Act as explained by theSupreme Court in Aylwin v Police.11[15] So far as the second proposed matter is concerned, both ss 69 and 77, beingsections referred to in s 64(2), make reference to the evidential breath test procedure.An evidential breath test is defined in s 2(1) of the Act to mean a test carried out bymeans of an evidential breath testing device in a manner prescribed in respect of thatdevice by the Minister of Police by notice in the Gazette. The 2015 Notice was givenpursuant to s 2. In our view the provisions of the 2015 Notice also fall within theambit of s 64(2) given that those provisions are contemplated by sections specificallyreferred to in s 64(2).[16] Consequently neither of the grounds of appeal proposed by Mr Tobeckinvolves a matter of general or public importance.[17] We consider that the decision of the District Court Judge was thorough andsound. No issue of a miscarriage of justice could be said to arise in the mannersuggested by Mr Tobeck.Result[18] The application for leave to bring a second appeal is declined.Solicitors:CT Legal, Hamilton for ApplicantCrown Law Office, Wellington for Respondent11 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].