SULLIVAN v NEW ZEALAND POLICE [2018] NZCA 336

SULLIVAN v NEW ZEALAND POLICE [2018] NZCA 336 [31 August 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA166/2018[2018] NZCA 336BETWEEN STRUAN ANTHONY SULLIVANApplicantAND NEW ZEALAND POLICERespondentHearing: 16 August 2018Court: Kós P, French and Miller JJCounsel: T J Jackson for ApplicantM J Lillico for RespondentJudgment: 31 August 2018 at 11 amJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] Mr Sullivan was convicted of driving with excess blood alcohol following adefended hearing in the District Court before Judge Maze.1 Mr Sullivan appealed hisconviction to the High Court. The appeal was dismissed by Davidson J.21 Police v Sullivan [2017] NZDC 25905 [DC decision].2 Sullivan v Police [2018] NZHC 397 [HC decision].[2] Dissatisfied with that outcome, Mr Sullivan now wishes to appeal to this Court.Because it would be a second appeal, leave is required under s 237 ofthe Criminal Procedure Act 2011.Background[3] Police stopped a vehicle being driven by Mr Sullivan and administered a breathalcohol test. The result indicated he was over the limit. He then accompanied theofficer to the police station. After advising him of his rights, police administered anevidential breath test which was also positive.[4] Mr Sullivan was advised of the test result at 22.23 and told pursuant to s 70Aof the Land Transport Act 1998 that he had 10 minutes in which he could elect to havea blood test. He was advised of his right to seek legal advice. He indicated at 22.23that he wished to speak to a lawyer. There was an argument about signing anacknowledgment he had been advised of his rights. At 22.26 he again said he wantedto speak to a lawyer. At 22.34, with the officer's permission, he left the station to goto his vehicle to get his lawyer's contact details.[5] The officer told him he must return within 10 minutes if he wanted to have ablood test taken. It was common ground this was incorrect advice because ofestablished authority that any time reasonably taken in the exercise of the right toconsult a lawyer should be excluded from the calculation of the 10 minutes.3[6] After speaking to a lawyer, Mr Sullivan returned to the station at 22.59 andrequested a second evidential breath test. When this was declined, he asked for a bloodsample to be taken. At 23.05, the officer again read him his rights and although theofficer considered the 10 minute time period had expired he was prepared to accedeto the request for a blood test. Mr Sullivan was then driven to the hospital where asample of blood was taken.3 Rae v Police [2000] 3 NZLR 452 (CA) at [53].[7] At trial, the officer testified that he despatched the sample to ESR for analysis.The prosecution produced a certificate of analysis from ESR stating that the samplecontained 134 plus or minus 6 mg of alcohol per 100 ml of blood.The proposed appeal[8] Mr Sullivan seeks leave to appeal the decision on two grounds relating to theadmissibility of the blood test results. Both grounds were raised and rejected inthe Courts below.[9] In order to obtain leave to appeal to this Court, Mr Sullivan must persuade usthat the proposed appeal involves a matter of general or public importance or that amiscarriage of justice has occurred or may occur unless the appeal is heard.4Ten minute period[10] The first proposed ground concerns the 10 minute election period andcompliance with s 70A. Mr Sullivan wishes to argue that on the evidence there is toomuch uncertainty about when the 10 minute period began, was suspended and ended.And that as a result his right to an uncluttered election was or may have beencompromised.[11] Mr Sullivan further wishes to argue there was non-compliance with s 70Abecause he was not under direct supervision or observation when he went to his carand therefore ceased to be detained. In his submission, this raises the general issue ofwhether s 70A permits "discretionary detention".[12] For the following reasons, we are not persuaded that these matters justifygranting leave to appeal.(a) This calculation of the 10 minute period is case specific and not ofgeneral importance.4 Criminal Procedure Act 2011, s 237(2).(b) Both the District Court and the High Court found the election was madewithin 10 minutes.5 The period was held to have begun at 22.26 butwas immediately suspended because of discussions about contacting alawyer and resumed only when Mr Sullivan returned to the policestation. Leave is not usually granted where there are concurrentfindings of fact.6(c) Even if that concurrent finding of fact is wrong and the time period waslonger than 10 minutes, there has been no prejudice to Mr Sullivan andthus no risk of a miscarriage.(d) No issue of discretionary or non-discretionary detention arises. Theinterval between a positive breath test and the blood test election hasbeen held by this Court to be a state of detention.7 Further, and in anyevent whether Mr Sullivan was or was not detained would make nodifference to the outcome.The certificate of analysis[13] The certificate of analysis produced at trial recorded — as did the unchallengedblood specimen certificate prepared by the police officer — that the sample was takenfrom Struan Anthony Sullivan of 63 King Street Temuka. The blood specimencertificate was blank where ordinarily the occupation would be listed. The certificateof analysis recorded "Occupation Not Stated".[14] Section 76 of the Land Transport Act creates a presumption that the specimenwas taken from the defendant if the certificate names a person having the same name,address and occupation as the defendant. Mr Sullivan argues that the failure to providean occupation means the sample is unable to be attributed to him.5 DC decision, above n 1, at [24]; and HC decision, above n 2, at [31].6 O'Sullivan v R [2018] NZCA 201 at [24]; R (CA176/2016) v Police [2016] NZCA 403 at [26];Butler v Police [2016] NZCA 27 at [3]; and Warren v R [2016] NZCA 108 at [30].7 Rae, above n 3, at [45]. See also Taueki v Police [2017] NZCA 113, [2017] 3 NZLR 179 regardingthe meaning of custody when a police officer allowed a defendant arrested for being unlawfullyin a building to drive a motor vehicle.[15] In the High Court, Davidson J rejected that argument, invoking s 64(2) ofthe Act. Section 64(2) prevents a defendant from relying on non-compliance withcertain provisions of the Act as a defence if there has been reasonable compliance withthe provision in question. The Judge found there had been reasonable compliance andaccordingly any defect in the certificate was cured.8[16] On appeal, Mr Sullivan wishes to argue that the curative powers of s 64(2)were not available to the Judge because, in contrast to the position that pertained underthe previous Transport Act 1962, s 76 is no longer one of the provisions specified ins 64(2).[17] We accept that the issue of what significance (if any) should attach to theexclusion of s 76 from s 64(2) is a general issue and not case specific. However, theanswer has already been provided by a High Court decision, Moore v Police datingback to 2009.9 In Moore, Keane J pointed out that the presumption in s 76 relates toa certificate given under s 75 and that s 75 is expressly covered by the reasonablecompliance provision. Therefore, any deficiency in the certificate was capable ofbeing cured by the reasonable compliance provision. It followed that nothing turns onthe omission of s 76 from s 64(2). It was simply unnecessary to list s 76 as well ass 75.10[18] We are not persuaded the reasoning in Moore requires revisiting. As theHigh Court Judge in this case observed, it gives a straightforward construction to thewords of the statute and accords with the underlying policy that defendants should notescape convictions for drink driving on unmeritorious technicalities.11Outcome[19] In our view, none of the arguments which Mr Sullivan seeks to advance onappeal meets the test for granting leave.8 HC decision, above n 2, at [45]–[46].9 Moore v Police HC Tauranga CRI-2008-470-35, 10 June 2009; and see similarly Byrman v Police[2008] DCR 241 (HC) at [18]–[21].10 Moore, above n 9, at [49]–[50].11 HC decision, above n 2, at [45]–[46].[20] The application for leave to appeal is accordingly declined.Solicitors:Quentin Hix Legal, Timaru for ApplicantCrown Law Office, Wellington for Respondent