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Vanderhoven v Police [2015] NZHC 2074 (28 August 2015)

Last Updated: 4 September 2015

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2015-442-12 [2015] NZHC 2074

_{JUDGMENT OF BREWER J}

Solicitors: Bamford Law (Nelson) for Appellant

O’Donoghue Webber (Nelson) for Respondent

VANDERHOVEN v POLICE [2015] NZHC 2074 [28 August 2015]

Introduction

[1] Mr Vanderhoven appeals against a conviction for a charge of refusing to permit a blood specimen to be taken after having been required to do so under s 72 of the Land Transport Act 1998 by an enforcement officer.¹ Mr Vanderhoven was convicted by Judge Tompkins following a Judge-alone hearing on 26 March 2015.²

Background

[2] On 29 March 2014 at about 11:55 pm, Mr Vanderhoven was stopped by Sergeant Wardle in central Nelson. Mr Vanderhoven apparently had made a right- hand turn through a red traffic light.

[3] Sergeant Wardle carried out a passive breath test using an approved device. The display indicated the presence of alcohol. Sergeant Wardle then required Mr Vanderhoven to undergo a breath screening test without delay using the same device.

[4] After several attempts, Mr Vanderhoven was able to supply a sufficient sample. The display showed “over 400”, indicating the alcohol in Mr Vanderhoven’s breath exceeded 400 micrograms of alcohol per litre of breath.

[5] Sergeant Wardle then required Mr Vanderhoven to accompany him to the Nelson Police Station. During the trip back to the station they had a conversation as to what the procedure would be. What was said in that conversation was in dispute before Judge Tompkins.

[6] They arrived at the Nelson Police Station and went to the evidential breath test room. The room is equipped with CCTV, which records what happens in the room but does not provide an audio record.

[7] The following events are seen to take place:

_{(a) Sergeant Wardle and Mr Vanderhoven entered the room.}

¹ _{Land Transport Act 1998, s 60(1)(a).}

² Police v Vanderhoven [2015] NZDC 7076.

_{(b) Mr Vanderhoven was given his Bill of Rights.}

Mr Vanderhoven between 1:15 am and 1:30 am was in dispute before Judge

Tompkins.

Judge Tompkins’s decision

[9] Judge Tompkins heard evidence from Sergeant Wardle and Mr Vanderhoven, and was provided with the CCTV footage from the evidential breath test suite. Two points were in dispute:

(a) whether Sergeant Wardle had informed Mr Vanderhoven in the car on the way to the station that if he refused to provide a breath sample he would be required to provide a blood sample; and

(b) whether Sergeant Wardle told Mr Vanderhoven in the evidential breath test suite that upon refusing to provide a breath sample he would be required to provide a blood sample, and if he refused to do that he would be arrested.

[10] Sergeant Wardle’s evidence on these two points was:

(a) In the car on the way to the station, Mr Vanderhoven asked what would happen if he did not complete the breath test, and he explained to Mr Vanderhoven that he would be required to permit a registered medical practitioner or medical officer to take a blood sample. Mr Vanderhoven then asked what would occur if he did not want to do the blood test, and Sergeant Wardle told him that he would be arrested for refusing an officer’s request for blood.

(b) In relation to the evidential breath test suite conversation, according to

Sergeant Wardle the following exchange occurred:

(i) Mr Vanderhoven told Sergeant Wardle that he would only blow into the machine one more time, to which Sergeant Wardle replied that Mr Vanderhoven was required by law to continue until a successful sample was provided.

(ii) Mr Vanderhoven then placed the tube on the table and Sergeant Wardle asked him if he was refusing to complete the evidential test. Mr Vanderhoven said he was refusing to complete the test. Sergeant Wardle then retrieved the machine equipment and the two men left the room.

(iii) Next, Sergeant Wardle told Mr Vanderhoven that he was requiring Mr Vanderhoven to undergo an evidential blood test. Mr Vanderhoven refused. Sergeant Wardle told Mr Vanderhoven if he refused the request for the blood test that he would be arrested for refusing.

(iv) While Sergeant Wardle was carrying out the processing procedure, Mr Vanderhoven asked if Sergeant Wardle could forget about the refusal and carry out the blood test. Sergeant Wardle told him that it was too late as he had already refused.

[11] Judge Tompkins questioned Sergeant Wardle about where this exchange took place. Sergeant Wardle said that the first of the requests most likely occurred in the evidential breath test room but the second and third exchanges took place out of view of the CCTV in the watch-house area where Mr Vanderhoven was being processed.

[12] Mr Bamford, Mr Vanderhoven’s counsel, cross-examined Sergeant Wardle on this point. Sergeant Wardle said he could not be 100 per cent sure that the exchange had taken place in the evidential breath test room, but he was adamant that he had asked and Mr Vanderhoven had refused to supply a blood sample.

[13] Mr Vanderhoven’s evidence on these two points was:

(a) there had been no discussion of a potential blood sample test during the drive to the station; and

(b) at the end of the failed evidential breath test sequence of events, Sergeant Wardle simply informed him that he was under arrest with no request or requirement that he provide a blood sample.

[14] Judge Tompkins, relying on the evidence of Sergeant Wardle and the CCTV

footage, accepted that:

(a) There was a deliberate failure by Mr Vanderhoven to provide an evidential breath test sample and that at that point, and while still seated at the table in the evidential breath test suite, Sergeant Wardle did advise Mr Vanderhoven that as he had refused to complete the evidential breath test, he was now required to undergo an evidential blood test.

(b) Sergeant Wardle did ask Mr Vanderhoven to undergo an evidential blood test and Mr Vanderhoven refused.

(c) While in the watch-house, Mr Vanderhoven was told a second time that if he refused the request for a blood test he would be arrested for refusing and when asked at that point if he consented to the taking of a blood specimen, Mr Vanderhoven refused again.

[15] Judge Tompkins did not accept Mr Vanderhoven’s evidence that Sergeant Wardle simply moved straight from the refusal to provide a breath sample to arresting Mr Vanderhoven.

[16] Judge Tompkins reached the conclusion that Sergeant Wardle asked Mr Vanderhoven to provide a blood sample on two occasions and on two occasions Mr Vanderhoven refused.

Principles governing appeal against conviction

[17] I can only allow Mr Vanderhoven’s appeal if I conclude that Judge Tompkins erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred, or if for any other reason a miscarriage of justice has occurred.³

[18] A miscarriage of justice is defined to mean:⁴

... any error, irregularity, or occurrence in or in relation to or affecting the trial that–

(1) has created a real risk that the outcome of the trial was affected; or

(2) has resulted in an unfair trial or a trial that was a nullity.

[19] The test contained in s 232 of the Criminal Procedure Act 2011 involves, in part, an assessment of whether the Judge in the Court below made an error of such a

_{nature that there is a real risk that the outcome of the trial was affected.}

³ _{Criminal Procedure Act 2011, s 232(2)(b) and (c).}

⁴ Section 232(4).

[20] An appeal against conviction proceeds by way of rehearing. I am therefore required to carefully consider all matters that were before Judge Tompkins, but ultimately I must reach my own decision on the merits. The weight I give to the evidence is a matter for my judgment. If I conclude that the Judge below was wrong, I must act on my own view of what the outcome should be.⁵

Grounds of appeal

[21] Mr Vanderhoven’s appeal against conviction, in written form, alleges that

Judge Tompkins:

(a) failed to properly direct himself on the standard of proof required when he relied on the inconsistent and equivocal evidence of Sergeant Wardle on the issue of whether Sergeant Wardle had communicated a requirement to provide a blood sample;

(b) failed to reconcile in a reasoned manner the inconsistency in that evidence; and

(c) was wrong to rely on evidence given by Sergeant Wardle in answer to leading questions put to him by the Judge and, further, that such questions should not have been put.

[22] In her oral submissions to me this morning, Ms Lyall added a further ground of appeal. As I understand it, Ms Lyall points to the fact that the Judge did not direct himself on the tripartite approach to the consideration of evidence given by a defendant. The Judge did not specifically say that he rejected it wholly; nor did he say that having rejected the evidence wholly, and given reasons for it, he was nevertheless putting the Police to proof on the Police case.

Discussion

[23] I say at this point that I do not accept this further ground of appeal. This very experienced District Court Judge had to make credibility decisions. He was in an

either/or situation. The Judge accepted the evidence of the police officer and that means that he must have rejected the evidence of Mr Vanderhoven. It was not necessary in these circumstances for him to create a record of the reasoning that led him to that. I will, instead, focus on the grounds of appeal which are contained in the written documents filed on behalf of Mr Vanderhoven.

Judge Tompkins properly directed himself on the standard of proof

[24] The first ground of appeal is that Judge Tompkins did not direct himself properly on the standard of proof. Having considered the material for myself, I have reached the view that Judge Tompkins did not err in his assessment of the evidence.

[25] Judge Tompkins considered that Sergeant Wardle said he “could not be 100 per cent sure or certain” that the exchange had taken place in the evidential breath test room.⁶ However, he noted that under cross-examination, re-examination, additional questioning from the Bench and subsequent cross-examination, Sergeant Wardle remained “adamant” that he had asked Mr Vanderhoven to provide a blood sample and Mr Vanderhoven refused.

[26] Judge Tompkins was entitled to rely upon the evidence of Sergeant Wardle and reject Mr Vanderhoven’s evidence. As the trial Judge, he was in the best position to find Sergeant Wardle’s evidence on the first refusal occurring in the evidential breath suite consistent with the CCTV footage. There is no reason for me to interfere with that finding.

[27] As to whether the second refusal occurred, the inconsistency in Sergeant Wardle’s evidence was where the second refusal occurred and not if it occurred. Judge Tompkins was satisfied that the first refusal occurred immediately prior to Sergeant Wardle and Mr Vanderhoven leaving the evidential breath testing suite. Both Mr Vanderhoven and Sergeant Wardle stated that they went to the watch-house after leaving the evidential breath testing suite. Therefore, the only place where the second refusal could have occurred was in the watch-house. Sergeant Wardle remained consistent when giving evidence that he asked on a second occasion for

Mr Vanderhoven to provide a blood sample and he refused. It was entirely open to Judge Tompkins to reach the conclusion that the second refusal occurred in the watch-house.

[28] In my assessment, the evidence before Judge Tompkins entitled him to reach the conclusions which he reached. For these reasons, no miscarriage of justice arose from the way Judge Tompkins directed himself on the standard of proof in relation to Sergeant Wardle’s evidence. The first ground of appeal fails.

Judge Tompkins reconciled in a reasoned manner the inconsistency in that evidence

[29] Although Sergeant Wardle was not 100 per cent certain where the second refusal had taken place, he was certain that the refusal had occurred. Judge Tompkins accepted by relying on the evidence of Sergeant Wardle that the second refusal occurred in the watch-house.

[30] I am satisfied for the reasons I have already explained that Judge Tompkins appropriately reconciled any inconsistencies in Sergeant Wardle’s evidence. The second ground of appeal fails.

Judge Tompkins put appropriate questions to Sergeant Wardle during the proceeding

[31] The third ground alleges that Judge Tompkins was wrong to rely on evidence given by Sergeant Wardle in answer to leading questions put to him by the Judge and that those questions should not have been put to him.

[32] The transcript of the notes of evidence from the hearing reads:⁷

QUESTIONS FROM THE COURT:

Q. Sergeant if you look at the brief of evidence you’ve read, which you’ve got before you?

A. Yes I have.

Q. Paragraphs 33 and 34 record you verbally, I take it, require – I then said, so verbally, “I require you to undergo an evidential blood test.” Mr Vanderhoven said he was not going to have a blood test. I told

him, “If he refused he would be arrested and I asked him if he consented and he replied, ‘No’”. Where did that exchange, that verbal exchange take place?

A. I’d suggest it would’ve taken place in the watchhouse area. Q. So not in the room shown on the CCTV footage?

A. My initial one, yes. But the, the formalised part, no.

17. So, do I understand that as to say the exchange recorded in paragraph 33 you say took place in the evidential breath test room?

A. I believe so, yes.

17. And then the exchange set out in paragraph 34 took place outside of the room in the watchhouse area?

A. Yes.

[33] Following this exchange, Mr Bamford cross-examined Sergeant Wardle on the questions put to him by Judge Tompkins. Then Sergeant Eden, the Police prosecutor, re-examined Sergeant Wardle, after which the prosecution case closed. The transcript notes that there was a legal discussion and the prosecution case was re-opened in order to allow Mr Bamford to further cross-examine Sergeant Wardle.

[34] Section 100 of the Evidence Act deals with the questioning of witnesses:

100 Questioning of witnesses

(1) In any proceeding, the Judge may ask a witness any questions that, in the opinion of the Judge, justice requires.

(2) If the Judge questions a witness,–

(a) every party, other than the party who called the witness, may cross-examine the witness on any matter raised by the Judge’s questions; and

(b) the party who called the witness may re-examine the witness.

[35] The overriding principle is that a defendant is entitled to a fair trial, and any other formulation of principles as to the role of a Judge must be subordinate to that.⁸

The role of the Judge in a criminal trial is to be the Judge, not an advocate for any party. It is not part of the Judge’s role to abandon judicial neutrality and act as a

prosecutor⁹ or as defence counsel.¹⁰ However, an important part of the Judge’s role is to clarify evidence or resolve ambiguity, and in such cases judicial questioning of witnesses or the raising of matters with counsel may be necessary.¹¹

[36] I am satisfied that Judge Tompkins discharged his role as the Judge appropriately when questioning Sergeant Wardle for two reasons:

(a) the manner in which Judge Tompkins Sergeant Wardle was neutral and did not go beyond seeking to clarify where Sergeant Wardle said the second refusal occurred; and

(b) Sergeant Eden and Mr Bamford were both allowed the opportunity to re-examine and cross-examine Sergeant Wardle on the questions put to him by Judge Tompkins.

[37] As I have found the questions put to Sergeant Wardle by Judge Tompkins were appropriate, it was open to the Judge to rely on that evidence. Accordingly, this ground of appeal fails.

Decision

[38] Mr Vanderhoven’s appeal against conviction is dismissed.

_{[39] The conviction entered by Judge Tompkins stands.}

_{Brewer J}

⁹ _{R v Fotu [1995] 3 NZLR 129 (CA).}

¹⁰ _{R v Esposito (1998) 105 A Crim R 27 (NSWCCA) at 53-57.}

¹¹ EH Cochrane Ltd v Ministry of Transport, above n 8, at 155 per McMullin J; see also R v M (1991) 7 CRNZ 439 (CA) at 444, R v Redfearn (1991) 7 CRNZ 548 (CA) at 549 and R v H (2002) 19 CRNZ 518 (CA).