Pukeiti v Cook Islands Police Department [1995] CKHC 10; APP 008.1995 (28 November 1995)

IN THE HIGH COURT OF THE COOK ISLANDS
.HELD AT RAROTONGA
(CRIMINAL DIVISION)
CR NO. 446/95
APPEAL NO. 8/95

BETWEEN

DANIEL TAUIRA PUKEITI
of Rarotonga, Bank Officer
APPELLANT

AND

THE COOK ISLANDS POLICE DEPARTMENT
RESPONDENT

Counsel: Mr Mitchell for Appellant
Miss Maki for Respondent

Date: 28 November 1995

JUDGMENT OF GILBERT J

This is an appeal by Daniel Tauira Pukeiti against a conviction for driving a motor vehicle while under the influence of drink or drug to such an extent as to be incapable of having proper control of such motor vehicle. The evidence of two witnesses who were leaving the country was taken on 17 July 1995 and the evidence of the remainder of the witnesses heard on the 9 November 1995. The circumstances of the case were that the appellant at night was driving his motor vehicle and was coming up to a tractor pulling an attachment upon which it had a plough. The state of the lighting of the tractor was unclear but had no light showing to the rear. Then a collision occurred. Just how the collision occurred is also unclear, maybe the appellant did not see the tractor and plough until too late. The facts of the accident, in itself, do not give any real help as to the question of the appellant's state at the time of the collision. He was injured in the accident suffering a cut to his forehead and abrasions to the right knee, he was taken to hospital and treated by a Dr Herman. Dr Herman's evidence was given and a report from her was made available to the Court. Her report stated that any case of this kind does not assist in relation to the degree of the appellant in testing the blood in relation to the alcohol. She comments the tests are not available in Rarotonga and she was not able to say bow much alcohol was in his body and her last paragraph does not help. "Further, as alcohol is a central nervous system depressant, it causes a lack of coordination and his capability to drive safely may have been substantially impaired on this particular evening." Police officers who arrived at the scene who later interviewed the appellant all spoke of his smell of liquor, slurred voice and his general degree of impairment. No police officer spoke of his experience of observing intoxicated motorists or the criteria as in Blackie v Police which refers to the capacity of police officers to give necessary evidence of incapacity. One has to go back to the laws in New Zealand prior to alcohol being tested where matters were dealt with by obtaining medical reports, it was common place for experienced police officers to obtain medical reports, more particularly for members to give expert test upon their offending. The main difficulties were in cases of particularly head injuries as it was difficult to distinguish the apparent symptoms of intoxication from those of head injuries sustained in the accident. Here we have a situation where a doctor was involved but she has declined from giving her opinion as to the effects of alcohol and to the contrary has expressed the view that the appellant may have been substantially impaired, this of course, is not a satisfactory proof for this kind of case. In my opinion as in the case of Neal Smith v Police, the judgment by Mr Justice Quilliam, while there may be grounds for suspicion they are not consistent with proof beyond reasonable doubt. In my view there is a reasonable doubt and the charge must be dismissed.

I am conscious that the problem of testing apparently of intoxicated motorists in charges of this kind has caused concern to the authorities in recent times. Earlier this week an experienced Police sergeant told me his practice was to offer the suspect the chance of being examined by a doctor and if he refused he would determine whether the man was unfit to drive through alcohol. I am not sure just what system should be offered on it, obviously some frame should be made, there can be no perfect system but at least if the Medical Fraternity are prepared and the costs are not excessive I would suggest that all cases of suspected intoxicated driving, a suspect could be taken to a doctor for medical examination to check out whether he is fit and able which can be checked by simple tests and where possible if injuries were masking the symptoms of intoxication. This would undoubtedly assist the ends of justice in determining issues of this kind. These observations of course can be no criteria for proof but are offered to assist an obvious problem on this island.

GILBERT J