Queen v Koroa [2011] CKHC 42; CR143 (24 May 2011)

IN THE HIGH COURT
AT RAROTONGA
CR: 143/10, 144/10, 145/10

QUEEN

V

RAUMEA KOROA

Appearances: Ms Catherine Evans & Mr Tuaine Manavaroa for Crown
Mr Norman George for Accused

Date of Ruling: 24 May 2011

ORAL RULING OF HON HUGH WILLIAMS J

[1] At the conclusion of the Crown case and after Ms Evans losed her case Mr&#16r George ap under s.99 of thef the Criminal Procedure Act for the dismissal of Information 143/10 alleging that the accused, Mr R, dros motle on 26 Februarbruary 2010 at Atupa whilst ilst the proportion of alcohol in his brea breath exceeded the prescribed limit.
[2] The information is laid under the Transport Amendment Act 2007 which in short instituttituted a breathalyser regime for driving under the influence of drink or drugs in the Cook Islands. The information against Mr Raumebrought under s.28A(1)8A(1)(a) and 28A(2). Section 28A(1) makes offence to drto drive a motorvehicle on a road whilst the proportion of alcohol in, in thie, Mr Raumea's breath exceeded the prescribed limit.
[3] Section 28B prescribes personsmust must undergo a breathalyser test. Subsection 1 provides that a constable may administer a breathalyser test if he or she has reasonable cause to believe thperson has been driving on a road with excess breath alcoholcohol, and concludes that "subject to s.28F" the constable may "require that person to provide without delay a specimen of breath for a breathalyser test".

[4] Subsection 2 of s.28B obligperson who who undergoes a breathalyser test to "remain at the place where the person underwent the test until after the resulthe test is ascertained", and s.28B(3) says that the breathalyser test shall be "conducted oted on the spot where such person is apprehended or at the nearest police station".

[5] Section 28F deals with the evidence admissible in relation to charges under the 2007 amendment, but not in a way which impacts on the point raised by Mr George on M0;Raumea's behalbehalf.
[6] The facts of this matter are that there was a collisiolision at the intersection of the Back Road in Rarotonga with a side road ng from the Main Road to the Back Road. Mr Raumea was was trave alongalong the side road, the Back Road intersects with it at right angles, and he was therefore obliged to give way to his right. The complainants Messrs Raeputa and Taia were riding a motor coming from Mr Raumeaaumea's riand the evie evidence to date is that he ran into them causing a collision and relatively minor injuries to both. By chance an off duty constable was in the vicinity and happened on the scene of the accident very shortly after it occurred. Other bystanders and road users also assisted.

[7] The evidence to date is that Mr Raumea left the scenthe acce accident and travelled away from his home on his motorcycle at a speed in excess of the speed limit. The off duty constpursued him in her private car and apprehended him some distance away. When she called for for assistance Constable Makara attended the scene on a police motorcycle. Because Constable Makara had no breathalyser equipment on the motorcycle, and there was no such equipment in the off duty constable's private car, Mr Raumea was conveyed back to the police station by the off duty constable and handed over to Constable Makara and other officers for processing. Constable Makara then administered the breathalyser test.

[8] The accident, it seems, occurred at about 8.30 pm on 26 February 2010 or shortly afterwards and probably about quarter of an hour or 20 minutes elapsed before Mr Raumea and the police officers reached the station in Avarua.

[9]e are essentially two bases to Mr George's applicationation. The first is that the circumstances in which the breathalyser test was administered did not comply with ss.28B(2) and (3); that is to say, the breathalyser test was not undertaken on the spot. Asoss on that proposition, asn, as already mentioned, Mr Raumea left the scene of the accident of his own volition and accordingly, while he may have been in breach of s.28B(2) requiring him to remain at the scene of the accident, the breathalyser test could not be "conducted on the spot where such person is apprehended or at the nearest police station".

[10] There is therefore nothing in the fact, first that Mr Raumea left the scene of cce accident and was apprehended some distance away, or that the breathalyser test was not conducted "on the spot" because it was conducted at the police station and in circumstances where thethalyser equipment could nold not be carried on the police motorcycle or in the constable's private car. The place at which the test was conducted satisfies the requirements of s.28B.

[11] The second and more substantial basis for Mr George's appion are what arat are admittedly errors or mistakes in the documentation prepared by Constable Makara as part of administering teathalyser test to Mr Raumea. The nub of the application is that in several documents the cthe constable has included a timing at "2040 hours" and a notation in the Drager Alcotest readout "Location: Back Road Avatiu".

[12] Dealing first with the question of the entry of the "2040 hours", the ideal police practice in the administration of the breathalyser test under the 2007 Amendment would be for the Cook Islands Police drink driving checklist to be filled out as the administering constable works his or her way through the required procedure. After all, the checklist is designed to ensure that each of the steps involved in administering the breathalyser test are taken sequentially and completely.

[13] But it is notable that in the Cook Islands the legislature sensibly did not enact a statute that set out detailed requirements for each step of the administration of breathalyser or blood tests for allegedly drinking drivers, so the checklist is a combination of sorts of particulars officers would normally take from persons suspected of drink driving and a list of the requirements published by the manufacturers of the Drager Alcotest machine as to how that machine is to be operated in order that a valid test is undertaken.

[14] In this case it could not be disputed that the way in which Constable Makara administered the breathalyser test fell somewhat short of the optimal. There are what might be errors in the "2040 hours" entries and in the "location" entry on the Drager Alcotest printout. But when the "2040 hours" entries are analysed it is clear that any ambiguity or error there might be thought to be evaporates. The critical entry is in the checklist, question 11, which says "Time Stopped: 2040 hours". That time is also in the excess breath alcohol disclosure sheet and in other material in respect for which disclosure was made. So, although the documents may repay a little clarification by way of amendment, they have in this case at least produced consistency.

[15] Turning to the "location" entry on the Drager Alcotest printout, the printout from such machines is of necessity, stylised in form and brief in detail. As such, the "location" entry is ambiguous in that the entry does not differentiate between the "location" where the person being subjected to the test was apprehended or the "location" where the test was being administered, and the checklist does not elucidate that possible difference.

[16] Given that where a breathalyser test is not administered "on the spot" and there must in most cases be a time interval which has elapsed between apprehension of the suspect and the undertaking of the breathalyser test, it would probably be preferable if the Drager printout "location" entry were interpreted as being the place where the test was administered rather than the place of apprehension of the suspect and the checklist was altered to make that plain but, given the lack of particularisation already mentioned, it could not be said that Constable Makara's entry of "Back Road Avatiu" in the "location" box was such a fundamental error as to invalidate the test.

[17] As a postscript, it was no doubt deliberate on the part of the Cook Islands Parliament when amending the Transport Act 1966 in 2007 that it did not introduce a "reasonable compliance" provision similar to that enacted in New Zealand when, followntroducroduction of the highly detailed prescription for the administering of breath and blood tests in the Transport Act Notice current at the time, and the coent dismissal for technical reasons of a number of prosecutsecutions, Parliament in New Zealand nised that the aim aim of breath and blood alcohol legislation was to ensure that the merits of the charges of those alleged to be driving under the influence ink or drugs could be assessed irrespective of relatively mely minor procedural errors or improprieties.

[18] So to sum up therefore, although the way in which Constable Makara administered the breathalyser test in this case on one interpretation might be thought to have been something less than should have been the case, given the uncertainties mentioned in the legislation, it could not be said that his errors or oversights were fatal to the prosecution.

[19] The application under s.99 of the Criminal Procedure Act is accordingly dismissed.

Hon Hugh Williams J
High Court Judge

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.