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Police v Toilolo [2021] WSDC 6 (15 July 2021)

IN THE DISTRICT COURT OF SAMOA
Police v Toilolo [2021] WSDC 6 (15 July 2021)


Case name:
Police v Toilolo


Citation:


Decision date:
15 July 2021


Parties:
POLICE (Informant) v OMAR BENJAMIN TOILOLO, male of Taga Savaii (Defendant)


Hearing date(s):
03rd March 2021


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Mata’utia Raymond Schuster


On appeal from:


Order:
I find that the prosecution have proven the charge beyond reasonable doubt and the defendant is guilty as charged.
The matter is adjourned for sentence.


Representation:
Inspector R. Ah Ching for the Informant
M. Leung-Wai for the Defendant


Catchwords:



Words and phrases:
“not complying with directions of enforcement officers”- “failure to undergo a breath screening test”.


Legislation cited:


Cases cited:


Summary of decision:

IN THE DISTRICT COURT OF SAMOA


HELD AT MULINUU


BETWEEN:


P O L I C E


Informant


AND:


OMAR BENJAMIN TOILOLO, male of Taga, Savaii


Defendant


Representation: Inspector R. Ah Ching for the Informant

M. Leung-Wai for the Defendant


Date of Hearing: 3rd March 2021
Decision: 15th July 2021


RESERVED RULING OF DCJ SCHUSTER

  1. The accused is a 44 years old male of Faleata, Apia and Taga, Savaii. He has entered a not guilty plea to the charge of not complying with directions of enforcement officers pursuant to section 40O(1) of the Road Traffic Ordinance 1960 (hereinafter referred to as the “RTO”) which states “that at Saleufi on the 21st day of August 2020, the ... named defendant of Taga, Savaii, being the driver of a motor vehicle namely, a Mitsubishi Delice registered plate number 31689, drive such motor vehicle on a road namely, Convent Street, did fail to comply with any lawful requirement, direction or requests made by an enforcement officer for the purpose of a Screening Test”.
  2. Section 40O(4) correspondingly provides for the penalty of a fine not exceeding 10 penalty units or six (6) months imprisonment.

Facts - Prosecutions case

  1. The facts are straight forward and unremarkable. The prosecution allege that at about 11pm on the 21st August 2020, police carried out a road block on Convent Street near Savalalo. The defendant’s vehicle was pulled over suspected of being intoxicated as he did not have his headlights on. Constable Etuale Maiava testified that he explained to the defendant the machine and that he must blow three times when told to do so into the machine. He further explained that the machine was already certified according to “law” to check the alcohol level from a persons breath and if he uses all three chances without blowing properly, the machine will register as a failed result. The defendant was asked to blow into the breathalyser machine and did so three times but no result was registered. Constable Maiava then reported the matter to the Officer in charge and was instructed to charge the defendant for non-compliance. Constable Maiava testified that he remembered what the defendant looked like and did a “dock identification” without objection.
  2. Under cross examination, Constable Maiava agreed that if the breath screening test showed a result over 40 micrograms the defendant would not be charged but would do an evidential breath test. Constable Maiava further accepted that if an evidential breath test showed a “positive” result, then the defendant would be charged according to the evidential breath test but not the breath screening test. Constable Maiava confirmed that he undertook training in 2019 to conduct breathalyser tests using the Alcatest 9510 machine. Constable Maiava further accepted that the defendant did report a rock throwing incident. However, because the defendant’s headlights were off when approaching, Constable Maiava was suspicious that the defendant was intoxicated and decided to pull him over and conduct a breath screening test. He accepted that it was not in his report but it was an inadvertent omission due to oversight and work constraints.
  3. Constable Maiava further responded under cross examination that he came across about 20 of drunk driving cases that night. However, this was the only case where there was a failure to properly blow into the machine. As to what was actually said to the defendant, Constable Maiava responded that he knew the defendant was Samoan so he spoke in Samoan to the defendant whilst the defendant responded in English to him. He told the defendant to blow into the tube and the machine will give a reading and to blow until he told him to stop.
  4. Constable Maiava denied that he told the defendant that if he did not blow properly he will go to jail as the test will show “fail” or “no result”. When asked in his career, how many failed breathalyser tests he dealt with, Constable Maiava responded he had investigated six (6) cases.
  5. When re-examined, Constable Maiava testified that the defendant understood him as he followed his instructions in blowing the device until he told the defendant to stop. Constable Maiava further testified that the machine will show if the person blowing did so properly or not by giving off two (2) beeping sounds.
  6. Constable Fualaau Filipo is female and the Investigating Officer who dealt with the defendant’s case. She interviewed the defendant at Fagalii and tendered an unremarkable caution statement as Exhibit P1 without objection from the defence. She identified the defendant in the dock without objection from the defence.
  7. Under cross examination, Constable Filipo testified that there were about 10 plus cases that night referred for investigation including the defendant. Filipo observed the defendant was intoxicated due to smell and red eyes and she was unable to interview him immediately notwithstanding the fact that she did not mention these facts in her report. Constable Filipo testified that the defendant never asked her for another test. She accepted that a person could not be charged if the evidential breath test shows a “negative” result despite the fact that the screening test may show “positive”.

Defendant’s case

  1. The defendant elected to give evidence. He was born in Samoa but migrated to America when he was a young child. He was deported to Samoa in 2007 following a conviction for kidnapping and second degree robbery. He is now self-employed doing pest control and was instrumental in the setting up of the Returnees Association Trust to help re-integrate Samoan deportees into the community. He recently converted to Mormonism from Muslim and is adamant that his previous and current religion prohibits him from consuming alcohol.
  2. As to the night in question, the defendant testified that he was at home not feeling well when he received a call from another returnee for assistance. As he came into town, he was stopped at a Police road block who asked for his licence and allowed him to go. Before Convent Street, he stopped at the traffic lights four corners intersection at Saleufi. It was then that he witnessed people throwing stones and quickly exited the area to avoid the conflict and harm to himself of his car. He pulled up to a police road block at Savalalo to report on the stone and bottle throwing incident but was instead asked not to speak but to blow into the machine. This latter part of the defendant’s testimony was not put to the prosecution witness Constable Maiava.
  3. The defendant further testified that the police officer spoke to him in Samoan despite the fact his Samoan was not very fluent. After being told to blow three times into the machine, he was pulled over and told to accompany the officer to the police station. The defendant denied that his headlights were not turned on as he had just registered his vehicle with the Land Transport Authority. He was interviewed at the Fagalii police traffic section by a male officer whilst Constable Filipo was present. He asked if he can have another test. The defendant alleges his request fell on deaf ears and placed in a cell at Apia Police headquarters after completion of his interview. The defendant denied that he was intoxicated and that he complied with the police officer’s instructions each time he was instructed to blow into the machine notwithstanding the fact, as he alleges, that the process was not explained to him.
  4. Under cross examination, it was put to him that the machine beeped twice in all the three occasions he was asked to blow meaning that he was not blowing properly into the device. However, the defendant said that the only word he understood from the police officer was “blow” and was not properly explained what the process was.

The Law

  1. It must be noted at this point that the attention is focused on the question raised by Mr Leung Wai as to consider whether a failure to undergo a breath screening test is an offence under the RTO. In order to answer this question, it is necessary to consider the relevant provisions of the RTO relating to alcohol breath and blood testing and the elements required to be proven by the prosecution.
  2. The defendant is charged pursuant to section 40O(1) & (4) for failing to comply with all lawful requirements, directions or request made by an enforcement officer for the purpose of a breath screening test (BST) under section 40A and 40(1) of the RTO. The alleged fact is that the defendant when directed by Constable Etuale Maiva failed all of his three (3) chances to blow as required, directed or requested into the breath screening device Alcatel 9510 otherwise the device will register a failed result pursuant to section 40A of the RTO.
  3. The provisions of the RTO relevant to this charge provide:
  4. In bringing a charge under section 40O(4) of the RTO, it seems the prosecution need to prove that:
  5. Given this matter relates specifically to non-compliance of but one part of the necessary statutory process relating to breath and blood alcohol and/or drug limits of the RTO, it is pertinent for discussion purposes to outline the elements for breath alcohol and blood alcohol offences. The BST is the first step to a charge under 40B and imminently is the main purpose of this part of the RTO which is the prohibition of being in control of a motor vehicle while influenced by alcohol and/or drugs.
  6. Having searched through Samoa’s judicial precedents, the case of Police v Viali[1], an unreported decision of DCJ Roma (as he then was), seems to be the only case that has discussed the EBT provisions in some detail. The Court dealt with the very question of whether the enforcement officer complied with the necessary statutory process of the RTO in relation to a charge pursuant to section 40(1) and (5) of the RTO. Section 40P(2) was raised as a general defense by the defendant eventhough the defendant elected not to give evidence.
  7. The brief facts are that the defendant was stopped at a road block at the Sogi roundabout around 8am on Independence Day 1 June 2019. The Police were re-directing traffic from Mulinuu but suspected the defendant was intoxicated. A breathalyzer device was requested and arrived 20 minutes after the defendant was pulled over. The defendant measured 73 micrograms of alcohol per 100 millilitres of breath. The defendant was accompanied to the Apia Police Headquarters 30 minutes after the BST where he was put through an EBT and measured 60 micrograms of alcohol per 100 millilitres of breath.
  8. In acquitting the defendant, Roma J found that the prosecution failed to prove the charge beyond a reasonable doubt based on non-compliance with the first requirement of the third element. Roma J applied the test from the New Zealand Court of Appeal case of R v Livingston[2]:
  9. Relying on the elements provided in Livingston, His Honour stated in paragraphs 30 - 33:
  10. In the New Zealand Supreme Court in Aylwin v Police[3], the defendant was charged under section 59(1)(b) of the Land Transport Act 1998 (hereinafter referred to as the “NZLTA”) with “failing to accompany an enforcement officer when required to do so” and under s 56(1) of “driving with excess breath alcohol”. The Court in passing had this to say generally about the purpose and intent of the legislation:
  11. In Aylwin, the defendant was charged with refusing to accompany an enforcement officer after failing a breath-screening test and with driving with excess breath alcohol. The Court faced two (2) questions as to the elements of the charge on appeal: (1) in relation to a charge under section 59, is it necessary for the prosecution to prove that the breath-screening test was conducted in compliance with the Transport (Breath Tests) Notice (No 2) 1989; and (2) in relation to a charge under section 56, is it necessary for the prosecution to prove that both the breath-screening test and the evidential breath test were carried out in compliance with the notice.
  12. Sections 59 and 56 of the New Zealand legislation are fundamentally the equivalent in effect and application of section 40M (Failure or refusal to remain at a specified place or to accompany enforcement officer) and 40 (Contravention of specified breath alcohol and blood alcohol limits and drugs) respectively of the RTO. It is a given that we adopted substantially from the New Zealand legislation. Justice Wilson providing the reasons of the Court outlined in Paragraph 6 answered the first question in the affirmative that in order to establish that an accused came within section 69(1)(a) of the Land Transport Act and was required to accompany an officer to undergo an evidential breath test having failed a breath-screening test:
“... the prosecution was required to establish first that Mr Aylwin underwent a breath-screening test, having been lawfully required to do so, and, secondly, that it appeared to the officer administering the test that the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath. In the absence of challenge by cross-examination or evidence to the contrary, the first of these elements could simply be established by the officer saying that a breath-screening test was undertaken by a driver”.[4]
  1. As for a charge under section 56(1), Justice Wilson again answered the second question in the affirmative and stated:
  2. Essentially, the Supreme Court stated that a breath screening test is a pre-condition and one of the elements towards establishing whether a person comes within section 69(1)(a) (who must undergo an evidential breath test) OR section 72 (who must give a blood specimen) in order to prove the offence provisions brought under sections 59 and 56. Sections 40B and 40E of the Samoan RTO are the equivalent in effect and application of sections 69 and 72 of the NZLTA.
  3. Aylwin was discussed and applied in the Supreme Court case of Birchler v Police[5]. Justice Blanchard in affirming Aylwin stated:
  4. The Supreme Court ruled that the enforcement officer’s failure to comply with section 69(1) means that a prescribed precondition for requiring a person to accompany an officer in order to undergo an (evidential) breath test was a necessary step in the statutorily prescribed process. Therefore, the prosecution was not able to discharge the onus of the enforcement officer’s compliance with section 69.
  5. Given the Supreme Courts emphasis on the statutory process in Birchler, it is also helpful to outline a general summary of Division 4 of the RTO particularly the process pursuant to sections 40 – 40Q related to breath alcohol/drugs and blood tests. The RTO prescribes necessary statutory steps which an enforcement officer must follow before an Evidential Breath Test (EBT) or Blood Test (BT) is required from a person who comes under section 40, 40A, 40B and 40E. Section 40 makes it an offence for a person to drive or attempt to drive a motor vehicle whilst the proportion of alcohol in a persons’ breath as ascertained by an EBT under section 40B exceeds 40 micrograms of alcohol per 100 millilitres of breath; OR via a blood analysis under section 40E or 40F which exceeds 80 milligrams of alcohol per 100 millilitres of blood.
  6. The statutory process commences with a BST under section 40A which is always taken on the roadside except in circumstances where a breathalyser device may not be readily available and there is “good cause to suspect” that the person has consumed alcohol (Section 40B(1)(c)). The important point to be determined at this juncture is whether or not a person comes under a category of persons under section 40A(1) to be subjected to a BST[6]. Section 40A(1)(a) empowers an enforcement officer to require a driver of a motor vehicle on a road to undergo a breath screening test “without delay”, having been lawfully required to do so, or where there is good cause to suspect that a person has recently committed an offence against the RTO that involves the driving of a motor vehicle. The device to be used is one of a kind approved by the Minster for the purpose of breath screening tests. It is to be noted at this point that there was no evidence as to the approval of this device and the manner of carrying out roadside breath-screening tests by means of an Alcatest 9510 device.
  7. Should the BST results not exceed the prescribed prohibited amount under section 40(1), that should be the end of the matter and a driver is free to continue on his/her way. However, an enforcement officer, despite the results for reasons of a malfunctioning device, etc., may have “good cause to suspect” that the person is intoxicated and “may require” the person to accompany him/her to a place to undergo an EBT or BT or both[7]. The RTO does not prohibit the number of BST’s that an enforcement officer may require a driver to undertake notwithstanding whether the initial result exceed the prohibited amount or not. Suffice to say that section 40C empowers an enforcement officer to require further EBT if initial tests fail to produce a result and that the enforcement officer must be satisfied, having been lawfully required to do so, that the suspected offender has sufficiently complied with his/her requirements, directions or request.
  8. Where a person consciously appreciated the enforcement officer’s request but deliberately acted against an enforcement officers’ lawful directions or requirements and failed a BST[8], such person may be arrested without warrant pursuant to section 40Q and charged pursuant to section 40O.
  9. Section 40Q stipulates:
  10. It may be logical to suggest that a subsequent EBT with a “negative” result (or not exceeding the statutory amount) may vitiate a person who initially tested “positive” (or exceeded the statutory amount) or who failed to undergo a BST. Constables Maiava and Filipo seem to believe that to be so under cross examination. It must be noted that an EBT or BT offence are the main offences under the breath or blood alcohol/drug offences of the RTO. However, this does not remove the statutory empowerment of an enforcement officer to charge any person for failure or refusal, inter alia, to undergo a BST, EBT or BT or both being the first step of compliance with the statutory process and an offence under section 40O.
  11. In a common situation where it appears to an enforcement officer that the BST results show that the proportion of alcohol in the driver’s breath exceeds 40 micrograms of alcohol per 100 millilitre of breath pursuant to section 40(1) and 40A; or where a person fails or refuses to undergo a BST “without delay” pursuant to section 40A; or in the event of an accident involving a motor vehicle, the suspected offender pursuant to section 40B “may be required” to accompany an enforcement officer, having been lawfully required to do so, to a place where he/she can undergo an EBT or a BT or both. A person who fails to accompany an enforcement officer for an EBT or BT or both, having been lawfully required to do so, commits an offence under section 40M.
  12. A person may also be required to accompany an enforcement officer to undergo an EBT in the event he/she fails or refuses to undergo a BST “without delay” (section 40B(1)(b)) having been lawfully required to do so. Section 40B(1)(b) qualifies a suspected persons “failure or refusal” with the term “without delay”. Therefore, any person who deliberately delays the taking of a BST may be charged with failure or refusal to undergo a BST and may subject such person to a charge under section 40O. I bear in mind that the EBT or BT is the test upon which a conviction for driving or attempting to drive a motor vehicle whilst the proportion of alcohol in the persons breath as ascertained by an EBT is 40 micrograms per 100 millilitres of breath or the blood test exceeds 80 milligrams of alcohol per 100 millilitres of blood. It is not based on the BST[9]. However, this case is about the defendants’ alleged failure to undergo a BST, an element and a prerequisite for an EBT. Therefore, non-compliance of a person to a lawful requirement or direction given by an enforcement officer to undergo a BST under section 40A is a separate but complimentary offence and may subject such person to a charge under section 40O.
  13. Section 40B(4) provides for circumstances where the non-compliance with a BST as a pre-requisite for a person to accompany an enforcement officer to do an EBT may be excused. There must however exist one or more of the circumstances where a breath screening device was not readily available or for any reason a breath screening test cannot then be carried out (injury and/or unconsciousness, etc) but there was good cause to suspect that a person has consumed alcohol under section 40 and 40A. In addition, section 40P(2), provides:
  14. Blanchard J stated in paragraph 6 referring to the Supreme Court decision in Aylwin:
  15. Blanchard J concluded in paragraph 17 acquitting Birchler:
  16. Section 64(2) of the NZLTA is the equivalent of section 40P(2) of the RTO. In Police v Viali[10], section 40P(2) was raised as a general defense of non-compliance pursuant to sections 40I(6) (Minister’s approval of the device published in the Savali Gazzette) and 40I(2) (must produce a certified true copy of the certificate of compliance of the testing device). This is notwithstanding the fact that the defendant elected not to give evidence.
  17. The case of Police v Ludwig Andrew Wendt[11], inter alia, dealt with an objection that the offence alleged of “failure to comply with lawful requirement, direction or request made by an enforcement officer for the purpose of a screening test” was not an offence prescribed by law pursuant to section 40(1), (2) & (4) of the RTO. The defendant approached the issue on the basis of Article 10(1) of the Constitution of Samoa that “No person shall be convicted of an offence other than an offence defined by law”.
  18. DCJ Papalii dismissed the application affirming that there exists an offence under section 40O of the RTO[12]. The only important issue so far as Her Honour was concerned was the fact that Police erroneously inserted the wrong charging section when filing the information and therefore whether it was a miscarriage of justice to amend the charge at the close of prosecution’s case.

Specific “failure or refusal” to comply with lawful requirements, directions and requirements of enforcement officers in NZLTA

  1. The relevant provisions of the NZLTA that deal with compliance of drivers and road users with directions of enforcement officers, etc are provided below -
  2. Section 40O(2) and (4) of the RTO is the equivalent of sections 13(2) and 52(1)(c) respectively of the NZLTA. The only notable difference is that the NZLTA makes the failure or refusal offences to comply with directions of an enforcement officer an “infringement offence” as opposed to an “offence” provision attracting an imprisonment penalty or mandatory disqualification from holding or obtaining a drivers licence. The latter is the case with the RTO. As indicated earlier, section 52(1)(c) of the NZLTA is the equivalent of section 40O(1) and (4) of the RTO in effect and application and section 113(2)(e) of the NZLTA is similar to section 72B of the RTO. Section 40O of the RTO combines sub-sections 13(1), (2) and (3) and 52(1)(c) of the NZLTA into one section.
  3. In Desmond Sharp v New Zealand Police[13], the defendant appealed his conviction from the District Court in Manukau for failing to comply with a lawful requirement pursuant to section 52(1)(c) and section 113 of the NZLTA which requires a person to provide their full name, full address, date of birth, occupation and telephone number or such other particulars as an enforcement officer may specify. Venning J stated the elements to establish a failure to comply with lawful requirement, the prosecution must establish beyond reasonable doubt[14] that:
  4. The two main elements on appeal relate to (b) and (e). I would as a matter of course, include element (d) as incorporated in element (b) the latter not being an element on its own. This is based on the fact that one of the pre-requisites that would justify an enforcement officers’ statutory duty to act in the course of enforcing the provisions of the RTO is whether the defendant is in operation of a vehicle on a road.
  5. The High Court in Sharp dismissed the appeal affirming the District Courts findings on the facts that the enforcement officers were lawfully entitled to request the details under section 113 of the Act for Mr Sharp was obligated under section 113 to provide those details as intended by Parliament. There was more than sufficient evidence before the Court for the Court to be satisfied beyond reasonable doubt that the request for details was in accordance with enforcing the provisions of the NZLTA[15].
  6. Venning J further dismissed the suggestion that the NZLTA should not be construed to give power to require a person to supply their name and address unless the person had done something wrong or there were reasonable grounds in the officer’s mind for thinking that the person had done something wrong[16]. The Court reasoned that it would lead to a reading down of the clear words of section 113. The enforcement officers were therefore effectively exercising their powers for a proper purpose pursuant to the NZLTA.
  7. As to whether the circumstances of the defendant were to be dealt with appropriately by just a warning as argued by Mr Sharp, Venning J stated that it was a matter for discretion of enforcement officers how they dealt with in given circumstances for such circumstances vary from case to case as they normally would be expected. Given the enforcement officers had proper cause to investigate, Venning J found that they were entitled to arrest and charge Mr Sharp given his refusal to comply with the obligation on him.
  8. In Denis Lloyd McLachlan v New Zealand Police [2015] NZHC 1608, the defendant was charged in the Christchurch District of, inter alia, under section 52(1)(c) of driving whilst forbidden; and one charge of failing to give his full name and full address in contravention of section 113(2)(e) of the NZLTA. The defendants appeal on conviction was dismissed by the High Court for failing to comply with a notice not to drive while forbidden and failure to confirm that the name on the document was his name or what his address was as lawfully required by the enforcement officer.
  9. In Raharuhi v Police[17], the Police officer asked the appellant who was Maori for his date of birth and his address, each of which he refused to supply arguing that he was entitled to reply in the Maori language. Therefore the officers had not understood what he said and he had not failed or refused as charged. Such failure was the subject of a charge under section 52(1)(c) of the Land Transport Act alleging a person on a road and having had a lawful demand by an enforcement officer to give his name and address failed or refused to give such information (which may be required under section 114(3)(b)(i) of the NZLTA).
  10. Baragwanath J in determining the elements of the charge stated:
  11. In dismissing the appeal, Baragwanath J stated:
  12. What seems clear from the above New Zealand cases is that failure to comply with an enforcement officers directions or requirements under the breath and blood alcohol provisions of the NZLTA would be an offence under section 52(1)(c), the equivalent of section 40O of the RTO.

Defence submissions

  1. Mr Leung Wai submits that the failure to undergo a breath screening test is not an offence under the RTO. Mr Leung Wai contends that the proper step that follows on from a failure or refusal to undergo a BST is for the enforcement officer to conduct an EBT. This ground will succeed if there is a finding that a failure or refusal to undergo a BST is not an offence for such non-compliance can be vitiated by the “mandatory” EBT provision. Consequently, Mr Leung Wai must also argue, as he does, that an enforcement officer is obliged to require any person to accompany him/her to undergo an EBT for this interpretation to succeed.
  2. Mr Leung Wai rationalizes his argument firstly on statutory construction where specific statutory provisions (section 40B(1)(b)) will be given effect over general provisions (section 40O(4)). In the event of doubt, the courts shall adopt the meaning that will avoid harshness and enable the courts to do what appears just[18].
  3. We turn now to the actual provisions Mr Leung Wai submits are in issue, i.e., section 40O(4), 40A and 40B(1)(b). Mr Leung Wai submits that it was not parliament’s intention that all lawful requirements or directions that are not complied with pursuant to sections 40A to 40F will result in an offence under section 40O. In fact, section 40O is a catch all provision intended to only capture breaches of lawful directions and requirements for which no remedy is provided for by the RTO[19]. As an example, Mr Leung Wai refers to the ‘passive breath test’ in section 40A(4) as one such provision where no remedy is prescribed. Therefore, section 40O does not apply to section 40A and 40B so far as a BST is concerned.
  4. It appears that Mr Leung Wai’s whole premise hangs on the interpretive presumption that the mandatory “remedy” or “sanction” for failing or refusing a BST is to accompany an enforcement officer to conduct an EBT. There is something to be said about the terms “remedy” or “sanction” used but will elaborate on that later in this judgment. In order to sustain this presumption, Mr Leung Wai must establish that the “remedy or sanction” of a failure or refusal to conduct a BST is specifically limited to an EBT. He must also exclude any other intention parliament may have had as to alternative remedy or sanction but that section 40O was drafted for that very purpose as a catch all provision to fill in any gap that might be said to arise in the more specific provisions relating to breath and blood alcohol limits and drugs of the RTO.
  5. Sections 40O, 40, 40A and 40B on their own or read together must be clear on their own if it is to be consistent with the intention proposed by Mr Leung Wai. Section 40O(1) generally makes it a requirement for any person to comply with sections 40A, 40B, 40C, 40E and 40F. Sub-section (2) provides for the practical circumstance where a person who comes under section 40A, 40B, 40C, 40E and 40F to comply with all lawful requirements, directions and requests by an enforcement officer. Sub-section (3) similar to sub-section (2) is to comply with all lawful requirements, directions and requests made by a medical practitioner pursuant to section 40E or 40F in the administration of blood tests. Finally, sub-section (4) makes it an offence should any person fail to comply with any lawful requirements or directions given by an enforcement officer “to which this section applies”.
  6. As for section 40B(1)(b), it states that an enforcement officer ‘may require’ a person to accompany him/her to undergo an EBT where such person failed or refused a lawful requirement to undergo a BST pursuant to section 40A.
  7. The meaning to be given to the term “may require” was discussed in Parker v Ministry of Transport[20]. This was an appeal to deal with an analysis of the authority of an enforcement officer acting under the blood and alcohol provisions of the Transport Act 1962, the latter being the predecessor to the 1998 NZLTA. McMullin J explained:
  8. Mr Leung Wai argues that section 40B(1)(b) is specific in that it provides for a mandatory EBT following any of these two outcomes: (i) a failure or refusal to undergo a BST or (ii) where a person exceeds 40 micrograms of alcohol per 100 millilitres of breath (or a positive BST). The first and second outcomes arise from sections 40(1) and 40A. If that be the case, then it effectively removes an enforcement officers right to do something which he might otherwise was empowered to do by the words “may require”. As McMullin J stated, “may require”:
  9. I accept the meaning McMullin J gives to the term “may require” in section 40B(1) as accurate and consistent with the clear purpose of the RTO to ensure that operators of motor vehicles who come within the provisions of the RTO do not escape responsibility through technical and without merit defences. The courts must give full effect to that clear parliamentary intention. Upon reviewing section 40O, I find that the clear and necessary wording makes it a ‘specific’ as opposed to a ‘general’ provision. It is limited and only comes into consideration with incidents involving the specific sections referred which includes section 40A and 40B(1)(b) being the relevant sections concerning this case.
  10. Following McMullin’s J reasoning, I am of the view that the term “may require” in section 40B(1) empowers an enforcement officer to exercise his/her own personal judgment in the taking of only the first of these steps. This is when he/she forms the view which constitutes the "good cause to suspect". I have noted with care Mr Leung Wai’s construction and annexures which are of much assistance. Taking into consideration the matters as discussed above, I provide the following for ease of reference in the case of a failure to undergo a BST, an enforcement officer may require either:
  11. The necessary outcomes will be:
  12. Thorpe J in Donaldson v R[21] stated that a totally negative breath screening test must take this case beyond the common situation where there has been a positive breath screening test and any subsequent blood test offers more of a last chance than a likely benefit to a person whom the enforcement officer has good cause to suspect may be intoxicated whilst driving a motor vehicle on the road. Donaldson produced a negative BST but was arrested under suspicion of under the influence of some substance. She requested to undergo a subsequent blood test but was denied as the enforcement officer genuinely believed that she did not have the power to request the doctor to take blood specimen. Thorpe J quashed the conviction for breach of the defendant’s right under the New Zealand Bill of Rights section 24(d) “to adequate time and facilities to prepare a defence”.
  13. The facts are that approximately 5.15 pm on 20 May 1994 the appellant was found asleep in the driver's seat of a motor vehicle which was stopped, with its lights on, at a stop sign at an intersection in Dunedin city. A constable went over to the car and opened the door. The appellant, who had been slumped in the driver's seat, sat up and stated that she must have fallen asleep. The BST failed to show a proper result from an approved device but the enforcement officer had cause to suspect that Donaldson was under the influence of something given her observed conduct.
  14. If this be a reasonable, logical and sensible reading of the structure and construction of the RTO as outlined above, then Mr Leung Wai’s contention must fail on both assertions. Firstly, a person who consciously appreciated the requests for a BST and deliberately declined to comply may be required to accompany an enforcement officer to undergo a BST or a BT or both; or the enforcement officer having good cause to suspect a person being intoxicated whilst in charge of a motor vehicle on a road may charge such person under section 40O for failure to undergo a BST; or an enforcement officer may do both. An enforcement officer, before requiring a suspect to move onto the next testing stage, must exercise his own judgment and not merely apply a fixed policy[22]. Secondly, this construction and interpretation, unless negated by any other provision of the RTO that would state otherwise, appears consistent with the intention of parliament to ensure that drivers consuming more than a small amount of alcohol do not escape responsibility through technical and unmeritorious defences. Mr Leung Wai offered no more as to the intention of parliament other than the structure and construction itself of the RTO provisions on alcohol and blood tests.
  15. I must add that the use of the terms “remedies” or “sanctions” may cause misconception as to the stringent intent of the RTO to prohibit driving after consuming more than a small amount of alcohol as being “... dangerous, illegal and socially unacceptable”[23]. Where the NZLTA makes “failure or refusal” of enforcements officers’ lawful directions or requirements as “infringements” resulting in monetary fines and disqualification, the Samoan parliament has considered a more severe penalty of six (6) months imprisonment or a maximum monetary fine of $1,000.
  16. The clear overall intention of parliament based on the structure and construction of the RTO is to protect lives and property from avoidable traffic accidents involving drink driving by setting in place a step by step statutorily prescribed process and empower enforcement officers to implement effectively. The same statutory process provide defences for persons who come under the breath and blood alcohol provisions and therefore the statutory process is not arbitrary as observed in the cited cases of Police v Viali, Birchler, etc,. However, the statutory process must not be misconstrued by using the terms “remedies or sanctions” to suggest that failure or refusal of any person to comply with lawful directions or requirements of enforcement officers implementing the RTO will benefit from a less harsh reading despite the clear intent of the RTO. This was clearly pointed out by Baragwanath J in Raharuhi for the NZLTA to be construed, it must operate sensibly[24].
  17. The statutory process therefore, in my view, beginning commonly with a roadside BST, does not provide “remedies or sanctions” for breaches of lawful directions or requirements but legal obligations to comply and failure of which will result in offences. For enforcement officers, it is a clear step by step statutory process which warrants strict or reasonable compliance with the RTO. However, as noted earlier, strict non-compliance by enforcement officers may provide a defence to a breath or blood alcohol charge under section 40B of the RTO unless, in terms of section 40P(2), there had been reasonable compliance[25].
  18. There exists, therefore, a statutory obligation on the part of suspected persons to comply with directions and requirements of an enforcement officer failure or refusal of which is an offence under the RTO. In Sharp, Venning J confirmed the appellant had an obligation to comply under the clear terms of section 113 of the NZLTA to provide his name, address and birth date having been lawfully required to do so[26]. The appellant failed to do so and was charged under the offending provisions section 52(1)(c) which is equivalent of section 40O(4) of the RTO.
  19. It reasonably follows, in my opinion, that the terms “remedy and/or sanction” are misleading and not appropriate so far as the intent of the RTO is concerned. An EBT or BT or both will not “remedy” or “set right” or “make good” a failure or refusal to undergo a BST lawfully required to do so. Nor can a subsequent EBT or BT or both be a “sanction” or “an anticipated threat of a penalty” in the event of a failure to undergo a BST. Such a construction would lead to a reading down of a person’s statutory obligation not to mention the seriousness and severity of a persons’ failure or refusal to comply with lawful requirements of enforcement officers which may subject such persons to be charged pursuant to section 40O. This would be inconsistent with the intention of parliament. The structure and construction of the RTO was designed to discourage any person seeking to avoid responsibility through technical and unmeritorious defences.
  20. In terms of construction, I find that sections 40B(1)(b) and 40O(4) are not contradictory of each other or overlap which would ordinarily necessitate a catch-all provision. The former relates to three (3) circumstances where a person may be lawfully required to undergo an EBT, a BT or both “without delay” where there is good cause to suspect that a person may have committed an offence under section 40. The latter makes a failure or refusal an offence for any person who fails to comply with an enforcement officer’s lawful requirements or directions in the exercise of his/her duties in any of the circumstances arising out of the necessary statutory process provided in sections 40A, 40B, 40C, 40E and 40F. The two provisions were designed to serve different purposes but not exclusive of each other in mutual and complimentary application and effect.
  21. Incidentally, Mr Leung Wai has not referred to section 72A of the RTO so far as to his submissions that section 40O is a “general” and “catch-all” provision. 72A stipulates:
  22. I agree with Mr Leung Wai that the Court is bound to give effect to a statutory provision if it’s meaning and purpose is clear. In this case, I do not agree that section 40O is a general catch all provision given the clear wording of section 72A which provides for offences where a person fails to do any act required by the RTO and where no special penalty is provided for upon conviction. It would, in my view, be absurd to provide for two (2) catch all provisions related to “offences and general penalties” as to the same provisions of the RTO causing uncertainty for both the enforcement institution, the general community and the courts.
  23. A further ground rendering support to the contention that a failure or refusal to undergo a BST is an offence is the fact that a BST is a required element that must be proved by the prosecution and not just a procedural requirement. In the two cases referred of Aylwin and Birchler, the Supreme Court had to deal with the question as to whether the lawful administration of a breath-screening test is an element of the offence of driving with excess blood alcohol. Blanchard J in Birchler reaffirmed their decision in Aylwin stating that the BST is a pre-condition and one of the elements towards establishing whether a person has committed an offence under section 56 of the NZLTA. Therefore, a failure on the part of the prosecution to prove compliance with a necessary step in the statutorily prescribed process for the obtaining of an EBT or BT or both pursuant to sections 68 and 69 of the NZLTA (equivalent of sections 40A and 40B of the RTO) will lead to an acquittal. Blanchard J in Birchler stated:
“[17] We say this because a failure to comply with s 69(1) means that a prescribed precondition for requiring a person to accompany an officer in order to undergo an evidential breath test has not been met. There has not been compliance with s 69. Such non-compliance will provide a defence to a breath or blood-alcohol charge under s 56 unless, in terms of s 64(2), there has been “reasonable compliance”. There can be reasonable compliance where there has not been “strict compliance” and even, in some circumstances, where the section in question (here s 69) “has not been complied with at all”. The short point is that, if what has occurred does not pass muster as strict or reasonable compliance with s 69, there was no lawful basis for the breath-screening test and what followed thereafter.[27]
  1. The BST is therefore a necessary step in the statutorily prescribed process and the prosecutions failure to comply with the BST, whether strictly or reasonably under section 40P(2), would render the remaining steps unlawful. It follows, logically and reasonably, that non-compliance of a persons’ obligation to comply with lawful requirements or directions of enforcement officers would render them to be arrested without warrant (under section 40Q(1)) and charged under section 40O(4) assuming “that any necessary prerequisites for requesting the breath-screening and evidential breath tests had existed because there had been strict compliance or reasonable compliance with”[28] section 40A and section 40B.
  2. The fact that a BST pursuant to section 40A is the first element that must be proved by the prosecution, it renders the failure by any person to comply with the lawful directions or requirements of an enforcement officer despite such persons’ legal obligation to do so, activates an empowerment of an enforcement officer having good cause to suspect to exercise his own personal judgment in the taking of only the first of these steps. The consequence of non-compliance of a BST by an enforcement officer means there was no lawful basis for conducting a BST and renders the subsequent steps unlawful. It must equally follow therefore that any person who fails to oblige with an enforcement officers lawful directions or requirements to undergo a BST commits an offence. Otherwise it would frustrate the purpose of the RTO and relegate a BST as merely a procedure (which may be remedied) and not an element.
  3. Given the above reasons, I must reject Mr Leung Wai’s submissions put simply that failure of a BST is not an offence under section 40O.

Elements for non-compliance

  1. Notwithstanding such finding, the remaining question is whether the prosecution have proven the charge beyond a reasonable doubt. Recalling Venning J in Sharp above, the elements for failure to comply with an enforcement officers lawful directions or requirements under section 40O(4) are:
  2. Baragwanath J in Raharuhi stated that a failure to supply personal details contained the like elements of such found in a failure or refusal to permit a specimen of blood. His Honour expanded on element (c) and (e):
  3. On the facts, Mr Leung Wai did not question the authority of Constable Etuale Maiava so far as the first element is concerned except to raise it in his written submissions in paragraph 12 and made no more mention of it. In Police v Elley[29], the defendant was convicted for driving with excess breath alcohol. The defendant raised as a defence the first element that the prosecution failed to adduce any evidence as to prove the enforcement officer was in uniform. Judge Mahoney held:
  4. On the facts of this case, I accept Judge Mahoney’s reasoning consistent with the intention and purpose of the RTO and find that prosecution have proven the first element beyond a reasonable doubt.
  5. As to the second element, the prosecution was required to prove the charge under section 40B by showing that Constable Etuale Maiva strictly or reasonably complied with section 40A for requesting a BST. There was no dispute of the facts on this issue that the defendant was in operation of a motor vehicle on the road and Constable Maiava was within his lawful duties under the RTO to examine the defendant given his observation that the defendant may be intoxicated as his headlights were not turned on. The defendant disputes that he was intoxicated and that his headlights were off. This issue ordinarily would be crucial in terms of credibility particularly in relation to a charge of breath or blood alcohol excess. However, I do not consider it having much effect as to this case. It is not necessary for me to make a determination as I am required only to consider the charge whether the defendant deliberately failed to follow the directions or requirements of Constable Maiava. If the defendant did deliberately fail to undergo a BST, did he have a lawful purpose for doing so?
  6. I have no difficulty in finding that the prosecution has proven the second element beyond a reasonable doubt as there is no evidence to suggest that Constable Maiava was not acting according to the provisions of the RTO in good faith as to discharge his duties under the RTO.
  7. The third and fourth elements are disputed. The issue raised by the defendant is that he was not informed properly as to what the process for screening was and that he did not understand constable Maiava as he was speaking in Samoan. This was an issue in Raharuhi where the prosecution relying on section 52 (similar to section 40O of RTO) and 60 had to prove beyond reasonable doubt that the appellant consciously appreciated the direction or requests and yet deliberately declined to comply. Baragwanath J stated notwithstanding the defendants construction of the facts:
I am satisfied that it was both unreasonable and unlawful for the appellant not to respond to the officers’ repeated requests for his particulars and for the blood sample that the law permitted them to make.[30]
  1. Mr Omar insisted that he followed Constable Maiava’s directions despite the language issue. However, Mr Omar did not say that he did not understand Samoan only that he did not speak it very well being a Samoan himself and having been in Samoa since 2007 immersed in the day to day life, culture and language. There is no issue or suggestion that the breathalyser device was malfunctioning or produced an erroneous result. Constable Maiava under cross examination confirmed that he dealt with about 20 cases of drivers who were intoxicated and only in Mr Omar’s case was there a failure to produce a test result. In his experience, Constable Maiava had done 6 cases of failure to undergo a BST. These facts were not in dispute.
  2. The law requires me to presume that the breathalyser screening device was approved for the purpose of breath screening tests by the Minister unless otherwise shown from sworn evidence not to be the case. On the evidence, the breathalyser device was in proper working condition and that there was no good reason, should the defendant had followed Constable Maiava’s lawful directions or requirements, that a normal test result would not have been obtained, i.e., either in excess (positive) or below (negative) the statutory limit. Furthermore, there is no evidence from Mr Omar that if he did not comply with Constable Maiava’s lawful directions, he had a lawful purpose for doing so. Mr Omar merely contends that he complied as directed but for some reason the result as anticipated by Constable Maiava either way never eventuated.
  3. Mr Omar further testified that the enforcement officers never explained the “process” to him but did not elaborate on that. This could mean two things: Mr Omar may be referring to the BST being the only test that he was put through; or the explanation of both the BST and the subsequent statutory steps. This in effect would be a challenge as to the manner the test was conducted. However, it was not an issue that was emphasized by Mr Leung Wai under cross examination and in the defendant’s evidence in chief. This point was the issue in Aylwins case. Wilson J handing down the Courts decision held:
  4. Constable Maiava’s evidence was not challenged substantially as to the manner in which he conducted the BST. Mr Leung Wai asked what was said to the defendant as to blowing into the device. Constable Maiava responded he told the defendant to blow into the device until the machine gives a reading and told to stop. Mr Leung Wai put to Constable Maiava that he told the defendant that if he did not blow properly he will go to prison. Constable Maiava responded that he did not instead that if he does not blow properly he will be charged for failure to comply. In his own evidence, Mr Omar did not testify in response as to the matters put by Mr Leung Wai to Constable Maiava.
  5. There is no good reason to reject the evidence of Constable Maiava as to the manner in which he conducted the BST particularly when there is no evidence to the standard to warrant serious consideration. There is no issue that he acted in bad faith in enforcing the provisions of the RTO to the detriment of the defendant. A challenge to the manner a test is conducted must be intended, clear and substantial in terms of the evidence. That is not the case here.
  6. This leads also to the matter of Mr Omar’s alleged request for another test. This is an important issue as it leads to the right of a person to a fair trial. What is in question however is whether Mr Omar did make a request to Constable Filipo for Constable Filipo denied under cross examination that such a request was made. This issue was discussed in Court of Appeal case of Donaldson referred to earlier. In dismissing the charge against the appellant, the Court answered, inter alia, the 3rd legal question referred for determination:
  7. The first part to be determined is to whom the court finds the evidence credible. Unlike Donaldson where the enforcement officers testified that the appellant requested for her blood sample to be taken for analysis, Mr Omar merely makes the assertion in passing in his evidence in chief. This issue was also not stringently challenged under cross examination. In order for the court to determine such facts whether be on direct or circumstantial evidence, sufficient evidential foundation must be laid for the court to draw an inference or raise reasonable doubt. It is not sufficient that Mr Omar merely raise the issue and then for Prosecution to prove the matter on rebuttal evidence beyond a reasonable doubt. Neither of those circumstances exists so far as this particular issue is concerned. I must therefore prefer the evidence of Constable Filipo for I have no good reason to question her credibility.
  8. The final issue for completion is the question whether the prosecution were required to produce a certificate of compliance for a BST similar to section 40I pertaining to an EBT device as an element of the offence. This was clearly an issue in Police v Viali and the charge was dismissed because of prosecutions failure to produce a true copy of the original certificate for proof of excess of an EBT charge. The distinction with this case is the results of a BST, not an EBT.
  9. It can be inferred from the cases of Raharuhi and Sharp that there is no such element required for the charge related to both defendants as to their failure to comply with enforcement officers’ directions or requirements to undergo a BST. Should one look for guidance in the RTO, there is no provision that a device used for BST must be supported by a certificate of compliance as it does for an EBT device in section 40I.
  10. We turn again to case under the NZLTA for assistance and the position appears to be the same in structure and construction. In Jansen Eruera Maxwell v New Zealand Policec[31], the appellant was checked at a police roadblock and observed to be highly intoxicated. A BST was undertaken but a “failed general” result noted. The appellant was charged with an offence of excess of breath alcohol and raised several issues in defence as to the maintenance of the EBT device and its accuracy as to the results. Gendall J affirmed the appellants conviction and approved C N Tuohy J’s appealed decision in the District Court that:
  11. It is clear that an EBT can be a protection or safeguard for an excess BST. However, in cases involving breaches of section 40A and 40B(1)(b) for failure or refusal to undergo a BST lawfully required by an enforcement officer, prosecution are not required to produce a certificate of compliance as an element of an offence pursuant to section 40O(4). It may be that an EBT may vitiate a person who did not consciously appreciate what he/she was directed or required to do depending on an enforcement officer exercising sound personal judgment pursuant to the RTO. But such circumstances would be rare and exceptional.

Conclusion

  1. I find that the prosecution have proven the charge beyond reasonable doubt and the defendant is guilty as charged.
  2. The matter is adjourned for sentence.

MATAUTIA RAYMOND SCHUSTER
DISTRICT COURT JUDGE

[1] [2019] WSDC 8 (6 October 2019)
[2] [2001] 1 NZLR 167
[3] [2009] 2 NZLR 1
[4] Paragraph 6 [2009] 2 NZLR 1
[5] [2010] NZSC 109; [2011] 1 NZLR 169
[6] Aylwin v Police [2009] NZLR 169 Paragraph 6
[7] Donaldson v R [1995] NZCA 81/95
[8] Raharuhi v Police — [2004] NZAR 225
[9] Police v Elley — [1996] DCR 488
[10] [2019] WSDC 8 (6 October 2019)
[11] [2018] WSDC (23 August 2018 unreported)
[12] Paragraph 33
[13] [2014] NZHC 263
[14] Paragraph 13
[15] Paragraph 22
[16] Paragraph 23
[17] [2004] NZAR 225
[18] Byrne v McLeod [1934] HCA 61; (1934) 52 CLR 1 as cited by Sapolu CJ in Police v Faoa [2001] WSSC 6 (23 February 2001)
[19] Paragraph 14 and 15 of Defence counsels written submissions
[20] [1982] 1 NZLR 209 CA
[21] [1995] NZCA 81/95
[22] Parker v Ministry of Transport — [1982] 1 NZLR 209
[23] Aylwin v Police — [2008] NZSC 113; [2009] 2 NZLR 1 Paragraph 17
[24] Paragraph 32
[25] Birchler Paragraph 17
[26] Paragraph 34
[27] Paragraph 17
[28] Paragraph 18
[29] [1996] DCR 488
[30] Paragraph 35
[31] High Court of New Zealand — Wellington Registry, CRI-2010-485-000118, 14, 20 December 2010

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