IN THE Court of appeal OF new Zealand
	
CA513/2014
[2015] NZCA 52

BETWEEN	
CORRINE MARIE CONSTABLE
Applicant	

AND	
THE QUEEN
Respondent	

Hearing:	
3 March 2015	

Court:	
Harrison, Fogarty and Dobson JJ	

Counsel:	
J A Farrow for Applicant
Z R Hamill for Respondent	

Judgment:	
6 March 2015 at 3 pm	

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)
Introduction
[1]	Corrine Constable applies for leave to appeal against her conviction on one charge of driving with excess breath alcohol under s 56(1) of the Land Transport Act 1998 (the LTA).  
Facts
[2]	One evening in October 2013 Ms Constable was stopped by police for speeding while driving her vehicle near Mosgiel.  An officer requested her to submit to a passive breath test.  Both that test and a later breath screening test returned positive results.  An evidential breath test later administered at the Mosgiel Police Station returned a result of 547 micrograms of alcohol per litre of breath.  Ms Constable’s breath reading was appreciably over the legal limit of 400 micrograms.  
[3]	At 9.15 pm that evening the officer advised Ms Constable of the positive evidential breath test and that it could be of itself conclusive evidence for the purposes of a conviction for an offence if she did not exercise her right under ss 70A and 77(3) of the LTA to request a blood test within ten minutes.  Ms Constable immediately answered that she did not like needles and did not wish to have a blood test.  About three minutes into the ten minute period Ms Constable asked the officer if she had to remain at the police station any longer.  She was worried that her prolonged absence from home would be causing her three children anxiety.  The officer responded that Ms Constable had fulfilled her legal obligations.  He was not entitled to keep her at the station any longer.  Ms Constable then said she wanted to go home. 
[4]	At about 9.20 pm, five minutes into the ten minute period, the officer prepared and served a summons on Ms Constable for driving with excess breath alcohol.  He drove her home.  Upon arrival there, the officer advised Ms Constable that although the ten minute period had now expired he would administer a blood test if Ms Constable requested it.  She replied that she knew she had done wrong and did not like needles.  She then went into her house.  
[5]	In the District Court Ms Constable defended the charge on the ground that the police had failed to comply with s 70A because Ms Constable had not been afforded the full ten minute period within which to elect to have a blood test.  In a carefully reasoned decision, Judge Bouchier dismissed this defence on the ground that there was reasonable compliance with the s 70A right.  In an equally full and careful decision Lang J dismissed Ms Constable’s appeal.  He was also satisfied that there had been reasonable compliance with s 70A and no risk of an injustice or unfairness.
Decision
[6]	Ms Constable now applies for leave to bring a second appeal.
[7]	Mr Farrow submits that in determining the question of whether there was reasonable compliance with s 70A the High Court was not entitled to speculate as to whether Ms Constable would have changed her mind had she been afforded a full uninterrupted ten minutes to reflect on whether to have a blood test.  His proposition is that a question of general or public importance arises because it concerns the degree to which the s 70A right should be preserved given that it is the only available safeguard against errors in evidential breath tests.  Here, he says, by finding reasonable compliance both the District and High Court Judges eroded that safeguard, giving rise to the risk of injustice or unfairness.  
[8]	We reject this submission.  Lang J applied this legal test:
[21]	It can be argued that the constable ought to have declined to accept Ms Constable’s initial decision, and insisted that she remain at the police station for the entire ten minute period.  Had he done so, there is no doubt that Ms Constable would have complied with his request.  In terms of the principles enunciated by the Court of Appeal in Alwyn, the Court needs to consider whether a risk of injustice or unfairness has arisen because there is a reasonable possibility that, if the constable had taken that step, Ms Constable may have changed her mind and elected to undergo a blood test.[]  
[9]	Mr Farrow does not challenge the material accuracy of this statement of the law.  Instead, he submits that the Judge embarked upon impermissible speculation in finding there was no risk of injustice or unfairness to Ms Constable because she would not have changed her mind even if she had been afforded a full uninterrupted ten minutes to reflect.  We agree with Ms Hamill that Lang J followed the settled process of drawing inferences from proved facts in concluding that:

[23]	…  The legal position is that the constable did not have the power to detain Ms Constable against her will once she had completed the evidential breath test.  Although the ten minute period constitutes a period of lawful detention for the purposes of the rights granted under the New Zealand Bill of Rights Act 1990, there is no power to arrest a suspect if he or she chooses to leave the police station during that period.  A power of arrest does not arise until the suspect refuses to comply with a requirement to go to, and remain at, another place for the purpose of providing a blood sample after having elected to undergo a blood test.  If he or she refuses to comply with either of those requirements, s 72(5) permits the person to be arrested without warrant.  It follows that [the officer’s] initial view of the law was correct, and he correctly advised Ms Constable that he had no power to detain her once she had decided not to undergo a blood test.  He did not mislead her as to her legal position.
[24]	Although this issue was the subject of considerable cross‑examination during the hearing in the District Court, it is not of any real moment so far as the present appeal is concerned.  The real point is that, although in practical terms the constable could have required [Ms] Constable to remain at the police station for the full ten minute period, such a requirement was unnecessary in the face of repeated indications that she had made up her mind and wanted to leave.  The object of the ten minute period is to enable the suspect to make a considered decision whether or not to undergo a blood test.  If he or she makes an informed decision not to take advantage of that opportunity, and is not pressured into making a premature decision, the decision should be respected provided there is no risk of injustice or unfairness to the suspect as a result.  The suspect is, however, require[d] to accept the consequences of the decision.
[10]	There was no element of speculation in the Judge’s reasoning.  His factual conclusions were logically based on undisputed evidence.  We are satisfied that both Judge Bouchier and Lang J applied the correct legal principles in determining what was ultimately a question of fact as to whether there had been reasonable compliance with s 70A and the risk of unfairness or an injustice.  There is no arguable issue arising on this application, let alone one which is of sufficient general or public importance to warrant leave to bring a second appeal.  
Result
[11]	Ms Constable’s application for leave to appeal is dismissed. 

Solicitors: 
Webb Farry, Dunedin for Applicant
Crown Law Office, Wellington for Respondent