Anderton v Police - [2019] NZHC 2550

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-50

[2019] NZHC 2550

BETWEEN
LISA STEPHANIE ANDERTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 June 2019

Appearances:

S J Mitchell for the Appellant

H A M Watts for the Respondent

Judgment:

8 October 2019

JUDGMENT OF PALMER J

The judgment was delivered by me on 8 October 2019 at 3 pm.

……………………………… Registrar/Deputy Registrar

Solicitors:
Kayes Fletcher Walker, Manukau S M Mitchell, Auckland

ANDERTON v NEW ZEALAND POLICE [2019] NZHC 2550 [8 October 2019]

Summary

[1] Ms Lisa Anderton appeals her conviction for driving with excess blood alcohol. One of the grounds of her appeal is that the blood specimen medical certificate was not produced in evidence at her trial. Rather, it was stapled to another document which was produced in evidence. The certificate was the only evidence of an essential element of the offence: that the blood specimen was taken in accordance with normal medical procedures. I agree it was not produced in evidence because Ms Anderton’s counsel did not see it at trial and was not aware it was in evidence and the police constable who gave evidence did not authenticate it and did not give evidence of his competence to do so. The process of production is not simply a technicality. Its purpose is to ensure that the parties, counsel and the court are all clear and certain as to what evidence is to be the subject of objection, submission and decision. Because the certificate was not produced in evidence and there was no other evidence of the essential elements of the offence to which it was relevant, there has been a miscarriage of justice here. I uphold the appeal of Ms Anderton’s conviction and quash the conviction and sentence.

What happened?

[2] Around 9 pm on 4 October 2017, Ms Anderton was stopped at a police checkpoint in Otara, Auckland. She underwent breath and then blood testing for alcohol. The Police charged her with driving with excess blood alcohol under s 56(2) of the Land Transport Act 1998. In an oral judgment on 14 January 2019 Judge A-M J Bouchier found the charge against Ms Anderton proven after a trial in the Manukau District Court.1

[3] The evidence against Ms Anderton was given by a police constable who said Ms Anderton was required to undergo an evidential breath test and a blood test. He said he was present when a nurse took the blood test in the booze bus at the checkpoint.2 The constable gave evidence of receiving an ESR certificate of the blood sample showing an alcohol/blood reading of 117 +/- five milligrams of alcohol per

1 New Zealand Police v Anderton [2019] NZDC 8515.
2 Notes of Evidence (NOE) page 4/lines 23–26.

100 millilitres of blood, as against the legal limit of 80 milligrams.3 The ESR certificate was produced as exhibit 2.4

[4] The key point of the appeal is how the nurse’s blood…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderton v Police

Details

AGLC: Anderton v Police [2019] NZHC 2550
Case: [2019] NZHC 2550
Decision Date: 8 October 2019

CaseChat Overview and Summary

Lisa Anderton was stopped by police at a checkpoint in Otara, Auckland, and was charged with driving with excess blood alcohol. The charge was based on a blood test result showing 117 +/- five milligrams of alcohol per 100 millilitres of blood, against the legal limit of 80 milligrams. Anderton appealed against her conviction on the ground that the blood specimen medical certificate, which was crucial evidence of the proper taking of the blood specimen, was not produced in evidence at trial. Instead, it was stapled to another document that was produced as exhibit 2. The key legal issue was whether the blood specimen medical certificate had been properly produced as evidence. The Court considered that the process of production of an exhibit was not a mere formality but a necessary step to ensure clarity for all parties, counsel, and the court as to the evidence being considered. In this case, Anderton's counsel did not see the certificate at trial and was not aware it was in evidence, and the police constable who gave evidence did not authenticate the certificate and did not give evidence of his competence to do so. Therefore, the certificate had not been properly produced as evidence. As a result, there was a miscarriage of justice and the Court upheld Anderton's appeal, quashing her conviction and sentence.

The Court did not consider it necessary to rule on Anderton's other submissions, but noted that if the blood specimen medical certificate had been properly produced as evidence, the Court would not have accepted those submissions. The Court held that the other evidence was sufficient to establish the proper taking of the blood specimen and the exceeding of the alcohol limit. The Court also noted that the consequences of conviction, including a fine and disqualification from driving, were proportionate to the gravity of the offence of driving with excess blood alcohol.

Orders