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 specimen medical certificate was handled at trial. Part C of such a certificate is completed by a nurse or other medical professional. It confirms the driver’s consent was obtained, when and where the blood specimen was taken, whether it was taken in accordance with blood specimen collecting procedure, whether sufficient blood was taken, whether it was kept in an appropriate container taken from a sealed blood specimen collecting kit, and whether it was handed to an enforcement officer and who that was. Part D of the form, signed here by the constable, assigns a blood specimen collecting kit batch number, records when it was sent to ESR and the courier tracking number.

[5]    The blood specimen medical certificate here was handed up to the Judge stapled to the ESR certificate, produced as exhibit 2.5 It appears the Police handed the certificates to the registrar, who then stapled them together before handing them up to the Judge.6 During closings counsel for Ms Anderton submitted the constable’s evidence made no reference to the blood specimen medical certificate, which was not before the Court, as it was not identified by the constable and produced as an exhibit.7 The Judge said this:

[25] I then look at the issue of whether the blood specimen medical certificate has been handed up as an exhibit. In terms of the Criminal Procedure Rules 2012 there are no rules which specify how an exhibit is to be produced. In terms of the Criminal Procedure Act 2011 and the conduct of Judge-alone trials that does not refer to any specific rules as to how an exhibit must be produced and accordingly, I am of the view that the ESR certificate and the blood specimen medical certificate have been produced to this Court. They are both simply given exhibit number 2. Therefore, I consider that the blood specimen medical certificate is properly before the Court as an exhibit, exhibit 2.

[6]    On 17 January 2019 Judge Bouchier declined Ms Anderton’s application for a discharge without conviction, convicted her and sentenced her to a fine of $500, other

3      NOE 5/13–19.

4      NOE 5/17–21.

5      At [9], [18].

6      At [18], [22].

7      At [10], [14] and [22].

costs and disqualified her from driving for six months.8 Ms Anderton appeals her conviction and the refusal to grant her a discharge without conviction.

Law of appeals, blood specimens and production of exhibits

Law of appeals

[7]    This is an appeal, by way of rehearing, against conviction and sentence.9 Under s 232(2) of the Criminal Procedure Act 2011, I must allow the appeal of the conviction if satisfied the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason. Otherwise I must dismiss the appeal. A miscarriage of justice is defined to mean “any error, irregularity, or occurrence in or in relation to or affecting the trial” (including a proceeding in which the appellant has pleaded guilty) that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity”.

[8]    In Sena v New Zealand Police, the Supreme Court confirmed it is for the appellant to show that an error has been made and the appellate court must take into account any advantages a trial judge may have had, meaning an appellate court will exercise “customary caution” to a challenge to credibility findings based on contested oral evidence.10 But, if the appellate court comes to a different view of the evidence, the trial judge must necessarily have erred and the appeal must be allowed.

[9]    Under s 106 of the Sentencing Act 2002 a court may discharge without conviction a person who is found or pleads guilty if, under s 107, the court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The applicant must demonstrate there is a real and appreciable risk any identified consequences will occur, rather than speculate about matters of present fact.11 In Linterman v Police, the High Court held that discharges without conviction for drink driving offences ought to be exceptional.12 In Basnyat v

8      New Zealand Police v Anderton [2019] NZDC 4055.

9      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.

10     Sena v New Zealand Police [2019] NZSC 55 at [38].

11     DC (CA47/2013) v R [2013] NZCA 255 at [43].

12     Linterman v Police [2013] NZHC 891.

Police the Court of Appeal endorsed Linterman, characterising drink driving as a moderately serious offence with reference to its potential consequences and the pervasiveness of alcohol abuse in New Zealand society.13

Law of blood specimens relating to drink-driving offences

[10]   Ms Anderton was charged under s 56(2) of the Land Transport Act 1998 (the Act), which provides:

A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.

[11]   Section 70A provides that, with certain exceptions not relevant here, within 10 minutes of being advised of the result of a positive evidential breath test, a person has the right to elect to have a blood test. Sections 72 and 73 provide for blood tests. “Blood specimen” is defined in s 2 as meaning “a specimen of venous blood taken in accordance with normal medical procedures”. Section 74 sets out the procedure for dealing with blood specimens. It requires a blood specimen to be dealt with in accordance with the relevant blood specimen collecting procedure and sets procedures and time limits for a specimen to be sent for analysis to an approved laboratory.

[12]   Sections 75, 76 and 77 provide legal presumptions relating to blood specimen medical certificates:

75Certificates in blood-alcohol proceedings

(1)Except as provided in section 79, production of a certificate to which this section applies in proceedings for an offence against this Part is sufficient evidence, in the absence of proof to the contrary, of such of the matters as are stated in the certificate and of the sufficiency of the authority and qualifications of the person by whom the certificate is made and, in the case of a certificate referred to in subsection (5), of the person who carried out the analysis.

(2)This section applies to a certificate purporting to be signed by a health practitioner or medical officer and certifying that—

(a)a specimen of venous blood was taken by the practitioner or medical  officer  in   accordance  with  the  blood   specimen

13     Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19].

collecting procedure specified in the certificate from a person named in the certificate; and

(b)for the purposes of the specified blood specimen collecting procedure,—

(i)the specimen was sufficient; or

(ii)the specimen was insufficient and the practitioner or medical officer took a further specimen; and

(c)in accordance with the specified blood specimen collecting procedure, the practitioner or medical officer kept the specimen in the appropriate container or containers (as applicable); and

(d)each such container was received by the practitioner or medical officer in a sealed blood specimen collecting kit; and

(e)the practitioner or medical officer handed each such container to an enforcement officer named in the certificate.

…

(7) For the purposes of this section, it is  not necessary for the person  making a certificate to specify his or her entitlement to give the certificate if the certificate indicates that the person belongs to the general category of persons who may make such a certificate.

76Presumptions relating to blood specimens

(1)In proceedings for an offence against this Act it is to be presumed, in the absence of proof to the contrary, that,—

(a)if a certificate referred to in section 75 names a person having the same name, address, and occupation as the defendant as the person from whom the specimen of blood was taken, the specimen was taken from the defendant:

…

(c) if the container in which a blood specimen (or part of a blood specimen) was placed was received by a health practitioner or medical officer in a sealed blood specimen collecting kit, the container contained a substance (whether or not a combination or mixture of 2 or more substances) and that substance was a preservative and anti-coagulant.

(2)On the request of a person from whom a blood specimen has been taken under section 72 or section 73, or of the person’s solicitor or counsel, copies of any certificates referred to in subsection (1) that relate to that blood specimen must be supplied by the prosecutor to the person making the request.

77Presumptions relating to alcohol-testing

…

(2)For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which a blood specimen was taken from the defendant under section 72 or section 73, it is to be conclusively presumed that the proportion of alcohol in the defendant’s blood at the time of the alleged offence was the same as the proportion of alcohol in the blood specimen taken from the defendant.

[13]   Section 79 provides that such a certificate under s 75 is not admissible in evidence if the court orders the health practitioner who gave the certificate to appear as a witness.

Law relating to the production of exhibits at trial

[14]   There has been a paucity of New Zealand authority on exactly what must be involved in producing an exhibit at trial. Usually, it does not matter very much. Here it does, because the Police rely on the presumption created by s 75(1) that “production” of the blood specimen medical certificate is sufficient evidence (in the absence of proof to the contrary) of the matters stated in it. The purpose of that section is to make more efficient the process of proving those matters, which may otherwise require witnesses. Witnesses may still be used to prove those matters, especially if there is evidence to the contrary, but the certificate is usually a shortcut way of doing that. And that means it is important that the “production” requirement is satisfied. It is implicit in s 76, also, that a blood specimen medical certificate must be produced in evidence in order to have the presumptive effects set out there.

[15]   Court judgments usually refer only in passing to exhibits being produced at trial, such as William Young J did in Dotcom v United States of America, when he mentioned “the traditional way in which evidence is led – that is, by witnesses giving first person testimony and producing as exhibits documents to which they could speak”.14 I can find no more detailed New Zealand case law on what is involved.

14     Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [242].

Texts and other writing on advocacy by reputable authors provide somewhat more detail.15 The general principle is well-stated by former Chief Justice Eichelbaum:16

Exhibits can be admitted in evidence only after a sequence of procedural steps have been followed. Those steps serve to qualify the witness who is producing the exhibit. For a witness to be qualified a relationship has to be demonstrated between the person producing the exhibit and the exhibit itself.

[16]   Based on these authorities, I consider the following steps are involved in the overall process of production of an exhibit:

(a)The witness, and the opposing counsel (or party if self-represented), must see the exhibit proposed to be produced.

(b)The witness must give evidence of the authenticity of the exhibit (that it is what it purports to be) and must give evidence of why they are in a position to give that evidence (why they are a “competent” witness for this purpose).

(c)The witness must produce (or tender) the exhibit, by the witness, or counsel, stating that and the Registrar entering it on the exhibit register.

(d)The exhibit or a copy of it is given (or published) to the decision- making judge or jury.

[17]   Production may usually be a formality. But my formulation of these steps should be interpreted purposively, not formalistically. 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. In particular, the purpose of opposing counsel seeing the

15 Thomas Eichelbaum (ed) Mauet’s Fundamentals of Trial Techniques: New Zealand  Edition (Oxford University Press, Auckland, 1989) at 150–155; Thomas Mauet and Les McCrimmon Fundamentals of Trial Technique: Third Australian Edition (Thomson Reuters, Sydney, 2011) at 148–152; Bruce Robertson (ed) Introduction to Advocacy (New Zealand Law Society, Wellington, 2014) at 331, 350; and James O’Donovan Courtroom Procedure in New Zealand: A Practitioner’s Survival Kit (4th ed, CCH, Auckland, 2012) at [1007].

16 Eichelbaum, above n 15, at 150.

proposed exhibit is to allow them to object to its production on evidential grounds and to know what evidence is before the court. That is a crucial step in the process.

[18]   A case of the High Court of England and Wales in Hasler v Director of Public Prosecutions illustrates this.17 During Mr Hasler’s trial for driving with excess breath alcohol, the police sergeant who had administered the breath test gave evidence that the printout was available in court if the justices wanted to see it. But he did not produce it as an exhibit and nor did the prosecutor seek to put it in evidence in any other way. In closing, counsel for Mr Hasler submitted there was no case to answer because there was nothing before the justices that established the breath alcohol reading. In overturning the rejection of that submission, Farquharson J, with whom Stuart-Smith LJ agreed, said:

It is quite plain in my judgment that the document was not produced in evidence. It is not much use saying to a court that a document or, indeed, any other exhibit or potential exhibit is available to them if they care to look at it or have it produced before them. It is the task of the prosecution to adduce all necessary evidence. One might just as well say that there is a witness outside in the waiting room who could be called. If that witness is not called, then the justices are not in a position to take into account what he may have said.

[19]   Farquharson J said it would have been open to the prosecution to adduce the required evidence another way, such as by oral evidence, but it had not. The Judge also acknowledged the justices below did in fact look at the certificate following defence counsel’s submission, but considered they erred in not considering whether to allow the evidence to be admitted. He considered it did not matter that the justices would have in all likelihood admitted the certificate if the prosecution had requested it at that late stage in the proceeding.

Submissions

[20]   Mr Mitchell, for Ms Anderton, submits the Judge was wrong to hold the blood specimen medical certificate had been produced at trial. He relies on the requirement in s 75(1) for “production” of the certificate. He submits there have been “centuries of tradition” where it has been ingrained in the common law that a witness says “I produce” in producing exhibits. He submits, at an absolute minimum, a witness must

17     Hasler v Director of Public Prosecutions [1989] RTR 148 (QB), [1989] Crim LR 76.

refer to a document and then formally produce it. Otherwise there could be a situation of ambush where the other side cannot object. Indeed, he says, as counsel in the District Court, he had not been aware the blood specimen medical certificate had been handed up to the Court with the document produced as exhibit 2.   Alternatively,    Mr Mitchell points to s 130 of the Evidence Act 2006, requiring notice for offering documents in evidence without calling a witness. He submitted, accordingly, there is no evidence before the Court the blood specimen was obtained in accordance with normal medical procedures and therefore met the required statutory definition of “blood specimen” in s 2 of the Act. Mr Mitchell’s written submissions made a number of other points which were not pursued so vigorously in oral argument:

(a)There was no evidence the constable complied with the requirements in s 74(3) of the Act for delivery of blood specimens.

(b)The Police should not get the benefit of the s 76(1)(a) presumption that the specimen referred to  in  the  ESR  certificate  was  taken  from  Ms Anderton, because the constable did  not  give  evidence  as  to  Ms Anderton’s name, address and occupation.18

(c)The ESR certificate allowed one chance in a thousand that the blood specimen was not over the limit which is reasonable doubt. It was also so qualified as to make it evidentially ambiguous.

(d)The constable’s evidence did not provide a basis for invocation of the blood test procedures because he said the result of the evidential breath test was “584 micrograms of alcohol”, without adding “per litre of breath”, and that was not evidence he was satisfied of a positive result.

(e)If the conviction is upheld, the consequences of conviction, in terms of travel and employability, would be sufficiently disproportionate to the gravity of the offence that Ms Anderton should be discharged without conviction.

18     Mr Mitchell erroneously cited s 74(1)(a) of the Act.

[21]   Ms Watts, for the Police, submits there was sufficient evidence to support the charge so there was no miscarriage of justice. She submits there is no provision in the Criminal Procedure Act 2011 or Evidence Act 2006 stating how an exhibit is to be produced. She submits both certificates were handed up and formally produced and labelled as exhibit 2, which is sufficient production of the blood specimen medical certificate. In response to a question from me, she submitted that what is required for production of an exhibit is that the courtroom is aware of the document to be produced and no objection is taken. She relies on s 12 of the Evidence Act 2006 in submitting the Judge was entitled to admit the blood specimen medical certificate as an exhibit in the trial  and  the  appellant  has  failed  to  establish  an  error.  She  also  rejected  Mr Mitchell’s other submissions, which is not surprising as I explain below.

Was Ms Anderton properly convicted?

[22]   In the absence of other evidence with the same effect, the blood specimen medical certificate was crucial to the Police case. It was necessary to prove that a “blood specimen” had been taken from Ms Anderton “in accordance with normal medical procedures”, that it was sufficient for the purposes of blood specimen collecting procedure, had been kept in the appropriate container taken from a sealed blood specimen collecting kit and handed to an enforcement officer. It was also necessary to prove the nurse had sufficient authority and qualifications to make the certificate.

[23]   Was the  blood  specimen   medical   certificate   produced   in   evidence? Mr Mitchell’s invocation of “centuries of tradition” usually vibrates a warning-bell to a court that a doomed submission is about to follow. But sometimes an instinctual “vibe” can be a valuable reality check as to the interests of justice.19 That is so here. The legal requirements for production, identified above, were not satisfied. The certificate was attached to another document which was produced as exhibit 2. But Ms Anderton’s counsel was not aware it had been produced or was otherwise in evidence. He was correct to raise the question in closing submissions. The crucial step of the defendant’s counsel seeing the exhibit proposed to be produced was

19     AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [44].

skipped. Neither is there evidence that the police constable saw it at trial. The constable certainly did not give evidence of its authenticity or his own competence. The certificate could potentially have been admitted as an exhibit when the point was raised in closing, under s 98 of the Evidence Act 2006, possibly along with s 130. But it was not.

[24]   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. As occurred in Hasler, in similar circumstances, I uphold the appeal of Ms Anderton’s conviction and sentence.

[25]   Given my conclusion on that issue, I do not need to decide on Mr Mitchell’s other submissions. But, for the avoidance of doubt, if the blood specimen medical certificate had been produced in evidence, I would not accept the other submissions:

(a)There would be sufficient evidence the constable complied with the requirements in s 74(3) of the Act for delivery of blood specimens. The blood specimen medical certificate states the specimen was handed to the constable and sent to an analyst at ESR on 4 October 2017 by courier tracking number E20 76916111. The constable gave evidence that he took the blood sample back to Harbour Bridge Station “where it was secured in the cabinet for blood samples”.20 Under s 75(5) the ESR certificate, produced as exhibit 2, is sufficient evidence that the sample was delivered by courier “from NZ Police” to an employee of an approved laboratory on 6 October 2017 with a matching courier tracking number. In combination, this evidence is sufficient evidence to satisfy the s 74(3) requirements.

(b)Under s 76(1)(a), the court may presume the specimen was taken from Ms Anderton if the ESR certificate “names a person having the same name, address, and occupation as the defendant”. The certificate does so, and there was no proof to counter the presumption.

20     NOE 5/11–13.

(c)There was no reasonable doubt from the ESR certificate that the blood specimen was over the limit.

(d)The constable was entitled to invoke the blood testing procedure. Part J of the breath & blood alcohol procedure sheet, produced as exhibit 3, records Ms Anderton’s evidential breath test returned a positive result of “0584 micrograms of alcohol per litre of breath”. Ms Anderton confirmed by signature that she was advised of the positive result and of her right to elect a blood test. The constable’s evidence did not cast doubt on any of that.21

[26]   If I had upheld the conviction I would not have considered the consequences of conviction were sufficiently disproportionate to the gravity of the offence that   Ms Anderton should be discharged without conviction. Drink-driving is a serious offence. The fine and disqualification were proportionate to that. I am not persuaded conviction would have impacted on Ms Anderton’s travel or employability out of all proportion to the gravity of what would have been the offending.

Result

[27]I uphold the appeal and quash the conviction and sentence.

Palmer J

21     NOE 4/5–8.