AP v Police HC Auckland CRI-2011-404-000184

[2011] NZHC 2048

NOTE:  ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE RESPONDENT PENDING DETERMINATION OF APPEAL AGAINST REFUSAL TO GRANT PERMANENT NAME SUPPRESSION.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000184

BETWEEN  AP Appellant

ANDPOLICE Respondent

Hearing:         7 December 2011

Appearances: N K McDonald for Appellant

M S Williams for Respondent

Judgment:      21 December 2011

JUDGMENT OF WHATA J

ON APPLICATION FOR LEAVE TO APPEAL

This judgment was delivered by Justice Whata on

21 December 2011 at 4.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

N K McDonald, Oranga Law, PO Box 12103, Penrose, Auckland 1642

AP V POLICE HC AK CRI-2011-404-000184 21 December 2011

Introduction

[1]      AP seeks leave to appeal my judgment upholding the decision of the District Court to convict AP for driving with excess blood alcohol.  AP also seeks leave to appeal my decision to grant name suppression.

[2]      The immediate background to this is that I agreed with the District Court that while there were irregularities in the taking and processing of the blood samples, there was nevertheless reasonable compliance with ss 74 and 72, thus satisfying ss 64(2) of the Land Transport Act 1998:

It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.

[3] The nature of those irregularities is described in my judgment at [2]. In short the nurse obtained only one blood sample, which could not be divided into two parts, one for private analysis as required by section 74. There was evidence that the sample provided for private examination could not be properly tested. There was however also evidence that the sample tested by ESR produced remarkably similar results across four tests, all revealing excess blood alcohol, and that AP admitted to drinking two bottles of wine on the day he drove.

[4]      AP says that my decision gives rise to five questions of law:

(i)Does  the  statute  permit  the  prosecution  to  send  a  resealed  blood specimen for private analysis, and, when a resealed blood specimen is sent  does  that  preclude  the  application  of  s 64(2)  of  the  Land Transport Act 1998?

(ii)      In a case where a person has elected a blood test, pursuant to the Land

Transport Act 1998 and pursuant to the Act made an application to have one of the parts of the blood specimen privately analysed, would the prosecution‟s failure to divide the specimen into two parts, as required by the Act, and failure to supply a sealed, untouched specimen for private analysis preclude the application of s 64(2) of the Land Transport Act 1998?

(iii)Can  s 64(2)  save  a  prosecution  when  a  nurse  provides  a  blood specimen which does not comply with the mandatory requirement that it is divided into two parts?

(iv)Would a request for and attempts to obtain a further blood specimen as permitted by the Act and by case law constitute a breach of s 21 of the New Zealand Bill of Rights Act 1990?

(v)Should the result of an evidential breath test be considered at all in a prosecution pursuant to s 56(2) (excess blood alcohol)?

[5]      AP also had the benefit of interim suppression orders pending the resolution of the appeal.  I was not satisfied with medical evidence produced by the appellant claiming that the appellant‟s mother was vulnerable and at risk of heart failure if AP‟s  conviction  were  to  become  public.     I  was  not  prepared  to  extend  the suppression order without hearing from at least one of the medical experts, given the value that this Court places on open justice.

[6]      I granted continuing name suppression subject to confirmation that one of the two doctors will be available to answer questions.   Such notice was to be given within 14 days.  It was not.  I granted a further indulgence by way of minute dated

27 October  2011,  and  again  by  way  of  minute  dated  11 November  2011.     I specifically sought a response to my directions to have one of the medical experts available for questioning by no later than 5.00 p.m. Wednesday 16 November 2011. The medical practitioners refused to make themselves available.

[7]      By memorandum dated 14 November, AP sought further time be allowed for filing for leave to appeal to the Court of Appeal regarding the decision to refuse name suppression.   That is perplexing given that a notice has already been filed, dated  17 October  2011.    I  can  only  assume  that  what  is  sought  is  for  further suppression until AP is heard by the Court of Appeal.

[8]      The grounds of the said appeal are that the issue of conviction or acquittal is a significant factor as to whether name suppression should be continued.  It is said it is only fair and in the interests of justice that name suppression be continued until final determination of the appeal by the Court of Appeal.

[9]      I propose to address both aspects of leave in this judgment, together with any final orders relating to suppression.

[10]     I am grateful to counsel for the various memoranda they have provided to assist me.

Background

[11]     I described in my judgment the salient parts of the District Court judgment in the following terms:1

[6]       The judgment thoroughly addresses the reasons for finding that there was  reasonable compliance.   The judgment  observes  that  after  failing a breath  test,  the  appellant  elected  to  take  a  blood  test.   The  Judge  then observes:

[15]     Nurse Beverley Campbell arrived to take [the appellant‟s] blood at 11.53 p.m.   Ms Campbell gave evidence before me this afternoon.   She told me that she has been registered as a nurse midwife since 1974 and that she has been taking blood for the police for seven years.   She explained the process she went through in terms of introducing herself to [the appellant], checking that the blood kit was in order, and she filled out the blood specimen form. She then said that she looked at what I will call the inner aspect of one of [the appellant‟s] arms by the elbow, a place where blood tests are commonly taken from, and then she had a look at the other arm.

[16]      She quickly became concerned that there was not a good vein to take blood from.  She managed to get a small amount, which

1 As per my judgment at [6]-[9].

she thought was about two millilitres, from one vein and then she could not get any more.  In her view, the likely reason for that was that the vein, which was small, probably collapsed once she had extracted some blood from it.

[17]      In cross-examination, she said, “I only get two chances,” and by that she meant that it is her practice, which she understood to be best practice, and I might be putting words in her mouth here, but that was the effect of the evidence that she gave, that you should not attempt to get blood out of a person in terms of actually putting the needle into them more than twice.  She said, however, that she only put the needle into [the appellant‟s]  arm on one occasion, and she said that he had no other appropriate veins, she said, “I would have been going into nothing,” had she tried again.

[7]       The evidence of the ESR expert, Ms McGavin, is then described. The expert said that the small sample that was obtained meant that the normal method of assessment could not be used.  Instead “she used what she described as a, „validated, modified model of the usual method‟, which only requires one-quarter of the usual amount of blood.”  Using this method, she took four small portions each producing a “strikingly similar result of 173- point-something milligrams of alcohol per 100 millilitres of blood.”

[8]       The judgment also records that as a second untouched sample was not available for private analysis, a decision was made by the police to send for private analysis the sample that Ms McGavin had used.  The judgment records that in Ms McGavin‟s view there was sufficient blood in the sample for a second analysis.

[9]       In forming a view as to whether or not there had been reasonable compliance the Judge noted the following:

[31]      In  relation  to  that  aspect  of  the  matter,  I  note  his  own admission that he had drunk two bottles of wine, that a member of the public had alerted the police to their concern about his driving, and that he returned a breath test result of 691 micrograms of alcohol per litre of breath.

[32]     Further   and   importantly,   although   [the   appellant]   has defended this case and done so with much credit to him, he has not presented the witness Dr Sandiford to explain exactly why the blood specimen provided could not be analysed.  I did not have in front of me any other expert telling me definitively that they were unable to analyse the sample that was sent to Dr Sandiford by the ESR with the authority of the police.

[33]     In terms of what was said by the nurse, I do not have any other medical expert evidence saying that the nurse could have tried harder to get a better sample.  As Sergeant McDaid said, when she was in the witness box, the  process that she undertook was not disputed.   The police are not registered medical professionals or medical officers for the purposes of the Land Transport Act.  They have to rely on people who they call in to take the blood tests to advise them what is and is not possible in terms of taking samples of blood from people.

[34]     Ms Campbell has been a nurse for 35 years.  She has seven years‟ experience  in  taking  blood  for  the  purposes  of  alcohol analysis.  It was her view that it was fruitless to keep trying to take a specimen of blood from [the appellant] and quite rightly at no time did  Constable  Clayton press her further  on it.   He  accepted  her assessment of the situation.

[35]     In my view, the police did all that they could do to comply with the requirements of s 74.   I am satisfied that by invoking the reasonable compliance regime that there is no unfairness or injustice to [the appellant]. [Footnote omitted.]

Jurisdiction

[12]     The  jurisdiction  for  leave  to  appeal  is  set  out  at  s 144  of the  Summary Proceedings Act 1957.   The applicant must identify a question of law of general public importance which ought to be submitted to the Court of Appeal.   As the respondent  submitted,  the  effect  of  s 144  was  considered  in  R  v  Slater2   and Nottingham v R.3     Those cases observe that s 144 was not intended to provide a

second tier appeal from the District Court and the requirements of s 144 are stringent and not to be diluted.  In this regard s 144 specifies:

144     Appeal to Court of Appeal

(1)       Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2)       A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

2 R v Slater [1997] 1 NZLR 211.

3 Nottingham v R CA216/00, 26 March 2000.

[13]     Plainly there must be a question of law and such a question of law must be one of general or public importance.

Questions

[14]     I propose to examine each of the proposed questions in turn.   Overall the questions do not raise any point of public or general importance.  More significantly the essential issue in this case is, and has always been essentially factual:  Whether there has been reasonable compliance with the provisions of ss 74 and 72.

[15]     While  Ms  McDonald  has  endeavoured  to  reframe  the  basic  issue  into questions of law, ultimately AP‟s conviction depended on the resolution of that factual issue.

[16]     Indeed,  I  was  reminded  by  Mr  Williams  the  approach  to  be  taken  to reasonable compliance was clearly stated by the Court of Appeal in R v Alywin4  as follows:

[41]      The test as to whether there has been reasonable compliance has been seen as involving the consideration of two questions, as set out in Soutar v MOT [1981] 1 NZLR 545 (CA), at p 550, and Aualiitia v MOT [1983] NZLR 727 (CA), at p 729. The first question is whether the extent of the non-compliance gives rise to a reasonable doubt about the correctness of the result. The second question is whether there is a risk of the defendant suffering injustice or unfairness. The need for this test to be applied liberally was reiterated by this Court in Shaw v Police 21/9/95. CA 212/95. Accordingly, where the non-compliance does not create the possibility or likelihood of error, it should be saved by reasonable compliance.

[17]     The question of reasonable compliance having been thoroughly addressed both at first instance and on the appeal, I see no merit or basis for allowing leave to

appeal to the Court of Appeal of the five proposed questions.

4 R v Alywin (2008) 24 CRNZ 87.

Does  the  statute  permit  the  prosecution  to  send  a  resealed  blood  specimen  for private analysis and, when a resealed blood specimen is sent does that preclude the application of s 64(2) of the Land Transport Act?

[18]     I do not consider that this question raises a valid question of law relevant to the determination of the proceedings.   First, the the statute plainly and expressly contemplates non-compliance with any provision forming part of ss 68 to 75A, or in this case, ss 74 and 72.  The extent to which the statute permits a non-compliance depends on a factual determination, namely the level of the non-compliance and whether it is reasonable or not.   Second, I consider the question is to be without merit.   Inherent to s 64(2) is that the reasonableness of compliance is a matter for evaluation.   The question however presupposes that sending a resealed blood specimen must be unreasonable.  Yet the circumstances whereby such action might be reasonable or unreasonable are so varied as to be incapable of precise definition. In this case, the first instance Judge, and I, have had the opportunity to fully consider the transcripted evidence.  We have formed the view that, in the circumstances of the facts of this case, the decision to send a resealed blood specimen was not unreasonable and the compliance was reasonable.

[19]     In  summary,  the question  presupposes  a reading down of s 64(2) that  is simply not available on the language of the statute in light of its purpose but also having regard to its practical implementation.

In a case where a person has elected a blood test, pursuant to the Land Transport Act 1998 and pursuant to the Act made an application to have one of the parts of the blood specimen privately analysed, would the prosecution’s failure to divide the specimen into two parts, as required by the Act, and failure to supply a sealed, untouched specimen for private analysis preclude the application of s 64(2) of the Land Transport Act 1998?

[20]     This question is also without merit.  As noted, section 64(2) on its face states that it is no defence to proceedings for an offence that a provision, including s 74 has not been strictly complied with or has not been complied with at all.  It is simply not available to suggest that the failure to provide or divide the specimen into two parts provides an automatic defence outside of the reach of s 64(2).

[21]     Approaching the matter purposively, as I have said, the pith and substance of the section is to provide for an evaluation as to whether or not not there has been reasonable compliance with the intent of the safeguards, if not the letter of them.

[22]     I therefore see no merit in having this matter put to the Court of Appeal.

Can s 64(2) save a prosecution when a nurse provides a blood specimen which does not comply with the mandatory requirement that it is divided into two parts?

[23]     The answer is yes, for the reasons I have already given.  It is a question of fact and evaluation. An appeal on this point has no merit.

Would a request for and attempts to obtain a further blood specimen as permitted by the Act and by case law constitute a breach of s 21 of the New Zealand Bill of Rights Act 1990?

[24]     AP appears to be relying on my observation at [14] that:

To then insist that she undertake an invasive body search in the hope, and contrary to her expert opinion, of finding another vein runs hard up against New Zealand Bill of Rights Act 1990 protections usually associated with this type of appeal.

[25]     Ultimately  this   question,   and   my  comment   were  not   central   to   the determination of the proceedings.  As I have said, the critical issue in the appeal was whether or not there was reasonable compliance.  There may be circumstances where request for an attempt to obtain further blood specimens would constitute a breach of s 21 and there may be cases where it will not.  It again depends on the facts.

[26]     The short point is that in this case, the nub of the appeal was determined by reference to the facts of the case and the acceptance by the District Court Judge and by myself that the nurse acted reasonably in all of the circumstances, and with no inherent unfairness arising.

Should the result of an evidential breath test be considered at all in a prosecution pursuant to s 56(2) (excess blood alcohol)?

[27]     This  does  not  raise  a  material  question  of  law.    I  indicated  within  the judgment that I did not consider that having regard to the evidential breath test was appropriate or within jurisdiction.  Nevertheless, having considered all of the facts, I was satisfied that the appeal was not meritorious and that the Judge‟s decision in the round was still appropriate.

[28]     Given the foregoing I see no proper basis for granting leave to appeal on this matter.

[29]     Leave to appeal is declined.

Suppression

[30]     I am not going to clutter this decision by further detailing the rather confused basis upon which ongoing name suppression is sought.  I simply record that I invited Ms McDonald to file a formal application for name suppression so that the pleadings could be properly regularised.   I did not receive a formal application.   Instead I received argument about the scope of my jurisdiction to test the medical evidence, in circumstances where the medical evidence was not disputed by the Crown.  This is not entirely satisfactory, but I will proceed, as Mr Williams helpfully suggests, on the basis that there is a fresh application for interim name suppression, pending determination (if leave is granted) of appeal to the Court of Appeal against my refusal to extend name suppression.

[31]     In these circumstances the remaining issues are whether:

(a)       I should grant leave to appeal my refusal to  extend interim name suppression;  and

(b)If I do, whether I should grant further interim suppression pending the determination of any such appeal to the Court of Appeal.

[32]     Given  the  staggered  way  in  which  the  issue  of  suppression  has  been addressed, it is necessary for me to briefly summarise my position and from there address the remaining issues.

[33]     I accept that this Court has a general jurisdiction to suppress the identification of offenders in circumstances where publication of the offender‟s name may cause significant harm.5

[34]     As I said in my judgment of 5 October 2011, I was not prepared to proceed with ongoing suppression without at least hearing from one of the medical experts.  I expressed the view that the value that this Court places on open justice demands further inquiry before I make a final decision as to whether or not name suppression should be granted.  In particular, I considered that the expert medical opinion should be tested, particularly in terms of what mitigation might be employed to minimise the risk to the health of the appellant‟s mother.

[35]     I was not satisfied with Ms McDonald‟s subsequent response, emphasising that the Crown did not object to, nor challenge the medical certificates of the two doctors.  I observed that whatever the Crown‟s position is on the medical certificates of the two doctors, name suppression is a matter for this Court having regard to the longstanding principle of open justice.   Whether or not the Crown considers suppression to be justified is, I observed, at most a matter for consideration.   I emphasised that it is for me to be satisfied on the information placed before me that suppression, contrary to the entrenched principle of open justice, is justified.

[36]     Be that as it may, I am conscious that the Court of Appeal might well take the view that I was wrong to require further evidence of risk or mitigation of risk.  Ms McDonald might be right that this Court ought not to intervene in a criminal adversarial process.  Unfortunately, the way matters have proceeded full argument on this has not occurred.  But I adopt Mr Williams‟ useful summary:

4.5      Any judge is entitled to ensure that justice is done according to law. It cannot be said that the Court would be entering an adversarial situation, such as a criminal trial, or abandoning judicial neutrality.  The purpose of

5 D v Ministry of Transport HC Christchurch AP 165/91, 9 July 1991.

seeking further information is to ensure that the relevant legal principles are observed, and the high test for name suppression is met.  It can be said that the evidence presented by the Appellant in support of name suppression was not considered sufficient, and therefore it would be in the interests of the Appellant to ensure one medical expert attended. There is no suggestion that the Court would be involved in the challenge or cross examination of the expert,  or  is  seeking  evidence  from  witnesses  other  than  the  already identified doctors upon whom the Appellant relies.

[37]     In any event, I am prepared to allow a limited right of appeal on the question of suppression and in particular whether or not  I was obliged to determine the application for name suppression by reference only to the unchallenged evidence of the two doctors.

[38]     In terms of further interim name suppression I note that Ms McDonald refers to further correspondence from one of the doctors highlighting the present sensitivity of AP to stress.  I consider that it is unsatisfactory to refer to such correspondence without the doctor then making himself available to answer questions.

[39]     Nevertheless, I am prepared to grant interim name suppression pending the determination of an appeal on suppression by the Court of Appeal.  That is required to preserve AP‟s position pending hearing of the appeal.  However, I want to ensure that AP does not unnecessarily prolong matters.   I reserve leave to the Crown to come back to this Court in the event that, in its view, AP is not progressing with the appeal to the Court of Appeal with due speed.   Naturally there needs to be some commonsense applied here, but this Court will not tolerate any inordinate delay.

[40]     In the event that AP seeks special leave to appeal on the conviction, then the interim order would apply pending determination of that appeal, but subject to the same conditions.

[41]     Therefore —

(a)      Leave for appeal against conviction is declined.

(b)Leave to appeal my refusal to extend interim name suppression is allowed on the basis set out at [37].

(c)      Interim name suppression shall be extended to the determination of the appeal against my refusal to grant permanent suppression.

(d)The Crown has leave to come back to this Court at any time for the purposes  of  addressing  any  unreasonable  delay  in  resolving AP‟s appeals.

(e)      If AP does not lodge an appeal or an application for special leave, within the statutory timeframe, then the interim order shall lapse.

Whata J