B v Police HC Auckland CRI 2006-404-124

[2006] NZHC 1538

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-124

B

Appellant

v

THE POLICE

Respondent

Hearing:         5 December 2006

Appearances: Mr Soondram for appellant

Ms Marshall for respondent

Judgment:      8 December 2006 at 3.00 pm

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 8 December 2006 at 3.00 pm pursuant to Rule540(4)

of the High Court Rules.

Registrar/ Deputy Registrar

Meredith Connell, Auckland

C Comeskey, Auckland

B V POLICE HC AK CRI 2006-404-124  8 December 2006

[1]      Mrs B   appeals against her conviction on 22 August 2003 on one charge of driving a motor vehicle while the proportion of alcohol in her blood exceeded 80 milligrams of alcohol per 100 millilitres of blood (s 56(2) Land Transport Act 1998).

Leave to appeal

[2]      The appeal currently before the Court is signed and dated 7 April 2006.  It is substantially out of time.   Section 116 of the Summary Proceedings Act provides that an appellant must file a notice of appeal within 28 days of the date on which she was sentenced (excluding the date of sentence).

[3]      The appeal now before the Court was filed substantially out of time.  Leave to appeal out of time is sought on the basis that an earlier Notice of Appeal was filed, but in error not actioned.  In support of that application, Mrs B   filed an affidavit by Mr Comeskey, who acted for her at the initial hearing.   He deposes that immediately after the August 2003 hearing a junior in his office was requested to file the notice of appeal.  A second notice of appeal was not filed until 7 April 2006.

[4]      In light of the evidence from Mr Comeskey it appears that the junior from Mr Comeskey’s office either failed to file the notice of appeal, or that there was some administrative error in processing it.  In any case, I am satisfied that whoever was responsible for that error, it was not Mrs B  , and that she has shown sufficient special circumstances so that an extension of time under s 123 of the Summary Proceedings Act should be granted.

Relevant facts

[5]      The charge relates to events in October 2001.   At 10.35 pm there was a collision on Great North Road, Glen Eden.  Mrs B   was the driver of one of the vehicles involved in the collision.   The police arranged for a blood sample to be taken from her when she attended at hospital for treatment for a head injury she

suffered in that collision.   That blood sample was analysed and a certificate was produced at trial under s 75(5) of the Land Transport Act 1998 certifying that:

A blood specimen in a sealed bottle taken from B  , Robyn, Manager, 94

Avondale Road, Avondale was delivered on 9 October 2001 to J Bradbury, a person employed by an approved laboratory within the meaning of the Land Transport Act 1998 and approved by me for the purposes of analysis.  It was delivered by registered post RDO20262915NZ.   On analysis of the blood specimen by N A McGavin, an analyst, a portion of 81 milligrams of alcohol per  100  millilitres  of  blood  was  found  in  the  specimen.     No  such deterioration or congealing was found as would prevent a proper analysis.

The certificate is signed A Stole, approved analyst.   It was sent to the officer in charge, Henderson Police Station, Henderson.

[6]      Prior to the  October  2003  hearing,  Mrs  B    obtained  an  order  that  a sample of her blood be sent to an independent analyst.   That was done and an analysis undertaken by Mr Rory Shanahan.

[7]      At trial, the hospital blood specimen and analysts’ certificates were produced. The analyst, Noreen McGavin of ESR Wellington was called to give evidence.  Her evidence was that in accordance with standard ESR procedure she had deducted six milligrams per 100 millilitres from her analytical result of 87 milligrams, to report an alcohol concentration of 81 milligrams per 100 millilitres of blood.   She gave evidence that the testing method at ESR is very tightly controlled and that ESR runs quality assurance standards on each batch.  She expressed confidence that for those reasons the figure of 81 was not an over reporting.

[8]      As  to  the  analysis  undertaken  by  Mr  Shanahan  she  said  that  if  the independent analyst had used a reliable and accurate methodology she would expect him to obtain a result lower than the one she had obtained.  This is because blood alcohol concentrations are not completely stable even in preservatised blood of the type involved in this and other land transport cases.   Most land transport blood samples lose alcohol during storage.  This loss varies from sample to sample and is usually very small on the time scale of hours and days, but it usually amounts to several milligrams per 100 millilitres over a period of several months.  Ms McGavin said:

This is  a  well  known  phenomenon  and has been the subject  of  several publications in international scientific literature.  If the private independent analysis of Ms B  ’s second sample took place on or about 26 January

2002, there is a three and a half month delay between the time I performed my analysis and the time of the independent analysis.  In this time I would expect a significant drop in the blood alcohol concentration of each blood sample taken from Ms B  .   Studies performed in my laboratory have shown that the difference between 81 and 77 mg per 100 ml, which is 4 mg per 100 ml, is well within the range of expected blood alcohol concentration changes for a 3½ month period.

[9]      On cross-examination she confirmed that a loss of 4 milligrams over such a period would occur in only approximately 20% of cases.

[10]     Mr Rory Shanahan gave evidence for Mrs B  .  He analysed a duplicate blood specimen on 26 January 2002.  He reported a result of 77 milligrams per 100 millilitres of blood.   He said that a fall off in the level of blood alcohol of the magnitude of 4 milligrams would occur in only 10% of cases.

District Court Judge’s decision

[11]     The  Judge  reviewed  the  evidence.    She  noted  defence  submissions  that because two separate results had been achieved, one above and one below the legal limit, this meant that the tests were not adequate to provide proof beyond reasonable doubt.   The Judge then proceeded to consider the evidence provided by way of certificate.  She directed herself that certificates are an exception to the hearsay rule and if the prosecution elects to call the maker of the certificate, there is no reason why the certificate itself is not also admissible.  She also directed herself that except as provided in s 79 of the Land Transport Act 1998, the certificate is sufficient evidence of such matters as are stated in the certificate, in the absence of proof to the contrary.  The standard of proof for ‘proof to the contrary’ was on the balance of probabilities.

[12]     The Judge then considered the evidence that had been put before her and concluded that the defence had not satisfied her on the balance of probabilities that it was more likely than not that the certificate was wrong.  She said:

I  have  evidence  which  agreed  upon  by  both  experts  that  there  can  be, number one, blood is volatile substance and number two, that in both of their studies there can be a fall off of the alcohol content in blood after time and that  each  of  their  recorded  checks  on  that  ends  up  roughly  similar proportions.  I am not satisfied on that evidence that the certificate has been proved to be more likely than not to be wrong and so accordingly I find the facts as far as the proof of the certificate aspect of this case to be that there is a certificate by an analysts who is an approved analyst that the proportion of alcohol in the  defendant’s blood  was  81  milligrams  of  alcohol  per  100 millilitres of blood and that certificate is proof to the necessary standard beyond reasonable doubt.

[13]   The Judge then ordered that Mrs B   pay a fine, Court costs and disbursements but, in view of the special circumstances, did not order a disqualification.

Grounds of appeal

[14]     The grounds of appeal are:

(i)       That the Judge misdirected herself as to burden and onus of proof, that the onus of proof remained upon the informant from beginning to end of the case and that that burden of proof was beyond reasonable doubt.

(ii)      Even if the burden and standard of proof was as articulated by the Judge, she erred in concluding that Mrs B   had not adduced ‘proof to the contrary’ sufficient to contradict the certified blood alcohol levels.

[15]     Mrs B   argues that if a 4 milligram fall off would occur in only 10 to

20% of cases, it was more likely than not that the explanation for the difference in results was error rather than a fall off in the alcohol in the samples.

Did the Judge err as to the burden and standard of proof?

[16]   In written argument neither party had accurately analysed the statutory provisions within which the Judge articulated in her decision.   Section 75 of the Land Transport Act 1998 provides:

(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.

[17]     Section 79 provides:

Circumstances in which certificate not admissible in proceedings

(1)      No certificate referred to in subsection (2) or subsection (3) or subsection (4) of section 75 (which certificates relate to the taking of a blood specimen by a [ ] medical practitioner or medical officer) is admissible in evidence in proceedings for an offence against this Act if the court, on application made by the defendant not less than 14 days before the hearing, orders that the [ ] medical practitioner or medical officer who gave the certificate ought to appear as a witness at the hearing.

(2)       No certificate referred to in section 75(5) (which certificate is given by an approved analyst and relates to the proportion of alcohol, a drug, or both, found to be in a blood specimen) is admissible in evidence in proceedings for an offence against this Act if -

(a)       Application has been made in accordance with section 74 for

1 part of the blood specimen to be sent to a private analyst; and

(b)       That part of the specimen has not been sent to the private analyst in compliance with the application; -

but this subsection does not apply in respect of a specimen destroyed under the authority of section 74(8) before the date of the application.

(3)       No  certificate  referred  to  in  subsection  (5)  or  subsection  (6)  of section 75 (which certificate is given by an approved analyst and relates to the proportion of alcohol, a drug, or both, in a blood specimen, or to the sending  of  1  part  of  a  specimen  to  a  private  analyst)  is  admissible  in evidence in proceedings for an offence against this Act if the court, on application made by the defendant not less than 14 days before the hearing, orders that, -

(a)       In the case of a certificate referred to in that subsection (5), the person who made the analysis or the approved analyst who gave the certificate ought to appear as a witness at the hearing; or

(b)       In the case of a certificate referred to in that subsection (6), the person who posted or delivered the part of the specimen, or the person who gave the part of the specimen to the courier, or the approved  analyst  who  gave  the  certificate  ought  to  appear  as  a witness at the hearing.

(4)       The court may not make an order under subsection (3) unless the application made by the defendant under that subsection is accompanied by

an affidavit, sworn by the private analyst who is specified in the defendant’s application under section 74, to the effect that, -

(a)       Since the date given to the private analyst as the date on which application was made under section 74 for the sending to the analyst of a blood specimen relating to the defendant, the analyst has not received any such specimen; or

(b)       The blood specimen received by the private analyst relating to the defendant -

(i)        Was not suitable for analysis; or

(ii)      Was suitable for analysis but, for specified reasons, that analysis was not carried out; or

(iii)      Was  suitable  for  analysis  and  that  analysis  was carried out but, for specified reasons, the results of the analysis are not available; or

(c)       The blood specimen received by the private analyst relating to the defendant has been analysed and found to contain,—

(i)        In the case of a defendant who was younger than 20 at the time of the commission of the offence, not more than

30 milligrams of alcohol per 100 millilitres of blood; or

(ii)      In any other case, not more than 80 milligrams of alcohol per 100 millilitres of blood; or

(d)       The blood specimen received by the private analyst relating to the defendant has been analysed and found to contain 20 milligrams or more of alcohol per 100 millilitres of blood more or less than the proportion of alcohol per 100 millilitres of blood specified in the certificate referred to in section 75(5).

(5)      Where a blood specimen is destroyed in accordance with section

74(8), that act does not affect the admissibility in proceedings of a certificate given in respect of the specimen by an approved analyst for the purposes of

this Act.

[18]     Counsel were in agreement in argument before me that s 79(1)(2)(3) & (4) do not apply to this case.  That concession is appropriate.  The fact that Ms McGavin was called to give evidence does not bring the case within the situation envisaged in s 79(4) where the analyst is required by order of the Court to give evidence.  No such order was made in this case.   In these circumstances the statement within the certificate as to the level of blood alcohol in the sample is conclusive evidence in the absence of “proof to the contrary.”

[19]     Where there is a defence challenge to the accuracy of the analysis without first obtaining an order that the analyst’s certificate is inadmissible, the burden upon the defendant to prove that the certificate is not accurate is “on the balance of probabilities” (refer Elson v Auckland City Council HC AK M816/76 18 February

1977, Barker J); Clark v Ministry of Transport HC AK AP296/86 18 December

1986, Barker J; Hilton v Police HC WG AP 105/01 23 August 2001, Goddard J).

[20]     It is therefore clear that the Judge was correct when she directed herself that unless  Mrs  B    was  able  to  prove  on  the  balance  of  probabilities  that  the certificate was incorrect, and that Mrs B  ’s blood alcohol reading was 80 milligrams or less, then the certificate was sufficient proof beyond reasonable doubt of a blood reading in excess of 80 milligrams.

Did the Judge err in finding that Mrs B   had failed to discharge the onus upon her?

[21]     It is clear that on the evidence produced at trial it was open to the Judge to find proof beyond reasonable doubt of the elements of the charge.  She had evidence that there was a four milligram difference in the reading between that recorded in the certificate and that obtained by the independent analyst some three and a half months later.   She also had the experts in agreement that a fall off in blood alcohol does occur over a period of time.  Ms McGavin said that in approximately 20% of cases, a fall off of up to 4 milligrams could occur.  Mr Shanahan said that that could occur in

10% of cases.   Further, Mr Shanahan said that there were only two possible explanations for the difference in testing results; one, a drop off in the level of blood alcohol caused by the time delay in the independent testing, or alternatively that either Ms McGavin or Mr Shanahan had been in error in their testing procedure.  It was therefore also relevant to her conclusion that there had been no challenge to the methodology adopted by Ms McGavin (nor had there been any challenge to the methodology adopted by Mr Shanahan).

[22]     The issue for the Judge was whether Mrs B   had established on the balance of probabilities that the difference was explicable by an error in the ESR’s testing methodology, rather than a fall off in the blood alcohol or an error on Mr

Shanahan’s part.   There was nothing in the evidence to suggest that it was more likely than not that the explanation for the difference was an error on Ms McGavin’s part.  It is not correct logic to say that because in only 10 to 20% of cases will a fall off of that dimension occur, that it is therefore more likely than not that the fall off was due to an error by Ms McGavin.  Even if one were to accept the logic that given that statistical ratio it is more likely that the difference is explicable by an error, then on the evidence produced by Mrs B   it was at least equally as likely that the error was that of Mr Shanahan’s.  In fact, on the evidence a finding was open to the Judge that it was more likely given the evidence produced by Ms McGavin herself as to the rigorous quality assurance procedures instituted by the ESR.

[23]     In these circumstances both grounds of appeal advanced by Mrs B   fail. The appeal is dismissed.

Winkelmann J