B v Police HC Nelson CRI 2007-442-17
[2007] NZHC 1420
•11 December 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI 2007-442-000017
BETWEEN B
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 10 December 2007
Counsel: T Bamford for Appellant
H J Boyd-Wilson for Respondent
Judgment: 11 December 2007
JUDGMENT OF WILD J
Introduction
[1] This is an appeal against a conviction for driving with excess blood alcohol by the District Court at Nelson on 1 October. The essence of the appeal is that misspellings of the appellant’s name on various of the forms and certificates adduced in evidence relieve the certificates of presumptive force and should have left the Judge with a reasonable doubt that the blood test result certificate relates to the appellant.
Background
[2] At the defended hearing in the District Court, the police officer read his brief of evidence by consent. He stated that on the evening of 16 June 2007 he was
conducting an alcohol checkpoint. He stopped a vehicle and spoke to the driver,
B V NEW ZEALAND POLICE HC NEL CRI 2007-442-000017 11 December 2007
who identified himself as B . The officer identified the driver, Mr B , as the appellant. The officer administered a passive breath screening test, which returned a fail result. He then required the appellant to undergo a breath screening test, which also produced a fail result. The officer required the appellant to accompany him to the police station for an evidential breath test, blood test or both.
[3] At the station, the officer advised the appellant of his rights under the Bill of Rights Act, and had the appellant sign the usual form, indicating his understanding of those rights. The appellant asked to speak to a lawyer and spoke to two lawyers in private. The officer then required him to undergo an evidential breath test, which produced a result of 449 micrograms of alcohol per litre of breath (against the legal limit of 400).
[4] The appellant, advised of the outcome of the evidential breath test, elected to proceed with a blood test. A medical officer was called and took a sample of blood. That sample was processed in the usual way: divided into two parts, each separately sealed in bottles, all as required by the Act. The officer stated that he posted the blood sample to ESR by registered post on 19 June – some three days later. The subsequent analysis certificate showed a proportion of 100 milligrams of alcohol per
100 millilitres of blood.
[5] Mr B ’s was the only breath testing exercise that the officer conducted that evening.
[6] There is no dispute that those testing procedures were carried out in accordance with the legislation, nor is there any dispute with the officer’s identification of the appellant as the driver (and only driver) he dealt with on the evening of the 16th of June. The difficulty arises in respect of the various different spellings of the appellant’s name that appeared on the forms and certificates.
[7] Six relevant exhibits were produced during the course of the officer’s evidence:
(1)Exhibit 1: The Bill of Rights form containing the advice of the appellant’s rights. That form records the appellant’s name as “John Henry B ”. The driver’s address is given as “16 Covent Drive, Nelson”. That form is signed at the bottom. The signature is unreadable but, importantly, it is the same signature that appears on later forms.
(2) Exhibit three: The evidential breath test result – the printout that is produced by the breath testing device. On that form, again, the name “John Henry B ” appears, although the writer has stumbled somewhat with the writing of the surname.
(3)Exhibit four: The advice of positive evidential breath test form, which is filled out by the police officer after the evidential breath test is conducted. That form records the name “John Henry B ” and is also signed at the bottom. The address given is “16 Covent Drive”. The signature is the same as that which appears on the Bill of Rights advice form.
Up to this point, everything proceeded without error. The problems begin with the next exhibit:
(4) Exhibit five: The blood specimen form. That form records the driver’s consent to the giving of a blood sample and is completed, variously, by the apprehending officer, the medical officer and the driver. At the top of that form, the police officer has recorded the driver’s name as “John Henry Byran”. The ‘a’ is somewhat indistinct and the name might also be read as “Byron”. The same address as on previous forms – 16 Covent Drive – is given, and in addition the driver’s occupation is identified as a “company director”. That section of the form is signed by the driver, and again the signature is the same as that which appears on the previous forms. Further down the form, in the section to be completed by the medical officer, the driver’s name is repeated but this time is clearly spelled “John Henry
Byron”. The police officer accepted that the medical officer completed her section of the form after the appellant had signed his part of the form.
The police officer was questioned as to the variations in the spelling of the appellant’s name. He explained that the appellant’s name was unusual and that he had made an error when he recorded it on his check list, spelling it as “Byran” rather than “B ”. He subsequently corrected the error on the advice of positive evidential breath test form but the error re-emerged in the subsequent forms. When asked why he had made such a mistake, the officer replied that he had had a “senior moment”.
(5)Exhibit 6: The blood specimen medical certificate. That certificate records the declaration of the medical officer that she took a sample of venous blood from the person named in the certificate and that she divided that sample in accordance with the Act and handed the samples to the police officer. At the bottom right of the form appear the driver details.
Upon careful examination of that form, it would appear that it may have been filled in by both the police officer and the medical officer. It appears that the medical officer, Ms Judson, used a black pen and wrote her name at the top of the form, crossed out an inapplicable section of the declaration and signed her name at the bottom left. She also recorded her name at the bottom right of the form, as well as the time and date. The police officer’s name – D Thompson – also appears on the form but in blue pen rather than black. The driver details are also written in blue pen, and record the driver’s name as “John Henry Byran”. Again, the ‘a’ is somewhat indistinct and the name might be read as “Byron”. The driver’s occupation is recorded as “company director” and his address as “16 Covent Drive, Nelson”.
(6)Exhibit 8: The ESR certificate of analysis. That certificate states that a blood specimen in a sealed bottle, taken from:
BYRON, John Henry
Company Director
16 Covent Drive
NELSON
was received and analysed. It was found to contain a proportion of
110 milligrams of alcohol per 100 millilitres of blood.
District Court decision
[8] The Judge identified the issue in the case as whether she was satisfied that the ESR certificate related to the blood sample taken from the appellant on the evening of 16 June.
[9] She referred to the reasonable compliance provision in s 64 of the Land
Transport Act and the decisions in Coltman v Ministry of Transport [1979] 1 NZLR
330 (CA) and Police v Orr HC PMN AP 16/98 February 1999. Those cases held that the reasonable compliance provision was capable of curing a failure to record the defendant’s correct name on the certificate. Coltman held that the important question in such a case was whether the error in the certificate was such as to raise a reasonable doubt about whether the certificate does relate to the blood of the defendant. The second question is usually whether the officer concerned in ascertaining the particulars has acted with reasonable care.
[10] The Judge accepted a degree of carelessness on the part of the officer, but accepted his explanation that the appellant had a somewhat unusual name.
[11] There was a further complication, in that the defence had produced evidence that a John Michael Byron had been convicted and sentenced very recently, within the same timeframe as the appellant, for drunk driving. The Judge was satisfied that there could not have been confusion as between the two defendants, however, as
John Michael Byron had been convicted of driving with excess breath alcohol rather than blood alcohol.
[12] The Judge expressed herself as satisfied beyond reasonable doubt that the ESR certificate related to the blood sample taken from the appellant. She referred to the consistency in first names, occupation and address, all of which are common to all the forms. She also referred to the fact that Mr B had signed various of the forms, including some of those with errors. This was a further point of commonality between the forms. The Judge therefore convicted the appellant.
Grounds of appeal
[13] The grounds of appeal pursued are:
a)That the Judge erred in placing significant weight on the incorrect finding that the appellant signed a number of forms without attempting to correct the error in the spelling of his surname, inferring that the error on the blood certificate could be attributed in some way to his failure.
b)The Judge failed to properly consider the evidence adduced in respect of one John Michael Byron, in that she did not consider that a person of this name might have been processed for driving with excess breath alcohol and a blood sample obtained from such person within the relevant time period and analysed by ESR.
c)The error in the use of the name “Byron” was made by the medical officer and the analyst and the learned District Court Judge failed to consider the clear absence of evidence from these two people that might properly have explained the error.
d)The Judge failed to place any weight on the fact that the blood specimen was stored in the police officer’s drawer for three days with the potential for a mix up to occur.
Decision
[14] The Judge relied primarily on Coltman in holding that the misspelling of the appellant’s name on the ESR certificate did not render it inadmissible for the purpose of proving the appellant’s blood alcohol level. Other examples where similar errors have been held not to relieve the certificates of evidential force include Gray v Police HC AK M 292/85 16 May 1985, Shannon v Police HC AK M 200/85 7 June
1985 and Police v Davidson DC AK CRN 8004011057 30 September 1998. Shannon is particularly relevant because, as here, the analyst’s certificate showed the wrong surname for the defendant but all the remaining particulars were accurate.
[15] A slight difficulty is that, since these cases were decided, the legislative scheme has changed. Coltman relied on the reasonable compliance provision to hold that the errors on the certificate did not prevent the prosecution from relying on the evidential presumption that a certificate in the proper form is deemed to be sufficient evidence of its contents unless the contrary is proved. At the time that case was decided, the evidential presumption was contained in s 58B of the Land Transport Act 1962 and the reasonable compliance provision was contained in s 58(2). Section
58(2) stated that the reasonable compliance provision applied to “any of the provisions of s 58A and 58B of this Act”.
[16] Under the present Act, the evidential presumption relating to blood specimen certificates is s 76, which provides:
76 Presumptions 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:
(b)Every approved analyst who signed a certificate referred to in section 75(5) was duly authorised to sign it:
(c)If the bottle in which a blood specimen (or part of a blood specimen) was placed was received by a medical practitioner or medical officer in a sealed blood specimen collecting kit, the bottle 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.
[17] The reasonable compliance provision is s 64(2), which provides:
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.
[18] For some reason, when the new legislation was promulgated, s76 was excluded from the ambit of the reasonable compliance provision. Given that Coltman was decided on the basis of the application of the reasonable compliance provision to the evidential presumption that is now s 76, it is arguable that it is no longer good law.
[19] Becroft and Hall’s Transport Law suggests that the reasonable compliance provision can still apply to the analyst’s certificate insofar as those certificates are generated under s 75, to which the reasonable compliance provision does apply. Section 75 relevantly provides, as regards the ESR analyst’s certificate:
75 Certificates 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.
…
(5)This section also applies to a certificate purporting to be signed by an approved analyst and certifying that—
(a)A blood specimen in a sealed bottle was, on a specified date, delivered to an approved analyst (or a person employed by an approved laboratory and approved for the purpose by an approved analyst) for analysis, and was delivered by registered post or personal delivery or delivery by courier; and
(b)On analysis of the blood specimen by an analyst specified in the certificate, a specified proportion of alcohol or of a drug, or both (as the case may be), was found in the specimen; and
(c)No such deterioration or congealing was found as would prevent a proper analysis.
[20] Section 75 cures the errors in the certificates here. It is, in effect, a statutory exception to the hearsay law, in that it allows the prosecution to produce a series of certificates in the absence of calling the authors of those certificates to give their evidence to the Court. Section 75 gives presumptive evidential force to the certificates enumerated therein, which include the blood specimen medical certificate (subsection (2)) and the ESR analyst’s certificate (subsection (5)). It is of course open to the defence to adduce evidence rebutting the contents of those certificates.
[21] Section 76 goes even further, providing that if a s 75 certificate names a person having the same name, address and occupation as the defendant as the person from whom the blood specimen was taken then that is presumed to be the case unless the contrary is proved. Thus, s 76 can be called upon to provide presumptive force to an ESR certificate that names the defendant even if the chain of evidence supporting that certificate is broken. All that is required to establish the defendant’s blood alcohol level at the relevant time is an ESR certificate that properly names the defendant, even where the previous certificates are absent or flawed in some respect. Where such a certificate is put in evidence, it is for the defendant to rebut it.
[22] In the present case, there was no need to rely on the s 76 presumption because the police officer was able to give evidence that supported the conclusion that the blood specimen received and analysed by ESR was that taken from the appellant on 16 June. It is not a case in which all the prosecution was able to offer was an analyst’s certificate, unsupported by a chain of other certificates establishing the provenance of the blood specimen. If that was all the prosecution were able to put in evidence then it would be necessary to call on the s 76 presumption. But given that the certificates provide a chain of identification that follows all the way through to the ESR certificate, it is sufficient to simply rely on s 75 and the reasonable compliance provision as it applies to that section.
[23] Consideration of the documentary exhibits demonstrates beyond any doubt that the ESR certificate related to the blood specimen taken from the appellant on 16
June. There are a number of points of commonality between the documents. First, the Bill of Rights advice form, the evidential breath test result form and the advice of positive evidential breath test form identified the appellant’s correct name (both surname and first names). The Bill of Rights form and the advice of positive evidential breath test form also gave the appellant’s address as 16 Covent Drive. The signatures on those two forms are also the same.
[24] On the blood specimen form the appellant’s surname is incorrectly given but his first names are correct. His surname is spelled as “Byran” and “Byron” by the police officer and the medical officer respectively. However, the correct address is recorded – 16 Covent Drive – clearly linking this form to the previous forms. The signature is a further point of commonality. This form also records for the first time the appellant’s occupation as a “company director”.
[25] The blood specimen form also records the appellant’s surname incorrectly. However, the correct first names are given, as well as the correct address and occupation.
[26] Finally, the ESR certificate records the surname incorrectly, but gives the correct first names, address and occupation – that is to say, the names, address and occupation that appear on all the foregoing documents.
[27] Given all these points of commonality between the documents, there is no doubt that the blood specimen received and analysed by the ESR was the same sample as that which was taken from the appellant on the evening of June 16. This is not a case in which the ESR certificate is unsupported by the foregoing documents, such that there is no way to know whether it refers to the correct person. Rather, there are a number of clear indications that all the forms refer to the same person and the same blood specimen.
[28] The only point of difference between the forms is the three versions of the appellant’s surname that are given: “B ”, “Byran” and “Byron”. However, the
officer was able to explain how the error had occurred, and it is also obvious from the forms themselves where the ESR analyst has taken the name “Byron” from. The police officer initially noted the appellant’s name as “Byran” and accidentally reverted to that spelling after having earlier corrected himself. His handwriting is slightly indistinct – the tail of the ‘a’ is not obvious – and so the medical officer has read “Byran” as “Byron”, hence the further confusion. The ESR analyst has fallen into the same confusion. The Judge was right to be satisfied beyond reasonable doubt that the forms all refer to the same person, because it is apparent how the error occurred and progressed.
Specific grounds of appeal
[29] The first ground of appeal is that the Judge attributed the error to the appellant by holding that he signed the forms without attempting to correct the mistake. This ground of appeal is misconceived. The Judge was not attributing the error to the appellant, rather she was simply noting that the signature provided a further point of commonality between the documents.
[30] The second ground is that the Judge did not properly consider the evidence relating to John Michael Byron, who had been convicted of excess breath alcohol during a similar timeframe. The appellant says that it is possible that that person had a blood sample taken which became confused with the appellant’s. The Judge was correct to accord that evidence little weight. First, there was more than sufficient evidence supporting the connection between the ESR certificate and the appellant. Secondly, because John Michael Byron was convicted of excess breath alcohol there could not have been a blood specimen. Had a blood specimen been taken, that would have superseded the earlier evidential breath test, and the prosecution would necessarily have proceeded on the blood result. Accordingly, the fact that he was convicted of excess breath alcohol means there was not a blood specimen to confuse.
[31] The third ground of appeal is that the officer failed to call evidence from the medical officer and the ESR analyst explaining the error they made with regard to the appellant’s name. My view is that that evidence was not material: it is obvious
from the face of the documents how the error occurred. The officer’s explanation supports that account.
[32] The fourth ground of appeal alleges that the chain of custody was broken by the officer leaving the blood specimen in his drawer for three days. Section 74(3) requires that the officer must, within seven days after the date on which the specimen was taken, “deliver or cause to be delivered (whether by courier post or otherwise), or post by registered post or cause to be posted by registered post” both parts of the blood specimen. The Court of Appeal held in Aualiitia v Ministry of Transport [1983] NZLR 727 that an officer can either undertake this obligation himself or make use of an office system designed to achieve this purpose. Many police stations make use of a locked cabinet or safe in which blood specimens taken in the EBA suite are placed. The safe is then regularly cleared by a designated officer. Thus the chain of custody is established and there is no possibility of a mix-up: see, for example, Crilly v Police HC WN CRI 2005-485-137 3 March 2006 at [15].
[33] In the present case, the evidence as to the chain of custody is sparse. The officer stated that he kept the specimen in his drawer for three days and that he was on duty for most of that time. He also stated that it was forwarded to the laboratory on 19 June, but he did not identify by whom. That is not ideal, however I do not think that the chain of custody is broken. There is no suggestion that the blood specimen might have been interfered with during the time it was in the officer’s drawer. In relation to its removal and posting, the officer was able to produce the registered post receipt. Finally, there are the points of commonality between the ESR certificate and the foregoing forms and their common identification of the appellant. In my view that is sufficient to establish the chain of custody.
Result
[34] None of the grounds of appeal succeeds. The appeal is accordingly dismissed. The appellant’s conviction for driving with excess blood alcohol stands.
Solicitors:
Tony Bamford, Nelson for Appellant
Crown Solicitor, Tasman for Respondent
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