Barr v Police HC Christchurch CRI-2008-409-000047

[2008] NZHC 2505

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2008-409-000047

LEROY JOHN BARR

v

POLICE

Hearing:         17 July 2008

Appearances: A J Bailey for Appellant

P Shamy & S L Litt for Crown

Judgment:      14 August 2008

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against sentence.

[2]      It   raises   a   narrow   legal   issue,   but   one   with   considerable   practical ramifications.

[3]      On 5 March 2008, the appellant, Mr Barr, was convicted in the District Court of one charge of driving with excess blood alcohol contrary to s56 of the Land Transport Act 1998.  He was fined $600, ordered to pay court costs of $130, medical expenses of $102.60, an analyst fee of $93, and disqualified from driving for six

months.

BARR V POLICE HC CHCH CRI-2008-409-000047  14 August 2008

[4]      Mr Barr now appeals the sentence on the grounds the sentencing Judge had no jurisdiction to order him to pay the medical expenses of $102.60.

[5]      The medical expenses represent the costs of the doctor who was called out to take the blood sample from Mr Barr, he having exercised his election to have one taken.  The expenses are payable in the first instance by the police to the doctor, but if the sample returns a positive test result the police invariably seek reimbursement of the expenses from the defendant.  The medical expenses are a different item from the analyst fee which Mr Barr was also ordered to pay.  The analyst fee is the cost of analysing the sample, as distinct from the taking of it.

[6]      The order to pay medical expenses has been a standard order routinely made by District Court Judges throughout the country for very many years.  Despite that, this appeal appears to be the first occasion on which there has been a legal challenge to the jurisdiction.

[7]      At the hearing, there was some argument before me as to whether it was fair and reasonable for defendants to have to pay the medical expenses when all they were doing was exercising their statutory rights to have a blood sample taken.  Such policy considerations are, however, largely irrelevant.  They are for Parliament, and not this Court.  The Court’s focus must be on ascertaining the source of the Judge’s authority.   The District Court is a creature of statute, and it follows the power to make the order must be derived from a statutory provision.  Otherwise, the power does not exist, and the order to pay the medical expenses was unlawful, as the appellant claims.  This is not a matter that could properly come within the Court’s limited implied jurisdiction.

[8]      It was common ground there were only four possible sources of statutory authority:

(i) the Costs in Criminal Cases Act 1976;

(ii) section 67 of the Land Transport Act 1998;

(iii)section 32 of the Sentencing Act 2002 (the power to impose a sentence of reparation);

(iv) the Court’s power to impose a fine.

Costs in Criminal Cases Act 1976

[9] Section 4(1) of the Costs in Criminal Cases Act provides:

Where any defendant is convicted by any Court of any offence, the Court may, subject to any regulations made under this Act, order him to pay such sum as it thinks just and reasonable towards the costs of the prosecution.

[10]     At first blush, that would seem capable of covering the medical expenses at issue here.  However, the word “costs”  is defined in the Act as:

… any expenses properly incurred by a party in carrying out a prosecution, carrying on a defence, or in making or defending an appeal

[11]     The definition means it is only costs incurred in carrying out a prosecution etc that are recoverable under the Act and its regulations.  The use of the word “in” has been held by this Court to have the effect of limiting recoverable costs to costs incurred after a decision to prosecute has been made; see ARCIC v Lovell [1995] NZAR 97. I agree with that analysis, as indeed does the respondent. The medical expenses Mr Barr was ordered to pay were incurred prior to any prosecution being initiated and accordingly, on the authority of Lovell, are not recoverable under the Costs in Criminal Cases Act.

Section 67 of the Land Transport Act 1998

[12]     Section 67 of the Land Transport Act provides:

67       Blood test fee

(1)       A person who, having undergone a blood test, is convicted of an offence against any of sections 56(2), 57(2), 58, 61(1)(b), 61(2), and 62 is liable to pay the blood test fee that applied on the day on which the offence was committed; and the blood test fee is deemed to be a fine imposed on the conviction of the person for the offence.

(2)      The Minister of Police may from time to time, by notice in the

Gazette, prescribe a blood test fee for the purposes of this section.

[13]     In accordance with subs 2, the Minister of Police has gazetted a Notice.  The prescribed blood test fee is currently set at $93: Land Transport (Blood Test Fee) Notice 2001.  That figure was the analyst fee which Mr Barr was also ordered to pay and which he accepts is payable.

[14]     Section 67 does not refer to “medical expenses”.  However, the respondent argues the phrase “blood test fee” is capable of encompassing both the analyst’s fee and the medical expenses. According to the respondent, the fact the Minister “may” prescribe a blood test fee does not mean the section is restricted to the figure notified in the Gazette.

[15]     I disagree.  In my view, s67 permits of only one construction and that is that the “blood test fee” mentioned in subs 1 is the same “blood test fee” mentioned in subs 2.  A doctor’s charges are likely to differ.  Yet, subs 1 talks about being liable to pay “the blood test fee that applied on the day on which the offence was committed”. The wording and structure of the section is simply not apt to cover medical expenses.

[16]     In  my  view,  the  jurisdiction  conferred  by  s67  is  clearly  limited  to  the analyst’s fee.  It does not confer jurisdiction to order medical expenses.

Section 32 of the Sentencing Act 2002

[17]     In its submissions, the respondent suggested the medical expenses were in essence an order for reparation and so accordingly authorised by s32 of the Sentencing Act.

[18]     However, under s32(1) a sentence of reparation may only be imposed where a person has suffered loss, damage or emotional harm “… through or by means of an offence…”.  Costs incurred in the course of an investigation do not arise through or by means of the offence itself and accordingly cannot, in my opinion, be the subject of a reparation order.  This conclusion is supported by decisions such as R v Neave CA206/88, 9 December 1988 (money paid by an undercover police officer for the

purchase of drugs not recoverable by way of reparation order), and Ross v R HC Hamilton AP98-96, 17 February 1997 (cost of tracing phone calls not recoverable). The medical expenses are in principle in exactly the same category.

Were the medical expenses a fine?

[19]     There is no question the District Court has power under the Land Transport

Act to impose a fine on a person convicted of driving with excess blood alcohol.

[20]     The respondent therefore argues the medical expenses were a fine, and as such within the Court’s jurisdiction.

[21]     Mr Bailey, for the appellant, however submits the medical expenses are not in the nature of a fine, the proper purpose of which he submitted is to penalise or punish, not reimburse the police for their costs.  A person should not be punished for exercising their statutory right to seek a blood sample.   To say medical expenses come within the definition of a fine is therefore wrong in principle, and would mean the police are entitled to call any cost a fine.  That would make a nonsense of the Costs in Criminal Cases legislation and open the floodgates.

[22]     The respondent’s argument certainly raises some interesting issues.   Quite apart from anything else, it does not accord with the actual practice of the District Court in that District Court Judges commonly distinguish between the fine and the medical expenses, as the Judge did in this case.  The Judge in the present case clearly treated the fine and the medical expenses as separate and distinct items.  He did not take the medical expenses into account in calculating the amount of the fine.  If the respondent’s argument were correct, it would also mean, for example, that a person who has been sentenced to a term of imprisonment for drink driving and ordered to pay medical expenses has been sentenced unlawfully.  For, s19(3) of the Sentencing Act 2002 prohibits a Court from imposing a fine in conjunction with a term of imprisonment for an offence unless the enactment creating the offence so authorises which the Land Transport Act does not ( See S56 Land Transport Act.)

[23]     I note too for example in a decision Police v Joblin-Hall HC Wanganui AP5/03, 29 May 2003, Heath J ordered analysts fee and medical expenses to be paid “instead” of a fine, expressly stating at [15]:

... I intend to exercise my discretion on sentence against the imposition of a fine and the ordering of Court costs.

[24]     Counsel  for  the  respondent  acknowledged  the  sentencing  Judge  had  not treated the medical expenses as a fine, but submitted that fact of itself was no bar to having it considered as a fine.

[25]     The word “fine” is not defined in either the Sentencing Act or the Land

Transport Act.

[26]     It is however defined in s79 of the Summary Proceedings Act 1957. [27]      Section 79 defines “fine” in the following terms:

(a)      Any sum of money adjudged or ordered to be paid by a conviction or order, whether described as a fine, or as costs, expenses, fees, or otherwise:

(b)      Any prescribed costs, expenses, or fees payable in respect of the enforcement of any fine as defined in paragraph (a) of this definition:

[28]     This definition was recently held by the Court of Appeal to apply to the word “fine” where it appears in s90 of the Summary Proceedings Act (R v Wright, CA45/06, 6 July 2006).

[29]     Significantly for present purposes, the definition specifically includes “costs, expenses and fees” and so would clearly be capable of encompassing medical expenses.  The respondent relies on this definition and says Parliament must have intended the word “fine” to have this same meaning wherever it appears, not only in other provisions of the Summary Proceedings Act (as Wright held), but also where it appears in other enactments such as the Land Transport Act and the Sentencing Act. Mr Shamy urged me to adopt a purposive approach, submitting Parliament could not have intended the taxpayer to bear the burden.   In itself, the fact the cost was incurred as the result of the exercise of a right did not, he submitted, make recovery

inherently unfair, especially as the expenses were only payable on conviction.   A

driver is not required to pay anything if the sample is negative.

[30]     In my view, the definition of “fine” in the Summary Proceedings Act is not applicable.  I reach that conclusion for the following reasons:

(i)the definition in the Summary Proceedings Act is for the different purpose of enforcement proceedings.   An enlarged definition of “fine” is understandable in that context.

(ii)the existence of s67 of the Land Transport Act which deems the blood test fee to be a fine.  A blood test fee is as much an expense as the medical expenses.   Thus, if the Crown’s argument were correct, the blood test fee would also automatically be a fine and so there would be no need for any special deeming provision.   I have considered whether  the explanation  for  s67  is  that  it  was  somehow  needed  to empower the gazetting of the Ministerial notice, something not  considered  necessary  in  the  case  of  medical  expenses which presumably vary from doctor to doctor.   However, in my view that cannot be a sufficient justification for a distinction or explain why deeming was necessary in one case and not the other.   I regard the existence of s67 as a very telling point against the respondent’s interpretation.   Section

67 is inconsistent with the suggestion Parliament must have intended medical expenses to fall within the definition of a fine.

(iii)the arguments raised by Mr Bailey about the nature of a fine and the existence of the Costs in Criminal Cases Act. Parliament would not have bothered with a separate legislative regime about costs if the Crown were correct. Admittedly, the medical expenses are in a slightly different category than most prosecution costs because they have been incurred directly as

a result of a request by the defendant themselves.  However, I do not think that in itself significantly undermines Mr Bailey’s general points. After all, the blood test fee is also the result of

a deliberate choice by the defendant.

Conclusion

[31] My view is the medical expenses were a cost. They are not a fine, nor are they reparation. If the Costs in Criminal Cases Act does not apply, then a deeming provision, such as exists in the case of the blood test fee, was necessary. There is no such provision and accordingly no jurisdiction to order payment of the medical expenses.

[32]     The  appeal  is  therefore  allowed  and  the  order  to  pay  medical  expenses quashed.

Solicitors:

A J Bailey, Christchurch

Crown Solicitor, Christchurch