Booker v The Queen
[2019] NZCA 149
•9 May 2019 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA671/2018 [2019] NZCA 149 |
| BETWEEN | TERRY JAMES BOOKER |
| AND | THE QUEEN |
| Hearing: | 3 April 2019 |
Court: | Gilbert, Wylie and Thomas JJ |
Counsel: | Appellant in Person |
Judgment: | 9 May 2019 at 3 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Thomas J)
Introduction
After consuming alcohol, Terry Booker drove his car and collided with another motor vehicle. He was subsequently assaulted when he was sitting in his car parked on the roadside. He collided with other vehicles when he attempted to drive away. He was taken to hospital where a medical officer informed him he was required to provide a blood specimen. He refused.
A jury found Mr Booker guilty of one charge of refusing to permit a medical officer to take a blood specimen, he having been convicted at least twice previously of a related qualifying offence.[1] Prior to trial, he had pleaded guilty to careless driving.
[1]Land Transport Act 1998, ss 60(1)(c), 60(3) and 73.
Mr Booker appeals his conviction.
Grounds of appeal
The primary issue identified in the notice of appeal was whether the trial Judge correctly answered a jury question as to whether a person must be conscious in order to be guilty of the offence.
Mr Booker represented himself on appeal and in his oral submissions he identified two further issues:
(a)In the circumstances were the police entitled to follow him to hospital and seek a blood specimen?
(b)Did his treatment infringe his right to dignity? We treat this as a submission that Mr Booker’s rights, pursuant to the New Zealand Bill of Rights Act 1990, were infringed. In particular his rights to refuse to undergo medical treatment and not to be subject to medical or scientific experimentation.[2] The right not to be subjected to degrading treatment is also potentially engaged.[3]
The trial
[2]New Zealand Bill of Rights Act 1990, ss 11 and 10.
[3]Section 9.
The essential issue at trial was whether Mr Booker refused to permit a medical officer, Sylvia Hobson, to take a blood specimen as required by s 73 of the Land Transport Act 1998 (the Act).
The background facts were not in dispute. On the evening of Friday 27 October 2017 at around 8.00 pm, Mr Booker was driving his motor vehicle on the forecourt of a petrol station in Wellsford.[4] He reversed his car at low speed into a Mitsubishi ute which was also on the forecourt. Following a conversation with the driver of the ute, Mr Booker drove a short distance and parked on the side of the road. Mr Booker was then approached by two men and repeatedly punched to the head while still sitting in the driver’s seat. Mr Booker attempted to drive away but collided with other vehicles.
[4]These background facts were contained in a statement of agreed facts provided to the jury pursuant to the Evidence Act 2006, s 9.
An ambulance arrived at the scene at around 8.30 pm. Mr Booker had a laceration to his right earlobe and forehead, and bumps, bruises and swelling on his face. He was taken to the North Shore Hospital.
There were five Crown witnesses. The witnesses most relevant to the issue at trial were Constable Coombridge, who was present at the hospital when Mr Booker was required to provide a blood sample, and Ms Hobson, who required it.
The “blood specimen medical certificate” completed in respect of Mr Booker was produced in evidence by Ms Hobson. Part B of the certificate required completion by the health practitioner in immediate charge of Mr Booker, Dr Armstrong. It recorded that he had taken, or caused to be taken, a specimen of blood in accordance with the Act; that he had reasonable grounds to suspect Mr Booker was in hospital as a result of either an accident or incident involving a motor vehicle, or an injury arising subsequent to such an accident or incident; and, prior to taking blood, he had examined Mr Booker and was satisfied taking the specimen would not be prejudicial to his proper care or treatment.
Question 5 of Part B of the certificate provided two options being:
EITHER
(a)Before the blood specimen was taken from the person, he or she was told that it was being taken under s 73 of [the Act] for evidential purposes
OR
(b)At the time when the blood specimen was taken from the person he or she was unconscious. The person was notified, as soon as practicable, by a written notice given to him or her, that a blood specimen had been taken, for evidential purposes under s 73 of [the Act].
(Delete (a) or (b) as appropriate). …
Option (b) was deleted. Dr Armstrong’s signature appeared on Part B of the certificate.
Constable Coombridge’s evidence was that, once the doctor had completed the paperwork, he, Constable Coombridge, told Mr Booker that a blood sample was to be taken from him. Mr Booker replied that he was not going to provide one. Constable Coombridge conveyed this to Ms Hobson.
The Crown case essentially relied on Ms Hobson’s evidence. She said she asked Mr Booker whether it was okay to take the blood test; Mr Booker refused; she asked him again in order to clarify; again, he said no.
Part C of the certificate, which must be completed by the medical officer taking the blood specimen, showed “NO” circled as to whether Mr Booker, as the driver, consented to his blood being taken. Across this section of the form in handwriting was written:
Refused to have blood test taken SKH
Ms Hobson confirmed she signed Part C of the certificate.
The defence produced Mr Booker’s discharge letter from the hospital to his general practitioner which noted the primary diagnosis of a head injury and a number of secondary diagnoses, including lacerations. It recorded that Mr Booker had been involved in a car accident and assaulted by another person who hit him repeatedly about the head and neck.
Mr Booker elected to give evidence at trial. He accepted he had been drinking that night but said he could not remember what happened at the hospital. The following exchange took place in evidence in chief:
Q. You wound down the window and the assault started. Now in an attempt to drive away or to get away from the assault you drove forward and collided with other vehicle or vehicles?
A. Um, I, it was in a, parked, say they were parked along the side of the road like that. So I was trying to go out like that but someone had blocked the exit and I believe it was one of them had blocked the exit, I don’t know. But then so the car rode up onto that, a lot of grinding noises, and that’s essentially the last thing I remember, while he was bashing me through the window, you know.
Q. If that’s the last thing you remembered, what’s the first thing you remember the day after?
A. Waking up in the North Shore Hospital and I had to asks the nurse where I was.
Q. When?
A. The next day I presume.
Q. Do you have any recollection what transpired at the North Shore Hospital the evening of the 27th?
A. No, not a conscious one, no, no I don’t have one, no.
In cross-examination, it was put to Mr Booker that he had been drinking and did not want to provide a blood sample. Mr Booker said he could not remember. The evidence of Mr Mason (who had assisted Mr Booker after the assault and called the ambulance) was also put to Mr Booker. Mr Mason’s evidence was that Mr Booker appeared not to be really aware of what was happening and was slurring his speech. The Crown referred to this evidence to support the proposition that Mr Booker was drunk. Similar evidence had been given by Richard Goldsmith, who told the jury that he provided first aid to Mr Booker, who he described as inebriated. He said Mr Booker had slurred speech but freely told him what had happened.
The Crown also referred Mr Booker to evidence of his conversations that night with a police constable and Ms Hobson. It was put to Mr Booker that they were quite coherent conversations. Mr Booker did not, however, accept that he refused to provide a blood sample, although later acknowledged it was possible.
The defence appeared to be that it was not clear what had happened at the hospital that night. In particular, whether a blood sample was in fact taken, and if so, by whom, when and why. The defence focused on what it claimed were discrepancies between the blood specimen medical certificate and notes in the medical records which indicated blood had been taken at some stage during Mr Booker’s stay in hospital. As defence counsel put it in his closing address to the jury:
If there is doubt remaining in your minds of what happened, or whether blood was taken or was not taken, then I would suggest Mr Booker is entitled to that benefit, and he should be acquitted.
In his summing up, Judge Field took the jury through a question trail. He identified the issue raised by the defence of whether the blood specimen was taken and discussed the relevant evidence. The Judge’s summing up did not address the question of whether or not Mr Booker was conscious at the time he refused to provide a blood specimen.
During their deliberations, the jury asked the following question:
Is it necessary for the Crown to prove mens rea? Does the defendant have to have consciously and wilfully refused to permit the medical officer to take a blood specimen in order for the defendant to be found guilty of the offence?
The response was, “Yes”.
Analysis
Section 73 of the Act provides:
73 Who must give blood specimen in hospital or medical centre
(1) A person who is under examination, care, or treatment in a hospital or medical centre must permit a blood specimen to be taken from the person by—
(a) the health practitioner who is in immediate charge of the examination, care, or treatment of the person; or
(b) another health practitioner or a medical officer.
(2) If a person under examination, care, or treatment in a hospital or medical centre is unconscious, a blood specimen may be taken from the person under this section by—
(a) the health practitioner who is in immediate charge of the examination, care, or treatment of the person; or
(b) another health practitioner or a medical officer.
(3) The health practitioner who is in immediate charge of the examination, care, or treatment of the person in a hospital or medical centre—
(a) may take a blood specimen or cause a blood specimen to be taken by another health practitioner or a medical officer; and
(b) must either take a blood specimen or cause a blood specimen to be taken by another health practitioner or a medical officer, if an enforcement officer requests him or her to do so,—
whether or not the person has consented to the taking of the specimen and whether or not the person is capable of giving consent.
(4) If the specimen originally taken is insufficient for the purposes of the relevant blood specimen collecting procedure, the health practitioner who is in immediate charge of the examination, care, or treatment of the person may take or cause to be taken by another health practitioner or a medical officer a further blood specimen (which further specimen is for the purposes of this Act to be treated as a part of the original blood specimen taken from the person), whether or not the person has consented to the taking of the specimen and whether or not the person is capable of giving consent.
(5) Despite subsection (3), a blood specimen may be taken under any provision of this section only if the health practitioner—
(a) has reasonable grounds to suspect that the person is in the hospital or medical centre as a result of—
(i) an accident or incident involving a motor vehicle:
(ii) an injury or a medical condition arising subsequent to an accident or incident involving a motor vehicle; and
(b) has examined the person and is satisfied that the taking of the blood specimen would not be prejudicial to the person’s proper care or treatment; and
(c) tells the person (unless the person is unconscious) that the blood specimen is being or was taken under this section for evidential purposes.
(6) If a blood specimen is taken under this section from a person who is unconscious, the health practitioner or medical officer who took the specimen must notify the person in writing as soon as practicable that the specimen was taken under this section for evidential purposes.
(7) No civil or criminal proceedings may be taken against the Crown, a district health board, or any other person in respect of the taking of a blood specimen under this section, or in respect of the sending of a blood specimen to an approved laboratory, on the ground of lack of consent of a person whose consent to the taking of the blood specimen would have been otherwise required by law if this section had not been enacted.
(8) Nothing in subsection (7) applies to any proceeding on the ground of any negligent act or omission in the taking of a blood specimen.
Issue as to whether Mr Booker was conscious
The jury knew from the Judge’s summing up and question trail that they must be satisfied beyond reasonable doubt that Mr Booker refused to permit the blood specimen to be taken. Mr Booker had given evidence and said he had no recollection of that happening. The jury heard from other witnesses about conversations they had with Mr Booker prior to Ms Hobson’s request and evidence from Ms Hobson herself. The jury was entitled to accept that evidence.
The jury was aware, because they had raised the issue with the Judge, that they had to be sure Mr Booker was conscious at the time he refused to allow the blood specimen to be taken.
The jury was correctly directed on this issue and there is no merit in the appeal on this ground.
Qualifying requirements
We interpret Mr Booker’s submission that the “qualifying requirements” of s 73 of the Act were not met to relate to the requirements in s 73(5)(a). We say that because Mr Booker focused on the fact he was assaulted after his first collision at the petrol station and repeatedly punched to the head. It was after the assault that Mr Booker attempted to drive away but collided with other vehicles.
On this basis, it would appear Mr Booker’s argument was that he was in hospital as a result of the assault rather than as a result of an accident involving a motor vehicle.
Part B of the Blood Specimen Medical Certificate, signed by Dr Armstrong, included the statement:
3)When the blood specimen was taken, I had reasonable grounds to suspect that the person was in hospital or in a doctor’s surgery as a result of an accident or an incident involving a motor vehicle or an injury or medical condition arising subsequent to an accident or incident involving a motor vehicle.
(Emphasis original.)
Under s 75 of the Act, such a certificate is proof of its contents unless the defendant can show that the contents are untrue. The burden of proof is on the defendant to the standard of the balance of probabilities.[5] This aspect of the certificate was not challenged at the trial. In those circumstances it was proof the qualifying requirements of s 73 were met.
[5]R v Harrison [2015] NZCA 484 at [36].
In any event, the requirement under s 73(5)(a) is that the health practitioner had reasonable grounds to suspect that Mr Booker was in hospital, either as a result of an accident or incident involving a motor vehicle, or an injury arising subsequent to it. Constable Coombridge told the jury he was aware Mr Booker had just been involved in a vehicle collision. Ms Hobson described receiving a call from Police Communications requesting her availability to take a blood sample at the North Shore Hospital. She understood an ambulance was on its way from a car accident.
While it may be that Mr Booker was taken to hospital as a direct result of the injuries he sustained in the assault, rather than his careless driving, the information available to the police and health practioners that night provided reasonable grounds to suspect one or both limbs of s 73(5)(a) of the Act were met.
For these reasons, we are satisfied Mr Booker was properly required to provide a blood specimen pursuant to s 73 of the Act.
Bill of Rights issues
Mr Booker relies on his rights to refuse to undergo medical treatment,[6] not to be subject to medical or scientific experimentation[7] and not to be subjected to degrading treatment.[8] These rights have their origin in art 7 of the International Covenant on Civil and Political Rights (ICCPR) which provides:[9]
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
[6]New Zealand Bill of Rights Act, s 11.
[7]Section 10.
[8]Section 9.
[9]International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 19 December 1966, entered into force 23 March 1976).
The ICCPR often plays a part in outlining the circumstances in which the rights and freedoms contained in the New Zealand Bill of Rights Act can be justifiably limited.[10] That said, however, Mr Booker cannot rely on the New Zealand Bill of Rights Act to give him the right to refuse to provide a blood sample.
[10]Andew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [4.5.11]; and New Zealand Bill of Rights Act, s 5.
Parliament has enacted s 73 of the Act. Section 73(7) provides that no civil or criminal proceedings may be taken against the Crown or any other person on the ground there was no consent to the taking of the blood specimen when such consent would have been required were it not for s 73. These specific provisions prevail over the more general rights in the New Zealand Bill of Rights Act. Were that not the case, s 73, and other provisions requiring breath and blood specimens to be taken, would be unenforceable and convictions for the criminal offences created for any breach of this nature would be impossible.
This issue has been considered on a number of previous occasions and, as has previously been said:[11]
… the Bill of Rights guarantees are protective of what may truly be regarded as a deprivation of personal liberty. If the questions above were to be answered in the affirmative it would be a necessary consequence that the legislation providing for specimens of breath and specimens of blood is essentially invalid. In [Police v] Smith and Herewini [[1994] 2 NZLR 306] above and MOT v Noort [1992] 3 NZLR 260, and a myriad of other cases, the High Court and Court of Appeal has considered the breath and blood specimen legislation. In some cases the application of the legislation has been held to be invalid in a particular case but it has never been suggested, for obvious reasons, that the Acts of Parliament themselves are wholly invalid by reason of breach of provisions of the New Zealand Bill of Rights Act 1990.
[11]Pio v Police HC Rotorua AP43/94, 4 July 1995 at 3.
There is no merit in this ground of appeal.
We are satisfied there was no miscarriage of justice and accordingly the appeal against conviction must be dismissed.
Result
The appeal is dismissed.
Solicitors:
Crown Solicitor’s Office, Auckland for Respondent
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