Brown v Police

[2013] NZHC 2662

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-186 [2013] NZHC 2662

BETWEEN

ROSS BROWN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	9 September 2013
Counsel:	AJ Haskett for Appellant KC Francis for Respondent
Judgment:	11 October 2013

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 11 October 2013 at 3.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:             Meredith Connell, Auckland

BROWN v POLICE [2013] NZHC 2662 [11 October 2013]

Introduction

[1] Following a defended hearing before Judge Cunningham in the Manukau District Court, Mr Brown was convicted of one charge of driving with excess blood alcohol, contrary to s 56(2) of the Land Transport Act 1998 (the Act).  He was fined

$600, ordered to pay costs and disqualified from holding or obtaining a driver’s licence for a period of six months.

[2] Mr Brown appeals against his conviction on the ground that the prosecution failed to prove that a blood specimen was obtained.

Background

[3] At about 7.15 p.m. on 25 July 2012, Mr Brown was seen by Constable Nicholas Hargis leaving the carpark of the 1981 Bar on Great South Road, Manukau. He was driving erratically and, after following him for some distance, Constable Hargis signalled him to stop. He smelt alcohol on Mr Brown’s breath.

[4] Constable Hargis conducted a breath screening test which indicated he was over the legal alcohol limit for driving. He required Mr Brown to accompany him to the Manukau Police Station  where  an  evidential  breath  test  was  carried  out. Mr Brown failed the test. He then exercised his right to speak to a lawyer and subsequently elected to undergo an evidential blood test. A nurse, Sonya Curd, came to the police station. Constable Hargis watched while she took a blood sample from Mr Brown’s arm and placed the blood into two specimen jars. They were secured and labelled.

[5] On analysis the blood sample was found to have a blood alcohol level of 115 milligrams of alcohol per 100 millilitres of blood. The legal limit is 80 milligrams.

[6] Judge Cunningham rejected a defence argument that the prosecution had failed to prove that the evidential breath testing machine was current. That aspect of her decision is not challenged on appeal. She then considered a submission that the prosecution had not shown that the prescribed blood specimen collection procedure had been followed.  She rejected that submission and an associated submission that

the prosecution had failed to establish that both parts of the blood specimen had been delivered to an approved analyst. Judge Cunningham concluded that the blood collection procedure, the manner in which the blood specimen was dealt with and the analysis of the specimen were all dealt with in compliance with the requirements of the Act.

Relevant statutory provisions

[7] Section 56(2) of the Act, which creates the offence of driving with excess blood alcohol, provides:

56       Contravention of specified breath or blood-alcohol limit

...

(2) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.

[8]      “Blood specimen” is defined in s 2 of the Act as:

blood specimen means a specimen of venous blood taken in accordance with normal medical procedures.

[9] Section 75 is central to the appeal. It allows evidence of blood testing procedures to be proved by a certificate. Section 75 relevantly provides:

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.

(2)This section applies to a certificate purporting to be signed by a medical practitioner or medical officer and certifying that—

(a)a specimen of venous blood was taken by the practitioner or medical officer in accordance with the blood specimen collecting procedure specified in the certificate from a person named in the certificate; and

(b)for the purposes of the specified blood specimen collecting procedure,—

(i)the specimen was sufficient; or

(ii)the specimen was insufficient and the practitioner or medical officer took a further specimen; and

(c)in accordance with the specified blood specimen collecting procedure, the practitioner or medical officer kept the specimen in the appropriate container or containers (as applicable); and

(d)each such container was received by the practitioner or medical officer in a sealed blood specimen collecting kit; and

(e)the practitioner or medical officer handed each  such container to an enforcement officer named in the certificate.

...

[10] Section 75(2) was amended as from 5 November 2011. Section 75(2)(a) previously read:

(a)A specimen of venous blood was taken by the practitioner or medical officer in accordance with normal medical procedures from a person named in the certificate ...

[11] The change to procedures for taking a blood specimen was to permit blood specimens to be collected by more modern and safer methods than the traditional syringe. The Honourable Steven Joyce explained the reasons for the changes when moving the Land Transport (Road Safety and Other Matters) Amendment Bill for its second reading:1

... There has been a change to proposals for the regime for collecting blood specimens from suspected drink-drivers. The bill proposes allowing changes to requirements to account for more modern and safer methods, such as Vacutainers as an alternative to syringes. The bill as introduced would have allowed the blood specimen collecting procedure to be set out by the Minister of Police through a Gazette notice. Submitters to the bill were concerned that this would remove the current requirement to provide a blood specimen for independent analysis. The right to an independent analysis of a blood specimen by a private analyst remains unchanged.

1       (6 April 2011) 671 NZPD 17789; quoted in Guest v Police [2013] NZHC 1579 at [20].

[12] As part of the proposed changes the 2011 Amendment introduced the following definitions of “blood specimen collecting instrument” and “blood specimen collecting procedure”:

Blood specimen collecting instrument means –

(a)a needle and syringe; or

(b)an instrument of a kind designed for the taking of blood specimens approved by the Minister of Police (after consulting the Science Minister and the Minister of Transport) by notice in the Gazette;

Blood specimen collecting procedure means the taking of a blood specimen by a blood specimen collecting instrument in a manner prescribed by the Minister of Police by notice in the Gazette.

[13] While the 2011 Amendment was intended to pave the way for the eventual introduction of more advanced collection methods, it did not bring about any immediate substantive change in blood specimen collecting procedures. Rather, the effect was to remove the procedures into regulations or statutory instruments in order to facilitate the eventual introduction of alternative procedures. Prescribed blood collection procedures remained as before. The Land Transport (Blood Specimen Collecting Procedure) Notice 2011 (the 2011 Notice) relevantly provided as follows:

5        Blood specimen collected by needle and syringe

A blood specimen must be collected using a needle and syringe.

The certificate in this case

[14] Mr Haskett’s submission that the prosecution failed to prove that a blood specimen was taken and/or taken in accordance with the prescribed blood specimen collection procedure derives from the wording of the blood specimen certificate used in this case. It is common ground that the certificate used did not reflect the 2011 amendments. It read as follows:

1.I took a specimen of venous blood in accordance with normal medical procedures from the person whose name, address and occupation are set out in the schedule below.

2.*I divided the specimen into two parts and placed and sealed each part in a separate bottle.

* The specimen was insufficient for division and I took a further specimen and placed and sealed each specimen in a separate bottle.

3.Each separate bottle was received by me in a sealed blood specimen collecting kit.

4.I handed each separate bottle to –

Enforcement Officer:  Const Hargis   

[15] Mr Haskett’s contention is that the certificate fails to address the new requirement for the specimen of blood to be taken in accordance with the blood specimen collecting procedure. The “normal medical procedures” to which it refers are not defined in the Act and, he said, the mere assertion that they were followed does not establish that they were.  He submits that normal medical procedures entail a number of steps, such as identifying the appropriate vein. Evidence that the nurse used a syringe and needle is insufficient.

[16] Mr Haskett sought to distinguish R v Guest2 where Cooper J rejected an argument (also advanced by Mr Haskett) that use of a certificate which did not reflect the 2011 amendments was fatal to the prosecution. It was submitted that s 75 could not be relied on as the certificate was not one to which the section applied. Mr Haskett had submitted that in order to be valid, a certificate had to cover all of

the matters contained in s 75(2)(a). Cooper J rejected that submission, citing R v Clarke3 which held, by reference to the equivalent provisions in the Land Transport Act 1962, that a certificate is not invalid merely because all matters which may be proved are not contained in it. Cooper J said that made untenable Mr Haskett’s submission that all of the matters contained in s 75(2)(a) must be covered in the certificate for it to be valid.4 He went on to say that it is “distinctly arguable” that a statement in the certificate that a blood specimen was taken in accordance with normal medical procedures would be sufficient to comply with the requirements of s 75(1) and (2) because the taking of blood by the use of a needle and syringe is so well  known  as  to  be  embraced  by  the  words  “normal  medical  procedures”.5

2       R v Guest, above n 1.

3       R v Clarke [1982] 1 NZLR 654 (CA).

4       R v Guest, above n 1, at [53].

5 At [54].

Regardless, Cooper J said that, if the certificate did not strictly comply with s 75(2), there was reasonable compliance in terms of s 64(2) of the Act.6

[17] Mr Haskett said his argument in Guest had been misunderstood. He had not contended that the medical certificate was not a valid certificate. His position was (and is) that, as the term “normal medical procedures” is not included in s 75(2), that part of the certificate is not evidence and the appellant must rely on other evidence to prove that a blood specimen was taken. Further, he said7 that because, aside from the certificate, there is nothing to prove there was a “blood specimen” (as defined in the Act), the provisions of the Act are not engaged.

[18] A further element of Mr Haskett’s argument is that Guest failed to follow the dictum in Clarke8 that “matters included in a certificate which are not susceptible to proof by certificate are not evidence ...”. He further argued that Cooper J was wrong to find that a blood specimen taken in accordance with normal medical procedures must be taken to embrace the use of a needle and syringe.9

[19] In the course of the hearing I raised with counsel whether there was any reason why the Clarke principles should not apply to s 75, bearing in mind that the legislation had undergone significant amendments since Clarke was decided. I invited counsel to file supplementary submissions addressed to that issue. It is convenient to decide the application of Clarke at this point.

Application of R v Clarke

[20] The predecessor of s 75(2), which the Court of Appeal considered in Clarke, was s 58B(5)(a) of the Transport Act 1962 which provided as follows:

5        In any proceedings for an offence under this Part of this Act –

(a)A certificate purporting to be signed by a registered medical practitioner and certifying that –

6 At [57].

7       Relying on R v Faasipa CA130/95, 31 July 1995 at [5].

8       At 660.

9       At [54] and [55].

(i)A specimen of venous blood was taken by him in accordance with normal medical procedures from a person named in the certificate; and

(ii)The specimen was divided by him into 2 parts, or that the specimen was insufficient for division a further specimen was taken by him; and

(iii)He placed and sealed in a separate container each part or specimen, as the case may be; and

(iv)Each such separate container was received by him in a sealed outer container having endorsed thereon or affixed thereto a label indicating that it had been supplied by the Department of Scientific and Industrial Research; and

(v)Each separate container when so received contained a substance that was stated by a label affixed to that container to be a preservative  and  anti-coagulant; and

(vi)He handed each such separate container to a constable or traffic officer named in the certificate, –

shall be sufficient evidence, until the contrary is proved, of such of those matters as are so certified and of the qualification of the person by whom the specimen of blood is taken.

[21]    Mr  Haskett  submitted  that  the  wording  of  s  75  differs  materially  from s 58B(5). He argued that the reference in s 75(1) to the production of a certificate “to which this section applies”, read in conjunction with the opening words of subs (2), makes it clear that s 75 only applies to a certificate which certifies all of the matters set out in subs (2). In contrast, s 58B(5) did not require the certificate to certify all matters set out in subpara (a). In short, he said, the matters which could be subject of the certificate in s 58B(5) were divisible, whereas the matters specified in s 75(2) were indivisible.

[22] Mr Francis responded that the important features of s 58B(5) survive in s 75 and that the key difference between the two provisions is one of form rather than substance. I am satisfied that he is correct and that, on the plain words of s 75, the principles enunciated in Clarke apply. Both sections create  a  rebuttable presumption. They provide that certificates issued under them will be “sufficient evidence” of the matters they contain, in the absence of proof to the contrary or a

challenge to the certificate. The presumption under s 58B(5) applies to “the matters so certified”, that under s 75(1) to “such of the matters as are stated” in the certificate. The provisions of both sections make it clear that, notwithstanding the use of the conjunctive “and” linking the matters listed, it is intended that they operate disjunctively. That was the interpretation given to s 58B(5) by the Court of Appeal in Clarke.

[23] There is no basis for taking a different approach to s 75(2). I agree with Mr Francis that the tension between the conjunctive list and the disjunctive operative words can be resolved by recognising that the provisions are permissive, enabling proof of a number of matters together in one certificate but not requiring proof of all of them. As he pointed out, the use of the disjunctive “or” (in s 58B(5)(a)(ii) and (iv) and s 75(2)(b)) is only used where the matters susceptible to proof would be inconsistent.

[24] I also agree with Mr Francis that the key difference between the old and the new provisions is one of form rather than substance. In the 1990 Act the presumption is stated in s 75(1) and applies to certificates issued under subs (2) – (6) whereas, in the 1962 Act, it was restated at the conclusion of each subsection. There is nothing in the wording of s 75 to indicate an intention to vary the way in which the presumption operated. On the contrary, the inclusion in subs (1) of the words “of such of the matters as are stated in the certificate” make it clear that a certificate is not required to cover all of the matters set out in subs (2).

Use of the certificate

[25] It follows that, as Cooper J found in Guest, the reference in the certificate to “normal medical procedures” rather than the blood specimen collecting procedure specified in s 75(2)(a) does not invalidate or render inadmissible the certificate. That takes me back to the key question of whether the certificate may be relied on to establish that a blood specimen was taken from Mr Brown when it states that the

blood specimen was taken in accordance with normal medical procedures rather than the “blood specimen collecting procedures” contemplated by s 75(2)(a).10

10      R v Guest, above n 1, at [44].

[26] Like Cooper J in Guest, I am of the view that the answer to that question is yes. The blood specimen collecting procedure referred to in s 75(2)(a) is the taking of a blood specimen by a blood specimen collecting instrument as prescribed by notice in the Gazette. The instrument specified is a needle and a syringe. It is the only means by which a blood specimen may be taken. Section 75(2)(a) may accordingly be restated as requiring the medical practitioner or medical officer to certify that a sample of venous blood was taken with a needle and syringe.

[27] The certificate did not, of course, state that. It said the specimen was taken in accordance with normal medical procedures which is, of course, what is required by the definition of blood specimen. It is clearly arguable that that is equivalent to saying that a needle and syringe were used. That is the only medical procedure currently permitted under the legislation and the 2011 Notice. That was the view taken by Cooper J in Guest. He said that the taking of a blood specimen in accordance with normal medical procedures can only be understood as referring to

the use of a needle and syringe.11

[28]  I also associate myself with Cooper J’s rejection of the submission, repeated by Mr Haskett before me, that the requirement to establish that blood was taken using normal medical procedures requires elaboration of the procedure by reference to the vein identified, the use of disinfectant swabs and the like. 12 Proof of these elements could not, of course, be required if a certificate were strictly compliant.

Reasonable compliance

[29] If, contrary to my view, the certificate was not fully compliant, I accept the Crown submission that it is saved by s 64(2) which provides:

(2)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.

11      R v Guest, above n 1, at [55].

12 At [55].

[30] Although Mr Haskett sought to argue otherwise, it is established that the reasonable compliance provision applies to s 75(2). In Coltman v Ministry of Transport13 Richmond P said, in reference to the equivalent provisions in the Road Transport Act 1962, that the reasonable compliance provision should be construed in a way that “gives some latitude in relation to errors in certificates ...”14

[31] Section 64(2) may be invoked where non-compliance does not create the possibility or likelihood of error. The test, was stated as follows in R v Aylwin:15

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, CA212/95. Accordingly, where the non-compliance does not create the possibility or likelihood of error, it should be saved by reasonable compliance.

[32] Any non-compliance was of a minor and technical nature. It gives rise to no concerns about the correctness of the result. It has not been suggested that a sample of venous blood was not in fact taken in accordance with normal medical procedures and with the procedure required by the legislation. There is no risk of injustice or unfairness. Mr Brown has had the opportunity to challenge the certificate and has chosen not to do so. As was said by the Supreme Court in Aylwin v Police,16 Parliament has legislated to ensure that those who drive with excess alcohol do not

escape responsibility through technical and unmeritorious defences. The courts must give full effect to that clear parliamentary intention.

Proof on the evidence

[33] I am satisfied that the certificate is admissible to show that a sample of venous blood was taken by use of a needle and syringe. However, even if that were not the case, any defect in the certificate was not fatal to the prosecution. In evidence Constable Hargis described how he saw the nurse obtain a blood specimen. According to the transcript of evidence, he said she used a “needle or syringe”.

13      Coltman v Ministry of Transport [1979] 1 NZLR 330 (CA).

14      At 334. See also Shaw v Police CA212/95, 21 September 1995 at p 4.

15      R v Aylwin [2008] NZCA 154, (2008) 24 CRNZ 87 at [41], affirmed on appeal in Aylwin v Police

[2008] NZSC 113, [2009] 2 NZLR 1.

16      Aylwin v Police[2009] 2 NZLR 1 (SC) at [17].

Judge Cunningham said17 that the evidence was recorded in error and that he in fact referred to a needle and syringe. Whatever the precise words used, there was clear evidence before the Court that a needle and syringe was used to withdraw a sample of venous blood from Mr Brown’s arm. All the other elements of the certificate were compliant, and can be taken as proven. Mr Brown was undoubtedly rightly convicted.

Result

[34]    The appeal is dismissed.

17 At [51].