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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v Police

Details

AGLC: Brown v Police [2013] NZHC 2662
Case: [2013] NZHC 2662
Decision Date: 11 October 2013

CaseChat Overview and Summary

Ross Brown appeals his conviction in the Manukau District Court for driving with excess blood alcohol, arguing that the prosecution did not establish that a blood specimen was obtained. The appeal hinges on whether the certificate produced by the prosecution sufficiently complied with statutory requirements. The central issue was whether the certificate, which referred to "normal medical procedures" instead of the "blood specimen collecting procedure" specified in the Act, was sufficient evidence of the blood specimen's collection. The court held that the principles from R v Clarke applied, meaning that a certificate need not cover all specified matters to be valid. The reference to "normal medical procedures" was sufficient as it implied the use of a needle and syringe, which is the only method permitted under the legislation. Additionally, even if the certificate was not fully compliant, the prosecution's evidence, including Constable Hargis's testimony, confirmed that a blood specimen was taken using a needle and syringe. The appeal was dismissed as the prosecution sufficiently proved the blood specimen was obtained.

Orders