C v Police HC Auckland CRI 2007-404-36

[2007] NZHC 1759

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-0036

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 May 2007

Appearances: F Hogan for the appellant

S Wimsett for the respondent

Judgment:      28 May 2007

(ORAL) JUDGMENT OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Auckland

F Hogan, Dykes Road, R D 1, Papakura

C V NZ POLICE HC AK CRI 2007-404-0036  28 May 2007

Introduction

[1]      This  is  an  appeal  against  the  conviction  by  William  Graham  C  ,  the appellant, on a charge of driving with excess blood alcohol contrary to s 56(2) of the Land Transport Act 1998 (the Act).  The charge was that he drove on State Highway

1  on  7 December  2005  when  the  proportion  of  alcohol  in  his  blood  was  207 milligrams  of  alcohol  per  100  millilitres  of  blood,  the  legal  limit  being  80 milligrams.    The  appellant  was  convicted  following  a  defended  hearing  in  the District Court at Manukau before Judge C S Blackie.   The Judge’s reasons for his decision were contained in a reserved judgment dated 6 December 2006.

[2]      On behalf of the appellant, Mr Hogan raised three main points on appeal. First, there was the  issue  of whether  the  registered  medical practitioner  took  a specimen of venous blood in accordance with normal medical procedures from the appellant.  Second, was the question of whether a blood specimen collecting kit had been used.   Third, there was a point relating to a contention that the medical practitioner had not complied with what was said to be a statutory obligation on the medical practitioner pursuant to the provisions of s 74(4)(d) of the Act.

Submissions of counsel

[3]      Counsel for both the appellant and the respondent filed helpful written submissions.  It is fair to say that Mr Hogan’s submissions focused principally on the points as to whether the medical practitioner in this case took a blood specimen as defined in s 2 of the Act (i.e. venous blood) and the related aspect of whether such blood specimen was “taken in accordance with normal medical procedures”.

[4]      I should say at the outset that the second and third points appeared to have little merit.  In respect of each, Mr Hogan faced an uphill task to sheet either point home in the face of case authority to the contrary.  The point relating to proof that the blood  specimen  was  venous  blood  and  whether  the  specimen  was  taken  in

accordance with normal medical procedures raised some interesting and arguable issues in the particular circumstances of this case.

Crown concession

[5]      When the appeal was called before me today, Mr Wimsett who appeared for the respondent, helpfully drew  my attention to two cases: Clayton  v  Police  HC CHCH CRI 2004-409-000047 12 May 2004, Fogarty J, and the decision of the Court of Appeal in R v Faasipa (1995) 2 HRNZ 50. The issue in these cases concerned whether, in the context of the circumstances of the prosecutions in those cases, the Police had established that the blood specimen concerned was venous blood. It seems that neither of these cases had been drawn to the attention of the Judge.

[6]      In  the  Clayton  case,  it  was  noted  that  the  medical  certificate  was  not produced in evidence.   Also, it seems that the medical practitioner had not been called to give evidence.   Fogarty J concluded  his short oral judgment  with this observation:

It would appear that there was simply a basic deficiency in the way in which the Crown proved its case.  It has not proved a blood specimen is required by the statutory provisions.

[7]      In the present case, the circumstances are somewhat  unusual because the blood specimen was taken from the appellant  in hospital to which he had  been transported to be treated for his injuries following a motor vehicle accident.   After the blood specimen was taken from the appellant in the hospital, the doctor was called away to deal with a medical emergency elsewhere at the hospital.  Before this the doctor had completed Part A of the hospital blood specimen medical certificate. But the matters of proof usually included in Part B of the medical certificate were not completed.  This remained the position at the hearing in the District Court.

[8]      When the matter came on for hearing  in the District  Court before Judge Blackie on 18 October 2006, the doctor who  took the  blood  specimen was  not present to give evidence.  The Police prosecutor applied for an adjournment.

[9]      The Judge then declined the adjournment and stated at [3]:

At the beginning of the hearing, the prosecution sought an adjournment in order to have paperwork completed and/or to have a doctor   attend   the   Court   to   give   evidence.      I   declined   the adjournment, noting that the information was laid in March 2006, that it had already been allocated a defended fixture on 19 July 2006, when counsel for the defendant was unavailable and a second fixture for 18 October 2006.  In my view, having regard to the fact that two defended fixtures had been allocated, the prosecution should have been in a position to have completed their case preparation with or without the attendance of a doctor.

[10]     Once the application for an adjournment had been declined, the prosecution nevertheless proceeded.  The prosecutor produced in evidence through the Constable the medical certificate that had been partly filled in (as to Part A only) by the doctor. The matters of proof usually included in Part B of the medical certificate were left blank.   The prosecution sought in the District Court to establish these through the evidence of the Police Officer who attended at the hospital.  Included in such matters of proof were that the blood specimen as required by the provisions of the Land Transport  Act  was  venous  blood  taken  in  accordance  with  normal  medical procedures.

[11]     In his written decision, the Judge found that both of these aspects had been established to the required standard.   There is no need to refer to the detail of the Judge’s reasoning.  This is because on appeal, Mr Wimsett properly acknowledged that, on the basis of the authorities in Clayton and Faasipa, there was an issue in this case as to whether the element that the blood specimen was of venous blood had been properly established.  This was on the basis that the medical practitioner was not called to give evidence.  Moreover, the prosecutor had not called another medical practitioner who could hear the evidence and then give expert evidence based on what was done, that the blood sample taken was of venous blood and that the blood specimen was taken in accordance with normal medical procedures.  Presumably, the prosecutor considered that  proof of these aspects could be achieved through the partly completed medical certificate and the evidence of the Constable.

[12]     But Mr Wimsett accepted before me that such proof was not sufficient in the circumstances of this particular case.  In the light of this concession, I was invited by

counsel for the respondent to allow the appeal.   I accepted I should do that.   This leads on to the question of how the appeal should be disposed of.

Consequence of allowing appeal

[13]     For the appellant, Mr Hogan urged me to simply allow the appeal and quash the convictions.   Such submission was on the basis that the prosecution had its chance back in October 2006.  It was not ready for the hearing in that the doctor was not  present  and  there  was  no  other  medical  practitioner  called  to  give  expert evidence, which he accepts would have been permissible.  Hence, it would not be in the interests of justice to send the case back for a rehearing at this stage.

[14]     However, where an appeal is allowed, it is open to the High Court to direct a rehearing of the information:  see s 131 of the Summary Proceedings Act 1957.  That section provides:

(1)       On any appeal the High Court may remit the determination appealed against  to  the  District  Court  with  a  direction  that  the  information  or complaint to which it relates be reheard.

(2)       Where any determination is  remitted to  the District  Court  under subsection (1) of this section, the Registrar of the High Court shall transmit a certificate to that effect to the Registrar of the District Court whose determination was appealed against, together with in the case of a general appeal the documents referred to in subsection (2) of section 117 of this Act, and the case shall be dealt with as if a rehearing as to the whole matter had been granted under section 75 of this Act, and the provisions of that section, as far as they are applicable and with the necessary modifications, shall apply accordingly.

[15]     For the respondent, Mr Wimsett submitted that the question of fairness cuts both ways.  While the Court should vigilant to ensure that an appellant/defendant is protected from an unfair trial, that does not render an appellant immune from fair trial.  He also submitted that the policy of the Act in relation to excess breath and blood alcohol cases was against allowing prosecutions to fail on the basis of procedural or technical defences.  This point was emphasised by the Court of Appeal in Shaw v Police CA212/95 21 September 1995, at 5, per Cooke P.

[16]     Accordingly,  Mr  Wimsett  submitted that  it  would be  appropriate  for  the information to be remitted to be reheard in the District Court.  That would allow the prosecution to have the opportunity to either call the medical practitioner concerned, or call expert evidence to deal with the points which have arisen in connection with the blood specimen and the procedures by which it was taken.

Disposal

[17]     Having carefully considered the arguments as to the course that should be followed upon the appeal being allowed, I conclude that the interests of justice in this case would best be served by remitting the case back to the District Court at Manukau with a direction that the information be reheard.   I therefore give such a direction pursuant to the provisions of s 131(1) of the Summary Proceedings Act

1957.

[18]     There will be no order for costs.  The appeal is allowed but with the direction for rehearing as outlined above.

Stevens J