C v Police HC Napier CRI 2006-441-25

[2006] NZHC 806

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2006-441-25

C

Appellant

v

THE POLICE

Respondent

Hearing:         26 June 2006

Appearances: E Forster for appellant

N M Graham for respondent

Judgment:      12 July 2006

JUDGMENT OF ALLAN J

Solicitors:

E Forster, PO Box 838, Hastings
Crown Solicitor, Napier

C V POLICE HC NAP CRI 2006-441-25  12 July 2006

[1]      This is an appeal against conviction for driving with excess blood alcohol.  It raises a single issue as to the adequacy of a certificate given under s 75(2) of the Land Transport Act 1998.

Background

[2]      On 26 April 2006 the appellant was convicted in the Napier District Court of driving at Napier on 2 July 2005 with a blood alcohol level of 196 milligrams of alcohol per 100 millilitres of blood.  The conviction followed a defended hearing at which the point now taken on appeal was the only ground of defence.

[3]      At the hearing, the informant tendered a certificate given under s 75 of the

Act which materially read as follows:

BLOOD SPECIMEN MEDICAL CERTIFICATE

(Issued Under s 75(2) of the Land Transport Act 1998) I, ‘Peter J Foley’

*Registered Medical Practitioner/Medical Officer, certify that –

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 Wylie’ Signed:  ‘P J Foley’  Date 02/07/05

*Cross out whichever is not applicable.

[4]      The certificate was tendered by the informant in reliance on s 75 of the Act which, as relevant, reads:

(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 normal medical procedures from a person named in the certificate; and

(b)       The specimen was divided by the practitioner or medical officer into 2 parts, or the specimen was insufficient for division and the practitioner or medical officer took a further specimen; and

(c)       The practitioner or medical officer placed and sealed in a separate bottle each part or specimen (as the case may be); and

(d)      Each such separate bottle 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 separate bottle to an enforcement officer named in the certificate.

...

(7)      For the purposes of this section, it is not necessary for the person making a certificate to specify his or her entitlement to give the certificate if the certificate indicates that the person belongs to the general category of persons who may make such a certificate.

The appellant’s argument

[5]      For  the  appellant,  Mr  Forster  submitted  in  the  District  Court  that  the certificate was defective (and was accordingly not to be relied upon for evidential purposes) in that the person completing the certificate had failed to identify himself either as a medical registered practitioner or as a medical officer by deleting the option in the certificate which did not apply to him.   The learned District Court Judge rejected that argument largely in reliance upon the decision of Tipping J in

Bates v Ministry of Transport (1989) 4 CRNZ 445, in which a similar argument failed.

[6]      In this Court, Mr Forster submitted that in Bates the Judge had failed to refer to s 58G(2) of the Transport Act 1962 as it then stood, that the decision in Bates was wrong, and that it should not now be followed.

Discussion

[7]      Mr Forster’s argument focused upon s 75(7) and in particular the closing words of that subsection, namely:

... if the certificate indicates that the person belongs to the general category of persons who may make such a certificate.

[8]      A certificate which complies with s 75 enables an informant to avoid the necessity for calling the person taking the blood sample as a witness, although a defendant may require that person’s attendance by making application to the Court: s 79.

[9]      The  certificate  procedure  is  of  significant  procedural  convenience  to  an informant but Mr Forster is right to submit that the advantages so conferred are available to an informant  only where the requirements of the section have been properly complied with.  The facts of this case are to all intents and purposes on all fours with those in Bates v Ministry of Transport.   There, the person taking the relevant blood sample had completed a certificate which, immediately under the name of the person concerned, bore the expression ‘Registered Medical Practitioner/Authorised  Person’.    Those  words  are  the  equivalent  of  the  words

‘Registered Medical Practitioner/Medical officer’ which appear in the present certificate, the expression ‘Authorised Person’ which appeared in the former legislation having now been replaced by the term ‘Medical Officer’.

[10]     In Bates, as here, the person concerned had failed to delete one of the two alternatives provided in the form, despite an instruction at the foot of the form to the

effect that whichever of the two alternative descriptions was not applicable should be deleted.

[11]     Before Tipping J it was argued that the failure to delete one or other of the alternative qualifications was fatal to the validity of the certificate.  It was said that there were three possible inferences:   first, that the giver of the certificate was a registered medical practitioner;   secondly, that the giver of the certificate was an authorised  person;    and  thirdly,  that  the  giver  of  the  certificate  was  neither. Tipping J rejected out of hand the third alternative. He said that there was ‘absolutely no  foundation for the suggested further  inference that  the person concerned has neither qualification.  Clearly the person concerned is purporting to have one or other or both of the statutory qualifications’ (p 447).   The Judge went on to hold that it would be ‘quite unreal to hold that because on its face it is not possible to determine which of the two qualifications which are permitted that the author purports to have, the certificate is thereby invalidated’.

[12]     Since 1989 Bates has been regarded as settling the law as to the validity of a certificate completed in that way.   However, Mr Forster submits that Bates is not good law and ought not to be followed because the Judge failed in that case to refer to s 58G(2), now reflected in s 75(7).   There is no material variation between the respective subsections.

[13]     Before considering that argument, it is necessary to refer to the scheme of s 75 as it relates to identification of persons entitled to complete certificates.  It is to be observed that ss 75(1) and (2) apply to certificates purporting to be signed by a medical practitioner or a medical officer.  Each term is defined in s 2 of the Act.  A medical practitioner is defined as:

a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine

[14]     A medical officer is defined as:

(a)     a person acting in a hospital and who, in the normal course of the person's duties, takes blood specimens; or

(b)    a nurse; or

(c)    a medical laboratory technologist.

[15]     A person who is a medical practitioner (as so defined) or a person who is a medical officer  (as so  defined)  may,  when taking a  specimen of venous blood, complete the certificate contemplated by s 75, which certificate may be produced in evidence.  In the absence of proof to the contrary, the certificate will be sufficient evidence 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 (s 75(1)). Further, it is not necessary for the person making the certificate to specify his or her entitlement to give the certificate if the certificate indicates that the person belongs to the general category of persons authorised to make such a certificate (s 75(7)).   Mr Forster submits that the failure of the person concerned to make a selection on the form between ‘medical practitioner’ and ‘medical officer’ renders the certificate invalid.

[16]     The argument, as I understand it, is that the expression ‘the general category’

in s 75(7) is a reference to the separate categories of ‘medical practitioner’ and

‘medical officer’.   If the person giving the certificate fails to distinguish between those categories then  he or  she  has  failed  to  indicate the  ‘general category’  of persons to which the person belongs.

[17]     The predecessor of s 75(7) (namely s 58G(2)), was not expressly referred to in Bates.  It was, however, discussed in the judgment of Wylie J in Roberts v Koti (HC AK) AP 194/90, 29 November 1990, in which the point now in issue was left open.   There, the question for the Court was whether the giver of the certificate ought to have distinguished himself as a member of a particular group forming one of the categories of persons falling within the expression ‘authorised person’ under the former legislation.  In that case, the expression ‘registered medical practitioner’ had been deleted leaving the term ‘authorised person’ as applicable to the maker of the certificate.  So the issue there was not as to whether there had been a failure to delete but rather as to whether the maker of the certificate ought to have expressly indicated the class of ‘authorised person’ into which he fell.

[18]     The issue in this present  case was therefore not  directly  before Wylie J. However, he noted that it was arguable that the expression ‘the general category’ (emphasis supplied by Wylie J) as opposed (for example) to ‘a general category’, suggests that the legislature contemplated that both registered medical practitioners and authorised persons fell into a single category of persons who may make such a certificate.

[19]     In my view, the point tentatively taken by Wylie J is determinative of this case.  The expression  ‘... the general category of persons ...’ in s 75(7) indicates, in my view, that the legislature intended to facilitate the certificate procedure by providing that a certificate would be valid and effective if the maker of the certificate simply indicated that he or she fell within the class of persons able to give such a certificate.   Had the legislature intended to distinguish between medical practitioners on the one hand, and medical officers on the other, then it could have stipulated that the person concerned certify whether he or she is a registered medical practitioner or a medical officer.

[20]     As a matter of statutory construction the language used by Parliament stands in the way of Mr Forster’s argument.   The words “the ... category” suggest that a single category was intended.  And the word “general” reinforces that conclusion by emphasising the inclusive, all-embracing character of that single category.

[21]     The form of the certificate set out earlier in this judgment is not prescribed by statute or regulation.   It is simply in a form which I was told from the bar is in standard use by the police.  The failure of the giver of the certificate to delete one of the two options provided by the form does not therefore amount to  a failure to comply with any legislative provision. It is no more than a failure to complete fully a form designed by the police for its own purposes in order to facilitate compliance with s 75.

[22]     Mr Forster submitted that if the expression ‘the general category of persons’ is held to denote the totality of the group of authorised persons, then there is no need for the separate definition in s 2 of the Act of the terms ‘medical practitioner’ and

‘medical officer’.  That submission overlooks the provisions of s 75(3) which deals

with the taking of a specimen of blood in certain stated circumstances;   it applies only to certificates given by medical practitioners and not to those given by medical officers.  A similar distinction is made in s 73(3).

[23]     In the result, there is nothing in Mr Forster’s argument to suggest that the approach in Bates was wrong or that it does not remain good authority.  It is difficult to discern any prejudice to the appellant by reason of the simple neglect of the giver of the certificate to delete one of the two alternatives provided in the certificate itself. Had the appellant been concerned as to the qualifications of the person giving the certificate, then he could have applied under s 79 for an order directing that the person concerned give viva voce evidence.   It is unlikely that such an application would have been declined.

[24]     This is a case to which the observations of the Court of Appeal in Shaw v

Police (CA 212/95, 21 September 1995) are applicable:

This Court reaffirms that breath and blood alcohol prosecutions should not be allowed to be defeated by purely technical and non-prejudicial errors or omissions.

Result

[25]     For the foregoing reasons the appeal is dismissed.

[26]     In the District Court the appellant was fined and directed to pay costs and medical expenses.   In addition, he was disqualified  from holding or obtaining a motor driver’s licence  for seven months  from 26  April 2006.    He  subsequently applied to the District Court for an order suspending the disqualification order.  On 5

May 2006, an order was made in the District Court by consent deferring commencement of the period of disqualification until 1 July 2006.  I am uncertain as to whether any further suspension has been ordered.  When this case was argued on

26 June, I was told from the bar that the appellant’s period of disqualification was suspended pending delivery of this decision.

[27]     For the avoidance of doubt, I direct that, unless the disqualification order has already been reactivated by effluxion of time, it  is to take effect at the close of Monday 17 July 2006 (that is, at midnight on that day).

C J Allan J