C v Police HC Wellington CRI-2005-485-187

[2006] NZHC 219

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2005-485-187

BETWEEN  C

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         14 March 2006

Appearances: W M Johnson for appellant

C Boshier for respondent

Judgment:      14 March 2006

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against conviction.  The appellant was convicted of a charge of driving while the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood.

[2]      Briefly  stated,  the  circumstances  were  that  he  was  driving  on  State Highway 2 when he was stopped by a police officer.  He was required to undergo a breath  screening  test,  which  returned  a  fail  result.    He  was  then  required  to accompany the officer to the Lower Hutt  police station.   At the station he was required to undergo an evidential breath test.  He was then given his option to require a blood test, and a blood specimen was taken.

[3]      There are two points raised by Mr Johnson on this appeal.  The first relates to the adequacy of the chain of evidence concerning the carriage of the blood sample to the ESR laboratory.   The second relates to  whether the evidential breath testing

C V POLICE HC WN CRI-2005-485-187  14 March 2006

device was an approved device or whether there was sufficient evidence to prove that it was an approved device.

[4]      Dealing with the first of those issues, the chain of evidence as to the blood sample, the officer’s evidence was that he placed the blood specimen in a bag which he  obtained  from the  senior  sergeant  in  the  watch-house.    He  said  that  it  was addressed to the ESR.  He filled out the blood specimen form.  He placed the sample in a bag and placed that bag in what he described in cross-examination as a locked letter-box.  He was unable to give further evidence as to the removal of the sample from that box and its carriage to ESR.  The ESR analyst’s certificate certified receipt of a blood specimen taken from the appellant, who was named and whose address was given.

[5]      The chain of evidence was challenged at the hearing.  The Judge dealt with the matter in this way.  He said:

[12]      The  constable’s  evidence  was  that  he  placed  the  blood  sample, which had been taken from the defendant into a bag, which he obtained from the Senior Sergeant in the watch-house.  He said this bag was addressed to the ESR and he obtained a courier sticker from the Senior Sergeant.    He placed it on the bag and placed the bag in what he described as a “locked letterbox”.    He took no further part in its transmission to the ESR.    I am satisfied that this was the system operating for the posting of, or couriering, of blood samples to ESR.

[13]     By placing the bag containing the sample in the locked letterbox he caused it to be sent to the ESR.    The use of an office system is a way of causing samples to be sent by courier or posted.  I see the case of Aualiitia v Ministry of Transport [1983] NZLR 727 a judgment of Court of Appeal.

[14]      The Analyst’s Certificate certified receipt on 14 July 2004 of a blood sample in a sealed bottle “Taken from C  , Hamish Lochiel - Farmer - Caves Road RD 6 Masterton” and that it was delivered on 14 July 2004, and that it was delivered by Courier Post by Constable A L Smith.    The sample taken from the defendant was taken on 12 July 2004, and the details on the Analyst’s Certificate as to the name and address of the defendant are as set out in the blood specimen medical certificate.

[15]      I can discern no risk of the sample analysed being anything other than the sample taken from the defendant.   Nor can I discern any risk of the sample being tampered with.  It was, on this certificate, sealed and remained sealed until the analysis at ESR.

[6]      The question for me was whether the evidence was sufficient to enable the

Judge to draw that conclusion.   Mr Johnson addressed submissions to me which

suggested that there may be a lowering of standards generally in relation to the evidence which is adduced on prosecutions of this nature.  That is not a question for me.   The sole question for me is whether in this case the chain of evidence was adequate to enable the Judge to reach the conclusions he did.

[7]      In my view, the evidence was sufficient to enable the Judge to draw the conclusions which he did.  The requirement is that the officer cause the sample to be conveyed to ESR.  It is not necessary that every person involved in the chain of that communication be called as a witness to give evidence of the handling of the sample while it was in their possession.   There must be evidence from the officer administering  the  procedures  to  establish  that  he  caused  it  to  be  conveyed  by adopting a system which is sufficient to satisfy the Judge dealing with the particular case that any opportunity for interfering with the sample is eliminated so far as that can humanly be done.  Here there was evidence which was sufficient to enable the Judge to draw the conclusion that he did.  The sample was placed in a locked letter- box by the constable who administered the procedures.  The evidence in the analyst’s certificate established that the sample was received at ESR.   There was sufficient evidence that that was in accordance with a system which enabled the Judge to be confident in the conclusion that he did express that there was no risk of the sample analysed being anything other than the sample taken from the defendant and no risk of the sample being tampered with.

[8]      It  is  important  that  the  statutory  procedures  be  strictly  followed,  as Mr Johnson submits.   In my view, in this regard the Judge was fully justified in concluding that the statutory procedures were strictly followed so far as the transport of the sample was concerned.

[9]      The second ground of appeal is that there was no evidence that the evidential breath test device which formed the basis for the requirement, or the option, for a blood sample to be taken was an approved device.  The Judge found in this regard:

[8]       At  the  police  station  the  defendant  was  required  to  undergo  an evidential breath test.   The police constable’s evidence was that the device used was an Intoxilyzer 5000.  The police constable did not say in evidence that this device was an “approved device”.   He did say that the device was

assembled and the test conducted in accordance with the Transport (Breath

Tests) Notice (No. 2) 1989.

[9]       Section 2  of the Land Transport  Act  1998  defines  an  evidential breath  testing  device as  meaning  “a  device  of  a  kind  approved  for  the purpose of evidential breath tests by the Minister of Police by notice in the Gazette.”     I consider that I am justified, in the absence of challenge, in taking judicial  notice of  the fact  that  the Intoxilyzer  5000  device  is  an approved device.   The contents of the Transport (Breath Tests) Notice (No.

2) 1989 are so often before me, as is evidence as to the operation of the

Intoxilyzer 5000    that    I    entertain    no    doubt    whatsoever    that    the Intoxilyzer 5000 is a device approved by notice in the Gazette.  In reality a police constable saying in evidence that the device used was an approved device adds nothing to the description of the device.

[10]     Again, the question for me is whether the Judge was right to draw those conclusions in this case.   Again, I am not dealing with a wider issue of whether further evidence should desirably be called.  I am concerned with whether the Judge was correct to accept the evidence which he did.

[11]     There are, in essence, two questions involved in determining whether a breath testing device is an approved device.  The first is a purely factual one, namely: what was the type and make of the device that was actually used?  The second is: is that make and type one which is approved under the Notice?  The first is a question of fact; the second is essentially a question of law.   I agree entirely with the learned Judge that in reality a police constable saying in evidence that the device used was an approved device adds nothing to the description of the device.

[12]     Mr  Johnson  does,  however,  raise  a  further  issue.    He  submits  that  it  is essential that the currency of the device be established.  In Police v Norman (High Court, Tauranga, CRI 2004-407-0047, 23 March 2005), Cooper J held that where the prosecution is one for an excess blood alcohol, as opposed to excess breath alcohol, the certificate of compliance required in a prosecution for excess breath alcohol is not necessary.  That is the case here, and I respectfully concur with that view.  That does not, however, necessarily obviate the need to establish that the device used was current.  Here the constable gave evidence that the device was current and certified. He was questioned about that in cross-examination, when he said that he did not know what was on the certificate but did say:

There is a sticker from the calibration unit which does say when the calibration expires.  If that had been outside that timeframe I wouldn’t have used it.

[13]     There being no evidence to suggest that the device was not current, I consider that the Judge was entitled to accept that evidence as establishing the currency of the device.  Accordingly, he had evidence that the device used was an Intoxilyzer 5000, which was current.  It was not necessary for the constable to say in evidence that the device was an approved device.  That step in the reasoning follows from the terms of the Notice.

[14]     For these reasons, the appeal will be dismissed.

[15]     Mr  Johnson  asks  that  the  appellant’s  disqualification,  which  has  been deferred pending the hearing of this appeal, be deferred until tomorrow.  I consider that it is a reasonable request.   The disqualification will commence at one minute past midnight on Thursday, 16th March 2006.

“A D MacKenzie J”

Solicitors

Crown Solicitor, Wellington, for the Crown