Cocks v Police HC Christchurch CRI-2010-409-000246

[2011] NZHC 632

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000246

MARK SOMERS COCKS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 May 2011

Appearances: C G Fletcher for Appellant

D Jackson for Respondent

Judgment:      20 May 2011

RESERVED JUDGMENT OF CHISHOLM J

[1]      Following a summary hearing the appellant was found guilty of driving a motor vehicle on 3 June 2010 with more than 80 milligrams of alcohol per 100 millilitres  of  blood.     He  was  sentenced  to  150  hours  community  work  and disqualified from driving for 15 months.  The sentence of community work has been suspended pending the outcome of this appeal.   However, the disqualification has been running from the sentencing date.

[2]      This appeal against conviction revolves around a narrow point.   The ESR analysis produced a result of 81 milligrams and a private analysis of the second sample produced a result of 77 milligrams.  Under those circumstances the appellant

claims that the Judge was erred in law when he found that the charge was proved.

COCKS V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000246 20 May 2011

Evidence

[3]      The only issue was whether the prosecution could prove beyond reasonable doubt that the appellant’s blood alcohol level exceeded 80 milligrams.  The analyst’s certificate was not available because Ms McGavin, the ESR scientist who had analysed the first sample, was required to give evidence.

[4]      Ms McGavin gave evidence that the blood sample was received and analysed by ESR on 8 June 2010.  Her analysis revealed that the sample contained 81 grams of alcohol per 100 millilitres of blood.   She explained that this result reflected a standard deduction of six milligrams from the analysed result.  In other words, the analysed result, before this deduction, was 87 milligrams.   The scientist explained that this standard deduction “allows for possible variations in analytical results and it ensures beyond reasonable doubt that the certified result is not too high”.

[5]      After the private analyst, Mr Shanahan, arrived at his result on 3 August

2010, Ms McGavin was requested to re-analyse the portion of the sample still held by ESR.  This further analysis, which again included the six milligram deduction, produced a result of 75 milligrams.   Ms McGavin considered this result to be consistent with the expected range of alcohol loss since the first analysis had been undertaken.    She  also  considered  that  the  difference between  the  result  for her sample and the result of the second sample analysed by Mr Shanahan could be accounted for in this way.

[6]      Mr Shanahan was called by the defence.  He confirmed that he had arrived at

77 milligrams  after deducting the standard six  milligrams.    In  other  words,  his starting point had been 83 milligrams.  While he accepted that there can be a drop in alcohol content over time, he said that in about 59% of the bloods that he had analysed there had been no significant change over a period of about two and a quarter months, which included about 35% which did not change at all.

[7]      In answer to questions from the Bench, Mr Shanahan confirmed that of itself a difference between  the two  readings  did  not  necessarily mean  that  there was something wrong with the ESR processes, but that might be the reason.  He also said

that there could be natural deterioration or deterioration for which there was no scientific explanation.

[8]      After Mr Shanahan had completed his evidence Ms McGavin was recalled to address matters that had been raised by Mr Shanahan but in respect of which she had not been cross-examined.  She confirmed her belief that samples (both primary and reserve) do lose alcohol over time.

District Court decision

[9]      A detailed oral decision was delivered by the Judge.   After traversing the evidence he concluded that there was no evidence suggesting that there was any defect in the way ESR carried out the testing in this particular case.  He noted that the sole factor relied on by the defence was the difference in reading.  He rejected the proposition that there might have been deficiencies in the testing process and said that he was quite satisfied that the ESR processes were carried out in “an appropriate and accurate way”.

[10]     Then the Judge commented:

[18]     Providing that this is the case I am not sure that it matters what Mr Shanahan’s reading was because as long as the ESR have carried out an accurate and appropriate analysis on the evidence and the results of such a conclusion show a reading in excess of 80 milligrams per 100 millilitress of blood the charge is made out.

Having said that he noted that he had put the proposition to Mr Shanahan that different readings did not necessarily mean that there was something wrong with the ESR processes, but that might be the case.

[11]     Following that the Judge noted that Ms McGavin’s evidence was detailed and that she had stated that the research showed that, if anything, one would expect there to be a fall-off in the readings as a result of the effluxion of time.  He said that he was quite satisfied that the blood specimen was analysed and that it accurately recorded a reading in excess of 80 milligrams.

[12]     The Judge then made the following observation:

[21]     I  should  note  Mr  Fletcher  has  submitted  that  if  I  reach  that conclusion it would effectively negate the whole purpose of having the B sample.   I do not accept that.   As I have already indicated the primary purpose of the B sample is to ensure that the ESR maintained appropriate and accurate testing procedures.   In certain circumstances the fact of a difference in the reading may be a pointer to there being some problem with the ESR’s processes.  The simple fact of the difference in and of itself, as I have said, does not amount to a defence nor is it evidence on its own of defective practices.

Thus he concluded that the prosecution had provided sufficient evidence to assure him  beyond  reasonable  doubt  that  there  was  no  difficulty  about  the  evidence obtained from ESR and the prosecution had accordingly proved the charge.

This appeal

[13]     Mr Fletcher submitted that given the two different results the prosecution could not prove beyond reasonable doubt that the blood alcohol level exceeded

80 milligrams.  He emphasised that both analysts had accepted that there could be more than one explanation for the discrepancy between the two results.   Thus, he submitted, there had to be a reasonable doubt about the accuracy of the ESR result.

[14]     It was also argued by Mr Fletcher that  on the Judge’s interpretation the process was inherently unfair to an accused.  This was because the second sample was only available for testing by an accused after the first sample had been analysed, which inevitably meant a time delay.  On the Judge’ interpretation a lower reading could always be explained by the loss of alcohol over time.   It followed that any further testing by the defence was always going to be a waste of time because it could never establish that the ESR result was defective.

[15]     For the respondent Mr Jackson submitted that the Judge was alive to all these issues and that the conclusion that he reached reflected a careful analysis of the expert evidence.  He submitted that the Judge was not applying a rigid test and in a situation where there was a large discrepancy between the first test and the second test, the accuracy of the first test may well be called into question and give rise to a reasonable doubt.

[16]     There do not appear to have been any earlier decisions directly in point. Ultimately the case comes down to a factual issue:  was the Judge entitled to reach the conclusion that the evidence had established beyond reasonable doubt that the appellant’s blood alcohol level exceeded 80 milligrams of alcohol per 100 millilitres of blood at the relevant time.

[17]     On the evidence before him the Judge was clearly entitled to reach the view that the ESR analysis had established a blood alcohol level exceeding 80 milligrams. As the Judge noted when traversing the evidence, there was an inbuilt safety factor of six grams which was three times the standard deviation.  Ms McGavin’s evidence also established that proper procedures had been followed.   Thus the Judge was entitled to accept that the 81 milligram result was accurate unless the evidence, including the lower result reached by Mr Shanahan, gave rise to a reasonable doubt as to the accuracy of that result.

[18]     The Judge recognised that in some situations the analysed result of a reserve sample might call the ESR result into question.  In this respect paragraph [18] of his remarks needs to be read in the context of the whole judgment, particularly [21] where the Judge makes this point. As Mr Jackson pointed out, such a situation might arise where there is a large discrepancy between the two results.  However, given the discrepancy in this case and the evidence explaining how the discrepancy is likely to have arisen, it was well open to the Judge to accept that Mr Shanahan’s result did not call the ESR result into question and that the charge had been proved beyond reasonable doubt.

[19]     Like the Judge, I do not accept Mr Fletcher’s proposition that it is a waste of time having a reserve sample analysed.  Nor do I accept the suggestion that there is an inherent unfairness to accused persons in the process.  Parliament has laid down the process and it is for the Courts to apply it.

[20]     The appeal against conviction is dismissed.