Curle v Police HC Auckland CRI-2011-404-000176
[2011] NZHC 815
•19 July 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-000176
BETWEEN DEBORAH JANE CURLE Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 14 July 2011
Appearances: M Harte for Appellant
E Walker for Respondent
Judgment: 19 July 2011 at 10:30 AM
JUDGMENT OF VENNING J
This judgment was delivered by me on 19 July 2011 at 10.30 am, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140
Copy to: M Harte, PO Box 105-720, Auckland
CURLE V NEW ZEALAND POLICE HC AK CRI-2011-404-000176 19 July 2011
[1] Following a defended hearing before Judge Davis in the District Court at Whangarei the appellant was found guilty of driving with excess blood alcohol. She appeals against the conviction.
[2] The facts can be stated shortly. The appellant was stopped at a police checkpoint. She failed an initial screening test and a subsequent breath test. She elected to provide a specimen of blood. Eventually, after some difficulty, a specimen was obtained. That recorded the appellant’s blood alcohol level at 109 milligrams of alcohol per 100 millilitres of blood.
The defence
[3] At the District Court hearing the attending police officer and medical officer, Ms Nairn, a phlebotomist, both accepted that there had been a number of unsuccessful attempts to take blood before the blood specimen was obtained. The appellant said that there were four to six attempts. She argued that four to six attempts could not be said to be in accordance with normal medical procedures, so that the specimen eventually obtained had been obtained unlawfully and was inadmissible.
[4] Judge Davis found that there had been four unsuccessful attempts to take blood before the fifth and final attempt when a blood specimen was successfully taken. However, he considered the case to be similar to that of Carpenter v Police[1] and found s 72 of the Land Transport Act 1998 did not limit the number of attempts
provided no blood was drawn on the earlier attempts. He found the charge proved.
[1] Carpenter v Police [2006] DCR 440 (HC).
[5] For the purposes of the appeal the appellant accepts the Judge’s finding that there were four unsuccessful attempts before the final, successful attempt to obtain a blood specimen.
[6] Mr Harte referred to and relied on Auckland City Council v Bostock[2] as authority for the proposition that there was no power to take three blood specimens. He submitted that normal medical procedures only applied to the taking of the primary sample (or secondary sample under s 72(4)). It could not apply to protect numerous earlier attempts to take the blood which were effectively unauthorised assaults upon the suspect.
[2] Auckland City Council v Bostock HC Auckland M390/80, 3 June 1980.
[7] To the extent that the decisions of Carpenter and the earlier decision of Goddard J in Hilton v Police[3] suggested otherwise Mr Harte submitted they were wrongly decided. Implicit in the argument advanced for the appellant is the fall back argument advanced before the District Court that, even if the attempts to take blood could be said to be authorised, given the number of attempts in this case it could not be said that the specimen was obtained by normal medical procedures.
Decision
[3] Hilton v Police HC Wellington AP105/01, 23 August 2001.
[8] The starting point is that taking a blood specimen from a suspect is a highly invasive procedure. If not taken pursuant to statutory authority, it would be unlawful and a serious breach of s 21 of the New Zealand Bill of Rights Act 1990.
[9] Section 72(1)(b)(ii) of the Land Transport Act provides the statutory authority for a police officer to require a suspect, such as the present appellant, to permit a medical practitioner or medical officer to take a blood specimen from them:
72Who must give blood specimen at places other than hospital or surgery
(1) A person must permit a … medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—
...
(b) The person has undergone an evidential breath test under
section 69(4) …, and—
…
(ii) Within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), the person advises the officer that the person wishes to undergo a blood test; ...
[10] Blood specimen is defined in the Act as meaning:
a specimen of venous blood taken in accordance with normal medical procedures
[11] Section 74 of the Act then provides for the processing of the blood specimen. It provides for the specimen to be divided and for the analysis procedure.
[12] Section 72(4) provides that if the blood specimen taken is insufficient to be divided into two parts as is required by s 74(1) the suspect must permit a medical practitioner or medical officer to take a further blood specimen immediately after being requested to do so by that medical practitioner or medical officer. So in certain, limited, circumstances s 72 authorises the taking of two blood specimens.
[13] To support his submission that s 72 did not authorise any prior attempts Mr
Harte referred to and relied on the judgment of Mahon J in Bostock.
[14] In Bostock the medical practitioner initially tried to extract blood from Ms Bostock’s arm but only succeeded in withdrawing less than one cc of blood before the vein collapsed. The doctor then tried the other arm but again withdrew less than one cc before that vein also collapsed. She then proceeded to extract blood successfully from a vein on the back of Ms Bostock’s right hand.
[15] Mahon J upheld the findings of the lower Court that each of the first two samples of blood were specimens pursuant to the provisions of s 58B(2) of the Transport Act 1962 and that the doctor was not entitled to take a further, third specimen. Blood specimen was not defined under the Transport Act. On the issue of what constituted a specimen Mahon J held that:[4]
Any appreciable quantity of blood withdrawn from a suspect is, in my
opinion, a “blood specimen” within the meaning of the legislation.
[4] At 3.
[16] Mahon J was not prepared to infer a power to take more than two specimens where such power was not explicitly contained within the section because the subsection authorised the commission of what would, otherwise, be an unlawful assault upon the suspect.
[17] For present purposes the important feature of Bostock is that on each of the first two attempts blood specimens, being appreciable quantities of blood, were obtained, even though they were not sufficient for analysis.
[18] In the present case, although there were four attempts to draw blood the specimen was only obtained on the fifth attempt.
[19] A similar situation applied in Carpenter. On the appellant’s evidence in that case there had been four unsuccessful attempts before blood was obtained on the fifth. In the course of his decision Randerson J noted:
[23] There is authority for the proposition that the sub-section does not authorise the taking of a third sample if the second is also insufficient: Auckland City Council v Bostock HC AK M390/80 3 June 1980 per Mahon J. However, I agree with the view expressed by Goddard J in Hilton v Police HC WN AP105/01 23 August 2001 at [28] that the provision does not limit the number of attempts there may be if no blood is drawn on the earlier attempts.
[23] As Goddard J observed however:
…It is to be expected that any medical practitioner involved will exercise prudence, the requirement being that any specimen shall be taken in “accordance with normal medical procedures”.
[25] Assuming the most favourable view of the evidence in accordance
with the appellant’s account of what occurred, there is nothing to suggest
that normal medical procedures were not followed. Nor is there any evidence to suggest that the taking of the sample was carried out in an oppressive manner or that there was any element of unreasonableness in terms of s 21 New Zealand Bill of Rights Act. Apart from the appellant’s evidence that the use of the needle was “quite painful” there is nothing to suggest that there were any untoward circumstances or consequences. ...
[20] I am unable to accede to Mr Harte’s submission that Carpenter was wrongly decided and cannot stand with the decision of Bostock. Carpenter, like the present case, can be distinguished from Bostock on the basis that in Carpenter, like this case, the earlier unsuccessful attempts by the medical officer did not result in any blood specimens being taken. Bostock is authority for the proposition that if two specimens of venous blood are taken, but for whatever reason are insufficient for the purposes of s 74, s 72 does not authorise a third blood specimen to be taken. However it does not have the effect of preventing a medical officer taking a blood specimen if the first or subsequent attempts to do so are unsuccessful and do not draw blood.
[21] The issue in this case becomes whether it can be said the blood specimen that was ultimately taken on the fifth attempt was taken, as is required by the definition of blood specimen, “in accordance with normal medical procedures”. If not, it would be unlawfully taken and the evidence of the alcohol level would be inadmissible.
[22] The appellant gave evidence of severe bruising following the attempts and said that at one stage she felt faint. Ms Nairn accepted the appellant might have felt faint and that the needle used and the procedure followed could lead to bruising. Her evidence about the bruising was summed up in the following passage:
... the needle that we’re given to do EBAs is a very large needle and if someone has got difficult veins we accommodate that where I work but in this situation it can’t be helped, you get a lot of people come back with bruising if it bleeds under the tissues and your arm, if you don’t do the correct thing afterwards like drop your arm or you go into other activity, pick something up, it will bleed a long way. ...
... it depends on how cold you are, it depends on lots of things.
[23] Importantly, when experienced counsel put it to her several times that normal medical procedures were not followed in this case, she rejected that proposition. By way of example I note the following passage:
Q. So you wouldn’t say that was normal medical procedures compared to your overall life taking blood that what happens in a booze bus, on this occasion if the Judge accepts what [the appellant] says that’s not normal is it?
A. Well the fact that she bruised is common given that you use that kind of needle on someone.
[24] On the evidence the Judge was entitled to find, as I do, that the blood specimen ultimately obtained in this case was obtained in accordance with normal medical procedures.
[25] Each case must depend on its own facts. It should not be taken from this or from Carpenter that four attempts are permissible but anything more will not be. It must be a matter of evidence in each particular case whether the circumstances surrounding the taking of the specimen, where there have been unsuccessful attempts prior to the specimen being successfully obtained, can be said to be within normal medical procedures. In this case, however, the evidence supports the finding it was.
[26] Ms Nairn explained the bruising the appellant complained of is normal. The fact the appellant felt faint at one stage during the process was her reaction to the process. It does not lead to the conclusion the procedure was other than normal medical procedure. Ms Nairn accepted the appellant felt faint but still would not accept the proposition that other than normal medical procedure was followed.
Summary
[27] For the above reasons I reject the submission that Bostock is applicable here. It is distinguishable. As Judge Davis found, this case is more similar to Carpenter, which is not contrary to the findings in Bostock. This case is also similar to the District Court decision of Police v Goodman[5] referred to by Mr Harte. In that case
the Judge also accepted that evidence that three or four attempts were made to take a
specimen before one was obtained did not mean the specimen was taken other than in accordance with normal medical procedures.
[5] Police v Goodman (1986) 3 DCR 292.
[28] On the evidence before the Judge he was entitled to reject the defence and find the charge proved. The blood specimen was taken in accordance with normal medical procedures.
Result
[29] The appeal must be dismissed.
Disqualification
[30] I understand the period of disqualification has been suspended pending the outcome of this appeal. The disqualification is to operate from midnight on 21 July
2011.
Venning J
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