Darch v Police

[2019] NZHC 3449

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2019-425-000012

[2019] NZHC 3449

BETWEEN

LESLEY ANN DARCH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 December 2019
Appearances:	T McCullum for the Appellant S McKenzie for the Respondent
Judgment:	19 December 2019

JUDGMENT OF NATION J

Introduction

[1]    Ms Darch was charged with driving with excess blood alcohol (3rd or subsequent). She defended the charge on the basis the procedure by which her blood was taken was incorrect and it was improperly obtained evidence. On 8 February 2019, Judge Callaghan rejected that argument and found the charge proven. On 12 March 2019, Ms Darch was sentenced to 200 hours’ community work, 12 months’ supervision, special conditions to complete an alcohol and drug programme, and 12 months one day’s suspension from driving.

[2]    Ms Darch’s appeal was filed by previous counsel as being against conviction and sentence. Ms McCullum before me only advanced arguments as to conviction.

DARCH v POLICE [2019] NZHC 3449 [19 December 2019]

Facts

[3]    On 23 December, Ms Darch was driving her vehicle in Gore. She came close to colliding with a member of the public, who called the Police. The Police arrived and required her to undergo a roadside alcohol breath test. She was required to accompany the officer to a Police station after a roadside breath screening test proved positive.

[4]    Ms Darch was unable to complete the evidential breath screening test and was required to provide a sample of blood. She did so at the Emergency Department of Gore Hospital. The sample was taken by a nurse, Ms Borthwick.

[5]    Analysis of that sample concluded she had 277 milligrams of alcohol per 100 millilitres of blood, in excess of the 80 milligrams per 100 millilitres of blood threshold in s 56 Land Transport Act 1998 (the Act).

District Court decision

[6]    Ms Darch’s defence at trial, and on appeal, is that the blood was not taken by Ms Borthwick following the correct procedure in the Act. Judge Callaghan set out how Ms Darch and the respondent differed as to the facts of the way that blood sample was taken.

[7]    The nurse’s evidence was that there were two initial attempts to take blood from Ms Darch. They were stopped because Ms Darch was upset or moving. Neither time was Ms Darch’s skin pierced (although it may have been scratched when she moved the first time). In both instances the nurse gave Ms Darch time to compose herself. The nurse obtained the blood on the third attempt. Conversely, Ms Darch said the needle went into her left arm three times before the nurse tried twice on her right arm. She says that blood was obtained on the fifth puncture.

[8]The judge said when comparing the evidence:

... I prefer the evidence of Ms Borthwick who was able to recall quite clearly what the procedures were, the fact that she attempted to puncture the vein on the first occasion, but did not and openly admitted a slight touching the skin surface which did not draw blood when Ms Darch's arm moved away, that she

gave her a chance to recollect herself and then attempted again with her permission. Again because of the state that Ms Darch was in, namely that she was anxious and quite shaky, she again was unable to puncture the vein on the second occasion and did not actually touch the skin, that on the third occasion the procedure went through and she extracted the two samples of blood. I reject Ms Darch's assertion that there were five puncture wounds. She openly admitted that she was intoxicated on this day, she maintains that she has a good memory of what occurred but her level of 262 milligrams of alcohol per 100 millilitres of blood Would indicate that she was extremely intoxicated at the time that this was occurring. She also says that she was lying on the bed. The clear evidence of both the constable and the nurse was that she was sitting in the chair with her left arm on the bed. I reject her evidence and prefer the evidence of the constable.

[9]    The Judge set out in detail how the blood was taken. He noted the nurse had 25 years of experience and took blood two or three times a day by needle. The nurse explained two officers were in the room while this happened. One of those officers, Constable Robinson, gave evidence that he saw the vein get punctured once. Ms Darch gave evidence that only one Police officer was present. That is despite the constable being able to give the name of the policewoman present.

Principles on appeal

[10]   Section 232 Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.1 In this section, a trial includes a proceeding in which the appellant pleaded guilty.2

[11]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.3

1      Section 232(4).

2      Section 232(5).

3      Criminal Procedure Act, ss 250(2) and 250(3).

Submissions

[12]   In her initial submissions for Ms Darch, her present counsel Ms McCullum said:

As the appellant’s original counsel was suspended from practice within a short time following the appellant’s Judge along trial, counsel submits that it is in the interests of justice that this appeal is allowed. Issues with counsel is a well established ground for granting of an appeal.

[13]   On the hearing of the appeal, Ms McCullum said the background was advanced with the appeal when it was first due to be heard. At that time, she had been unable to properly advance the appeal through being unable to obtain from previous counsel the record of evidence from trial or any other material or information that he had held. That had been subsequently remedied through further information provided to her by the Crown, the Police and the Court. That ground of appeal was not advanced further at the hearing. The position as to that submission is as stated by Mr Donnelly for the Crown in his written submissions.

[14]   The further ground of appeal, as filed by Ms Darch’s previous counsel, was that the Judge had been in error in accepting the evidence of prosecution witnesses. It was submitted for Ms Darch on appeal that the Judge placed significant weight on the evidence of Mr Borthwick, the nurse. Counsel pointed to the conflict between what the nurse and constable said with what Ms Darch said and tentatively suggested that the Judge had not given adequate reasons for preferring the evidence of prosecution witnesses to that of Ms Darch.

[15]   For the respondent, the Crown submits that a simple error in an assessment of evidence will not justify an appellate court overturning a conviction unless the error was to such an extent that a miscarriage of justice has occurred. The respondent says that has not occurred here.

Analysis

[16]   When considering the conduct of trial counsel, the relevant principles are well settled. In R v Sungsuwan, Gault J said:4

[C]onsideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

[17]   In the Court of Appeal, Arnold J later stated (referring to Sungsuwan) that the focus should be on the trial process and its outcome, rather than on the characterisation of counsel’s conduct.5

[18]   In a matter involving the appellant’s trial counsel, Mr Claver, the Supreme Court recently issued a judgment in the matter of Bunting v R.6

[19]   Although the Supreme Court left open the possibility that an unfair trial could have resulted (based on the finding of the New Zealand Lawyers and Conveyance Disciplinary Tribunal that over a period of two to three years there had been a range of failures by Mr Claver) the Crown submits the principles earlier articulated remain relevant. It is not enough to say that because of later disciplinary sanctions all of the proceedings previously conducted by trial counsel, within the time period relating to his/her misconduct, represent miscarriages of justice. Something from the trial must still be identified as giving rise to an unfair trial, or a trial that is a nullity.

[20]   The Court of Appeal had earlier reviewed Mr Claver’s conduct at trial (in the prosecution of Mr Bunting) and had dismissed the appeal based on trial counsel error (and other grounds).7

4      R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70].

5      R v Scurrah CA 159/06, 12 September 2006.

6      Bunting v R [2019] NZSC 95.

7      Bunting v R [2018] NZCA 602.

[21]   Under s 72 Land Transport Act, a Police officer may require a suspect, such as the present appellant, to permit a medical practitioner or medical officer to take a blood specimen from them. 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. In Curle v Police the High Court held that it followed that, in certain, limited circumstances, s 72 authorises the taking of two blood specimens.8

[22]   The restriction on taking blood specimens is because taking a specimen from a person is highly invasive.9 If not taken pursuant to statutory authority, it would be unlawful and a serious breach of s 21 New Zealand Bill of Rights Act 1990.

[23]   Counsel for Ms Darch seeks to advance an argument that testing done by Ms Borthwick was in breach of procedure and thus her rights. This appeal can only be allowed if this Court is satisfied that the trial Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. Ms Darch has failed to put forward any error in the sentencing Judge’s reasoning and there is no reason why the evidence for Ms Darch should be preferred over the evidence of an experienced nurse and Police officer. In the passage of the Judge’s decision cited above, he does adequately explain why he provided the evidence of crucial prosecution witnesses.

[24]   In any event, even taking the most favourable view of the evidence in line with Ms Darch’s account of what occurred, there is nothing to suggest there was a breach of medical procedure.

[25]   That procedure was set out by Judge Callaghan with referred to Bostock and Carpenter.10 In Carpenter, there were said to have been four unsuccessful attempts  to take a blood sample before a successful one on the fifth. In Bostock, the medical practitioner initially tried to extract blood from Ms Bostock’s arm but only succeeded

8      Curle v Police HC Auckland CRI-2011-404-000176 at [14].

9 At [8].

10     Auckland City Council v Bostock HC Auckland, m390/80, 3 June 1980 and Carpenter v Police

[2006] DCR440.

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. The evidence was allowed in Carpenter but was not allowed in Bostock.

[26]   In the present case, Ms Darch does not allege that blood was taken in any of the first four attempts, as described by Ms Darch. As Venning J held in Curle v Police:11

…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.

[27]   I do not prefer the evidence of Ms Darch. Even if I did, she does not claim more than two specimens of blood were taken. As in Carpenter, there has been no breach of medical procedure. Nor was there any element of unreasonableness in terms of s 21 New Zealand Bill of Rights Act.

Conclusion

[28]Accordingly, the appeal is dismissed.

Solicitors:

Southern Law, Invercargill

Preston Russell Law, Invercargill.

This judgment was delivered by me on 19 December 2019 at 4.00 pm Registrar / Deputy Registrar

Date:  19 December 2019

11 At [20].