De Montalk v Police

[2012] NZHC 3182

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-488-41 [2012] NZHC 3182

MYLES DE MONTALK

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 and 21 November 2012

Counsel:         Appellant in person

C A Anderson for Respondent

Judgment:      28 November 2012

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 28 November 2012 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

MYLES DE MONTALK V NEW ZEALAND POLICE HC WHA CRI-2012-488-41 [28 November 2012]

[1]      Mr De Montalk pleaded not guilty in the District Court to charges of careless driving and refusing to  permit a  blood specimen to be taken after having been requested to do so by a medical practitioner under s 73 of the Land Transport Act

1998 (“the Act”).  Section 60(1)(c) of the Act makes it an offence for a person who has been required by a medical practitioner to give a blood specimen under s 73 of the Act to refuse to permit the medical practitioner to take that specimen.

[2]      Following a defended hearing that lasted three days, Judge Field delivered a reserved decision on 13 March 2012.  The Judge dismissed the charge of careless driving, but convicted Mr De Montalk on the charge of refusing to permit a blood specimen to be taken.1   Mr De Montalk appeals to this Court against his conviction on that charge.

Facts

[3]      The charge was laid following an incident that occurred on the morning of

30 December  2010.    At  around  7  am  on  that  date,  residents  in  Jervois  Street, Dargaville heard a loud crash.   When they went to investigate, they found that a black Toyota Estima van had collided with, and caused serious damage to, a lamp post in the street. The collision had also caused serious damage to the vehicle.

[4]      There was no dispute that Mr De Montalk was the driver of the vehicle when it collided with the lamp post.  When residents and passing motorists arrived at the scene, he emerged from the damaged vehicle and was seen to be in a dazed state.  A short time later the police arrived, together with staff from the fire and ambulance services.

[5]      The police officer initially in charge at the scene was Constable Brett Steel. He observed signs indicating that Mr De Montalk was affected by alcohol.  Mr De Montalk also told him he had been drinking alcohol the previous evening.   The constable therefore required Mr De Montalk to undergo a breath screening test.  This

resulted in a reading of “Fail General”.  As a result, the constable required Mr De

1 Police v De Montalk DC Dargaville CRI-2011-011-142, 13 March 2012.

Montalk to accompany him to the Dargaville police station for the purposes of undergoing an evidential breath test, blood test or both.

[6]      At that stage officers from the ambulance service intervened.   They told Constable Steel that they wanted to take Mr De Montalk to hospital.  Mr De Montalk was then placed in an ambulance, and taken to the Dargaville Hospital.

[7]      The first doctor to approach Mr De Montalk in the emergency room of the hospital was Dr Norrie.  Mr De Montalk made it clear that he did not wish Dr Norrie to  examine  him,  and  addressed  Dr Norrie in  derogatory terms.   This  exchange occurred because Mr De Montalk knew that Dr Norrie worked at the Dargaville Medical Centre, which was adjacent to the hospital.   Mr De Montalk had been involved in a long running dispute with the medical centre, because he believed that it had threatened to disclose confidential information about him to unauthorised persons.  Dr Norrie took umbrage at Mr De Montalk’s remarks.  He left the room and spoke to another doctor, Dr Van der Hulst.

[8]      Dr Van der Hulst then came into the emergency room, and introduced himself to De Montalk.  The prosecution contended he also made several requests for Mr De Montalk to provide a sample of his blood for evidential purposes.  Mr De Montalk refused each of those requests.

[9]      Thereafter,  Constable  Steel  did  not  charge  Mr  De  Montalk  immediately. Instead, he issued summonses approximately two months later.

Issues on appeal

[10]     In the written points that Mr De Montalk filed in support of his appeal, he raised numerous issues.  During the hearing before me, however, he concentrated on three principal issues. These were:

(a)       The charge was misconceived;

(b)      Dr Van der Hulst was not entitled under s 73(1) of the Act to request

Mr De Montalk to provide a blood specimen; and

(c)      Mr De Montalk’s ability to effectively defend the charge was grossly undermined by the failure of the prosecution to comply with its obligations as to disclosure, and the Court’s denial of his right to summons material witnesses.

Was the charge misconceived?

[11]     Mr De Montalk did not raise this issue during the hearing before Judge Field. It arises because Mr De Montalk contends he committed the offence of refusing to provide a blood sample when he refused a request made by Dr Norrie.  He maintains that, because he had already committed that offence, the prosecution could not rely on the fact that he may also have subsequently refused similar requests by Dr Van der Hulst.

[12]     Mr De Montalk did not explain the legal basis for this submission.  It appears to be based on an argument that, once Mr De Montalk committed the offence during the discussion with Dr Norrie, any subsequent refusal of further requests by another medical practitioner could not give rise to a further offence.

[13]     It is not necessary to consider the validity of this argument in legal terms, however, because I am satisfied that the evidence does not provide the necessary factual basis for it.

[14]     The prosecution did not call Dr Norrie to give evidence at the hearing before Judge Field.   The only doctor who gave evidence was Dr Van der Hulst.   The prosecution presumably considered Dr Norrie’s evidence to be largely irrelevant, because the charge did not depend on any request he may have made for a sample of Mr De Montalk’s blood.

[15]     Importantly, however, when Mr De Montalk gave evidence he did not say that Dr Norrie requested him to provide a blood sample.   When describing his encounter with Dr Norrie, he said:

... I was approached [at the hospital] by somebody who said he was a doctor and I said, “Well show me your credentials,” because there was no obvious sign who that person was.  I realised that he was Dr Norrie and he was part of the people who had threatened to release information which is why they were refused permission to treat me about a year, 18 months earlier and were not allowed to hold my records or to have anything to do with me.   So I reminded him [of] this and he walked away.   I did abuse him about his complicity and having threatened to release my medical details if I didn’t comply with hospital staff.

[16]     Constable Steel and Senior Sergeant Nordstrom were both in the emergency room when Dr Norrie was speaking to Mr De Montalk.  They did not say in their evidence-in-chief that they heard Dr Norrie request Mr De Montalk to provide a blood sample for evidential purposes, and Mr De Montalk did not cross-examine them to that effect.  There was therefore no evidence to establish that Dr Norrie ever made such a request.

[17]     During the hearing before me, Mr De Montalk sought to rely on medical notes apparently made by Dr Norrie on the day of the incident. These are held on the computer database of the Dargaville Medical Centre, where Dr Norrie works.  I deal subsequently2 with Mr De Montalk’s inability to call the practice manager from the medical centre as a witness for the defence to produce these notes.   One of the reasons he sought to call this witness was to have her produce the medical records as

an exhibit.  Dr Norrie’s notes contain a notation that Mr De Montalk “refused blood

alcohol test until spoken with lawyer”.

[18]     Even if this evidence had been before the Judge, however, it would not have established that Mr De Montalk had committed the offence of refusing a request to supply a blood specimen.  Constable Steel had advised Mr De Montalk of his rights under the New Zealand Bill of Rights Act 1990 at the scene of the collision after Mr De Montalk failed the breath screening test.   He did so when he required Mr De Montalk to accompany him to the Dargaville Police Station.  These rights included

the right to consult and instruct a lawyer without delay and in private.3     Mr De Montalk responded to that advice by saying “Yeah, let’s go see a lawyer”.   The constable then made arrangements for a cellphone and a list of lawyers to be brought to the scene.   Before they arrived, however, Mr De Montalk was placed in the ambulance and taken to the hospital.

[19]     At the time Mr De Montalk spoke to Dr Norrie in the emergency room, he was still waiting to exercise his right to consult and instruct a lawyer.  He was unable to exercise that right until after Dr Norrie had left the room to get Dr Van der Hulst. At that point Constable Steel was able to put Mr De Montalk in contact with his lawyer of choice in Auckland.  For that reason the police could not have charged Mr De Montalk with failing to provide a specimen of his blood during his discussion with Dr Norrie.

[20]     This ground of appeal fails on the facts as a result.

Was Dr Van der Hulst entitled under s 73(1) of the Act to require Mr De

Montalk to provide a blood specimen?

[21]     In order to commit an offence under s 60(1)(c) of the Act, a person must refuse a request for a blood specimen made by a medical practitioner under s 73. Section 73 relevantly provides:

73     Who must give blood specimen in hospital or surgery

(1)     A person who is under examination, care, or treatment in a hospital or doctor's surgery must permit a blood specimen to be taken from the person by—

(a)     The medical practitioner who is in immediate charge of the examination, care, or treatment of the person; or

(b)     Another medical practitioner or a medical officer.

...

(3)     The   medical   practitioner   who   is   in   immediate   charge   of   the examination, care, or treatment of the person in a hospital or doctor's surgery—

(a)     may take a blood specimen or cause a blood specimen to be taken by another medical practitioner or a medical officer; and

(b)     must either take a blood specimen or cause a blood specimen to be taken by another medical practitioner or a medical officer, if an enforcement officer requests him or her to do so,—

whether or not the person has consented to the taking of the specimen and whether or not the person is capable of giving consent.

…

(5)     Despite subsection (3), a blood specimen may be taken under any provision of this section only if the medical practitioner—

(a)     has  reasonable  grounds  to  suspect  that  the  person  is  in  the hospital or doctor's surgery as a result of—

(i)     an accident or incident involving a motor vehicle:

(ii)     an injury or a medical condition arising subsequent to an accident or incident involving a motor vehicle; and

(b)     has examined the person and is satisfied that the taking of the blood specimen would not be prejudicial to the person's proper care or treatment; and

(c)     tells the person (unless the person is unconscious) that the blood specimen is being or was taken under this section for evidential purposes.

[22]     Mr De Montalk contends he never agreed to travel to the hospital from the scene of the collision.  He maintains he was taken there in the ambulance against his will, and that he never sought or agreed to undergo or receive care, examination or treatment at the hospital.  As a consequence, Mr De Montalk contends that Dr Van der Hulst never assumed responsibility for his care, examination, or treatment for the purposes of s 73(1) and (3).  It follows that he was not required to permit Dr Van der Hulst to take a blood sample under s 73, and he could not be guilty under s 60(1)(c) of the offence of refusing to permit a blood specimen to be taken.

[23]     In order to understand this issue, it is necessary to set out in further detail the events that occurred at the scene of the collision.

[24]     Constable Steel said that when one of the ambulance officers told him that they wanted to take Mr De Montalk to the hospital to be checked out, he agreed to that request.  He said he was not prepared to jeopardise Mr De Montalk’s health for

the sake of an evidential testing procedure.  Constable Steel therefore released Mr De Montalk into the care of the ambulance officers.  Constable Steel and another officer, Sergeant Nordstrom, followed behind the ambulance in their patrol vehicle.

[25]     The prosecution did not call either of the ambulance officers to give evidence at the hearing.  Constable Steel did not see Mr De Montalk get into the ambulance, and was accordingly unable to give evidence about the events that occurred at that time.  As a result, the only evidence on the point was that given by Mr De Montalk. He said:

The, the next thing I remember is being spoken to by Constable Steel, who asked me to blow into a device, which I did.  Constable Steel told me that was a “general fail” and required me, I can’t remember whether before or afterwards, he red [sic] me my rights and required me to accompany him to, I believe he said to the police station for – I think it was an evidentiary breath test.  But I cannot be sure on that.  However, my understanding was that we were going to the police station for the next test.  Then Constable Steel walked away to another police car.  The paramedics by this time were annoying me and I was getting very angry and very agitated with them, that I didn’t want to have anything to do with them.   There was nothing wrong with me and to leave me alone et cetera, et cetera, et cetera.  I don’t know how I wound up in Dargaville Hospital except to assume it must have been in the ambulance; however, at no stage did I agree or want to be in the thing and was still arguing about that very point at the hospital.

[26]     In cross-examination, Mr De Montalk reiterated that he had not gone to the hospital voluntarily. At this point in the evidence the following exchange occurred:

Q.        ... So you don’t necessarily have an issue with constable rescinding, as you’ve said before, rescinding his request to accompany on the basis that the ambulance officers requested you go to the hospital?

A.        I have no idea on what basis.   I, I, I see, the assumption you’re making but, no, I was not clear that that was the condition of.  Because I then argued with the ambulance officers boisterously and aggressively to let me out of the ambulance because I was not going anywhere near the Dargaville Hospital with those doctors and it was on computer that I wasn’t allowed to be there and they weren’t allowed to touch me.

...

A.        ... There’s no way I wanted to go in that ambulance to that hospital.

I was a free man as far as I was concerned, I was being kidnapped off the street, my rights under the New Zealand Bill of Rights is that you can go

unhindered about the country; not have people posing as ambulance officers plucking people off the street for their own financial gain or for

any other reason. ...

[27]     Importantly, Constable Steel confirmed in cross-examination that, once the ambulance officers intervened, he effectively rescinded the requirement that Mr De Montalk was to accompany him to the police station for further testing procedures. As a consequence, Mr De Montalk was no longer subject to that requirement after he entered into the care of the ambulance officers.

[28]     Given  the  fact  that  there  is  no  evidence  to  contradict  Mr  De  Montalk’s version of events, it is necessary to proceed on the basis that Mr De Montalk went to the hospital in the ambulance against his will.   The evidence also establishes conclusively  that,  after  he  arrived  at  the  hospital,  Mr  De  Montalk  resisted  all attempts by both Dr Norrie and Dr Van der Hulst to examine him for injury.

[29]     I have not heard argument as to whether ambulance officers have statutory or common law powers to take a person who has been involved in a motor vehicle accident to hospital against the person’s will.   Nor have I heard argument as to whether medical staff have the power to require such a person to remain at the hospital for the purposes of examination or observation.  It is clear, however, that Mr De Montalk had the right to refuse any medical treatment that he may have been

offered by both the ambulance officers and the medical staff at the hospital.4

[30]     I reject, however, Mr De Montalk’s submission, encapsulated in the passage of evidence set out above,5  that he was effectively kidnapped by the ambulance officers and transported to the hospital.   This appears to have its basis in Mr De Montalk’s belief that the ambulance officers were parties to a conspiracy with the police.  The object of the conspiracy, as he sees it, was to take Mr De Montalk to the hospital against his will, and thereby put him into a position where he would incriminate himself by refusing to provide a blood sample.

[31]     There is nothing in the evidence to support this submission.  To the extent that the evidence deals with the point, it appears that the ambulance officers were concerned for Mr De Montalk’s welfare following the collision. This prompted them

to suggest to Constable Steel that they would take Mr De Montalk to the hospital for

4 New Zealand Bill of Rights Act 1990, s 11.

5 At [26].

further observation.  There is nothing in the evidence to suggest that the ambulance officers had any ulterior motive for their actions.

[32]     More importantly, the submission flies in the face of logic and common sense.  Mr De Montalk accepts that Constable Steel had lawfully required him to go to the police station to undertake further testing procedures after he failed the breath screening test.  Constable Steel was therefore entitled to require Mr De Montalk to undergo evidential breath and/or blood testing procedures upon arrival at the police station.  If he refused to undergo those procedures, the constable could have charged

him6 in much the same way as he charged Mr De Montalk after he refused to comply

with Dr Van der Hulst’s request that he supply a blood sample at the hospital.  The police therefore had no need to concoct an elaborate plan to have the ambulance officers take Mr De Montalk to the hospital so that a doctor could require him to provide a blood specimen upon his arrival there.

[33]     I therefore do not accept that the ambulance officers and the police acted in bad faith, or had any ulterior motive, when they took, or allowed Mr De Montalk to be taken, to the hospital from the scene of the collision.

[34]     Even  if  Mr  De  Montalk  was  at  the  hospital  against  his  will,  he  was nevertheless there for the purposes of being examined and, if necessary, treated for any injury he may have sustained in the accident.  For the purposes of s 73(1), Dr Norrie was the first medical practitioner in immediate charge of examining Mr De Montalk after he arrived in the emergency room of the hospital.   Once Mr De Montalk and Dr Norrie parted company, Dr Van der Hulst assumed that role.

[35]     Constable Steel said that after Dr Van der Hulst had unsuccessfully tried to examine Mr De Montalk for injury, he (Constable Steel) asked Dr Van der Hulst to take a blood specimen from Mr De Montalk for evidential purposes.   Dr Van der Hulst said that when the constable made this request he (Dr Van der Hulst) was aware from what he had been told that Mr De Montalk had arrived at the hospital by ambulance after having earlier been involved in a car accident.   Dr Van der Hulst

also said that he told Mr De Montalk that he wanted to take the blood sample “for

6 Under s 60(1)(b) of the Land Transport Act 1998.

the evidence” to check for alcohol.  Although Dr Van der Hulst requested Mr De Montalk to provide a blood sample on three occasions, Mr De Montalk declined each request.

[36]     Section 73(3)(b)7  expressly requires a medical practitioner to take a blood specimen from a person when requested to do so by an enforcement officer.   The medical practitioner must take the specimen whether or not the person from whom the specimen is to be taken consents to that being done.  The medical practitioner is only required to comply with such a request when the pre-requisites listed in s

73(5)(a), (b) and (c) have been satisfied, but those pre-requisites were all satisfied in the present case.  As a consequence, Dr Van der Hulst was obliged to take a blood specimen from Mr De Montalk whether Mr De Montalk consented to that or not.

[37]     Given that background, I am satisfied the Judge was correct to find that Dr Van der Hulst was entitled under s 73(1) to request Mr De Montalk to provide a blood specimen for evidential purposes.   As a consequence, Mr De Montalk committed an offence against s 60(1)(c) of the Act when he refused to permit Dr Van der Hulst to take a specimen.  There was therefore nothing unfair or improper about the circumstances in which Dr Van der Hulst requested Mr De Montalk to provide a blood specimen.

[38]     Had I concluded that the evidence of Mr De Montalk’s refusal was unfairly or improperly  obtained,8   it  would  have  been  necessary  for  me  to  undertake  the balancing process prescribed by s 30(2) and (3) of the Evidence Act 2006.   My earlier findings, however, would also have led me to conclude that the exclusion of Dr Van der Hulst’s evidence would have been disproportionate to any impropriety that may have occurred.9

[39]     I accept it is a serious matter for anybody to take a person anywhere against his or her will.  I consider, however, that the circumstances in this case justified the actions of all parties who dealt with Mr De Montalk.   He had been involved in a

serious collision, and several witnesses described how he appeared to be in a dazed

7 Set out at [21] above.

8 Under s 30(2)(a) of the Evidence Act 2006.

9 In terms of s 30(2)(b) of the Evidence Act 2006.

state when he got out of his vehicle.  It is therefore not surprising that the ambulance officers wished to take him to the hospital for observation.  It is also not surprising that Constable Steel wanted to continue with the evidential test procedures once Mr De Montalk failed the breath screening test.   Once Mr De Montalk was at the hospital, Constable Steel had the power under s 73(3)(b) to request Dr Van der Hulst to take a blood specimen from Mr De Montalk for evidential purposes.   Section

73(3)(b) obliged Dr Van der Hulst to comply with that request whether Mr De Montalk consented to the taking of a blood specimen or not.  In those circumstances the fact that Mr De Montalk may have been at the hospital against his will fades into insignificance.

[40]     For these reasons I consider exclusion of the evidence of Mr De Montalk’s refusal to provide a blood specimen would have been a wholly disproportionate response to any impropriety that may have occurred.

Were Mr De Montalk’s fair trial rights grossly undermined?

Lack of disclosure

[41]     This issue assumed considerable prominence in interlocutory hearings during the months leading up to the defended hearing before Judge Field.  It also took up a considerable amount of time during the defended hearing, as well as the appeal before me.

[42]     In short, Mr De Montalk maintains that the prosecution failed miserably to comply with  its  disclosure  obligations  under the Criminal  Disclosure Act  2008. Furthermore, he contends that several Judges in the District Court failed to protect his fair trial rights in this context.

[43]     On appeal, Mr De Montalk identified two discrete areas in respect of which he maintains disclosure was deficient.

Police radio transcripts

[44]     Mr  De  Montalk  pointed  out  that  the  police  have  never  made  available transcripts of radio communications between those in command at the Dargaville Police Station and the officers who attended the scene of the collision.   Mr De Montalk raised this issue prior to the defended hearing before Judge Field, and also during the hearing itself.  The prosecutor was not able to advise the Judge whether recordings of the communications were still in existence.  He said that, if they still existed, it would take some time for transcripts to be prepared. The hearing therefore proceeded notwithstanding the fact that the transcripts were not available.

[45]     During the hearing before me, I asked Mr De Montalk to explain why he considered the radio communications to be relevant.  He told me that their relevance arose as a result of past dealings, which he described as a “history”, between himself and a senior Dargaville police officer, Senior Sergeant Leach.  Mr De Montalk said that the actions of the police at the scene of the collision had been “weird”.   He believed responsibility for this lay with the senior sergeant, who had deliberately orchestrated the actions of the police at the scene to Mr De Montalk’s disadvantage. He believes the radio communications would prove this to be the case.

[46]     This submission is not, however, borne out by the evidence.  Constable Steel was directed to attend the scene of the collision by the communications centre at the Dargaville Police Station.   This followed telephone calls to the police station by residents in Jervois Street, who had heard the collision and seen its aftermath. Constabel Steel made no mention, and was not asked, about any dealings he may have had with Senior Sergeant Leach on the morning of the incident.

[47]     Constable Steel was accompanied to the scene by Constable Curnow.  In his written brief of evidence, which he read to the Court, Constable Curnow said he was “directed” to attend the scene of the collision on the morning of 30 December 2010. Mr De Montalk did not cross-examine Constable Curnow regarding any discussions he may have had with Senior Sergeant Leach on that day.  When the Judge asked Constable Curnow if he had had any dealings with Senior Sergeant Leach on that morning, he said he had not dealt with her at all.

[48]     The  only  police  officer  to  mention  Senior  Sergeant  Leach  was  Senior Constable Jones.  He confirmed that Senior Sergeant Leach had directed him to go to Jervois Street.  He also said that the senior sergeant gave him her measuring wheel so that he could take measurements at the scene of the collision.  Mr De Montalk did not cross-examine Senior Constable Jones about any discussions he may have had with Senior Sergeant Leach on the morning of the collision.

[49]     There is therefore nothing in the evidence to substantiate Mr De Montalk’s belief that Senior Sergeant Leach deliberately orchestrated police operations on the morning of 30 December 2010 to his disadvantage.  There is no evidence, in fact, that Senior Sergeant Leach or other members of police staff at Dargaville Police Station were even aware that Mr De Montalk was the driver of the vehicle that had been involved in the collision.

[50]     The evidence does not support Mr De Montalk’s assertion that the police response to the collision was unusual.   Rather, it appears to have been entirely orthodox.  The police were obliged to investigate the incident, because it involved a reasonably serious collision in which significant damage had been caused to both a power pole and Mr De Montalk’s vehicle.  There was therefore a possibility that the driver of the vehicle may have been injured.

[51]     Once Constable Steel established that Mr De Montalk had been the driver and that he exhibited signs of intoxication, it is entirely understandable that the constable required Mr De Montalk to undergo a breath screening test.   He would obviously have appreciated at that point that alcohol may have been a contributing factor to the collision.  When Mr De Montalk failed the breath screening test, it was inevitable that Constable Steel would require him to go to the police station to undergo further evidential testing procedures.

[52]     I therefore do not accept that the actions of the police on the morning of the collision were in any way unusual.  Nor is there any evidence to suggest that Senior Sergeant Leach knew of Mr De Montalk’s involvement in the collision, or that she played a role in determining how Constable Steel was to deal with Mr De Montalk after he established that Mr De Montalk was the driver.  As a consequence, I do not

accept that the failure by the prosecution to provide transcripts of radio communications undermined Mr De Montalk’s right to advance an effective defence to the charge.

Names of witnesses

[53]     Mr De Montalk’s next complaint is that the prosecution failed to provide him with the names of persons who were interviewed at the scene of the collision.   In addition, the police and the ambulance service declined to provide Mr De Montalk with the names of the two ambulance officers who attended the scene and took him to the hospital.   Mr De Montalk contends that these omissions significantly undermined his ability to prepare his defence.

[54]     During   the   hearing   before   me,   Mr   De   Montalk   explained   that   the circumstances in which he came to be taken to the hospital against his will formed an important plank of his defence.  He believed that those who were in the vicinity at the scene of the collision after the arrival of the ambulance, including the ambulance officers themselves, may have been able to assist him to establish that he was placed in the ambulance and taken to hospital against his will.

[55]     There appears to be little dispute that the prosecution did not provide Mr De Montalk  with  the names of the civilian  witnesses  they would  be calling at  the hearing until the day of the hearing itself.  There is a suggestion in the transcript that the prosecution took this step because it was concerned for the privacy of these persons.  I infer that the prosecution was concerned that Mr De Montalk might try to harass prosecution witnesses if he was given their names prior to the hearing.

[56]     The approach taken by the prosecution in this case therefore appears to be at odds with the obligations imposed on the prosecution by the Criminal Disclosure Act

2008.   This requires the prosecution to provide the defence with a copy of any statement made by, and any brief of evidence prepared in respect of, a prosecution witness.10    It also requires the prosecution to provide the name and, if disclosure is

authorised under s 17, the address of any person who has been interviewed and who

10 Criminal Disclosure Act 2008, ss 13(1), (2) and (3)(a) and (b).

has given the prosecutor relevant information, but whom the prosecution does not intend to call as a witness.11    Mr De Montalk was able to point to one person who was interviewed by the police on the day of the collision, but whose name was mentioned for the first time during the course of the trial.

[57]     I therefore accept Mr De Montalk’s submission that he did not receive all of the disclosure to which he was entitled prior to the commencement of the trial.  It is also regrettable that the prosecution did not advise Mr De Montalk of the fact that it proposed to call Dr Van der Hulst as a witness until the morning of the hearing. Similarly, he was not advised until that point that the prosecution did not intend to call Dr Norrie.

[58]     I am satisfied, however, that no miscarriage of justice occurred as a result of any failure by the prosecution to meet its  obligations as to disclosure.   This is because, as noted above,12  the only evidence at trial regarding the circumstances in which Mr De Montalk was placed in the ambulance and taken to the hospital came from him.  As a result, it is necessary to proceed on the basis that he did not consent to being taken to the hospital in the ambulance.

[59]     I have held, however, that the fact that he may have been taken to, and kept at, the hospital against his will did not affect Constable Steel’s power to request Dr Van der Hulst to take a blood specimen from Mr De Montalk.  For that reason I do not consider Mr De Montalk was prejudiced in defending the charge by any lack of disclosure in this respect.

Cellphone records

[60]     When Constable Steel arranged for Mr De Montalk to talk to his lawyer of choice at the hospital, the call was prematurely disconnected on two occasions.  He believed at the time that the police had caused this, but there is no evidence to suggest that is the case.   He sought the disclosure of cellphone records so that he

could explore this issue further.

11 Ibid, s 13(3)(c).

12 At [25].

[61]     In my view nothing turns on this point, because Mr De Montalk has never complained that he was disconnected on the third occasion when he spoke to his lawyer.  For that reason he cannot claim that he was denied the opportunity to take legal advice before Dr Van der Hulst requested him to provide a blood specimen. The cellphone records would therefore have been of no material relevance to Mr De Montalk in defending the charge.

Failure to permit Mr De Montalk to call relevant evidence

[62]     Prior to the hearing in the District Court, Mr De Montalk endeavoured to summons several witnesses to give evidence on his behalf at trial.  Some of these were police officers  and  Judges  who had  been  involved  in  earlier interlocutory hearings.  For reasons that are probably obvious, these witness summonses were set aside, and Mr De Montalk does not take issue with that on appeal.

[63]     On appeal, his principal complaint was that he was not permitted to call two witnesses in his defence.  The first of these was Senior Sergeant Leach, to whom I have already referred.13    During the hearing before me, however, Mr De Montalk appeared to accept that, as the evidence unfolded in the hearing before Judge Field, it is unlikely that the senior sergeant would have been in a position to add materially to his defence.  For the reasons set out above,14 I agree with that assessment.  There is nothing to suggest that Senior Sergeant Leach could have provided further evidence that was relevant to Mr De Montalk’s defence.

[64]     The second potential witness was Ms Judy Harris, the practice manager of the Dargaville Medical Centre.   As noted above,15  Mr De Montalk sought to call Ms Davis as a witness to produce the medical records held on the medical centre’s database.

[65]     I have already held16   that  these records  would  not  have assisted  Mr De

Montalk so far as the notes made by Dr Norrie are concerned.  Mr De Montalk also

13 At [45] to [52].

14   Idem.
15 At [17].

16 At [18] to [19].

sought, however, to have the medical records produced because of his belief that they would assist him to undermine Dr Van der Hulst’s credibility.  In this context Mr De Montalk wished to rely on the following entry made by Dr Van der Hulst on

30 December 2010:

30-Dec-2010    Asked  to  review  at  Ward  2  post  MVC  [motor  vehicle collision] (restrained driver van vs power pole) for evidential blood test. Strongly declined.  would not allow review for injury either.

No obvious external injury. See POL387A – scanned in.

[66]     The relevance of these notes is that the last line suggests that Dr Van der Hulst  scanned  a  police  form  known  as  “POL387A”  into  the  medical  centre’s database.  POL387A is a printed form headed “Medical Record of Examination”.  Dr Van  der  Hulst  said  in  evidence  that  he  completed  this  form  at  8.50  am  on

30 December 2010.  This was a short time after he had spoken to Mr De Montalk in the emergency room at the hospital.

[67]     During the hearing before Judge Field, Dr Van der Hulst referred to this form but did not produce it as an exhibit.  The copy of the form to which Dr Van der Hulst referred in evidence contains detailed notes about the discussion he had held with Mr De Montalk in the emergency room of the hospital.

[68]     Mr De Montalk maintains that he has obtained a copy of the records from the medical centre, and has ascertained that the form that Dr Van der Hulst scanned into the medical centre’s records was blank.  He believes this demonstrates that Dr Van der Hulst was lying when he told Judge Field that he had completed the form at 8.50 am  on  the morning of  the incident.    It  shows,  he says,  that  Dr Van  der Hulst obviously completed the form much later.

[69]     The question that immediately arises is why Dr Van der Hulst would want to scan a blank form into the medical centre records in the first place.  There could be no advantage or utility to him in doing that, because his failure to complete the form would be discovered as soon as anybody searched the medical centre’s records.

[70]     Surprisingly, Mr De Montalk says he cannot now find the blank form that he says he had in his possession at the time of the defended hearing.  It is difficult to see how he could have lost such an important document when he has been able to keep careful track of all the other documents relating to the prosecution.

[71]     More importantly, the transcript of the defended hearing reveals that Mr De Montalk never raised the issue of a blank POL387A form at any stage.  Nor did he cross-examine Dr Van der Hulst about it.  Section 92(1) of the Evidence Act 2006 requires a party to cross-examine a witness on material matters that contradict the evidence of the witness.   Mr De Montalk therefore had an obligation to cross- examine Dr Van der Hulst regarding this issue if he wished to take it further.  His failure to do so means that it is now not open to Mr De Montalk to advance this issue on appeal.

[72]     These factors persuade me that no miscarriage of justice has occurred as a result of Mr De Montalk not being able to call Ms Harris to produce the medical centre’s records.

Result

[73]     None of the grounds advanced by Mr De Montalk on appeal has succeeded. The appeal against conviction is accordingly dismissed.

Order for disqualification

[74]     The Judge disqualified Mr De Montalk from driving for a period of six months.  The operation of the order has been deferred pending determination of the

present appeal.  It will now take effect from 12 noon on Friday 30 November 2012.

Lang J

Solicitors:

Crown Solicitor, Whangarei

Copy to: Appellant