Dodgson v Police - [2011] NZCA 428

IN THE COURT OF APPEAL OF NEW ZEALAND

CA124/2011
[2011] NZCA 428

BETWEEN LAUREN DODGSON
Applicant

AND NEW ZEALAND POLICE
Respondent

Hearing: 25 August 2011

Court: O'Regan P, Ronald Young and Venning JJ

Counsel: W M Johnson for Appellant
C A Brook for Respondent

Judgment: 30 August 2011 at 3 pm

JUDGMENT OF THE COURT

Special leave to appeal is refused.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

On 30 August 2009 Ms Dodgson was driving her car when she was stopped by a police officer. Subsequent testing showed that while driving she had had 167 milligrams of alcohol per 100 millilitres of blood, just over double the maximum allowed under the Land Transport Act 1998.[1]
[1] Land Transport Act 1998, s 56(2).
The applicant was convicted of driving with excess blood alcohol in the District Court.[2] Her appeal against conviction was dismissed in the High Court[3] and that Court refused leave to appeal concluding the two questions posed by the applicant had no arguable chance of success.[4]
[2]      New Zealand Police v Dodgson DC Lower Hutt CRI-2009-078-4285, 6 September 2010.
[3]      Dodgson v Police HC Wellington CRI-2010-485-99, 30 November 2010.
[4]      Dodgson v New Zealand Police HC Wellington CRI-2010-48-99, 16 February 2011.
The applicant now seeks special leave to appeal to this Court on the same two questions:
(a)Does the prosecution in a driving with excess blood alcohol case have to prove the chain of custody of the blood sample once taken and sent for analysis, beyond reasonable doubt by producing evidence of that chain of custody?
(b)Does the prosecution, relying on a Blood Medical Certificate pursuant to s 75(2) of the Land Transport Act 1998 in a driving with excess blood alcohol case, have to prove the particulars of a blood specimen collecting kit, (as defined by s 2 of the Act), when challenged as to those particular by the defence?
The applicant must establish there is a question of law “which by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for decision”.[5] We accept in this case both are questions of law.

Chain of custody evidence

[5] Summary Proceedings Act 1957, s 144(2).

As to the first point, as the respondent submitted, in a prosecution for driving with an excess blood alcohol the prosecution must prove beyond reasonable doubt:
(a)that the defendant was driving;
(b)that he or she was driving on the road;
(c)that while driving on the road, the proportion of alcohol in the defendant’s blood exceeded the maximum allowable (as ascertained by the legislatively approved process under the Land Transport Act).
The applicant’s first question focuses on a chain of custody argument. Counsel submits that once blood is taken from a defendant and comes into the possession of the police officer undertaking the process, then there must be evidence which establishes beyond reasonable doubt how the blood sample, in the possession of the police officer, gets to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dodgson v Police

Details

AGLC: Dodgson v Police [2011] NZCA 428
Case: [2011] NZCA 428
Decision Date: 30 August 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Lauren Dodgson, who was convicted of driving with excess blood alcohol in the District Court. The High Court had dismissed her appeal against the conviction and refused leave to appeal to the Court of Appeal. Dodgson sought special leave to appeal to the Court of Appeal on two questions of law: whether the prosecution must prove the chain of custody of the blood sample beyond reasonable doubt, and whether the prosecution must prove the particulars of a blood specimen collecting kit when challenged by the defence. The Court of Appeal found that both were questions of law and considered whether there was an arguable prospect of success on either ground.

The Court found that the prosecution must prove beyond reasonable doubt that the blood being analysed is the defendant's, taken at the relevant time. However, how that is proved will be a matter for the prosecution. The Court of Appeal agreed with the High Court that there was no arguable prospect of success on the chain of custody point. The Court also found that the Blood Medical Certificate is sufficient proof of the matters in the certificate, subject to section 79. The applicant had challenged the police officer in evidence about the blood specimen collecting kit, but this did not constitute proof to the contrary of some of the matters in the s 75 certificate. The Court found that the applicant's challenge had no prospect of success.

The Court of Appeal therefore refused special leave to appeal on both grounds.

Orders