Dodgson v Police HC Wellington CRI 2010-485-99
[2011] NZHC 57
•16 February 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2010-485-99
LAUREN DODGSON
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 16 February 2011
Counsel: Mr W Johnson for the Appellant
Ms A Ewing for the Respondent
Judgment: 16 February 2011
JUDGMENT OF MALLON J
[1] Ms Dodgson was convicted in the District Court of driving with excess blood alcohol on 6 September 2010. She appealed her conviction to the High Court on four grounds. Her appeal was dismissed by me in a judgment given on
30 November 2010. She now seeks leave to appeal to the Court of Appeal on two of the four grounds raised in the High Court appeal. Those two grounds are:
(a) Whether, in a driving with excess blood alcohol case, the prosecution has 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; and
DODGSON v NEW ZEALAND POLICE HC WN CRI 2010-485-99 16 February 2011
(b)Whether, in a driving with excess blood alcohol case, the prosecution relying on a blood medical certificate pursuant to s 75 (2) of the Land Transport Act 1998 has to prove the particulars of a blood specimen collecting kit (as defined by s 2 of the Land Transport Act) when challenged as to those particulars by the defence.
[2] Leave may be granted to the Court of Appeal on a question of law if the question of law involved is “one 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”.[1]
If the question of law does not have an arguable chance of success then it is not a question in respect of which leave should be granted.[2]
[1] Section 144(2) of the Summary Proceedings Act 1957
[2] R v Mitchell CA 68/04, 23 August 2004 at [6]. That decision was concerned with special leave sought from the Court of Appeal under s 144(3) of the Summary Proceedings Act but the same statutory test applies.
[3] The two proposed appeal grounds are both questions of law. If they had arguable chances of success then they might constitute questions of general or public importance. However, in my view, they do not have an arguable chance of success and accordingly are not questions that ought to be submitted to the Court of Appeal for consideration.
[4] As to the first question, Ms Dodgson’s submission in the High Court was based on s 74(3) of the Land Transport Act, which requires a police officer to “deliver” [the sample], or cause [it] to be delivered” for analysis and the decision in R v Lemalu.[3]
[3] R v Lemalu [2007] NZCA 533.
[5] In my decision I held that:
[13] I agree with counsel for the respondent that R v Lemalu did not hold that the chain of evidence must be proven to the beyond reasonable doubt standard. It held that the chain of evidence was not something to determine on an s344A application because it was a factual issue for the trier of fact rather than an admissibility issue. It is the elements of the offence which must be proven to the beyond reasonable doubt standard. That said, if there is a reasonable possibility that the blood sample tested was not Ms Dodgson’s blood sample or that it had been tampered with so as to effect the reliability of the test, and if there were no other relevant evidence, that in
turn would create a reasonable doubt as to whether the proportion of alcohol
in Ms Dodgson’s blood exceeded the prescribed limit.
...
[15] It is not necessary that there be evidence given of the system which the police station had in place as to how packages in the safe were uplifted and couriered to the ESR. It is obvious from the evidence that was given that the package was removed and that it made it to its intended destination. There was ample evidence on which the Court could be satisfied that the blood sample received in that package and tested by ESR was that of Ms Dodgson and that it had not been tampered with. There was no evidence from which any reasonable doubt might arise.
[6] I noted that the evidence was similar to that in Cameron v Police.[4]
[4] Cameron v Police HC Wellington CRI-2005-485-187, 14 March 2006 at [7].
[7] Mr Johnson, counsel for Ms Dodgson, submits that my interpretation of Lemalu was incorrect. He submits that the Court, having held that the chain of custody was an issue for the jury, by implication held that the standard of proof about the chain of custody is beyond reasonable doubt.
[8] He also takes issue with the first sentence of paragraph [15] of my decision (set out above). He says that this has very wide implications because this is how this issue is ordinarily determined in the District Court. I consider that counsel for Ms Dodgson has misunderstood that sentence. In some cases the chain of custody will be proved by general evidence as to the system in place at the police station but this is not the only way it can be proved. There can be evidence as to what happened on the particular occasion. That evidence may be sufficient such that evidence of the system in place is not necessary.
[9] Nothing raised on Ms Dodgson’s behalf at the appeal hearing or this morning persuades me that any other conclusion than the one that I reached is arguably open on the proposed first question for appeal. That it is the elements of the offence that must be proven to the beyond reasonable doubt standard is uncontroversial. Whether a reasonable doubt has been created as to the elements because of the evidence about the chain of custody is an assessment of the facts. R v Lemalu did not determine otherwise. Accordingly the proposed first ground of appeal is not one that ought to
be heard by the Court of Appeal.
[10] As to the second proposed ground of appeal, in the High Court appeal counsel for Ms Dodgson submitted that the prosecution was required to adduce evidence of the fact that an approved kit was used for collection of the blood sample. I held that the use of an approved kit was something that could be proved by way of a certificate under s 75(2) in the absence of proof to the contrary. I referred to High
Court authority supporting this view.[5] I held that there was no “proof to the
contrary” in the present case where all counsel for Ms Dodgson had done was to ask questions of the officer about what he could recall about the batch number and the wording of the box.
[5] Mills v Police HC Tauranga AP 11/02, 17 July 2002.
[11] Counsel for Ms Dodgson this morning submits, essentially, that it is now impossible to “prove to the contrary” especially given the decisions in Kemp v Police[6] and R v Morunga.[7] The proposed question of law is, however, answered by the statutory words of s 75(2). Kemp and Moranga were concerned not with s 75(2) but with the situation where the medical officer gives evidence. That was not the situation here. Whether there was proof to the contrary through counsel’s cross-
examination in the present case was an assessment of the facts. In respect of Mr Johnson’s point that it is now impossible to defend these charges, it is the legislative intent that it be difficult to defend this type of offence on technical grounds.
[6] Kemp v Police HC Wellington CRI-2007-485-141, 7 March 2008.
[7] R v Morunga [2009] NZCA 292.
[12] In summary nothing submitted at the appeal hearing or this morning persuades me that any other interpretation than the one that I applied has an arguable prospect of success. Accordingly, this question of law is not one that ought to be heard by the Court of Appeal.
[13] Ms Dodgson had sought that her disqualification from driving be deferred until her appeal in the Court of Appeal was heard. However, the proposed appeal being without merit, there is no justification for any further deferment of her
disqualification.
[14] The application for leave to appeal to the Court of Appeal and for the
deferment of the disqualification is dismissed.
Counsel:
Mr W Johnson for the Appellant
Ms A Ewing for the Respondent
Mallon J
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