G v Police HC Greymouth Cri-2009-418-8

[2010] NZHC 78

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2009-418-000008

G

Appellant

v

POLICE

Respondent

Hearing:         11 February 2010

Appearances: Appellant in person

S L Jamieson for Police

Judgment:      11 February 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against conviction.

[2]       The appellant, Mr G  , was convicted in the District Court of driving with excess blood alcohol, following a defended hearing.  He was sentenced to an

$850 fine, Court costs of $130, and disqualified from holding or obtaining a driver licence for nine months.

[3]      The sole ground of appeal relates to the admissibility of the evidence of the blood specimen, having regard to the requirements of s74(3) of the Land Transport

Act 1998.

G V POLICE HC GRY CRI-2009-418-000008  11 February 2010

[4]       The evidence at the hearing established that the specimen was taken on 17

October 2008.  It was posted by registered post on 24 October, but not received by the analyst until 28 October.

[5]      Section 74(3) provides:

In the case of a blood specimen taken under section 72, an enforcement officer must, within 7 days after the date on which the specimen was taken, deliver or cause to be delivered (whether by courier or otherwise), or post by registered post or cause to be posted by registered post, both parts of the blood specimen to an approved analyst for the analysis of 1 of those parts and the custody of the other.

[6]      Mr G   contends that the section means the specimen must be received by the analyst within seven days after the date on which the specimen was taken.  If that interpretation is correct, it would mean that receipt on 28 October was clearly well outside the statutory time limit.

[7]      In support of his interpretation, Mr G   stressed the use of the word

“deliver” that appears in the section.

[8]      I am unable to accept that interpretation.

[9]       The syntax of the section makes it clear that delivering or causing to be delivered is simply an alternative mode to posting by registered post – the latter being the action taken by the constable in this case.   It is clear that he posted the specimen within seven days after the date on which the specimen was taken.  (The counting of the seven days is to be exclusive: ie it does not include the date on which the specimen itself was taken).   In other words, in my view the section clearly is referring to “dispatch” rather than “receipt” as being what is required to be done within the time limit.

[10]     I am reinforced in that conclusion by reference to the High Court decision of Waldin v Police HC Wellington CRI-2008-495-000048, 9 September 2008.  In that decision, Wild J also held that s 74(3) is concerned with dispatch and not receipt by the analyst.

[11]     I think Mr G   has possibly been misled in his views by the fact the certifying  letter  from  the  ESR  refers  to  the  specimen  being  “delivered”  on  28

October.   He has understandably latched onto their use of that word.   However, notwithstanding the word used in the analyst’s certificate, the statutory provision is clear.   The ordinary meaning of the words used is that what is required is for the specimen to be dispatched within the time limit.

[12]     There being no other ground of appeal, I am satisfied that the appeal cannot succeed, and it is accordingly dismissed.

Solicitors:

Crown Solicitor’s Office, Christchurch

Copy to: Appellant