Guest v Police - [2013] NZHC 1579

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-113 [2013] NZHC 1579

BETWEEN BEVAN RAYMOND GUEST Appellant

AND

POLICE Respondent

Hearing: 17 June 2013

Appearances:

A J Haskett for Appellant
W Fotherby for Respondent

Judgment:

27 June 2013

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on
27 June 2013 at 2.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Public Defence Service, Auckland
Crown Solicitor, Auckland

GUEST v POLICE [2013] NZHC 1579 [27 June 2013]

Introduction

[1] On 13 March 2012, the appellant, Mr Guest, was observed driving erratically on State Highway One at 10.15 pm in the evening. A constable saw him weaving between the lanes. By activating his car’s blue and red flashing lights, the constable caused Mr Guest to stop. A passive breath test indicated that Mr Guest’s breath contained alcohol. Mr Guest was then obliged to undertake a breath screening test, which indicated that the level of alcohol in his breath was over 400 millilitres per litre of breath. The constable required Mr Guest to accompany him back to the police station for the purpose of taking an evidential breath test or blood test or both.

[2] At the police station, Mr Guest underwent an evidential breath test which resulted in a reading of 810 micrograms of alcohol per litre of breath. On being advised of this Mr Guest elected to provide a specimen of blood, which gave a reading of 186 milligrams of alcohol per 100 millilitres of blood, well in excess of the statutory limit imposed by s 56(2) of the Land Transport Act 1998 (“the Act”).

[3] There is a dispute about the procedures that were followed in respect of the taking of the blood specimen and the testing procedures. In particular, Mr Guest contended in the District Court, and again on appeal, that the prosecution had not proved that the blood sample had been taken in accordance with the procedures referred to in s 74(1) of the Act. In essence, this was because the medical certificate on which the prosecution relied for the purposes of s 75(2) of the Act stated that the blood sample had been taken “in accordance with normal medical procedures” as opposed to the required statutory form of the certificate which now refers to the specimen being taken “in accordance with the blood specimen collecting procedure
specified in the certificate”.1

Conviction in the District Court

[4] At the trial in the District Court, the appellant did not object to any of the prosecution evidence, nor did he himself give evidence. At the end of the prosecution case, he submitted that there was no case to answer, raising the issue of
non-compliance with the s 74(1) procedure.

1 Land Transport Act 1998, s 75(2)(a).

[5] Judge Sinclair noted the evidence from the police constable that he had contacted a nurse, whom he observed take the specimen of blood from Mr Guest. It was his evidence that after taking…

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 Guest v Police

Details

AGLC: Guest v Police [2013] NZHC 1579
Case: [2013] NZHC 1579
Decision Date: 27 June 2013

CaseChat Overview and Summary

Bevan Raymond Guest was charged with a drink-driving offence under s 56(2) of the Land Transport Act 1998. This section makes it an offence to drive a motor vehicle on a road while the proportion of alcohol in the driver’s blood exceeds 80 milligrams of alcohol per 100 millilitres of blood. The offence was proved by reference to a blood specimen subsequently taken from the driver. The specimen was taken by a medical officer and a certificate was produced in evidence attesting to the fact that the specimen had been taken in accordance with “normal medical procedures” rather than in accordance with the blood specimen collecting procedure specified in the certificate. The appellant contended that the certificate was not a certificate as contemplated by s 75 of the Act and that therefore there had not been strict compliance with the statutory requirements. The appellant submitted that the certificate did not prove that the specimen was a blood specimen as required by s 56(2) of the Act. It was also submitted that the certificate did not prove that the specimen was taken in accordance with the blood specimen collecting procedure specified in the certificate as required by s 75(2) of the Act. The appellant further submitted that because there had not been strict compliance with the Act, there could not be reasonable compliance with the Act, and the conviction had to be quashed. The court held that there had been reasonable compliance with the Act. It held that the certificate was admissible as evidence of the matters it purported to state and that it was reasonable to infer that the specimen had been taken in accordance with the blood specimen collecting procedure. The appeal was dismissed.

Orders