Guest v Police
[2013] NZHC 1579
•27 June 2013
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 RespondentJudgment:
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 the blood specimen the nurse divided the blood evenly into two bottles, which she obtained from a blood collecting kit. The constable said he had observed the nurse shake the two bottles, seal the caps using a white sticker and initial them. The constable then completed the form and attached it to the bottles, placing the bottles in a polystyrene box and forwarding them to the ESR by way of a secured courier mail bag. He received a certificate back from ESR, dated 16 March 2012, which reported that the blood specimen contained 186 milligrams of alcohol per 100 millilitres of blood. The constable was not cross- examined.
[6] The Judge recorded the defence submissions that:
(a) The prosecution had not proven that the blood sample was dealt with
in accordance with the blood specimen collecting procedure or that
the specimen was a “blood specimen” taken in accordance with
normal medical procedures as required by s 56(2) of the Act.
(b)
The medical certificate that a blood specimen had been taken in accordance with normal medical procedures could not be relied on to
prove that the blood specimen had been taken in accordance with the
blood specimen collecting procedure, those being the words required
for a certificate under s 75(2) of the Act. (c)
The deficiency in the evidence could not be cured by the reasonable
compliance provisions of the Act. [7]
Ho
wever, the Judge held that the prosecution could rely on the phrase
“normal medical procedures” to prove that the blood specimen had been properly taken. Purporting to apply the decision of the Court of Appeal in R v Clarke,2 she
held that:
2 R v Clarke [1982] 1 NZLR 654 (CA).
[35] Whilst the certificate was appropriate before the 2011 amendment, it arguably does not strictly comply with the amended requirements which use the words “blood specimen collecting procedure.” After the amendment came into force it appears the police failed to change the standard certificate. I accept the phrase “normal medical procedures” is no longer a part of s
75(2). However, it is contained within the definition of blood specimen which is part of the statute. I do not consider this is a situation where there
is a lacuna in the evidence because a particular provision has not been complied with.
[36] Because the certificate does not strictly comply with s 75(2) I do not consider the prosecution have failed to establish its case. I consider s 64(2) is applicable. I do not accept the defence submission that because the offence is laid under s 56(2) s 64(2) is not applicable. Section 56(2) is the offence, ss 68 to 75 and 77 are the procedural sections relating to s 56 and are applicable to s 64(2).
[8] Later in her judgment, the Judge recorded a conclusion that the procedure followed by the medical officer was sufficiently similar to that required under the legislation, and that the phrases “blood specimen collecting procedure” and “normal medical procedures” had a similar “or even the same” contextual meaning.3 It followed that there had been reasonable compliance with the required procedures. The fact that there had not been strict compliance could not in the circumstances amount to a defence and no prejudice arose for the defendant because of the lack of strict compliance.
[9] The Judge proceeded to convict Mr Guest, fining him the sum of $800 and disqualifying him from driving for a period of seven months.
The relevant statutory provisions
[10] The offence with which Mr Guest was charged was that contained in s 56(2)
of the Act. That provides:
(2) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.
[11] There is a definition of “blood specimen” in s 2 of the Act. That definition is as follows:
3 New Zealand Police v Guest DC North Shore CRI-2012-044-061954, 10 April 2013, at [51].
blood specimen means a specimen of venous blood taken in accordance with normal medical procedures:
[12] Prior to its amendment in 2011, s 74(1) provided that a blood specimen must be divided into two parts, each part being placed in a separate bottle which was then to be sealed; each part was then a blood specimen for the purposes of the Act. These requirements are now contained in the Land Transport (Blood Specimen Collecting Procedure) Notice 2011 ( the “2011 Notice”).
[13] Section 75(1) provides as follows:
75 Certificates in blood-alcohol proceedings
(1) Except as provided in section 79, production of a certificate to which this section applies in proceedings for an offence against this Part is sufficient evidence, in the absence of proof to the contrary, of such of the matters as are stated in the certificate and of the sufficiency of the authority and qualifications of the person by whom the certificate is made and, in the case of a certificate referred to in subsection (5), of the person who carried out the analysis.
[14] Section 75(2) was another provision amended in 2011. Prior to its amendment, the subsection made reference to a certificate purporting to be signed by a medical practitioner or medical officer that:
(a) A specimen of venous blood was taken by the practitioner or medical officer in accordance with normal medical procedures from a person named in the certificate…
[15] Parliament enacted the Land Transport (Road Safety and Other Matters) Amendment Act 2011 (“the 2011 Act”), which made significant alterations to relevant provisions of the Land Transport Act. First, the procedure for dealing with blood specimens was altered so as to provide, in a new section 74(1), that:
A blood specimen taken under section 72 or 73 must be dealt with in accordance with the relevant blood specimen collecting procedure.
[16] The definition of “blood specimen” was not amended. However, a new definition of “blood specimen collecting procedure” was inserted in s 2. That definition reads:
Blood specimen collecting procedure means the taking of a blood specimen by a blood specimen collecting instrument in a manner prescribed by the Minister of Police by notice in the Gazette.
[17] The expression “blood specimen collecting instrument” was also the subject of a new definition inserted by the 2011 Act. Blood specimen collecting instrument was thereby defined as meaning:
(a) a needle and syringe; or
(b) an instrument of a kind designed for the taking of blood specimens approved by the Minister of Police (after consulting the Science Minister and the Minister of Transport) by notice in the Gazette;
[18] At the same time, s 75(2) was amended to read as follows:
(2) This section applies to a certificate purporting to be signed by a medical practitioner or medical officer and certifying that—
(a) a specimen of venous blood was taken by the practitioner or medical officer in accordance with the blood specimen collecting procedure specified in the certificate from a person named in the certificate; and
(b) for the purposes of the specified blood specimen collecting procedure,—
(i) the specimen was sufficient; or
(ii) the specimen was insufficient and the practitioner or medical officer took a further specimen; and
(c) in accordance with the specified blood specimen collecting procedure, the practitioner or medical officer kept the specimen in the appropriate container or containers (as applicable); and
(d) each such container was received by the practitioner or medical officer in a sealed blood specimen collecting kit; and
(e) the practitioner or medical officer handed each such container to an enforcement officer named in the certificate.
[19] Reference should also be made to the Notice given by the Minister of Police pursuant to s 2(1) of the Act, and in force from 5 November 2011. Clause 4 provides that for the purposes of ss 72 to 74 of the Act, the relevant blood specimen collecting procedure is the “procedure for the collecting of a blood specimen specified in clauses 5 to 8”. Clause 5 then provides that a blood specimen must be collected
using a needle and syringe. Clause 6 directs that when taking a blood specimen, the medical practitioner or medical officer must divide the blood specimen into two parts, one for analysis by an approved laboratory, and one for custody by the approved laboratory and, if required under the relevant provisions of the Act, subsequent delivery to a private analyst. For the purposes of relevant provisions of
the Act, the “blood specimen” means both parts of the blood specimen.4 Other
provisions of the Notice are not relevant here.
[20] The reasons for some of the amendments made by the 2011 Act were addressed by the Minister of Transport in moving the second reading of the Land Transport (Road Safety and Other Matters) Amendment Bill:5
…There has been a change to proposals for the regime for collecting blood specimens from suspected drink-drivers. The bill proposes allowing changes to requirements to account for more modern and safer methods, such as Vacutainers as an alternative to syringes. The bill as introduced would have allowed the blood specimen collecting procedure to be set out by the Minister of Police through a Gazette notice. Submitters on the bill were concerned that this would remove the current requirement to provide a blood specimen for independent analysis. The right to an independent analysis of a blood specimen by a private analyst remains unchanged.
[21] The other provision that has been referred to in argument is s 64(2) of the
Act. Section 64 is headed “Defences”. Subsection (2) provides:
(2) It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.
The appeal
[22] The primary argument advanced on appeal is that the prosecution did not prove that the blood sample was dealt with in accordance with the blood specimen collecting procedure prescribed by s 74(1) of the Act, or that the sample relied on was a “blood specimen” as required by s 56(2) of the Act (being “venous blood” taken from Mr Guest in accordance with “normal medical procedures”). It is argued
that the medical certificate on which the prosecution purported to rely contained an
4 Clause 6(2).
5 (6 April 2011) 671 NZPD 17789
extraneous and inadmissible term, namely, “normal medical procedures”, and
omitted the necessary reference to “blood specimen collecting procedure”.
[23] The certificate relied on in the present case was in the following form:
BLOOD SPECIMEN MEDICAL CERTIFICATE
(Issued under s. 75(2) of the Land Transport Act 1998) I, Sylvia K Hobson, Medical Officer, certify that —
1.I took a specimen of venous blood in accordance with normal medical procedures from the person whose name, address and occupation are set out in the schedule below.
2.I divided the specimen into two parts and placed and sealed each part in a separate bottle.
3.Each separate bottle was received by me in a sealed blood specimen collecting kit.
4. I handed each separate bottle to —
Enforcement Officer: Const Koman
Signed: “S K Hobson” Date 13/3/12
SCHEDULE
Full Name: Bevan Raymond Guest
Occupation: Sales
Full Address: [omitted from this judgment]
Taken by: S K Hobson Time: 2344
Date: 13-3-12
[24] Mr Haskett pointed out that the statement made in the certificate that the blood specimen had been taken “in accordance with normal medical procedures” was not a statement now envisaged by s 75(2)(a) of the Act, which refers to the specimen being taken in accordance with the “blood specimen collecting procedure”. The prosecution had elected to rely on a form of medical certificate that was over a year out of date. The consequence of this was that the prosecution had not proved the commission of an offence under s 56(2) of the Act, which requires it to be established that the proportion of alcohol in a person’s blood “as ascertained from an analysis of a blood specimen subsequently taken from the person under s 72 or s 73” exceeds the statutory limits. Because the right form of certificate had not been
provided, the prosecution had not met its burden of proving what normal medical procedures were to the criminal standard of proof. The only evidence called had been from a constable, not himself a medical practitioner or medical officer.
[25] Mr Haskett referred to the decision of Wylie J in Tebbs v New Zealand Police6 in which Wylie J addressed the concept of “normal medical procedures”. That decision was made prior to the coming into force of the 2011 Act. One of the arguments raised before Wylie J was an alleged failure by the police to take the blood specimen at issue in that case in accordance with normal medical procedures. In this respect, an issue was apparently raised as to whether storage of the blood sample in glass bottles with plastic screw caps complied with the requirement that the blood specimen be taken in accordance with “normal medical procedures”. In
the course of rejecting the appellant’s argument, Wylie J discussed the appropriate interpretation of the word “taken” in the statutory definition of the words “blood specimen”. He noted that it was a normal every day word in common usage, and considered that, relevantly, it meant “extracted, withdrawn, or removed, normally by a syringe or needle”.7
[26] At [39] he said:
[39] The Interpretation Act 1999 requires that a purposive approach is taken to the interpretation of legislation. I am satisfied that interpreting the word “taken” to mean extracted, withdrawn, or removed, is consistent with that direction. The taking of blood is an invasive, albeit common, medical procedure, and it is clearly appropriate that it be carried out in accordance with normal medical procedures. Normal medical procedures would extend to identification of the appropriate vein, swabbing the skin with a disinfectant, the use of a syringe, the use of a swab or plaster to staunch the wound, and the like. These are all medical concerns associated directly with the “taking” of the blood. The same cannot be said of the subsequent storage of the blood in glass bottles with screw taps. The placing of the specimen in the bottle occurs after the blood has been taken. The way in which a blood specimen is stored has to do with the preservation of evidence prior to its analysis, not medical procedure or clinical standards.
[27] Mr Haskett sought to emphasise the breadth of the concept of “normal medical procedures” as described by Wylie J (noting his words “and the like”) as
well as by reference to a World Health Organisation Guideline: “WHO Guidelines
6 Tebbs v New Zealand Police [2012] NZHC 3468.
7 At [38].
on Drawing Blood: Best Practices in Phlebotomy” (“the WHO Guidelines”) which he summarised in the course of over two pages of submissions before asserting that, given its inability to rely on s 75(2) of the Act, “the prosecution must affirmatively prove those matters”. Here, the constable had given insufficient evidence on the medical procedure to prove the “normal medical procedure ingredient”.
[28] In the course of this argument Mr Haskett submitted that the expression “normal medical procedures” was not synonymous with the “blood specimen collecting procedure” referred to the 2011 Notice. He argued that, if the terms were synonymous, there would have been no need for the legislature to amend s 74 or s 75. Alternatively, the definition of “blood specimen” could have been simply amended by deleting the term “normal medical procedures” and substituting the term “blood specimen collecting procedure”. He contended that both Tebbs and the WHO Guidelines showed that normal medical procedures involved far more than the handling requirements of the Notice.
[29] A further contention made by Mr Haskett was that the prosecution had not proved that the blood taken was “venous blood”. As to that he argued that the requirements of s 75(2)(a) (as with the other paragraphs in s 75(2)) were “indivisible”, each paragraph containing “a single statement that must be certified to in its entirety”. The consequence of this was that if there was a failure to certify that a specimen had been taken in accordance with the blood specimen collecting procedure, then the certificate could not be relied on to establish that the blood taken was venous blood.
[30] Further, the medical certificate had not certified that a needle and syringe had been used (as the means of collecting blood specimens prescribed in cl 5 of the Notice). Nor was there a statement in the certificate, as required by s 75(2)(b) of the Act, that the specimen taken was sufficient for the purposes of the specified blood specimen collection procedure.
[31] Mr Haskett submitted that none of these deficiencies could be met by reliance on the reasonable compliance provisions of s 64(2) of the Act. In making that
submission, he relied on R v Clarke8 for the proposition that the prosecution must prove by viva voce evidence any matter which is not proved by a certificate lawfully produced under the Act. He also emphasised that the requirement that there be a blood specimen was an element of s 56(2), and submitted that, because s 56 is not referred to in s 64(2), the latter could not be relied on.
[32] Mr Haskett further argued that there was an “insufficient substratum” on which to apply reasonable compliance, and no proper evidence that “normal medical procedures” were followed. He referred to R v Faasipa9 where it was held that unless there was a “blood specimen” the statutory provision for reasonable compliance does not come into play. The Court quoted from an earlier decision, R v O’Callaghan (No.2) in which McMullin J said: 10
There is a fundamental difference between the non-observance of a machinery step in the taking of a blood sample where the substratum for the taking of the sample has been laid, and the non-existence of the substratum itself upon which the jurisdiction is founded.
[33] Mr Haskett also submitted that the fact that a deficient medical certificate had been relied on showed gross carelessness on the part of the prosecution. He argued that the Court should not hold that there had been reasonable compliance if the prosecution was evidently based on actions taken without reasonable care, relying on Coltman v Ministry of Transport in which Cooke J discussed “reasonable
compliance” in the following terms: 11
It seems to me that the crucial words are well capable of meaning, and to give effect to the manifest purpose of the Act should be held to mean, a degree of compliance that is reasonable in all the circumstances. “Reasonable” is a comprehensive word. As I see it, the most important question will usually be whether any errors in the particulars in the certificate are such as to raise a reasonable doubt about whether the certificate does relate to the blood of the defendant. The second question will usually be whether the persons concerned in ascertaining the particulars have acted with reasonable care.
8 Rv Clarke, above n 2.
9 R v Faasipa CA130/95, 31 July 1995.
10 R v O’Callaghan (No.2) [1985] 1 NZLR 208 (CA), at 213.
11 Coltman v Ministry of Transport [1979] 1 NZLR 330 (CA) at 336. See also Soutar v Ministry of
Transport [1981] 1 NZLR 545 at 549.
[34] Mr Haskett submitted that there had not been reasonable care in the present case as evidenced by use of an out of date form.
Respondent’s submissions
[35] For the respondent, Mr Fotherby made two principal submissions. First, that on its face, the certificate relied on was valid and provided sufficient and admissible evidence that the appellant had provided a blood specimen. Second, if there was some deficiency, then this was a case where there had been reasonable compliance in terms of s 64(2).
[36] The argument as to the sufficiency of the certificate proceeds on the basis that there is nothing in the Act or in case law to suggest that the certificate must use the exact wording set out in s 75(2) to be valid. Mr Fotherby submitted that the District Court Judge had been correct to hold that “normal medical procedures” has a similar or identical contextual meaning to the “blood specimen collecting procedure specified in the certificate”. He pointed out that the Notice’s sole prescription about taking a blood specimen is that it must be collected using a needle and syringe. According to the WHO Guidelines on which Mr Haskett had relied, the use of a needle and syringe is the most common means of blood sampling. The definition of “blood specimen” in the Act, is of “a specimen of venous blood taken in accordance with normal medical procedures”.
[37] Mr Fotherby argued that if the appellant were genuinely concerned about the contents of the certificate, there were two options available to him. The first was to apply for an order under s 79 of the Act that the certificate was not admissible in the proceeding, in which case the police would have had to call the medical officer who took the blood specimen to give evidence. Second, the defence could have called evidence aimed at proving that the blood specimen had not been taken from the defendant in accordance with normal medical procedures. Neither step was taken. Even excising the words “normal medical procedures” from the certificate, it would still provide evidence that the medical practitioner “took” a “specimen of venous blood”. Mr Fotherby submitted that this would be sufficient since, in accordance
with Tebbs v Police,12 the word “taken” (where it relates to a blood specimen) means “extracted, withdrawn or removed, normally by a syringe or needle”. Further, the definition of “blood specimen” specifically incorporates “normal medical procedures”. Consequently, the certificate was valid and provided sufficient evidence that a blood specimen was taken from the appellant.
[38] Alternatively, Mr Fotherby submitted that there had been reasonable compliance with the required procedures. He argued that s 64(2) was a complete answer to the appellant’s arguments. He referred to Shaw v Police13 in which an analyst’s certificate had omitted to state, as was required by the statute, the fact that the scientist to whom the blood specimen had been sent for analysis was employed by an approved laboratory. The Court of Appeal noted its earlier decision in Coltman v Ministry of Transport14 that the reasonable compliance provision applied to an analyst’s certificate, recording the need for a liberal approach to the reasonable compliance section, the material considerations being the extent of any non- compliance and whether there is any real possibility of prejudice to the defendant. The Court held that: 15
The departure from the literal requirement was very minor and there had been a total lack of prejudice to the defendant, who could have applied for the analyst to be called or had his own blood analysis carried out if in any doubt of the position…
[39] Mr Fotherby also relied in Police v Tolich16 in which the Court of Appeal refused to overturn a conviction where the defendant had been given an out of date version of the police “Advice of Positive Evidential Breath Test” form, which had used the phrase “sufficient evidence to lead to your conviction” rather than “conclusive evidence to lead to your conviction”. The Court reiterated the need for a liberal approach to the reasonable compliance section in accordance with earlier
judgments of the Court.17 It noted that it had not been contended that there was any
12 Tebbs, above n 6, at [38].
13 Shaw v Police CA212/95, 21 September 1995.
14 Coltman, above n 12.
15 At 5.
16 Police v Tolich (2003) 20 CRNZ 150 (CA).
17 At [24].
real possibility of prejudice, no evidentiary basis for such a proposition having been laid.18
Discussion
[40] Appeals such as the present have to be considered in the light of the clear statement in the decision of the Supreme Court in Aylwin v Police19 in which the Court emphasised the importance of ensuring that those who have driven after consuming alcohol beyond the statutory limits do not escape legal liability by means of technical and unmeritorious defences.20 I consider that in the present case the arguments presented in support of the appeal have been technical and unmeritorious and the appeal cannot succeed.
[41] The logical starting point is the offence with which the appellant was charged. Section 56(2) of the Act creates an offence of driving a motor vehicle on a road while the proportion of alcohol in the driver’s blood “as ascertained from an analysis of a blood specimen subsequently taken from the person” exceeds the statutory limits. As noted above, s 2 of the Act contains a definition of “blood specimen”. The term means “a specimen of venous blood taken in accordance with normal medical procedures”. It is to be observed that that is precisely the form of words used in the certificate upon which the prosecution relied in the present case.
[42] The Act itself does not contain provisions which direct explicitly how a blood specimen is to be taken from the driver. In the present case, the relevant provision is s 72(1) which obliges a person to permit a medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if, amongst other things, the person has undergone an evidential breath test which appears to be positive and has advised the enforcement officer that he or she
wishes to undergo a blood test.
18 At [25].
19 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.
20 At [17].
[43] Section 74 contains provisions for dealing with blood specimens. They apply
where there has been “a blood specimen taken under section 72 or 73”.21 Section
74(1) enacts that such a blood specimen must be dealt with in accordance with the relevant blood specimen collection procedure. It is plain from the statutory language that the provisions deal with the blood specimen once it has been collected. Subsequent subsections in s 74 deal with analysis of the blood specimen by an approved laboratory, custody of the blood specimen and analysis by a private analyst when requested by the driver.
[44] The provisions discussed so far do not require a blood specimen to be taken in any particular way other than in accordance with normal medical procedures. In my view, this means that Mr Haskett’s submissions, insofar as they turn on the absence of a “blood specimen” as envisaged by the statute, are incorrect and must be rejected.
[45] In fact, his arguments really rest on the provisions of s 75 of the Act which provide for evidence to be given by the production of a certificate. A certificate cannot be relied on where a defendant has made an application to the Court and at least 14 days before the hearing, and the Court orders that the medical practitioner or
medical officer who gave the certificate ought to appear as a witness at the hearing.22
[46] In the absence of such an order s 75(1) provides that the prosecution is entitled to rely on “such of the matters as are stated in the certificate and of the sufficiency of the authority and qualifications of the person by whom the certificate is made and of the person who carried out the analysis”. The production of a certificate “to which this section applies” shall be sufficient evidence of those matters “in the absence of proof to the contrary”.
[47] The legislative intent is plainly to avoid the need for the prosecution to call evidence of the matters covered by the certificate unless there has been an order that
the person responsible for the certificate ought to appear as a witness.
21 Section 74(1).
22 Land Transport Act, s 79.
[48] A prominent issue in Mr Haskett’s argument concerns the words in s 75(1) “a certificate to which this section applies”. Section 75(2) specifically states what must be in a certificate “to which this section applies”. As has been seen, and relevant here, the certificate ought to state that “a specimen of venous blood was taken by the practitioner or medical officer in accordance with the blood specimen collecting procedure specified in the certificate from a person named in the certificate”.
[49] The medical officer’s certificate in the present case stated that she had taken a specimen of venous blood from Mr Guest. It stated that she had done so in accordance with normal medical procedures, rather than in accordance with the blood specimen collecting procedure.
[50] Application of the definitions of “blood specimen collecting procedure” and “blood specimen collecting instrument” requires reference to the Notice. The result is that the blood specimen must be collected using a needle and syringe. The somewhat tortuous route to arrive at that conclusion through the definitions reflects the fact, as mentioned by the Minister at the second reading of the Bill, that it is contemplated that alternative methods to syringes, such as vacutainers, might be provided for. As the law now stands, the Minister of Police could approve a different instrument to be used for taking a blood specimen after consultation with the other relevant Ministers. But the current law is that a specimen of venous blood must be taken by using a needle and syringe, in accordance with the Notice.
[51] The question then becomes whether the certificate relied on in this case was a certificate as contemplated by s 75(1). As to that, there is no doubt that the certificate was a certificate purporting to be signed by a medical officer. Further, it was a certificate that a specimen of venous blood had been taken by the medical officer. Were it not for the definition of “blood specimen collecting procedure”, I am of the view that it would also be a certificate that the specimen of blood had been taken in accordance with the “blood specimen collecting procedure specified in the certificate” (i.e. in accordance with normal medical procedures as the certificate states). However, the definition means that the certificate, for strict compliance with the statute, needs to refer to the blood specimen collecting instrument used, that is to say a needle and syringe. The certificate did not say that directly.
[52] In my view, however, that should not have the effect of meaning that the certificate was not a certificate within the contemplation of s 75(1) and (2). I say that principally because the certificate did refer to some of the matters set out in s 75(2)(a) directly and, by its reference to normal medical procedures, indirectly to the other matter set out in s 75(2)(a). Although Mr Haskett submitted that in order to be valid a certificate would have to cover all of the matters contained in s 75(2)(a), I have not been persuaded that that is the case. In that respect, I accept as relevant the
decision of the Court of Appeal in R v Clarke23 on which Mr Fotherby relied. In
what is an important passage for present purposes, the Court observed at 660:
Before dealing with these points three preliminary matters should be stated. First, a certificate is not invalid because all matters which may be so proved are not contained in it, or because matters which cannot be so proved are included. Section 58B(5)(a), s 58B(9)(a) and s 58D(3) each provide that the certificate “shall be sufficient evidence, until the contrary is proved, of such of those matters as are so certified . . .”. Matters which are subject to proof by certificate but are not so proved may be established by viva voce evidence. Matters included in a certificate which are not susceptible of proof by certificate are not evidence but their inclusion does not invalidate the certificate to the extent it properly evidences matters which may be so proved.
Those observations plainly related to the legislation then in force, in the Transport
Act 1962, but they are equally applicable here.
[53] The statement of the Court that a certificate is not invalid because all matters which may be so proved are not contained in it makes untenable Mr Haskett’s submission that all of the matters contained in s 75(2)(a) must be covered in the certificate. Similarly, if it were concluded that the reference to normal medical procedures in the certificate was an inadmissible statement, that would also not render the certificate invalid. The consequence of these conclusions is that the certificate was admissible, unless excluded under s 79(1) of the Act. Of course, no such order was made.
[54] In my view, it is distinctly arguable that, given the current state of the law which requires blood specimens to be taken by the use of a needle and syringe, a
statement in a certificate that a blood specimen was taken in accordance with normal
23 Clarke, above n 2.
medical procedures would be sufficient to comply with the relevant requirements of ss 75(1) and (2). This is because that means of taking a blood specimen is so well known that the reference to normal medical procedures must be taken as embracing the use of a needle and syringe. Wylie J reached a similar conclusion in Tebbs.24
[55] Should it be necessary in the present context for there to be evidence that an appropriate vein was identified, the skin swabbed with a disinfectant and so on? I think not. It is to be noted that such evidence would certainly not be required where a certificate that followed slavishly the wording of the Notice was provided. All that matters is that the blood specimen be taken with a needle and syringe. In my view, the Court was well entitled to infer that, in the present case, given the wording of the certificate and the widespread practice by which blood has been taken for decades, a needle and syringe had been used. There is no doubt that it was venous blood (the certificate so provides) nor that the sample was sufficient to be divided into two (the certificate said so, and the constable’s evidence confirmed this was done) and undergo the subsequent analysis process. I reject also the submission that it was somehow necessary for the Crown to prove the detailed provisions of the WHO Guidelines to which Mr Haskett referred, that proposition is, in my view, untenable.
[56] In all the circumstances, I conclude that the certificate either complied with s 75(2) or, if that conclusion is wrong, there was reasonable compliance.
[57] I have earlier set out the provisions of s 64(2) of the Act. It is to be noted that its attention is directed to non-compliance with ss 68 to 75A and 77 of the Act. The alleged non-compliance on which the appeal is mounted is the failure to certify the “blood specimen collecting procedure specified”, which is a requirement of s 75(2). I consider that the reference in the certificate to taking the specimen in accordance with normal medical procedures, understood as it must be as a reference to using a needle and syringe, meant that there was a reasonable compliance with s 75(2).
[58] As in Coltman,25 any departure from the “literal” requirement of s 75(2)(a)
was very minor, and there can be no suggestion of prejudice to the appellant.
24 Above n 6.
25 Coltman, above n 12.
Result
[59] For the reasons given the appeal is dismissed.
3
3
0