Gullery v Police
[2013] NZHC 3014
•14 November 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2013-419-29 [2013] NZHC 3014
BETWEEN RICHARD GULLERY Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 8 October 2013
Appearances: A Haskett for Appellant
S Cameron for Respondent
Judgment: 14 November 2013
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 14 November 2013 at 2:00 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
GULLERY v NEW ZEALAND POLICE [2013] NZHC 3014 [14 November 2013]
[1] Richard James Gullery appeals against his conviction by Judge MLSF Burnett in the District Court at Hamilton on one count of driving with excess blood alcohol under s 56(2) of the Land Transport Act 1998 (“the LTA”), the appellant having been convicted at least twice previously of a similar offence.
[2] Four grounds are advanced in support of the appeal, namely:
(a) the appellant did not receive a fair trial, contrary to ss 25(a) and 25(c)
of the New Zealand Bill of Rights Act 1990 (“the NZBORA”);
(b)the prosecution did not prove that it was not practicable to conduct the blood test at Huntly Police Station, so the requirement to accompany the Police officer to Ngaruawahia Police Station was not made lawfully under s 72(3) of the LTA and the blood sample was not “taken ... under” s 72 of the LTA, as required by s 56(2);
(c) the prosecution did not prove that there was a blood specimen, being venous blood taken in accordance with normal medical procedures, as required by the definition of “blood specimen” in s 2 of the LTA and that being an ingredient of the offence; and
(d)the blood sample was seized in an unreasonable manner, contrary to s 21 of the NZBORA, because the procedure used by the nurse failed to comply with normal and appropriate standards (they included the use of an alcohol swab when the test was to be for that same substance), and the physical injury caused to the appellant.
Factual background
[3] At approximately 1:35 am on 23 April 2012, the appellant was seen by Police to be driving in an erratic manner near Huntly. The Police officer who gave evidence, Constable Elvy, observed the appellant’s vehicle being driven into two driveways before reversing out and turning around. The vehicle was seen to be travelling at excessive speed and the driver appeared to be having trouble keeping
the vehicle in its lane. Constable Elvy stopped the vehicle, which was being driven by the appellant. Because the appellant exhibited signs of having consumed alcohol, he was breath tested and found to have a breath/alcohol content of over 400 micrograms of alcohol per litre of breath. Constable Elvy then requested the appellant to accompany him to the Huntly Police Station for an evidential breath test.
[4] The breath test was administered at the Police Station at approximately
1:55 am. The test showed a result of 570 micrograms of alcohol per litre of breath. After informing the appellant of that result, Constable Elvy told him he had
10 minutes in which he could elect to have a blood test. The appellant made that election.
[5] Constable Elvy then endeavoured to get a nurse to attend the Police Station to take the blood sample. He was told that the nurse who resided in Huntly was unavailable but he subsequently made contact with a nurse, Ms Morgan, who resided in Ngaruawahia. Ms Morgan said she was not able to attend the Huntly Police Station to obtain a sample of the appellant’s blood but agreed to attend at the Ngaruawahia Police Station for that purpose. Constable Elvy required the appellant to accompany him to the Ngaruawahia Police Station; the nurse took a blood sample at approximately 2:50 am.
[6] It was common ground that Ms Morgan was unable to draw blood at the first attempt. She withdrew the needle, reinserted it and drew a sample of blood on this second attempt. Upon analysis, the blood sample was found to contain 118 milligrams of alcohol per 100 millilitres of blood, some 38 milligrams of alcohol in excess of the legal limit.1 Ms Morgan signed a medical certificate issued under s 75(2) of the LTA (“the medical certificate”) to certify that the blood specimen was taken in accordance with normal medical procedures.
[7] In the District Court, the appellant produced photographic evidence which showed extensive bruising to the inside of one of his arms around the elbow. He
alleged this bruising was caused by Ms Morgan when she took the blood specimen.
1 Land Transport Act 1988, s 56(2).
The history of the criminal proceeding
[8] For a number of reasons, the hearing before Judge Burnett was spread over three days: 14 November 2012, 28 February 2013, and 12 April 2013. On 21 May
2013, Judge Burnett delivered a reserved judgment in which she found the appellant guilty on the count of driving with excess blood alcohol. The Judge was satisfied beyond reasonable doubt that the blood sample taken was a sample of venous blood; that it was sufficient in quality and quantity for the purposes of the specified blood specimen collection procedure; and that the sample was taken in accordance with normal medical procedures. The Judge noted that where there was conflicting evidence, she preferred the evidence of Ms Morgan and Constable Elvy over that of the appellant.
[9] On 31 May 2013, the appellant was sentenced to 160 hours’ community work
and disqualified from driving for one year and one month.
Approach on appeal
[10] An appeal against conviction is by way of rehearing. Section 121(2) of the Summary Proceedings Act 1957 allows the High Court to confirm the conviction, set it aside, or amend it.2 In coming to its own judgment, the appeal court should pay appropriate deference to findings made by a Judge who had the advantage of hearing the witnesses on questions of credibility, but it must nevertheless review the evidential basis for factual findings carefully.3
First ground of appeal: Did the appellant receive an unfair trial?
[11] The appellant contends that he received an unfair trial because Judge Burnett made a number of errors of law and procedure. The issue on appeal is whether any or all of the following alleged errors occurred and, if so, whether they render the
appellant’s summary trial unfair:
2 See also Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141
3 Ibid at [5]. See also O’Neill v Police HC Auckland CRI-2007-404-405, 9 October 2008 at [5].
(a) the Judge failed to rule on the appellant’s “no case” submission at the
conclusion of the prosecution case, and did not give reasons why;
(b)the Judge permitted the prosecution to call Ms Morgan as a rebuttal witness and did not allow the appellant to be heard on that course;
(c) the Judge gave a partial decision on the case before fully hearing from both parties;
(d)the Judge did not hear fully from counsel at the second hearing and did not rule on the admissibility of the medical certificate;
(e) the Judge improperly admitted and relied upon the opinion evidence of Ms Morgan; and
(f) the Judge made an unreasonable assessment of the appellant’s
credibility and evidence.
[12] For the respondent, Ms Cameron submitted that the allegations were not made out and that, even if proved, they were insufficient to render the appellant’s trial unfair. She argued that permitting the prosecution to call Ms Morgan as a rebuttal witness arose through the irregular way the defence chose to conduct the hearing. Therefore, she says, any irregularity in the proceeding was created by the appellant’s failure to give prior notice that the admissibility of the certificate was challenged. In any event, Ms Cameron submitted, there was no prejudice to the appellant because Ms Morgan was subjected to extensive cross-examination. She further submits that the other allegations are insufficient to amount to an unfair trial.
[13] In order to properly consider these alleged errors, it is necessary to set out in some detail the relevant aspects of the hearing.
The District Court hearing
[14] The hearing in the District Court commenced on 14 November 2012. The only witness called for the prosecution was Constable Elvy, who produced relevant
certificates under the LTA, including the medical certificate and an analyst certificate from ESR, as proof of the testing procedures, the taking of the sample and the analysis of its content. At the conclusion of the prosecution’s case, Mr Haskett submitted that there was no case to answer. Judge Burnett rejected Mr Haskett’s submission and said that she could deal with all of the matters at the one point where she gave her decision and her reasons for it.
[15] The appellant then gave evidence, was cross-examined and then re-examined briefly by Mr Haskett. The transcript of the hearing records that the defence case was closed at that point. The Court then heard legal submissions in which Mr Haskett argued that the charge should be dismissed because the prosecution was unable to prove that it was not practicable to do the test in Huntly and that the medical certificate was inadmissible. On this second point, Judge Burnett said that this appeared to be a novel point with potentially wide-ranging consequences and as such she considered that written submissions should be provided on it.
[16] Judge Burnett decided to adjourn the hearing until a later date so she could receive written submissions on the admissibility issue and decide whether to permit Ms Morgan to appear and give evidence. It was at this point that the Judge decided to give a “partial” decision on the reasonable practicability of having the blood sample taken at the Ngaruawahia Police Station, so that that matter would be out of contention. The Judge then held that it was neither reasonably possible nor practical to require the blood sample to be taken in Huntly.
[17] At the conclusion of the November hearing, following the Judge’s partial decision, Mr Haskett objected to the Judge’s decision that the prosecution would be permitted to call Ms Morgan as a rebuttal witness. Mr Haskett had accepted that that course was authorised by s 67(4) of the Summary Proceedings Act 1957 but he argued that the medical certificate issued under s 75(2) was not valid so there was nothing to rebut. Allowing the witness to be called, Mr Haskett submitted, would be to provide the prosecution with an opportunity to repair their case on an issue going to the heart of the prosecutorial burden of proof and the presumption of innocence. He submitted that the prosecution had chosen to rely on the medical certificate and
that any faults in the certificate were a problem for the prosecution and not the appellant.
[18] The hearing resumed on 28 February 2013, following the filing of written submissions, as requested by Judge Burnett. On appeal, Mr Haskett said that this second hearing was set down for the purposes of determining the admissibility of the medical certificate and enabling the prosecution to call Ms Morgan to give rebuttal evidence.
[19] Neither Ms Morgan nor the Police prosecutor who had appeared at the November hearing were able to attend the District Court on the February hearing date. The legal discussion about the admissibility of the medical certificate appears to have been focussed on whether the nurse took the blood sample in accordance with normal medical procedures but Judge Burnett did not make a ruling on this point. The appellant’s case is that when Ms Morgan gave evidence, counsel were left to examine her in circumstances where it was unclear whether the medical certificate was admissible, which party had the burden of proof, and what was required to meet it.
[20] At the February hearing, Mr Haskett again raised with Judge Burnett the issue of whether the prosecution was entitled to call Ms Morgan as a rebuttal witness. The argument was along similar lines to that advanced at the end of the November hearing, but Mr Haskett also argued that because Judge Burnett had given a partial decision on the practicability issue on the earlier occasion, it was not then possible for her to allow the prosecution to call rebuttal evidence from Ms Morgan which would go to that issue.
[21] The hearing was adjourned until 12 April 2013, when Ms Morgan was called to give evidence and was cross-examined. On re-examination, she was asked by the prosecutor to give her opinion on questions relating to the time it would take to draw subcutaneous blood from around the elbow and how long it would take for bruising such as that suffered by the appellant to show if it were caused by a needle puncture to a vein. In answering the first question, Ms Morgan said that it would take at least
10 minutes unless the needle had hit a vein. In her earlier evidence, however, she
had accepted that she potentially pierced through a vein; that it could not be discounted that the bruising came from a blood test; and that if the needle had pierced a blood vessel it was possible, but not probable, that blood could be drawn from a subcutaneous part of the arm.
[22] Looking at the evidence overall, however, Judge Burnett accepted Ms Morgan’s rejection of the possibility that she had pierced through a vein and drawn subcutaneous blood or blood from muscle tissue. On appeal, Mr Haskett submits that the Judge misstated Ms Morgan’s evidence and argues that it was unreasonable for the Judge to rely on the opinion evidence of Ms Morgan, in light of her earlier contrary statements and on the basis that the witness was not qualified to give expert evidence on the point.
[23] A final point raised by Mr Haskett under this heading is that the Judge made an unreasonable assessment of the appellant’s credibility and evidence. He referred to Judge Burnett’s observations at [20] where the Judge said:
I also gained the impression that where a legal or evidential challenge may have fruitfully opened for defence, Mr Gullery was careful to avoid saying in his evidence that which might preclude such a challenge. For example, at the outset where defence, inter alia did not accept the drawing of the blood sample was by “needle and syringe”.
[24] Mr Haskett says that this was incorrect. He refers to segments of the hearing where the word “needle” was used by the defence. I note, however, that on the occasions referred to by Mr Haskett in argument, the comments were not made by the appellant himself but by counsel.
Was the trial unfair?
[25] The principal complaint about the unfairness of the hearing is the Judge’s ruling that the prosecution would be permitted to call Ms Morgan as a rebuttal witness.
[26] The right to a fair trial is given statutory recognition by s 25(a) of the New
Zealand Bill of Rights Act 1990 (“NZBORA”). The right is said to be absolute.4
Closely aligned to this is the presumption of innocence.5 However, not every trial irregularity will necessarily render a trial unfair and it is clear that the threshold for establishing that the trial was unfair is relatively high. As the Supreme Court said in Condon v R:6
[78] ... A verdict will not be set aside merely because there has been irregularity in one, or even more than one, facet of the trial. It is not every departure from good practice which renders a trial unfair, as Lord Bingham made clear in a passage in Randall, which was referred to with approval in Howse. He said that it is at the point when the departure from good practice is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate Court will have no choice but to condemn a trial as unfair and quash the conviction as unsafe. In Howse it was said that this approach is one of general application.
[27] In Randall, Lord Bingham also said:7
Where reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed which was incapable of attainment in practice.
[28] Section 75(1) of the LTA provides that, in the absence of evidence to the contrary, certificates issued in blood-alcohol proceedings are sufficient evidence of the matters contained within them. It reads:
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
4 See for example Taito v R [2003] 3 NZLR 577 (PC); Clark v Registrar of the Manukau District
Court [2012] NZCA 193, (2012) 9 HRNZ 498 at [23]; Condon v R [2006] NZSC 62, [2007] 1
NZLR 300 at [77].
5 New Zealand Bill of Rights Act 1990, s 25(c).
6 Condon v R , above n 4. See also R v Howse [2006] 1 NZLR 433 (PC).
7 Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 (PC) at [28].
is made and, in the case of a certificate referred to in subsection (5), of the person who carried out the analysis.
[29] A certificate under s 75(2) was issued in this case. In some circumstances a certificate issued under s 75 can be inadmissible. Section 79(1) of the LTA relevantly provides:
79 Circumstances in which certificate not admissible in proceedings
(1) No certificate referred to in subsection (2) or subsection (3) or subsection (4) of section 75 (which certificates relate to the taking of a blood specimen by a medical practitioner or medical officer) is admissible in evidence in proceedings for an offence against this Act if the court, on application made by the defendant not less than 14 days before the hearing, orders that the medical practitioner or medical officer who gave the certificate ought to appear as a witness at the hearing.
[30] In Police v McGrath,8 the Court of Appeal held that, in defending a charge under s 56(2), there were two alternatives under ss 75 and 79:
(a) The defendant could apply for an order under s 79 that the certificate was inadmissible in the proceeding. If the order was granted, the onus of proving beyond reasonable doubt that the blood specimen was obtained in accordance with normal medical procedures fell on the prosecution.
(b)Alternatively, evidence could be called to prove that the blood specimen had not been taken in accordance with normal medical procedures, in which the onus is on the defence to disprove what was certified in s 75.
[31] In dismissing an application by Mr McGrath for leave to appeal that judgment, the Supreme Court said at [1]: 9
Section 79 confers a right to challenge s 75 certificates in advance of a hearing, but Mr McGrath did not avail himself of that right. Because he did
8 Police v McGrath [2013] NZCA 3, at [16].
9 McGrath v Police [2013] NZSC 47.
not give notice under s 79, the police did not need to and did not call the nurse who took the blood specimen.
[32] Because the appellant in the present case did not make an application to the Court under s 79, the burden of proving that the blood specimen was not obtained in accordance with normal medical procedures fell on him. As in McGrath, the Police in this case did not call Ms Morgan to give evidence as part of the prosecution case, and it did not need to do so. The Judge explained that her decision on the calling of the witness in rebuttal was justified by the appellant’s evidence describing the method adopted for the taking of the blood sample.
[33] I am satisfied this approach did not render the trial unfair. The unusual course which the hearing followed resulted from the appellant’s failure to give due notice that the admissibility of the medical certificate was to be challenged. In any event, Judge Burnett ameliorated any possible unfairness by foreshadowing that she would grant leave to the defence to respond to the rebuttal evidence, and Ms Morgan was subjected to a thorough cross-examination by Mr Haskett.
[34] In those circumstances, permitting the prosecution to call Ms Morgan as a rebuttal witness was justified by the way the issues about the taking of the blood sample were raised. Further, it is clear that Judge Burnett did not rely on the certificate as proof of the proper taking of the blood sample but on the evidence of the nurse herself. The approach taken by the District Court Judge did not involve a departure from good practice which is so gross, persistent, prejudicial or irremediable that the trial should be deemed unfair and the conviction quashed as unsafe.
[35] I am not persuaded either that the other criticisms made by Mr Haskett render the trial unfair. Although the course of the trial was not entirely orthodox, and Judge Burnett may have overlooked giving a ruling on the admissibility argument at or after the end of the second day of the hearing, the prosecution case was fully tested and the defence criticisms of it considered by the Judge. The Judge had the advantage of hearing both from Ms Morgan and the appellant on the circumstances in which the blood sample was taken and on the cause of the bruising about which the appellant complained. Judge Burnett was entitled to prefer the evidence of the
prosecution witness who was able to give evidence of her own experience and observations, and was sufficiently qualified to give opinion evidence on matters put to her by defence counsel and the prosecutor. The assessment of the credibility of the appellant and the weight to be given to his evidence were matters for the Judge.
[36] The first ground of appeal fails.
Second ground of appeal: Was it practicable for the blood test to be carried out in Huntly?
Background
[37] The second ground of appeal is that the prosecution failed to prove that it was not practicable under s 72(3) of the LTA to take the blood specimen in Huntly. That section relevantly provides:
72Who must give blood specimen at places other than hospital or surgery
...
(3) If it is not practicable for a blood specimen to be taken from a person by a … medical practitioner or medical officer at a place where the person has been required under this section to permit the taking of a blood specimen, the person must accompany an enforcement officer to any other place where it is likely that a blood specimen can be taken from the person by a … medical practitioner or medical officer if the officer requires the person to do so.
[38] Constable Elvy gave evidence at the November hearing that once the appellant elected to have an evidential blood test, the constable attempted to contact the nurse in Huntly. He said that he called the number provided for the nurse and after the third attempt he spoke to the nurse’s partner who informed him that she was unavailable. Mr Haskett takes issue with Constable Elvy’s reliance on this hearsay statement but it was admissible as evidence of the basis on which the Police officer made his decision about whether it was practicable to have the blood sample taken at Huntly.
[39] Constable Elvy then contacted Ms Morgan. He asked (but did not insist) that she come to the Huntly Police station to take the blood sample. She told him that she was unable to make it to Huntly but offered as an alternative to travel to Ngaruawahia, some 15 kilometres away from Huntly. Constable Elvy then exercised his power under the LTA to require the appellant to accompany him to Ngaruawahia to have the blood sample taken as he believed that that was his only option.
[40] Judge Burnett did not consider the practicability issue in her reserved judgment. She addressed it, however, in her partial decision given at the end of the hearing in November. The Judge said she was satisfied that in the circumstances Constable Elvy properly concluded that it was not reasonably practicable to require the blood specimen to be taken in Huntly and it was entirely within the legislation (and as anticipated by the legislation) to take the appellant to Ngaruawahia for the purposes of having the specimen taken. The Judge said that she rejected the arguments made by the defence on this issue.
The issues
[41] The issue to be decided is whether the Judge was entitled to conclude that the prosecution had established on the balance of probabilities that it was not practicable to carry out the blood specimen collecting procedure in Huntly. This gives rise to several sub-issues:
(a) What is the appropriate test under s 72(3)? In Collier v Police,10
Woodhouse J held that it was a mixed subjective and objective test, but Mr Haskett submits that the test is purely objective.
(b)If s 72(3) had not been strictly complied with, was there reasonable compliance?
10 Collier v Police [2013] NZHC 2273.
What is the appropriate test under s 72(3)?
[42] The term “not practicable” was defined by the Court of Appeal in R v Beck as carrying its ordinary meaning of something that is not capable of being carried out or is not feasible in the circumstances.11 It involves something more than inconvenience. It is for the Police to establish on the balance of probabilities that it is not practicable to take the test at the place to which the motorist has been taken.12
[43] In Collier v Police, the appellant had failed a roadside breath test in a Police booze bus. He elected to give a blood specimen and was taken to another location for that purpose as there was no medical practitioner on the bus. A nurse had been contacted and she told the officer she was coming into Auckland city. It was decided that it would take less time to conduct the test if the nurse went from the city to Manukau and the appellant was taken from Papakura to Manukau.
[44] Woodhouse J said:
[12] I do not consider that proof of impracticability requires the informant to produce a range of direct, admissible evidence of objective facts capable of being independently assessed as reliable. Section 72(3) has to be given sensible effect. An enforcement officer has to make a decision, at the time, as to whether or not it is practicable for the blood specimen to be taken at the first location. The decision cannot be an arbitrary one. It must be based on information available to the enforcement officer at the time. It is likely, often enough, that the enforcement officer will base the decision, at least in part, on information provided by others. The relevant enquiry consists of two stages: what the enforcement officer genuinely believed and whether that belief objectively establishes that it was not practicable to take a blood specimen. The point may be illustrated by reference to the evidence about the nurse. That evidence did not have to be admitted to prove that the nurse was in fact still in Auckland. If it did it would be hearsay if it did not come from the nurse. However, the evidence was admissible to establish what information the officer relied on. There was no suggestion that the enforcement officer in this case did not have the information that he said he relied on, or that he did not rely on that information, or that the information, with the other considerations, was insufficient on an objective appraisal to justify the move to Manukau.
[45] The respondent submits that this test is correct. Mr Haskett, however,
disputes that and says that the test is purely objective. He refers to the words “If it is
not practicable” in s 72(3) and says that, contrary to Collier, the section does not say
“if an enforcement officer thinks it is not practicable”. Counsel refers to the former s
59B under the Transport Act 1962 which related to the power to require a breath screening test. That section began with the words, “Where a constable or traffic officer has good cause to suspect”. He says the Court of Appeal held in Police v Anderson that this required an objective assessment and refers to the following passage by Turner J:13
I agree with the learned Judge that the crux of this appeal is to be found in the question whether the traffic officer had good cause to suspect. I agree also that it is “for the Court to decide whether there was on the facts good cause for the traffic officer’s suspicion, not merely to satisfy itself that the traffic officer believed he had good cause”. This is exactly what was said by Lord Atkin in his famous dissenting judgment in Liversidge v Anderson [1942] AC 206; [1941] 3 All ER 338. Whether the traffic officer believed he had good cause is not the point; the point is whether there was in fact good cause, and this is a question of fact to be determined by the Court.
[46] The test in Anderson relates to a provision which is quite unrelated to s 72(3)
and is not directly helpful on this point.
[47] I agree with Woodhouse J that the test under s 72(3) must be a mixed subjective-objective one. A purely objective test would place too onerous a burden on a Police officer, to be sure a court subsequently would hold he or she could exercise the power, in circumstances where officers are required to make prompt decisions on the basis of information which may not be immediately verifiable by further inquiry. As Woodhouse J said, s 72(3) needs to be given sensible effect. I would add only that what is sensible is to be judged by reference to the practical application of road safety legislation, consistent with the statutory purpose. While the rights of citizens to freedom from unreasonable detention are important, so too is the need for effective enforcement of drink/driving laws. The “reasonable compliance” provisions of the legislation, discussed next, illustrate that approach.
[48] The evidence established that Constable Elvy had a genuine belief that his only option was to take the appellant to Ngaruawahia. This belief was based on information he received from his telephone conversations with the partner of the
Huntly-based nurse and Ms Morgan. The constable said that in a case such as this,
13 Police v Anderson [1972] NZLR 233 (CA) at 247 – 248.
the first telephone call will be to the closest nurse potentially available and, if that nurse is unavailable, the second call will be to the next closest. In this case Constable Elvy was told, in the middle of the night, that no nurse was able to travel to the Huntly Police station. He was then faced with the choice of travelling to Ngaruawahia where the blood specimen could be taken, or remaining in Huntly where there was no one available to do so.
[49] I accept that the constable genuinely and reasonably believed that it was impracticable for the test to be conducted in Huntly. This ground of appeal fails on that basis. In case I am wrong about the test, however, I need to consider whether there was reasonable compliance with the statutory procedures.
Was there at least reasonable compliance?
[50] Section 64(2) of the LTA provides that it is no defence to proceedings for an offence that a provision forming part of ss 68 to 75A of the LTA has not been strictly complied with provided there has been “reasonable compliance” with the relevant provision(s). The Court of Appeal has emphasised that a liberal approach needs to be taken to the use of the reasonable compliance provision.14 There is a sound policy
reason for this view. The Supreme Court said in Aylwin v Police:15
[17] Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable. The great majority of drivers comply with their obligations in this respect. A small minority do not. Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences. The Courts must give full effect to that clear parliamentary indication.
[51] In the event the conclusion I have reached above at [49] is wrong, I am satisfied that there was at least reasonable compliance with the legislative requirements.
Third ground of appeal: Was there a “blood specimen”?
[52] The third ground of appeal is that the prosecution did not prove that a “blood specimen” as defined in the LTA was taken in accordance with s 56(2). The essence of Mr Haskett’s submissions on this ground of appeal raise four issues:
(a) Was the s 75 medical certificate relied on by the prosecution admissible?
(b) Was the blood specimen taken “venous blood”?
(c) What are “normal medical procedures” and was the blood sample
taken in accordance with them?
(d) If the answer to any of the above is “no”, was there nonetheless
reasonable compliance with the statutory requirements?
The relevant legislation
[53] Section 56(2), which creates the offence of driving with excess blood alcohol, 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.
[54] “Blood specimen” is defined in s 2 of the LTA as meaning “a specimen of venous blood taken in accordance with normal medical procedures”.
[55] Section 75 of the LTA allows evidence of blood testing procedures to be proved by a certificate. It relevantly provides:
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.
(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.
[56] Section 75(2) was amended as from 5 November 2011. Section 75(2)(a)
previously read:
(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 ...
[57] The reason for the change was to allow blood specimens to be collected by more modern and safer methods than the traditional syringe.16 The 2011 amendment also introduced the following definitions:
blood specimen collecting instrument means –
(a) a needle and syringe; or
16 Hon. Steven Joyce speaking on the reasons for the changes when moving the Land Transport
(Road Safety and Other Matters) Amendment Bill for its second reading: (6 April 2011) 671
NZPD 17789; quoted in Guest v Police [2013] NZHC 1579 at [20] and Brown v Police [2013] NZHC 2662 at [11].
(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;
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.
[58] The relevant Gazetted notice is the Land Transport (Blood Specimen
Collecting Procedure) Notice 2011 (“the Notice”) which relevantly provides:
4 Relevant blood specimen collecting procedure
For the purposes of sections 72 to 74 of the [LTA], the relevant blood specimen collecting procedure is the procedure for the collecting of a blood specimen specified in clauses 5 to 8.
5 Blood specimen collected by needle and syringe
A blood specimen must be collected using a needle and syringe.
6 Division of blood specimen into 2 parts
(1) When taking a blood specimen, the medical practitioner or medical officer must divide the blood specimen into 2 parts, being–
(a) 1 part for analysis by an approved laboratory; and
(b) 1 part for custody by an approved laboratory and, if required to do so under section 74(5)(b)(ii) of the [LTA], subsequent sending or delivery to a private analyst.
(2) For the purposes of section 74(3), (4), (5)(b)(i), and (7)(a)(i) of the [LTA], the blood specimen means both parts of the blood specimen.
(3) For the purposes of section 74(5)(b)(ii) of the [LTA], the blood specimen means the 1 part of the blood specimen held in custody by the approved laboratory and referred to in subclause (1)(b).
7 Blood specimen parts to be put in separate containers
(1) The medical practitioner or medical officer must put the blood specimen parts into separate blood specimen containers taken from a sealed blood specimen collecting kit.
(2) The blood specimen containers must be sealed.
8Blood specimen taken under section 72 to be handed to enforcement officer
A medical practitioner or medical officer who takes a blood specimen under section 72 of the [LTA] must, after the blood specimen containers are sealed, hand both containers to an enforcement officer.
Was the s 75 medical certificate admissible?
[59] Mr Haskett argues that, despite the failure to challenge the medical certificate under s 79, the certificate was inadmissible because it did not fulfil the requirements for constituting a certificate under s 75(2). He says that the form used was outdated; the prosecution relied on the first paragraph which provides that a specimen of venous blood was taken “in accordance with normal medical procedures” but, following the 2011 amendment, s 75(2) deleted those words and substituted the term “blood specimen collecting procedure specified in the certificate”.
[60] For the respondent, however, Ms Cameron argues that the difference in wording is largely moot and, in any event, the certificate still satisfies the criteria for blood specimen collecting procedures set out in cls 5 to 8 of the Notice. On that basis, the medical certificate is therefore conclusive proof of the matters required to be proved.
[61] The medical certificate was in the following form:
BLOOD SPECIMEN MEDICAL CERTIFICATE
(Issued under s. 75(2) of the Land Transport Act 1998) I, Fiona Morgan, Registered Medical Practitioner, 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: Constable Philip Elvy
Signed: [illegible] Date 23/04/12
SCHEDULE
Full name: Richard James Gullery
Occupation: Diver
Full Address: [omitted from judgment] Taken by: Fiona Morgan Time: 0249
Date: 23/04/12
[62] Mr Haskett further argues that s 75(1) creates a presumption and reverse burden which can only apply if all of the matters in s 75(2), as opposed to merely some of them, are met. He submits this is because s 75(1) expressly provides that the presumption and reverse burden only apply to “a certificate to which this section applies”. Mr Haskett accepted that the Court of Appeal held in R v Clarke17 that, in the context of the predecessor to s 75 (s 58B(5) of the Transport Act 1962), 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. However, Mr Haskett argues that s 75 is different to s 58B(5) because that latter
provision did not provide that the presumption and reverse burden only applied to a certificate containing a specific closed list of matters and it did not contain the words “this section applies to”.
[63] Ms Cameron submitted that s 75(1) does not require that all matters must be proved in the certificate but that the certificate is conclusive proof of “such of the matters as are stated in the certificate”. She also argued that Clarke remains applicable to s 75(2) and the fact that both s 58B(5) and s 75(1) refer to “such of those matters” is definitive.
[64] Mr Haskett’s arguments on this point have been rejected by this Court on previous occasions. In Guest v Police,18 Cooper J dealt with similar issues in the context of a medical certificate which, as here, used language which did not reflect the 2011 amendment. Cooper J was of the view that, were it not for the definition of “blood specimen collecting procedure”, the medical certificate 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”. To comply strictly with
17 R v Clarke [1982] 1 NZLR 654 (CA).
the statute, the medical certificate needed to (but did not) refer to the blood specimen collecting instrument used (i.e. a needle and syringe). Cooper J went on:
[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 Clarke19 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.
[53] Those observations plainly related to the legislation then in force, in the Transport Act 1962, but they are equally applicable here.
[54] 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.
[65] Cooper J was also of the opinion that it was “distinctly arguable” that because
the current state of the law requires blood specimens to be taken by the use of a
19 R v Clarke, above n 17.
needle and syringe, a statement in a medical certificate that a blood specimen was taken in accordance with normal medical procedures would be sufficient to comply with the relevant statutory requirements of s 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.20
[66] Mr Haskett also advanced a similar argument more recently in Brown v Police.21 After referring to Guest, Hansen J said in that case he was satisfied that, on the plain words of s 75, the principles enunciated in Clarke apply. The Judge noted that both ss 75(2) and 58B(5) create a rebuttable presumption and they both provide that medical certificates issued under them will be “sufficient evidence” of the matters they contain, in the absence of proof to the contrary or a challenge to the certificate. Hansen J was satisfied that the provisions of both sections make it clear that despite the use of the conjunctive “and” linking the matters listed, it is intended
that they operate disjunctively. There is therefore no basis for taking a different approach to s 75(2). The provisions are permissive and enable proof of a number of matters together in one certificate but not requiring proof of all of them. The differences between the sections are ones of form rather than substance.
[67] This led Hansen J to the conclusion that the reference in the certificate to “normal medical procedures” rather than the blood specimen collecting procedure specified in s 75(2)(a) does not invalidate or render inadmissible the certificate. The key question before Hansen J was whether the medical certificate could be relied upon to establish that a blood specimen was taken from Mr Brown when the certificate states that the blood specimen was taken in accordance with normal medical procedures rather than the “blood specimen collecting procedures” stated in s 75(2)(a). Hansen J concluded:
[26] Like Cooper J in Guest, I am of the view that the answer to that question is yes. The blood specimen collecting procedure referred to in s 75(2)(a) is the taking of a blood specimen by a blood specimen collecting instrument as prescribed by notice in the Gazette. The instrument specified is a needle and a syringe. It is the only means by
which a blood specimen may be taken. Section 75(2)(a) may accordingly
20 At [54].
be restated as requiring the medical practitioner or medical officer to certify that a sample of venous blood was taken with a needle and syringe.
[68] I have no hesitation in applying the reasoning in Guest and Brown to what is essentially the same issue raised in this case. The purpose of a certificate issued under s 75(2)(a) is to relieve the Police of the requirement to prove the elements set out in it. The use of the past tense in matters (a) to (e) clarifies this; that is, the certificate is proof that “a specimen of venous blood was taken” and “the practitioner or medical officer handed each such container to an enforcement officer”. Requiring the prosecution to prove each element would defeat the purpose of having the certificate.
[69] In the event that I am wrong in these views, however, I find that there was, at least, reasonable compliance with the statutory requirements.
Was the blood taken “venous blood”?
[70] In order to be a “blood specimen” under s 2 of the LTA, the specimen needs to be of “venous blood”; it is not sufficient if it is, for example, arterial blood.22
Mr Haskett argues that the prosecution did not prove the blood was venous, despite the prosecution’s reliance upon the medical certificate to prove that it was. The essence of this submission was that it was possible, or even likely, that the blood drawn by Ms Morgan was not venous blood but blood found in either subcutaneous or muscle tissue. I approach this submission on the footing that the appellant carried
the onus of proving that the sample was not venous blood.23
[71] When the appellant gave evidence at the November hearing, he said that when Ms Morgan inserted the needle on the second occasion, she poked right through the vein into the tendon or tendon behind it. He said he knew the needle had pierced through the vein as he has had numerous blood tests in the past and he knew
how to give injections properly. He also gave evidence that the extensive bruising on
22 R v Faasipa (1995) 2 HRNZ 50 (CA) at 5.
his arm, seen in photographs he produced in evidence, was a result of the blood specimen being taken improperly.
[72] Ms Morgan’s evidence was that she knew she had drawn venous blood because it is difficult to find an artery and the colouring of a vein is a darker colour and so is easier to find. She said that arterial blood is a lighter colour to venous blood and so she was able to visually confirm that the blood she had drawn was venous.
[73] Under cross-examination, Ms Morgan accepted that without an ultrasound it was not possible to say definitely that the needle had not pierced through the vein. She also said that it was possible that, if the needle had pierced through the vein, subcutaneous substances could be drawn. She qualified this, however, by saying that although this was possible, it was not probable and she said that there is very little subcutaneous blood surrounding a vein. Ms Morgan further said that it would be difficult to collect a subcutaneous blood sample because one would have to cut quite deep and there is no blood supply because there are no blood vessels in fat tissue.
[74] Under re-examination, Ms Morgan said that if the blood was subcutaneous blood, it would have taken at least 10 minutes, if not longer, to draw the requisite 10 millilitres and the blood would likely congeal before then. She knew, because of the speed at which it was drawn and the colour of the blood, that the blood she had drawn was venous. She said she was unable to think of how 10 millilitres of blood from subcutaneous material could be drawn in less than a minute. Ms Morgan said that if the blood drawn was not venous, she would have been able to tell by looking at it and that the needles used are very thin and it would not have been be possible to draw anything other than blood. When Ms Morgan was asked whether she would be able to visually distinguish between purely venous blood and venous blood which was mixed with blood from subcutaneous or muscle tissue, she said she did not think that one would be able to distinguish it, but that if there was any subcutaneous tissue in the blood, it would have been visible in the syringe and this was, in her opinion, highly unlikely.
[75] Judge Burnett found that where there was any conflicting evidence on these matters, she preferred the evidence of Ms Morgan and Constable Elvy to that of the appellant. The Judge found the appellant’s recollection of the event to be inaccurate and over-dramatised.
[76] Ms Morgan is an experienced registered nurse. She has a Bachelor of Nursing and holds a current practising certificate; she has been practising since 2000. I am satisfied from the transcript of the evidence given in the District Court that Ms Morgan’s explanation of how she took the blood sample was detailed and cogent; she responded forthrightly and persuasively to the questions posed to her by Mr Haskett. The appellant’s evidence was purportedly based on his previous experiences and, as Judge Burnett noted, his evidence appears to have been somewhat overstated. Also, it is not entirely irrelevant that he was affected by alcohol at the time of the events he was required to recall in giving evidence. On the basis of the evidence as recorded, I am satisfied that Judge Burnett was entitled to find that the appellant had not proved that the blood sample taken was not venous blood.
Was the blood sample taken in accordance with normal medical procedures?
[77] The definition of “blood specimen” requires venous blood to be “taken in accordance with normal medical procedures”.
[78] Ms Morgan’s evidence was that she was given a sealed blood specimen collection kit by Constable Elvy. After washing her hands, she checked the components of the kit, including the syringe and needle, and prepared them for use. After re-washing her hands, she applied the tourniquet to the appellant’s arm and used the alcohol wipe to wipe down the crease of his arm. On the first occasion she inserted the needle she was unable to find the vein. Her evidence was that the penetration was clean (from the wipe), she had not pierced the vein on the first occasion and there was no medical reason to use a fresh needle on the second attempt. The second attempt was successful and Ms Morgan was able to extract the requisite amount of blood.
[79] Mr Haskett argues, however, that the prosecution did not prove that normal medical procedures were adhered to; he advances the following grounds:
(a) Ms Morgan did not tell the appellant to form a fist for better vein prominence and access;
(b) she used a 45 degree angle with the needle;
(c) she punctured the vein on the second attempt;
(d) she did not use a dedicated room known to be clean and hygienic; (e) she did not use a tourniquet known to be clean and hygienic;
(f) she did not use gloves despite being supplied with them; (g) she used the same needle on each attempt to draw blood;
(h) she used an alcohol swab when testing for that same substance;
(i)she did not ask the appellant whether he had any history or difficulties with blood tests, including infectious diseases or life threatening conditions; and
(j) she injured the appellant and caused significant bruising to his arm.
[80] In Tebbs v Police,24 Wylie J said that normal medical procedures would extend to identification of the appropriate skin, swabbing the skin with disinfectant, the use of a syringe, the use of a swab or plaster to staunch the wound, and the like.
He said these were all medical concerns to do with the “taking” of the blood.25
24 Tebbs v Police [2012] NZHC 3468.
25 At [39].
[81] In Guest v Police,26 Cooper J held that normal medical procedures do not mean that there needs to be evidence that an appropriate vein was identified, the skin was swabbed with disinfectant and so on. He noted that such evidence would not be required where a certificate that slavishly followed the wording of the Notice was provided. Cooper J was of the view that all that matters is that the blood specimen be taken with a needle and syringe.27 Hansen J in Brown v Police agreed with Cooper J that the requirement to establish that blood was taken in accordance with normal medical procedures does not require elaboration of the procedure by reference to the vein identified, the use of disinfectant swabs and the like.28
[82] Mr Haskett submits that the narrower interpretation of the requirements adopted in Guest and Brown should not be adopted, and the wider definition used by Wylie J in Tebbs is more appropriate. He submits that the Court should also take cognisance of the World Health Organisation Guidelines on Drawing Blood29 when interpreting the words “normal medical procedures”. Mr Haskett also refers to the Court of Appeal’s decision in Police v McGrath30 in which, he says, the Court did not interfere with a finding in the High Court that normal medical procedures do not involve the taking of blood where the physical environment is unstable.
[83] McGrath is readily distinguishable from the present case. In McGrath, the booze bus in which the appellant’s blood specimen was taken rocked when persons moved on the bus, especially when someone boarded or alighted from it, to the point where it was necessary for the medical officer who was taking the blood to shout “Taking blood” in an effort to limit the extent of instability at the crucial moment. The High Court held this did not accord with normal medical procedures. That is a very different factual situation from the present case.
[84] The Court of Appeal overturned the High Court decision because the Judge had not been made aware of the s 75(2) medical certificate which certified that the
blood specimen was taken in accordance with normal medical procedures. The
26 Guest v Police, above n 18.
27 At [55].
28 At [28].
29 World Health Organisation WHO Guidelines on Drawing Blood: Best Practices in Phlebotomy
(WHO Press, Geneva, 2010).
30 Police v McGrath, above n 8..
Court of Appeal said that the Judge had only the evidence of the Constable and the appellant and had “not dealt with the evidential force of the certificate”.31 McGrath does not, therefore, provide any great deal of assistance in the present case.
[85] I am in general agreement with the views expressed by Cooper and Hansen JJ32 that normal medical procedures only require that the blood be taken using a needle and syringe or other approved instrument. Applying a sensible practical approach to the legislation, I am satisfied that the Notice does not require that the more detailed medical practices advocated by Mr Haskett must be undertaken in every case in order to achieve compliance. The purpose of the requirement to use normal medical procedures is to ensure that the highly intrusive act of drawing a sample of blood from a citizen is carried out in a reasonable and responsible manner,
not to impose a mandatory standard of medical best practice.
[86] In those circumstances, it is unnecessary to examine each of the criticisms of Ms Morgan’s collection procedure advanced by Mr Haskett. Because it attracted some emphasis at the hearing before me, however, I note that there was no evidence that the use of a pure alcohol swab to disinfect the area from which the blood sample was to be taken could have an effect on the analysis of the blood sample that was adverse to the appellant.
[87] Clause 5 merely provides that a blood specimen “must be collected using a needle and syringe”. If Parliament intended wider considerations to apply, it would have said so. The blood sample in this case was collected using a needle and syringe by an experienced medical practitioner adopting a recognised procedure. It was therefore collected in accordance with normal medical procedures. At the very least, I am satisfied in any event there was reasonable compliance with the statutory requirements.
[88] This ground of appeal accordingly fails also.
31 At [25].
32 See Guest, above n 18, at [55]; Brown, above n 21, at [28].
Appeal ground four: Was the blood sample seized in an unreasonable manner?
[89] Because of my finding that the blood sample taken constituted a blood specimen for the purposes of s 56(2) of the LTA, and that the Judge was entitled to conclude that the appellant had failed to prove that the taking of the sample was improper, it is unnecessary to go into this ground of appeal in depth.
[90] Section 21 of the NZBORA provides for the right to be secure against unreasonable search and seizure. In R v Grayson, the Court of Appeal said:33
A search is unreasonable if the circumstances giving rise to it make the search itself unreasonable or if the search which would otherwise be reasonable is carried out in an unreasonable manner. So too seizure. Whether a police search or seizure is unreasonable depends on both the subject-matter and the particular time, place and circumstance.
[91] In R v Faasipa,34 the question arose whether the taking of arterial blood from the respondent while he was in the critical care unit in hospital was an unreasonable seizure within s 21.35 The Court of Appeal held that evidence of the analysis of the blood alcohol content of the blood sample was an unlawful seizure within the meaning of s 21. However, the seizure was not unreasonable as it had been the result of a clinical judgment involving minimal intrusion on the respondent's privacy, and the evidence was admissible in his manslaughter trial for dangerous driving causing death. (The respondent already had intravenous lines in place for other purposes,
and the taking of arterial blood was the least medically intrusive course of action available.)
[92] I am satisfied that the seizure in this case was not unreasonable. It was not practicable for the blood test to be conducted in Huntly so the appellant was taken to Ngaruawahia. Ms Morgan took the blood test as soon as she could, in accordance with normal medical procedures. She was exercising a statutory power to take a blood specimen, and she acted in accordance with her obligations. As in Faasipa, there was the least possible intrusion into the appellant’s privacy and the evidence
was properly admissible against the appellant.
33 R v Grayson [1997] 1 NZLR 399 (CA) at 9.
34 R v Faasipa, above n 22.
35 At 3.
[93] If I am wrong in that conclusion, I am satisfied that the evidence would have been admissible under s 30 of the Evidence Act 2006. Balancing any impropriety in the method of obtaining the blood specimen against the need for an effective and credible system of justice, and the considerations reflected in the Supreme Court’s views in Aylwin,36 I consider exclusion of the evidence would have been disproportionate. This ground fails also.
Result
[94] The appellant has not established any of his grounds of challenge to the decision of the District Court and I dismiss the appeal against conviction
accordingly.
Toogood J
36 Aylwin v Police, above n 15.
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