H v Police HC Nelson CRI 2004 042 2886

[2006] NZHC 998

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2004 042 2886

BETWEEN  H

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         5 September 2006 (Heard at Wellington)

Counsel:        B Johnson for Appellant

S Edwards for Respondent

Judgment:      6 September 2006 at 10.00am

RESERVED JUDGMENT OF RONALD YOUNG J

[1]      The appellant  seeks leave to appeal to the Court of Appeal arising  from convictions for two offences involving driving with excess breath and blood alcohol. The appellant says there are questions of law of general or public importance which should be submitted to the Court of Appeal for judgment.  Those questions of law involve delegation rights of the Commissioner, pursuant to ss 75A Land Transport Act  and evidence required  by a prosecution where matters ordinarily proved  by certificate under s 75(5) land Transport Act are proved by viva voce evidence.

Background

[2]      The appellant was convicted in the District Court that on 13 July 2004 he drove a motor vehicle on Bridge Street, Nelson, while his blood alcohol level was

104 milligrams of alcohol per 100 millilitres of blood; and secondly, on 1 April 2005

he drove  a  motor  vehicle  in Rutherford  Street, Nelson,  while  the  proportion  of

H V NEW ZEALAND POLICE HC NEL CRI 2004 042 2886  6 September 2006

alcohol on his breath was 596 micrograms of alcohol per litre of breath.  He appealed against both convictions.   The matter was heard before Miller J on 27 June and judgment given on 30 June dismissing the appeals confirming both convictions.

[3]      The appellant says that there are five issues arising from these two appeals which are questions of law of general importance such they should be dealt with by the Court of Appeal.  I reproduce those questions below.

1. Does Section 4 of The Police Act give powers of delegation to The

Minister of Police in respect of the functions prescribed by Section

75A of The Land Transport  Act  1998  when  the  Act  contains  a specific definition of the term Commissioner, and Section 75A is mandatory in its terms?

2.When a signatory to the certification of a certificate issued pursuant to  Section  75A  of  the  Land  Transport  Act  as  a  true  copy  is authorised by someone other than “The Commissioner” does that constitute “proof to the contrary” within the terms of Section 75A(4) of the Act of authority of the signatory?

3.If  the answer  to  question  1  is  No,  and  question  2  is  Yes,  is  a Certificate of Compliance issued pursuant to Section 75A of The Land Transport Act 1998 which purports to be a certified true copy by a signatory authorised by someone other than The Commissioner of Police, (yet purportedly authorised by The Commissioner on the face of the certificate), admissible in evidence to support a charge of driving with excess breath alcohol.

4.Given that certain matters need to be proved by certificate issued pursuant to Section 75(5) of the Land Transport Act 1998, do those same matters relating to the proper receipt of blood samples by the ESR  need  to  be  proved  when  the  prosecution  rely  upon  oral evidence rather than certificate?

5.If blood samples are received by the ESR for analysis, and are not properly Scaled and (so are) rejected by the analyst to the extent that the analyst is not prepared to issue a certificate of analysis pursuant to  Section  75(5)  of  the  Act;  do  the  Reasonable  Compliance Provisions (in the Act) apply to remedy any defect (whatsoever) in the handling and treatment of the suspect samples for the purpose of conviction for an offence of driving with excess blood alcohol?

[4]      After discussing the matter with counsel, it is clear to me that there are really two questions which he wishes the Court of Appeal to consider as questions of law of matters of general importance.

[5]      The first might be expressed in this way.

Can the Commissioner delegate his responsibility under s 75A of the Land Transport Act to authorise a person to certify that a certificate is a true copy of an original certificate of compliance under that section.

[6]      That question essentially encapsulates questions 1, 2 and 3 of Mr Johnson’s identified questions of law.   Questions 4 and 5 are essentially the same question. The question is:

Whether, when the prosecution elects to prove in a breath/blood alcohol prosecution, a matter which may be proved by a certificate pursuant to s

75(5) Land Transport Act they have to prove all of the matters that are ordinarily narrowly proved by the certificate.

[7]      Turning to the first question.  That question was answered by Miller J when he said:

[28] The Judge referred to s75A(4), which provides that such a certificate is conclusive evidence in the absence of proof to the contrary. He did not decide the case on that ground however, perhaps conscious of Mr Johnson’s complaint about nondisclosure of documents relating to delegation. He noted, rather, that the point was whether the certificate was complete. It was, because the Police Act 1955 allows the Commissioner to delegate to any Deputy Commissioner of Police any of the Commissioner’s powers, authorities, duties, or functions. He referred also to s14 of the Interpretation Act 1999, which provides:

14       Exercise of powers by deputies

A power conferred on the holder of an office, other than a Minister of the Crown, may be exercised by the holder's deputy lawfully acting in the office.

[29] I agree with the Judge. It is true that the Land Transport Act defines “Commissioner” to mean the Commissioner of Police and there is no power of delegation in the Land Transport Act. But neither is there any evident legislative intention to confine the Commissioner’s general powers of delegation in this context. Section 14 of the Interpretation Act applies, as does s4 of the Police Act:

4        Deputy commissioners of Police

(3)       Each  Deputy  Commissioner  shall  have  and  may exercise such of the powers, authorities, duties, and functions of the Commissioner as the Commissioner may delegate to that  Deputy Commissioner  either generally or in any particular case.

[8]      I accept the point raised by Mr Johnson is a question of law.   I am not satisfied, however, that is it one that ought to be submitted to the Court of Appeal by reason of its general or public importance or indeed for any other reason.

[9]      I am satisfied that the basic proposition underlying the point raised by Mr Johnson has previously been decided by the Court of Appeal (see Johnson v Police CA36/98, 11 May 1998). While that case concerned an unrelated provision in the Land Transport Act it did deal with the argument of the appellant that the Police Act as a general act should be read subject to the Transport Act 1962 as specific legislation. The Court of Appeal rejected that argument and said that the two acts should properly be read together and police powers of delegation contained in the Police Act could be applied to the Transport Act. This issue, therefore, applies in this case. There is nothing in the Land Transport Act which would exclude the general powers of delegation contained in either the Police Act or the Interpretation Act. In my view, therefore, this issue has previously been decided by the Court of Appeal. In any event I do not consider that it is an arguable point.

[10]     Finally, as the Crown have pointed out, the certificate in question authorises someone to certify in a document that it is a true copy of another document.  This point therefore hardly qualifies as a matter of general or public importance.

[11]     The second appeal point raised by the appellant, in my view, has no merit and is not a matter of general or public importance which should be the subject of a grant of leave.  The prosecution decided not to rely upon the ESR’s analyst certificate but prove the essential matters by viva voce evidence.   The Land Transport Act provisions, therefore, relating to analyst’s certificates are irrelevant.  The prosecution always have the choice to call an analyst to give evidence in person.   Statutory provisions relating to what must be contained within an analyst’s certificate are there to ensure protection of an accused where the ordinary method of proof, viva voce evidence, is legislatively set to one side.   There, for understandable reasons, the legislature have included a number of statutory protections.  Examples of this might be the requirement to receive the blood sample by an “authorised person” at ESR. As far as chain of proof evidence is concerned, if certificates are not relied upon the Judge has to be satisfied beyond reasonable doubt that the blood taken from the

defendant is the same blood that is analysed by the ESR scientist.  The blood sample does not have to be sent by any particular person in the police, nor received by any particular person in ESR as long as the Judge is satisfied, as I have said that the blood taken from a defendant is the same blood that is analysed by the ESR.

[12]     In summary, therefore:

(1)      While there is a question of law raised by the appellant, it has, in my view, no merit at all.

(2)      The appeal raises no matter of general or public importance.

[13]     The  application  for  leave  to  appeal  to  the  Court  of  Appeal  is  therefore refused.

……………………………

Ronald Young J

Solicitors:

Crown Solicitor’s Office, Wellington