Haines v Police - [2018] NZCA 323

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA647/2017
[2018] NZCA 323

BETWEEN	QUENTIN STOBART HAINES Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	23 July 2018
Court:	Williams, Brewer and Thomas JJ
Appearances:	Applicant in person C A Brook and Z A Fuhr for Respondent
Judgment:	27 August 2018 at 3.00 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Haines seeks leave to bring a second appeal against his conviction for driving with excess blood alcohol.[1] We may grant leave only if satisfied that:[2]
(a)the appeal involves a matter of general or public importance, such as an issue of “general principle or of general importance in the administration of the criminal law by the Courts”;[3] or
(b)a miscarriage of justice may have occurred or may occur unless the appeal is heard.

Facts

[1]Mr Haines was convicted in the District Court: Police v Haines [2017] NZDC 17720. His first appeal was to the High Court: Haines v Police [2017] NZHC 2541.

[2]Criminal Procedure Act 2011, s 237(2).

[3]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36], citing Keenan v R [2005] NZSC 63 at [5].

On 29 May 2016, Mr Haines was stopped by police while driving a motor vehicle. He underwent breath screening and evidential breath test procedures, following which he elected to have a blood sample taken and analysed. The result, provided by ESR on 1 June 2016, was a reading of 95 mg per 100 ml of blood. The legal limit is 80 mg per 100 ml of blood.[4]
[4]Land Transport Act 1998, s 56(2).
Mr Haines elected to have the second part of his blood sample sent off for independent analysis.[5] Such a request must be made within 28 days of the date of being charged with the offence in respect of which the blood sample was taken.[6] The relevant charging document was filed on 21 August 2016. It is unclear precisely when Mr Haines requested to have his blood sample reanalysed, but there is no suggestion that he failed to comply with the 28-day timeframe.
[5]In accordance with Land Transport Act, s 74(5).
[6]Section 74(7).
However, Mr Haines’s blood sample was stored in a “vacutainer” which had an expiry date of 31 August 2016.[7] That date had passed by the time Mr Haines sought private testing. There is only one private testing facility in New Zealand. It declined to test the sample because it has a policy that it will not analyse samples stored in expired containers.
[7]Defined in the Land Transport (Blood Specimen Collecting Instrument and Procedure) Notice 2014, reg 3(1) as a “tube or tube-like container … evacuated to create inside it a partial vacuum that helps draw a volume of blood … ”.
The issue for us is whether this situation involves a matter of general or public importance or points to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZCA 323
Decision Date: 27 August 2018 at 3.00 pm

CaseChat Overview and Summary

Quentin Stobart Haines sought leave to appeal his conviction for driving with excess blood alcohol, an application that was declined by the Court of Appeal of New Zealand. Mr. Haines was stopped by police for suspected drink driving and subsequently tested for blood alcohol content. The original test result was 95 mg per 100 ml of blood, exceeding the legal limit of 80 mg per 100 ml. He elected to have a second sample tested independently, but the private testing facility refused to analyse the sample due to it being stored in an expired vacutainer, a container used for drawing blood samples. Mr. Haines argued that this situation raised matters of general or public importance and pointed to a risk of a miscarriage of justice. The Court found that there was no risk of a miscarriage of justice, as the legislation provided a procedure for such situations. Additionally, the statutory scheme included other significant safeguards that would ensure a reliable testing outcome, making the prosecution fair even if the second sample could not be tested. The Court also noted that police policy was adhered to and the refusal by the private testing facility was due to its own policy, not police actions. Consequently, the application for leave to bring a second appeal was declined.

The Court of Appeal was required to determine whether Mr. Haines's situation involved a matter of general or public importance or pointed to a risk that a miscarriage of justice may have occurred unless the appeal was heard. The Court examined Mr. Haines's argument that he had a right to have the second sample tested independently and that the police's failure to ensure the blood sample was stored in a container with an appropriate expiry date deprived him of this right. The Court considered whether the statutory procedures provided sufficient safeguards to ensure a fair prosecution, even in cases where the second sample could not be tested. The Court also assessed whether there was a risk of a miscarriage of justice due to the police's actions in this matter. The Court found that the statutory procedures provided sufficient safeguards, and there was no risk of a miscarriage of justice due to police actions. Therefore, the application for leave to bring a second appeal was declined.

Orders