Haines v Police - [2017] NZHC 2541

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CRI 2017-454-15

[2017] NZHC 2541

BETWEEN
QUENTIN STOBART HAINES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 October 2017

Counsel:

A OʼConnor for Appellant M Blaschke for Respondent

Judgment:

18 October 2017

JUDGMENT OF SIMON FRANCE J

[1] Mr Haines appeals his conviction and sentence on a charge of driving with excess blood alcohol.1 At issue is the inability of Mr Haines to have the second blood sample tested independently. Prior to trial he unsuccessfully argued this inability should mean that his trial was stayed.2 At trial he argued the same defect meant the prosecution could not prove the charge beyond reasonable doubt.

Facts

[2] The vehicle Mr Haines was driving was stopped. Mr Haines failed an evidential breath test and requested a blood sample be taken. This was done and the result provided by ESR was a reading of 95 mg per 100 ml of blood.

1 New Zealand Police v Haines [2017] NZDC 17720 (conviction) and [2017] NZDC 18453 (sentence).
2 New Zealand Police v Haines [2017] NZDC 13527.

HAINES v POLICE [2017] NZHC 2541 [18 October 2017]

[3] Mr Haines required the second sample to be tested and it was sent off for testing. However, the agency that conducts the test declined to analyse it because the blood was stored in a vacutainer the expiry date for which had passed. It is that laboratory’s policy not to test samples in such circumstances. No alternative independent testing facility is available in New Zealand.

[4] Some further relevant facts emerged from the evidence. Traditionally blood was taken by a syringe and stored in glass bottles. However, the practice changed so that the blood was taken by and stored in what are known as vacutainers. The reason for the change related to the fact that vacutainers proffer a better method of taking blood than a syringe. The reason for an expiry date relates to the utility of the vacutainer as a blood drawing device. Two experienced scientists confirmed at trial that the expiry date is irrelevant to the vacutainer as a blood storage device. It is sound for those purposes before or after expiry.

[5] As noted, evidence was taken from two scientists. The first was Ms Moar from ESR and was the analyst who did the initial testing. She confirmed the sample appeared sound. She retested it 13 months later and obtained a slightly lower blood alcohol reading, a result consistent with known deterioration rates for alcohol in such conditions.

[6] The second scientist, Dr Sandiford, was called by Mr Haines. It was to her the sample was sent. Dr Sandiford uses the services of the only available laboratory, which as noted declined to test it. Dr Sandiford confirmed the evidence of the ESR scientist about vacutainers, and also commented that from her visual observation of the untested sample there were no obvious problems with it. She also agreed the retesting results were consistent with established norms.

Decision

[7] I…

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.

Keep reading for free

Create a free CaseChat account to read Haines v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 2541
Decision Date: 18 October 2017

CaseChat Overview and Summary

In Haines v Police, the appellant, Quentin Stobart Haines, sought to appeal his conviction and sentence for driving with excess blood alcohol. The appeal centred on the inability to independently test the second blood sample, an issue that had been unsuccessfully argued for a stay of trial prior to the proceedings. At trial, it was argued that this inability meant the prosecution could not prove the charge beyond reasonable doubt. The case was heard in the High Court of New Zealand, Wellington Registry, with Simon France J delivering the judgment.

The legal issues in the case included whether the absence of a second blood test result constituted a reasonable doubt in the prosecution’s case, and whether the trial was unfair due to the inability to test the second sample. The court had to determine if the statutory scheme of the Land Transport Act 1998, which provides for the consequences of a flawed second sample, meant that a prosecution could not proceed if the second sample could not be tested.

Simon France J held that the absence of a second test result did not create a reasonable doubt given the soundness of the initial test result. The court found that as long as the initial result was a product of the correct statutory process and certified by the appropriate person, the inability to undertake a second test was unlikely to be of import. The court further concluded that a trial under these circumstances was not unfair, as the statutory scheme provided its own consequences for a failed second sample process. The appeal against conviction was dismissed, but the sentence appeal was allowed in part, quashing a $60 order for witness fees.

Orders