Harrison v Police
[2014] NZHC 3126
•9 December 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2014-409-000069 [2014] NZHC 3126
MATTHEW WILLIAM HARRISON
v
POLICE
Hearing: 27 November 2014 Counsel:
C S Withnall QC for Appellant
K B Bell for RespondentJudgment:
9 December 2014
JUDGMENT OF WHATA J
[1] Mr Harrison was found guilty on one charge of driving with excess blood alcohol, causing the death of Mr Richard Preston.1 He was sentenced to two years, four months’ imprisonment, disqualified from holding or obtaining a driver’s licence for a period of two years and ordered to pay reparation in the sum of $5,000 to the victims, namely the two daughters of Mr Preston.2
[2] Mr Harrison appeals against conviction and sentence. While there are multiple grounds of appeal against conviction, there are in essence three key issues, namely:
(a) Was Mr Harrison’s blood taken in breach of s 73(3) Land Transport
Act 1998 (LTA) because the person who took his blood was not “the medical practitioner in immediate charge”;
1 Police v Harrison DC Christchurch CRI 2013-061-363, 23 April 2014 [Substantive Decision]
2 Police v Harrison DC Christchurch CRI 2013-061-363, 11 July 2014 [Sentencing Notes].
HARRISON v POLICE [2014] NZHC 3126 [9 December 2014]
(b)If so, does s 64(2) provide dispensation for the non-compliance because there was reasonable compliance with s 73(3); and or
(c) Was it reasonably available to the Judge to find that Mr Harrison was the driver of the vehicle involved in the accident causing the death of Mr Preston?
Background
[3] On the afternoon of 23 December 2012 Mr Harrison and Mr Preston spent a few hours at the Waiau Lodge Hotel. They were observed leaving the hotel and turning left into Lyndon Street at about 6 pm. At some stage they made the decision to head home along Iverachs Road. The vehicle they were driving then crashed through a deer fence into a paddock where, due to the steepness of the hill, the vehicle came to rest approximately 100 metres down the hill. Mr Preston did not survive the accident. Mr Harrison, while conscious, was injured and could not remember what had happened.
[4] Mr Harrison was taken to Christchurch Hospital where a sample of his blood was taken by Dr Weaver. The blood analysis showed that he had 144 milligrams of alcohol per 100 millimetres. He was charged with two counts in the alternative:
(a) That on 23 December 2012 at Waiau he was the person in charge of a motor vehicle and caused the death of Richard William Preston while the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per 100 milligrams of blood in that it was 144 milligrams of alcohol per 100 millilitres of blood (s 61(1)(b) and (3AA) LTA; OR
(b)That on 23 December 2012 he did drive a motor vehicle on a road, namely Lyndon Street, while the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millimetres of blood in that it was 144 milligrams of alcohol per 100 millilitres of blood (s 56(2) LTA).
District Court judgment
[5] The matter came before Judge A D Garland.3 The Judge identified the key ingredients of the charges as follows:
4.1 Driving with excess blood alcohol causing death.
(a) That the defendant was in charge of the motor vehicle;
(b) That the fact that the defendant was in charge of or driving a motor vehicle, caused the death of the deceased;
(c) That the proportion of alcohol in the defendant’s blood
exceeded the statutory limit (80 milligrams of alcohol per
100 millilitres of blood) as ascertained from an analysis of a blood specimen taken under s 72 or 73 of the Land Transport
Act 1998.
4.2 Driving with excess blood alcohol.
(a) That the defendant drove a motor vehicle on a road;
(b) While the proportion of alcohol in his blood exceeded the statutory limit (80 milligrams of alcohol per 100 millilitres of blood);
(c) As ascertained from an analysis of a blood specimen taken under s 72 or 73 of the Land Transport Act 1998.
[6] The Judge then sets out the background to the alleged offending and what the defendant considered to be the key issues in the case, namely:
21.1Whether the prosecution was able to prove beyond reasonable doubt that the defendant was in fact the driver of the deceased’s white Hilux utility at the time of the accident;
21.2Whether the prosecution was able to prove beyond reasonable doubt that the proportion of alcohol in the defendant’s blood exceeded the statutory limit? In this regard the defendant objected to the admissibility of the analysis of the blood sample taken from the defendant;
21.3Whether the prosecution was able to prove beyond reasonable doubt that the defendant’s driving caused the deceased’s death? Mr Withnall submitted that it was necessary for the prosecution to prove some act or omission on the part of the defendant in the course of driving which did that.
[7] The Judge dealt with each issue in turn.
Time of driving
[8] The Judge rejects the defendant’s primary claim that there was a half an hour gap which is unaccounted for between when the vehicle was seen leaving the hotel, and the time it was seen heading towards Waiau Bridge and then when it was ultimately found. The Judge observed that the defendant relies substantially on the accuracy of the evidence of timing, and ignores other important circumstantial evidence. The Judge found that the evidence as to timing was as follows:4
(a) Arrival at Hotel
The witness Mr Allpress, Ms Guyton and Mr Guyton all recall that the defendant and the deceased arrived, or were at the hotel, at approximately 4.00 pm.
None of the witnesses were certain of the precise time of arrival. (b) Departure from Hotel
Mr Allpress thought that the deceased and the defendant were at the hotel for about two hours 15 minutes or something similar. He spoke to them before they left. He said they went out the back door past the men’s toilets and that there was a time lapse of 10 to 15 minutes before he saw them driving out of the car park in the deceased’s utility. He had earlier told the police that they were at the hotel for two hours, 10 minutes and had not mentioned the further time delay.
Ms Guyton thought that they were at the hotel for about one and half to two hours and that they left at approximately 6.00 pm via the back door past the men’s toilets. She saw them drive out of the car park five minutes later.
Mr Guyton thought that they were at the hotel for an hour and a half to two hours. He recalls that they drove out of the car park at approximately 6.00 pm.
Again none of the witnesses were certain of the precise time that the two men left the hotel.
(c) Driving Past the Fish and Chip Shop
Mrs McKenzie said she went to the fish and chip shop on Lyndon Street at about 6.00 pm, possibly a bit later, she wasn’t sure. She waited about 10 minutes in her vehicle. She saw the lady in the shop with her fish and chip order. Just as she was getting out, she saw the white ute and waited for it to go past.
She walked into the shop and collected her fish and chips (she told the police that it was on her way back from getting the fish and chips that she saw the white ute go past). She then got into her vehicle and drove home in the same direction as the white utility. She stopped at the intersection at Iverachs Road for a minute or so. She then drove along Iverachs Road to the accident scene. She estimate that there was a time lapse of six to seven minutes, possibly less, from seeing the white utility go past by the fish and chip shop and the time she saw the vehicle down the bottom of the hill.
(d) 111 Call
Mrs McKenzie made the 111 call to emergency services at 6.36 pm.
[9] The Judge then observed:
[26] There is only a “half hour gap” as contended for by the defence if it can be said with any certainty that the two men left the hotel at approximately 6.00 pm, i.e. on that basis, working backwards from the time of the 111 call, Ms McKenzie must have seen the utility go past the fish and chip shop at 6.30 pm.
[27] However, it was obvious to me after seeing and hearing from the witnesses, that with the exception of the time of the 111 call, the witnesses did not have an accurate recollection of times. The best that can be said is that the times they gave were only approximate.
[28] It is clearly possible, if Mr Allpress is correct with his estimate, that the defendant and deceased left the hotel between 6.00 pm and 6.15 pm, or even later. Ms McKenzie’s evidence as to the time when she saw the utility go past the fish and chip shop was at best just an estimate. It is unknown how long she remained at the shop after the utility passed by before leaving in her vehicle. Her time stopped at the intersection of Rotherham and Iverachs Roads is also not certain. It is also not known how long a lapse after she came upon the accident before she made her 111 call, although it was likely to have been a short period of time.
[10] The Judge therefore concluded that when the evidence is considered in context there is no “half hour gap”. The Judge then found that there was other important circumstantial evidence namely, in summary:5
(a) The witnesses saw the two men leave the hotel and that the defendant was driving.
(b)The vehicle turned left onto Lyndon Street, headed in the direction of the farm where the two men worked and lived and to reach their
destination the journey would take them over the Waiau Bridge and into Iverachs Road. There was no evidence to suggest that an alternative route was taken by them, for example, on Leslie Street.
(c) The presence of 200 grams of undigested food in the deceased’s stomach does not support a reasonable inference that they stopped somewhere, noting that the witnesses were not asked about whether the deceased ate at the tavern. He says it is clearly possible that the deceased did have food at the hotel and he may have had food in his vehicle as they travelled home. He says it is unsafe to draw any inference then that they stopped for food.
(d)Ms McKenzie who was at the local fish and chip shop said she saw the skinny figure of the person in the driver seat and assumed that that was Matt and she saw the person on the passenger side who had an arm out the window and had long grey hair and she identified this person as Whiskers (being the deceased). He notes that her evidence was that she was pretty sure it was “Matt,” and later told the police she was 70% sure it was Matt that was driving. The judgment then notes:
In evidence she said she was pretty sure it was “Whiskers”
in the passenger seat.
(e) The Judge notes that while it is unsafe to rely on Ms McKenzie’s purported identification of the driver he was nevertheless satisfied that Ms McKenzie still had a strong memory of seeing the long grey/ blonde hair of the person seated in the passenger seat, blowing in the wind. Given that only two persons were in the utility it is reasonable to conclude that the deceased was still seated in the passenger seat.
[11] Having dismissed the defendant’s primary contention the Judge concluded:
[31] Allowing for the fact that the times given by the witnesses were only approximate, and bearing in mind the other circumstantial evidence referred to, in my view it is reasonable to infer that Ms MacKenzie [sic] saw the deceased’s white utility pass the fish and chip shop more or less immediately
after it had left the hotel, as the defendant and deceased were headed back towards the farm where they resided.
[32] I am therefore sure that the defendant was driving the deceased’s
white utility when the two men left the Waiau township.
[12] He then observes that no inference can be drawn from the nature of the deceased’s injuries, the damage to the vehicle, the mechanics or physics of that damage caused, or a combination of all of those factors in the absence of any expert evidence in relation to the identity of the driver at the time of the incident.
Blood specimen
[13] The Judge also rejected the contention that the blood specimen was unlawfully taken and inadmissible. It had been put to the Judge that Dr Weaver, who took the blood, was not the medical practitioner in charge of the defendant at the time he took the blood and therefore did not comply with requirements of s 73.
[14] The Judge addressed the interpretation of s 73 in this way:
[44] Section 73 requires that “the Medical practitioner … in immediate charge of the examination, care, or treatment of a person” may take or cause to be taken a blood specimen. While the use of the word “the” suggests the singular the use of “immediate” acts to qualify it. The Concise Oxford English Dictionary defines Immediate as “1. Occurring or done at once; most urgent; current 2. Nearest in time, space, or relationship”. The word imports a temporal element. The relevant medical practitioner is localised in time. The use of the word indicates that Parliament intended that the medical practitioner in charge is the medical practitioner who is treating the person at the time the blood specimen is taken. Had Parliament intended to limit the relevant medical practitioner to solely the medical practitioner in charge of the shift, the provision could have been worded to say ‘medical practitioner in overall charge of the person may take or cause…..’
(Footnotes omitted)
[15] Nevertheless, the Judge, having canvassed a range of authorities dealing with the definition of medical practitioner, resolved:
[51] I therefore uphold the defence submission that Dr Weaver was not the medical practitioner in immediate charge of the care, examination and treatment of the defendant at the time the blood specimen was taken.
[16] The premise for this finding was the candid admission by Dr Weaver that he was not the medical practitioner in charge of the defendant until between 10.30 and
11 pm, more than an hour after the blood sample was taken. He did observe that a doctor/patient relationship existed between Dr Weaver and the defendant at that time but he was unable to ignore Dr Weaver’s concession that at the time the blood specimen was taken from the defendant Dr Kuang was still the MPIC of the defendant’s care.
Reasonable compliance
[17] The Judge then examined whether s 64(2) applied. That section states that non-compliance with s 73 (among others) is not a defence to the charge provide there was reasonable compliance with the sections. The Judge found that there had been reasonable compliance with the requirements of s 73, applying among other authorities the test for reasonable compliance set out in R v Aylwin.6
[18] He reasoned:
[58] …
(a) The degree of non-compliance in this case was low. While technically, Dr Kuang was still the MPIC during the changeover period of the shifts, Dr Weaver had in fact assumed a “hands on” responsibility for the care of the defendant. Clearly a doctor/patient relationship existed between Dr Weaver and the defendant at the time the blood specimen was taken;
(b) In my view there is no real possibility that the defendant has been prejudiced by the non-compliance. Dr Weaver was clearly aware of the care requirements for the defendant. He had examined him and was satisfied that the taking of the blood specimen would not be prejudicial to his proper care and treatment;
(c) In my view the non-compliance was not such as to cause any doubt at all about the correctness of the result;
(d) In my view, the degree of non-compliance in this case does not give rise to a risk of the defendant suffering injustice or unfairness.
6 R v Aylwin [2008] NZCA 154, (2008) 24 CRNZ 87.
[19] He therefore concluded that the evidence of analysis of the blood specimen taken from the defendant was admissible.
Causation
[20] The Judge then rejected an argument that the Crown had to prove a causative link between the excess breath alcohol level and the accident from which the death or bodily injured resulted. He also rejected that there needed to be an element of fault to be proved on the part of the defendant. He considered that he was bound by
the Court of Appeal decision in R v Ten Bohmer.7 It was stated in that case:
[32] We therefore consider that, in enacting s 61, Parliament deliberately intended to provide a strict provision based on the view that a person whose breath- or blood-alcohol level is in excess of the prescribed statutory limit is not entitled to be in charge of or to drive a motor vehicle, and that if he or she does so they must accept responsibility for any bodily injury or death which they may cause.
[21] The Judge also rejected any suggestion that the defendant may have had to take a sharp manoeuvre in an emergency situation or that there was mechanical favour. He said there was simply no evidence to support that proposition.8
[22] The Judge therefore concluded:
[69] In this case I am satisfied that the legal ingredients of the charge of driving with excess blood alcohol causing death have been proven beyond reasonable doubt namely:
(a) That the defendant was in charge of the deceased’s white
Hilux utility at the time of the accident; and
(b) That the fact that the defendant was in charge of and driving that motor vehicle, did cause the death of the deceased; and
(c) The proportion of alcohol in the defendant’s blood at that time exceeded the statutory limit as ascertained from an analysis of a blood specimen taken under section 73 of the Land Transport Act 1998, namely that it was 144 milligrams of alcohol per 100 millilitres of blood.
7 R v Ten Bohmer [2000] 3 NZLR 605 (CA).
8 Substantive Decision, above n 1, at [67].
Sentence
[23] In sentencing,9 the Judge essayed the relevant principles. He referred to the statutory maximum and a number of cases where sentences had been imposed for this type of offending including McMillan v Police, McCullough v Police, R v Seyb, R v Gacitua.10
[24] He noted that as a consequence of the increase in the maximum sentence for serious charges under the LTA the Court may impose sentences which would not previously have been possible without a charge of manslaughter.11 He then turned to consider aggravating and mitigating factors.12 He referred to the consumption of alcohol, his blood alcohol level of 144 milligrams which is moderate to high level
but he accepted that there was no suggestion of greatly excessive speed and there is no evidence of any prolonged or deliberate course of bad driving conduct. He referred to the harm and loss caused. He noted one person was tragically killed. He referred to Mr Preston’s daughters who are victims and noted their considerable financial losses and suffering.13 He said there were no mitigating features to the
offending.14 Having regard to relevant case law and aggravating features he
considered that a starting point sentence of three years was appropriate.15 He then examined factors relevant to him personally.16 He did not identify any aggravating features. In terms of mitigating features he had regard to the defendant’s personal previous good character and good driving record and the many references that had
been offered in support.
[25] The Judge went on to note:17
However, I have not read anything or heard anything that suggests that you are yet ready, willing or able to accept responsibility for the offending. You were offered the opportunity to do so after hearing the prosecution evidence, but you declined to do so as you were perfectly entitled to do. In this case it
9 Sentencing Notes, above n 2.
10 McMillan v Police [2014] NZHC 150; McCullough v Police [2013] NZHC 279; R v Seyb HC Timaru CRI 23007-003-416, 11 September 2008, R v Gacitua [2012] NZHC 2542.
11 At [10].
12 At [11].
13 At [12].
14 At [13].
15 At [14].
16 At [15].
17 At [15]
was suggested throughout the hearing that the evidence pointed to the deceased as being the driver and not you. In my view this is not a case where it can be said that there is a true contrition and remorse for offending which you have accepted responsibility for. You are of course entitled to maintain that position. I note there has been no offer to meet the victims in a restorative justice setting. I am told that you have not personally made any acknowledgement to family members that you are sorry for what you have done.
[26] He goes on to say that having said that he accepts that Mr Harrison feels great sadness in relation to the loss of a great friend and that is quite evident from statements made by referees. He also took into account the offer to pay the sum of
$5,000 reparation for emotional harm. He also accepted that Mr Harrison suffered some injury in the accident in terms of amnesia and that he is finding that quite difficult. Those factors together justified, in the Judge’s mind, a reduction of
20 per cent or eight months from the starting point.
Jurisdiction
[27] This appeal is to be determined pursuant to the provisions of the Summary Proceedings Act 1957. Sections 115 and 199 provide that this is a general appeal, to proceed by way of rehearing. The onus is on Mr Harrison to make out his grounds of appeal and establish that a different decision should be reached. However, as with all general appeals, I must come to my own view on the merits.18
Issues
[28] I consider that there are three key issues in this case, namely those referred to at [2](a)-(c) above. I will deal with each issue in turn, but first I must examine the applicable parts of the LTA.
Part 6 LTA
[29] For present purposes ss 56(2), 61(1), 64(2) and 73(3) are in focus.
18 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[30] Section 56(2) makes it an offence to drive while the proportion of the alcohol in a person’s blood exceeds 80 milligrams of alcohol per 100 millilitres of blood. It states:
56 Contravention of specified breath or blood-alcohol limit
…
(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.
[31] Section 61(1) then makes it an offence if a person in charge of a motor vehicle causes the death of person while driving with excess blood alcohol. At the relevant time s 61(1) provided:
61 Person in charge of motor vehicle causing injury or death
(1) A person commits an indictable offence if the person is in charge of a motor vehicle and causes bodily injury to or the death of a person while-
(a) the proportion of alcohol in the breath of the person in charge, as ascertained by an evidential breath test subsequently undergone by that person under section 69, exceeds 400 micrograms of alcohol per litre of breath; or
(b) the proportion of alcohol in the blood of the person in charge, as ascertained from an analysis of a blood specimen subsequently taken from that person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.
[32] It will be seen that in both instances the proportion of the blood alcohol in the breath of the person must be ascertained from an analysis of a blood specimen subsequently taken from that person under ss 72 or 73.
[33] Section 73 then provides a detailed regime for the taking of blood. It commences at subs (1) by imposing a duty on person receiving treatment in a hospital or doctor’s surgery to permit a medical practitioner to take a blood specimen. Section 73(2) then permits a medical practitioner in immediate charge of the patient, or another medical practitioner, to take blood from an unconscious
person. Section 73(3) however authorises the taking of blood, with or without consent, in the following specific terms:
73 Who must give blood specimen in hospital or surgery
…
(3) The medical practitioner who is in immediate charge of the examination, care, or treatment of the person in a hospital or doctor's surgery—
(a) may take a blood specimen or cause a blood specimen to be taken by another medical practitioner or a medical officer; and
(b) must either take a blood specimen or cause a blood specimen to be taken by another medical practitioner or a medical officer, if an enforcement officer requests him or her to do so,—
whether or not the person has consented to the taking of the specimen and whether or not the person is capable of giving consent.
[34] The requirement for the oversight of the medical practitioner in immediate charge is then replicated at s 73(4) if a further blood specimen is needed.
[35] Section 73(5) provides:
(5) Despite subsection (3), a blood specimen may be taken under any provision of this section only if the medical practitioner—
(a) has reasonable grounds to suspect that the person is in the hospital or doctor's surgery as a result of—
(i) an accident or incident involving a motor vehicle:
(ii) an injury or a medical condition arising subsequent to an accident or incident involving a motor vehicle; and
(b) has examined the person and is satisfied that the taking of the blood specimen would not be prejudicial to the person's proper care or treatment; and
(c) tells the person (unless the person is unconscious) that the blood specimen is being or was taken under this section for evidential purposes.
[36] Relevantly, s 73(7) confers immunity from suit for the taking of blood under this section in the following terms:
(7) No civil or criminal proceedings may be taken against the Crown, a district health board, or any other person in respect of the taking of a blood specimen under this section, or in respect of the sending of a blood specimen to an approved laboratory, on the ground of lack of consent of a person whose consent to the taking of the blood specimen would have been otherwise required by law if this section had not been enacted.
[37] Turning to s 64(2) which states:
64 Defences
…
(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.
[38] I address the interpretation and application of this section below at [47]-[61].
Breach of s 73(3)?
[39] Mr Withnall QC contends that the police did not comply with s 73(3) because Dr Weaver conceded that Dr Kuang was in immediate charge of Mr Harrison at the time he took Mr Harrison’s blood. Ms Bell responds that it is available to me to find that Dr Weaver qualifies as a medical practitioner in charge as he had a hands on role in Mr Harrison’s care.
Assessment
[40] The natural meaning of “medical practitioner who is in immediate charge” is clear. It is the medical practitioner who has primary responsibility for the care of the patient at the time that the blood is taken,19 as distinct from other medical practitioners. This is made explicit by the language and structure of s 73.
[41] First, s 73(1) imposes a requirement for a person under (among other things)
treatment to permit blood to be taken by a medical practitioner. Section 73(2) then enables the taking of blood when a patient is unconscious by a medical practitioner
19 Alexander v Police (1998) 4 HRNZ 632 (CA); Police v Irwin HC Napier AP18/94,
22 September 1994; Police v Kotzikas HC Christchurch M409/84, 23 May 1985.
in immediate charge or another medical practitioner. But s 73(3) mandates that only the medical practitioner in immediate charge may take the blood sample or instruct another medical practitioner to take the blood sample, with or without the consent of the person. It also stipulates that the medical practitioner in immediate charge or a person instructed by him or her “must” take the blood sample when instructed to do so by an enforcement officer.
[42] The distinction is then repeated in s 73(4), so that if the blood specimen originally taken is insufficient, only a medical practitioner immediately in charge may take or instruct another medical practitioner to take a further take blood specimen. Section 73(5) then specifies that the medical practitioner may only take blood pursuant to s 73(5)(a)(i) when the practitioner has reasonable grounds to suspect the person has been in an accident.
[43] The necessary implication of all of this is that while all medical practitioners may be allowed by the affected person to take blood and all of them must believe on reasonable grounds that the person has had an accident, only the medical practitioner in immediate charge, or a medical practitioner instructed by him, may take blood with or without the consent of the patient. Furthermore, as the Court of Appeal stated
in R v Cameron:20
The crucial point is that it must be a doctor in charge who takes the blood specimen or causes it to be taken. That requirement was obviously introduced in the interests of the patient.
[44] Is there then a good reason to depart from this natural meaning? The legislative policy of curtailing drink driving was emphasised by the Supreme Court in Aylwin v Police:21
[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.
20 R v Cameron CA46/98, 15 June 1998.
21 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.
[45] But the taking of blood without lawful authority is an acute violation of personal integrity, actionable in tort, criminal law and in public law insofar as it infringed the right to be free from unreasonable search and seizure.22 This is a strong reason, together with the directive at s 6 of the New Zealand Bill of Rights Act 1990 (NZBORA),23 to interpret the power conferred by s 73(3) restrictively.
[46] Accordingly, Dr Weaver’s acceptance that he did not take over from Dr Kuang until between 10.30 pm - 11 pm meant that he was not the medical practitioner in fact “in immediate charge” of the appellant at the time the blood sample was taken. Dr Weaver was also unsure what his role was at that time and he could not recall how he was located as the doctor to take the blood. Therefore the blood sample was not taken in compliance with s 73(3).
Does s 64 apply?
[47] The next issue then is whether s 64(2) applies and if so whether there was reasonable compliance with the requirements of s 73(3)?
[48] In R v O’Callaghan,24 cited by Mr Withnall, Woodhouse P and McMullin J resolved that an equivalent reasonable compliance provision25 did not save a prosecution where there was no proof of the existence of the doctor’s belief that the patient had been in an accident as required by s 58D(2) of the Transport Act 1962.
Woodhouse P observed:26
22 Affirmed by s 21 New Zealand Bill of Rights Act 1990– see cases vis damages.
23 New Zealand Bill of Rights Act 1990, s 6 states:
6 Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and
freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
24 R v O’Callaghan (No 2) [1985] 1 NZLR 208 (CA).
25 Transport Act 1962, s 55(5):
It shall not be a defence to an indictment for an offence under subsection (2) of this section (being an offence committed while the proportion of alcohol in the breath or blood, as the case may be, of the defendant exceeded the amount specified in that subsection) that any provision or provisions forming part of section 58A or, as the case may require, section 58B or section 58D of this Act have not been strictly complied with or have not been complied with at all, provided there has been reasonable compliance with such of those sections as apply.
26 R v O’Callaghan, above n 24, at 211 and 212.
…the conditions are not simply steps within the statutory process for lawfully obtaining a blood specimen. They are essential to getting the process started. Without the belief the doctor is unable to embark on the process at all.
[49] And further:27
In my opinion a failure to satisfy that essential precondition before embarking upon the process of taking blood specimen involves not merely a fundamental departure from what is contemplated by the Act: it involves taking action which is impermissible.
[50] Section 58D largely mirrors s 73.28 By parity of reasoning, the requirement that the medical practitioner in immediate charge must take the blood is an essential precondition that must be satisfied before embarking on the blood taking process. Indeed the status requirement at s 73(3) naturally and logically precedes the belief requirement at s 73(5).
[51] It is however difficult to reconcile the legislative policy of the LTA as recently expressed by the Supreme Court in Aylwin with the strict application of the principle of legality undertaken in O’Callaghan.29 Notably the Supreme Court also
observed:30
…[64](2) applies to any issue in breath alcohol and blood alcohol prosecutions which is unrelated to possible [breath screening or evidential breath testing] error and also applies to all other offences pertaining to the sections referred to in that subsection, such as failing to accompany. If necessary, the police could in the present proceeding have invoked s 64(2) on the failing to accompany charge.
27 At 212.
28 Transport Act 1962, s 58D(2):
(2) Notwithstanding anything in any other Act or rule of law, a registered medical practitioner who is in immediate charge of the examination, care, or treatment of a person who is in a hospital or doctor’s surgery–
(a) May take, or cause to be taken by another authorised person, a blood specimen from that person; and
(b) Shall take, or cause to be taken by another authorised person, a blood specimen from that person if requested to do so by an enforcement officer,-
Whether or not that person has consented thereto and whether or not that person is capable of giving his consent:
29 A similarly strict approach to compliance was adopted in Hope v Transport Department [1971] NZLR 449 (SC) at 451; Police v Anderson [1972] NZLR at 242; Police v Irwin AP18/94, 22
September 1994, at 7.
30 Aylwin v Police, above n 21, at [13].
[52] Plainly the Supreme Court made no distinction between a non-compliance with requirements that are a precondition to testing and a condition of testing. The Court of Appeal in the same case noted that legislative history of s 64 suggests that the drink driving scheme had evolved over time in response to the strict application of the requirements for testing.31
[53] In Birchler, the Supreme Court then described the operation of s 64(2) in this way:32
… a failure to comply with s 69(1) means that a prescribed pre-condition for requiring a person to accompany an officer in order to undergo a evidential breath test has not been met. There has not been compliance with s 69. Such non compliance will provide a defence to a breath or blood-alcohol charge under s 56 unless, in terms of s 64(2), there has been reasonable compliance. There can be reasonable compliance where there has not been “strict compliance” and even, in some circumstances, where the section in question (here s 69) “has not been complied with at all”. The short point is that, if what has occurred does not pass muster as strict or reasonable compliance with s 69, there was no lawful basis for the breath screening test and what followed thereafter.
(Footnotes omitted)
[54] While this observation was not dealing with s 73, there is no hint whatsoever that non-compliance with a precondition to testing was beyond the reach of s 64(2). Rather, the clear assumption is that s 64(2) provides limited dispensation from the very specific requirements of Part 6.
[55] Nevertheless the Supreme Court decisions of Aylwin and Birchler are not directly on point. They are not concerned with non-compliance with s 73 and the unlawful taking of blood and there is no mention of R v O’Callaghan. I consider therefore that I remain bound to apply the reasoning of the majority in R v O’Callaghan and to maintain comity with High Court authority that has applied it.33 Furthermore, I also consider that a strict approach is consistent with the principle of legality and the assumption that very clear statutory words are needed in
order to provide dispensation for an unlawful violation of personal integrity.34 This
31 R v Aylwin [2008] NZCA 154, (2008) 24 CRNZ 87 at [41], [58]-[65].
32 Birchler v Police [2010] NZSC 109, [2011] 1 NZLR 169 at [17].
33 Police v Irwin HC Napier, AP18/94, 22 September 1994.
fortifies my view that it must be for the appellate court to depart from the principle established in R v O’Callaghan.35 Accordingly, s 64(2) does not provide dispensation for non-compliance with s 73(3).
Was there reasonable compliance?
[56] In case I am wrong about this, I turn to examine whether there has been reasonable compliance. The orthodox approach to the issue of reasonable compliance was summarised36 by the Court of Appeal decision in Aylwin which stated:37
[41] The test as to whether there has been reasonable compliance has been seen as involving the consideration of two questions, as set out in Soutar v Ministry of Transport [1981] 1 NZLR 545 (CA) at P 550, and Aualiitia v MoT [1983] NZLR 727 (CA) at p 729. The first question is whether the extent of the non-compliance gives rise to a reasonable doubt about the correctness of the result. The second question is whether there is a risk of the defendant suffering injustice or unfairness. The need for this test to be applied liberally was reiterated by this Court in Shaw v Police 21/9/95, CA212/95. Accordingly, where the non-compliance does not create the possibility or likelihood of error, it should be saved by reasonable compliance.
[57] It will be immediately seen that this test is directed to non-compliances that might result in an error in the testing. It does not appear to be concerned about the nature of the non-compliance and the effect that may have on the rights of the affected person, including the right to be secure against unreasonable search and seizure. It is another reason for pause before departing from O’Callaghan. In any
event, in terms of this approach, save in one respect, I perceive no error in the
34 R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539 (HC) at 587-
592 per Lord Steyn. Section 73(7) is an example of clear words. Notably also, the Court of Appeal in Chadderton v R [2014] NZCA 528 resolved that NZBOR Act considerations also provide an independent basis for exclusion of evidence in LTA proceedings pursuant to s 30 of the Evidence Act and that s 64(2) does not necessarily affect the outcome. This decision was not addressed in submissions so I say no more about it. It serves nevertheless to illustrate that the Courts will not permit rights violations without affording affected persons the proper opportunity for vindication of their rights.
35 Customs v Lawrence Publishing Co Ltd [1986] 1 NZLR 404 at 414-415; Cross v CIR [1991]
3 NZLR 1 at 6; R v Hines [1997] 3 NZLR 529 at 538-539; Couch v Attorney General (No 2) [2010] 3 NZLR 149 at [51]. See also JF Burrows and RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at 190.
36 As noted by Judge Garland in the Substantive Decision, above n 1, at [55], [58]-[59].
37 R v Aylwin¸above n 31.
Judge’s reasoning in terms of the application of s 64(2) as recorded at [58] of his
judgment38 as repeated at [18] above.
[58] But I am unable to accept that the non-compliance was low in law or fact. Dr Weaver was not the medical practitioner in immediate charge and he was unable to recall why he was the doctor assigned to take the blood. This meant that a fundamental aspect of s 73 was not complied with at all. A low level of non- compliance might be (for example) the failure of the practitioner in charge to tell the person that the sample is being taken for enforcement purposes as required by s 73(5)(c) in circumstances where it would have been obvious to the patient that it was being taken for that purpose. But where, as here, the central requirement for the taking of blood is not met, the non-compliance cannot be described as low.
[59] Furthermore, I am not satisfied on the balance of probabilities that Dr Weaver had assumed “hands on” responsibility for Mr Harrison at the time he took the blood. His evidence was contradictory and unclear on this point. He said under cross- examination that he took over Mr Harrison’s care at about 10.30 pm -11 pm. He then said under re-examination that he was “his caring doctor at the time” even though the blood sample was taken at 9.50 pm. He then conceded that he “can’t be sure” what his role was with regard to Mr Harrison’s care at that time.
[60] I agree nevertheless with the Judge’s main point. The absence of bad faith, testing error, serious injustice or risk of harm significantly mitigates the seriousness of the non-compliance. Furthermore, in assessing the seriousness of the infringement of Mr Harrison’s rights, it is relevant, as I understand it, that he consented to the taking of the blood. While he was obliged to permit the taking of the blood pursuant to s 73(1), this is not a case of non-consensual violation. His right to be secure against unreasonable search was not therefore fully engaged. Conversely, the absence of consent would have heightened the overt need for strict compliance, aggravated the unreasonableness of the non compliant taking and in my view,
abrogated the right to be secure against unreasonable search. A proper explanation
38 Substantive Decision, above n 1.
for non-compliance with s 73(3) would then have been needed in my view to achieve reasonable compliance.39
[61] Accordingly, had it been appropriate for me to decide the point, applying the orthodox test described by the Court of Appeal in Aylwin, reasonable compliance with the requirements of s 73(3) was achieved for the purpose of s 64(2).
Reasonable evidence
[62] Mr Withnall submits that the Judge erred in four key respects:
(a) The Judge could not exclude the reasonable possibility that
Mr Harrison was not the driver at the time of the accident.
(b) The Judge failed to give any proper consideration to the fact that
Mr Harrison had no memory of the events in question;
(c) The Judge erred in holding that it was Mr Harrison’s driving that caused the defendant’s death in the absence of any evidence to establish that beyond reasonable doubt; and
(d)The blood sample was inadmissible in that it had not been delivered to an analyst within seven days of it being taken, as required by s 74(4) of the Land Transport Act 1998. Nor had s 76(4)(b) of the Act been
complied with.
39 To elaborate, when the taking of blood is undertaken without consent, the assessment of reasonable compliance needed to properly recognise that the unlawful taking of blood clearly engaged NZBORA considerations. Section 64(2), like s 73, must be interpreted where possible in a manner that is consistent with the affirmation of protected rights, including in this case the right to be free from unreasonable search and seizure (and associated procedural rights). Refer also Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 271-272. Helpfully, the requirement for “reasonable” compliance provides ample room for affirmation of protected rights without derogating from the object of s 64(2). The dispensating function served by s 64 will not unduly interfere with the right affirmed by s 21 provided that the reasonableness of the compliance is assessed in light of the affected rights and the nature and degree of infringement of those rights. Conversely, the objective of s 64(2) will not be unduly fettered by a requirement to justify the unlawful interference with that right. As Dr Weaver’s involvement could not be explained, had the taking been without consent, the non compliance would have been both unlawful and unreasonable for the purpose of s 64(2), because it would have infringed s 73(3) without good reason or adequate explanation.
[63] I will deal with each of these claims in turn.
Was Mr Harrison the driver?
[64] The grounds of appeal claim that the Judge erred in:
(a) Holding there was no half hour between the time Mr Harrison was observed leaving the hotel and the time when the deceased’s vehicle was seen by Ms McKenzie travelling towards the Waiau Bridge;
(b)Holding that the witness, Ms McKenzie was reliable in her identification of Mr Harrison as the driver shortly before the accident;
(c) Holding that in rejecting the inference that the vehicle may have stopped between leaving the hotel and the time of the accident;
(d)Refusing to consider the inferences to be drawn from the nature of the injuries to Mr Harrison and the deceased in relation to the physical damage to the vehicle in the absence of any expert evidence; and
(e) Concluding that there was no reasonable possibility that there may have been a change in driver between leaving the hotel and the time of the accident.
[65] In oral argument, Mr Withnall focussed on the Judge’s reasoning as to timing of key events. He submits that it was not available to the Judge on the evidence to infer the there was no time gap of about 30 minutes between when Mr Harrison was seen driving away from the Waiau tavern and the time of the accident.
[66] I agree that the approach to the evidence about timing is problematic. The Judge appears to have inferred from the evidence that the three witnesses who saw the appellant driving the deceased’s ute from the tavern at about 6 pm may have collectively meant as late as 6.15 pm. This had the effect of bringing their evidence broadly into line with Ms McKenzie’s evidence about observing the Ute driving passed the local fish and chip shop sometime between 6.15 and 6.30 pm. The Judge
has then concluded that there was no gap in time. But in so doing, the Judge has preferred an inference most adverse to the defendant when another, equally available inference to draw was that there was an up to 30 minute gap between the two sightings. To illustrate, I will briefly summarise the evidence on timing of events.
[67] Three witnesses saw Mr Harrison and Mr Preston leave the Waiau Tavern. Mr Allpress gave evidence that he saw Mr Harrison and Mr Preston for the first time in the tavern “roughly about 4 o’clock” and that he estimated that Mr Preston and Mr Harrison were at the hotel for “probably just over two hour, two hour mark, two hour 15 or something something similar, it’s a while back but”. He said “it could be
10 to 15 minutes” after he saw them leave the hotel and drive away in Mr Preston’s ute. He confirms that he saw Mr Harrison in the driver’s seat and Mr Preston in the passenger seat. He also saw them turn left heading towards Waiau Bridge. Under cross-examination he could not specifically recall telling a constable that Mr Harrison and Mr Preston arrived at 3.55. But he did accept that they may have been in the tavern for “approximately two hours 10 minutes”. Though he also said that he was not 100 per cent sure.
[68] Catherine Ann Guyton gave evidence that she walked into the tavern “approximately around 4 o’clock, 10 to 4, 4 o’clock”. She said that Mr Harrison and Mr Preston were probably in the bar while she was there for “an hour and a half two hours” and that they left “approximately probably around 6 o’clock. She also said that she saw them leave around 6, “maybe after” and probably “a couple of minutes either side”.
[69] The third witness was Percival Peter George Guyton. He saw Mr Harrison and Mr Preston leave the tavern by the back door. He said that “probably two or three minutes after I left and went out through the front door”. He also says:
Oh I was walking around the end of the hedge and the vehicle come out on my right hand side. To the, ah, Lyndon Street and I waited on the curb there until they turned left towards Waiau Bridge and then when they went past I crossed the street.
[70] In cross examination he saw the vehicle driving past “approximately” about
6 o’clock.
[71] Ms McKenzie said she saw Mr Preston’s vehicle drive past the local fish chip shop, which is about 40 or so metres from the tavern heading towards the Waiau Bridge. She claimed she saw Mr Harrison driving the car and Mr Preston in the passenger seat. I deal with the issue of identity below. As to timing, she says that she went to collect fish and chips at “6ish o’clock or might have been later, I can’t really recollect”. She said she sat in the vehicle waiting for the fish and chips for “about 5,
10 minutes maybe”. She said she was on the phone when she saw the lady with her fish and chips and as she went to leave the vehicle she noticed a flat deck white truck approaching and saw it go past. She then said she went and got her fish and chip order and started to drive home on Iverachs Road where she would about two or three minutes later notice the accident. She saw Mr Harrison struggling up the hill on his hands and knees and she remembers that she called 111. Under cross- examination she accepted that she worked out it was about seven minutes between her call at the fish and chip shop and the time that she rang the 111 number. The 111 call was recorded as being at 6.36 pm.
[72] Taken together, consistent with the Judge’s ruling, it is tolerably clear to me that the witnesses at the tavern could provide only an approximate estimate of the time that Mr Harrison and Mr Preston left the tavern but that it was no earlier than 6 o’clock and potentially later than that, approximately up to 10 to 15 minutes. It was also tolerably clear that Ms McKenzie’s estimate of timing was approximate also and spanning anywhere between 6.00 pm and 6.30 pm.
[73] The Judge appears however to have preferred a timing sequence most favourable to the prosecution and relying for that purpose on the uncertainty and inaccurateness of the evidence about the likely timing of exit from the tavern and travel past the fish and chip shop. But it was equally available to the Judge to conclude that there was a discernible gap in time, as much as 20-30 minutes between the time that deceased and Mr Harrison left the tavern and travelled past the fish and chip shop. I think, therefore, that the Judge erred in his reasoning process.
[74] To elaborate, while each item of evidence as to timing had probative force and placed Mr Harrison and Mr Preston outside the tavern sometime between 6 pm and 6.15 pm and then outside the fish and chip shop at sometime between 6.15 pm
and 6.30 pm, the Judge erred by combining the probative force of those items of evidence because he could only do so by unfairly preferring an inference adverse to the defendant when another inference supportive of the defendant’s case was available to him. With respect, the various strands of the evidence could not be safely combined in this way to the detriment of the defendant’s case.
[75] Significantly, all the defendant had to do was raise the reasonable possibility that there was a substantial time gap between leaving the tavern and the sighting of the vehicle passing the fish and chip shop. I think that Mr Withnall achieved that by raising the potential for up to a 20-30 minute gap on the available evidence. I also think that this therefore gave rise to a reasonable possibility that Mr Preston and Mr Harrison may have changed seats in the interim. It was then for the police to contradict that possibility. In this regard there was nothing at the scene of the accident to support the conclusion that Mr Harrison was the driver. The expert assessors could not determine who was at the wheel of the car at the time of the accident. Ms McKenzie could only say that she saw Mr Harrison climbing the hill on the left hand side of the car.
[76] Nevertheless I do not think this concludes the matter in Mr Harrison’s favour. Ms McKenzie identified a person with wavy long wavy grey/blonde hair in the passenger seat as it went passed the fish and chip shop. While the District Court Judge had some doubts about her identification evidence he accepted that her sighting of a man with long wavy grey hair was reliable. There is nothing in the transcript to suggest I should depart from the Judge’s reliability findings. Moreover while the specific identification evidence was weak, I accept that Ms McKenzie was adamant about the passenger having long wavy hair. This in my view is significant probative circumstantial evidence supporting the conclusion that Mr Harrison was the driver at the time of the accident.
[77] First, Mr Harrison was driving the car when they left the tavern. Second the car turned left toward Waiau Bridge (that is toward the location of the accident). Third, there is no dispute that Ms McKenzie saw the deceased’s ute when it passed the fish and chip shop only moments before the accident. Fourth, Ms McKenzie saw a man with long grey wavy hair in the passenger seat as it passed. Fifth, Mr Preston
had long grey wavy hair at the time (as shown by the photo exhibits). Sixth, there is no evidence to suggest that Mr Harrison had long wavy grey hair at the time.40 Taken together, each strand of the evidence is probative and places Mr Preston in the passenger seat at about 6 pm, then again at about 6.30 pm or perhaps earlier and then logically at the scene of the accident. The cumulative effect of this evidence establishes in my view beyond reasonable doubt that Mr Harrison was the driver of
the car at the time of the accident. Conversely, it is highly implausible to suggest that
Mr Harrison was the victim of coincidence.
Nature of injuries and physical damage to the vehicle
[78] I agree with Ms Bell that it is speculative to suggest that some correlation can be drawn between the nature of the damage to the vehicle and the injuries either to the deceased or to Mr Harrison. As noted, the expert evidence was inconclusive as to who was or was not driving. Moreover, we can only guess as to some correlation as to the physical damage and to the injuries. We do not know for example at what point in time the damage to the vehicle occurred. Indeed we only have a snap shot of its final state. While it might be said that the driver’s side is more heavily damaged than the passenger side, we cannot say whether that damage occurred while or after the deceased and Mr Harrison were in the car.
Lack of memory
[79] Mr Withnall submitted that the Court should have taken into account Mr Harrison’s lack of memory. But as I pointed out to him at the hearing Mr Harrison elected not to give evidence. I am therefore unable to conclude for the purpose of trial one way or another that Mr Harrison in fact has no memory of events because there is no evidence before me as to that fact. Furthermore I do not consider that his utterances to the medical staff and to the police afterwards amount to reliable
or probative evidence in support of that conclusion.
40 For completeness I am unable to accept the Judge’s reasoning that Mr Harrison did not have
long wavy grey hair at the time of the accident because he had short hair at trial.
Causation
[80] Finally, I do not accept that the Judge made any error in terms of his assessment of the causation issues. As was made plain by the Court of Appeal in R v Ten Bohmer,41 there is no requirement for the Crown to prove a causative link between the excess breath alcohol level and the accident from which death or bodily injured resulted. Nor do I think that Mr Harrison has raised a reasonable possibility that there may have been some other cause of the accident, including vehicle fault. The lack of warrant of fitness provides at best a tenuous basis for holding that vehicle failure was a substantial cause that might otherwise provide a proper basis
for finding that the accident was caused by that mechanical failure.
[81] Mr Withnall also relies on road conditions – a gravel rural road – and the possibility that an oncoming vehicle caused the accident. Again, he is inviting the Court to speculate. It does not raise even a reasonable possibility that a substantial cause of the accident was the condition of the road.
Delivery of blood sample
[82] The alleged error in delivery of the blood sample was not explored with me at the hearing. The main point appears to be that actual delivery to a approved analyst is required. But Mr Withnall also accepted that s 64(2) would be engaged in relation to this error. As Ms Bell noted in her written submissions the evidence before the Court is that Dr Weaver delivered the sample to Sergeant McHugh. I also agree with her that by delivering the sample to the police, generally reasonable compliance will have been achieved. On the sparse submissions made, I am not prepared to find that the error, to the extent that there was one, warrants exclusion of the blood specimen evidence.
Summary on the evidence
[83] While I do not accept the Judge’s use of the evidence as to the timing of
events, I am satisfied that the circumstantial evidence placed Mr Harrison in the
driver’s seat as he left the tavern and as he passed the fish and chip shop heading
41 R v Ten Bohmer, above n 7.
towards the Waiau Bridge. He was then found at the scene of the accident. In my view, this combination of evidence demonstrates beyond reasonable doubt that Mr Harrison was in the driver’s seat at the time of the accident.
[84] I dismiss the other claimed errors. For the most part, Mr Withnall is inviting the Court to speculate on the evidence and I do not think that even a reasonable possibility that the accident was caused by mechanical fault or road conditions has been demonstrated on the evidence. The argument of delivery is a makeweight, as I think Mr Withnall effectively concedes in his submissions.
Outcome on appeal against conviction
[85] The blood specimen was obtained unlawfully and no blood specimen was taken for the purposes of s 73(3), applying the authority of R v O’Callaghan.42 On that basis the essential ingredient of a charge under s 56 and/or s 61 was not established. The conviction must therefore be set aside.
[86] Had it been appropriate for me to apply s 64(2) I would have held that, in all of the circumstances, and applying the threshold test identified by the Court of Appeal in Aylwin,43 there had been reasonable compliance with the requirements of s 73(3). Having then assessed the evidence, I am also satisfied beyond reasonable doubt that Mr Harrison was a driver of the motor vehicle at the time of the accident with excess blood contrary to s 61.
Sentence
[87] I hesitate to venture a view on sentence when the appeal against conviction has been upheld. But given the unusual features of this case, I propose to briefly address sentence.
[88] I consider that the sentence, though harsh, is not manifestly excessive by reference to a range of starting points adopted for this type of offending.44 But I
42 R v O’Callaghan, above n 24.
43 R v Aylwin, above n 31.
44 Refer McMillan v Police [2014] NZHC 150, McCullough v Police [2013] NZHC 279, R v Seyb
HC Timaru CRI 2007-003-416.
consider that the Judge erred by taking into account the fact that Mr Harrison did not take up the opportunity to accept responsibility after hearing the prosecution evidence. There are many reasons why a defendant might refuse an offer to accept guilt, including an honest belief in one’s innocence or, relevantly in this case, the claim by the appellant that he had no memory of the events.
[89] While as I have said there was no evidence for the purposes of trial to support a finding of amnesia (other than the defendant’s statement to the police) different considerations arise at sentencing, where it is commonly accepted that matters raised by the defence in mitigation are ordinarily accepted by the Court for sentencing
purposes, unless there is some objection raised by the prosecution.45 I understand
from Mr Withnall that the defendant maintained and still maintains no memory of the events. It is not clear to me that the police objected to this asserted memory loss or that it was a factor taken into account by the Judge in sentencing. Mr Withnall also advises that once the finding had been made that the appellant had been driving, he did express remorse through counsel at sentencing, and prior to that by making an offer of reparation.
[90] It seems to me, therefore, that I should revisit the issue of discount. I consider that I should accept for the purposes of sentencing that Mr Harrison has no clear recollection of events and that he did express remorse in the manner submitted by Mr Withnall once the finding of culpability had been made. It seems to me that that justifies a further discount of 5 per cent to take into account remorse.
[91] Had it been necessary to do so, I would have reduced the sentence by a further 5 per cent to account for remorse. In the result, an end sentence of 27 months
(two years, three months) would have been appropriate.
45 Hall on Sentencing (online looseleaf ed, LexisNexis at [SA24.5].
Result
[92] The appeal is allowed for the reasons summarised at [46] and [55] and the conviction is set aside.
Solicitors:
C & F Legal Limited, Nelson
Raymond Donnelly & Co, Christchurch
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