Hurst v Police

[2013] NZHC 1128

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-000046 [2013] NZHC 1128

BETWEEN  GRAHAM CRAIG HURST Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         16 April 2013

Appearances: A J Haskett for the Appellant

J E Tarrant for the Respondent

Judgment:      17 May 2013

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on 17 May 2013 at 10 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:

A J Haskett, Legal Defence Service, Auckland. Email:[email protected] J E Tarrant, Crown Solicitor, Hamilton. Email: [email protected]

HURST V NEW ZEALAND POLICE HC HAM CRI-2011-419-000046 [17 May 2013]

Background

[1]      In August 2010, in the early hours of Sunday morning, the appellant was driving a motor vehicle in the town of Whitianga.   He drove past a police officer standing in the middle of the road who was holding a torch to wave down traffic at a traffic alcohol checkpoint.   The appellant drove past the police officer without stopping.  He was followed by a police patrol car, which turned on its flashing lights, and was stopped.

[2]      The police officer observed that the appellant had bloodshot eyes and slurred speech.  He admitted that he had been drinking.  Alcohol was found on his breath when he spoke into the Draeger breath testing device.   He then failed a breath screening test.

[3]      The appellant was taken to the Whitianga Police Station and subjected to the normal formalities and testing.  When he blew into the approved evidential breath test machine, the result was 822 micrograms of alcohol per litre of breath – over twice the permissible limit.

[4]      The police officer then gave the appellant the appropriate advice, including telling him he had a ten minute period during which he could decide whether he wanted a blood sample to be taken and analysed.  The appellant almost immediately said he wanted a blood sample to be taken.

[5]      An approved medical officer arrived at the Whitianga Police Station and drew blood from the appellant.  This was duly despatched to the ESR for analysis.  The subsequent analysis of the appellant’s blood showed that it contained 213 milligrams of alcohol per 100 millilitres of blood – well in excess of the permitted limit of 80 milligrams.

[6]      The appellant was charged under s 56(2) of the Land Transport Act 1998 (the Act) with driving a motor vehicle whilst the proportion of alcohol in his blood exceeded  the  80  milligram/100  millilitres  limit.    He  pleaded  not  guilty.    At  a defended hearing in the Hamilton District Court in March 2011, he was convicted by

Judge Spiller who subsequently disqualified him from holding or obtaining a driver’s licence for seven months and fined him $1,000.1    The appellant appealed and the Judge deferred disqualification pending the appeal.

[7]      For reasons which have not been satisfactorily explained, but which were probably in part attributable to administrative confusion in the office of the barrister who represented the appellant at the hearing, this appeal was not heard until two years after the conviction was entered. That is not satisfactory.

[8]      The appellant should clearly not have been driving his motor vehicle that night.  He was a potential danger to himself and other road users.  The sole issue raised by this appeal is whether the wholly technical points raised by his counsel, one of  which  was  not  raised  before the  Judge,  justify quashing his  conviction, thereby avoiding the consequences of his foolishness that night.

Overview of appellant’s submissions

[9]      Mr Haskett, in his carefully constructed and able submissions, advanced three grounds. These were:

(a)      That the blood sample taken from the appellant that night by a nurse was obtained contrary to s 72(4) of the Act and, in particular, the nurse’s   s 75(2)   certification   was   inadequate   and   fatal   to   the prosecution.   (Mr Haskett accepted this argument was not advanced before Judge Spiller.  He considered it to be the most powerful appeal point).

(b)The prosecution failed to prove that the enforcement officer delivered the two parts of the blood specimen to the ESR in compliance with the

procedure stipulated in s 74(3) of the Act.

1      New Zealand Police v Hurst DC Hamilton CRI-2010-075-000930, 8 June 2011.

(c)      The prosecution failed to prove that the blood alcohol analysis was carried out on a blood sample taken from the appellant, or that the analysed blood exceeded the legal limit.

Discussion

Blood sample taken contrary to s 72(4) and s 75(2) certification inadequate

[10]     It is unnecessary for the purposes of this judgment to set out exhaustively the well-known and detailed statutory provisions which lead to giving a blood specimen. Section 72(1)(b)  obliged  the  appellant  to  give  blood  in  this  case.    That  is  not disputed.

[11]     Section 74  sets  out  procedures  for  dealing  with  blood  specimens.    It  is mandatory for the medical officer (in this case a nurse) under s 74(1) to divide a blood specimen into two parts and place each part in a separate sealed bottle.

[12]     Section 75 (under the statute’s sub-heading “Evidential Provisions”) deals with  certificates  in  blood  alcohol  proceedings.    Under  s 75(1),  production  of  a certificate in prosecution proceedings “… 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….”2

[13]     The appellant’s appeal point centres around s 75(2)3 which provides:

75     Certificates in blood-alcohol proceedings

…

(2)      This section applies to a certificate purporting to be signed by a…

medical practitioner or medical officer and certifying that—

2      The provision is subject to s 79 which makes a certificate inadmissible if not less than 14 days before the hearing a defendant grants an application that the medical practitioner or medical officer is to appear as a witness. Section 79 was not invoked by the appellant.

3      Since August 2010, s 75(2) has been amended (with effect from 5 November 2011) by s 36(1) of the Land Transport (Road Safety and Other Matters) Amendment Act 2011. However there is little substantive difference. It is the now repealed s 75(2) which is operative for this appeal.

(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; and

(b)       The specimen was divided by the practitioner or medical officer into 2 parts, or the specimen was insufficient for division and the practitioner or medical officer took a further specimen; and

(c)       The practitioner or medical officer placed and sealed in a separate bottle each part or specimen (as the case may be); and

(d)       Each such separate bottle 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 separate bottle to an enforcement officer named in the certificate.

[14]     The medical certificate here reads:

BLOOD SPECIMEN MEDICAL CERTIFICATE

(Issued under s 75(2) of the Land Transfer Act 1998)

I,        JENNIFER SOUTHEN

*Registered Medical Officer, 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.

* The specimen was insufficient for division and I took a further specimen and placed and sealed each specimen 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:     Rei Toroa

(name)

Signed:             “J  Sout hen”              Date:              29/8/10

SCHEDULE

Full Name:     Graham Craig Hurst

Occupation:    Self Employed Plumber

Full Address:   100 Lake Rotoiti, Lake Rotorua

Taken by:       Jennifer Southen        Time:   0157 hours

Date: 29.8.10

[15]     It is immediately apparent that Ms Southen failed to strike out the relevant option in [2] of the certificate.  Nor did the enforcement officer, who has distinctive handwriting and who clearly filled in the certificate with the exception of Ms Southen’s signature, notice this error.

[16]     Mr Haskett’s submission is that [2] of the certificate is inadequate.  The nurse had certified first, that she took a blood specimen and divided it into two parts and secondly, that the specimen was insufficient for division so she took a further specimen and then placed each of the two specimens in a separate bottle.   The obligation to submit to taking a blood specimen contained in s 72(1) is extended somewhat by s 72(4), in situations where the blood specimen is insufficient to be

divided into two parts.4

[17]     Mr Haskett submitted that the error in the certificate meant a second blood draw was unlawfully taken because the first blood draw (the first option in [2] of the certificate) had been divided into two parts.  Thus the prosecution was not able to prove an offence under s 56(2) because the blood specimen analysed had not been “taken from the person under s 72”.

[18]     Counsel   cited   the   decision   of   Mahon   J,   Sharkey   v   Auckland   City Corporation.5    The facts of that case were similar.  Identically worded options in a medical certificate had been left intact by the medical practitioner who completed it. Mahon J disagreed with the Magistrate’s Court that, despite the medical practitioner failing to delete one of the options, there had been reasonable compliance.   The

Judge saw the doctor’s completion of the statutory certificate as “… only a mode of

4      Since August 2010, s 72(4) has been amended (with effect from 5 November 2011) by s 33 of the Land Transport (Road Safety and Other Matters) Amendment Act 2011.  However there is little substantive difference. It is the now repealed s 72(4) which is operative for this appeal.

5      Sharkey v Auckland City Corporation [1975] 1 NZLR 281.

providing evidentiary proof that the statutory steps had been carried out.”6     An alternative mode was the doctor giving evidence in the witness box, but the Judge saw the certificate as being part of the statutory process of proving guilt.

[19]     Mahon J went on to observe7 that it was “unsatisfactory to a law enforcement agency to see a prosecution fail through a slip of this kind, especially where the documentary  error  is  created  by  mere  calligraphic  oversight”.    But  the  Judge observed that the legislation conferred on the prosecution the advantage of being able to secure a conviction by adducing formal evidence from an arresting officer, coupled with the production of certificates which “exclusively contain the essential facts determining liability.”  The Judge considered that this was a concession which required prosecutors to see that the certificates were correct.

[20]     Contrary authority from the same era (although not identical) is found in Transport Ministry v Lancaster.8   In that blood alcohol prosecution, the defence had requested a copy of the blood specimen certificate.   There were thus two copies adduced in evidence.   The original copy certified one extraction of blood divided into two bottles, the second option being deleted.  The carbon copy, however, had neither option deleted.  The Magistrate had found it impossible to assess what the real position was.

[21]     Henry J on appeal (Sharkey9 was not cited to him) considered there had been reasonable compliance with the provisions of the statute.  The copy of the certificate still made it clear that two specimens had been taken, the only uncertainty being whether there had been one or two extractions of blood.  Either would have been in compliance, and there was no suggestion or evidence that a double extraction would result in a different analysis:  “It is all venous blood from the same person taken at

substantially the same time.”10

6      At 283.

7      At 284.

8      Transport Ministry v Lancaster [1977] 1 NZLR 563.

9      Above n 4.

10     At 565.

[22]     Arguably the approach of Mahon J in Sharkey was subsequently disapproved by the Court of Appeal in Coltman v Ministry of Transport.11   Richmond P was of the view12 that a liberal view should be taken of the relevant provisions and that it was very much in the public interest that the then s 58(2) – the reasonable compliance section – should be construed so as to give some latitude in relation to errors in certificates.  Woodhouse and Cooke JJ were both of the view that it was always open

to the defence to seek to call a medical practitioner or an analyst and that a liberal interpretation of the reasonable compliance section did not run any risk of injustice or unfairness.13

[23]     Section 64(2) of the Act provides:

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.

[24]     It is unnecessary for me to review the law on this provision.   I adopt the succinct summary provided by McMullin J in Soutar v Ministry of Transport.14   He posed two questions.   Is the non-compliance such as to cause a reasonable doubt about  the  correctness  of  the  result?    And,  is  there  a  risk  that  non  or  partial compliance might give rise to a risk of injustice and unfairness?15

[25]     This is clearly not the case here.  There was no contest that the nurse took a blood specimen from the appellant that night.   The observations of Henry J  in Lancaster are pertinent.   Whether one extraction or two, the blood came from the same source. Additionally, the evidence of Constable Toroa before Judge Spiller was

not contested.  With respect, the endeavours of both counsel to construe his evidence

11     Coltman v Ministry of Transport [1979] 1 NZLR 330 (CA). Although decided in July 1976, this appeal judgment was not reported for three years. The raised defect in Coltman was a digital error in a defendant’s address as it appeared on an analyst’s certificate, not the same point which was before Mahon J in Sharkey.

12     At 334.

13     At 335 and 337.

14     Soutar v Ministry of Transport [1981] 1 NZLR 545 at 550 (CA).

15     Injustice and unfairness are the same concepts deployed by Woodhouse and Cooke JJ in

Coltman.

one way or the other lead nowhere.   The constable stated that the nurse used the blood kit “... to obtain a specimen of blood at … 1.57 am.  She divided the sample into two glass bottles and sealed them …. then she sealed those, the two blood specimens with tape”.   It is, with respect, drawing a long bow to suggest that the reference to “the” two blood specimens refer to both a first and second extraction.

[26]     I accept that there has been carelessness.   The nurse should have read the certificate before she signed it and deleted the relevant option.  The police officer, who appears to have completed the certificate, should have noticed the error and made the nurse delete the relevant option before she left the police station.   The prosecutor, when preparing for trial, should have noticed the defect.  And defence counsel (not Mr Haskett), should also have noticed the error.  No one noticed it.  The point was not raised in the District Court hearing.

[27]     But I am totally satisfied that the position is covered by s 64(2) and, in particular, that the error does not raise a reasonable doubt.  Nor, importantly, does it run the risk of injustice or unfairness.

No proof that enforcement officer caused both parts of the blood specimen to be delivered to the ESR in accordance with s 74(3)

[28]     Section 74(3) requires an enforcement officer to take, deliver, or cause to be delivered, a blood specimen to an approved analyst within seven days of it being taken.16   Modes of delivery include “by courier or otherwise” and registered post.

[29]     Mr Haskett relies on the evidence of Constable Toroa who said:

I, well the blood kit remained with me until it was sent to ESR for analysis later that day on 29 August.  I have the receipt of that of sending the blood kit to submit.

[30]     Mr Hasektt’s submission is that the evidence falls short of specifying how the

two blood samples were sent to ESR for analysis.  Counsel referred to the Court of

Appeal judgment of Aualiitia v Ministry of Transport17  which is authority for the

16     This provision too was amended with effect from 5 November 2011. See above n 3.

17     Aualiitia v Ministry of Transport [1983] NZLR 727 (CA).

proposition that an enforcement officer may deliver blood specimens by making use of an office system designed to bring about such a result.  But, submits Mr Haskett, Constable Toroa did not say what system he used.  All he said was that “it was sent” to ESR.

[31]     The ESR certificate for its part states that a blood sample was delivered by registered  post  from  Constable  R  H  Toroa.     But,  submits  Mr  Haskett,  that information is extraneous to what s 75(5) prescribes as the contents of the analyst’s certificate. A courier form, however, was part of the evidence.

[32]     I do not intend to review the case law relating to s 74(4)(a).   The delivery requirement is clearly critical to the chain of evidence.  The provision is designed to ensure that the correct specimens of blood, before they start to degrade, are delivered by the enforcement officer to the analyst.  It is true that Constable Toroa does not give any detail in his evidence in chief how it was that the blood specimens were sent to ESR.  Nor was he cross-examined on that aspect.

[33]     Particularly where there is no apparent contest,  it is not  necessary for a prosecutor  to  prove the chain  of custody of a  blood  sample beyond  reasonable doubt.18   It is essentially a factual matter.  There was evidence from the enforcement officer that the two specimens were sent.   There was evidence from ESR (unchallenged) that a specimen was sent by Constable Toroa and received on 1

September 2010.  Judge Spiller was satisfied that the charge had been proved and he stated that he based this finding in part on the courier post form and the approved analyst’s certificate under s 75(5).

[34]     It appears the point raised by Mr Haskett in submissions was not fully put to Judge Spiller.  The somewhat laconic evidence in chief of Constable Toroa as to how the blood specimens were sent is amplified by the ESR evidence that he was the sender, coupled with the courier post form to which the Judge referred.

[35]     Even if I were to be wrong in this assessment, and in no way minimising the importance of chain evidence, I am satisfied pragmatically on the basis of Constable

18     See generally Dodgson v Police [2011] NZCA 428.

Toroa’s evidence and the courier receipt that there has, for the purposes of s 64(2), been sufficient compliance with s 74(3).  Injustice and unfairness are excluded by a combination of the enforcement officer’s evidence and the date of arrival of the marked specimens at the ESR on 1 September.

Prosecution failure to prove the blood-alcohol analysis showing an excess level

was carried out on the appellant’s blood sample

[36]     This appeal point was certainly canvassed before Judge Spiller and relates to the details of the appellant’s address and occupation appearing on the medical officer’s certificate.19   The appellant is described as a self employed plumber when it appears he is a farmer.  His address was a number (certainly not a sufficient address) at “Lake Rotoiti”.

[37]     It is of course elementary that the prosecution has to prove beyond reasonable doubt that the excess blood alcohol level recorded in a specimen of blood relates to blood actually extracted from a defendant.   Section 76(1)(a) of the Act enacts a presumption that, in the absence of proof to the contrary, if a s 75 certificate names a person having the same name, address, and occupation as the defendant, then the specimen of blood was indeed taken from that defendant.  In Coltman v Ministry of

Transport20  the Court considered there was reasonable compliance if there was no

reasonable doubt the certificate did relate to the defendant’s blood and reasonable care had been taken in obtaining the particulars.   The particulars must be a defendant’s “true details”, not details given at the time of the procedure.

[38]     In this area there was a conflict of evidence.  Constable Toroa was adamant that the address the appellant gave him was the non-existent address of “100 Lake Rotoiti”.   He conceded in cross-examination that he had made an error with the appellant’s occupation and had later amended this from self employed plumber to

farmer.

19 Supra [14].

20     See Coltman v Ministry of Transport [1979] 1 NZLR 330 (CA). An address on a certificate of

44A Muratai Road, whereas the defendant’s correct address was 440 Muritai Road.

[39]     The appellant himself gave evidence to the effect that he was a farmer and lived at a Papamoa address.  The Information with which he was served, however, displayed an address in Coromandel Town.  The appellant denied that he gave the enforcement officer the apparently false 100 Lake Rotoiti address.

[40]     Constable Toroa for his part, however, gave evidence that towards the end of the various procedures the appellant explained to him that he was currently living at a Whangaparoa address.  Unfortunately, Judge Spiller’s decision makes no reference whatever to the evidential discrepancies in the evidence-in-chief and cross- examination of both Constable Toroa and the appellant.

[41]     Regrettable though these discrepancies relating to the appellant’s address and occupation may be (and clearly Constable Toroa’s carelessness was a factor in the misdescription of occupation), I do not, in the circumstances of this case, regard those  discrepancies  as  being  fatal  to  the  prosecution.    First,  it  is  clearly  the appellant’s name which appears on both the medical certificate and the analyst’s certificate.  Secondly, the two certificates coincide.  The analysis of 213 milligrams of alcohol was found in a sealed bottle delivered to the ESR on 1 September 2010 and taken from:

HURST, Graham Craig

Self Employed Plumber

100 Lake Rotoiti

Lake Rotoiti / Lake Rotorua21

[42]     I do not regard the discrepancy between Lake Rotoiti and Lake Rotorua as being significant.  Both are generic district names rather than specific addresses and, in any event, one lake drains into the other.

[43]     What is important here is that both certificates, containing incorrect addresses and occupations for the appellant, refer to the identical blood sample extracted from the appellant early in the morning of 29 August 2010.  Although it is always open to the prosecution to rely on the s 76(1)(a) presumption it was not, on the evidence before the Judge, necessary for it to rely on the presumption alone.  The causal link

between the venous blood extracted from the appellant by the nurse in the early

21     The medical certificate refers to Lake Rotorua. The analyst’s certificate refers to Lake Rotoiti.

hours of 29 August 2010 and the analysis carried out by ESR was established by all the evidence.  Importantly, Judge Spiller was satisfied that the correct blood sample had been correctly analysed.22

Conclusion

[44]     For the reasons given in this judgment dealing with the three submissions raised by Mr Haskett, I have concluded that there are no proper grounds for interfering with the conviction entered against the appellant by Judge Spiller in the Hamilton District Court on 23 March 2011.

[45]     The appeal cannot succeed and the appellant must make arrangements to serve out the period of disqualification and pay the fine imposed.

Result

[46]     The appeal is dismissed.

Additional comments

[47]     Although  not  determinative,  I  sense  that  the  Supreme  Court’s  pertinent dictum in Aylwin v Police23  has yet to reach the full tide of its influence in the substantive law and procedure in this area of the Act:

[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.

[48]     For more than 40 years intoxicated drivers, assisted by a specialist Bar, have taken technical points in an endeavour to avoid the consequences of driving when

22     See Byrman v Police [2008] DCR 241 (HC) where Wild J referred to other evidence, including evidence of an unbroken chain of custody of the blood sample which was sufficient to tie the certificates to the appellant, there thus being no need to rely on the s 76 presumption.

23     Aylwin v Police [2009] 2 NZLR 1 at [17].

their breath or blood alcohol levels were above permissible levels.  For some people, edging above the level can easily happen – a half glass too many, or getting behind the wheel half an hour too soon.  For others, the levels are such and the intoxication so evident that to drive is recklessly irresponsible.   Many drivers (particularly in rural  areas  or  small  towns)  take  a  calculated  risk  that  they will  arrive  at  their destinations unscathed and undetected.   Intoxicated drivers do not always cause accidents, but many do and the risks are high.  Diminished judgment, slow reaction time and false confidence are obvious consequences of driving whilst intoxicated.

[49]     Those apprehended are, like all other alleged criminals, cloaked with the presumption of innocence.   They are entitled to put the prosecution to the proof. Care must be exercised by judges to ensure that a combination of the Supreme Court’s dictum in Aylwin and s 64(2) do not lead to reading down or minimising the carefully constructed provisions of the Act.  The criterion enunciated by McMullin

J24  is a commendable touchstone.  From time to time the various devices deployed

by enforcement agencies may be defective.   There may be personal or factual circumstances surrounding a defendant which give a false reading.  There may be a flaw (hence the right to access the second blood sample) in an analysis.  The chain of evidence may be hopelessly broken, or provide a real opportunity for interference with a specimen.  A focus on defences of this nature is essential and courts should not impede them.   But opportunistic defences which the various straws of inconsequential errors provide, should, in terms of the Supreme Court’s dictum and s 64(2), be consigned to the flames.  The essential feature of a successful prosecution which threads through the provisions of the Act is an identified driver who at the time of the relevant test exceeds the permitted maximum breath or blood alcohol levels.

[50]     My other comment relates to the need for medical professionals and police officers to be accurate.  As is apparent from this case, there were a number of errors which can be attributable only to carelessness and failure properly to check.   In a more benevolent era, such mistakes might have been fatal.  Although I contemplated

the idea of allowing this appeal to discourage carelessness of the type evident in

24 Supra [24].

August 2010, to do so would be a judicial vagary inconsistent with the clear purpose of the statutory provisions.

.......................................…

Priestley J