Jones v Police
[2015] NZHC 2814
•12 November 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2015-485-43 [2015] NZHC 2814
BETWEEN ROBERT WATCYN JONES
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 13 October 2015 Counsel:
R Mulgan for Appellant
M J Ferrier for RespondentJudgment:
12 November 2015
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, Robert Jones, was convicted after a Judge-alone trial before Judge Kelly in the District Court at Masterton in November 2014 of one charge of driving with excess blood alcohol, namely 88 milligrams of alcohol per
100 millilitres1 of blood.2
[2] The Judge subsequently declined to discharge Mr Jones without conviction and imposed a fine of $400, court costs of $130, analyst’s fees of $183 and disqualified Mr Jones from holding or obtaining a driver’s license for six months.3
The Judge considered whether to allow a reduced period of disqualification for special reasons, but declined to do so.
[3] Mr Jones now appeals his conviction, the decision not to discharge without conviction, and the decision not to allow a reduced disqualification period.
1 Land Transport Act 1998, s 52(2). The legal limit is 80 milligrams.
2 Police v Jones DC Masterton CRI-2013-035-001297, 11 November 2014.
3 Police v Jones [2015] NZDC 12856 and Police v Jones [2015] NZDC 12875.
Facts
[4] Mr Jones is a dental surgeon, practising in the Wellington and Masterton areas. He is 62 years old.
[5] On 31 August 2013, Mr Jones attended a party in the Castlepoint area of the Wairarapa. Driving home in the early hours of the morning, he was injured in a car accident. As a result, he was flown by helicopter to Wellington Hospital, where a blood specimen was taken. That specimen contained – as is usual practice – in two separate bottles, was forwarded to ESR. On 3 September 2013, ESR tested the sample in one of the bottles. That produced a result of 94 milligrams of alcohol per
100 millilitres of blood. Applying the standard deduction of six milligrams, ESR
certified the level of blood alcohol as 88 milligrams per 100 millilitres.
[6] Mr Jones’ lawyer applied for private analysis on 21 December 2013.4 The Police forwarded the application to ESR on 21 December 2013. ESR received that application on 23 December, but did not send the sample (the second bottle) for private analysis until 14 January 2014. A Dr Madhavaram conducted a private analysis on 10 February 2014. Using the same technique as ESR, he obtained a result of 79 milligrams, which would become 73 milligrams after the standard deduction.
[7] The first bottle was re-analysed by ESR on 14 January 2014. The ESR result that time was 90 milligrams, which would result in a report of 84 milligrams.
Conviction appeal
The Judge’s decision
[8] The main issue at trial, as recorded by Judge Kelly, was whether the Crown could prove beyond reasonable doubt that Mr Jones’ blood level did, in fact, exceed
80 milligrams of alcohol per 100 millilitres of blood. The resolution of that question
4 Under s 74(7)(a)(i) of the Land Transport Act, an application should be made within 28 days of summons, which was 20 November 2013 in this case. Nonetheless, the Police did forward the application to ESR, even though they could have refused to do so under s 74(6).
depended principally upon the Judge’s assessment of the evidential significance of the private test that had returned a result below the legal limit.
[9] The Judge explained her verdict in the following way:
[43] Having carefully considered the evidence of both experts, I accept that blood samples lose alcohol over time but the rate of loss is variable and can be erratic. I accept that there can be natural deterioration of the blood sample over time, or deterioration for which there is no conclusive scientific explanation.
[44] In this case I accept the crucial evidence of Ms Coward that the difference of 15 milligrams was high but this could be consistent with the delay of approximately five months and one week between the first ESR analysis on 3 September 2013 and the private analysis on 10 February 2014.
[45] In this regard, I take into account the evidence of Dr Madhavaram in relation to her lack of knowledge in relation to the storage and transport of the sample between the time it was received by Dr Sandiford around
14 January 2014 and the time it arrived at LabPlus on 5 February 2014.
[46] Although Ms Coward quite responsibly, in my view, accepted that the difference between the two readings did not necessarily mean that there was something wrong with the ESR process but that might be a reason, in this case it is not sufficient to raise a reasonable doubt in my mind.
[47] I accept in some cases that the analysed result of a second sample might call the ESR result into question, but in this case, given the factors I have mentioned, I am satisfied that although the discrepancy is at the high end, it is within the expected range and there may be factors other than deterioration, such as storage issues and transport issues, which may explain how the discrepancy has arisen.
[48] At the end of the day, I am sure that the proportion of alcohol in the sample taken from Mr Jones exceeded 80 milligrams of alcohol per
100 millilitres of blood.
Appeal
[10] On appeal, Mr Mulgan argues for Mr Jones that, given the evidence of both Ms Coward and Dr Madhavaram, that was a conclusion which the Judge could not logically reach.
Analysis
[11] Both scientists who tested Mr Jones’ blood gave evidence.
[12] The evidence of Ms Coward, the ESR scientist, was to the following effect:
(a) Most blood samples lose alcohol through storage. The loss varied from sample to sample. Loss was a well-known phenomenon and had been the subject of several publications in the international scientific literature.
(b)ESR carried out storage trials every month. The data from those trials showed that the greatest loss of alcohol was within the first 10 weeks of storage, and then less over time. It was difficult to pinpoint any particular reason for the variation in loss. It was not concentration- related. There was no real pattern and no one could say why it happens.
(c) Ms Coward’s expert opinion for the lower reading by the private analysis was that it would be due to loss of alcohol over time. The following exchange occurred between the prosecutor and Ms Coward:
Q. Just finally, in your expert knowledge, what could be the explanation for the lower reading that the private analysis has come back with?
A. It would just be, as I have said before, just that during – I mean, during storage we see that alcohol is lost from the samples over time, and I believe it would just be down to that.
Ms Coward said the loss of 15 milligrams was “a bit on the high side”. Nevertheless, Ms Coward had seen losses of that magnitude in the ESR storage trials.
[13] It was put to Ms Coward in cross-examination that a loss of 15 milligrams “would be right at the extreme of what deterioration might explain”. Ms Coward’s reply was “It is one of the higher ones, but it’s not that we haven’t seen that kind of loss before”. Ms Coward also accepted that variability between two testing regimes could also potentially be an explanation for the loss.
[14] Finally, as relevant, Mr Mulgan put the gist of what was to be
Dr Madhavaram’s evidence to Ms Coward:
Q. Where, as you know, we’re calling Dr Madhavaram, who did the private analysis, and you’ve already heard, she will say that her result was 79, take away six, 73. She will also say that deterioration is an erratic phenomenon, so one tube may not deteriorate; another tube may deteriorate a lot?
A. Yes.
Q. So you don’t really know ahead of time what deterioration is going to be. It’s not a steady, linear phenomenon?
A. That’s right. Yes.
Q. Okay. And if you get a tube that’s old, there’s no way of telling what deterioration has occurred. All you can state is the alcohol at the time you did the test?
A. That’s right.
[15] There was no re-examination of Ms Coward.
[16] Dr Madhavaram, a scientist employed by the Auckland District Health Board at LabPlus, tested the second bottle, using the same technique as Ms Coward. Her evidence on deterioration was as follows:
There’s quite a lot of literature on that, and it’s quite erratic. Some literature published [inaudible] says there is no deterioration, and some literature says there is deterioration, and some of it says there is a lot of deterioration and some of it says there is marginal deterioration. So it’s not conclusive. There may be deterioration or there may not be deterioration. Science could not take a blood sample which was old and analyse it and tell how much deterioration had occurred, because of the uncertainty of the occurrence of deterioration and the rate of any deterioration.
[17] Dr Madhavaram said that it was not very reliable to analyse a sample as old as the sample of Mr Jones’ blood she had analysed, because it may have deteriorated or it may not have deteriorated.
[18] In cross-examination, Dr Madhavaram was unable to explain the difference between the result of her test and that of ESR. She said:
I wouldn’t be able to answer that question why it is a difference, no. I would say it may be deterioration, maybe it’s not, but apart from that I don’t know. I can only assume – I can only ascertain that my results are according to the international standards of New Zealand.
[19] There are two elements to the Judge’s conclusion, both of which, in these
circumstances, she had to be sure of beyond reasonable doubt.
[20] The first was that the difference between the ESR’s December result and
Dr Madhavaram’s February result was caused by deterioration.
[21] The second was that here the deterioration had caused a variation of
15 milligrams of measured alcohol.
[22] Ms Coward’s expert evidence, which Dr Madhavaram did not contest, was that deterioration could result in a variation between an initial and a subsequent test of 15 milligrams, even if that was on the high side.
[23] On the question of whether deterioration was the reason for the difference between the samples, the Judge characterised Ms Coward’s evidence as being that “her expert opinion for the lower reading by the private analyst was that it would be due to loss of alcohol over time”. But, and as noted, in cross-examination Ms Coward agreed with Dr Madhavaram’s evidence that one sample might deteriorate, whilst another one might not.
[24] Ms Coward’s evidence that deterioration, and not a testing error, was the reason for the divergent results was called into serious question by her answers in cross-examination to the effect that it could not be said whether deterioration was the cause. In the absence of re-examination, that lack of certainty as to the cause of the divergence left unavailable the conclusion that the results were not affected by a testing error. Hence the Judge’s subsequent conclusion that she could be sure of the accuracy of the blood alcohol level as recorded in the ESR results was in turn not available.
Conclusion
[25] I therefore conclude that Ms Coward agreed with, or certainly did not challenge, Dr Madhavaram’s evidence that not all samples do deteriorate. It must therefore be a reasonable possibility that the variation between the ESR results and Dr Madhavaram’s results was not caused by the deterioration of the second bottle.
[26] On that basis, I find that the Judge erred in concluding that she was satisfied beyond reasonable doubt that Mr Jones’ blood alcohol level was 88 milligrams.
Result
[27] I therefore allow this appeal and quash Mr Jones’ conviction.
[28] On that basis, it is not necessary for me to deal with the other issues that were argued.
Clifford J
Solicitors:
R Mulgan, Wellington for appellant
Crown Solicitor, Wellington for respondent
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