K v Police HC Wellington CRI-2007-485-141

[2008] NZHC 285

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-141

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 March 2008

Counsel:         W M Johnson for appellant

C A Patterson for respondent

Judgment:      7 March 2008

JUDGMENT OF DOBSON J

Introduction

[1]      The appellant was convicted, after a defended hearing on 1 November 2007, of  driving  with  an  excess  blood  alcohol  level  pursuant  to  s 56(2)  of  the  Land Transport Act 1998.   He appeals to this Court on one point only, relating to the

adequacy of the evidence as to the blood specimen collecting kit used.

K V NEW ZEALAND POLICE HC WN CRI-2007-485-141  7 March 2008

Background

[2]      On 14 December 2006, the appellant was stopped at an alcohol-testing unit in Taita.  After failing a passive breath-screening test, the appellant accompanied the constable who had administered the breath test, Constable Ringer, to a nearby mobile breath-testing unit.  The appellant underwent an evidential breath-screening test and then elected to have a blood sample taken.   A nurse, Marilyn Graham, was in attendance for the purpose of taking blood samples, and she took a sample of the appellant’s blood.  The sample was split in two, and given to Constable Ringer for safe-keeping in the unit’s safe.  Subsequent ESR analysis recorded 103 milligrams of alcohol per 100 millilitres of blood, 23 milligrams in excess of the statutory limit.

The decision of the District Court

[3]      At trial, counsel for the appellant, Mr Johnson, requested that Nurse Graham give  oral  evidence.    The  respondent  consented,  with  the  consequence  that  a certificate   under   s 75   which   is   routinely   relied   upon   to   satisfy   evidential requirements as to the blood sample having been taken from the defendant, and passed on to ESR, could not be used by virtue of s 79(1) of the Act.  Judge Gaskell agreed with Mr Johnson that in lieu of a certificate, Nurse Graham was required to cover all the matters normally established by such a certificate.

[4]      During cross-examination, Nurse Graham was unable to tell the Court what was written on the sealed bag in which the kit was contained, nor was she able to say where it had come from.  However, she deposed to substantial experience with this procedure over more than seven years and stated that she recognised a medical kit when she saw one, describing how it looked and its contents.  Mr Johnson criticised these gaps in the nurse’s evidence, but Her Honour did not accept that her evidence fell short of what a Court would normally receive in a blood specimen medical certificate.  The critical aspects of such a certificate were covered; she did not fail to mention anything required.

[5]      One discrete complaint was that the prosecution had not established that an approved blood specimen collecting kit had been used.  The argument proceeded on the basis that this was a matter required to be established.  The Judge dealt with it in the following terms:

[19]     I am left with the question of whether there is sufficient evidence before the Court from which I can infer that this was an approved kit.  Given the evidence about Nurse Graham’s previous experience of taking blood, and her evidence that she can recognise an approved medical kit, her description of it and her evidence that it was a sealed kit, I again would be satisfied on a prima facie basis that there was evidence that this was an appropriate and approved kit.  There is no evidence to the contrary and on that basis I am satisfied that it was the usual standard approved kit that Nurse Graham used here.  I am also satisfied that she has covered the other matters that she is required to cover that would normally be included in a blood specimen medical certificate.

[6]      Mr Johnson’s approach on the appeal unapologetically hankered for the days when blood alcohol prosecutions could be defended successfully on prosecution omissions to prove relatively minor technical details that were required because of their inclusion in the process contemplated by the relevant Act.  He was inclined to concede  that  legislative  and  judicial  attitudes  have  evolved  since  such  days, reflecting community expectations that those driving whilst affected to the requisite extent by alcohol should not “get off on a technicality”.

[7]      The authority he relied on was that of Brown v Police HC AK AP146/95

8 August 1995 Temm J.  In that case, the learned Judge treated the use of a kit of the approved type as an essential element required to be proved by the prosecution.  His Honour reasoned:

It does not need expert evidence for one to say there may be various kinds of blood specimen collecting kits and a particular difference between them could be the swab which is used to disinfect the skin before a needle is inserted.  Some kinds of disinfectant might affect the result of the test so it is unsurprising the legislation should specify a particular approved kind of collecting kit to be used for the purposes of the Transport Act blood alcohol legislation.

…

If the kit used is not authorised then the results of the test must be suspect.

[8]      His Honour considered the Court should not make any assumption that the kit used by the nurse was of the type required by the legislation.   In the absence of proof, the appeal was allowed.

[9]      The position for the Police on the appeal was that, if necessary, the approach to proof that was adopted by William Young J in Mills v Police HC TAU AP11/02

17  July  2002  should  apply,  namely  that  the  type  of  kit  used  had  only  to  be established on the balance of probabilities, and that here the District Court had correctly applied that standard which was made out.

[10]     However, it was also submitted, picking up an invitation said to arise on the comments in Mills, that where proof of matters otherwise established by resort to a certificate under s 75 of the Act has been excluded by an order under s 79, then the alternative mode of proving the elements of the charge is at large.  This would mean that the requirement to use a blood specimen collection kit of a type approved and gazetted only applies where the mode of proof relied on at a defended hearing is a s 75 certificate.  In support of this, it was pointed out that the only references in the statute to a blood sample collection kit, as defined in s 2, occur in ss 75(2)(d) and

76(1)(c) where they arise as part of the process necessarily undertaken if the prosecution  wishes  to  utilise  a  s 75  certificate  as  the  mode  of  proof  of  certain elements of the necessary procedure.

[11]     This point had been made in Mills, together with the point that there is no explicit provision rendering use of such a kit mandatory:

There is no explicit provision in the statutory scheme to the effect that the use of such a kit is mandatory. [17]

[12]     The case was resolved on terms leaving this point open:

If it is indeed the case that a blood specimen collecting kit as defined in the

Act must be used…[31]

[13]     Acknowledgement of the same argument is also made in the judgment of Heath J in Wilson v Police HC ROT CRI-2005-463-81 2 December 2005.  However, again it was not determined, because in that case a s 75 certificate had not been excluded, and the argument for the appellant was that evidence of the Police Officer

that he had opened the kit in anticipation of the nurse arriving conflicted with the certificate which required the medical officer to confirm that that step had been undertaken by her.   The argument was that the conflict of evidence amounted to “proof to the contrary” for the purposes of s 75(1).

[14]     The former of the sections in which the phrase “blood specimen collecting kit” is referred to is the first in a group of sections under the heading “Evidential Provisions” and relevantly provides:

75       Certificates in blood-alcohol proceedings

(1)Except as provided in section 79, production of a certificate to which this section applies in proceedings for an offence against this Part 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 and, in the case of a certificate referred to in subsection (5), of the person who carried out the analysis.

(2)This section applies to a certificate purporting to be signed by a medical practitioner or medical officer and certifying that—

…

(d)Each such separate bottle was received by the practitioner or medical officer in a sealed blood specimen collecting kit; and…

[15]     The answer to the question whether the use of a kit as defined in s 2 is rendered mandatory by the Act is that it certainly is not, at least not in all situations. The reference to use of an approved kit in s 75(2) is to be contrasted with the requirements  for  a  certificate  to  be  completed  by  a  medical  practitioner  under s 75(3), where a blood specimen is taken at a hospital, or a doctor’s surgery.  Those circumstances are likely to arise without a Police presence when a medical practitioner in immediate charge of caring for the person has reasonable grounds to suspect that the person has been involved in a motor accident.  The requirement is then to certify merely that a blood specimen has been taken, without reference to the kit that has been used.  It would clearly frustrate the purpose of these provisions if a sample could only be taken when the medical practitioner had an approved kit on hand.

[16]     Consistently with that, s 74 spells out the required procedure for taking and splitting the sample into two.  That section also authorises the use of preservatives and anti-coagulants, and directs what is to be done with the sample, all without specifying any requirement that the bottles used be from an approved kit.

[17]     The s 2 definitions of “blood specimen”, meaning a specimen of venous blood  taken  in  accordance  with  normal  medical  procedures,  and  “blood  test”, meaning the taking of a blood specimen for analysis, are also without any reference to the use of an approved kit.   Those definitions clearly allow for the prospect of lawful blood tests under the Act occurring without the use of an approved kit.

[18]     The second section in which “blood sample collection kit” is used tends to confirm that the requirement to use such a kit arises only where the evidence will be by way of a s 75 certificate:

76       Presumptions relating to blood specimens

(1)In proceedings for an offence against this Act it is to be presumed, in the absence of proof to the contrary, that,—

(a)If  a  certificate  referred  to  in  section  75  names  a  person having the same name, address, and occupation as the defendant as the person from whom the specimen of blood was taken, the specimen was taken from the defendant:

(b)       Every approved analyst who signed a certificate referred to in section 75(5) was duly authorised to sign it:

(c)If the bottle in which a blood specimen (or part of a blood specimen) was placed was received by a medical practitioner or medical officer in a sealed blood specimen collecting kit, the bottle contained a substance (whether or not a combination or mixture of 2 or more substances) and that substance was a preservative and anti-coagulant.

[19]     Accordingly, use of an approved kit is necessary to give rise to a presumption that the bottle used to store the sample contained a preservative and anti-coagulant. Such ingredients are not mandatory in any event, but merely permissive: s 74(2).

[20]     Before adopting this approach which would relieve the Police of a mandatory obligation to use an approved kit (but at the “cost” of not being able to rely on a s 75 certificate for evidentiary purposes), it is appropriate to question whether such an

outcome is contrary to any protections for the citizen, explicit or implicit in the scheme of the Act.  I am mindful that Temm J in Brown perceived a risk that use of a non-complying kit might prejudice the rights of a person providing a blood sample. In the present case, Mr Johnson argued that use of a kit that had passed its “use-by date” gave rise to some unspecified risk of prejudice.   This was in the context of asserting the importance of the absence of direct proof that the kit was both of the approved type, and not past its “use-by date”.  There may be a theoretical risk that the anti-coagulant and preservative in pre-prepared storage bottles may deteriorate over time.  There was certainly no evidence on this point.  The definition of a blood sample collection kit in s 2 of the Act makes no reference to inclusion of anything in the nature of a “use-by date”, in such kits, and nor does the Land Transport (Approved Laboratory and Analyst in Charge) Notice 2000.

[21]     I am mindful that the analysis on this evidentiary point in both Mills and Wilson  did  assess  the  evidence  by reference  to  a  presumed  requirement  for  an approved kit.  However, in both those cases, a s 75 certificate had been relied upon, and the issue was whether reliance on it was justified.  That is to be contrasted with the  present  situation  where  a  s 75  certificate  was  entirely  excluded  from  the evidence.

[22]     In adopting an interpretation of the relevant provisions that results in broader, rather than narrower, circumstances in which specimens of venous blood taken in accordance with normal medical procedures may be relied on in a charge of driving with excess blood alcohol.  I am encouraged by the terms of what is presently s 64(2) of the Act.  That provides that a defence cannot be made out for absence of strict compliance, provided there has been reasonable compliance with such of the provisions as apply.  It is inconsistent with the obvious purpose of that provision to interpret the requirements for use of an approved kit in any wider circumstances than where use of it is a pre-requisite to the prosecution relying on a s 75 certificate for evidentiary purposes.

[23]     The  adequacy  of  a  non-approved  kit  will  only  arise  either  where  the prosecution accepts that it cannot rely on a s 75 certificate, or where the defendant has obtained an order excluding use of a s 75 certificate.  Accordingly, the medical

practitioner or medical officer who took the sample will be a witness, and can be challenged on any consequences claimed to arise from the type of bottles used.  I am therefore satisfied that this approach accords with the scheme and purpose of the legislation.

[24]     When  proceeding  without  reliance  on  a  s 75  certificate  in  circumstances where that is excluded by an order under s 79, the medical practitioner or medical officer who took the blood sample will have to appear as a witness at the hearing. The blood specimen (as that phrase is defined in s 2 of the Act, described in [17] above) that has been taken from the driver has to be treated in accordance with s 74. The elements identified in s 74 were clearly described in the evidence-in-chief of the nurse:

Q.       Yes just tell me what the procedure is, you have a blood kit?

A.Oh yes once they’ve given me permission that yes they do want a blood test there’s a kit that’s sealed and I just get a tourniquet.   I open the pack in front of the client, so that they see that the pack is sealed, that the needle is clean, the syringe is clean and everything is sterile and then I just find a vein and take their blood.

Q.       What sort of blood? A.    Venous blood.

Q.       Once you have taken the sample what do you do with it?

A.There’s two bottles and I would’ve taken 10 mils of blood and I divide the blood in the two bottles, dispose of the needle and then I seal – I mean I put the lids on the bottles and then I put them on firmly and then I put a bar code on – sorry not a bar code it’s a T-bar and seal the blood, and then I fill out – you know that form I showed you the green form then I fill out that form with the person’s particulars.

And later in her evidence:

A.        - and then I attached that label to both bottles of the blood and then put it into the polystyrene container and then into the cardboard box.

Q.       Yes and what did you do with that?

A.       Then I passed it on to the constable with the paperwork.

[25]     There was no dispute as to the chain of evidence from that point on.

[26]     In  other  situations,  there  might  be  a  debate  as  to  which,  if  any,  of  the elements of the procedure prescribed by s 74 constitute elements of the offence, requiring proof beyond reasonable doubt, and which of them are procedural steps, only required to be proven on the balance of probabilities.   Guidance on that is provided by the Court of Appeal decision in R v Gallagher [1991] 3 NZLR 163, but the point is academic in the present appeal. If necessary, I would find that all of the component steps in the procedure provided by s 74 have been proved beyond reasonable doubt in this case. That is not to suggest that I treat all of them as necessarily requiring that standard.

[27]     That is enough to dispose of the appeal.  However, lest I am wrong in my interpretation of the Act so that indeed use of an approved kit was mandatory, then I deal with the alternative position for the Police on the appeal, namely that use of an approved kit was sufficiently established.  Certainly this was the basis on which the case was determined in the District Court.

[28]     On the circumstances in Mills, the Judge on appeal was able to say:

It would be absolutely astonishing if the blood specimen collecting kit used on this occasion was not within the statutory definition. [34]

[29]     This was in the context of a finding that the use of an approved kit was required to be established on the balance of probabilities.   In the somewhat comparable circumstances in Wilson, Heath J also adopted those precise words.

[30]     Accepting  that  there  are  variations  in  the  circumstances,  and  nature  and extent of the evidence in each of these cases, those findings reflect, if not a presumption of regularity, then an approach to the balance of probabilities inquiry which can also be easily discharged in the present circumstances.

[31]     Without being so emphatic, the learned District Court Judge in the present case adopted the same approach, in paragraph [19] of her judgment that is quoted in [5] above.

[32]     Having considered the evidence of the nurse, I am satisfied that the standard of proof was correctly applied, and the finding set out in paragraph [19] of the judgment was amply justified.

[33]     Therefore on that alternative ground as well, I would dismiss this appeal.

Dobson J

Solicitors:

Bill Johnson, Wellington for appellant

Luke Cunningham & Clere, Wellington for respondent