Kennelly v Police
[2025] NZCA 68
•21 March 2025 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA610/2024 |
| BETWEEN | PATRICK JAMES KENNELLY |
| AND | NEW ZEALAND POLICE |
| Court: | Palmer, Peters and Edwards JJ |
Counsel: | A S P Tobeck for Applicant |
Judgment: | 21 March 2025 at 3 pm |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Peters J)
Following a judge-alone trial before Judge Savage in early 2024, Mr Kennelly was convicted of driving with excess blood alcohol, an offence pursuant to s 56(2) of the Land Transport Act 1998 (the Act).[1]
[1]Police v Kennelly [2024] NZDC 4136.
Osborne J dismissed Mr Kennelly’s appeal to the High Court on 21 August 2024.[2]
[2]Kennelly v Police [2024] NZHC 2349 at [103].
Mr Kennelly now seeks leave to bring a second appeal against conviction. On 15 October 2024, Mallon J directed that the application for leave be heard separately from the substantive appeal and that it should be determined on the papers.
This Court must not grant leave to bring a second appeal against conviction unless satisfied that:[3]
(a)the appeal involves a matter of general or public importance, such as an issue of “general principle or of general importance in the administration of the criminal law by the courts”;[4] or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[3]Criminal Procedure Act 2011, s 237(2).
[4]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36], citing Keenan v R [2005] NZSC 63 at [5].
The issue that Mr Kennelly proposes should be argued on appeal is whether, on a charge of driving with excess blood alcohol, the prosecution is required to prove that the blood specimen was “taken in accordance with normal medical procedures” or, if not, whether the prosecution is bound to do so once the defence has put the point in issue.[5]
[5]Land Transport Act 1998, s 2.
Mr Tobeck, counsel for Mr Kennelly, submits the proposed appeal satisfies both requirements at [4] above.
The respondent opposes leave. It contends neither ground on which leave may be granted is established.
Background
At 8.01 pm on 25 March 2023, Mr Kennelly was driving on Fairlie‑Tekapo Road in Canterbury. He did not have his headlights on. Constable Wright stopped Mr Kennelly, and administered a breath screening test which Mr Kennelly failed.
Constable Wright then required Mr Kennelly to undergo an evidential breath test. Despite numerous attempts, Mr Kennelly was unable to complete the test.
Constable Wright then advised Mr Kennelly that he would be detained for the taking of a blood specimen.
Unable to arrange for that specimen at the local police station, Constable Wright required Mr Kennelly to accompany him to Timaru Hospital.
At the hospital, a nurse made three unsuccessful attempts to take the specimen, before asking another nurse to try. That nurse then took the specimen.
Later analysis of the specimen revealed at least 117 milligrams of alcohol per 100 millilitres of blood against a permitted maximum of 80 milligrams per 100 millilitres. Mr Kennelly has not challenged that result.
Statutory provisions
Mr Kennelly was charged with an offence under s 56(2) of the Act:
(2)A person commits an offence if the person drives ... 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.
A blood specimen for the purposes of s 56(2) is defined in s 2 of the Act as follows:
blood specimen means a specimen of venous blood taken in accordance with normal medical procedures
There is no definition of “normal medical procedures” in the Act, but the High Court has considered the phrase in other cases.[6]
Submissions
[6]Curle v Police HC Auckland CRI-2011-404-176, 19 July 2011; and Gullery v Police [2013] NZHC 3014.
We set out at [5] above the issue Mr Tobeck wishes to argue on appeal.
In support of his application for leave, Mr Tobeck submits that, at trial, the prosecution is required to prove the blood specimen relied upon was taken in accordance with normal medical procedures.
Mr Tobeck’s alternative submission is that any assumption (or presumption) that the specimen has been taken in accordance with normal medical procedures must be displaced if the defence puts the point in issue.
Discussion
It is correct that the prosecution is required at trial to establish the elements of the offence. That was done in this case by calling Constable Wright and the nurse who obtained the blood specimen to give evidence, including evidence of all that occurred at the hospital, and adducing evidence of the Institute of Environmental Science and Research’s analysis of the specimen.
We also consider it well-settled that a blood specimen taken with a needle and syringe, as in this case, is taken in accordance with normal medical procedures.[7] We also consider it is well-settled that a prior unsuccessful attempt or attempts to obtain a specimen is not fatal to the validity of a subsequently-taken specimen.[8]
[7]Gullery v Police, above n 6, at [82].
[8]Curle v Police, above n 6, at [25].
For instance, in Curle v Police, at least four attempts were made before a blood specimen was taken from Ms Curle. Ms Curle’s first submission was that the Act did not authorise so many attempts.[9] Venning J dismissed that submission.[10]
[9]At [3].
[10]At [20].
Ms Curle’s next submission was that the specimen, taken with a needle and syringe, was not taken in accordance with normal medical procedures.[11] It appears from Venning J’s judgment that Ms Curle based this submission on the fact that her arm was very bruised after the attempts and that, at one stage, she felt faint.[12]
[11]At [21].
[12]At [22].
Venning J also dismissed this submission. He held that whether a specimen in an individual case has been taken in accordance with normal medical procedures will depend on the facts of the case.[13] However, the evidence was that the bruising Ms Curle sustained was common, and that Ms Curle felt faint did not lead to the conclusion that what had occurred was outside normal medical procedures.[14]
[13]At [25].
[14]At [26].
In Gullery v Police, the nurse had obtained the blood specimen on her second attempt at doing so.[15] One of the many issues which arose on appeal was whether the nurse had taken the blood specimen in accordance with normal medical procedures.[16] For instance, complaint was made that the nurse had not told Mr Gullery to form a fist to make his vein more prominent and easier to access; had used a 45‑degree angle with the needle; had not used a dedicated room; and did not use gloves.[17]
[15]Gullery v Police, above n 6, at [6].
[16]At [2(c)] and [52(c)].
[17]At [79].
On the strength of earlier authorities, Toogood J rejected this submission.[18] Toogood J held that normal medical procedures require only that the specimen be taken using a needle and syringe or other approved instrument.[19]
[18]At [85], citing Guest v Police [2013] NZHC 1579 at [55]; and Brown v Police [2013] NZHC 2662 at [28].
[19]At [85]. Land Transport (Blood Specimen Collecting Instrument and Procedure) Notice 2014, cl 5 now permits a blood specimen to be taken by a needle and syringe or by “a vacutainer blood collecting system”.
It follows that a blood specimen taken by a needle and syringe, as in this case, and notwithstanding prior attempts, is taken in accordance with normal medical procedures.
We note also that Mr Tobeck did not, as his submissions suggest, put in issue at trial whether the specimen had been taken in accordance with normal medical procedures. Rather, in cross-examination, he asked the nurse who obtained the blood specimen how many attempts the nurse would make to take a specimen before asking another nurse for assistance. The nurse said he would make two attempts. That exchange falls well short of putting in issue whether the specimen was taken in accordance with normal medical procedures. It merely establishes that the nurse’s approach differs from that of the first nurse.
Given the well-settled position to which we have referred, we do not consider the matter that Mr Kennelly seeks to argue on appeal raises an important question of law, let alone one having broad application. Nor is there any prospect of a miscarriage of justice if the appeal is not heard.
Result
The application for leave to bring a second appeal is declined.
Solicitors:
Clancy Fisher Oxner & Bryant, Tokoroa for Applicant
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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