Kennelly v Police

[2024] NZHC 2349

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2024-476-7

[2024] NZHC 2349

BETWEEN

PATRICK JAMES KENNELLY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 August 2024
Appearances:	A S P Tobeck for Appellant A-M McRae for Respondent
Judgment:	21 August 2024

JUDGMENT OF OSBORNE J

[1]                 Patrick James Kennelly was convicted following a trial in the Timaru District Court before Judge Savage on a charge of driving with excess blood alcohol content under the Land Transport Act 1998 (the Act).1

[2]The appellant appeals against his conviction.

Facts

[3]The following are the facts as found by the Judge.

[4]                   At about 8.01 pm on Saturday 25 March 2023, the appellant was driving on the Fairlie-Tekapo Road. The appellant’s headlights were not on. He was stopped and spoken to by Constable Wright.

1      Police v Kennelly [2024] NZDC 4136: Land Transport Act 1998, s 56(2) — maximum penalty three months’ imprisonment or $4,500 fine.

KENNELLY v POLICE [2024] NZHC 2349 [21 August 2024]

[5]                 The appellant was unable to provide a breath sample sufficient for analysis, despite his making 18 attempts. At 8.38 pm, the Constable advised him that, having an incomplete breath test, he was going to be detained for a blood test. The appellant did not wish to speak to a lawyer and signed an acknowledgement to that effect at 8.39 pm.

[6]                 The Constable was aware no suitable medical personnel were available in Tekapo. He required the appellant to accompany him to the Fairlie police station. The Constable held a list of the doctors and other practitioners who could assist with taking blood samples. The list included people at Fairlie but not at Geraldine.) The Constable attempted to arrange the attendance of one of two Fairlie doctors who customarily take blood samples at Fairlie. Neither were available. Similarly, two nurses the Constable tried to arrange to take a blood sample were also unavailable.

[7]                 The Constable contacted the Timaru Police station. He received no answer. He contacted Timaru Hospital and was told a specimen could be taken there. He formed the view that the nearest practical avenue for the taking of a blood specimen was in Timaru.

[8]                 The Constable required the appellant to accompany him to Timaru for his blood to be sampled. The appellant consented to this at 9.13 pm.

[9]                 On a number of occasions during their time together, the Constable had to make provision for the appellant to relieve himself. This continued on the journey to Timaru as the appellant required two more comfort stops on a journey of less than one hour.

[10]             Upon arrival at Timaru Hospital, an attempt was made to take blood from the appellant after his consent had been obtained. The first nurse was unable to take sufficient blood from the appellant for analysis.2

2      I refer in this judgment to the “first nurse”. Mr Tobeck, for the appellant, although repeatedly referring in his written submissions to the “first nurse” (as had Judge Savage), suggested in his oral submissions that person may not have been registered at the time. I do not find anything turns on the possibility that the “first nurse” at Timaru Hospital was not registered at the time.

[11]             A second nurse obtained a new kit, confirmed the appellant’s consent to the taking of a sample and took that sample at 10.50 pm. The sample was sealed, labelled and put into the collection box in the usual fashion.

[12]             The Constable drove the appellant back to Tekapo. The Constable then returned to the Fairlie station where he secured the specimen in his locker. On Monday 27 March 2023, he couriered the specimen to the Institute of Environmental Science and Research (ESR) for testing.

[13]             The ESR analysis, as recorded in a certificate produced at trial, revealed there was 123 ± 6 milligrams of alcohol per 100 millilitres of blood. This result is not challenged. Its admissibility is. The ESR certificate, given under s 75(5) of the Act, certified in relation to a blood specimen taken from the named appellant (and delivered to ESR on 28 March 2023), that “[n]o such deterioration or congealing was found as would prevent a proper analysis”.3

[14]             For context, I note that Fairlie station is situated some 46 kilometres from Geraldine and some 64 kilometres from Timaru Hospital.

Principles on appeal

[15]             Section 232 of the Criminal Procedure Act 2011 provides the High Court may only allow an appeal against conviction if satisfied the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or “a miscarriage of justice has occurred for any reason.” Miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.4

[16]             The appeal proceeds by way of rehearing. This Court is required to form a view of the facts.5 If this Court reaches a materially different view on the evidence, it

3      The certificate in this regard follows the wording of s 75(5)(c) of the Act.

4      Criminal Procedure Act 2011, s 232(4).

5      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]–[32].

follows the trial judge necessarily will have erred and the appeal must be allowed.6 The onus is on the appellant to show that an error occurred.

District Court decision

The Judge’s findings

[17]             The issue at the trial was identified as the admissibility of the ESR certificate. Counsel for the appellant identified particular issues which the Judge addressed and found:

(a)The time taken to travel from the Fairlie station to Timaru Hospital (97 minutes) was reasonably necessary and did not amount to arbitrary detention. The Constable had taken reasonable steps to have the sample taken in Fairlie. That was not altered by the fact there may have been rest homes in Geraldine staffed by nurses with the capability to take blood samples which the Constable did not enquire into on the night in question.

(b)The Judge rejected the appellant’s submission that there was a relevant failure by the Executive to ensure a medical practitioner was available to take a blood sample — a scheme was in place to enable blood to be taken (at Fairlie). The Judge observed that the time taken to obtain the sample was not unreasonable given the practical considerations of rural policing and the public interest in holding drink drivers to account.

(c)The Judge noted the first nurse, upon attempting to take blood from the appellant, was unable to take sufficient blood for analysis. He held that, for the blood to come within the definition of “specimen”, it would need to be a sufficient amount for analysis.

(d)The Judge was satisfied that, on the evidence, the blood sample was taken in accordance with, on its narrow definition, normal medical

6      Sena v Police, above n 5, at [38].

procedures: the first nurse who attempted to take a sample was unsuccessful, so the second nurse stepped in, and took the blood in a manner that was not criticised.

(e)The police were under no obligation to adduce evidence from the first nurse, as this evidence was not relied on by the police. There was sufficient evidence before the Court to establish the validity of the procedure followed to obtain the blood specimen relied on.

(f)The number of blood specimens taken was reasonable (on the narrow interpretation of ‘blood specimen’), being only two by the second nurse and no viable specimens by the first nurse.

(g)There was no reason to rule the specimen inadmissible through it not being refrigerated between Saturday night and Monday morning when it was couriered for analysis. There was no evidence called to doubt the integrity of the specimen. The Constable handled it in accordance with police practice advice (“secure the specimen once it is taken using a locked fridge or locker”).

(h)The analyst’s certificate was not inadmissible. Given the practical considerations of rural policing and the public interest in holding those who drink and drive to account, the length of time the appellant was detained prior to the specimen being taken was not unreasonable. A scheme was in place to enable blood to be taken. While attempts to take blood in Fairlie were frustrated by the unavailability of medical professionals, the sample was nevertheless taken within a reasonable amount of time.

Further evidence considered by the Judge

[18]The Judge reviewed other evidence (in light of submissions).

[19]             The Judge referred to the Constable’s acceptance in cross-examination that there were rest homes in Geraldine that would likely be staffed by nurses with the

ability to take a blood sample. The Constable stated he did not attempt (on the evening) to ascertain their availability.

[20]             The Judge recorded it was not disputed that a process for taking specimens from people apprehended in the Fairlie district existed and that the first part of the process (testing breath) had broken down on the evening.

[21]             I will return to further aspects of the evidence when discussing particular grounds of the appeal.

Judge’s conclusion

[22]The Judge summarised:

[40]   The defendant was apprehended. He failed a breath screening test. He was unable to provide a breath specimen. He was detained for a reasonable amount of time for the taking of a blood specimen. That blood specimen was taken using normal medical procedures. That specimen was handled in accordance with police practice and delivered to the laboratory in a condition that enabled proper analysis. The certificate of analysis is admissible as evidence against the defendant.

[41]The charge is proven.

Issues

[23]             The issues on this appeal as identified by Mr Tobeck (with slight rewording by me) are:

(a)Did the time taken to travel from the Fairlie station to Timaru Hospital to take blood render the detention arbitrary and/or was the detention longer than reasonably necessary?

(b)Should the Executive have ensured that a medical practitioner or medical officer was available to take a blood specimen sooner than was done?

(c)Was the blood specimen taken in accordance with normal medical procedures?

(d)Is the failure by the police to adduce evidence from the first nurse material?

(e)Were more than two blood specimens taken from the appellant?

(f)Was the chain of custody of the blood specimen insufficient to guarantee its integrity for evidential purposes?

[24]A further issue is raised for the police, by Ms McRae, namely:

(g)In the event it is found any evidence was improperly obtained for any of the reasons identified as issues (a) to (c) at [23] above, was the admission of the blood specimen evidence justified under the tests set out in s 30 of the Evidence Act 2006.

Issue 1: Did the time it took to travel from the Fairlie station to Timaru Hospital to take blood render the detention arbitrary and/or was the detention longer than reasonably necessary?

The statutory provisions

[25]             Section 72 of the Act provides the statutory authority for a police officer to require a suspect, such as the present appellant, to permit a medical practitioner or medical officer to take a blood specimen from them:

72Who must give blood specimen at places other than hospital or medical centre

(1)   A person must permit a health professional or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—

(a)The person fails or refuses to undergo without delay an evidential breath test after having been required to do so by an enforcement officer under section 69; or

…

(3)   If it is not practicable for a blood specimen to be taken from a person by a health practitioner or medical officer at a place where the person has been required under this section to permit the taking of a blood specimen, the person must accompany an enforcement officer to any other place where it is likely that a blood specimen can be taken from the person by

a health practitioner or medical officer if the officer requires the person to do so.

(4)    If a blood specimen taken under this section is insufficient for the purposes of the relevant blood specimen collection procedure,—

(a)the person from whom the specimen was taken must permit a health practitioner or medical officer to take a further blood specimen immediately after being requested to do so by the heath practitioner or medical officer and

(b)a further blood specimen so taken is to be treated as part of the original blood specimen taken from the person.

[26]             Section 69(1)(c) of the Act empowers an enforcement officer to require a person who has failed a breath test to accompany them to a place where it is likely the person can undergo a blood test.

[27]             Sections 114(1) and (3) of the Act empowers an enforcement officer to require a driver to “stop” and “remain stopped for as long as is reasonably necessary… to complete the exercise of any other power conferred on an enforcement officer by [the] Act.” (emphasis added)

[28]             Section 22 of the New Zealand Bill of Rights Act 1990 (NZBORA) provides that “[e]veryone has the right not to be arbitrarily arrested or detained”.

Appellant’s submissions

[29]             Mr Tobeck submitted that he was arbitrarily detained in breach of s 22 of NZBORA by reason of the 97-minute period after his detention at 9.13 pm. Further, that the period of detention was longer than reasonably necessary, and therefore in breach of s 114(3) of the Act.

[30]             Mr Tobeck cited the District Court decision in Police v Eades.7 In that case, Judge Behrens QC found a 56–minute period between the request for and the taking of a blood sample was longer than was reasonably necessary. Having decided that point, the Judge found it unnecessary to determine whether the detention was also arbitrary.

7      New Zealand Police v Eades CRN 2006-083-009557 District Court Whanganui 4 October 2006.

[31]             Mr Tobeck submitted the Constable had options in this case to procure the appellant’s blood specimen other than by travelling to Timaru Hospital. Specifically, Mr Tobeck submitted the Constable could have made enquiries as to the availability of a suitably qualified person to take blood from the appellant in Geraldine (by rest home nurses), or alternatively could have radioed Police Communications and arranged for blood to be taken at Fairlie station by having a suitably qualified person travel to the Fairlie station while the Constable and the appellant were travelling there.

Respondent’s submissions

(a)the initial decision

[32]             Ms McRae for the respondent submitted that the Constable had the power to require the appellant to provide a blood specimen as conferred by s 72(1)(a) of the Act because the appellant had failed to undergo an evidential breath test after having been required to undergo a test. Further, that the appellant was lawfully detained pursuant to s 69(1)(c) of the Act having failed to complete a breath screening test on three occasions and having on 16 occasions failed to provide an evidential breath test.

(b)the 97 minute “delay”

[33]             Ms McRae submitted the delay was not unreasonable. The delay the appellant complains of is the 97 minutes from 9.13 pm to 10.50 pm. Ms McRae noted that within that time, there was the driving from Fairlie to Timaru, the two stops for the appellant to urinate, the waiting period at the hospital and the first nurse’s unsuccessful attempts to obtain a blood specimen.

(c)     Geraldine practitioners

[34]             Ms McRae notes the Constable did not have a list of health practitioners in Geraldine available to him. There was no evidence there were any suitable health practitioners available to travel from Geraldine to Fairlie to take a blood specimen. The Constable did not take steps to request that Police Communications locate a health practitioner because, on his evidence, that is not usual procedure. In any event, in  Ms McRae’s submission, the appellant would have remained detained wherever it was that he had to wait.

[35]             Ms McRae further submitted it would be impractical and against the public interest to have valuable and scarce medical personnel (either a health practitioner or medical officer) drive from another area to Fairlie to take a blood specimen.

(d)     “arbitrary detention”

[36]             Ms McRae cited the Court of Appeal’s decision in Chadderton v R.8 The Court observed that an initially lawful detention may become unlawful if its length becomes disproportionate to the purpose for which the power to detain has been conferred. As referred to by the Court of Appeal in Chadderton, the leading statement on the meaning of arbitrary in this context is found in Neilsen v Attorney-General:9

Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures.

[37]             The Court of Appeal in Chadderton, with specific reference to detention for the purpose of breath and blood alcohol testing, stated it was possible to distil the following principles from the authorities:10

(a)Detention for the purpose of breath/blood alcohol testing under s 69(1) is not subject to any express time limit.

(b)Despite the absence of an express time limit, detention should not last for longer than is reasonable in light of the statutory purpose.

(c)Whether a person has been detained for an unreasonable period “can only be a matter of fact and degree in each case”.

(d)There is some scope for delay in the process without giving rise to a breach of s 22 NZBORA. That is, there is no strict requirement that the defendant be transported to the appropriate site and tested immediately.

(e)There is no absolute rule preventing an officer from prolonging the defendant’s detention in order to effect a secondary purpose of his own. Again, the issue will likely be one of reasonableness.

8      Chadderton v R [2014] NZCA 528. Leave to appeal was declined by the Supreme Court in

Chadderton v Police [2015] NZSC 30.

9      Neilsen v Attorney-General [2001] 3 NZLR 433 (CA) at [34].

10 At [41].

(f)The time reasonably required may vary considerably depending on the locations involved and other pressing demands on the enforcement officer’s time, such as arriving at the scene of any accident.

(g)Delay is less likely to render detention arbitrary where there is no evidence the defendant was prejudiced by the passage of time.

(footnotes omitted)

[38]             Ms McRae submitted that the evidence did not indicate the appellant was prejudiced by the passage of time before a blood specimen was obtained.

Analysis

[39]             Mr Tobeck’s omnibus submission was that the time it took to travel from the Fairlie station to Timaru Hospital to take blood amounted to arbitrary detention (under s 22 of NZBORA) and was longer than reasonably necessary (in terms of s 114(3)(a) of the Act). Mr Tobeck, in the related submission which I address below (from [50]) as “Issue 2”, submitted also the appellant’s detention became arbitrary because the Executive had failed to adequately ensure a qualified person would be promptly available to take a blood specimen. I will first deal with Mr Tobeck’s “Issue 1”, and reach my conclusion on that aspect of the appeal, subject to my conclusion on “Issue 2”.

[40]             The enquiry is case-dependent. Bare reference to the period of detention considered by a Court in a previous case is not likely to be of assistance.

[41]             Mr Tobeck’s reference to the District Court decision in Police v Eades exemplifies the point.11 Mr Tobeck invites this Court to consider what period of detention was reasonably necessary in this case largely by reference to the 56-minute period found by the Judge in Eades to be longer than reasonably necessary.

[42]             I do not find the decision in Eades to be of assistance in relation to the fact- specific enquiry required. The relevant events in Eades all appear to have taken place in Whanganui.12 The decision there that the 56-minute period of detention was longer

11     Police v Eades, above n 7.

12     Police v Eades, above n 7, at [2] and [20]–[22].

than was reasonably necessary was clearly reached in the context of an urban situation in which the prosecution called no evidence to explain why a medical officer, said to have been “on her way within minutes” of a request for attendance, took 56 minutes to arrive.

[43]             In my view, the present appeal ground based on the length of detention invites the Court to disregard the relatively isolated location in which the appellant was stopped by focusing on alternative solutions for the appellant’s blood testing which may or may not have eliminated some of the time taken in obtaining the appellant’s specimen.

[44]             Mr Tobeck’s suggested alternative of medical assistance from Geraldine rather than sampling at Timaru Hospital (respectively 46 kilometres and 64 kilometres from the Fairlie station) was central to his submissions on this ground. The Constable’s decision to go to Timaru Hospital followed the hospital’s confirmation that a specimen could be taken there. The alternative proposed by Mr Tobeck — attempting to locate someone in Geraldine, such as a rest-home nurse, who might have been available to travel to Fairlie to take a specimen — had the clear potential for delay in identifying a suitable person and if available, having them prepared and equipped to travel to Fairlie on the night. If such a nurse was not available (whether because of their rest home duties or otherwise) it would have been an unsuccessful exercise with time lost.

[45]             I find it was reasonable in these circumstances that the Constable opted for the location (less than 20 kilometres further away) where the Constable knew a blood sample could be promptly taken.

[46]             I also find it was not unreasonable for the Constable to not on the night task Police Communications with locating a health practitioner. There is no suggestion Police Communications would have been in a better position to make the appropriate decision on the night than the Constable himself, with his ability to obtain a confirmed arrangement at Timaru Hospital.

[47]             I conclude the Judge correctly found on this first ground the appellant’s detention had not been longer than reasonably necessary. There had accordingly not been a breach of s 114(3) of the Act.

[48]             It also follows the Constable had not acted in a capricious or unreasoned way, so as to render the detention arbitrary in terms of s 22 of NZBORA. The appellant, having been detained lawfully, continued to be detained appropriately because the Constable was taking a reasonable time to have a blood specimen taken from the appellant.

Issue 2: should the Executive have ensured that a medical practitioner or medical officer was available to take a blood specimen sooner than was done?

Appellant’s submissions

[49]             Mr Tobeck submitted (as he had in the District Court) the Executive should have ensured a medical practitioner or medical officer was available to take a blood specimen sooner than was done. The import of his submission at this hearing was that there was a failure on the part of the Executive to have adequate available facilities near the point the appellant was stopped, with the result that the time taken to travel beyond Fairlie led to the appellant’s arbitrary detention.

[50]             Mr Tobeck referred in his oral submissions on this topic to a proposition that the Constable, after requiring the appellant to accompany him to the Fairlie station, had not then put in place a suitable arrangement for the appellant’s sampling. When I asked Mr Tobeck to identify the arrangement he posited should have been put in place, he submitted that, in relation to the appellant being stopped on the Fairlie-Tekapo Road, the Constable should have ensured, at the latest while on route to Fairlie, that there was a medical professional available and ready at Fairlie or Geraldine or, failing such availability, then someone at Timaru. Mr Tobeck submitted the Constable ought to have checked at the start of his duty day about such availabilities because he would have had an expectation, by the nature of his duties, that it was likely that a motorist would have to supply  a  blood  sample  during  the  Constable’s  period  of  duty. Mr Tobeck submitted the Constable should have also been prepared to go beyond the

standard list of practitioners to establish whether others may be in the area and available.

Respondent’s submissions

[51]             Ms McRae referred to the Constable’s evidence that a list was available of practitioners who could take blood samples, in this case relevantly at Fairlie. She submitted the Judge’s conclusion above at [17(b)] that there was no relevant failure by the Executive was correct.

Analysis

[52]             The appellant has not demonstrated any error in the Judge’s assessment of the evidence relating to the standing arrangements for blood sampling. There was, as the Judge recorded, a scheme in place. Relevantly, in relation to a driver stopped on the Fairlie-Tekapo Road, the list’s identification of practitioners at Fairlie was appropriate. The simple fact was that it transpired it was not possible on that particular night to have the defendant’s blood sample at Fairlie because the listed medical professionals were unavailable. The Constable’s “failure” before he started duty on that particular day, to embark on the sort of arrangements proposed by Mr Tobeck, cannot be viewed as unreasonable.

Issue 3: was the blood specimen taken in accordance with normal medical procedures?

The statutory provisions

[53]             The “blood specimen” on which a prosecutor relies is the subject of definition in s 2 of the Act — it means a specimen of venous blood taken in accordance with normal medical procedures.

[54]             The statutory scheme differentiates between taking the blood specimen and how it is to be divided and stored — the requirement to comply with “ordinary medical procedures” therefore applies only to the physical extraction of the blood sample, not

to subsequent statutory steps.13 In Gullery v Police, Toogood J (referring to earlier decisions of this Court) confirmed that “normal medical procedures” requires only that blood be taken using a needle and syringe or other approved instrument — the prosecution is not required to elaborate on each individual step in the process.14

Appellant’s submissions

[55]             Mr Tobeck submitted the involvement of the first nurse at Timaru Hospital amounted to a departure from “normal medical procedures” with the result that, in terms of s 2 of the Act, there was no resulting “blood specimen”.

[56]Mr Tobeck noted the evidence in relation to the first nurse’s actions was that:

(a)the nurse tried to take a blood specimen from one arm;

(b)she then tried to take a blood specimen from the other arm; and

(c)finally she tried to take a blood specimen from the back of Mr Kennelly’s hand.

[57]             Mr Tobeck referred also to the fact the Constable was present when the first nurse was carrying out these procedures.

[58]             Mr Tobeck noted the second nurse agreed in cross-examination that, after two (unsuccessful) attempts to take blood from a person, nurses would normally go to another person for help.

[59]             Mr Tobeck also said the second nurse had agreed in evidence it is not normal medical procedure for a police officer to be present when blood is taken. On my reading of the notes of evidence, the exchange Mr Tobeck was referring to in fact reads thus:

Q.Well, a lot of people would come to the triage box, as you call it, without a police officer, wouldn’t they?

13     Tebbs v R [2013] NZCA 523 at [64]. Leave to appeal was declined by the Supreme Court in Tebbs v R [2014] NZSC 16 at [7].

14     Gullery v Police [2013] NZHC 3014 at [81].

A.       Yeah.

Q.In fact most people would not have a police officer with them, would they?

A.       Yeah.

Q.       So it’s not really normal to have a police officer there, is it?

A.Not normal for a police officer but sometimes when the police officer brings persons that’s the initial assessment.

[60]             On the basis of his understanding of the evidence, Mr Tobeck submitted there had accordingly been two departures from “normal medical procedures”. First, through the first nurse making more than two attempts to obtain a blood specimen before transferring the task to another nurse. Secondly, through the Constable remaining in the triage room during the procedures.

Respondent’s submissions

[61]             Ms McRae noted there is no definition in the Act of “normal medical procedures”. She noted, by reference to this Court’s decision in Curle v Police that each case depends on its own facts.15 Ms McRae observed that in Curle there had been four unsuccessful attempts before a final, successful attempt to obtain a blood specimen. A similar situation had arisen in Carpenter v Police.16 In both Curle and Carpenter, this Court rejected arguments that normal medical procedures had not been followed.

[62]             In Curle, Venning J referring both to the facts in Curle and those in Carpenter, observed:17

It must be a matter of evidence in each particular case whether the circumstances surrounding the taking of the specimen, where there have been unsuccessful attempts prior to the specimen being successfully obtained, can be said to be within normal medical procedures. In this case, however, the evidence supports the finding it was.

15     Curle v Police HC Auckland CRI-2011-404-176, 19 July 2011 at [25].

16     Carpenter v Police [2006] DCR 440 (HC). See also Hilton v Police HC Wellington AP105/01, 23 August 2001 at [26].

17 At [25].

[63]             Ms McRae submitted the three (unsuccessful) attempts in this case to obtain a blood specimen from the appellant were in accordance with normal medical procedures.

[64]             On the topic of the Constable being in the triage room while the nurses were undertaking their procedures, Ms McRae noted the ambiguity in Mr Tobeck’s cross- examination exchanges with the second nurse. The questioning clearly began in the context of the full range of patients who come to the triage room, not limited to those detained for the purposes of taking of a blood specimen. It was in that context that the second nurse gave her answers to the cross-examination questions.

[65]             Ms McRae referred also to the findings of this Court in Mabee v Police (upheld on appeal).18 The appellant in Mabee had been required to give a blood specimen in  a hospital or a medical centre under s 73 of the Act (parallel to s 72). As here, the appellant argued that the presence of police officers during the taking of the blood specimen was a denial of the appellant’s privacy and an invalidating departure from the correct procedure. Dunningham J found the officer’s presence was not a breach of the s 73 procedure, observing:19

Nothing in [the s 73 procedure] precludes an enforcement officer being present. There is clearly no prohibition on an enforcement officer being present when a blood specimen is taken under any other circumstance. It may be that a doctor may choose to undertake the examination process prior to the taking of a specimen in private, but that is for the doctor to direct having regard to the patient’s needs.

Discussion — first nurse’s three attempts

[66]             In considering Mr Tobeck’s submissions relating to the first nurse’s three attempts, the Judge expressly favoured what he referred to as a narrow interpretation of “normal medical procedures”. He noted the first nurse’s attempts had been unsuccessful so the second nurse stepped in. In relation to the argument being advanced by Mr Tobeck, the Judge correctly brought the focus back to “normal medical procedures”. That focus, as Toogood J identified in Gullery is on the particular medical procedures involved such as the use of a needle and syringe or other

18     Mabee v Police [2017] NZHC 2015 and Mabee v Police [2017] NZCA 570.

19 At [54].

approved instrument. The appellant did not suggest there had been any departure from normal medical procedures in that sense.

[67]             Mr Tobeck’s focus instead was on the identity of the person who undertook the medical procedures. The second nurse had agreed in answer to a question in cross- examination that “normally we, yeah, we try, to me if I tried twice and didn’t get the blood definitely I will go for another help”. But the answer given was not addressing the issue for the Court to determine. The nurse’s normal practice is not the same as “normal medical procedures” as that expression appears in the Act and as Toogood J discussed it in Gullery.

[68]             Put another way, it makes sense for one nurse who has repeatedly failed to obtain a blood specimen to pass the task onto another nurse sooner rather than later. But, as the decisions in both Curle and Carpenter indicate, a deferred decision in that regard does not of itself constitute a departure from “normal medical procedures”.

[69]             Ms McRae submitted the way in which the Judge addressed this issue (above at [17(d)] was correct — the police were under no obligation to adduce evidence from the first nurse, as the subject-matter for determination by the Court was the validity of the procedure followed to obtain the blood specimen being relied on (that is, the specimen obtained by the second nurse).

Discussion – Constable’s presence

[70]             The Judge correctly found the Constable’s presence in the triage room did not amount to a departure from “normal medical procedures”. The Judge did so on what he referred to as the “narrow” definition of the term. Put another way, the Constable by being present was in no way involved in the medical procedures themselves, being a mere attendant and/or observer.

Issues Mr Tobeck raises as to what the first nurse might have said if called in evidence

Appellant’s submissions

[71]             Mr Tobeck submitted the failure of the police to adduce evidence from the first nurse was a fundamental flaw in the police case and fatal to the prosecution. He described the first nurse’s actions as “an integral part of the blood-taking process”. He identified five reasons for that submission:

(a)the first nurse may not have been a medical practitioner or medical officer as required by the Act;

(b)it is not clear whether the first nurse was the medical practitioner in immediate charge of the appellant’s care;

(c)there is no evidence as to the first nurse’s understanding of why the appellant was in hospital, the answer to which would have required a distinct examination;

(d)the first nurse could have given cogent evidence in relation to these matters and the reasons for attempts to take blood from three different sites; and

(e)the first nurse could have given evidence as to whether she obtained blood specimens.

[72]Mr Tobeck submitted that this Court’s decision in Clayton v Police is on point

— in that case, there was no evidence from the medical officer who took the blood specimen relied on and it was found the prosecution must fail.20

Respondent’s submissions

[73]             To the extent Mr Tobeck invited the Court to speculate as to what evidence the first nurse could have given if called, I do not do so. The charge before the Judge had

20     Clayton v Police HC Christchurch CRI-2004-409-47, 12 May 2004 at [5].

to be considered on the evidence adduced. To the extent Mr Tobeck wished to explore what had occurred when the first nurse was involved, he was able to do so through examination of the Constable who was present throughout. If he had considered the first nurse’s evidence was important, it was open to the defendant to call the first nurse as a witness.

[74]             Finally, on these issues, this Court’s decision in Clayton is not of assistance to the appellant. Here, the nurse who took the blood specimen on which the prosecution based its case was called as a witness. The deficiency in Clayton lay in the fact the medical officer who took the blood specimen relied on did not give evidence and a Blood Specimen Certificate was not produced.21

[75]             In this case, the Judge correctly found there was sufficient evidence before the Court to establish the validity of the procedure by which the blood specimen was obtained.

Issue 4: were there more than two blood specimens taken from the appellant?

Statutory provision

[76]             Section 72(4) of the Act provides for the situation where a blood specimen taken is insufficient for the purposes of the relevant blood specimen collecting procedure. In that situation, the person from whom the specimen was taken must permit a health practitioner or medical officer to take a further blood specimen upon request and the further blood specimen so taken is treated as part of the original blood specimen taken from the person.

[77]             In Auckland City Council v Bostock, Mahon J on an appeal by way of case stated upheld the District Court Judge’s finding that the legislation authorises only the extraction of two specimens.22 Mahon J found that “[a]ny appreciable quantity of blood withdrawn from a suspect is … a “blood specimen” within the meaning of the legislation”.23 As the medical practitioner in question had extracted blood on each of

21 At [4].

22     Auckland City Council v Bostock HC Auckland M390/80, 3 June 1980.

23     At 3–5.

their first two procedures (albeit less than one cc), each of those samples of blood constituted a “blood specimen” and the medical practitioner was not entitled to take a further specimen.24

[78]             In Curle, Venning J observed that (in that case) the important feature of Bostock was that on each of the first two attempts, appreciable quantities of blood were obtained, even though they were insufficient for analysis.25 On the facts in Curle, the decision in Bostock was distinguished on the basis that earlier attempts in Curle had been unsuccessful and did not draw blood.26

Appellant’s submissions

[79]             Mr Tobeck submitted, referring to Bostock, that “any amount of blood taken from [the appellant] is a blood specimen”. That applies, in terms of Bostock, whether the blood specimen is sufficient for analysis or not.

[80]             Mr Tobeck referred to the evidence. Mr Tobeck had questioned the Constable who in his examination-in-chief had stated the first nurse was unable to take blood from the defendant. The Constable indicated he was at most one-and-a-half metres distant from where the first nurse was conducting her procedure and he saw the nurse attempting to take the appellant’s blood. When the Constable was asked whether there was any blood specimen taken that was insufficient for analysis, the Constable replied that there was not blood coming into the vial. When Mr Tobeck then suggested to the Constable that he would not have been able to tell whether there was any blood in the needle, the Constable agreed as the needle was solid steel. The Constable again stated that there was no blood in the vial.

[81]             Against this background, Mr Tobeck submitted the evidence was unclear as to whether blood specimens were taken by the first nurse.

24     At 6.

25     Curle, above n 15, at [17].

26 At [20].

Respondent’s submissions

[82]             Ms McRae referred to the requirement, identified both in Bostock and in Curle, that for the withdrawn blood to constitute a “blood specimen” there needed to be an “appreciable quantity”. She referred to a dictionary definition of “appreciable” as meaning “large or important enough to be noticed”.27

[83]             Ms McRae submitted the Constable’s evidence established an appreciable quantity of blood had not been obtained.

Analysis

[84]             The Constable’s evidence was clear. He was in a position to see and did see the first nurse’s procedure. He saw no blood enter the vial. While Mr Tobeck’s cross- examination raised the possibility that some blood entered the (opaque) needle, that is not evidence of an “appreciable quantity” — adopting a synonym, any quantity the first nurse obtained was not “perceptible”.

[85]             I recognise the Judge’s reference to withdrawn blood having to be of a sufficient amount for analysis in order to constitute a “specimen” is inconsistent with the decisions in Bostock and Curle. But the Judge’s ultimate conclusion, that the first nurse did not obtain a “blood specimen”, is correct on the evidence in this case because the first nurse did not obtain an appreciable quantity of blood.

Issue 5: was the chain of custody of the blood specimens insufficient to guarantee its integrity for evidence purposes?

Appellant’s submissions

[86]             Mr Tobeck submitted the Judge had erred by failing to find that evidence in relation to the blood specimen had become unreliable through the way in which the Constable treated it at the Fairlie station. Mr Tobeck’s submission was that, for the blood specimen to be reliable, it should have been refrigerated at the station rather than kept in an unrefrigerated locker.

27     Oxford Online Dictionary (online ed, Oxford University Press), definition of ‘appreciable’.

[87]             The basis of this submission turned on a difference between two guidelines, which Mr Tobeck had explored in the cross-examination of the Constable.

[88]             In his evidence, the Constable referred to the police policy on collecting blood samples, which he had disclosed to the appellant as part of disclosure.28 Under the heading “Chain of Evidence” (in relation to blood-taking procedures) the policy states:

For evidential reasons it must be possible to prove the Chain of Evidence, secure the specimen once it’s taken (using a locked fridge or locker).

[89]The policy goes on to provide:

Use a courier or deliver it in person according to District procedure.

[90]             Mr Tobeck, in support of his submission that the blood specimen had not been reliably handled, referred to his cross-examination of the Constable in relation to the Pathlab Specimen Collection Guidelines which state:

Store in a cool temperature until delivered to the Lab. Ideally, an ice pack attached (inside) to the chilly bin lid prior to the day’s blood specimens being collected will maintain a preferred temperature control. Blood specimens should never be in direct contact with an ice pack.

…

Transport all specimens in a chilly bin to maintain the required temperature, for safety and confidentiality. Extremes of temperature, especially in a hot vehicle can compromise the test results.

[91]             Mr Tobeck also questioned the Constable in relation to the “Land Transport Act Instructions For Taking Blood” (Instructions), which the Constable said he had seen (in the blood specimen collecting kit). Paragraph 11 of the Instructions states that the blood specimen should be held in secure custody, under refrigeration, but not frozen.

[92]             Mr Tobeck cross-examined the Constable in relation to his handling of the blood specimen:

Q.       — and you put the blood specimen into your locker?

A.       Yes.

28     Under the Criminal Disclosure Act 2008.

Q.       Is that your personal locker?

A.       Yes.

Q.       Is that refrigerated?

A.       No, it’s in an old cell block which is concrete and it’s very cool.

Q.       And then on Monday you picked up the blood specimen —

A.       Correct.

Q.       — and took it to the Timaru Police Station?

A. No. I took it to the New Zealand Couriers depot out at Washdyke and handed it over personally.

…

Q.And you know that the normal practice is for a blood specimen to go into a locked fridge at the police station?

A.       That can happen, yes, that’s one of the options.

Q.And then there’s a process whereby that fridge is then emptied and the blood specimens are sent to the ESR in Porirua?

A.       That happens in the bigger stations, yes.

…

Q. So when I said to you that the blood specimen is kept in a fridge, you said, “that’s one option”. What do you consider to be the other option?

A.Well the option I took was to secure it in my locker, which is a cool   area, and then if there was any issue with the blood they would not have tested at ESR.

Respondent’s submissions

[93]             Ms McRae submitted the Judge correctly determined there was no evidence to doubt the integrity of the appellant’s blood specimen.

[94]             She referred to the Constable’s evidence as to the storage locker being in a cool area. She noted storage in a locker was in accordance with the Police Practice Advice and submitted that the fact that standard procedures involve the specimen ultimately being couriered to the ESR underscores that periods of non-refrigeration do not point to deterioration of the specimen.

[95]             Ms McRae further submitted the evidential provisions of s 75 of the Act, applying to the ESR certificate given under s 75(5) applied in this case. In particular, under s 75(1) the ESR certificate in relation to the appellant, confirming that “no such deterioration or congealing was found as would prevent a proper analysis” is evidence, in the absence of proof to the contrary, of that fact. The courts have held that, once a certificate is admitted into evidence, the statutory requirement of proof to the contrary renders it insufficient to simply introduce evidence that may raise a reasonable doubt about matters stated in the certificate.29

[96]             As the appellant did not produce any evidence to indicate there had been deterioration of congealing as would prevent a proper analysis, the certificate was conclusive.

Analysis

[97]             I accept Ms McRae’s submission that the Judge would have been entitled to rely on the s 75(5) certificate as conclusively establishing that there had been no such deterioration or congealing found as would prevent a proper analysis.

[98]             Equally, I consider the Judge was correct on the evidence (without the need to rely on a s 75(5) certificate) to reject the submission that the Constable’s storage of the specimen in a cool storage locker gave rise to an arguable doubt as to the integrity of the specimen as subsequently tested by ESR. The variation in guidelines is not evidence that one of the means of storage is the only appropriate means. Logically, as identified by Ms McRae, continuous refrigeration could not be a prerequisite to integrity given the guidelines generally provide for blood specimens to be couriered to the ESR without reference to the period the specimen will be with the courier.

[99]             I find for both these reasons the Judge’s conclusion that no issue arose in relation to the chain of custody was correct.

29     R v Phillips [1991] 3 NZLR 175 (CA) at 176–177 and Hilton v Police, above n 16, at [20].

Issue 6: was the admission of the blood specimen evidence justified under the test set out in s 30 of the Evidence Act?

Introduction

[100]         Ms McRae submitted, in the event it was found blood specimen evidence was improperly obtained for any of the reasons articulated for the appellant, the admission of the blood specimen evidence was nevertheless justified under the tests set out in s 30 Evidence Act 2006.

[101]         Ms McRae in her written synopsis had set out detailed submissions in which she undertook the balancing exercise required by s 30(2)(b) of the  Evidence Act.  Mr Tobeck did not in his submissions initially provide any response to Ms McRae’s balancing exercise. When I sought his response at the conclusion of his reply submissions, Mr Tobeck suggested the balancing exercise was weighted against admission of the evidence primarily because of the “unreasonably long” period of detention and (in relation to the medical procedures) the extent to which the appellant’s body had been submitted to abnormal medical procedures.

[102]         Had I found (contrary to my above findings) any of the appellant’s grounds to be sustained, I  would  readily  have  concluded  that  the  balancing  exercise  under s 30(2)(b) Evidence Act was in favour of the admission of the evidence. The improprieties involved if established (slightly too long a detention and some modest departure from normal medical procedures) had to be measured against the Constable’s good faith in the context of a night-time stop in a geographically isolated area, with the need for the procedure to be completed promptly, and the relative seriousness of drink-driving (without lights) at night-time in rural New Zealand.

Outcome

[103]The appeal is dismissed.

Osborne J

Solicitors:

Crown Solicitor, Timaru

A S P Tobeck, Barrister, Otautau