Ludemann v Police

[2013] NZHC 2062

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2012-476-000014

[2013] NZHC 2062

MURRAY LUDEMANN

Appellant

v

POLICE

Respondent

Hearing:

13 August 2013

Counsel:

S Blake for Appellant

A R McRae for Respondent

Judgment:

15 August 2013

JUDGMENT OF WHATA J

[1]    Mr Ludemann seeks leave to appeal my judgments of 23 May 2013 and 28 June 2013. Mr Ludemann was convicted of drink driving. The evidence at trial was that the “blood specimen” taken from Mr Ludemann showed excess blood alcohol. Mr Ludemann appealed on the basis that there needed to be evidence that venous blood was taken. I dismissed the appeal after seeking clarification from Dr Smith about what he meant when he said he took a “blood specimen”. He said that he took a specimen of venous blood in accordance with normal medical procedures.

LUDEMANN v POLICE [2013] NZHC 2062 [15 August 2013]

Background

[2] Mr Ludemann claimed in the District Court and before me that there was no direct evidence that the blood taken was venous blood, as required by the Land Transport Act 1998. On this issue Judge Maze said:1

[17]   ... In the circumstances I am satisfied beyond reasonable doubt that the failure to refer to “venous blood” is a simple omission which can be corrected or permitted as a result of the provision of s 64(2), the reasonable compliance provision. That being the case that defence must fail.

[3] Mr Ludemann maintained before me that this was an error of law. His then counsel said the key issue was:

The issue for the Court is whether the evidence of Dr Ian Smith sufficed to prove that there had been a contravention of section 56(2) in that there was evidence of excess alcohol in the “blood specimen” taken from the Appellant, given that section 2 defines “blood specimen” as a specimen of venous blood taken in accordance with normal medical procedures.

(Emphasis in original)

[4] Dr Smith in fact gave evidence at trial before the District Court that he had taken a “blood specimen”. The legislative requirement is that Dr Smith take a “blood specimen”.  “Blood specimen” is defined as:

a specimen of venous blood taken in accordance with normal medical procedures.

[5]      Against this background, I observed:

[23] In light of that evidence, the  underlying  premise  of  the  appeal, namely  that  a  “blood  specimen”  was  not  taken,  is  disputable.  Plainly Dr Smith was familiar with the processes or normal procedures for taking blood and plainly he was familiar that it was a requirement to take a blood specimen. In order to accept the appellant’s argument I must infer that when the doctor used the words “blood specimen” he was not aware of the legislative meaning of that term. I am not readily prepared to draw that inference in the context of the evidence just narrated, and especially given the longstanding authority of Faasipa that venous blood must be taken. I think it is fair to assume that 18 years after that decision the police were aware of the statutory requirement to take venous blood.

1       Police v Ludemann DC Timaru CRI-2012-076-000205, 22 November 2012.

[24]    There was also no suggestion that Dr Smith was using the language of “blood specimen” other than in the sense it is used in the Land Transport legislation.

[6]   Nevertheless I was prepared to accept that the Judge erred by assuming that the omission to refer to venous blood could be corrected under the auspices of s 64. I preferred instead to take a precautionary approach, given that the taking of a blood specimen as defined was proof of an element of the offending. I was not however prepared to simply set aside the conviction in light of the overt policy of the Act that technical defences will not succeed. I therefore considered that I could either refer the matter back to the District Court or allow further evidence to be filed to clarify what the Doctor meant by “blood specimen”. Mr Simperingham, then counsel for the applicant, strongly maintained that I should simply set aside the conviction and

not refer the matter back to the District Court.2   In the result, I preferred to grant the

Crown leave to:

[27] ... file evidence directly relating to what Dr Smith meant when he used the word “blood specimen” and in particular whether or not he took a blood specimen from a vein. ...

[7] Dr Smith then gave affidavit evidence stating that he took a specimen of venous blood. I gave Mr Simperingham the opportunity to cross examine the Doctor. But he did not take that opportunity, and submitted that the only available option was to allow the appeal or remit the matter to the District Court. He then submitted that I should exercise my discretion to allow the appeal and to not refer the

matter back.3  I declined to follow this suggestion noting:4

[8]     I do not consider that the reasons just mentioned are compelling. As the Court of Appeal stated, I have a broad discretion. I may or may not remit the determination appealed against to the District Court. The issue of uncertainty and expense highlighted by the appellant would in fact be exacerbated and persist were I to remit this matter to the District Court for reconsideration. In any event, I considered that that would be a wasteful exercise.  I therefore elected to call for salient evidence.

2       See submission of counsel dated 23 May 2013.

3       See submission of counsel dated 17 June 2013.

4       Ludemann v Police [2013] NZHC 1544.

Grounds of appeal

[8]   No  questions  of  law  were  posited  for  consideration  by  me.  Rather, Mr Ludemann seeks leave to appeal to the Court of Appeal on the basis that in respect of s 119(3) I was “wrong in principle to call for new evidence directly on point to cure evidential deficiencies in the prosecution case, which could in the circumstances have reasonably been adduced by the prosecution at the District Court hearing”.

[9]     It is further said that in relation to s 119(2) I erred in calling for new evidence as the circumstances could not be categorised as “special”, nor was it a matter where the adequacy of the transcript evidence from the District Court was incomplete in any material way.

[10] Mr Ludemann also disputes my reference to Aylwin  v  Police.5  In  my judgment of 28 June 2013 I took the opportunity to remind the parties of the salutary observation of the Supreme Court contained in that case to the effect that Parliament has legislated to ensure that drivers that do not comply with the obligations do not escape responsibility through technical and unmeritorious defences. Mr Ludemann responds that the procedural rights contained in the Act should not be undermined by procedural laxity and that Police must anticipate defects and bring sufficient evidence to make out the charge.

Jurisdiction

[11] The jurisdiction to grant leave to appeal is stated at s 144(2) of the Summary Proceedings Act 1957. In short there must be a question of law which by reason of its general or public importance ought to be submitted to the Court of Appeal.  The

Court of Appeal in R v Slater set the proper boundaries for the grant of leave in the following terms:6

... The Court cannot enlarge the jurisdiction conferred upon it by statute by construing its discretion more broadly than the statute permits. The Court might, perhaps, in certain circumstances decide that a question of law which

5       Aylwin v Police [2008] NZSC 113.

6       R v Slater [1997] 1 NZLR 211 (CA) at 215.

is not of general or public importance ought to be submitted to the Court for decision because of the words “or for any other reason”. But these words go to the reasons for submitting the question of law to this Court for decision; they do not enable the Court to dispense with the requirement that there must be a question of law.

Argument

[12] I did not have the benefit of written submissions from Mr Blake, so the following summary is based on my notes of argument.

[13] Mr Blake initially contended that there was no inherent jurisdiction to allow fresh evidence on appeal to the High Court.  He accepted however that s 119(2) and

(3) provided jurisdiction to allow further evidence, but, he said, not simply to fill gaps in  the evidence of the Crown at  first  instance.   Dealing specifically with s 119(2), he initially submitted that the jurisdiction is limited to circumstances where the Court has reason to believe that any note of evidence of the witness made is or may be incomplete. Responding to difficulties with that interpretation, he submitted the High Court does not have jurisdiction under s 119(3) to supplement the record of the trial to remedy deficiencies in the Crown case that could have been addressed at trial and that under s 119(2) there must be a special reason to allow further evidence. He says that simple clarification of what was meant by a witness does not qualify under s 119(3) – because it is evidence that could have been given at trial – and cannot be categorised as special for the purpose of s 119(2). I understand that his fundamental concern  is that a  defendant ought to be  able to have  his guilt or innocence assessed on the evidence given at trial and not revisited on appeal by side route. He linked this to another concern, namely that this case will be used in the District Court to allow further evidence after the Crown case has closed. He then submits that the protection of a defendant’s right to finality is a matter of significant public interest so that the scope of the discretion of the High Court to adduce evidence should be submitted to the Court of Appeal for assessment. I think however that he accepted that whether there was a special reason involves a merits assessment and a matter of discretion for the Judge.

Assessment

[14] I preface my assessment by observing that the precise grounds now raised did not feature in argument before me on the appeal. I mean no criticism of then counsel in the appeal, Mr Simperingham. The legitimate focus of the appellant was to seek that the conviction be set aside rather than entertain additional evidence or a full rehearing in the District Court. I am also conscious that the route I took was raised by me and not foreshadowed in argument from the Crown.   I have also had the

benefit of reviewing the transcript of interchanges.7   For reasons that elude me now I

signalled to defence Counsel that I would not allow further evidence to be admitted without the consent of the defendant. While defence counsel did not oppose the suggestion, nor is it clear that he approved that course (as the Crown thought he had). What is clear however is that defence Counsel steadfastly opposed referral back as the least preferred option. Nevertheless, all of this calls for closer scrutiny on the question of whether leave should be granted.

[15]    I now deal with each of the pleaded grounds in turn.

Section 119(3)

[16] The applicant is now essentially stating that the key criterion for admission of evidence under s 119(3) was not met – namely the further evidence by the Doctor could have been reasonably adduced by the prosecution at the hearing. But, as I think Mr Blake accepted, as the Doctor gave evidence at the trial, s 119(2) enabled rehearing of the whole or part of Doctor’s evidence without recourse to s 119(3). Any question as to the scope of jurisdiction under s 119(3) is therefore moot.

Section 119(2)

[17] The grounds of appeal as framed relating to s 119(2) do not raise questions of law. Rather they seek to appeal an exercise of discretion to allow evidence to be heard on appeal. In summary the applicant contends I was wrong “in principle” to do it and that the circumstances were not sufficiently special to warrant further

7       Counsel for the Crown requested that the transcript be reviewed and this was not opposed.

evidence.8 The general principle relied upon appears to be that all evidentiary material to be relied upon by the prosecution probative of guilt must be adduced before the close of its case.9 But the application of the principle to the given facts, and whether the evidence is allowed, is a matter of discretion, albeit to be exercised sparingly.10 Equally whether the circumstances qualify as special is also a matter of discretion.

[18] The appeal was not then enhanced by the assertion that the evidence was called “to cure evidential deficiencies in the prosecution case”. That proposition is not drawn from the judgment. It also erroneously presupposes that the purpose and the outcome of the new evidence was to, and would in fact, cure the Crown case. As stated in the judgment, the purpose of the evidence was to clarify what Dr Smith meant by “blood specimen”; and the evidence had the potential to be exculpatory or inculpatory.

[19] In any event, a challenge simpliciter to an exercise of discretion is not a permissible basis for an appeal to the Court of Appeal on a question of law.11

[20] I nevertheless explored with Mr Blake how we might convert the challenge in respect of s 119(2) into a question of law. It became immediately apparent that it was difficult to state a question of law that did not involve an assessment of the merits of an exercise of discretion. A justiciable issue might be whether the High Court has jurisdiction to supplement the record of the evidence with further evidence of the type given by the Doctor. But the jurisdiction to “rehear the whole or any part of the evidence” is expressly stated at s 119(2) and the effect of this must be to supplement the record. Therefore no meaningful question arises, unless it engages the merits of the exercise of discretion.

8       A threshold test stated in Burnett v Police [1966] NZLR 830.

9       Mr  Blake  did  not  refer  to  specific  authority.     I  draw  this  statement  of  principle  from

R v Timutimu CA236/06, 30 November 2006, at [12].

10      Ibid.

11      Cf Harrison v Ministry of Transport CA424/92, 29 March 1993.

Policy?

[21] The remaining substantive ground of appeal is that the right of election to have a blood test and the associated procedural rules must not be undermined by procedural laxity, that the conviction should have been quashed and that to allow the rehearing would dilute the policy considerations that the Police must anticipate defects in their case arising from the procedure adopted and bring sufficient evidence to the Court. But whether there was in this case procedural laxity and whether there was a defect in the Police case were highly debatable matters, as I found. The District Court Judge also found that there was a “simple omission”. Whether I was right about all of this is fact specific and does not give rise to a question of law.

General or Public Importance?

[22] This then highlights a major problem with the application for leave. My decision is fact specific. It relates to the meaning and import of the words “blood specimen”, an error of law by the District Court as to the application of s 64 that does not by itself automatically mean that conviction must be set aside, and then a broad discretion to remit the matter back to the District Court or set aside the conviction. It is doubtful therefore that a question of general or public importance arises. I am however told from the Bar that the issue of whether the Crown has discharged the burden of proof in the absence of evidence of the taking of venous blood is a significant one. Mr Blake indicated that he acted for defendants in two (or three) recent prosecutions that failed because the Crown did not produce direct evidence of the taking of venous blood and even though there was evidence that a “blood specimen” was taken. He said therefore that my approach has significant precedent value, because it suggests that the District Court may elect to supplement evidence in the way I have done.

[23] I think Mr Blake puts altogether too much store on my decision.  I found that the Judge was wrong to rely on s 64 to correct what she perceived to be a simple omission. I was confronted with one of three options – seek clarification, discharge the conviction or refer the matter back to the District Court for a rehearing. Given the policy of the Land Transport Act 1998, I was not prepared to simply set aside the conviction on the evidence then available to me. The remaining options both carried

the potential of conviction or dismissal of the charge. I elected to adopt a course that provided the most efficient disposal of the proceedings, not knowing what the outcome might be. This sets no precedent for how the District Court should deal with allegations of insufficiency of evidence. The District Court is not confronted by an election between a full rehearing and the calling of specific evidence. Indeed, there could be no prospect of a full rehearing. Rather, if the District Court elects to allow further evidence it will need to be satisfied that the criteria for doing so at s 98 of the Evidence Act 2006 are met, or it must determine the case on the evidence already heard.

[24] For completeness, and while not framed as a ground of appeal or argued before me in this leg of the proceeding,12 I have considered whether having found the District Court to be in error, it was available to me to allow further evidence to be filed or whether my discretion was by then limited to allowing the appeal and setting aside the conviction or referring the matter back to the District Court for retrial.  But s 121 is quite plain in its language:

121      High Court to hear and determine appeal

(1)        The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.

(2)In the case of an appeal against conviction, the High Court may-

(a)Confirm the conviction; or

(b)Set it aside; or

(c)Amend it and, if the Court thinks fit, quash the sentence imposed and either impose any sentence (whether more or less severe) that the convicting Court could have imposed on the conviction as so amended, or deal with the offender in any other way that the convicting Court could have dealt with him on the conviction as so amended.

(Emphasis added)

12      It was raised by Mr Simperingham in his submissions of 17 June 2013.

[25] In light of the broad jurisdiction conferred, any question arising concerns the exercise of discretion and is not obviously amenable to a question of law or a matter of general or public importance.

Application for leave out of time

[26]    I indicated to the parties that I preferred to examine the merits before forming a final view on the application to extend the time for leave to appeal. The appeal was lodged six days late. Mr Blake explained that he had thought he had 28 days to appeal and that his location in Auckland while Mr Ludemann resided in Christchurch, together with the registry being in Timaru all contributed to the delay.

[27] While the appeal was lodged only six days late, the need to bring these proceedings to a conclusion is compelling. The offending occurred in February 2012. The District Court delivered its oral decision on 22 November 2012 and my first substantive decision to allow further evidence was delivered on 23 May 2013. A further minute was issued on 12 June 2013 after receipt of the new evidence indicating that subject to cross-examination I was minded to dismiss the appeal. The final decision was then delivered on 28 June 2013. The applicant cannot seriously complain that he has not had sufficient warning to prepare for an appeal. Indeed I understand from Mr Blake that he was involved in assisting Mr Ludemann’s legal team in the appeal to the High Court.

[28]  It also needs to be recalled that the counterfactual was at all times the referral by me  back  to  the  District  Court  for  rehearing.  But  this  was  not  sought  by Mr Ludemann given, among other things, the significant elapse of time. That desire for finality was a reason for the course I adopted and a reason for alacrity in the filing of an appeal.

[29] In these circumstances, and given that the appeal is essentially a challenge to the exercise of discretion on the specific facts of this case, I do not grant an extension of the time to appeal.

Solicitors:

S Blake, Auckland Gresson Dorman, Timaru