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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 2062
Decision Date: 15 August 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Murray Ludemann sought leave to appeal against a conviction for drink driving, claiming that there was insufficient evidence to prove that the blood specimen taken was venous blood, as required by the Land Transport Act 1998. The case was heard by Whata J on 13 August 2013, and judgment was delivered on 15 August 2013. The court had to decide whether to grant leave to appeal, based on the grounds that the evidence provided was insufficient, and if the court was correct in principle to call for new evidence directly on point to cure evidential deficiencies in the prosecution case. The court also had to consider if the circumstances qualified as "special" under s 119(2) of the Summary Proceedings Act 1957, and if the procedural rights contained in the Act should not be undermined by procedural laxity.

The court found that the grounds of appeal raised were not questions of law, but rather challenged the exercise of discretion to allow evidence to be heard on appeal. The court held that the discretion to allow further evidence was a matter of discretion to be exercised sparingly, and whether the circumstances qualified as special was also a matter of discretion. The court concluded that the exercise of discretion on the specific facts of this case was not obviously amenable to a question of law or a matter of general or public importance. The court also noted that the appeal was lodged six days late, and the need to bring these proceedings to a conclusion was compelling.

The court decided not to grant leave to appeal, and therefore the conviction for drink driving stands. The final orders of the court are not explicitly stated in the text, but it can be inferred that the court maintains the conviction and denies the appeal.

Orders