Ludemann v Police

[2013] NZHC 1544

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2012-476-000014 [2013] NZHC 1544

MURRAY LUDEMANN Appellant

v

POLICE Respondent

Hearing:                   (On Papers)

Counsel:                  A M Simperingham for Appellant

A R McRae for Respondent

Judgment:                28 June 2013

JUDGMENT OF WHATA J

[1]      In my judgment of 23 May 2013[1]  I was prepared to accept the argument of Mr Simperingham that there was an error at first instance when Mr Ludemann was found guilty of driving with excess blood alcohol, when there was no direct evidence that a venous blood sample was taken as required by the Land Transport Act 1988.  I noted, however, that the doctor in question referred to the taking of a “blood specimen” and there was nothing to suggest that he used that reference other than in the sense used in the Land Transport legislation.  I therefore elected to proceed on the basis that I receive evidence from the doctor as to what he meant by “blood specimen”.   I considered this approach better accorded with the requirements of fairness  and  the  policy  of  the  Land  Transport  Act,  namely  that  drink  driving

offending will not escape reproach on the basis of a technical defence only.

[1] Ludemann v Police [2013] NZHC 1238.

[2]      I have now received an affidavit from Dr Smith, being the doctor who took the blood specimen.  He confirms in that affidavit:

I took  a  specimen  of  venous  blood  in  accordance with  normal  medical procedures from the defendant.

[3]      I then issued a minute on 12 June 2013 indicating to the parties that I was minded to dismiss the appeal, but gave the appellant five working days to indicate whether or not he wished to cross-examine the doctor.  He has now advised that he does not wish to cross-examine the doctor, but maintains that:

...the only available option to the Court is to either simply quash the conviction,  or  to  exercise  the  discretion  available  under  s 131  of  the Summary Proceedings Act 1957 to remit the case to the District Court.

[4]      Counsel goes on to say that for the reasons set out in his earlier submissions, that the conviction should be quashed and the High Court should not exercise its discretion to remit the matter back to the District Court for rehearing.

[5]      In his submissions dated 23 May 2013, Mr Simperingham refers to s 131 of the Summary Proceedings Act 1957. That section states:

On any appeal the High Court may remit the determination appealed against to the District Court with a direction that the information or complaint to which it relates be reheard.

[6]      Mr  Simperingham  noted  that  the  Court  of  Appeal  in  Hastie  v  Police[2]

confirmed that the discretion under s 131 is unfettered and broad.

[2] Hastie v Police [2012] NZCA 21.

[7]      He submitted further:

2.2The Court of Appeal noted that the exercise of the discretion in s 131 must be rationale [sic] and turn on relevant factors.  The Court said that the exercise of the discretion will depend on the facts in each individual case.

2.3In  the  instant  case  the  Prosecution  failed  to  prove  an  essential element of the alleged offence. This was no fault of the appellant.

2.4The appellant has had to endure uncertainty and expense as a consequence of the District Court and High Court proceedings.

[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.

[9]      As to the overall merits, the appeal proceeds on the assumption that the evidence was not sufficient to convict.   The doctor gave evidence that he took a blood specimen.  For completeness and given the need for surety, I sought evidence from the doctor as to what he meant by “blood specimen”.   He has now clearly clarified that he took a venous blood specimen.   On that basis, I see no reason to allow the appeal.

[10]     I take this opportunity to remind the parties of the salutary warning of the Supreme Court insofar as it concerns alcohol offending under the Land Transport Act, in Aylwin v Police:[3]

[17]      Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable.  The great majority of drivers comply with their obligations in this respect.  A small minority do not.   Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences.   The Courts must give full effect to that clear Parliamentary indication.

[3] Aylwin v Police [2008] NZSC 133.

[11]     The appeal is accordingly dismissed.

Solicitors:

A M Simperingham, Timaru

Gresson Dorman, Timaru