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…

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 1544
Decision Date: 28 June 2013

CaseChat Overview and Summary

In the case of Ludemann v Police, Murray Ludemann, the appellant, challenged his conviction for driving with excess blood alcohol, arguing that there was no direct evidence that a venous blood sample was taken as required by the Land Transport Act 1998. The court was tasked with deciding whether the conviction should be quashed or if the matter should be remitted to the District Court for rehearing under section 131 of the Summary Proceedings Act 1957. The key legal issue was whether the failure to provide direct evidence of a venous blood sample taken was a sufficient ground to overturn the conviction.

The court considered the arguments put forth by the appellant's counsel, A M Simperingham, who referred to the Court of Appeal's decision in Hastie v Police, which highlighted that the discretion under section 131 is broad and unfettered. Counsel argued that the appellant had endured uncertainty and expense due to the proceedings and that the prosecution failed to prove an essential element of the offence. However, the court did not find these reasons compelling. The court acknowledged its broad discretion but opted to call for salient evidence to ensure clarity. The doctor who took the blood sample provided an affidavit confirming that a venous blood specimen was taken, aligning with the requirements of the Land Transport Act. Consequently, the court dismissed the appeal, emphasizing the importance of adhering to legislative intent regarding drink driving offences.

The court's reasoning was grounded in the need to ensure that drink driving offences are not evaded through technical defences. It referenced the Supreme Court's warning in Aylwin v Police, which underscored the dangers and illegality of driving under the influence of alcohol and the necessity for courts to enforce legislative intent. The court concluded that the evidence provided by the doctor was sufficient to uphold the conviction. The appeal was dismissed, and no further action was taken to remit the case to the District Court for rehearing.

Orders