Ludemann v Police
[2013] NZHC 1238
•23 May 2013
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI 2012-476-000014 [2013] NZHC 1238
MURRAY LUDEMANN Appellant
v
POLICE Respondent
Hearing: 23 May 2013 Appearances:
A M Simperingham for Appellant
A R McRae for RespondentJudgment:
23 May 2013
JUDGMENT OF WHATA J
[1] Mr Ludemann was convicted by Judge Maze in the Timaru District Court on one charge of driving with excess blood alcohol in contravention of s 56(2) of the Land Transport Act 1988.
[2] Mr Ludemann now appeals on the basis that the District Court Judge erred in fact and law by accepting that the evidence of Dr Ian Smith was sufficient in relation to the issue of whether the sample analysed was venous blood. Dr Smith did not in fact state that the blood sample was venous blood. He simply said that he took a blood specimen following the normal procedures.
Background
[3] The appellant had been driving from Ashburton when he was stopped and breath tested. Following that test he was then required to attend the Timaru Police
LUDEMANN v POLICE [2013] NZHC 1238 [23 May 2013]
Station for an evidential breath test/blood test or both. He was unable to undergo an evidential breath test, so was required to undergo a blood test. The blood test was undertaken by Dr Smith who said he took a blood specimen in accordance with normal medical procedures. Evidence was then presented to the Court that the blood sample taken contained a portion of 130 milligrams of alcohol per 100 millilitres of blood. That evidence came in the form of Exhibit 7, namely the ESR Analyst Certificate under s 75(5) of the Land Transport Act 1988.
[4] The specific issue of whether or not an appropriate blood sample was taken was considered by the District Court Judge. The relevant parts of her judgment are replicated here for ease of reference.
[16] The third argument relates to the medical evidence and it falls in two parts. The first is that the doctor is required to say that he took venous blood and simply saying that he took a blood specimen in accordance with usual medical practice would not be sufficient. As to this argument s 2 defines a blood specimen as, “specimen of venous blood taken in accordance with normal medical procedures.” The doctor’s words were, that he “drew blood”. He referred to “blood” on several occasions but at no time did he say “venous blood”. However, the taking of the blood sample and what is required to be done is governed by s 72. Mr Cooper has referred me to s 75 and what must be contained in certificates. Interestingly there are some apparent differences between s 72 and s 75 but for the present purposes it should be noted that there was no attempt to produce a certificate so the contents of s 75 do not have any particular relevance. It is therefore s 72 with which I am concerned. Section 64(2) provides specifically:
It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.
The frame
[5] The relevant provisions of the Land Transport Act are s 2:
blood specimen means a specimen of venous blood taken in accordance with normal medical procedures:
blood test means the analysis of a blood specimen:
[6] Section 56(2) provides:
56 Contravention of specified breath or blood-alcohol limit
....
(2) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds
80 milligrams of alcohol per 100 millilitres of blood.
[7] Section 72 provides:
72 Who must give blood specimen at places other than hospital or surgery
(1) A person must permit a… medical practitioner 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
...
(1C) An enforcement officer may exercise the powers in subsections (1) and (2) in addition to any breath screening tests under section 68 or evidential breath tests under section 69.
(2) A person who has been required by an enforcement officer under subsection (1) to permit the taking of a blood specimen must, without delay after being requested to do so by a… medical practitioner or medical officer, permit that practitioner or medical officer to take a blood specimen from that person.
(3) If it is not practicable for a blood specimen to be taken from a person by a… medical 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… medical 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 collecting procedure,-
(a) The person from whom the specimen was taken must permit a… medical practitioner or medical officer to take a further blood specimen immediately after being requested to do so by the… medical 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.
(5) An enforcement officer may arrest a person without warrant if the person-
(a) Fails or refuses to accompany an enforcement officer to a place when required to do so under this section; or
(b) Having accompanied an enforcement officer to a place under this section, fails or refuses to remain at that place until requested by a… medical practitioner or medical officer to permit a blood specimen to be taken under this section.
[8] Section 75 then states:
75 Certificates in blood-alcohol proceedings
(1) Except as provided in section 79, production of a certificate to which this section applies in proceedings for an offence against this Part is sufficient evidence, in the absence of proof to the contrary, of such of the matters as are stated in the certificate and of the sufficiency of the authority and qualifications of the person by whom the certificate is made and, in the case of a certificate referred to in subsection (5), of the person who carried out the analysis.
(2) This section applies to a certificate purporting to be signed by a medical practitioner or medical officer and certifying that-
(a) a specimen of venous blood was taken by the practitioner or medical officer in accordance with the blood specimen collecting procedure specified in the certificate from a person named in the certificate; and
(b) for the purposes of the specified blood specimen collecting procedure,-
(i) the specimen was sufficient; or
(ii) the specimen was insufficient and the practitioner or medical officer took a further specimen; and
(c) in accordance with the specified blood specimen collecting procedure, the practitioner or medical officer kept the specimen in the appropriate container or containers (as applicable); and
(d) each such container was received by the practitioner or medical officer in a sealed blood specimen collecting kit; and
(e) the practitioner or medical officer handed each such container to an enforcement officer named in the certificate.
...
(5) This section also applies to a certificate purporting to be signed by an approved analyst and certifying that-
(a) A blood specimen in a sealed container was, on a specified date, delivered to an approved analyst (or a person employed by an approved laboratory and approved for the purpose by an approved analyst) for analysis, and was delivered by registered post or personal delivery or delivery by courier; and
(b) On analysis of the blood specimen by an analyst specified in the certificate, the presence or a specified proportion of alcohol or of a drug, or both (as the case may be), was found in the specimen; and
(c) No such deterioration or congealing was found as would prevent a proper analysis.
Issues for the Court
[9] Helpfully, Mr Simperingham outlined the issues for me to determine, namely:
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)
Appellant’s submissions
[10] In essence the appellant submits that proving that the blood alcohol content was present in venous blood is an essential element of the offence and that without it the prosecution must fail. Mr Simperingham relies on two authorities, namely R v Faasipa and Clayton v Police.1 In Faasipa the Court of Appeal found that there had not been reasonable compliance in terms of the then equivalent to s 64(2) unless there is a blood specimen (drawn from a vein). The statutory regime does not come
into play in that judgment because a sample of arterial blood was not a blood specimen for those purposes. Similarly in Clayton v Police, Fogarty J allowed an
appeal against conviction of driving with excess blood alcohol on the basis that
1 R v Faasipa (1999) 2 HRNZ 50 (CA); Clayton v Police HC Christchurch CRI 2004-409-000047,
12 May 2004.
unless there is a blood specimen the statutory regime does not come into play and that it is necessary for there to be proof that a blood specimen is of venous blood.
Arguments for the respondent
[11] The respondent submits that there has been reasonable compliance in terms of s 64(2). That section states:
64 Defences
...
(2) It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.
[12] The respondent therefore says that in assessing reasonable compliance the following matters are relevant:
(a) An assessment as to the extent of non-compliance is necessary. The greater the non-compliance the less appropriate it will be to apply the section.2
(b)Consideration as to whether there is a real possibility that the defendant has been prejudiced by the non-compliance;
(c) Consideration as to whether there is a reasonable doubt that an ingredient of the charge has been proved. If there is, it will probably be inappropriate to apply the section for the purpose of removing doubt.3
[13] It is then submitted that Dr Smith conducted the normal procedures and filled in the necessary documentation. It is said that if there is any criticism it is simply that he omitted in evidence to indicate that he took “venous” blood. The appellant has not been prejudiced, it is said, by this omission. It does not lead to questions
over whether there is sufficiency of the proof of charge.
2 Aualiitia v Ministry of Transport [1983] NZLR 727 (CA).
3 Coltman v Ministry of Transport [1979] 1 NZLR 330 (CA).
[14] Counsel then distinguishes Faasipa and Clayton. It is said that in Faasipa arterial blood had in fact been taken. So there was simply no basis upon which it could be said that a blood specimen had been taken for the purposes of the Act. By contrast, in the present case it is said Dr Smith clearly indicated normal procedures were followed.
[15] Counsel also referred to the fact that in Clayton there was no medical evidence upon which the Court could rely upon at all.
Assessment
[16] In this case, “a blood specimen” is a minimum requirement for the purposes of culpability under s 56(2). In short, without a blood specimen, there is no capacity to assess whether or not a person is driving with excess blood alcohol.
[17] Section 64(2) precludes a defence based on non-compliance with ss 68 to
75A and 77, all dealing with the process of testing whether a person has complied with relevant breath and/or alcohol limits. The short point of those provisions is that procedural irregularities or non-compliances will not by themselves provide a proper basis for a defence, provided that there is otherwise reasonable compliance with those procedures.
[18] It is notable that s 64(2) as it currently reads is different from the version that applied in the context of R v Faasipa. The present version includes the words “or has not been complied with at all”. That addition emphasises the breadth of s 64(2) and that procedural irregularity will not be, by itself, a basis for defending a charge of excess breath or blood alcohol.
[19] But in my view there is a distinct difference between procedural irregularity or non-compliance and the failure to satisfy a statutory criteria for offending. In the present case there is the alleged failure to produce a blood specimen for the purposes of the Act. That is not a procedural irregularity. Rather, that is the failure to produce evidence of an essential element of the offending, namely, a blood specimen signifying excess blood alcohol. In those circumstances, I do not consider that the
saving provision of s 64(2) applies as the substantive question remains, namely whether or not there is in fact evidence of a non-compliance with s 56.
[20] The Judge in the District Court felt able to infer in this case that the evidence given by the doctor that he had followed normal procedure was sufficient for the purposes of drawing the inference that a proper blood specimen, that is drawn from a vein, was taken. I think in fact the Judge underplayed the evidence that was available to her. At page 11 of the transcript Dr Smith gave the following answer:
The next step after that is to actually take the blood specimen, open the sealed container, plastic bag, proceed to draw the blood, specimen of blood, divide it into two separate containers, screw the top on tightly, seal them with a t-shaped adhesive seal, fill in the patient’s name on the blood specimen medical certificate, affix them to the containers, initial across the joins in the t-shape, seal these then completely encase them in sellotape, place them in a polystyrene container which goes into a cardboard box and then handed to Constable Grant along with the completed paperwork.
[21] Later in answering questions he also states that:
This is the blood specimen form, PRL 535.
[22] He then later says in response to the following question:
Q. ... just and how was the blood specimen taken doctor?
A. A blood specimen taken in accordance with normal medical procedure ....
[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.
[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.
[25] But I think when dealing with proof of an essential element I must take a precautionary approach. I am therefore prepared to accept the argument of Mr Simperingham that there was an error at first instance. There are, therefore, two clear options available to me. I could allow the appeal and refer the matter back for reconsideration, or I can call for evidence directly on point and adjourn this appeal so that I can consider that evidence before reaching a final view. I prefer the latter course as this avoids the wasted cost of a full retrial when the key point relates to only what the doctor meant when he used the term “blood specimen”.
[26] I note for completeness that I do not think simply allowing the appeal is a legitimate option in this case. The evidence was that Mr Ludemann exceeded the blood alcohol limit. While his appeal has merit in that there is some ambiguity as to what the doctor meant by “blood specimen” the policy of the Act is such that the merits should be revisited.
[27] On that basis I propose to adjourn the appeal and grant leave to the Crown to 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. [Counsel for the respondent advise that this can be done within a week.] Orders accordingly.
Solicitors:
A M Simperingham, Timaru
Gresson Dorman, Timaru
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