Ludemann v Police - [2013] NZHC 1238

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 Respondent

Judgment:

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…

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 1238
Decision Date: 23 May 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Murray Ludemann appealed against his conviction in the Timaru District Court for driving with excess blood alcohol, in contravention of section 56(2) of the Land Transport Act 1998. The central issue in this appeal was whether the District Court Judge had erred in accepting the evidence of Dr Ian Smith regarding the blood sample taken from the appellant. Specifically, Dr Smith did not explicitly state that the blood sample was venous blood, which is a requirement under the Act.

The legal issue before the court was whether the evidence presented by Dr Smith, who stated that he took a blood specimen in accordance with normal medical procedures, was sufficient to prove that a blood specimen, as defined under section 2 of the Act, was taken. Section 2 defines a blood specimen as a specimen of venous blood taken in accordance with normal medical procedures. The court had to determine if Dr Smith's evidence met the statutory criteria and whether this non-compliance with the specific requirement of taking venous blood constituted a fatal defect in the prosecution's case.

The court held that while procedural irregularities or non-compliances generally do not provide a basis for a defence under section 64(2) of the Act, the failure to take a blood specimen, as required by section 56(2), was not merely a procedural irregularity but rather a failure to produce evidence of an essential element of the offence. The court found that the District Court Judge had erred in accepting Dr Smith's evidence without requiring clarification on whether the blood specimen was indeed venous blood. The court acknowledged that the appellant's argument had merit, and there was ambiguity regarding what Dr Smith meant by "blood specimen." To address this, the court decided to adjourn the appeal and allow the Crown to provide further evidence on whether Dr Smith took a blood specimen from a vein.

The court's decision reflects a cautious approach to interpreting statutory requirements and the necessity of clear evidence to establish essential elements of an offence. The appeal was adjourned to allow for the presentation of further evidence on the specific nature of the blood specimen taken.

Orders