Ludemann v The Queen - [2013] NZCA 531

IN THE COURT OF APPEAL OF NEW ZEALAND

CA600/2013
[2013] NZCA 531

BETWEEN	MURRAY LUDEMANN Applicant
AND	THE QUEEN Respondent

Hearing:	22 October 2013
Court:	Miller, Venning and Andrews JJ
Counsel:	S C Blake for Appellant J M Jelas for Respondent
Judgment:	1 November 2013 at 2.00 pm

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Mr Ludemann seeks special leave[1] to appeal his conviction, entered in the District Court[2] and upheld on appeal in the High Court,[3] for driving with excess blood alcohol.[4] He required leave to bring the application out of time.[5]
[1]Summary Proceedings Act 1957, s 144(3).
[2]Police v Ludemann DC Timaru CRI-2012-076-205, 22 November 2012.
[3]Ludemann v Police [2013] NZHC 1544 [Dismissal decision].
[4]Land Transport Act 1998, s 56(2).
[5]Whata J dismissed the appeal on 28 June 2013: the application for leave to appeal to this Court was filed on 25 July, six days out of time. Whata J dismissed it on 15 August 2013: Ludemann v Police [2013] NZHC 2062 [Leave decision].
The conviction was founded upon a blood sample taken from Mr Ludemann by a registered medical practitioner, on the insistence of the police, after he failed to provide an evidential breath specimen. The sample revealed a blood alcohol level of 130 milligrams of alcohol per 100 millilitres of blood. Mr Ludemann complains that the evidence at the summary hearing failed to prove that the sample was venous blood, as the Land Transport Act 1998 requires, and that rather than allow the appeal on this ground, Whata J adjourned so the police might call further evidence from the doctor,[6] who duly confirmed that the sample was indeed venous blood.
[6]Ludemann v Police [2013] NZHC 1238 at [27] [Adjournment decision].
The general question is whether the High Court Judge was right to allow the police to remedy the evidential defect on appeal. Mr Ludemann would have this Court answer the following questions of law:
1Did the learned High Court Judge have the jurisdiction pursuant to section 119(3) of the Summary Proceedings Act 1957, to call for further evidence which could in the circumstances have reasonably been adduced by the prosecution at the District Court hearing;
2Did the learned High Court Judge have the jurisdiction pursuant to section 119(2) of the Summary Proceedings Act 1957, to call for further evidence in a matter of law, especially when the circumstances could not be truly categorised as ‘special’, nor was it a matter where the adequacy of the transcript evidence from the District Court was incomplete in any material way;
3Did the addendum in Aylwin v Police [2008] NZSC 133 that ‘drink driving offending will not escape reproach on the basis of a technical defence only’ justify the High Court adjourning the appeal and granting leave for the Crown to file new evidence, by way of affidavit, to cure an accepted evidential deficiency that would otherwise be considered fatal.
In order to…

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.

Continue reading Ludemann v The Queen

Details

AGLC: Ludemann v The Queen [2013] NZCA 531
Case: [2013] NZCA 531
Decision Date: 1 November 2013 at 2.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Murray Ludemann sought special leave to appeal his conviction for driving with excess blood alcohol, which had been upheld by the High Court. The conviction was based on a blood sample taken by a registered medical practitioner after Ludemann failed to provide a breath specimen. The sample revealed a blood alcohol level of 130 milligrams of alcohol per 100 millilitres of blood. Ludemann argued that the evidence did not prove that the sample was venous blood, as required by the Land Transport Act 1998, and that the High Court Judge erred in allowing the police to remedy the evidential defect on appeal. The main legal issues were whether the High Court Judge had the jurisdiction to call for further evidence and whether the Judge was justified in adjourning the appeal to allow the Crown to file new evidence. The Court found that the High Court had jurisdiction to hear further evidence when a question of fact arose and that the Judge's exercise of discretion was not a question of law of general or public importance.

The Court of Appeal held that the High Court Judge had the jurisdiction to call for further evidence under section 119(3) of the Summary Proceedings Act 1957, as the evidence could not reasonably have been adduced at the District Court hearing. The Court also found that the Judge had the jurisdiction to rehear part of Dr Smith's evidence under section 119(2) of the Act. The Court rejected the argument that the High Court lacked jurisdiction to hear further evidence because the appeal was brought on a point of law. The Court held that the power to consider evidential questions was not confined to cases where the appellant appeals on a question of fact, but it is enough that a question of fact arises, as it did here. The Court further held that even if the High Court Judge erred in the exercise of his discretion, the end result would inevitably be a rehearing in the District Court at which Ludemann would be convicted. The policy of the Land Transport Act is that offenders should not escape through technical and unmeritorious defences.

The Court dismissed the application for leave to appeal. The final orders of the Court were that the application for leave to appeal is dismissed.

Orders