Mabee v Police
[2017] NZHC 2015
•22 August 2017
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2017-425-000020 [2017] NZHC 2015
BETWEEN VAUGHAN GROSVENOR MABEE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 15 August 2017 Appearances:
A S P Tobeck for Appellant
R W Donnelly for RespondentJudgment:
22 August 2017
JUDGMENT OF DUNNINGHAM J
[1] On 13 March 2017, Mr Mabee was convicted on a charge of driving with excess blood alcohol, but acquitted on a charge of careless use of a motor vehicle.1
He appeals his conviction claiming:
(a) he was arbitrarily detained twice during his interactions with police, contrary to s 22 of the New Zealand of Bill of Rights Act 1990 (NZBORA), rendering the subsequently obtained evidence, including the analyst’s certificate, inadmissible; and
(b)there were breaches of the requirements of ss 73 and 74 of the Land Transport Act 1998 (the Act), which rendered the resulting evidence inadmissible and those defects could not be cured in reliance on s 64(2) of the Act.
[2] The respondent rejects these allegations but says, even if established:
1 New Zealand Police v Mabee [2017] NZDC 4910.
MABEE v NEW ZEALAND POLICE [2017] NZHC 2015 [22 August 2017]
(a) in relation to the alleged breaches of the Act, the police could rely on the defence that there was “reasonable compliance” with the Act’s provisions under s 64(2); and
(b)if there had been a breach of NZBORA, it was not a significant or intentional breach, and the evidence subsequently obtained would therefore be admitted under s 30 of the Evidence Act 2006.
The facts
[3] On the evening of 13 November 2015, Mr Mabee was involved in a motor accident. However, he left the scene and returned to his employer’s home which is where he had been earlier that evening. Police found the crashed car, made enquiries and located Mr Mabee at his employer’s house where he was in a sleepout adjacent to the carport. He was asked to come outside, which he did. After discussing the crash, Constable Hargreaves advised him of his rights and asked him to undergo a breath screening test. That resulted in a reading which indicated Mr Mabee was over the legal limit. He was again advised of his rights and asked to accompany the police for an evidential breath test or blood test.
[4] The police originally intended to take Mr Mabee to the police station but decided to divert to the hospital to have the appellant examined when he said he was a bit delusional and must have taken a knock to the head. On arrival at the hospital, he was examined. He was advised that he would be required to permit a blood specimen to be taken for evidential purposes. The specimen was taken. On analysis it returned a reading of 137 milligrams of alcohol per 100 millilitres of blood.
District Court decision
[5] In the District Court, Mr Mabee raised substantially the same arguments as are being run on appeal and these were all considered, but rejected, by the Judge.
[6] The Judge found that there was no arbitrary detention of the appellant when police came to talk to him at the property. They were primarily there to check on his welfare as blood had been found at the scene of the crash. The breath test was
properly administered and, as it was administered at the place where the request was made, there was no arbitrary detention.
[7] The Judge also found that there was no arbitrary detention at the hospital. He considered that the procedure of taking the blood sample there was ordinary. The appellant at no point took issue with the presence of the police officers, who were merely observing what was occurring. There were no breaches of privacy. The Judge noted that under s 69(5)(b) of the Act, the appellant had to remain at the hospital until the blood test had been taken. As there was a statutory provision requiring him to be there, any detention was not arbitrary.
[8] The Judge went on to note that, even if the evidence had been improperly obtained under s 30 Evidence Act 2006, he would have admitted the evidence under the balancing test. The charge was serious and the blood test was the only evidence that could prove the charge.
[9] He found that the evidence showed that the appellant had been driving the car at the alleged time and that he did so after consuming alcohol. The presumption in s 77(2) of the Act means that the amount of alcohol recorded in the blood test was the level in his blood at the time of driving.
[10] The Judge considered the appellant’s argument that the proper procedures in s 73 were not followed because the police officer, rather than the doctor, requested the blood specimen from Mr Mabee, resulting in the evidence being inadmissible. However, the Court accepted the evidence of the doctor, as recorded on the certificate he produced in evidence, that he did tell Mr Mabee that he required a blood specimen. Even if this were not the case, it would be a situation which is covered by the reasonable compliance provision in s 64(2).
[11] In respect of the alleged non-compliance with s 74 as to delivery of the blood specimen to an approved analyst, the Judge held that the procedures in s 74 had been followed. The section was broadly written and it covered the situation where the doctor gave the blood to the police officer to deliver to the laboratory.
[12] The Judge was satisfied beyond reasonable doubt that the charge of driving with excess blood alcohol was established. However, given the lack of evidence, he did not find that the police had made out the charge of careless driving.
Principles on appeal
[13] Section 232 Criminal Procedure Act 2011 provides that the Court may only allow this appeal if satisfied that “a miscarriage of justice has occurred”. A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has
resulted in an unfair trial.2
[14] Section 232 makes clear that not every error or irregularity causes a miscarriage of justice. Instead there must be a “real risk” that the outcome was affected. R v Sungsuwan defines a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.3
[15] The appeal proceeds by way of rehearing, and the court on appeal must examine the Judge’s reasoning carefully and come to its own decision on the facts.4
However, it is generally only in exceptional circumstances that a court on appeal will
interfere with the trial Judge’s findings of fact.5
Grounds of appeal
[16] The appellant makes the following claims on appeal which he says render the resulting evidence as to his blood alcohol level inadmissible:
(a) there was evidence that he was taken from the carport to the police car, to administer the initial evidential breath test, and this comprised
an arbitrary detention;
2 Section 232(4).
3 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
4 R v Slavich [2009] NZCA 188.
5 Rae v Police HC Hamilton CRI-2006-419-162 at [38].
(b)the medical practitioner failed to tell the appellant the blood specimen was required to be taken under s 73 for evidential purposes. Instead this was done by the police officer. This was in breach of the requirements of s 73;
(c) the medical practitioner failed to “cause [the specimen] to be delivered” in accordance with s 74(4) of the Act. Instead he merely handed it to the police officer which did not meet the requirements of s 74(4);
(d)section 73 envisages a separate procedure for taking of blood specimens in hospital which does not permit the police to be present. Consequently, the police presence at the hospital rendered the taking of the appellant’s blood unlawful; and
(e) as the police were not entitled to remain once they had taken Mr Mabee to hospital, the time he spent in hospital was a further arbitrary detention.
Analysis
Did the police arbitrarily detain the appellant at the time of administering the breath screening test?
[17] When police arrived at the house of Mr Mabee’s employer, Mr Darby, Mr Mabee was sleeping in a separate sleep-out just to one side of a carport. Mr Mabee was awoken and he came out to speak to police in the carport about the crash. When he acknowledged that he had been drinking, he was cautioned and required to undergo a breath screening test.
[18] Mr Tobeck asserts that Mr Mabee was then taken from the carpark to a police patrol vehicle for a breath screening test. In asserting this, he relies on the evidence of Constable Hargreaves who said in cross-examination:
Q. Could it be possible that the breath screening test you conducted with Mr Mabee was done by the patrol car?
A. No, I remember doing it by the room.
Q. So would you say that anybody that said it was done by the – that’s
the breath screening test – done by the patrol car was lying? A. To the best of my recollection, I did it by the room.
Q. But you might have that wrong.
A. It’s possible, it was over a year ago.
[19] He also relies on the evidence of the owner of the property, Mr Darby who recalled hearing the police when they were endeavouring to administer the breath test to Mr Mabee. The relevant passage in cross-examination was as follows:
Q. That happened when Vaughan was at the patrol car?
A. I don’t have any precise recollections of when or who would have breathalysed him and it appeared it was – but there was a second patrol car parked and that’s where a lot of the action is – because he departed from there so I assumed that’s where he was breathalysed. But I can’t be certain that it was – it wasn’t in front of me. I did not have visuals on where it was so I can’t determine that accurately.
[20] The appellant argues that, given the police constable’s concession that it was possible Mr Mabee was moved to the police car to administer the breath screening test, and Mr Darby’s evidence supported this, Mr Mabee had been required to accompany them to a place for the purpose of a breath screening test and this comprised an arbitrary detention contrary to s 22 of NZBORA.6
[21] The respondent acknowledges that a suspect would be unlawfully detained if he or she was required to accompany a police officer without a specific statutory power to do so. For example, in Dryden v Police, Collins J held that the police had unlawfully detained a suspect when they required him to get out of his vehicle and
go to the police car for the purpose of obtaining a breath screening test.7 However,
key to this finding was the level of the compulsion imposed on Mr Dryden to move. The respondent submits that in this case there was no evidence of Mr Mabee being
required to move, and therefore no unlawful detainment.
6 Relying on Excell v Police HC Tauranga AP75/01, 29 April 2002.
7 Dryden v Police [2016] NZHC 92.
[22] Having reviewed the evidence I accept there is no credible narrative to suggest that Mr Mabee was moved from the carport to the police car for the purpose of administering the breath screening test. It is clear Mr Darby did not see where the test was administered and Constable Hargreaves’ evidence was that he recollected it was in the carport. In any event, there is no evidence that Mr Mabee faced a level of compulsion if, in fact, he did move from the carport to the nearby police car.
[23] Furthermore, even if there was credible evidence that this occurred, for the same reasons as Collins J in Dryden held that the District Court was right in its assessment of s 30(3) factors under the Evidence Act, and that the impropriety did not warrant exclusion of the evidence, I, too, would have ruled it admissible on that basis.
[24] Accordingly, there was no error in the District Court finding that the breath test was properly administered where the request was made, and there was no arbitrary detention.
Did the medical practitioner fail to tell the appellant that a blood specimen was required?
[25] The next ground relies on the distinction between the procedure for taking a blood specimen from a suspect under s 72 of the Act and that under s 73 of the Act.
[26] The relevant parts of ss 72 and 73 are set out below:
72Who 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
(b) the person has undergone an evidential breath test under section 69(4), and—
(i) it appears to the officer that the test is positive; and
(ii) within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), the person advises the officer that the person wishes to undergo a blood test; or
...
(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.
…
(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.
73 Who must give blood specimen in hospital or surgery
(1) A person who is under examination, care, or treatment in a hospital or doctor’s surgery must permit a blood specimen to be taken from the person by—
(a) the medical practitioner who is in immediate charge of the examination, care, or treatment of the person; or
(b) another medical practitioner or a medical officer.
(2) If a person under examination, care, or treatment in a hospital or doctor’s surgery is unconscious, a blood specimen may be taken from the person under this section by—
(a) the medical practitioner who is in immediate charge of the examination, care, or treatment of the person; or
(b) another medical practitioner or a medical officer.
(3) The medical practitioner who is in immediate charge of the examination, care, or treatment of the person in a hospital or doctor’s surgery—
(a) may take a blood specimen or cause a blood specimen to be taken by another medical practitioner or a medical officer; and
(b) must either take a blood specimen or cause a blood specimen to be taken by another medical practitioner or a medical officer, if an enforcement officer requests him or her to do so,— whether or not the person has consented to the taking of the specimen and whether or not the person is capable of giving consent.
…
(5)Despite subsection (3), a blood specimen may be taken under any provision of this section only if the medical practitioner—
(a) has reasonable grounds to suspect that the person is in the hospital or doctor’s surgery as a result of—
(i) an accident or incident involving a motor vehicle:
(ii) an injury or a medical condition arising subsequent to an accident or incident involving a motor vehicle; and
(b)has examined the person and is satisfied that the taking of the blood specimen would not be prejudicial to the person’s proper care or treatment; and
(c) tells the person (unless the person is unconscious) that the blood specimen is being or was taken under this section for evidential
purposes.
…
[27] The appellant argues that the District Court Judge erred in his analysis of these sections. He says that the blood sample taken from Mr Mabee was purportedly taken pursuant to s 73 of the Act, which sets out the procedure to be followed when taking a blood specimen for evidential purposes from a patient in hospital. However, in fact, the procedure under s 72 was used. The appellant argues that ss 72 and 73 are mutually exclusive procedures, and this is deliberately so because, under s 73, the suspect is receiving medical treatment and in order to ensure issues such as patient confidentiality are protected, the conduct of the collection of evidence must be in the hands of the medical practitioner and not the police, as is the case under s 72.
[28] In this case there were errors because parts of the s 72 procedure were used in hospital when s 73 should have been complied with. In particular, Mr Tobeck says that under s 72(1) it is the police officer who requires a blood specimen from the suspect. However, under s 73, it is the medical practitioner who must ensure that the suspect knows the purpose for which the blood specimen is taken (s 73(5)(c)). In this case, the appellant says the police officer, rather than the doctor, told Mr Mabee that he required the blood specimen for evidential purposes. The doctor merely
checked that Mr Mabee consented to the giving of the blood specimen. Because there is no power given to a police officer to request a blood specimen from a suspect while they are a patient in hospital, the appellant argues that this was “an abuse of the police officer’s powers”, rendering the subsequently obtained certificate inadmissible.
[29] The relevant evidence relied on by the appellant comes from
Constable Hargreaves who said the following on this issue:
Q. And during that period you requested a blood sample from
Mr Mabee?
A. After he was assessed by the doctor, yes.
Q. And you told him that was for evidential purposes? A. Yes.
Q. You said in examination-in-chief that then the doctor requested a blood sample. Do you recall saying that?
A. Aah, yes. Either the doctor requested the nurse or requested him, I
can’t remember which.
Q. Would it be fair to say that he only asked if Mr Mabee consented to the giving of blood sample?
A. It’s possible. I don’t recall exactly what he said. You would have to
ask him.
[30] Dr Wills, who attended Mr Mabee that night, produced the medical certificate he filled out on the night. In it he certified that “before the blood specimen was taken, the person … was told it was being taken under s 73 of the LTA for evidential purposes”. The doctor acknowledged that his recall on the night was limited to what he had recorded in the medical record.
[31] The respondent points out that while Dr Wills could not recall exactly what he said on the night in question, his certificate was produced in evidence and it confirmed he had told the patient the blood specimen was being taken for evidential purposes. As a consequence, the s 75 presumptions as to the validity of the content of the certificate applies and it is for the appellant to disprove that.
[32] The relevant parts of s 75 provide:
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.
…
(3) This section also applies to a certificate purporting to be signed by a medical practitioner and certifying that—
(a) the person named in the certificate was in a hospital or
doctor’s surgery; and
(b)the practitioner, being a medical practitioner in immediate charge of the examination, care, or treatment of that person, took a blood specimen or caused a blood specimen to be taken by any other medical practitioner or any medical officer from the person under section 73; and
(c) the practitioner has reasonable grounds to suspect that the person is in the hospital or doctor’s surgery as a result of—
(i) an accident or incident involving a motor vehicle: (ii) an injury or a medical condition arising
subsequent to an accident or incident involving a
motor vehicle; and
(d)before taking the blood specimen or causing the blood specimen to be taken from the person, the practitioner examined the person and was satisfied that the taking of the blood specimen would not be prejudicial to the person’s proper care or treatment; and
(e) the practitioner either—
(i) told the person that the blood specimen was being or had been taken under section 73 for evidential purposes; or
(ii) if the person was unconscious when the specimen was taken, notified the person in writing as soon as practicable that the blood specimen was taken under section 73 for evidential purposes.
(4)This section also applies to a certificate purporting to be signed by a medical practitioner or medical officer and certifying—
(a) all the matters referred to in paragraphs (a) to (d) of subsection (2); and
(b)that the practitioner or medical officer sent or caused to be sent by registered post, personal delivery, or delivery by courier, on a specified date, the specimen to a specified approved laboratory in accordance with section 74; and
(c) that, if at the time the blood specimen was taken more than 1 approved laboratory exists, the practitioner or medical officer has notified the Commissioner in writing of the approved laboratory to which the specimen was delivered or posted.
(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.
(6) This section also applies to a certificate purporting to be signed by an approved analyst and certifying that, following an application under section 74, a blood specimen was posted to a specified private analyst by registered post, personal delivery, or delivery by courier, and addressed to the private analyst at the address given in the application.
…
[33] Section 79 provides various routes by which a certificate given under s 75 may be rendered inadmissible in proceedings. The police would then have had the onus of establishing that all steps in the s 73 procedure had been complied with.8
However, s 79 was not invoked in this case so the onus was on Mr Mabee to prove
that any matter certified by the doctor in the certificate was incorrect. In this case,
8 New Zealand Police v McGrath [2013] NZCA 3 at [17].
whether or not Constable Hargreaves told Mr Mabee that he required a blood specimen for evidential purposes, the certificate confirmed that Dr Wills had also done this and that was sufficient evidence that the s 73(5)(a) requirement was complied with. There was no cogent evidence to displace this. Constable Hargreaves’ evidence does not go that far, as he simply could not recall what the doctor said to Mr Mabee.
[34] Thus, in my assessment, there is no evidence to displace the evidence in the certificate that the doctor complied with the requirements of s 73. I do not consider the fact that Constable Hargreaves also addressed these issues with Mr Mabee detracts from that in any way. There is no reason to read s 73 as precluding this advice being given by the constable as well as the doctor, as this did not disadvantage Mr Mabee in any way. For these reasons, this ground of appeal fails.
[35] I accept this ground of appeal overlaps with the more general point raised about the continued presence of the police at the hospital, but that is discussed more fully under the fourth point on appeal below.
Did the medical practitioner fail to “cause [the specimen] to be delivered” in
accordance with s 74(4)?
[36] Section 74 sets out the procedure for dealing with blood specimens taken under ss 72 and 73. It provides relevantly:
74 Procedure for dealing with blood specimens
…
(3) In the case of a blood specimen taken under s 72, an enforcement officer must, within seven days after the date on which the specimen was taken, deliver or cause to be delivered (whether by courier or otherwise), or post by registered post or cause to be posted by registered post, the blood specimen to an approved laboratory for its analysis and custody in accordance with the relevant blood specimen collecting procedure.
(4) In the case of a blood specimen taken under section 73, the medical practitioner or medical officer by whom the specimen was taken must,—
(a) within 7 days after the date on which the specimen was taken, deliver or cause to be delivered (whether by courier or
otherwise), or post or cause to be posted by registered post, the blood specimen to an approved laboratory for its analysis and custody in accordance with the relevant blood specimen collecting procedure; and
(b) if, at the time the blood specimen is taken, there is more than
1 approved laboratory, give the Commissioner a written notification—
(i) identifying the approved laboratory to whom the blood specimen was (or is being) delivered or posted; and
(ii) naming the person from whom the blood specimen was taken.
…
[37] The Judge found that the medical officer caused the blood specimen to be delivered to an approved laboratory by giving it to Constable Hargreaves, who in turn arranged for it to be delivered to ESR for analysis as the medical officer’s agent. The appellant submits that because the medical officer did not give any direction to the constable as to what to do with the specimen and did not have any specific knowledge of what the constable did with the specimen, s 74(4) is not complied with. Indeed, when cross-examined, the medical officer did not know how many approved laboratories there were, nor did he give notification under s 74(4)(b) identifying which approved laboratory the blood specimen was to be delivered to. Instead the evidence simply established that the medical officer gave the blood specimen kit to the constable, who then took it to the Police Station, where he placed it in the refrigerator, before sending it to ESR, an approved laboratory, for testing. The appellant submits that to comply with the section, the medical officer must actively direct the delivery process, not passively leave that to the constable.
[38] In addition, the appellant argues that the wording of s 74(4) is mandatory, because of the use of the word “must”, and this is not a section where non-compliance can be retrieved by reliance on s 64(2). The medical practitioner or medical officer who took the specimen must be the person who delivers the blood specimen, or causes it to be delivered, to an approved laboratory when blood is taken under s 73. This is reinforced by the fact that when a blood specimen is taken under s 72, both s 72 and cls 8 and 11 of the Land Transport (Blood Specimen Collecting
Instrument and Procedure) Notice 2014,9 require the medical practitioner who takes the samples to “hand them to an enforcement officer”. The appellant says that if handing of the blood specimen to a police officer was “causing” the blood specimen to be sent or delivered, then there would be no need for the reference to handing it to an enforcement officer in s 74(3).
[39] In summary, the appellant says the medical officer followed the procedure in s 74(3), which relates to blood taken under the provisions of s 72, and not the procedure set out in s 74(4), which applies to blood that is taken in hospital or surgery. Such a clear breach of the requirements of s 74(4) ought, in the appellant’s submission, to render the analyst’s certificate inadmissible.
[40] The respondent, however, says the language of s 74(4) is permissive. It allows the medical officer to cause the specimen to be delivered in the specified ways or “otherwise”. There is no reason to read it down to suggest that delivery could not be achieved by handing it to the police officer to deliver.
[41] The respondent says support for this approach could be gathered from the a recent Supreme Court decision addressing the legality of service of notices of suspension of a drivers licence, under s 210 of the Act, because they were given by the police and not the New Zealand Transport Agency (NZTA).10 The drivers contended that the notices were invalid because they had been put together by the enforcement officers who served them, and so, instead of being “given” by NZTA, it
was the enforcement officer who had given the notice by completing a standard printed police form. However, the Supreme Court held that NZTA fulfilled its legal obligation to give notice by allowing an enforcement officer to prepare the notice and then effect service. It rejected a strained application which required NZTA itself to prepare the notice before it was served by a police officer, saying that was inconsistent with Parliament’s attempts to simplify the process. The word “cause” in s 74 was similar to the word “causing” in s 210 and, by analogy, should also be read permissively.
[42] I accept that in this case, the doctor did no more than give the specimen to Constable Hargreaves, leaving it to him to arrange delivery to an approved analyst. Undoubtedly he saw no issue with this because, at paragraph 4(b) at Part C on the police blood specimen medical certificate, the doctor was given the option to either hand the blood specimen to the enforcement officer or to send the blood specimen himself to an approved laboratory in accordance with s 74(4) of the Act. As Mr Tobeck said, the fact the police form gave both options does not necessarily represent the law. The issue was whether handing to the officer was compliant with s 74(4) or, alternatively, whether it was a situation which met the “reasonable compliance” provisions of s 64(2).
[43] On these issues, Mr Tobeck responsibly drew my attention to the decision in Patterson v Police.11 In that case, the appellant had been injured in an accident and had been taken to hospital. The constable asked the doctor to take a blood specimen. The specimen taken was then placed in an envelope and handed to the constable who later in the day sent it, by registered post, to an approved analyst. On appeal it was argued that the Act had not been complied with as the certificate had not been fully
completed at the time, and simply stated that the doctor had caused the specimen to be personally delivered by handing it to the constable. It was later altered by the doctor to record that the specimen was sent to the ESR by registered post, although it was the police officer who arranged those steps.
[44] However, Potter J held that:12
Under s 58F(4), there were available to the doctor several optional methods for sending the specimen to the Ministry analyst. The section is not concerned with the doctor’s intention or his instructions. Rather, it is a matter of the doctor sending the specimen in accordance with one of the authorised methods. The method adopted here was–
caused to be posted by registered post to a Ministry analyst.
Constable Howe was the agent through which Dr Hadler caused the specimen to be sent by registered post. It was necessary, however, that the certificate correctly recorded the method used, hence the necessity to amend the certificate.
[45] She held that the amendment to the certificate simply recorded the factual situation, which was that the doctor caused the specimen to be sent by registered post, albeit this was done by the constable and only noted by her after the event. There was, therefore, compliance with s 58F(4) as to delivery.13 In any event, Potter J noted there was “no prejudice to the appellant in the procedures adopted. The specimen was sent by registered post by Constable Howe to ESR and delivered to … a person approved to take delivery of the specimen”.14 For that reason, the appeal was dismissed.
[46] In my view, the appellant is incorrect to read s 74(4) in a rigid or restrictive way, as the Courts have long favoured a liberal construction of the obligation to “cause” the specimen to be sent to an approved analyst. As far back as the decision in Aualiitia v Ministry of Transport, it was held that an enforcement officer had caused a specimen to be posted by registered post within the meaning of the relevant
section by making use of an office system designed to bring about that result.15
More relevantly, in Patterson, the doctor left it to the enforcement officer to arrange the delivery and it was considered permissible to simply confirm, after the event, the mode by which the delivery of the specimen had been caused to be sent for analysis. There was no requirement by the doctor to direct delivery as long as he or she achieved delivery as required by handing it to the enforcement officer.
[47] I am satisfied that, given the broad wording of s 74(4) and the pragmatic approach adopted in other cases, it was sufficient in this case for the doctor to hand the blood specimen to the enforcement officer for the purpose of arranging delivery. This met the requirement to “cause” it to be delivered.
[48] In any event, if I was wrong in that conclusion, then the method of effecting delivery clearly met the “reasonable compliance” test in s 64(2). Section 64(2) expressly applies to s 74, and means that the failure to strictly comply with it is not a defence as long as there has been “reasonable compliance”. Had the blood been taken by the doctor in any setting other than a hospital or surgery and handed to the
enforcement officer, the method of delivery would have complied with s 74(3). The
13 Section 58F(4) is the equivalent of s 74(4) of the Act.
14 At 9.
fact that delivery was effected by a method envisaged in the legislation, and there was no suggestion that any prejudice resulted to the appellant by the adoption of one delivery method over the other, means there was reasonable compliance and the resulting analyst’s certificate can not be impeached.
[49] For these reasons, this ground of appeal fails.
Did the police presence at the hospital render the time spent in hospital an unlawful detention?
[50] The appellant submits that it was unlawful for police officers to be present at the hospital while Mr Mabee was examined and the blood specimen taken. In asserting this, Mr Tobeck submitted that the Act distinguishes between the usual process for taking blood under s 72, and the process to be adopted when a suspect is in hospital because of the possibility the suspect was injured as a result of an accident or incident involving a motor vehicle. In these circumstances, the taking of blood ought to be carried out in circumstances of privacy, with only medical staff present.
[51] The rationale for this is that when a suspect is in hospital, there are competing interests. The police are wanting to gather evidence on one hand, while the interests of the suspect are that he or she is provided with proper medical care and attention. There may be a tension between the need to respond to enquiries about his or her medical condition, and the right of a suspect to remain silent. If police remain present, there is a risk that a patient would give incomplete or incorrect answers to a doctor and that could lead to a misdiagnosis. It is for this reason, the appellant argues, that the legislature has provided a separate procedure for suspected drink drivers who are in hospital needing medical attention which puts responsibility for the procedure of taking a blood specimen into the hands of the medical staff, and, by implication, does not authorise the police officer to be present. The fact that in this case there is evidence that the two police officers (Constables Hargreaves and Andrew) were present with Mr Mabee at the hospital until the medical officer handed the blood specimen to Constable Hargreaves, means s 73 was not complied with. That non-compliance rendered the evidence subsequently obtained and recorded in the analyst’s certificate inadmissible.
[52] The respondent, however, rejected the suggestion that s 73 precluded police presence at the hospital. Although the appellant relied on the High Court decision of McGrath v Police as supporting an argument that the taking of blood “ought to be carried out in “circumstances of privacy”,16 the respondent pointed out that that argument was rejected in the subsequent Court of Appeal decision, where it was said:17
We endorse the Judge’s view that the result of the blood test could not be
ruled inadmissible on privacy grounds alone.
[53] In any event, the respondent says that, as in McGrath, unless s 79 is invoked, s 75 provides for presumptive proof of the legitimacy of the medical certificate and its contents (which included, in this case, that the blood specimen was taken in accordance with the procedure under the Act).
[54] This issue turns on whether the presence of police officers inevitably means s 73 has not been complied with. If that was all that needed to be proved then I accept that the evidence demonstrates that the officers were present when the blood specimen was taken and that evidence would override the certificate asserting compliance with the procedure under s 73. However, I do not consider that the presence of the officers is a breach of the s 73 procedure. While s 73 places control of the process of the blood specimen in the hands of medical staff, that is so they can ensure the taking of blood would not be prejudicial to the person’s proper care or treatment. Nothing in that precludes an enforcement officer being present. There is clearly no prohibition on an enforcement officer being present when a blood specimen is taken under any other circumstance. It may be that a doctor may choose to undertake the examination process prior to the taking of the specimen in private, but that is for the doctor to direct having regard to the patient’s needs. There is no suggestion that in this case the doctor thought it necessary to assess the patient in private. In any event, that would not be relevant to whether s 73 was complied with, though a failure to provide privacy where it was requested by a doctor could give
rise to other legitimate complaints. This ground of appeal is also dismissed.
16 McGrath v Police HC Auckland CRI-2011-404-110, 20 December 2011 at [35].
17 Police v McGrath, above n 8, at [30].
Was the appellant subject to an arbitrary detention when he was taken to hospital for a blood test?
[55] The last ground raised by the appellant is linked to the previous ground in that it rests on the appellant’s submission that once Mr Mabee became a patient at the hospital, the powers of the police were limited to requiring the medical practitioner, who was in charge of the care and treatment of Mr Mabee, to obtain a blood specimen from Mr Mabee for evidential purposes and they could not remain in the hospital. Consequently, the continued presence of police with Mr Mabee at the hospital was unlawful and rendered all steps taken in the hospital an arbitrary detention in breach of s 22 of the NZBORA.
[56] The appellant also argues that the District Court Judge was wrong to hold that s 69 of the Act applies to cases where blood is taken in the hospital. While that section allows police to take a suspect to a place for evidential breath or blood testing, he submits that there is no provision for a suspect to be taken to a hospital for the purpose of taking a blood specimen and the term “place” in s 69 of the Act must mean a place other than a hospital or medical centre.
[57] If the evidence is inadmissible because it was taken as a consequence of an unlawful detention, then the appellant submits that s 30(2)(b) of the Evidence Act
2006, weighs “heavily in favour of any subsequently obtained evidence being deemed inadmissible”. For this reason, the analyst’s certificate is inadmissible.
[58] The respondent says there is no requirement that the place the appellant is taken to for the purposes of s 69 must be somewhere other than a hospital. The use of the generic term “a place” in s 69(1) is inconsistent with such a prohibition. Furthermore, s 69(7) expressly refers to a person who is taken to a hospital or doctor’s surgery as a result of an accident involving a motor vehicle and specifies that they may not be required to undergo an evidential breath test. By implication, the only option in that case is an evidential blood test. If it was intended there be a prohibition on requiring a person to go to hospital it could easily have been included in s 69 but was not. There is therefore a statutory requirement on the appellant to remain at hospital until the evidential blood test is taken and any detention was therefore lawful.
[59] The appellant’s argument that the detention was unlawful rests on both the argument that s 73 was not complied with and that s 69 does not cover the circumstances in this case. I have already found that the mere presence of police officers during the process does not render it unlawful, because s 73 does not prohibit the attendance of a police officer.
[60] Section 69 provides that an enforcement officer may require a person who has failed a breath screening test to accompany the officer to a place where the person can undergo an evidential breath test or a blood test or both.18 The person must accompany the officer to such a place when required to do so and then “remain at that place until the person is required either to undergo an evidential breath test or a blood test under this Act”.19
[61] The fact that s 69(7) then states that if the suspect is at a hospital or doctor’s surgery as a result of an accident involving a motor vehicle, the enforcement officer may not require them to undergo an evidential breath test, suggests that in all other respects s 69 does apply and that the person must remain there until the evidential blood test under s 73 has been completed. If that were not so, suspects who were taken to hospital could lawfully leave if an evidential blood test was proposed. This would be contrary to the purpose of the Act. It follows, therefore, that Mr Mabee was not unlawfully detained at hospital and the resulting analysis of the blood specimen taken is therefore admissible.
[62] Finally, even if there had been an unlawful detention, I am satisfied that the evidence should be admitted under s 30 of the Evidence Act. In particular, there was no suggestion that the police were acting in bad faith on this occasion. Rather they were endeavouring to balance their concern for Mr Mabee’s wellbeing with the obligation to gather evidence of suspected drink driving. There was no suggestion
that the evidence obtained was not reliable and the offence was a serious one.
18 Section 69(1).
19 Section 69(5)(b).
Outcome
[63] As the Supreme Court emphasised in Aylwin v Police, the Act is intended to ensure that those who have driven after consuming alcohol beyond the statutory limits should not escape liability by means of technical and unmeritorious defences.20 I am satisfied that all the matters raised by the appellant fall into this category. There is no suggestion that the procedure followed was prejudicial to the appellant in any way, let alone that it risked a miscarriage of justice.
[64] Accordingly, the appeal is dismissed. Mr Tobeck advised that commencement of the sentence imposed in the District Court was deferred while this appeal was being heard. While that is not recorded on the file, I accept Mr Tobeck’s assertion that this is the case. The period of disqualification is to commence at midnight on Friday, 25 August 2017.
Solicitors:
Allan Tobeck, Barrister, Otautau
Preston Russell Law, Invercargill
20 Aylwin v Police [2008] NZSC 113 at [17].
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