McQuillan v Police
[2018] NZHC 1247
•31 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-000064
[2018] NZHC 1247
BETWEEN MATTHEW SCOTT MCQUILLAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 May 2018 Appearances:
Appellant in Person
L J Fraser for Respondent
Judgment:
31 May 2018
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 31 May 2018 at 11.00 am
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date…………………………
MCQUILLAN v NEW ZEALAND POLICE [2018] NZHC 1247 [31 May 2018]
Introduction
[1] On 7 March 2018, Mr McQuillan was convicted of driving with excess blood alcohol,1 following a Judge-alone trial.2 He appeals his conviction on the grounds that the Judge:3
(a)wrongly allowed the police to amend the charge sheet on the morning of the defended hearing;
(b)wrongly refused Mr McQuillan an adjournment following the amendment of the charge sheet;
(c)wrongly accepted the evidence of the second breath test and/or blood test on the basis that:
(i)there was no requirement for Mr McQuillan to accompany the police to complete an evidential breath test or blood test;
(ii)no formal identification procedure was completed;
(iii)the ESR certificate was “irregular”;
(iv)the blood specimen medical certificate was completed by a nurse and the sample was not carried out by using normal medical procedure; and
(v)the incorrect procedure was followed, and Mr McQuillan should have been given two opportunities to give an evidential breath sample.
1 Land Transport Act 1998, s 56(2).
2 New Zealand Police v McQuillan [2018] NZDC 6653.
3 Mr McQuillan, who was unrepresented on the appeal. These grounds are drawn from the brief submissions he filed before the hearing, which formed the basis of his oral submissions.
[2] Mr McQuillan has a general right of appeal against conviction.4 I must allow the appeal if satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or, a miscarriage of justice occurred for any reason.5 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.6
[3] Except for the ground relating to the adjournment, Mr McQuillan must persuade me that the District Court Judge was wrong, and if he does, is entitled to judgment in accordance with my independent opinion, although I will take into account any particular advantages enjoyed by the trial court.7 The appeal against the decision to refuse an adjournment is an appeal against the exercise of discretion and a different principle applies, which I discuss later when I come to that aspect of the appeal.
The offending
[4] On 30 June 2017, Mr McQuillan was driving at approximately 70 km/h on a road in Epsom, Auckland. He was seen swerving inside his lane. When he was stopped by the police, he was found to have in excess of 400 micrograms of alcohol per litre of breath. He was required to accompany police to undertake an evidential breath test, which returned a result of 916 micrograms of alcohol per litre of breath. He then elected to provide a blood sample. ESR analysis identified that his blood contained 238 milligrams of alcohol per 100 millilitres of blood (+/- 13 milligrams).
Procedural history
[5] The charging document was filed with the Auckland District Court on 5 August 2017. It erroneously recorded that the appellant had 650 milligrams of alcohol per 100 millilitres of blood. Mr McQuillan pleaded not guilty and the matter was allocated a fixture date of 7 March 2018.
4 Criminal Procedure Act 2011, s 229.
5 Criminal Procedure Act 2011, s 232(2)(b)–(c).
6 Criminal Procedure Act 2011, s 232(4).
7 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [28]–[29], [31]. See also Austin, Nichols & Co Inc v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[6] On the day of the trial, the prosecutor sought the leave of the Court to amend the particulars of the charging document, so that the reference to 650 milligrams of alcohol per 100 millilitres of blood was changed to 225 milligrams of alcohol per 100 millilitres of blood. This was to conform with the analyst’s report.8
[7] Mr McQuillan’s counsel opposed the amendment on the basis that s 25 of the Criminal Procedure Act 2011 (“CPA”) applied. Judge Paul held that s 25 of the CPA was not engaged as the charging document had been filed within the prescribed time limit, and the amendment could appropriately be made under s 133 of the CPA.
[8] Mr McQuillan’s counsel sought an adjournment. Judge Paul considered, in accordance with s 134 of the CPA, whether an adjournment would be appropriate in the circumstances, but concluded that it was not required as the amendment would not prejudice the appellant. Judge Paul also provided the appellant with the opportunity to enter a plea to the amended charge.
[9] The trial then proceeded. The police called evidence. Mr McQuillan did not give or call evidence. The Judge delivered an oral decision the same day.
Appeal
Amendment of the charging document
[10] Section 25(3)(a) of the CPA requires a charging document in relation to a category one or two offence to be filed within six months after the date on which the offence was committed. The charging document in this matter was filed within the prescribed timeframe as it was filed on 5 August 2017 (the offence was committed on 30 June 2017).
[11] Section 133 of the CPA confers a broad power on the Court to amend a charge at any time before the verdict (in a jury trial) or a decision (in the case of a Judge-alone trial). Section 133 does not require that an amendment be made within the six-month period that applies to the original charging document under s 25.
8 In fact, the analyst’s report referred to 238 mg of alcohol per 100 mls of blood but the Judge’s decision referred to 225 mg and nothing was made of the slight difference on appeal.
[12] The power to amend the charging document reflects the policy that, unless it would cause prejudice to the defendant, a variance between the charge and the evidence should not result in an acquittal where there is evidence of an offence.9 In this case, where the amendment merely reduced the level of the blood alcohol alleged but did not alter the substance of the charge itself, there could be no objection to it.
Adjournment following amendment of the charging document
[13] Section 134 of the CPA sets out the procedure to be followed if a charge is amended before trial. If the defendant entered a plea to the charge before it was amended (as Mr McQuillan did), the Court may ask the defendant to plead to the charge as amended.10 This was done before the start of the trial, with Mr McQuillan’s counsel entering a not guilty plea.11
[14] Section 134 states that the provision relating to adjournment for case review (subpart 3 of Part 3 of the CPA) does not apply in respect of the charge as amended unless the Court directs otherwise.12 Judge Paul considered that there was no utility in allowing an adjournment to allow a further case review and another trial date. He did not consider that the defendant was disadvantaged by proceeding with the trial that day. There was no prejudice to him, as Judge Paul allowed him to plead to the amended charge.
[15] As the Crown submits, the result of s 134(3)(b) is that a case review should only occur once in a proceeding unless the Court considers one to be of assistance. It is unlikely one would be required unless the amended charge changed the nature of the proceeding such that a further case review would assist to resolve the proceeding, or would be necessary to ensure that the parties are ready to proceed to trial.13
[16] As noted earlier, the Judge’s decision to order an adjournment involved the exercise of a discretion. In an appeal against the exercise of a discretion, the appellant
9 Jones v Police [1998] 1 NZLR 447 (CA) at 447. See also Fugle v Palmerston North City Council
[2017] NZHC 2030 at [28].
10 Criminal Procedure Act 2011, s 134(3)(a).
11 New Zealand Police v McQuillan, above n 2, at [19]–[20].
12 Criminal Procedure Act 2011, s 134(3)(b).
13 Simon France (ed)Adams on Criminal Law – Procedure (online loose-leaf ed. Thomson Reuters) at [CPA134.02].
must show that the Judge acted on a wrong principle, failed to take into account a relevant matter, took into account an irrelevant matter or was plainly wrong.14
[17] Mr McQuillan claims that the Judge was wrong to refuse an adjournment because, in doing so, he deprived Mr McQuillan of the opportunity to obtain evidence that would enable him to advance another defence, one based on a perceived error in the analyst’s certificate. I discuss the nature of this defence later, but for present purposes it suffices to say that the transcript of the discussion between counsel and the Judge show that the application for adjournment was advanced only on the basis that counsel wished to conduct further evidence on the question of whether s 25 applied to an amendment to the charging document, not merely the original charging document. It follows that the Judge did not fail to take the relevant considerations into account and did not take any irrelevant consideration into account. Nor did he apply a wrong principle and nor was the decision plainly wrong.
Reference to the breath-screening test as a “passive test”
[18] Mr McQuillan asserts that he should not have been required to accompany the police officer because the officer had only administered a “passive” breath test.
[19] Under s 59(1)(b) of the Land Transport Act 1998 (“LTA”), it is an offence for a person to fail or refuse to accompany an officer when required to do so under s 69. Section 69(1)(ab) permits an officer to require a person to accompany them where it is likely that the person can undergo an evidential breath test or blood test or both, in circumstances where the person has more than 250 micrograms of alcohol per litre of their breath, as evidenced by a breath-screening test.
[20] Constable McDonald gave evidence that he required Mr McQuillan to undergo two breath tests. The first was a passive test, which returned a positive result. The second involved Mr McQuillan blowing continuously through a tube into a Drager machine. The result was over 400. This evidence is consistent with a breath-screening test, as outlined in ss 6 and 7 of the Land Transport (Breath Tests) Notice 2015, rather
14 May v May (1982) 1 NZFLR 165 (CA) at 170; See Rowley v Commissioner of Inland Revenue [2011] NZCA 160, (2011) 25 NZTC 20-051 at [12] for a relatively recent application of this approach.
than a passive test. Constable McDonald described the second test as a passive test at trial but the Judge held that this was a mistake and that it was clear from the description he gave that the officer was actually referring to a breath-screening test. The Judge was entitled to make that finding.
[21] A “breath-screening test” is defined in s 2 of the LTA as meaning a test carried out by means of a breath-screening device in a manner prescribed in respect of that device by the Minister of Transport by notice in the Gazette. The current notice is the Land Transport (Breath Tests) Notice 2015, and the procedure for a breath-screening test is outlined in ss 6 and 7 of that Notice.
[22] A passive breath test is where the officer holds a passive breath-testing device near the person’s mouth for the purpose of ascertaining whether there is any alcohol in the person’s breath.15 Section 68(5) provides that the use or non-use of a passive breath-testing device does not affect the validity of a breath-screening test.
[23] In relation to a breath alcohol charge, the Crown must only prove that a breath- screening test was conducted in fact.16 As such, Constable McDonald’s reference to the test as a passive breath test does not mean that a breath-screening test was not completed, and so there was a legal basis for the officer to require Mr McQuillan to accompany him to complete an evidential breath test under s 68 of the LTA.
[24] There is no miscarriage of justice arising from Constable McDonald describing the breath-screening test as a passive test.
Formal identification procedure
[25] Mr McQuillan says that no formal identification was carried out (presumably under s 45 of the Evidence Act 2006, which relates to admissibility of visual identification evidence).
15 Land Transport Act 1998, s 68(4).
16 R v Aylwin [2008] NZCA 154, (2008) 24 CRNZ 87 at [53]. See generally Birchler v Police [2010] NZSC 109, [2011] 1 NZLR 169 at [17]–[18].
[26] Identity was not put in issue at the trial. Constable Stewart gave evidence of Mr McQuillan having supplied his name, date of birth, address and phone number, and of using those details to confirm his identity on the National Intelligence Database. He had taken a photograph at the same time as Mr McQuillan was fingerprinted and processed, and also when he served Mr McQuillan with the summons.
[27] Mr McQuillan’s counsel made the submission to the Judge that there had been no formal identification and the Judge recorded that submission but did not specifically address it. This was an error; the Judge should have made a finding on the submission. However, I do not consider that any miscarriage of justice resulted. There was ample evidence to show that Mr McQuillan, who was present in court that day, was the person shown in the photographs taken during the processing and service of summons. There is no real risk that the outcome of the trial was affected.
The reliability of the ESR analyst’s certificate
[28]The ESR analyst’s certificate stated:
… A proportion of the 238+/- 13 milligrams of alcohol per 100 millilitres of blood was found in the specimen.
There is a greater than 99.9% probability that the proportion of alcohol in the blood specimen is greater than 200 per 100 millilitres.
[29] Mr McQuillan argued that there must be doubt over the accuracy of the certificate because it is rare to find either a “plus or minus” or reference to 99.9 per cent likelihood on an analyst’s certificate. He characterises both features as irregularities that cast doubt on the accuracy of the certificate. This argument was advanced in the District Court and rejected on the basis that the Court was entitled to accept the certificate on its face as to the contents of the blood specimen and, since there had been no formal challenge of the analyst, the argument must fail. The Judge was undoubtedly correct to take this view.
[30]Section 75 of the LTA provides:
(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.
…
(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.
[31] The ESR analyst’s certificate was prepared in accordance with s 75(5) of the LTA. The Judge was entitled to accept it as proof of its contents unless there was proof to the contrary.17 No evidence was called that might have undermined the reliability of the certificate. Nor do I accept that the probability of 99.9 per cent is to be regarded as irregular. I accept the Crown submission that, for all practical purposes, this is a decisive conclusion.
[32] Mr McQuillan argued on the appeal that the Judge’s refusal to adjourn the hearing had deprived him of the opportunity to obtain evidence regarding the reliability of the analyst’s certificate. However, he had no specific information about what evidence he would have called, had he had the opportunity. I note that Mr McQuillan had engaged a lawyer some two weeks before the hearing and that the issue of the analyst’s certificate was raised. I do not consider there has been a miscarriage of justice in this regard. As I have noted, that aspect was not, however, a ground on which an adjournment was sought. A party who seeks a new trial on appeal on the ground that further evidence would produce a different result must, at least, be able to identify the proposed new evidence and show that it could not, with reasonable
17 Hilton v Police HC Wellington AP105/01, 23 August 2001.
diligence, have been obtained prior to the hearing. Mr McQuillan has been unable to do either.
Procedure for the blood test
[33] Mr McQuillan submits that he could not find anything to the effect that the blood test was carried out using normal medical procedures, and so that is a potential deficit.
[34] The blood specimen medical certificate was standard form and completed by the nurse and enforcement officer upon taking the blood specimen. It records that the nurse took a venous blood specimen in accordance with the blood specimen procedure, the specimen taken was sufficient for the purpose of the procedure, and the nurse drew the blood into the appropriate containers taken from a sealed blood specimen collecting kit in accordance with the collecting procedure. The specimen was handed to Constable McDonald. The certificate provides that it was issued in accordance with s 75(2) and (4) of the LTA.
[35] There was no formal challenge to the medical certificate at trial, and so for the same reasons as I gave in relation to the ESR analyst’s certificate, the Judge was entitled to accept the medical certificate as proof of its contents and was therefore correct in his finding that the blood specimen procedure satisfied the requirements of the LTA.18 I do not consider there was a miscarriage of justice on this basis.
Eligibility of the nurse to carry out the blood specimen medical certificate
[36] Section 75(2) of the LTA applies to certificates purporting to be signed by a medical practitioner or medical officer certifying that the correct procedure was completed. A medical officer, defined in s 2 of the LTA, includes a nurse. The LTA permits the blood specimen to be drawn by a nurse and so the certificate is not deficient on the basis that a nurse completed it.
18 New Zealand Police v McQuillan, above n 2, at [17].
Number of evidential breath samples
[37] Mr McQuillan submits that he should have completed two evidential breath tests. He submits that Officer McDonald only permitted him to give one breath sample, and that Officer McDonald should have allowed two breath samples and used the lower of the two. Mr McQuillan submits that Officer McDonald therefore failed to follow the correct procedure.
[38] Section 69 of the LTA describes who must undergo an evidential breath test. It does not require two evidential breath tests to be completed in the manner Mr McQuillan refers to. It only refers to an evidential breath test in the singular form.
[39] Section 70 of the LTA provides that only where the initial evidential breath test fails to produce a result can an enforcement officer, at their discretion, require the person to undergo a further evidential breath test or give a blood specimen. The requirement to give a second breath test is discretionary and only arises when the first test fails to produce a result.
[40] Section 9 of the Land Transport (Breath Tests) Notice 2015 outlines the procedure for administering an evidential breath test. It states that if the test result is an “incomplete test” then step 2, which involves the officer attaching a new mouthpiece to the breath testing device and the person breathing into the mouthpiece, may be repeated.19 This is consistent with the approach under s 70 of the LTA.
[41] There is no requirement for two breath tests to be completed. The correct procedure was followed in this case. There was no miscarriage of justice.
Result
[42]The appeal is dismissed.
P Courtney J
19 Section 9(c)(ii).
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