N v Police HC Hamilton CRI 2007-419-19
[2007] NZHC 527
•23 May 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2007-419-19
N
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 23 May 2007
Appearances: M Harte for Appellant
T V Clark for Respondent
Judgment: 23 May 2007
(ORAL) JUDGMENT OF ANDREWS J [on appeal against conviction]
Solicitors:
Michael Harte, PO Box 105-720, Commerce St, Auckland
Crown Solicitor, PO Box.19-173, Hamilton
N V NZ POLICE HC HAM CRI 2007-419-19 23 May 2007
[1] N appeals her conviction under s 60(1)(a) of the Land Transport Act 1988 for refusing to permit a blood specimen to be taken after having been required to do so pursuant to s 72 of the Act, by an Enforcement Officer. Ms N was convicted in the District Court at Ohakune, after a defended hearing before District Court Judge N R Dawson on 19 January 2007.
Factual background
[2] On 16 August 2006 a Police Officer pulled over the car Ms N was driving in Ohakune. Smelling alcohol on her and having been told by her that she had consumed three glasses of wine, he completed a mobile breath test that showed a failed result. The Officer then required Ms N to accompany him to the Ohakune Police Station for the purpose of undergoing an evidential breath test, blood test, or both. Ms N attempted to telephone her lawyer with whom she left a message. She declined to call another lawyer and the Police Officer read Ms N her rights.
[3] The Police Officer then required Ms N to undergo an evidential breath test. On the first test Ms N made several attempts to blow into the machine but the machine printout did not show a result. The Police Officer stated under cross- examination that he could not recall seeing any embossing on the paper. The Police Officer then discarded the printout.
[4] A second attempt to complete a test was made and again Ms N made several attempts to blow into the machine. The machine printed a card showing an incomplete test result.
[5] The Police Officer then asked Ms N to consent to give a blood specimen, to which Ms N replied “No”, followed by explanation that she did not want to because the “machine didn’t work”.
Grounds of appeal
[6] The appellant originally raised two issues:
a) That the Judge erred in finding that the Police Officer validly required Ms N to give a blood sample. This issue rests on the fact that the blood specimen form said to have been read to Ms N was not produced at the District Court hearing.
b) The Judge erred in finding that the Police Officer having discarded the blank printout from the first evidential breath test did not prejudice Ms N . This ground was abandoned for the purposes of this hearing.
Statutory context
[7] Ms N was convicted under s 60(1)(a) of the Land Transport Act 1998 which provides:
60 Failure or refusal to permit blood specimen to be taken
(1) A person commits an offence if the person—
(a) Fails or refuses to permit a blood specimen to be taken after having been required to do so under section 72 by an enforcement officer; or
…
[8] Section 70(1) of the Act provides that an Enforcement Officer may require a person to provide a blood specimen pursuant to s 72(1)(c) if an evidential breath test carried out under s 69 fails to produce a result:
70 Person may be required to undergo further evidential breath test if initial test fails to produce result
(1) If for any reason an evidential breath test carried out under section
69 by an enforcement officer fails to produce a result, the
enforcement officer may, at his or her discretion, either require the person to undergo without delay a further evidential breath test or proceed as if section 72(1)(c) applies.
…
[9] Section 72 of the Act sets out the provisions as to providing blood specimens:
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—
…
(c) An evidential breath testing device is not readily available at the place to which the person has accompanied an enforcement officer under section 69 (whether or not at the time the requirement was made it was likely that the person could undergo an evidential breath test at that place) or to which the person has been taken under arrest (as the case may be), or for any reason an evidential breath test cannot then be carried out at that place; or
…
Requirement to permit a blood specimen to be taken
[10] To require a person to give a blood specimen the Enforcement Officer must make clear that:
a) The Officer is requiring, not merely requesting, that the motorist permit a blood specimen to be taken. That is, there should be an imperative demand.
b) A medical practitioner or medical officer will take the blood test specimen.
[11] What is a ‘requirement’ is a question of law. It is not necessary that the requirement is written down or, by implication, produced in Court in written form. Whether or not the requirements were met must be a question of fact that can be determined on the evidence.
[12] In Gillespie v New Zealand Police1 the issue was whether the appellant had been advised that the blood test he was required to undergo would be taken by a medical practitioner or medical officer. At [21] and [22] Lang J says as follows:
[21] … It is part of the requirement under s 72 that any blood specimen that may be taken under s 72 will be taken by a medical practitioner or medical officer. Although no particular wording need be used, nevertheless the person to whom the requirement is addressed must be able to consider the requirement in the knowledge that the blood specimen will be taken not by the police officer, or by some other unqualified person, but by a medical practitioner or medical officer. The reason for this is obvious, namely that any person in that position must at least have the comfort of knowing that the blood specimen will be taken by a person who is properly qualified to carry out such procedures.
[22] If the requirement does not expressly convey this fact, I take the view that it cannot amount to a valid requirement under s72. In those circumstances Mr Gillespie would ordinarily have a defence to the charge, because the prosecution would have failed to have proved an element of it.
…
[13] In the present case the District Court Judge’s findings with respect to the requirement to give a blood specimen are at paragraphs [8] and [9] as follows:
[8] The fourth submission is that there is no evidence that a valid request was made of the defendant to give blood. It is correct that no documentary evidence was produced by way of an exhibits by the Police in the Court today. Constable Osborne in his oral evidence was clear that he obtained the blood specimen form. He filled the form out and he read that form out to the defendant. That form contains all the valid requirements to be communicated to a defendant when requesting a blood sample. Therefore, in my view a valid request was made for a blood sample by Constable Osborne.
[9] I am therefore satisfied that all the element of the offence have been established to a standard of proof of beyond reasonable doubt and you are found guilty of the offence.
The evidence before the District Court
[14] On appeal, a Court will not lightly disturb a lower Court Judge’s findings as to credibility: refer Walker v Police2. I refer also to the decision of Gendall J in Reid v Police3 at [10]:
1 Gillespie v New Zealand Police (HC AK CRI2006-404-104) 31 July 2006, Lang J
2 Walker v Police (HC AK CRI2004-404-362 17 August 2005) Potter J
3 Reid v Police (HC WN CRI2004-454-81 23 September 2004
Appellate Courts can only interfere with factual findings of the lower Court if the trial Judge was clearly wrong or there was no evidence upon which he or she could reasonably make factual findings. …
[15] I turn therefore to the evidence that was before the District Court Judge in this case. Constable Osborne, who was the Police Officer concerned, gave evidence at the hearing. On this particular issue his evidence was as follows:
…. I then filled out a blood specimen form, put the defendant’s details on that form. I read the form out to her and I asked her whether she did consent to the taking of a specimen of blood. She said “no”. I asked her reason. She said “that she didn’t want to because the machine didn’t work”. I then read out the remaining section of the blood specimen form, the apprehending officer’s section, read that out to her. I asked her again whether she consented to taking of a specimen of blood. Again she declined. I then arrested Ms N for failing to supply a specimen of blood. …
[16] The Constable was cross-examined on this point only briefly. The cross- examination related solely to the reasons given by Ms N for refusing to give a blood test.
Discussion
[17] There are two issues of concern to me. The first is whether Ms N was required, rather than requested, to give a blood test. The second was whether Ms N was advised that the blood specimen would be taken by a medical practitioner or medical officer.
[18] Mr Harte submitted that on the authority in Gillespie there were no grounds on which the District Court Judge could find beyond reasonable doubt that the two elements of the offence had been established. He submitted that the District Court Judge could not infer, as it is apparent he did, that Ms N had been required to give a blood specimen.
[19] Ms Clark submitted that the District Court Judge could so infer. The essential difference in the present case as against the circumstances before Lang J in Gillespie was that Constable Osborne said in evidence that he “read [a blood specimen form] form to” Ms N . She submitted that the District Court Judge was entitled to infer or take judicial notice of the fact that the “form” referred to by
Constable Osborne was one that stated that Ms N was required to give a blood specimen to be taken by a medical practitioner or medical officer.
[20] Further, Ms Clark submitted that support for the Judge’s conclusion could be found in the fact that Mr Harte, when appearing as defence counsel at the District Court hearing, clearly had a copy of a “blood specimen form” at the hearing but did not cross-examine Constable Osborne as to whether the form that Constable Osborne said had been read to Ms N existed, was read to her, or as to what it actually said.
[21] In the absence of the blood specimen form being produced as an exhibit, the District Court Judge had before him only Constable Osborne’s oral evidence. This was that he read a blood specimen form to Ms N and asked if she consented to the taking of a specimen of blood. There is no direct evidence that Ms N was informed that she was required to give a blood specimen to be taken by a medical practitioner or medical officer.
[22] It is not, in my view, an answer to the challenge on appeal to say that the District Court Judge would have known what was on the form. That would be, as Mr Harte submitted, an inference that should not properly be made in a criminal prosecution. The Crown was required to prove beyond reasonable doubt that Ms N was required to give a blood specimen and refused to do so.
[23] That is not to say that it will be necessary in all cases to produce a form that is read to the person being required to give a blood specimen. In this case, had the Constable given evidence that he had required Ms N to give a blood specimen to be taken by a medical practitioner or medical officer, there could have been no challenge on appeal.
[24] Further it cannot, in my view, be an answer to the appeal to say that the absence of any cross-examination as to the blood specimen form gave the District Court Judge grounds for finding that Ms N had been required to give a blood test. The onus is always on the Crown to establish the elements of the office. There is no onus on the defence.
Conclusion
[25] I have concluded that the appeal must be allowed.
[26] Ms Clark urged that if I were to allow the appeal I should, pursuant to s 131(1) of the Summary Proceedings Act 1957, remit the matter back to the District Court for rehearing. This was on the grounds that the failure to produce a blood specimen form was an oversight, it had been intended to be produced and in consideration of the overall merits justice required a rehearing. Ms Clark noted that
such a course had been followed before (see Morgan v Ministry of Transport4).
[27] I am not satisfied that it would be in the interests of justice to remit this matter back to the District Court for rehearing and I decline to do so.
[28] The appeal is accordingly allowed. The conviction on the charge of refusing to permit a blood specimen to be taken is accordingly quashed.
Andrews J
4 Morgan v Ministry of Transport [1980] 1 NZLR 432
0
0
0