Okeby v The Queen
[2010] NZCA 299
•16 July 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA274/2010
[2010] NZCA 299BETWEENSTEPHEN OKEBY
Appellant
ANDTHE QUEEN
Respondent
Hearing:7 July 2010
Court:Ellen France, Stevens and Chisholm JJ
Counsel:W M Johnson for Appellant
M E Ball and B F Fenton for Respondent
Judgment:16 July 2010 at 10.30 am
JUDGMENT OF THE COURT
Leave to appeal is refused.
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REASONS OF THE COURT(Given by Chisholm J)
[1] Mr Okeby faces a charge of driving with excess blood alcohol. At a pre-trial hearing he unsuccessfully challenged the admissibility of evidence giving the results of his blood test. He now seeks leave to appeal against that ruling.
Background
[2] After being stopped at a check point and failing a breath screening test Mr Okeby was taken to a “booze bus” at the scene where he provided a positive breath test. He then elected to provide a blood sample but wished to have it taken at the booze bus. The police considered that this was not practicable and, relying on the statutory power to do so, took him to the Porirua police station where a sample was provided. It revealed that he had excess alcohol in his blood.
[3] At the pre-trial hearing admissibility of the blood test result was challenged on the strength of s 72(3) of the Land Transport Act 1998 which provides:
If it is not practicable for a blood specimen to be taken from a person by a medical practitioner or medical officer at a place where the person has been required under this section to permit the taking of a blood specimen, the person must accompany an enforcement officer to any other place where it is likely that a blood specimen can be taken from the person by a medical practitioner or medical officer if the officer requires the person to do so.
It was claimed on behalf of Mr Okeby that the police had failed to prove that it was “not practicable” for the blood sample to be taken at the booze bus.
[4] The only relevant evidence before Judge Behrens QC was that blood could not be taken at the booze bus because:
It needs to be conducted by a nurse, a doctor or a medical officer, none of which were there and the environment doesn’t really to [sic] facilitate a safe environment for taking samples because there is generally more than one person being tested in the environment so it is just not practical.
There was no direct challenge to that evidence either by way of cross-examination or the presentation of further evidence on the issue.
[5] Following Hecker v Police[1] Judge Behrens proceeded on the basis that in the context of s 72(3) “not practicable” carries its ordinary meaning of something which is “not capable of being carried out, or is not feasible in the circumstances”. He accepted that it was for the police to establish that the taking of the blood at the booze bus was not practicable and found on the evidence that this had been established.
Discussion
[1] Hecker v Police HC Christchurch CRI-2007-409-33, 4 May 2007.
[6] Mr Johnson argued that the question whether s 72(3) had been complied with is likely to be of significance in other cases because “the booze bus seems to be part of modern New Zealand life” and the police approach to its use seems to vary from district to district. He acknowledged, however, that the Judge had applied the correct test and that there had been no challenge to the evidence relating to the reason given by the police officer for requiring the appellant to attend at the Porirua police station.
[7] Having considered the matters listed in the R v Leonard practice note,[2] we are satisfied that leave should be refused. No novel or significant point has been raised. Essentially the appellant is seeking to challenge a factual finding which, on the evidence before Judge Behrens, was virtually inevitable.
Outcome
[2] R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218.
[8] Leave to appeal is refused.
Solicitors:
Crown Law Office, Wellington for Respondent
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