P v Police HC Christchurch CRI 2010-409-138

[2010] NZHC 1765

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-409-000138

P

Appellant

v

POLICE

Respondent

Hearing:         7 October 2010

Counsel:         C B Persson for Appellant

A Raj for Respondent

Judgment:      7 October 2010

JUDGMENT OF FOGARTY J

[1]      This is an appeal from a decision of the District Court Judge M R Radford convicting the appellant of driving while under the influence of a drug to such an extent as to be incapable of proper control of the vehicle.

[2]      The charge arose out of an accident.  The appellant had been driving a motor car.  It had veered off to the left of the roadway and had collided either directly or on a glancing blow with a white concrete wall running parallel to the roadway on

Papanui Road in Christchurch.

P V POLICE  HC CHCH CRI 2010-409-000138  7 October 2010

[3]      The police officer on the scene formed a view that the driver was unsteady on her feet and had difficulty answering simple questions.  She told him that she was on a methadone program.  He arrested her and gave her her bill of rights at least once, possibly twice, immediately before the arrest and immediately after the arrest.  She was taken to a police station and placed in custody.  She was left in a cell for some time until she was examined by a doctor.   The doctor worked from a Medical Practitioner’s Clinical Report (Motor Vehicle) form, police form POL 525 09/99. The form has a description under the title as follows:

(Medical report based on examination /observations of person suspected of being under the influence of alcohol and/or drugs while driving or in charge of a motor vehicle.)

[4]      In the top part of the form after providing for the medical practitioner to enter the name of the suspect, date and time, whether or not arrested, and where the examination was conducted, there is the following note:

NOTE:   If the consent of the suspect is not obtained, OBSERVATIONS ONLY  can be made.

The doctor mainly observed the appellant but he did take her pulse and take her temperature.

[5]      In examination-in-chief he was asked an appropriate open question:

Q.        And could you take me through the process of your examination?

And his answer was:

A.Ah  yes,  um,  I  was  introduced  to  Wendy  P    by  Constable Beaver and I then examined Ms P   at ten past nine at the Christchurch Police Station, Central Police Station on the 29th  of October, um, my initial enquiry related to any injury, illness, alcohol or ingestion of drugs and I determined that she in fact was on a regular dose of methadone, 125 milligrams each day and also an anti-depressant tablet called Venlafaxine.  I then proceeded to do a routine examination based on guidelines on the examination sheet. Would you like me to read through that?

He was asked a similar question in cross-examination:

Q.        Doctor, when you first me the defendant what did you say to her?

A.        I can’t recall exactly what that was but my usual basic procedure is to introduce myself as a police medical officer and explain that I’m about to perform an examination relating to her ability to drive.

Q.       And is it then you commence the examination? A. That’s correct.

[6]      Those answers indicate that he did or would have told the appellant that he was about to perform an examination relating to her ability to drive.     But the evidence is silent as to whether or not he asked her whether she consented to such an examination.

[7]      Mr Persson elected not to directly put that question to him saving the point for an application that there was no case to answer and using the point on appeal.

[8]     The Medical Practitioner’s Clinical Report Form has been usefully and thoroughly completed and is very good evidence of the doctor’s opinion and his conclusion, being a contemporaneous record of his opinion at the time of examination/observation.  It would have been of assistance to this Court if the form contained a box YES/NO as to whether the consent of the suspect had been obtained to an examination.  There are eight other yes or no boxes, all of which have been completed.

[9]      Mr Persson’s argument on appeal principally centred around the proposition that the doctor’s opinion that she was impaired by drugs rendering her incapable of having proper control of the motor vehicle (an opinion written on the report that evening) should not be admitted as it was obtained in breach of a common law duty of fairness articulated in the 1976 decision of Police v Hall [1976] 2 NZLR 678 and in breach of s 23 of the New Zealand Bill of Rights Act 1990 and was improperly obtained evidence for the purposes of s 30 of the Evidence Act 2006.

[10]     The Judge dealt with this point in paragraph [14] of his decision:

[14]      The other matter is the question of whether or not it was explained to the defendant what the purpose of the examination was.  Frankly I think it was.  The officer arrested the defendant on the basis that she was being taken back to the police station and that the charge that she faced was that she was under the influence of a drug to such an extent as to be incapable of having

proper control of the vehicle.  I would have thought it was self-evident that the police were entitled at that point to continue to gather evidence and that the defendant must have known that she was under some scrutiny.  However, even if I were to take a narrower view of the matter, it seems to me that the doctor’s evidence falls into two parts.  One is the detailed examination he carried out, although the defendant was not all that co-operative, but the other is the unstructured observation that he made of her as she walked from the holding cell through to the medical room and he saw she was unsteady on her feet, or she was staggering.

[11]     That  is  consistent  with  the  finding  I  have  made  independently  that  the purpose of the examination was explained to the defendant.   But it is silent on whether or not her consent was given or was required.  The silence may well be due to the fact that the doctor’s opinion was principally based on his observation of the appellant from seeing her walking from the holding cells through to the medical room to his discussion with her in the medical room.  It does not seem to be based on her temperature or her pulse.  It is arguably an opinion from observation rather than an opinion from examination.

[12]     Because it is, in any event, principally an observation, I am not persuaded that his evidence should have been rejected by reason of the application of the discretion to do so in s 30 of the Evidence Act.  Nor do I think in a substantial sense it was obtained unfairly although I do not think that is a separate enquiry, as such a judgment is embedded in s 30 criteria.

[13]     The  second  ground  of  appeal  was  that  the  Judge  should  not  have  been satisfied  beyond  a  reasonable  doubt  that  she  was  so  under  the  influence  of methadone as to be incapable of driving because of concessions made by the doctor in cross-examination.

[14]     Mr Persson put a number of possibilities to the doctor in cross-examination. He said that the doctor’s observation of her closing her eyes and being drowsy could be consistent with being very tired; that her staggering could be connected with alcohol and ingestion; that the accident could have contributed to her being in a state where she is perhaps dazed or in shock (which could explain some of her behaviour); and that there was a possibility of delayed concussion.   These and other possibilities were acknowledged.

[15]     At the end of the cross-examination and re-examination of the doctor the

Court asked the doctor:

Q.Doctor,  is  it  possible  that  the  condition  you  observed  about  the defendant was as a result of some factor other than consumption of drugs?

A.       It is possible, but in my opinion, very unlikely.

And then the Judge put a similar question and got a similar answer as a follow up.

[16]     It is very common for defence counsel to extract possibilities from doctors and other experts applying scientific method.  But that has never stood in the way of the trial Judge or jury being satisfied beyond a reasonable doubt, being sure, that the case had been proved.  The fact that those kind of possibilities were acknowledged but as “very unlikely” left room, in my opinion, for the Judge to be satisfied the case had been proved beyond reasonable doubt and there is no basis for this Court to be concerned about the judgment.

[17]     For these reasons the appeal is dismissed.  As I have had occasion to observe, I do think the police form could be improved so that the Court, in the future, has a better record of what took place between a medical practitioner and a suspect or arrested person.

[18]     The appellant was sentenced to community work.  She is now to report to the

Stanmore Road Community Work Centre on Monday, 11 October, at 11.00 am.

Solicitors:

C B Persson, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent