P v Police HC Wellington CRI-2010-485-30

[2010] NZHC 679

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-30

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 May 2010

Counsel:         N J Sainsbury with L A Scott for Appelland

MWC Snape for Respondent

Judgment:      6 May 2010 at 3pm

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 3pm on the 6th day of May 2010.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The  appellant  appeals  against  his  conviction  in  the  District  Court  at Wellington  after  a  defended  hearing  before  Judge Behrens QC  on  one  count  of driving  a  motor  vehicle  while  the  proportion  of  alcohol  in  his  blood  exceeded

80 milligrams of alcohol per 100 millilitres of blood contrary to s 56(2) of the Land

Transport Act 1998.

P V NEW ZEALAND POLICE HC WN CRI-2010-485-30  6 May 2010

[2]      The facts are that on 22 August 2008 the appellant was stopped while driving on State Highway 2 in Wellington and underwent a breath screening test which was positive.   An evidential breath test returned a positive result.   The appellant then elected  a  blood  test.    The  sample  was  analysed  by Ms McGavin  at  ESR.    An analyst’s certificate under s 75(5) of the Act was produced dated 29 August 2008 certifying that on analysis of the blood specimen a proposition of 81 milligrams of alcohol per 100 millilitres of blood was found in the specimen.   The appellant invoked his right to have the blood sample independently analysed pursuant to s 74 of the Act.  The sample was sent to Mr Shanahan, forensic scientist of Auckland, for analysis.     His  result,  expressed  on  a  basis  comparable  with  the  figure  of

81 milligrams in the s 75 certificate, was 78 milligrams.

[3]      Following receipt of Mr Shanahan’s test results, counsel for the appellant applied for an order that the analyst appear as a witness at the hearing.   It was common ground, both in the Court below and in this Court, that, under s 79(3) of the Act, the analyst’s certificate was not admissible in evidence, and that Ms McGavin was required to give evidence.

[4]      At the hearing on 22 December 2009, Ms McGavin was called as a witness and gave evidence as to her analysis.  In the course of her evidence in chief, the s 75 certificate was produced as an exhibit.   Ms McGavin gave oral evidence of the results of her analysis and was cross-examined.   No evidence was called for the defence.  By consent, the result of Mr Shanahan’s analysis was admitted in evidence.

[5]      Judge Behrens  reserved  his  decision,  and  his  judgment  was  delivered  on

5 February 2010.  His judgment commenced:

[1]      The question in this case is whether the analyst’s certificate that

Mr P    had  a  proposition  of  81 milligrams  of  alcohol  per

100 millilitres of his blood is evidence to the required standard that he drove a motor vehicle while the proportion of alcohol in his blood

exceeded 80 milligrams per 100 millilitres.

[6]      It is common ground that that was not the question.  The analyst’s certificate was inadmissible, by virtue of s 79(3).  The question was whether the prosecution had proved beyond reasonable doubt, by the evidence of Ms McGavin, that the

appellant  had  a  proportion  of  alcohol  in  his  blood  exceeding 80 milligrams  per

100 millilitres.  The Judge did discuss Ms McGavin’s oral evidence.  He expressed his conclusion on that evidence in these terms:

[9]It seems to me that I cannot, on the state of the evidence in this case, draw an inference that the defendant had proved on balance that the certificate is unreliable.

[7]      It is again common ground that that was not a correct application of the onus. There was no onus on the appellant to prove, on the balance of probabilities, that the certificate was unreliable.   The onus was on the prosecution to prove beyond reasonable doubt, by evidence other than the certificate, that the level exceeded

80 milligrams.  The certificate was not admissible as evidence.  Its production as an exhibit is to be regarded only as part of the background.

[8]      The Judge went on to say:

[12]      None of the evidence I have heard relating to the rate at which blood containing alcohol produces different and lower results upon testing at increasingly later periods satisfies me on the balance of probabilities that I should not rely upon the certificate.  Nor does the evidence of Mr Shanahan’s analysis.  Accordingly the defendant is convicted.

[9]      It is clear that the Judge has inadvertently applied the incorrect test and that the appeal must be allowed.   Counsel for the respondent does not contest that proposition.   The essential question which I must resolve is the consequence of allowing the appeal.  Counsel for the respondent submits that it is appropriate for this Court either to consider the matter afresh on the basis of the notes of evidence or to remit the matter to the District Court for rehearing and application of the correct legal test.   The third option, contended for by counsel of the appellant, is that the conviction should be set aside.

[10]     This is a case where a review of the evidence in this Court is appropriate in deciding which course to take.  There are no issues as to credibility, and this Court is as well placed as the District Court to assess whether or not the evidence was capable of proving the charge to the required standard.

[11]     In her oral evidence, Ms McGavin said that two test results were obtained from the sample when it was first tested on 26 August 2008.  The results were 88.08 and 87.71.  Because the results were near the legal limit the testing was repeated in four further replicates the following day, 27 August.  The results were 87.18, 87.4,

86.93, and 87.15.  The average of the six results was 87.4.  The figure stated on the certificate was 81.   Ms McGavin explained that the reason for that was that by deducting three standard deviations, there can be a 99% confidence level in the result.  Six milligrams is greater than three standard deviations for the method used. Accordingly the practice, followed in this case, is to take the average of the results, round down by using the whole number before the decimal point, and then to deduct six from that result.  She said that by use of that calculation she could be confident beyond reasonable doubt that the actual level of alcohol in the sample tested by her was not less than 81.

[12]     As to Mr Shanahan’s results, Ms McGavin said that she knows very little about how he actually performs the work but she had heard him give evidence in other cases and she knows that he does also deduct a figure of six from his analytical result before he reports it.  As to the possible explanations of the difference between the ESR results and Mr Shanahan’s results, Ms McGavin was referred to evidence which both she and Mr Shanahan had given in Brown v Police.1      In that case, the standard  ESR  procedure  used  there,  as  here,  produced  a  certified  result  of  81. Mr Shanahan had analysed a duplicate specimen some three and a half months later

and reported a result of 77.  Ms McGavin said in that case that blood samples lose alcohol during storage.  She said that in the three and a half months time which had elapsed in that case she would expect a significant drop in the blood alcohol concentration of the sample.  She said that studies performed in her laboratory have shown that the difference of four milligrams was well within the range of expected blood/alcohol concentration changes for a three and a half month period.  On cross- examination she confirmed that a loss of four milligrams over such a period would occur only in approximately 20 per cent of cases.  Mr Shanahan’s evidence in that case  was that  a fall off in the level of blood/alcohol of the magnitude of  four milligrams would occur in only 10 per cent of cases.

1           Brown v Police HC Auckland CRI-2006-404-124, 8 December 2006.

[13]     It is important to note an important distinction between this case and Brown. Although Ms McGavin was called to give evidence in Brown, the s 79(3) procedure had not been followed, so that the s 75(5) certificate was evidence of the blood alcohol level.  The onus in that case was therefore different from that here.

[14]     The evidence given in Brown was put to Ms McGavin in cross-examination by Mr Sainsbury for the appellant in this case.   Here the period between the ESR testing and Mr Shanaghan’s testing was approximately one and a half months.  The likely fall off in the blood alcohol level was put to Ms McGavin in these terms:

Q.Now, I think - in terms of though, given that the 20% of cases going to lose four milligrams over three and a half months, there’s no issue there was a loss, would it be fair to assume that it must be less than

20% in terms of a three milligram loss over a one and a half month period?

A.        Well, really without doing a lot more testing I can’t say but it sounds reasonable.

Q.       It couldn’t be more than 20% if the other proposition’s correct?

A.        Assuming all things were equal and everything is working correctly, correct.

[15]     It would not be appropriate on this appeal to enter into any discussion of the methodology used by ESR.  Nothing in this judgment is intended to call in question any aspects of those procedures.  On the evidence here, there is a difference between the ESR results and Mr Shanaghan’s results, which were admitted by consent, of three milligrams.  There is no evidence which establishes, to the required standard, the reason for that difference.  One possible explanation of that discrepancy is a fall off in the blood alcohol level over time.  Ms McGavin’s evidence just quoted means that I do not consider that the Crown has established beyond reasonable doubt that that is in fact the reason for the discrepancy.  In the face of the conflicting results, I do  not  consider  that  the  Crown  has  proved,  to  the  required  standard,  based  on Ms McGavin’s  results,  that  the  actual  level  exceeded  80.    For  these  reasons,  I consider that the appropriate course is that the conviction should be set aside.

[16]     The appeal is allowed and the conviction is set aside.

A D MacKenzie J

Solicitors:           Crown Solicitor, Wellington for Respondent

N J Sainsbury, Barrister, Wellington for Appellant