Police v H HC Wellington CRI 2008-485-18
[2008] NZHC 1567
•6 October 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2008-485-18
NEW ZEALAND POLICE
Applicant
v
H
Respondent
Hearing: 30 September 2008
Counsel: M W C Snape for NZ Police
W M Johnson for the Respondent
Judgment: 6 October 2008
JUDGMENT OF SIMON FRANCE J
[1] This is an application by the Police pursuant to section 109 of the Summary Proceedings Act 1957 for a direction that the District Court state a case in relation to its dismissal of blood alcohol charges against Mr H .
Legal History
[2] The alleged offence occurred on 20 April 2007. It was allocated a first fixture for 3 October 2007. That fixture was adjourned due to Mr Johnson expressing concerns about disclosure. A new fixture was allocated for
12 December 2007. The information records that Mr Johnson was in a High Court
NEW ZEALAND POLICE V H HC WN CRI 2008-485-18 6 October 2008
matter on that day and so the trial was unable to proceed. It was further adjourned to
13 March 2008.
[3] The prosecution was heard on 13 March 2008. The defence appears to have had two main limbs. First it was contended that the chain of evidence was inadequate to properly link the test result with the accused. Second, it was queried whether the officer had complied with required procedure as regards requiring the accused to accompany him for further testing. The defendant testified the officer only mentioned breath testing, and did not require him to accompany him “for blood or both”.
[4] Concerning the chain of evidence the Judge held the absence of a receipt and the lack of evidence as to who sent the sample to ESR were not “fatal to the prosecution”. Concerning whether the correct procedures had been followed, the Judge said:
“… I do not think I can be sure on the evidence that the constable actually required him to accompany for a blood test. He may have done so, he probably might have done so, but I do not think it gets me to the point that I can be sure this was done and I think I have to be sure.”
[5] The Judge then added a concern of his own, namely that the Analyst’s certificate omitted the accused’s middle name and had a different address from that shown on the information.
[6] The last concern was described as “the turning point”, and the information was dismissed.
[7] On 27 March 2008, a Notice of Appeal by way of case stated on a question of law was filed. Subsequently on the 6 May 2008 a draft case stated was filed. An memorandum accompanying the draft case indicated that the Police had only obtained a copy of the transcript of the Judge’s decision in “April 2008”. It was noted that on 27 March 2008, at the time that the Notice of Appeal was filed, the Police also sought an extension of time for filing of the draft case. The counsel handling the matter had subsequent to that suffered a family bereavement, the circumstances of which left him with no opportunity to instruct alternative counsel to
complete the case. Immediately on his return to work he completed the draft case and sent it to the relevant Crown solicitor for filing.
[8] On a photocopy of counsel’s memorandum, the Judge has written a notation:
Application to extend time granted. Case amended in draft.
[9] The submitted draft asked whether the Judge erred:
“… in not considering section 64(2) of the Land Transport Act 1998.”
It was amended by the Judge to read:
“in not applying section 64(2) of the Land Transport Act 1998.”
[10] On the 3 July 2008, the Judge issued a decision declining to state a case. This would appear to have been decided on the papers. The Judge in his decision notes that two questions are asked. I paraphrase them:
“[1] Was the Judge correct to apply the criminal standard of proof in determining whether the defendant was requested to accompany the Police Officer for a blood sample?
[2] Was the Judge incorrect not to apply the reasonable compliance provision of the Act.”
[11] The first question was accepted to be a question of law. Concerning the second question the Judge observed that his decision not to apply the reasonable compliance provision was based on a consideration of the adequacy of the evidence. The ruling continued:
“I therefore decline to state the case.”
Submissions on appeal
[12] Mr Johnson in advance of the hearing filed a memorandum indicating he had only been advised of the appeal proceedings in the week ending 26 September 2008. He appended to his memorandum a document that he filed in the District Court concerning the Crown application at that stage. That document is dated 9 June 2008. The thrust of it is that there were errors in the case stated. The questions posed were
submitted to be questions of fact and not law. The factual basis was submitted to be incorrect in that the issue concerning the certificate of analysis is not an error on its face but an issue concerning the chain of proof.
[13] At the hearing Mr Johnson submitted that the real basis of the Judge’s decision was the chain of evidence point. He accepted the judgment did not read that way, but was adamant it was what was intended. Concerning the burden of proof, Mr Johnson accepted that the correct law was that the procedural requirements need only be established to the balance of probabilities. Concerning reasonable compliance, Mr Johnson submitted that that must be a question of fact and not law. Finally, Mr Johnson noted the offence occurred in March 2007, and it was unfair to continue at this point.
[14] Mr Snape submitted that the first issue, concerning burden of proof, was accepted by the Judge to be a question of law. There was no basis at all for it to be declined. Concerning the second question it was submitted that the challenge is not to the Judge’s application of reasonable compliance. The fact is that the judgment does not address it at all, and that cannot be remedied by the case stated decision.
Decision
[15] After reflecting on this matter I have decided to decline the informant’s application. However, there are areas where I have concern over the outcome, and out of fairness to the applicant it is appropriate to comment on them.
[16] The first issue concerns whether the prosecution proved at the trial that the police officer had correctly required Mr H to accompany him. The decision in Shackelford v Police (HC Wellington, CRI 2006-485-164, 16 May 2007 per MacKenzie J) holds that the appropriate standard is the civil standard. In applying a criminal standard, the Judge therefore erred. Nothing turns on that in the sense that everyone makes mistakes. However, I do not consider it was correct to thereafter decline to state a case, and to do so without giving reasons on this point. The informant was entitled to apply and the Judge accepted it was a question of law. Section 109 of the Summary Proceedings Act 1957 states that the Court may decline
to state a case only if the application is frivolous. This test is not adverted to in the
Ruling, and it would appear difficult to attach that label to the application.
[17] Notwithstanding my view that a case should have been stated, I note that the answer to the question appears not to be contested. I was not advised that the decision in Shackleford is doubted, and so there is no wider interest in the question. As an appeal question it would only be a means by which to overturn the acquittal. I do not say that in any pejorative sense, but only to identify the context.
[18] The second issue concerns the request by the informant for a case to be stated in relation to the applicability of the reasonable compliance provision. The original judgment is wholly silent on the topic. Again this is something that can occur when one is giving oral reasons immediately at the end of the hearing. For myself, however, I doubt the Court was correct to seek to amend the case stated by changing “not considering” to “not applying”. The judgment must speak for itself. It discloses on its face no reference to the reasonable compliance section. Likewise, whilst opinions might differ whether one should use the case stated application to explain the omission, again for myself I doubt it was correct, having given that explanation, to decline to state the case on the basis of it.
[19] The third issue concerns the original judgment. The Judge describes as “a turning point” in the decision to acquit two errors in the analyst’s certificate. These errors were that:
“the certificate comes back for a person named as the defendant missing his second given name of Mathew and describing him as living at an address which is a different address from that shown on the information, and from that entered by the constable in the various documents that he completed.”
[20] It is necessary then to look at these documents. The information charges:
Christopher Mathew H , 249 Parksline Road, Mangaroa, Upper Hutt City.
His occupation is given as sales representative.
The Blood Specimen forms, in handwriting, state:
Hewitt, Christopher Mathew; Sales Consultant; 249 Parkesline Road, Upper Hutt.
The Blood Specimen Medical Certificate, again in handwriting, states:
Christopher Hewitt, Sales Consultant, 249 Parksline Rd, U.Hutt.
[21] Before setting out the description in the criticised Analyst’s certificate, I note that Mr Johnson suggested the handwriting in the third form was hard to read and it could be “Parkslime”. I also note that in the second document I have read the writing as saying “Parkesline” with the addition of an “e” between the “k” and the “s”. It could in fact just be a writing flourish but I have endeavoured to put the issue in the best context for a challenge to accuracy. So one turns to the Analyst’s certificate, the alleged errors in which the Judge describes as “the turning point”. It reads:
Hewitt, Christopher
Sales Consultant
249 Parkes Line Rd
Upper Hutt
[22] There is, as the Court notes, no reference to Mr H ’s middle name, just as there wasn’t on the Medical Certificate. The street address is incorrect to the extent that Parksline is divided into two words. However, in my view the law has long moved away from seeing prosecutions turn on matters such as this. There can be no serious issue as to the person described. There is no reference in the decision to the well known saving provisions that potentially apply. If indeed the acquittal turned on this, it should not have.
Conclusion
[23] Despite these concerns, I have decided to decline the application. It is in my view a serious charge, with an allegation of a blood level of 184. However, the errors are not of Mr H ’s making, there is no question of law of any importance actually needing resolution, and generally one should not see a summary prosecution continuing beyond what would inevitably be nearly 2 years since the offence
occurred. The Judge’s brief stated reasons on the chain of evidence submission are clearly influenced by his knowledge that other points would determine the outcome of the prosecution. If it had stood alone as the pivotal issue, it is probable but not certain that the Judge would have reached the same view. This doubt means that following what would inevitably be a successful case stated appeal, there would then have to be another prosecution. Had the alleged drink driving involved any aggravating factors, I would have decided otherwise but in the circumstances I
decline the application.
Simon France J
Solicitors:
W M Johnson, Barrister, PO Box 962, Wellington
Luke, Cunningham & Clere, PO Box 10 357, Wellington, email: [email protected]
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