Police v Y HC Tauranga Cri-2006-070-699
[2006] NZHC 1515
•6 December 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2006-070-000699
NEW ZEALAND POLICE
Appellant
v
Y
Respondent
Hearing: 6 December 2006
Appearances: Mr S Bridges for appellant
Mr W Nabney for respondent
Judgment: 6 December 2006 at 3.30 pm
JUDGMENT OF LANG J
[on appeal by way of case stated]
Solicitors:
Crown Solicitor, Tauranga
Counsel:Mr W Nabney, Tauranga
NZ POLICE V Y HC TAU CRI-2006-070-000699 6 December 2006
[1] Mr Y was prosecuted in the District Court on a charge of driving with excess blood alcohol. Following a defended hearing Judge Callander dismissed the information. The police now appeal by way of case stated against that decision.
[2] In order to understand the issue that the appeal raises, it is necessary to set out the salient events that occurred prior to the defended hearing.
Background
[3] The police laid the charge against Mr Y after he was stopped for a random breath test whilst driving a motor vehicle on Turret Road, Tauranga on
30 December 2005. He failed a breath-screening test, and elected to provide an evidential blood sample. Analysis of that sample established that 113 milligrams of alcohol per 100 millilitres of blood were present in the blood sample that Mr Y provided. This was in excess of the amount permitted by s 56(2) of the Land Transport Act 1998 (“the Act”).
[4] The police laid an information against Mr Y in the Tauranga District Court on 1 February 2006. The summons that the Court issued on that date required Mr Y to appear and answer the charge on 15 March 2006.
[5] The police subsequently served the summons on Mr Y on 4 February
2004. They did so by way of service on his brother. That mode of service is permitted by s 24(1)(b) of the Summary Proceedings Act 1957.
[6] Mr Y duly appeared in the District Court at Tauranga on 15 March
2006. At his first appearance he entered a plea of not guilty to the charge, and was remanded to a date in July 2006 for a defended hearing.
[7] On 8 June 2006 Mr Y applied, through his counsel, to the Police Commissioner seeking access to part of the blood sample that he had provided to the police on 30 December 2005. His purpose in doing so was to have the sample analysed by a private analyst.
[8] The Police Commissioner, acting through a Superintendent authorised to consider such applications, declined the application because it had been made outside the mandatory 28 day period specified in s 74(7)(a) of the Act.
[9] After several adjournments the charge against Mr Y was eventually heard before His Honour Judge Callander on 13 September 2006. The Judge took the view that the Superintendent had erred in exercising his discretion so as not to allow Mr Y to have access to the blood sample. He ruled that that error rendered the analyst’s certificate inadmissible as evidence. In the absence of the certificate, the police were not able to prove that Mr Y had been driving with excess alcohol in his blood. The information was dismissed for that reason.
The question posed
[10] The case stated poses the following question for the opinion of this Court:
In reaching my decision, was I correct to hold that the mistake in fact as to the date from which time should be calculated for the purposes of an application under s74(7) LTA was sufficient to overturn the Superintendent’s decision to decline the respondent’s application and result in the analyst’s certificate being inadmissible?
[11] There is an obvious difficulty with the manner in which the question is framed. This arises as a result of the reference in the question to the “overturning” of the Superintendent’s decision. The Judge had no power to overturn the Superintendent’s decision and, as I read his decision, he did not purport to do so. That could only have been done in the context of proceedings that specifically challenged the manner in which the discretion was exercised. The function of the Judge in the District Court was entirely different. His function was to determine an entirely different issue. That issue was whether, in light of the actions of the Superintendent, the analyst’s certificate had been rendered inadmissible as evidence against Mr Y . In my respectful view precisely the same issue arises on appeal.
[12] In order to understand this issue, it is necessary to have regard to the relevant statutory framework.
The statutory framework
[13] No issue arises in this case regarding the circumstances in which Mr Y provided a specimen of his blood. For that reason it is not necessary to refer to those sections of the Act that prescribe the circumstances in which a specimen of blood may be given for evidential purposes.
[14] Section 74 of the Act sets out the procedure that enforcement authorities must follow once a blood specimen has been taken. Once the blood specimen is in the custody of the police analyst, it must be dealt with in accordance with that section. Section 74(1) of the Act provides:
74 Procedure for dealing with blood specimens
(1) A blood specimen taken under section 72 or section 73 must be divided into 2 parts, and—
(a) Each part must be placed in a separate bottle and the bottle must then be sealed; and
(b) Each part is a blood specimen for the purposes of this Act
[15] Sections 74(3) and (4) then set out the procedure that is to be followed in relation to the analysis by the police analyst of one of the two parts into which the blood specimen has been divided. If that analysis reveals excess alcohol in that part of the sample, the person who provided the sample is likely to be prosecuted. The remaining part of the sample is then held by the police analyst in case the defendant wishes to have it analysed by a private analyst.
[16] Section 74(5) of the Act sets out the procedure to be adopted when the person from whom the blood specimen has been taken elects to follow that course. It provides:
(5) If a person from whom a blood specimen was taken wishes to have the specimen analysed by a private analyst,—
(a) The person (or the person's solicitor or counsel) may apply to the
Commissioner in accordance with subsection (7); and
(b) If the application complies with subsection (7),—
(i) The Commissioner, or a person authorised for the purpose by the Commissioner, must forward a copy of the application to the approved analyst to whom the blood specimen taken from the person was delivered or posted under subsection (3) or subsection (4); and
(ii) That analyst must send by registered post, personal delivery, or delivery by courier 1 part of that blood specimen to the private analyst specified in the application.
[17] Applications to the Commissioner must be made in accordance with s 74(7). It provides:
(7) An application under subsection (5)(a) must—
(a) Be made in writing to the Commissioner not later than 28 days after— (i) The date on which a summons in respect of an offence against this Act
(which offence is an offence arising out of the circumstances in respect of which the blood specimen was taken) is served on the defendant; or
(ii) If the defendant is arrested under a warrant under section 19 or section
147 of the Summary Proceedings Act 1957 in respect of any such offence, the date on which the defendant is so arrested; or
(iii) In any case to which subparagraph (i) or subparagraph (ii) does not apply, the date on which the defendant is first charged in court with any such offence; and
(b) State the full name and address and the occupation of the person and the date of the alleged offence; and
(c) Identify the private analyst to whom the part of the blood specimen is to be sent and the address of the private analyst.
[18] The requirements of s 74(7) are mandatory. Any failure to comply with the subsection will entitle the Commissioner or his agent to refuse the defendant’s application. This entitlement arises under s 74(6), which provides:
(6)If an application under subsection (5) does not comply with subsection (7), the Commissioner or authorised person may refuse to forward a copy of the application to the approved analyst.
[19] The statutory scheme therefore places responsibility for determining applications under s 74(5) upon the Commissioner or his duly authorised agent. If the application complies with s 74(7), the Commissioner or his agent have no discretion at all. They are obliged by s 74(5)(a)(i) to forward a copy of the application to the police analyst. The police analyst is similarly obliged by
s 74(5)(a)(ii) to forward the remaining part of the sample to the private analyst nominated by the person from whom the blood specimen was taken.
[20] If the application does not comply with s 74(7), however, the Commissioner or his agent have the power, exercisable on a discretionary basis, to refuse to send the application on to the police analyst. That will effectively prevent the donor of the specimen from having it privately analysed.
[21] In order to comply with the requirements of s 74(7) an application must be made within 28 days of the occurrence of one of the events set out in s 74(7)(a). If the defendant has been served with a summons, the 28 day period runs from the date of service. If the defendant was arrested, it runs from the date of arrest. If neither of those events occurs, the period runs from the date upon which the defendant is first charged in Court. Once the 28 day period expires, an application cannot comply with s 74(7). At that point the Commissioner or his agent need to exercise their discretion in deciding whether to pass the application on to the police analyst.
[22] The date from which the 28 day period began to run in the present case was a matter that was central to the reasoning of the Judge in reaching his conclusion that the information should be dismissed. It is therefore appropriate at this point to consider the approach that he took in determining that the information should be dismissed.
The approach taken in the District Court
[23] In the District Court counsel for Mr Y contended that the police had wrongly refused to allow Mr Y to have access to the balance of his blood sample for the purpose of private analysis. The Judge described this issue in the following terms:
The issue raised by Mr Nabney is the important one as to whether the decision of the Police Commissioner to refuse to provide the second blood sample for private analysis was correct.
[24] The prosecution had obviously been alerted to the nature of the argument that counsel for Mr Y proposed to advance. At the hearing it provided the Judge
with a brief of evidence from a Superintendent Kelly. Superintendent Kelly has been authorised by the Commissioner of Police to administer the process relating to applications under s 74(5)(a). He said in his brief of evidence that he became aware on 19 June 2006 that Mr Y ’s counsel had applied to have the balance of Mr Y ’s blood sample released for private analysis. When Superintendent Kelly reviewed the application, he noted that it was dated 8 June 2006 and that the police had received it on 12 June 2006.
[25] The Judge then described the balance of the Superintendent’s brief of evidence in the following terms:
[5] The Superintendent had before him the summons that was served, he says, on Mr Y on 4 February 2006. He observed that the application by Mr Nabney was made some 124 days after the summons had allegedly been served. He then says, “Pursuant to s 74(7) of the Land Transport Act
1998, as the application was made outside of the mandatory 28 day period, I
declined the request and notified Mr Nabney of that decision in writing on
19 June 2006”. The letter sent by Superintendent Kelly to Mr Nabney. It confirms what he says in his testimony, confirming that there was a letter dated 8 June 2006 from Mr Nabney requesting the blood sample be sent for
independent analysis and advising that the application to action the request
was declined for the reason that it was outside the 28 days of the date of the summons and he referred to s 74(7) of the Land Transport Act.
[26] Having referred to Superintendent Kelly’s evidence, Judge Callander accepted that, when a summons is not personally served on the defendant, time will only begin to run under s 74(7)(a) from the date on which the defendant is first charged in Court. In reaching that conclusion he applied an earlier decision of Judge P J Duncan in Police v Doole DC AK CRN 2000 403 4157 19 April 1993. Applying that principle to the case before him, the Judge determined that the 28 day period began to run on 15 March 2006, being the date upon which Mr Y first appeared in Court to answer the charge against him. No issue is taken on appeal with the conclusion that the Judge reached on this point.
[27] This conclusion meant that Superintendent Kelly had proceeded on an incorrect factual assumption. He had assumed that Mr Y was served with the summons on 4 February 2006 and that time began to run on that date. If it was computed from the correct date of 15 March 2006, the application was 85 days late rather than 124 days late as Superintendent Kelly had assumed.
[28] The Judge noted that the Superintendent’s decision to refuse to forward a copy of the application to the police analyst was an exercise of his discretion. He said that the Superintendent’s function was “to assess the facts and to make a proper considered opinion as to whether the sample should be forwarded to the approved analyst”. He then went on to say:
[16] Here the Superintendent, as we have seen, declined to do that. He declined to do so on the basis of his assessment of the timeframe that had elapsed since so called service on Mr Thomas. We now know, and accordingly to my finding of law, there was no service on Mr Y on the date referred to, and yet that was the date that was relied upon and referred to by the Superintendent. It should have been the date on which the defendant was first charged in court.
…
[18] It may well have been that the Superintendent might have reached a quite different conclusion if he had been focusing on s 74(7)(a)(iii) as a commencement of the appropriate timeframe. The dates were quite different. We do not know the answer to that question. It may well have been that the Superintendent might have reached the same decision as he did, basing his assessment of the timeframe on the date alleged service [sic] on the defendant.
[19] In my view it has been established by the defence here that the wrong date was considered by the Superintendent and in my view Mr Nabney’s submission that the exercise of the discretion was flawed, has been adequately argued. It must be remembered that it is incumbent upon the prosecution to establish the important ingredients required to establish proof of a charge of this nature. In my view, that aspect of the case has not been adequately proved. I find that the charge against this defendant must, for the reasons I have given, be dismissed. I dismiss it accordingly.
[29] In essence, therefore, the Judge dismissed the information on the basis that the prosecution had failed to prove that Superintendent Kelly had exercised his discretion on a correct basis.
Decision
[30] The starting point, in my view, is the central issue with which the learned District Court Judge ought to have been concerned. That issue related to the admissibility of the analyst’s certificate that the prosecution wished to adduce as evidence against Mr Y . Although he did not articulate his decision in precisely this way, the Judge must have concluded that the certificate was rendered
inadmissible by virtue of the manner in which Superintendent Kelly had exercised his discretion under s 74(6) so as to refuse to send Mr Y ’s application to the police analyst.
[31] The admissibility of analysts’ certificates is, however, expressly confirmed by s 75(1) of the Act. It provides:
75 Certificates in blood-alcohol proceedings
(1) Except as provided in section 79, production of a certificate to which this section applies in proceedings for an offence against this Part is sufficient evidence, in the absence of proof to the contrary, of such of the matters as are stated in the certificate and of the sufficiency of the authority and qualifications of the person by whom the certificate is made and, in the case of a certificate referred to in subsection (5), of the person who carried out the analysis.
[32] The effect of s 75(1) is that the Court is required to accept an analyst’s certificate as sufficient evidence, in the absence of proof to the contrary, of the matters referred to in the certificate. Section 75(1) is subject only to the provisions of s 79 of the Act. If the analyst’s certificate was inadmissible in the present case, the lack of admissibility could therefore only arise as a result of the operation of s 79.
[33] Section 79 prescribes the circumstances in which an analyst’s certificate will not be admissible in proceedings before the Court. The only provision within s 79 that could possibly have been relevant in the present case was s 79(2), which provides:
(2) No certificate referred to in section 75(5) (which certificate is given by an approved analyst and relates to the proportion of alcohol, a drug, or both, found to be in a blood specimen) is admissible in evidence in proceedings for an offence against this Act if—
(a) Application has been made in accordance with section 74 for 1 part of the blood specimen to be sent to a private analyst; and
(b) That part of the specimen has not been sent to the private analyst in compliance with the application;—
but this subsection does not apply in respect of a specimen destroyed under the authority of section 74(8) before the date of the application.
[34] The purpose of s 79(2) is plain. It operates to prevent an enforcement authority from relying upon an analyst’s certificate in a prosecution under the Act until such time as an application made in accordance with s 74 has resulted in the balance of the defendant’s blood sample being forwarded to the nominated private analyst. In practical terms, when an application under s 74(5) is granted the determination of any prosecution will need to be deferred until such time as the defendant has obtained advice from the private analyst.
[35] Judge Callander referred to s 79(2) as follows:
[17] Mr Nabney says that the refusal was thus based on a flawed assessment of the facts and should render the production of the analyst’s certificate inadmissible. S 79 of the Act covers that situation. S 79(2) says
…
[36] It is implicit from the Judge’s decision, and in particular from his subsequent comment (at [19]) that Mr Nabney’s submission had been “adequately argued”, that he accepted that s 79(2) came into play in the circumstances of the case before him. That is the only basis upon which he could have ruled the certificate inadmissible.
[37] In order to reach this decision the Judge must also have concluded that the letter dated 8 June 2006 from Mr Y ’s counsel was an application that, for the purposes of s 79(2)(a), had been “made in accordance with s 74”. He reached that decision notwithstanding the fact that the letter had been sent and received well outside the time limit prescribed by s 74(7)(a).
[38] In argument before me Mr Nabney submitted that an application could be made in accordance with s 74 notwithstanding the fact that it was filed outside the mandatory time limit prescribed by s 74(7)(a). Had the legislature used the phrase “pursuant to” rather than “in accordance with”, Mr Nabney’s submission may have had some force. I consider, however, that in using the phrase “in accordance with” the legislature intended to restrict the operation of s 79(2) to applications made in compliance with s 74. That, in my view, is the ordinary and natural meaning to be given to the phrase “in accordance with”. It would also be surprising if an analyst’s certificate could be ruled inadmissible under s 79(2) notwithstanding the
fact that the application made under s 74(5) did not comply with the mandatory requirements of s 74(7).
[39] In the present case the application could not comply with s 74(5)(a), because Mr Y ’s counsel did not send his letter to the police until well after the expiration of the 28 day period that commenced on 15 March 2006 when Mr Y first appeared in Court.
[40] In my view this finding is decisive in the present case. The application cannot be viewed as having been made in accordance with s 74 when it was made 85 days later than s 74(7)(a) required it to be made. For this reason the provisions of s
79(2) of the Act did not come into play at all. The analyst’s certificate was therefore admissible against Mr Y by virtue of s 75(1) of the Act. That finding is sufficient to enable me to answer the question posed by the case stated.
[41] My conclusion on this point also means that, apart from those rare situations in which issues of unfairness or bad faith arise, it is not open to a Court that is hearing a criminal prosecution to go behind the words of the statute in determining whether an analyst’s certificate is admissible as evidence against the defendant. In the absence of any of the circumstances prescribed by s 79, such certificates are admissible by virtue of s 75(1). If a challenge is to be mounted to the exercise of the discretion under s 76(2), that must be done by way of judicial review proceedings. Interim relief would no doubt be available in the context of such proceedings to protect the position of the defendant until such time as the application for judicial review could be determined. Such a challenge cannot, in my view, be in the form of a challenge to the admissibility of an analyst’s certificate in criminal proceedings brought under the Act.
The ambit of the discretion under s 74(6)
[42] The present appeal is not an application for judicial review of the manner in which Superintendent Kelly exercised his discretion under s 74(6) of the Act. It is therefore not strictly necessary for me to comment upon the manner in which the discretion under that section is to be exercised. That issue may fall to be determined
in the future in another case. Nevertheless, given that there does not seem to be any authority on the point, I propose to briefly consider the ambit of the discretion vested in the Commissioner or his agent under s 74(6).
[43] As in the case of any other discretion, the discretion under s 74(6) cannot be exercised capriciously or arbitrarily. It may also be vulnerable to review if it is exercised on the basis of an erroneous principle.
[44] In considering this issue, it is important to bear in mind the context within which the discretion exists. That context is provided by s 74 itself. In particular, the fact of non-compliance with s 74(7) gives rise to the ability to exercise the discretion. As a matter of principle, therefore, the discretion must be exercised in a manner that is consistent with the overall purpose of s 74, and with that of s 74(7) in particular.
[45] The purpose of s 74 as a whole is relatively clear. It is designed to provide a certain and unambiguous procedure for dealing with blood specimens that are provided under s 72 or s 73 of the Act.
[46] The purpose of s 74(7) is also readily discernible. First, it is designed to ensure that defendants exercise their statutory rights in a timely manner once criminal proceedings have been instituted. This necessarily balances the right of the defendant to adequately prepare his or her defence against the interest of the state in ensuring that prosecutions under the Act are not unduly delayed or frustrated by tardy applications to have blood specimens privately analysed.
[47] Secondly, it is designed to ensure that the Commissioner receives adequate information to be able to process applications under s 74(5) in an efficient and timely manner.
[48] The desirability of providing the Commissioner with some flexibility in relation to non-complying applications is also obvious. It would be unfortunate if the Commissioner was required to refuse an application merely because it was deficient in relation to a matter of tiny detail. Similarly, it may be entirely
appropriate for the Commissioner to grant an application in circumstances where, for good reason, it is received a short time after the expiration of the 28 day period referred to in s 74(7)(a).
[49] The 28 day requirement is, however, an important feature of the framework created by s 74. It ensures that applications are made promptly. It would therefore be unfortunate if the Commissioner regularly accepted late applications, particularly if (as in the present case) they are lodged months out of time. That would defeat the entire purpose of the time limit imposed by s 74(7)(a).
[50] For this reason the fact that an application is filed late will always be a relevant factor to be taken into account when the Commissioner or his agent exercises the discretion under s 74(6). The extent to which the application is out of time, and the reasons for it, will also be relevant.
[51] Given that the legislature has required applications under s 74(5) ordinarily to be made within 28 days, it follows that the Commissioner or his agent will only be justified in exercising their discretion to grant a late application where the delay has been very short and/or in circumstances where the delay is explained to their satisfaction. Other issues such as absence of prejudice to existing criminal proceedings may also be relevant. In such situations it is therefore important that applications be accompanied by sufficient information regarding these, and any other, relevant factors to enable the discretion to be exercised on a principled basis.
[52] In the present case Superintendent Kelly exercised his discretion based on an erroneous assumption that the application was filed 124 days late. In principle, however, I cannot see how the application could be viewed in any significantly better light by virtue of the fact that it was in fact filed 85 days late. It was still grossly out of time on any view of the facts.
[53] Moreover, the letter dated 8 June 2006 provided no explanation at all for the lateness of the application or, indeed, regarding any other factors that would have justified Superintendent Kelly in exercising his discretion to grant the application notwithstanding the fact that it was filed late. On the material presently available, I
consider that he would have been entirely justified in refusing the application even if he had been aware of the correct position. Indeed, had he exercised his discretion in favour of Mr Y , it is likely that he would have acted on a basis that was inconsistent with the purposes of s 74.
[54] I am therefore satisfied that, even if this proceeding had been an application for judicial review of the manner in which Superintendent Kelly exercised his discretion, Mr Y would not have succeeded in having the decision set aside.
Result
[55] The appeal is allowed. The question posed by the case stated is answered
“No”.
[56] The dismissal of the information is reversed and the information is remitted to the District Court for re-hearing in accordance with the opinion of this Court.
Lang J
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