R v Lemalu - [2007] NZCA 533

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA446/07 [2007] NZCA 533

THE QUEEN

v

PELEPELE LEMALU

Hearing: 6 November 2007
Court: Wilson, Ronald Young and Venning JJ Counsel: W M Johnson for Appellant
A M Powell and J D Sutton for Respondent

Judgment: 22 November 2007 at 12pm

JUDGMENT OF THE COURT

A Appeal against legality of blood test dismissed.

BAppeal against determination that analysed blood sample that of appellant allowed.

COrder that whether analysed blood sample that of appellant be determined at trial.

R V PELEPELE LEMALU CA CA446/07 22 November 2007

REASONS OF THE COURT

(Given by Wilson J)

Introduction

[1] The appellant, Mr Lemalu, is charged with driving with excess blood alcohol under s 56(2) of the Land Transport Act 1998, and driving with excess blood alcohol (third or subsequent offence) under s 56(4) of that Act. In a preliminary decision of
17 August 2007, Judge S E Thomas found that the prosecution had proved that Mr Lemalu had a blood alcohol level of 155 milligrams per 100 millilitres of blood, and that the level was ascertained in the manner prescribed by the Act. Mr Lemalu appeals against that decision.

Background

[2] On the evening of 20 September 2005, Sergeant Keleher and Constable Sollitt were on mobile patrol in the Porirua area. When they pulled Mr Lemalu over, he showed signs of recent alcohol consumption and admitted to having drunk “half a dozen beers”. He failed the passive breath test and the breath screening test and was required to accompany the police officers to the Porirua police station for the purpose of an evidential breath test, blood test or both. Mr Lemalu was informed of his rights and signed the acknowledging form. He declined the opportunity to speak to a lawyer.

[3] The first evidential breath test showed 678 micrograms of alcohol per litre of breath. That test failed to print out and Constable Sollitt sought the advice of her supervisor, Sergeant Keleher, before undertaking a second test. The second test gave a reading of 697 micrograms. The defendant then spoke to a lawyer and requested a blood test. The result of the blood test was 155 milligrams of alcohol per 100 millilitres of blood.

[4] Mr Lemalu elected trial by jury. On 13 March 2007, pursuant to an application made by the Crown under s 344A of the Crimes Act 1961, Judge M J Behrens QC ordered that the legality of the testing procedure be determined prior to trial before a Judge alone. The hearing was conducted by Judge Thomas, who found that the tests were legally performed and that the prosecution had proved Mr Lemalu’s excess blood alcohol.

Grounds of Appeal

[5] Mr Lemalu, through his counsel Mr Johnson, appealed on two grounds. The first was that the procedure adopted in the District Courts in relation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lemalu

Details

AGLC: R v Lemalu [2007] NZCA 533
Case: [2007] NZCA 533
Decision Date: 22 November 2007

CaseChat Overview and Summary

The appellant, Pelepele Lemalu, was charged with driving with excess blood alcohol under s 56(2) of the Land Transport Act 1998, and driving with excess blood alcohol (third or subsequent offence) under s 56(4) of that Act. Mr Lemalu appealed against a preliminary decision by Judge S E Thomas, who found that the prosecution had proved that Mr Lemalu had a blood alcohol level of 155 milligrams per 100 millilitres of blood, and that the level was ascertained in the manner prescribed by the Act. The appeal raised several issues, including the legality of the blood test, whether there was compliance with the Transport (Breath Tests) Notice (No 2) 1989, and whether the blood sample analysed was indeed that of the appellant. The Court of Appeal considered the arguments presented by both parties, with the appellant's counsel Mr Johnson asserting that the procedure adopted in the District Courts in relation to s 344A applications required revision, and the Crown arguing that the reasonable compliance provision in s 64(2) must apply. The Court found that the reasonable compliance provision in s 64(2) applied to the failure to exercise discretion, and that the breath test had produced a positive result, which validated the blood test. However, the Court allowed the appeal insofar as it was against the finding that the chain of custody of the blood sample had been established. As a result, an order was made that whether the blood sample analysed was that of the appellant is to be determined at trial.

The Court of Appeal dismissed the appeal against the legality of the blood test, but allowed the appeal against the finding that the chain of custody of the blood sample had been established. An order was made that whether the blood sample analysed was that of the appellant is to be determined at trial. This decision highlights the importance of adhering to the correct procedures when administering alcohol tests, as well as the need for maintaining the chain of custody of blood samples in order to ensure the integrity of the testing process.

Orders