R v Lemalu

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.