R v Morunga

[2009] NZCA 292

IN THE COURT OF APPEAL OF NEW ZEALAND

CA107/2009
[2009] NZCA 292

THE QUEEN

v

WILLIAM PORA MORUNGA

Hearing:25 June 2009

Court:Baragwanath, Randerson and Miller JJ

Counsel:W M Johnson for Appellant

S B Edwards for Crown

Judgment:9 July 2009 at 10.00 a.m.

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

[1]       Mr Morunga appeals against his conviction for driving on 8 February 2007 with excess blood alcohol, being a third or subsequent offence.  A jury found him guilty at trial on 10 February 2009 following a two-day trial.

[2]       Mr Johnson advances two grounds of appeal.  The first is that the evidence did not sufficiently prove the previous convictions, because the Crown relied upon no less than three different versions of a certificate recording a conviction entered following a hearing on 9 June 2005.  Further, Judge Kiernan failed to leave the reliability of the certificates to the jury and simply ruled that the third certificate evidenced the previous conviction.  The second ground of appeal is that there was no sufficient evidence of the blood alcohol level, in circumstances where the doctor who took the blood sample was called but could not confirm that an approved blood specimen collecting kit was used and that it had not passed its expiry date.

The trial

[3]       Mr Morunga was committed for trial after depositions in the Gisborne District Court.  It was soon apparent that Mr Johnson would mount evidential challenges.  A s 344A application was filed by Crown counsel in relation to certificates of conviction and a certificate of blood analysis, but it was withdrawn and Mr Johnson was directed to file a memorandum identifying in full the pre-trial issues to be determined.  He did so by memorandum of 27 August 2008, but no pre-trial hearing was allocated and the objections were determined at trial.

[4]       The trial was split into two phases.  The jury was first empanelled and determined, on what counsel called a dummy indictment, whether Mr Morunga was guilty of driving with excess blood alcohol.  Having found that he was, the jury was not discharged but was presented with the full indictment containing the allegation that it was a third or subsequent offence.  This practice was discussed in R v Livingston [2001] 1 NZLR 167 (CA); see also R v MacLeod (2002) 19 CRNZ 513 (CA) and s 341 of the Crimes Act 1961.

[5]       Before the trial began Mr Johnson moved for a discharge under s 347 of the Crimes Act.  Two certificates of conviction had been presented at depositions, evidencing convictions in 1992 and 2005.  Counsel took issue with the 2005 conviction, contending that the certificate was invalid because it did not contain a date of offence.  The Judge ruled that the record produced at depositions set out Mr Morunga’s name and date of birth, although his second forename, Pora, was mis-spelt as “Para”.  The certificate otherwise complied with s 129 [sic] of the Evidence Act 2006.  The particulars of the previous offence were sufficiently detailed.

[6]       Mr Johnson mounted a second s 347 application at the end of the Crown case at the first phase of the trial.  He argued that the blood specimen collecting kit had been insufficiently described in the evidence: neither the doctor nor the police officer could give evidence about the wording on the box containing the kit or the kit’s expiry date.  He also argued that Mr Morunga’s second forename had been incorrectly spelt in the analyst’s certificate as “Poru”, such that the chain of evidence was not sufficiently established.  Again, the Judge rejected these submissions.  The police did not rely on s 75 of the Road Transport Act 1998, because the doctor gave evidence.  The police officer identified the kit as an official blood specimen collecting kit of the sort kept at most police stations.  The use of the kit was fully described in evidence.  The Judge cited Kemp v New Zealand Police HC WN CRI 2007-485-141 7 March 2008 for the proposition that evidence that a blood specimen collecting kit is only required when a s 75 certificate is put into evidence.  The chain of evidence sufficiently established the blood specimen taken was the one tested, and the mis-spelling of the second forename did not render it inadmissible.

[7]       Yet another s 347 application was mounted at the end of the second phase of the trial.  (The Judge stated in her reasons that the application was made after her summing up, while Mr Johnson believes the application was made at the end of the Crown case, but nothing turns on that.  Mr Morunga did not give evidence.)

[8]       This application again focused on the proof of previous convictions.  A second certificate of conviction relating to the 2005 conviction had been obtained and given to counsel, although the first certificate had been ruled admissible.  It provided more details of the offence but contained the same mis-spelling of Mr Morunga’s name as the first.  However, a third certificate was produced in evidence.  There was and is no suggestion that it was inaccurate or wrong in any particular. 

[9]       Mr Johnson argued that the certificate produced at depositions was the only one that could be admitted in evidence.  The Judge rejected that submission.  She further refused to allow the second version to be put before the jury, reasoning that there was no prejudice to Mr Morunga since the third certificate was properly admissible.

Admissibility of previous convictions

[10]     Before us, Mr Johnson complained about the three versions of the certificate of conviction, maintaining that they raise an issue about the adequacy of the criminal records kept by the District Court.  He argued that the first certificate, which had been produced at depositions, did not specify that the offence was that of driving on a road with excess breath alcohol, but merely described the offence as exceeding 400 micrograms of alcohol per litre of breath.  Nor did it specify the date his disqualification began.  It also mis-spelt Mr Morunga’s second forename, as did the second certificate.

[11]     Mr Johnson further complained that he ought to have been permitted to exploit the three different certificates by inviting the jury to conclude that there was reasonable doubt about the 2005 conviction.

[12]     These arguments cannot surmount s 71 of the Summary Proceedings Act 1957, which provides that a certified copy or extract from the criminal records, sealed with the seal of the Court and purporting to be signed and certified by the Registrar, shall at all times without further proof be admitted in all Courts and places as evidence of the entry and proceeding referred and of the regularity of that proceeding.  The section provides so far as relevant: 

(1)       The Registrar of each Court appointed for the exercise of criminal jurisdiction shall keep [Criminal Records] in the prescribed form, in which shall be entered a minute or memorandum of all proceedings in the Court under its criminal jurisdiction. Every such minute or memorandum shall be signed by the [District Court Judge] or Justice or Justices [or Community Magistrate or Community Magistrates] presiding over the Court.

(3)       Any entry in the Criminal [Records] or a copy thereof or extract therefrom, sealed with the Seal of the Court and purporting to be signed and certified by the Registrar as a true copy or correct extract, shall at all times without further proof be admitted in all Courts and places whatsoever as evidence of the entry and proceeding referred to thereby and of the regularity of that proceeding.

[13]     The prescribed criminal record form is found in Schedule 1 of the Summary Proceedings Regulations 1958.  The particulars in the form are somewhat less extensive in those contained in the certificates used in this case.  The certificate must specify the full name and address of the defendant, give brief particulars of the offence, and record the plea and the decision.  In this case, each of the three certificates did so.  We accept that the certificate is merely evidence of the matters that it must contain (Matthews v Department of Labour [1984] 2 NZLR 400 at 406 (CA)), and may be rebutted. But none of the certificates left room for doubt that Mr Morunga was the man convicted.

[14]     Further, s 139 of the Evidence Act provides an alternative method of proving convictions.  Under subs (3) it is additional to any other manner of proving a conviction that is authorised by law, and it is available for a certificate purporting to be signed by a Registrar and recording a conviction.  Under subs (5), there is a presumption, in the absence of evidence to the contrary, that the person whose name is stated in a certificate of conviction is the person concerning whom the evidence is offered.  That presumption applies where a certificate under s 139 is offered in evidence in a proceeding to prove conviction and the name of the person stated in the certificate is substantially similar to that of the person concerning whom the evidence is offered.  The certificate given in this case complies with s 139, in that it purports to be signed by a Registrar and provides particulars of the offence charged and Mr Morunga’s identity, including his name and date of birth.

[15]     In these circumstances, the Judge correctly ruled that the third certificate was admissible and no miscarriage was occasioned by her refusal to admit the second.  The third certificate was proof, in the absence of evidence to the contrary, that Mr Morunga was the person previously convicted.  There was no evidence to the contrary; the previous certificates confirmed, rather, that Mr Morunga was the person concerned.  As this Court observed when dealing with the same point in R v MacLeod (above, at [16]) it is difficult, to say the least, to see where reliance on an earlier defective certificate would get the defence when the legislation provided that the later certificate was evidence of the conviction.

[16]     This ground of appeal fails.

Blood specimen kit

[17]     As noted, there was evidence that an official blood testing kit was used by the doctor when collecting the blood specimen, but neither she nor the officer was able to confirm the expiry date of the kit.

[18]     The police were unable to rely on a certificate under s 75 of the Land Transport Act 1998, because s 79 provides that a certificate relating to the taking of a blood specimen by a medical practitioner is inadmissible where the medical practitioner is required to give evidence, as happened in this case.  So the police had to prove that a specimen of blood was taken from Mr Morunga, that it was divided into two parts and placed in separate bottles, and that an enforcement officer had within seven days delivered or caused its delivery to an approved analyst, as required under s 74(3) of the Act.  It was further necessary to prove that the specimen was the same specimen referred to in the ESR analyst’s certificate admitted in evidence under s 75(5) of the Act.

[19]     Although s 74(2) provides that one or more preservatives and anti-coagulant substances may be added to a blood specimen, there is no general requirement that a blood specimen collecting kit, as defined, be used.  Rather, s 74(1) simply envisages that two sealed bottles will be used.  The requirement that a blood specimen collecting kit be used is peculiar to s 75(2), which provides for a certificate detailing the taking of the sample.  Under s 75(1) such a certificate is sufficient evidence of the matters contained in it, subject to s 79.  Because the doctor was called under s 79 in this case, it is irrelevant that an approved blood specimen collecting kit may not have been used.  The same point was made in Kemp v NZ Police (above, at [22]).  Mr Johnson’s argument that such a requirement ought to be read into the Act is untenable.

[20]     In any event, the evidence sufficiently established that such a kit was indeed used, and the defined term “blood specimen collecting kit” contains no reference to an expiry date.  The analyst’s certificate records that no such deterioration or coagulation was found as would prevent proper analysis.

[21]     The final point concerns the mis-spelling of Mr Morunga’s second forename in the analyst’s certificate.  Under s 75(5) such a certificate is admissible to prove that a blood specimen in a sealed bottle was delivered to an approved analyst on a specified date, the blood alcohol level, and that no such deterioration or coagulation was found as would prevent proper analysis.  The certificate in this case specified the date of delivery, the sender, and the registered post number.  The Judge found that the chain of evidence had been established, and there is no suggestion that the sample tested was not the sample that was taken from Mr Morunga.  In the circumstances, this argument is also hopeless. 

Observation

[22]     In Aylwin v Police [2009] 2 NZLR 1, the Supreme Court held:

[17]     Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable.  The great majority of drivers comply with their obligations in this respect.  A small minority do not.  Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences.  The courts must give full effect to that clear parliamentary indication.

[23]     Mr Johnson conceded that he had not fully familiarised himself with Aylwin.  That is regrettable, for it confirms authoritatively that lower Courts should not strain the statutory language to breathe life into technical or unmeritorious defences of the sort that were advanced in this case.

Decision

[24]     The appeal is dismissed.

Solicitors:
Crown Law, Wellington