Raina v Police HC Hamilton AP 34/01

[2001] NZHC 876

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY AP 34/01

BETWEEN BILL RAINA
Appellant

AND THE POLICE
Respondent

Hearing: 18 September 2001

Counsel: Z Mohamed for the Appellant
C Stevenson for the Respondent

Date of Judgment: 19 September 2001

RESERVED JUDGMENT OF PATERSON J

Solicitors
Zahir Mohamed, PO Box 39-119, Howick for the Appellant
Almao Kellaway, PO Box 17-173, Hamilton for the Respondent

[1] On 15 April 2000 a Constable Lenihan attended the scene of a single vehicle crash on State Highway 2 at Kerepehi. He spoke with a person who told him he was Bill Raina and he had been the driver of the vehicle. This person was injured and was airlifted to Middlemore Hospital in Auckland.

[2] Constable Lenihan arranged for the Auckland Police to have a blood sample taken from the driver. A sample was accordingly taken and the analyst’s certificate which was presented to the Court, showed a blood alcohol reading as 108 mg of alcohol per 100 ml of blood. Mr Raina was charged that contrary to section 56(2) of the Land Transport Act 1998 (the Act) he drove a motor vehicle on State Highway 2 with excess alcohol in his blood. At the conclusion of the hearing on 8 March last Judge MacLean found all necessary ingredients of the charge proved beyond reasonable doubt and convicted Mr Raina. He now appeals that conviction.

Grounds of appeal

[3] There were four grounds of appeal, namely:

[a] The analyst’s certificate and the medical certificate produced in evidence were inadmissible as they do not comply with requirements of section 76 of the Act.

[b] The medical certificate was inadmissible as:

[i] It does not name the officer as required by section 75(2)(e) of the Act (Mr Mohamed in effect abandoned this sub-ground).

[ii] The medical certificate did not specify the approved analyst as required by section 75(4)(b) of the Act.

[c] There was no satisfactory evidence that Mr Raina was the person who was involved in the accident referred to in Constable Lenihan’s evidence.

[d] While the doctor was entitled to cause the blood specimen posted by registered post under section 75(4)(b) of the Act, a constable was not entitled to cause it to be posted. She should have posted it herself.

Identification (point 3(c))

[4] It is convenient to first deal with this appeal point. The issue is whether the Judge had sufficient evidence in front of him to conclude that the driver of the vehicle located by Constable Lenihan was the same person identified by Constable Hill at Middlemore Hospital and from whom the blood sample was taken by consent. This effectively is an appeal from a finding of fact.

[5] The basis of the appeal point is that Constable Lenihan recorded in his notebook that the driver was Bill Raina of 377 Mahia Road, Weymouth, Auckland. This was the address given for Mr Raina when the information was laid. On the other hand the medical certificate completed by the medical officer identified the person from whom the specimen was taken as being Bill Raina, Mechanic, 6 Blair Place, Otara. It was submitted that in these circumstances the Court could not be satisfied that the man from whom the blood sample was taken was the person who drove the motor vehicle involved in the accident.

[6] An appellate court should not normally interfere with the factual findings of the trial Judge unless he has misused the advantage he has of hearing and assessing the witnesses. It should not come to its own conclusions based on its own view of the probabilities. There are cases in which an appellate court is in the same position as the lower court to make factual findings, particularly where evidence is given by way of affidavit, but this is not one of those cases. In the present case this Court should only overturn a factual finding of the Judge if it is satisfied that the Judge was clearly wrong.

[7] The Judge dealt with the question of identification. He noted that Constable Lenihan could not be totally sure that the Mr Raina who was present in Court was the same person he had seen dispatched by air to Middlemore Hospital. On the other hand Constable Hill, who had arranged for the blood to be taken, was quite clear on the point. She identified Mr Raina in Court as the person from whom the blood was taken. Constable Lenihan recorded in his notebook at the time, the name and address given by the driver of the car. He recorded the name and address as Bill Raina of 377 Mahia Road, Weymouth, Auckland. The Judge considered whether there could have been actually two people involved, both involved in serious injuries in the early morning on 15 April. The first who gave his name to Constable Lenihan as Bill Raina of 377 Mahia Road, Weymouth, Auckland, and the second who arrived at Middlemore Hospital later that morning and gave his name as Bill Raina, mechanic of 6 Blair Place, Otara. The Judge’s conclusion was expressed as follows:

“Stepping back and looking at the situation as a whole, it is my view that the Court has to be realistic about matters and on the first point I have no doubt that the person dealt with by Constable Lenihan at the roadside very briefly, then dispatched by air, and the person seen an hour or so later at Middlemore Hospital of the same name were one and the same person.”

[8] In Matthews v Department of Labour (1984) 1 CRNZ 416, Cooke J, giving the decision of the Court of Appeal said at p. 425:

“Identity is not an inevitable inference from these coincidences, but in our view it is an inference that can be drawn beyond reasonable doubt in the absence of any significant evidence to the contrary. Conclusive evidence is not required, only evidence on which a Tribunal of fact may find identity proved . . . .”

[9] As in Matthews, the present case is one where the Police could have and perhaps should have, tendered further evidence to prove identity, particularly in view of a possible challenge to both the medical and the analysis certificates. However, in my view there was sufficient evidence before the Court upon which the Judge was entitled to come to his conclusion that Bill Raina, the driver of the crashed vehicle seen by Constable Lenihan; and Bill Raina, from whom the blood sample was taken at Middlemore Hospital; and Bill Raina, the defendant in the District Court who was present in Court, were one and the same person. This ground of appeal cannot succeed.

Admissibility of analysis certificate and the medical certificate (para 3(a) above)

[10] The point taken by Mr Mohamed was that both the analyst certificate and the medical certificate were inadmissible as they did not comply with the requirements of section 76 of the Act. In my view this point on appeal is misconceived.

[11] Section 76(1) of the Act states:

“(1) In proceedings for an offence against this Act it is to be presumed, in the absence of proof to the contrary, that -

(a) If a certificate referred to in section 75 names a person having the same name, address, and occupation as the defendant as the person from whom the specimen of blood was taken, the specimen was taken from the defendant:

(b) Every approved analyst who signed a certificate referred to in section 75(a) was duly authorised to sign it:

(c) If the bottle in which a blood specimen (or part of a blood specimen) was placed was received by a registered medical practitioner or medical officer in a sealed blood specimen collecting kit, the bottle contained a substance (whether or not a combination or mixture of 2 or more substances) and that substance was a preservative and anti-coagulant.”

[12] Judge MacLean accepted that the prosecution could not rely upon the presumption in s 76 but in respect of the two certificates was of the view that proof had been established by a perfectly satisfactory method. Like the Judge I do not see s 76 relevant in this matter. Section 76 allows a certificate to be used in the absence of proof to the contrary of several matters. The submission made on behalf of Mr Raina, that “the absence of proof to the contrary” was intended for the use and benefit of a defendant and not the prosecutor, is difficult to understand. The purpose of s 76, as I understand it, is that unless there is a challenge to the certificate on any of the information in it, the Court presumes that the matters referred to in s 76(1) and included in the certificate, are proved. As Mr Stevenson submitted it does not follow that if s 76 cannot be relied upon the s 76 certificate is not admissible.

[13] In my view the issue is whether, in the absence of the presumption in s 76 of the Act applying, the certificates provided under s 75 establish the essential ingredients of the offence. It is not a question of admissibility.

[14] The point taken on behalf of Mr Raina was that the Judge was not entitled to make the finding that “ . . . the person described as Bill Raina of 377 Mahia Road, Weymouth, Auckland to Constable Lenihan and describing himself as Bill Raina, Mechanic of 6 Blair Place, Otara, who was seriously ill in Middlemore Hospital later that morning seen by the constable, are one and the same person.” I have already concluded that the Judge was entitled to make that factual finding and that an appellate court should not interfere with the finding. Although it is not necessary to invoke the principle in Trompert v Police [1985] 1 NZLR 357, this is a case where if the Mr Raina, who had been identified as being at the hospital and in Court, was not the driver of the motor vehicle, it would be permissible to draw an adverse inference against Mr Raina from the fact that he did not elect to give evidence to deny that he was the driver of the vehicle.

[15] Mr Mohamed referred to several cases in respect of certificates of this nature. It is not in my view necessary to resolve this case by referring to those decisions. The matter is in my view resolved by the factual finding of identity. The person named in the certificate who gave his address as 6 Blair Place, Otara was satisfactorily identified as the Appellant. In the circumstances it is probably not necessary to rely on the provisions of section 64(2) of the Act which states:

“(2) It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provision as apply.”

If it had been necessary to do so I would have held that there had been reasonable compliance with the certificate under section 75. This ground of appeal also fails.

Alternative ground for inadmissibility of medical certificate (para 3(c) above)

[16] While the points on appeal contained two further points for alleging that the medical certificate was inadmissible, Mr Mohamed abandoned one of these points during the hearing. The only point I need to consider is the submission that the medical certificate did not specify the approved analyst as required by section 75(4)(b) of the Act. Section 75(4)(b) requires the medical officer to certify that the officer “sent or caused to be sent by registered post, personal delivery or delivery by courier, on a specified date, both parts of the specimen . . . to a specified approved analyst in accordance with section 74 . . . .”

[17] Reliance was placed on Constable Hill’s evidence when she responded to a question as to whether the doctor told her to send it to any particular analyst by name by saying “no. . . once it’s handed to us, we know to send it to ESR.” The certificate noted that the doctor “caused to be sent” both specimens to the Analyst in Charge ESR being an Approved Analyst. In my view the manner in which the form is filled out constitutes sufficient compliance with the statutory provision. It was addressed to the Analyst in Charge ESR. That analyst may change from time to time and it is not necessary in my view to refer to the analyst by name. Only where the specimen has been sent to another analyst other than the ESR is there a need to specify that other analyst. Therefore, this point also fails.

Registered post

[18] It was submitted that while the doctor was entitled to cause the blood specimen to be sent by registered post, the constable was not entitled to cause it to be posted. The obligations imposed on the doctor by s 75(4)(b) of the Act was to “sent or cause to be sent by registered post, personal delivery, or delivery by courier, on a specified date, both parts of the specimen . . . .’’ The evidence was that the doctor gave the specimen to the police officer to be sent to the ESR. She placed the specimen in a secure box at the police station to be collected by the courier and then delivered by registered post.

[19] In my view it was sufficient compliance with the provisions of section 75(4)(b) for the medical officer to hand the specimen to the police officer for forwarding by courier and registered post to the ESR. He caused it to be so sent. If there was a departure from the provisions of section 75(4)(b) there was reasonable compliance under the provisions of section 64(2) of the Act.

[20] A subsidiary point was that there was a delay in the sample reaching the ESR. Evidence from the analyst was that “there is no reason to suppose that the delay has affected the reliability of the analysis result”. It was submitted on behalf of Mr Raina that the letter does not assert that the result was definitely accurate in spite of the delay. There was no evidence to challenge this assertion. While it may have been expressed in the negative form it was, in my view, an assertion that the analysis was reliable. This point also fails.

Result

[21] As all points of appeal have failed the appeal is dismissed. Mr Raina was sentenced to six months periodic detention, a sentence which has been automatically suspended pending this appeal. As this sentence will now be activated, he will report to Holmes Road, Manurewa at 8.30 am on 29 September next to commence his periodic detention.