Rangihika v Police
[2017] NZHC 1031
•18 May 2017
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2017-470-9 [2017] NZHC 1031
BETWEEN DAVID NGATAI RANGIHIKA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 18 May 2017 Appearances:
Appellant on own behalf
S Davison for the RespondentJudgment:
18 May 2017
ORAL JUDGMENT OF GORDON J
Solicitors: Crown Solicitor, Tauranga
Copy to: Appellant
RANGIHIKA v POLICE [2017] NZHC 1031 [18 May 2017]
Introduction
[1] Mr Rangihika was found guilty of one charge of driving with excess blood alcohol (third or subsequent conviction) on 8 February 2017 following a Judge-alone trial in the District Court at Tauranga. Mr Rangihika appeals his conviction on the basis that a miscarriage of justice has occurred.
District Court decision
[2] Judge Harding summarised the evidence against Mr Rangihika as follows:1
[3] There is no doubt that on 25 April 2016 Mr Rangihika was driving a motor vehicle on Cameron Road. He acknowledges that in a s 9 agreement produced to the Court at an early stage. …
[4] Sergeant Ramsden, whose evidence was largely unchallenged, was the police officer concerned. He was in a marked patrol car in full uniform and he used the usual and familiar checklist which has been produced. His evidence was that he stopped Mr Rangihika, who acknowledged who he was, as a result of him going through a stop sign at a little after two in the morning. He required a breath screening test and administered that. That indicated the presence of alcohol. According to the record Mr Rangihika acknowledged he had a couple of beers.
[5] He required Mr Rangihika to accompany him to the police station and provided Bill of Rights advice at the police station. After the Bill of Rights advice was repeated and no lawyer was sought, an evidential breath test was conducted and the result was 924. Mr Rangihika was advised of the results of that test.
[6] He elected blood and in due course a nurse, Mrs Church, arrived and took a sample of blood from his vein. Using the appropriate documentation she recorded that. Having used the approved blood specimen collecting kit, [she] handed the two vacutainer results and the documentation to Sergeant Ramsden, who arranged for its conveyance to ESR with tracking records. It was received at ESR and analysed with a certificate produced by an authorised analyst, Mr Hosking, who has been called to give evidence certifying that on analysis the proportion of 203 plus or minus 11 was found to be the proportion of alcohol in the blood. He was able to say with 99.9 percent plus probability, that the proportion of alcohol in the blood specimen was greater than 80 milligrams per hundred millilitres. There was no deterioration or congealing to prevent proper analysis.
[3] Judge Harding also addressed three issues which had been raised by
Mr Rangihika for consideration. As each of these points has been raised again on appeal, I will not set them out in any detail here. It is sufficient to say the Judge was
1 New Zealand Police v Rangihika [2017] NZDC 7022.
unable to find anything of significance in the matters raised by Mr Rangihika and found the charge against him to be proved beyond reasonable doubt.
Grounds of appeal
[4] Mr Rangihika has filed submissions in support of his appeal which he has supplemented in oral submissions today, which appear to raise the following grounds of appeal:
(a) There was an unjustified delay in bringing the case against him to trial;
(b)The amendment of the charging document in August 2016 was unfair;
(c) The breath screening process undertaken by Sergeant Ramsden was unlawful;
(d) The election to give blood was outside the permitted time of
10 minutes under s 70A of the Land Transport Act 1998 (LTA);
(e) The nurse who conducted the blood test could not sufficiently identify
Mr Rangihika;
(f) The testing result of 203 +/- 11 millilitres of alcohol per 100 millilitres of blood was insufficiently precise;
(g)The analytical methods employed by ESR were flawed and inconsistent with the requirements of the LTA; and
(h)The prosecution failed to prove an element of the charge, namely that Mr Rangihika has two previous convictions for driving with excess breath or blood alcohol.
[5] I will address each of these points in turn.
Delay in bringing the case to trial
[6] Mr Rangihika was stopped by Sergeant Ramsden and underwent blood testing on 25 April 2016. The charge against him was filed in the District Court at Tauranga on 14 May 2016 and was amended on 2 August 2016. The trial took place on 8 February 2017.
[7] Mr Rangihika argues that the time required to bring the case against him to trial is excessive and has caused him significant financial, physical and mental hardship. He believes that the matters should have been resolved with no more than eight hours of court time and that the trial should have been completed months earlier. Had the trial proceeded prudently, Mr Rangihika says, he could by now have completed any sentence imposed upon him and moved on with his life including taking advantage of work opportunities which he says he has had to forego.
[8] The New Zealand Bill of Rights Act 1990 provides for the right of every person who has been charged with an offence to be tried without undue delay. The Supreme Court has held that the question of “whether there has been undue delay in a particular case is a function of time, cause and circumstances.”2 Relevant considerations include any time requirements, the actions of the accused and/or the prosecution, and limits on institutional resources.3
[9] I am not persuaded that there has been undue delay in bringing the case against Mr Rangihika to trial. First, the time between filing charges and the date of trial was only nine months. While that may seem a lengthy period of time to a person in Mr Rangihika’s position, it is not excessive. Second, it appears that the delay may be attributable at least in part to Mr Rangihika’s difficulties in relation to legal representation. Judge Harding addressed the delay in the course of the trial, telling Mr Rangihika:
You had a lawyer, you failed to make arrangements. It was set for hearing in
November. Your lawyer then withdrew, it was then called again in May
2016. You wanted legal advice, it was put off again. Then 3rd of June, itcame back again, you discovered you weren’t entitled to legal aid and it was
put off again for you to see your own lawyer.
2 Williams v R [2009] NZSC 41, [2009] 2 NZLR 750 (emphasis in original).
3 At [11], citing Martin v Tauranga District Court [1995] 2 NZLR 419 (CA) at 787 – 788.
[10] Mr Rangihika does not appear to challenge this account of events. Had the trial progressed as initially scheduled, the charge against Mr Rangihika would have been determined in November 2016. Unfortunately, however, complications such as those outlined by Judge Harding above will almost inevitably result in delays. That is the reality of life in a busy court situation.
Unfair amendment of charge
[11] When the charge of driving with excess blood alcohol was initially filed in
May 2016, the alleged blood alcohol content was 203 milligrams of alcohol per
100 millilitres of blood. The certificate provided by ESR indicated that there was an uncertainty of 11 milligrams per 100 millitres of blood. In other words, there was a
99.9 per cent probability that Mr Rangihika’s blood alcohol content at the time of testing was somewhere between 192 and 214 milligrams per 100 millilitres of blood.4 On 2 August 2016, apparently following a challenge by Mr Rangihika and/or his counsel, the charge was amended to state that Mr Rangihika’s blood alcohol content on 25 April 2016 was 192 milligrams per 100 millilitres of blood.
[12] Mr Rangihika submits that the amendment of the charge was unfair, for a number of reasons. The first reason appears to be that the amendment of the charge created some ambiguity about the evidence and/or the charge against him, as a result of which he was deprived an opportunity to test the ESR evidence. Mr Rangihika’s submission at trial in respect of this issue describes the basis for this objection in clearer terms:
Okay, Sir, final submissions, oh, no, my position today, Sir, is that at no time were we provided with what could be considered a compliance certificate with the blood reading as required by the legislation. There was some obfuscation of the reading, evidenced by the prosecutions reduction of the charge from 203 to 192 from the period of May through to August last year. So that obfuscation led to the decision to reduce the charge in August, thereby disentitling us to the ability to challenge the result because the blood sample had expired by August, Sir, and that is in Joanne’s, Church’s evidence where she states the blood sample expired in August.
[13] Judge Harding considered this submission in the course of the trial and held:
4 Notes of Evidence of Matthew Robert Hosking, 8 February 2017, at 21.
[11] As to the amendment of the charge and the significance of 200, I am unable to attribute to that which occurred in August 2016 the significance attributed to it by Mr Rangihika. He complains that by the time the amendment was done he had effectively run out of the opportunity to get the second sample tested. But that was an opportunity which had by that stage existed from 16 May, during which time he had had the opportunity for legal advice. Indeed, he had had legal advice and instructed counsel who appeared for him on both 10 June and 26 July. On 2 August the amendment was made without opposition from then counsel. In the circumstances Mr Rangihika has had plenty of time to get the sample analysed, if that is what he wished.
[14] I agree that it is difficult to see how Mr Rangihika has suffered any prejudice in respect of his opportunity to test the ESR evidence. He could, at any stage after being charged, have sought independent analysis of the blood sample, but chose not to do so. He could, at any stage up to and including the trial, have challenged the analytical processes employed by ESR and/or their certification methods, but he did not do so. The amendment of the charge did not affect his ability to present a defence in this respect.
[15] Mr Rangihika further submits that he has suffered some prejudice because the amendment of the charge meant that s 65 of the LTA no longer applied to him. That section provides for mandatory penalties in cases where the proportion of alcohol in a person’s blood exceeds 200 milligrams of alcohol per 100 millilitres of blood. Mr Rangihika says that the application of s 65 would have mandated a “completely different defensive approach.” With all due respect, I do not think that submission can stand. Section 65 does not in any way affect the matters which are relevant to proving or defending an EBA charge. The only relevance of that section is in determining the sentence that must be applied upon conviction. In any case, Mr Rangihika had six months between the amendment of the charge and his trial, which is more than enough time to consider and implement any change in his defence strategy.
Failure to show breath screening result
[16] In his submissions on appeal, Mr Rangihika alleges that Sergeant Ramsden failed to show him the breath screening result before Mr Rangihika accompanied him to the station. However, in the course of the trial the prosecution produced as evidence the breath and blood alcohol procedure sheet, which states that
Mr Rangihika was shown the result of his breath screening test. Mr Rangihika did not challenge that aspect of the document. Further, Mr Rangihika explicitly stated that he had “no issues with [Sergeant Ramsden’s] testimony up to the point where we arrived at the police station”. I am satisfied that Mr Rangihika was shown the result of his breath screening test.
Delay in election to give blood
[17] The next ground of appeal is that Mr Rangihika was permitted to elect a blood test more than 10 minutes after receiving the result of his evidential breath test. The breath and blood alcohol procedure sheet records that the 10 minute period was commenced at 2.42 am and that Mr Rangihika was advised the period had concluded at 2.54 am. At 2.58 am, Mr Rangihika elected to undergo a blood test.
[18] Section 70A of the LTA provides:
70A Right to elect blood test
(1) A person has the right, within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), to elect to have a blood test to assess the proportion of alcohol in his or her blood, if the result of that person’s evidential breath test appears to be positive, and—
(a) the result of person’s evidential breath test indicates that the proportion of alcohol in the person’s breath exceeds 400 micrograms of alcohol per litre of breath; or
(b) the person is apparently younger than 20; or
(c) the person holds an alcohol interlock licence or a zero alcohol licence.
…
[19] The difficulty which Mr Rangihika faces in respect of this ground of appeal is that s 64(2) of the LTA provides:
(2) It is no defence to proceedings for an offence that a provision forming part of section 68 to 75A, and 77 has not been complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.
[20] That subsection should be read in light of the following comment of the
Supreme Court in Aylwin v New Zealand Police:5
[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.
[21] In my view, the present ground of appeal falls squarely within the category of “technical and unmeritorious defences” that Parliament sought to prohibit by the enactment of s 65(2). Mr Rangihika chose to undertake a blood test, presumably because he thought it would benefit his cause. A six minute delay in making that election is immaterial, particularly since the blood test itself did not take place until
3.20 am, some time later.
Insufficient identification by nurse
[22] Mr Rangihika submits that the nurse who took his blood sample for testing, Mrs Joanne Church, was unable to sufficiently identify him when giving evidence. He submits that this demonstrates a compromised memory, which is attributable to the delay between the date of his offending and the date of his trial. I consider that point has been adequately dealt with in relation to his first ground of appeal. Further, on the basis of the documentary and oral evidence given at trial, there can be no doubt whatsoever that Mr Rangihika was the person from whom Mrs Church took the blood sample.
Test result insufficiently precise
[23] As noted above, the certificate provided by ESR estimates that, at the time of testing, Mr Rangihika had a blood alcohol content of 203 milligrams per
100 millilitres of blood, with an uncertainty of 11 milligrams per 100 millilitres of blood. Mr Rangihika submits that this evidence is inconsistent with a requirement in
the LTA that a “specified proportion” of alcohol be found in the specimen. Further,
5 Aylwin v New Zealand Police [2008] NZSC 113, [2009] 2 NZLR 1.
he says that the evidence is inconsistent with the unambiguous syntax of the charging documents.
[24] Faced with similar arguments in the course of Mr Rangihika’s trial,
Judge Harding held:
[9] Dealing with each of those matters I am satisfied that the certificate is sufficiently clear. It is, I infer, as precise as scientific analysis enables. It is on any measure proof, I am satisfied, beyond reasonable doubt, that the level is over 80. Mr Rangihika did not develop in any way his cross- examination of Mr Hosking, as to why there was the variation or whether that was the best that could be done, in effect.
[10] In the circumstances, I cannot find anything to assist Mr Rangihika in his complaint about the lack of specificity. It is, in my view, a certificate within the realms of scientific possibility in that it is the best result ESR can obtain in the circumstances I infer. It is on any examination well past 80. The questions of reasonable compliance raised by Mr Rangihika, by somewhat of a side-wind, do not arise.
[25] I agree with those conclusions. The LTA does not, anywhere in its text, require that a “specified proportion” of alcohol be found in a person’s blood. Rather, the text of the relevant section provides:
(2) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, exceeds
80 milligrams of alcohol per 100 millilitres of blood.
[26] There is no requirement in that section that the prosecution prove the precise proportion of alcohol in a defendant’s blood. All that is required is that the prosecution prove, beyond reasonable doubt, that the proportion of alcohol in a defendant’s blood exceeded 80 milligrams per 100 millilitres of blood.
[27] In the present case, the expert evidence indicates that there is a greater than
99.9 per cent probability that the proportion of alcohol in Mr Rangihika’s blood at the time of testing exceeded 80 milligrams of alcohol per 100 millilitres of blood. That evidence was admitted by agreement pursuant to s 9 of the Evidence Act 2006. I am satisfied that the prosecution has proved, beyond reasonable doubt, that the proportion of alcohol in Mr Rangihika’s blood on the night of 25 April 2016 exceeded 80 milligrams per 100 millilitres of blood.
Flawed analytical methods
[28] Mr Rangihika submits that the analytical techniques employed by ESR in analysing his blood samples were flawed and led to an inadequate result. Specifically, he submits:
[16] The ESR scientist Matthew Hosking gave evidence that the sample was analysed as part of a batch and not analysed specifically. This method of measurement produces an analytical uncertainty resulting in 23 possible outcomes. This method informs the ESR certificate.
[17] There is provision in the act to have the sample analysed by an independent, accredited body. In that circumstance, the sample is uplifted out of the batch scenario and then analysed specifically. That method yields a custom made, unambiguous result. Independent results are generally superior and almost never challenged by the prosecution. The process however, involves me taking on the onus of proof which belongs to the prosecution.
[29] This submission demonstrates a fundamental misunderstanding about the nature of blood alcohol testing carried out by ESR. It is unsupported by relevant expert evidence. There is nothing in this point.
Failure to prove previous convictions
[30] Mr Rangihika was convicted of driving with excess blood alcohol (third or subsequent conviction). This is a separate offence under the LTA which recognises the increased culpability which accompanies repeat offending. Mr Rangihika submits that the prosecution failed to prove the existence of his previous convictions and has therefore failed to prove all the elements of the charge against him.
[31] Mr Rangihika’s submission on this point appears, at first glance, to find support in Judge Harding’s decision, in which the Judge stated:
[2] The allegation is that he has been convicted at least twice previously with an offence against various sections. There is no evidence whatsoever before the Court that that is the case. No evidence has been called as to prior convictions. The sergeant points out that that is an issue for sentence rather than proof of charge.
[32] However, the point made by the police sergeant appearing at trial is correct. Section 145 of the Criminal Procedure Act 2011 provides:
145 Conviction of charge containing allegation of previous conviction
(1) This section applies if—
(a) a charge contains an allegation that the defendant has been previously convicted; and
(b) the defendant, in accordance with section 44, has not pleaded to that allegation; and
(c) the defendant pleads guilty to or is found guilty of the charge.
(2) Before the defendant is sentenced, he or she must be asked whether or not he or she has been previously convicted as alleged.
(3) If the defendant says that he or she has not been previously convicted as alleged, or does not say that he or she has been so convicted, the judicial officer must determine the matter.
[33] The effect of s 145 is that the prosecution was not required to prove at trial that Mr Rangihika had been previously convicted of driving with excess blood alcohol. If Mr Rangihika wishes to contest that point, then he will have the opportunity to do so when sentenced. I note, however, that the existence of previous convictions can be easily determined by reference to Mr Rangihika’s criminal and traffic history. There is a copy of Mr Rangihika’s criminal and traffic history on the District Court file with a handwritten notation “8/2/17”. Additionally, the record of the District Court hearing sheet for 8 February 2017 records “previous acknowledged”.
Conclusion
[34] The appeal is dismissed.
Gordon J
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