Renshaw v Police
[2014] NZHC 1171
•29 May 2014
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2014-419-000008 [2014] NZHC 1171
BETWEEN PETER RODGER RENSHAW
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 29 May 2014 Counsel:
Appellant in person
T C Tran for RespondentJudgment:
29 May 2014
JUDGMENT OF COLLINS J
Introduction
[1] Mr Renshaw appeals his conviction for refusing to permit a specimen of his blood to be taken by a medical officer when required to do so by an enforcement officer.1
[2] I can only allow Mr Renshaw’s appeal if I am satisfied that the District Court Judge who convicted him erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if for any other reason, a miscarriage of justice has occurred.2
[3] Mr Renshaw accepts that he declined to allow a specimen of his blood to be taken after he gave a positive evidential breath reading at a checkpoint near Te Awamutu on 18 August 2013. Mr Renshaw explained in his submissions he was
entitled to decline to allow a blood specimen to be taken because he did not believe
1 Land Transport Act 1998, ss 60(b) and 72. Maximum penalty is three months’ imprisonment or
a fine not exceeding $4,500.
2 Criminal Procedure Act 2011, s 232.
RENSHAW v NEW ZEALAND POLICE [2014] NZHC 1171 [29 May 2014]
the person who was proposing to take the blood specimen was a medical officer. This forms the basis of Mr Renshaw’s primary ground of appeal. Mr Renshaw has also raised other grounds of appeal during the course of his submissions. I will deal with those grounds of appeal in paragraphs [20] to [22] of this judgment.
[4] I have concluded the District Court Judge made no error when he assessed the evidence and no miscarriage of justice has been established. To explain my reasons for reaching this conclusion, I shall briefly set out:
(1) the key facts;
(2) the reasons why Mr Renshaw was convicted; (3) the relevant law;
(4) why the appeal must be dismissed; (5) my conclusion.
Key facts
[5] A little after 10.00 pm on 18 August 2013 Mr Renshaw was stopped at a checkpoint at Kihikihi Road near Te Awamutu. Constable McFarlane administered a breath screening test which Mr Renshaw failed. Mr Renshaw then accompanied Constable McFarlane into a “booze bus” which was at the checkpoint. There Constable McFarlane administered an evidential breath test at 10.26 pm. That test produced a reading of 492 micrograms of alcohol per litre of breath, which triggered an option for Mr Renshaw to undergo a blood alcohol test. He elected to undergo the blood alcohol test which could only be administered by a medical practitioner or a medical officer. Nurses are included in the definition of “medical officer” in the
Land Transport Act 1998.3
[6] At approximately 10.40 pm Ms Courtney was telephoned at her home and asked by the police if she could to the booze bus to take a sample of blood from Mr Renshaw. Ms Courtney is a registered nurse. She is normally employed by the Waikato District Health Board but she is also contracted to New Zealand Police to take blood samples from motorists who are being processed under the blood alcohol provisions of the Land Transport Act 1998. Ms Courtney has been performing this work for approximately eight years and is called out four or five times a month to take blood samples from drivers suspected of driving with excess alcohol in their blood. Ms Courtney got dressed and drove to the booze bus. It took her approximately 15 to 20 minutes to get there.
[7] Mr Renshaw was told by the police that a nurse had been called to take a sample of his blood. When Ms Courtney arrived at the scene, wearing civilian clothes, she organised her paper work and then identified herself to Mr Renshaw by saying, “Hi, I’m Liz, I’m a nurse I’ve been called here to do a blood test”.4
Ms Courtney asked Mr Renshaw if he consented to a blood test being taken. He responded by asking “… how do I know you’re a nurse?”5 and Ms Courtney responded by saying that she had been called by the police to take a blood sample from Mr Renshaw, that she was employed by the police for that purpose and that she did not have any document on her that identified her as a nurse.6
[8] In addition to Ms Courtney explaining she was a nurse, Constable McFarlane also explained to Mr Renshaw that Ms Courtney was a nurse who had been called by the police to take a sample of his blood.7
[9] When Ms Courtney said that she did not possess anything which identified her as a nurse, Mr Renshaw declined to consent to Ms Courtney taking a sample of his blood. When Constable McFarlane asked Mr Renshaw to allow Ms Courtney to take a sample of his blood he refused to allow her to do so. Mr Renshaw was arrested at 11.00 pm and charged with refusing to allow a specimen of his blood to be taken when required to do so by an enforcement officer.
[10] Mr Renshaw was advised by the police of his right to consult a lawyer. He declined to do so. Constable McFarlane described Mr Renshaw as being “extremely difficult”8 and “argumentative throughout the entire process, uncooperative … very memorable as potentially one of the most difficult customers”9 he had encountered.
[11] Both Constable McFarlane and Ms Courtney said they had dealt with hundreds of drivers suspected of driving with excess alcohol in their blood. Neither had encountered a situation in which a driver had declined to give blood because the person proposing to take the driver’s blood could not produce documentary evidence that they were in fact a medical officer.
Reasons why Mr Renshaw was convicted
[12] Mr Renshaw was convicted by Judge Spiller in the Te Awamutu District
Court on 10 February 2014.
[13] The key reasons why Judge Spiller convicted Mr Renshaw are explained in the following paragraph of his judgment:10
I find that Mr Renshaw did not have a reasonable belief that Ms Courtney was not a nurse and that he held to his concerns despite what was pointed out to him. Ms Courtney was introduced as a nurse qualified to take the blood test. Mr Renshaw was told several times by Constable McFarlane and Ms Courtney that she was authorised to take the blood test. Mr Renshaw did not take the opportunity to contact a lawyer when allowed to do so. Mr Renshaw’s refusal to allow the blood specimen was not justified and there was no unjustifiable breach of his human rights.
Relevant law
[14] Section 60(1)(b) of the Land Transport Act 1998 provides that an offence is committed if a person:
(b) Fails or refuses to permit a blood specimen to be taken without delay after having been requested to do so under section 72 by a medical practitioner or medical officer …
8 Police v Renshaw, above n 4, at 59, line 3.
Section 72(1)(b)(ii) provides that a person must permit a medical practitioner or medical officer to take a blood specimen from a person when required to do so by an enforcement officer if “the person advises the officer that the person wishes to undergo a blood test”.
[15] Section 72(2) provides:
A person who has been required by an enforcement officer … to permit the taking of a blood specimen must, without delay after being requested to do so by a medical practitioner or medical officer, permit that practitioner or medical officer to take a blood specimen from that person.
[16] The offence with which Mr Renshaw was charged required proof that Mr Renshaw knowingly refused to permit a blood specimen to be taken by a medical officer when required to do so by an enforcement officer.11
[17] The assessment of whether or not Mr Renshaw knowingly refused to allow a medical officer to take a sample of his blood had to be viewed in context. In the present case the following facts were relevant:
(1)Mr Renshaw was told by Constable McFarlane that Ms Courtney was a nurse who had been called by the police to take a sample of his blood.
(2) When Ms Courtney arrived she was dressed in civilian clothes.
(3)Ms Courtney introduced herself to Mr Renshaw as a nurse and advised him that she was engaged by the police to take blood samples.
(4)Ms Courtney was unable to produce any identification which confirmed she was a nurse.
(5)Mr Renshaw was told on several occasions by Constable McFarlane and Ms Courtney that Ms Courtney was a nurse.
11 Vitullo v Ministry of Transport (1988) 3 CRNZ 227 (HC); Payne v Goodgame (1986) 2 CRNZ
100 (HC); Lee v Police HC Rotorua CRI-2009-463-15, 9 June 2009.
(6)Mr Renshaw did not contact a lawyer when advised of his right to do so.
[18] In my assessment, Judge Spiller was correct when he concluded Mr Renshaw knowingly refused to allow a sample of his blood to be taken by a medical officer. Mr Renshaw’s behaviour on the night was not reasonable because no ordinary person in the circumstances in which Mr Renshaw found himself would seriously doubt that Ms Courtney was a nurse. There was no evidence to support Mr Renshaw’s theory that Ms Courtney might have been an imposter.
[19] Judge Spiller did not err in his assessment of the evidence and no miscarriage of justice occurred. Mr Renshaw’s primary ground of appeal must be dismissed.
Other grounds of appeal
[20] In his submissions Mr Renshaw raised other grounds of appeal. Those grounds can be distilled to submissions that Mr Renshaw’s right to a fair trial, guaranteed by s 25(a) of the New Zealand Bill of Rights Act 1990 were breached when:
(1)Ms Courtney was kept in a room in the court building with police officers, including one of the witnesses prior to her giving her evidence.
(2) Judge Spiller allowed leading evidence to be adduced by the police.
(3)Judge Spiller declined Mr Renshaw the right to play a recording he had made of Constable McFarlane serving Mr Renshaw with a notice that suspended his driver’s licence for 28 days. That notice was served on Mr Renshaw as he was walking away from the booze bus.
[21] I have carefully considered these supplementary grounds of appeal and examined the record of the hearing in the District Court to ensure Mr Renshaw’s right to a fair trial was not compromised on any other ground.
[22] I have concluded:
(1)Although it was unwise for a police officer who was a witness to be with Ms Courtney in a waiting room prior to her giving evidence, there is nothing to suggest Ms Courtney’s evidence was tainted by any discussion she had with the police prior to giving her evidence.
(2)While there were some instances of leading evidence in the police case, the evidence in question was not significant.
(3)Judge Spiller did not need to hear the recording of Constable McFarlane serving the suspension notice on Mr Renshaw as that happened after the events in issue. I have listened to the recording. It does not assist Mr Renshaw.
[23] For these reasons Mr Renshaw’s other grounds of appeal are dismissed.
Appeal against sentence
[24] During the course of his submissions today, Mr Renshaw sought to appeal the sentence of six months’ disqualification and the fine of $600 imposed by Judge Spiller.
[25] Mr Renshaw submitted he should have been discharged without conviction because the consequences of conviction are out of all proportion to the gravity of his offending.12
[26] No application was made to Judge Spiller to discharge Mr Renshaw without conviction and no evidence has been presented which would justify me taking the highly unusual course of now discharging Mr Renshaw without conviction. However, Mr Renshaw did say to me his conviction is likely to lead to him being deported and if that occurs he will not have access to his children. Mr Renshaw also stated the consequences of his conviction have been that he has lost his job as a truck
driver and that he is not eligible for any social welfare assistance because of his immigration status.
[27] If it were not for the fact Mr Renshaw has acted for himself I would have been driven to conclude that there was no error in the sentence imposed by Judge Spiller, or that a different sentence should have been imposed.13
[28] Because Mr Renshaw has acted for himself he failed to place before the District Court evidence that should have been presented that might have persuaded Judge Spiller to discharge Mr Renshaw without conviction. In these circumstances I believe the most appropriate course is to allow Mr Renshaw’s appeal against sentence and invite Judge Spiller to consider if Mr Renshaw should be discharged without conviction. Mr Renshaw will need to file affidavit evidence supporting his application. The police will need to have an opportunity to respond. If Judge Spiller is not satisfied Mr Renshaw should be discharged without conviction then the sentence he imposed should stand. I make this order under s 251(2)(c) of the Criminal Procedure Act 2011.
Conclusion
[29] The appeal against conviction is dismissed.
[30] The appeal against sentence is allowed on the conditions I have explained in paragraph [28] of this judgment.
D B Collins J
Solicitors:
Crown Solicitor, Hamilton for Respondent
1
0
0