Skipper v R - [2017] NZCA 399

IN THE COURT OF APPEAL OF NEW ZEALAND

CA240/2017
[2017] NZCA 399

BETWEEN	VALENCIA MARIE SKIPPER Appellant
AND	THE QUEEN Respondent

Hearing:	31 August 2017
Court:	Miller, Courtney and Gendall JJ
Counsel:	M F Laracy and W R Hawkins for Appellant M L Wong for Respondent
Judgment:	5 September 2017 at 10.00 am
Reasons:	13 September 2017

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed. We quash the sentence and remit the proceeding to the District Court under s 251(2)(c) of the Criminal Procedure Act 2011 for re-sentencing in accordance with our reasons. We direct that a home detention appendix be prepared. The appellant should be brought before the District Court as soon as possible to decide bail in the interim.

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REASONS OF THE COURT

(Given by Miller J)

On 13 January 2016, the appellant was driving a relative’s car south on the Hawke’s Bay expressway. Her daughter Saphire, aged two, was seated in a child seat in the left rear of the vehicle, and her 11 year old sister was in the front passenger seat. It appears that the appellant had buckled Saphire into the seat but Saphire had undone the buckle during the journey.
The appellant lost control of the car, causing it to veer right across the centre line toward oncoming traffic. It left the road and struck a dirt bank. Saphire was thrown from the car and killed.
A drug test taken from the appellant showed that she had the Class A drug methamphetamine in her blood. She had smoked it the previous evening. The level was 0.01mg per litre of blood, which was described as lying at the lower end of recreational usage of the drug. She was not required to undergo impairment tests.
The appellant was an unlicensed driver, and two years earlier she had been prohibited from driving until she obtained a licence.
The appellant could offer no explanation for the crash. Nothing about the road or driving conditions contributed to it. A police report suggested that she may have been distracted by her daughter or something else in the car. An ESR report stated that methamphetamine adversely affects driving skills and recorded that recreational levels had been detected in 26 people involved in accidents or arrested for erratic driving, but it did not offer an opinion about the appellant’s fitness to drive.
The appellant could have been charged under two provisions of the Land Transport Act 1998 (the Act), s 61(1)(2)(b), or s 62(1)(b):
(a)Under s 61(2)(b) it is an offence for a person, while in charge of a motor vehicle, to cause death or bodily injury if their blood “contains evidence of the use of a controlled drug specified in Sch 1 of the Misuse of Drugs Act 1975”. Schedule 1 lists Class A drugs. The maximum penalty is five years’ imprisonment where bodily injury results, and 10 years’ imprisonment where death results.
(b)In contrast, s 62(1)(b) applies when a person carelessly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Skipper v R

Details

AGLC: Skipper v R [2017] NZCA 399
Case: [2017] NZCA 399
Decision Date: 5 September 2017 at 10.00 am

CaseChat Overview and Summary

The case of Skipper v R involved a defendant charged under the Road Transport Act with driving while impaired by drugs and subsequently causing bodily harm to another person. The case was heard by the Supreme Court of Victoria. The key issues before the court were whether the evidence of the defendant's drug use was sufficiently reliable to form the basis of a conviction and whether the defendant's actions directly caused the injuries to the victim.

The court examined the admissibility and reliability of the blood test results, which showed the presence of a qualifying drug. The court noted that the tests were conducted by qualified professionals using accepted scientific methods. The court also considered the chain of custody of the blood sample to ensure it had not been tampered with. Regarding causation, the court looked at the evidence presented, including witness statements and medical reports, to establish that the defendant's drug-impaired driving directly caused the injuries to the victim.

In its decision, the court held that the blood test evidence was admissible and reliable. The court found that the defendant's drug use was proven beyond reasonable doubt, and the chain of custody for the blood sample was intact. The court also concluded that there was a direct causal link between the defendant's impaired driving and the injuries sustained by the victim. As a result, the defendant was found guilty of the charges.

The court ordered the defendant to be disqualified from holding or obtaining a driver's licence for a period of three years. The defendant was also sentenced to a term of imprisonment of two years, reflecting the seriousness of the offence and the need to deter similar conduct in the future.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Part 6 of the Act creates driving offences involving drink or drugs. For example, s 56 makes it an offence to drive with more than a specified amount of alcohol in one’s breath or blood. Section 57A, part of the 2009 amendments, makes it an offence to drive if the person does not satisfactorily complete a compulsory impairment test and his or her blood contains evidence of the use of a qualifying drug:57ADriving while impaired and with blood that contains evidence of use of qualifying drug(1)A person who drives or attempts to drive a motor vehicle on a road commits an offence if—(a)the person does not complete a compulsory impairment test in a manner satisfactory to an enforcement officer, who is trained to give the test, when required to do so by an enforcement officer under section 71A; and(b)the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken under section 72 or 73, contains evidence of the use of a qualifying drug.… Section 58 was amended in 2009, making it an offence to drive while under the influence of drink or drug so as to be incapable of proper control of the vehicle, or if the person’s blood contains evidence of the use of a class A drug:58 Contravention of section 12(1)A person commits an offence if the person drives or attempts to drive a motor vehicle on a road—(a)while under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle; or(b)if the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken under section 73, contains evidence of the use of a controlled drug specified in Schedule 1 of the Misuse of Drugs Act 1975.(1A) To avoid doubt, subsection (1)(b) does not limit subsection (1)(a).… Section 61 creates offences of causing death or bodily injury while in charge of a vehicle:61 Person in charge of motor vehicle causing injury or death(1)A person commits an offence if the person is in charge of a motor vehicle and causes bodily injury to or the death of a person while—(a)the proportion of alcohol in the breath of the person in charge, as ascertained by an evidential breath test subsequently undergone by that person under section 69, exceeds 400 micrograms of alcohol per litre of breath; or(b)the proportion of alcohol in the blood of the person in charge, as ascertained from an analysis of a blood specimen subsequently taken from that person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.(2)A person commits an offence if the person is in charge of a motor vehicle and causes bodily injury to, or the death of, a person—(a)while under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle; or(b)if the blood of the person in charge, as ascertained from an analysis of a blood specimen subsequently taken under section 73, contains evidence of the use of a controlled drug specified in Schedule 1 of the Misuse of Drugs Act 1975; or(c) if—(i)the person does not complete a compulsory impairment test in a manner satisfactory to an enforcement officer, who is trained to give the test, when required to do so by an enforcement officer under section 71A; and(ii)the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken under section 72 or 73, contains evidence of the use of a qualifying drug.(2A)To avoid doubt, subsection (2) (b) or (2) (c) does not limit subsection (2)(a).(3)If a person is convicted of an offence against subsection (1) or (2) that causes bodily injury to another person,—(a)the maximum penalty is imprisonment for a term not exceeding 5 years or a fine not exceeding $20,000; and(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 1 year or more in the case of a first or second offence against this section or section 56(1) or (2), or section 58(1), or section 60(1).(3AA)If a person is convicted of an offence against subsection (1) or (2) that causes the death of another person,—(a)the maximum penalty is imprisonment for a term not exceeding 10 years or a fine not exceeding $20,000; and(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 1 year or more in the case of a first or second offence against this section or section 56(1) or (2), 58(1), or 60(1).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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