Smith v Police

[2018] NZHC 894

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2018-485-20

[2018] NZHC 894

ANDREW JAMES SMITH

v

NEW ZEALAND POLICE

Hearing:	1 May 2018
Counsel:	B Dawson for Appellant A van Echten for Crown
Oral Judgment:	1 May 2018

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1]    Mr Smith was found guilty on 6 March 2018 of driving while the proportion of alcohol in his blood exceeded the lawful limit at  a  Judge-alone  trial  before Judge Butler at the Wellington District Court on 21 November 2017.1 The charge was brought under s 56(2) of the Land Transport Act 1998 (“the LTA”).

[2]    Mr Smith now appeals his conviction pursuant to ss 229 and 232 of the Criminal Procedure Act 2011, submitting that the prosecution did not prove beyond reasonable doubt that the blood sample analysed as containing alcohol in excess of that permitted by law was in fact obtained from Mr Smith and the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred.

1      New Zealand Police v Smith [2018] NZDC 2718.

SMITH v NEW ZEALAND POLICE [2018] NZHC 894 [1 May 2018]

[3]    Mr Dawson developed his written submissions orally and said that in effect the judge had erred by reversing the onus on the defence.

[4]    The Crown opposes the appeal on the basis that there is sufficient evidence that the blood sample analysed was the one taken from the appellant. Ms van Echten developed her oral argument this morning emphasising that there was no evidence before the District Court underpinning the assumption that is inherent in the case advanced by Mr Dawson that the track and trace numbers needed to be the same in order to provide proof that both numbers related to the same item.

[5]    The Crown has also applied to adduce fresh evidence in this matter. I will address that application shortly.

Factual background

[6]    By way of factual background, on 20 May 2017, Constable McAffer pulled over the Toyota Corolla vehicle that the appellant was driving. He acknowledged that he had been drinking. Consistent with that admission, the initial breath screening test came  back  with  a  level  in  excess  of  400  micrograms.  Consequently,   Constable McAffer required the appellant to accompany him back to the Police station.

[7]    At the station, Constable McAffer completed an evidential breath test which gave a result of 479 micrograms.

[8]    As Mr Dawson submitted in his oral arguments, s 77(3) of the Act specifies that where a person elects to undergo a blood test, any prior breath test becomes inadmissible.

[9]    Mr Smith did request a blood test and a doctor attended at the Wellington Police Station to took a blood sample. That blood sample was secured in a locked safe and then couriered to ESR.

[10]In terms of documentation relating to the custody of the blood sample:

(a)Exhibit One: the Breath Blood and Alcohol Procedure Sheet, recorded that the driver was “Andrew James Smith” of “71 Townsend Road, Miramar, Wellington”. This document recorded that Mr Smith had elected to have a blood sample taken.

(b)Exhibit Two: the Blood Specimen Medical Certificate, recorded the sample was taken from “Andrew James  Smith”  a  “Labourer”  of  “71 Townsend Road, Miramar, Wellington”. It recorded that the sample was taken at 3.27am on 20 May 2017. Although the “Blood Management Section” was not filled out, two courier barcodes were attached: TA012628 and another label with the digits 2TPE207849404723. It also recorded that the sample was handed to Constable McAffer.

(c)Exhibit Three: the Approved Analyst’s Certificate under s 75(5) of the LTA which recorded that a blood specimen was taken from “Andrew James Smith” a “Labourer” of “71 Townsend Road, Miramar, Wellington”. The Certificate records that the sample was delivered on 23 May 2017 by NZ Couriers “2TDAE20 784904727” from NZ Police. The Certificate records that the appellant’s blood alcohol level was 105 (plus or minus) 5 milligrams of alcohol per 100 millilitres of blood.

District Court decision

[11]   Judge Butler in the District Court found that the defence’s submission to the effect that the prosecution could not prove to the required standard that the blood sample taken “belonged to the defendant”.

[12]This brought into play s 75(1) of the LTA which states:

Except as provided in section 79, production of a certificate to which this section applies in proceedings for an offence against this Part is sufficient evidence, in the absence of proof to the contrary, of such of the matters as are stated in the certificate and of the sufficiency of the authority and qualifications of the person by whom the certificate is made and, in the case of a certificate referred to in subsection (5), of the person who carried out the analysis.

[13]   Judge Butler determined that, in the absence of proof to the contrary, there was sufficient evidence that the sample analysed came from the defendant.

[14]   Mr Dawson, who was not counsel in the Court below, acknowledged in his oral argument that some of the challenges made by the counsel in the first instance were not appropriate given the effect of s 75 and the presumption that it contains. Although he did not accept the submissions made by Ms van Echten that the appellant accepted that the blood was his, Mr Dawson acknowledged that as a result of s 75 he was bound by that section and could not challenge that.

[15]   The defence relied on the discrepancies between the two courier labels to prove, on the balance of probabilities, that the certificate was incorrect and that it was not a blood sample taken from the defendant. Counsel acknowledged that, in a nutshell, his case was that the Police had not established that there had not been another blood sample taken from Mr Smith which these courier labels could relate to.

[16]   The Judge found that while the discrepancies between the two courier labels “may” have raised an evidential foundation, they did not amount to “proof to the contrary” and rejected the defence submissions on this point. This is the exercise by the Judge that counsel is critical of as having reversed the onus.

[17]   The Judge also found that as the form for the blood specimen medical certificate is not a form prescribed in the Act and its use is not mandatory, the omission of some details from it was not fatal to the prosecution and any issues relating to those omissions should have been raised in cross-examination.

[18]The Judge therefore rejected the no case to answer submission.

Approach on appeal

[19]   This determination on appeal is subject to the Criminal Procedure Act 2011 and in particular is governed by s 232. That section provides that an appeal court must allow an appeal against conviction if satisfied relevantly:

(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)in any case, a miscarriage of justice has occurred for any reason.

In any other case, the court must dismiss the appeal.

[20]A “miscarriage of justice” in relation to subs (4) is defined as meaning:

… any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

Overview of appellant’s submissions

[21]   Mr Dawson for the appellant, submits that the proof in the certificates is insufficient to prove that the sample obtained on 20 May 2017 was the sample analysed. There being no established chain of custody, and there being no evidence as to whether the appellant has ever provided another sample at another time or not, he submitted that the presumptions operate that the sample analysed was taken from the appellant but was not beyond a reasonable doubt the sample taken on 20 May 2017. He submitted that there was nothing to connect the evidence of analysis with the appellant’s driving on 20 May 2017, other than mere temporal proximity.

Application to adduce further evidence

[22]   Counsel for the Crown, Ms van Echten, sought leave to admit fresh evidence in relation to establishing the chain of custody. That evidence was:

(a)a formal written statement of Samantha Coward, a scientist employed by ESR, dated 24 April 2018; and

(b)a document referred to in Ms Coward’s statement, being the POL540 Blood Specimen Form.

[23]   In order to be admissible on appeal, the evidence must be sufficiently fresh and sufficiently credible. This was considered by the Privy Council in Lundy v R. They said:2

[120] The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.

[24]   In his oral argument, Mr Dawson pointed out that in the Lundy case, the Court was addressing an application by the appellant rather than by the prosecution for the admission of evidence. However, in response to questioning from the Bench, he conceded that he was not advocating that there be a different test when the application to adduce fresh evidence was made by the prosecution, as in this case. He did however point to factors which he said were potentially relevant. He said that his researches have been unable to locate a similar case. He said potentially issues in relation to the disclosure obligations of the Crown were raised and also that issues of fairness and access to justice possibly arise.

[25]   In response to those submissions, Ms van Echten pointed out that the particular evidence sought to be admitted was not a document held by the Police but a document held by the analyst and was not strictly covered by the disclosure obligations. The question of whether normally this type of evidence is disclosed by the Police is not one that I am able to resolve in the absence of any evidence.

[26]   Ms van Echten’s submission was that, while she conceded that the evidence was not fresh in the sense that it could have been adduced at trial, she said it should be admitted on the basis that it was powerful evidence capable of providing a decisive answer to the point raised on appeal, which was not clearly raised in the lower court.

2      Lundy v R [2013] UKPC 28.

[27]   Having considered the competing arguments, by a fine margin, I have decided that this is an appropriate case where the evidence should be admitted. It meets the tests set out in Lundy in that it is credible, it is relevant, and there is a risk of a miscarriage of justice if it is excluded. However, I acknowledge that there seems to be little precedent for such evidence being admitted on a Crown application on a hearing in the High Court initiated by an appellant.

Overview of Crown’s submissions

[28]   Turning now to the Crown’s general submissions, Ms van Echten submits that there is ample evidence to support the conviction and, her words were that it would be somewhat incredible if another blood sample had been taken from the appellant at around the same time and was somehow sent to ESR by courier in a virtually identical track and trace number.

Relevant law

[29]   Turning now to the relevant law. In Dodgson v Police, the Court of Appeal held: 3

In each blood alcohol prosecution it must be proved beyond reasonable doubt that the blood that is analysed by the ESR is the defendant’s, taken in relation to the occasion of the driving alleged in the information.

[30]   However, the prosecution need not prove chain of custody beyond reasonable doubt. In Hurst v Police, where the evidence was merely that the samples “were sent to ESR”, the Court was satisfied that the samples were one and the same as the analyst’s certificate recorded that the samples were sent by the named enforcement officer who took the sample and a consistent courier receipt was produced.4 How it is proved that the blood analysed is the defendant’s is a matter for the prosecution and whether it is proved is a factual matter for the trial Judge to assess individually in each case.5

3      Dodgson v Police [2011] NZCA 428 at [8].

4      Hurst v Police [2013] NZHC 1128 at [33].

5      Dodgson v Police, above n 3, at [8].

[31]   In the case of Byrman v Police, the appellant argued that the inconsistent spelling of his surname in various forms and certificates rendered his drink driving conviction unsafe.6 Wild J, however, found that the “points of commonality” between the documents established that the ESR certificate related to the blood specimen taken from Mr Byrman on the relevant date.7 That was so despite the fact that the various permutations of Mr Byrman’s surname were unrecognisable as being related one to the other.

Analysis

[32]   The appellant submits that in the absence of an established chain of custody, an inconsistent courier receipt must raise a reasonable doubt about the provenance of the samples.

[33]   Ms Coward’s evidence, which I have admitted, is that the relevant blood specimen tubes were labelled with the Blood Specimen Collecting Kit barcode TA012628 which is consistent with the Blood Specimen Collecting Kit barcode affixed to the Blood Specimen Medical Certificate. She explains that the traceable part of the courier number is the part reading “E20 78494047” and that ESR’s system at the time had not been set up to shorten the barcode to only the traceable part of the number.

[34]   Therefore, taking Ms Coward’s evidence into account, I do not accept the appellant’s submission. However, even if I was wrong to allow the Crown to adduce further evidence, I find that the discrepancies with the track and trace numbers would not of itself render the conviction unsafe.

[35]   I find that there was sufficient evidence that the sample taken on 20 May 2017 was the same as analysed by ESR for the following reasons:

(a)Identical details: apart from the track and trace number, the ESR certificate and the Blood Specimen Medical Certificate both identified

6      Byrman v Police HC Nelson CRI-2007-442-000017, 11 December 2007.

7 At [23].

the  sample  as  from  “Andrew  James  Smith”,  a  “labourer”,  of   “71 Townsend Road, Miramar”;

(b)Proximity in time: the sample was taken on 20 May 2017 and delivered on 23 May 2017. The timing of the receipt of the sample is consistent with it having been the one taken on 20 May 2017, particularly given the legislative requirement to deliver a blood sample within seven days;8

(c)Delivery method: the method of delivery, namely courier, was the same in respect of both the ESR certificate and the Blood Specimen Medical Certificate;

(d)Track and trace number substantially similar: the track and trace number on the ESR certificate and the number of the Blood Specimen Medical Certificate. They are, apart from two digits (2TDAE207849404727 and 2TPAE207849404723) consistent;

(e)Consistency of result: the Blood Specimen Medical Certificate and the ESR certificate are consistent in that both record the result of each test was that the appellant had a significant level of alcohol in his breath or blood. I acknowledge that as an evidential matter, the certificate relating to a breath reading is inadmissible but I note that the result recorded was consistent with the appellant’s admission that he had been drinking and Constable McAffer’s observations of him.

[36]   I find that these factors, when viewed in combination, provide ample evidence to support the conviction. I therefore find that no miscarriage of justice has occurred.

8      Land Transport Act 1998, s 74.

Conclusion

[37]The appeal against conviction is accordingly dismissed.

Churchman J

Solicitors:

Brandon Street Chambers, Wellington for Appellant Luke Cunningham Clere, Wellington for Crown