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…

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 Smith v Police

Details

AGLC: Smith v Police [2018] NZHC 894
Case: [2018] NZHC 894
Decision Date: 1 May 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Andrew James Smith appealed his conviction for driving while the proportion of alcohol in his blood exceeded the lawful limit, a conviction reached by Judge Butler in the Wellington District Court. Smith argued that the prosecution failed to prove beyond reasonable doubt that the blood sample analyzed was his and that the judge erred in his assessment of the evidence, leading to a miscarriage of justice. The Crown opposed the appeal, asserting that there was sufficient evidence that the blood sample analyzed was the one taken from Smith.

The court analyzed the legal issues concerning the burden of proof in blood alcohol prosecutions and the admissibility of fresh evidence. The court admitted fresh evidence from a scientist employed by ESR, despite the Crown's application, as it was credible and relevant, and there was a risk of a miscarriage of justice if it were excluded. The court concluded that the prosecution sufficiently proved that the sample analyzed was the one taken from Smith. The evidence demonstrated identical details between the certificates, proximity in time, a consistent delivery method, and a substantially similar track and trace number. The court found these factors, when viewed in combination, provided ample evidence to support the conviction.

The appeal against conviction was dismissed, and no miscarriage of justice occurred.

Orders