Stevenson v Police HC Wellington CRI-2011-485-44
[2011] NZHC 1020
•29 July 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2011-485-44
CHARLOTTE MOYA STEVENSON
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 26 July 2011
Appearances: W M Johnson for Appellant
I R Murray for Respondent
Judgment: 29 July 2011 at 2:30 PM
JUDGMENT OF LANG J
[on appeal against conviction and sentence]
This judgment was delivered by me on 29 July 2011 at 2.30 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
STEVENSON V NEW ZEALAND POLICE HC WN CRI-2011-485-44 29 July 2011
[1] Ms Stevenson faced a charge in the District Court of driving with excess blood alcohol. The charge followed an incident in the early hours of 19 June 2001, when police officers on patrol saw Ms Stevenson driving her vehicle in Karori. They observed that her vehicle exhibited signs of having been involved in a collision with the kerb. When she parked her vehicle, one of officers went to speak to her. As he did so, he could smell alcohol. He also observed that Ms Stevenson’s speech was slurred.
[2] The officer, Constable Barraclough, administered a passive screening test and a breath screening test on the roadside, and Ms Stevenson failed both. He then required Ms Stevenson to accompany him to the Wellington Central Police Station for an evidential breath test. This produced a reading of 1159 micrograms of alcohol per litre of breath.
[3] Ms Stevenson then elected to provide a sample of her blood for analysis, and the constable arranged for a medical practitioner, Dr Delaney, to come to the police station to take the sample. Subsequent analysis of the sample revealed that it contained 257 milligrams of alcohol per 100 millilitres of blood. This led to the charge of driving with excess breath alcohol.
[4] Ms Stevenson defended the charge but in a decision delivered on 9 May
2011, His Honour Judge Behrens QC found it proved and convicted her.1 She now appeals to this Court against conviction.
Grounds of appeal
[5] Ms Stevenson advances the following grounds of appeal:
(a) The Judge was wrong to decline her application for an order under s
79 of the Land Transport Act 1998 (―the Act‖) requiring Dr Delaney
to give oral evidence.
(b)The Judge was wrong to conclude that the prosecution had established that Constable Barraclough was in uniform or in possession of other evidence of his authority as required by s 113 of the Act.
(c) The Judge was wrong to reject the defence submission that there was a gap in the chain of custody of the blood sample that the doctor took from Ms Stevenson.
a) Was the Judge wrong to decline Ms Stevenson’s application for an order under s 79 of the Act requiring Dr Delaney to give oral evidence?
[6] In a decision delivered on the same day as I heard the present appeal, I discussed the circumstances in which the Court might be justified in granting an application for an order under s 79.2 It is not necessary to repeat that discussion here. In short, I held that Parliament intended the certification procedure prescribed by s 75 of the Act to remove the need in most cases for the person who takes blood samples from a person suspected of drink driving to give evidence. Before an order under s 79 will be made, the Court must be satisfied that there is a reasonable basis to conclude that the oral evidence of that person will be relevant to a material issue.
[7] In the present case, counsel for Ms Stevenson sought to have the doctor called largely so as to be able to cross-examine him regarding the meaning of handwritten notations on forms and labels that the doctor had completed at the time he took the blood sample from Ms Stevenson. Counsel contended that these were illegible, and that he should be entitled to ascertain from the doctor precisely what he had written. Counsel also wished to explore with the doctor why he had described Ms Stevenson’s occupation as being that of a lawyer on the labels that he affixed to the blood specimen bottles containing Ms Stevenson’s blood. This was relevant, he contended, because Ms Stevenson is not a lawyer. Rather, she is a legal secretary.
[8] The ultimate issue that the Judge was required to determine in the substantive hearing was whether the prosecution had proved beyond reasonable doubt that blood taken from Ms Stevenson contained more alcohol than was legally permissible. The
prosecution proposed to establish that fact through the evidence of Constable Barraclough, who was to produce the certificate of analysis that he received from the ESR. He was also present throughout the time that Ms Stevenson was with the doctor. He saw the doctor take the blood samples and make the handwritten notations that were central to the application under s 79. If the notations were material to any particular issue and the Judge could not decipher them, he would have been required to determine that issue in favour of Ms Stevenson. There was therefore no need to bring the doctor to Court merely to decipher what he had written.
[9] There was no need, either, for the doctor to give evidence about why he had recorded Ms Stevenson’s occupation as being that of a lawyer rather than a legal secretary. The fact that he had done so was self-evident, but it had no direct relevance. The prosecution was not required to establish Ms Stevenson’s occupation in order to prove the charge of driving with excess blood alcohol. To the extent that Ms Stevenson’s occupation was relevant to the argument based on an alleged gap in the chain of custody, the reason why the doctor wrote what he did was irrelevant. The fact that he had recorded her occupation as being that of a lawyer was what was important.
[10] I therefore consider that the Judge was correct to reject Ms Stevenson’s application for an order that the doctor be required to give oral evidence. The doctor could not assist the Court on any issue that was material to the charge that Ms Stevenson faced.
b) Was the Judge wrong to conclude that Constable Barraclough was in uniform or in possession of other evidence of his authority?
[11] This issue arises because s 113(1) of the Act provides as follows:
113 Enforcement officers may enforce transport legislation
(1) An enforcement officer in uniform or in possession of a warrant or other evidence of his or her authority as an enforcement officer may enforce the provisions of—
...this Act.
[12] Counsel for Ms Stevenson submitted that the evidence was insufficient to prove beyond reasonable doubt that Constable Barraclough was either in uniform or in possession of a warrant or other evidence of his authority at the time that he dealt with Ms Stevenson.
[13] Section 113 and its predecessor, s 68B of the Transport Act 1962, have been the subject of comment in several cases. In Transport Ministry v Quirke3 the Court of Appeal applied earlier English authority4 to the effect that a trier of fact was entitled to assume that a constable was in uniform where he said in evidence that he was on duty as a motor patrol officer and that the defendant stopped his vehicle in
response to the constable’s signal. In Quirke Woodhouse J said:5
Finally, there is the consideration to which I have earlier referred. I do not think the practical purpose of s 68B(1) designed as I think it is, to afford some sensible assurance for those who become the subject of legitimate inquiries, should be elevated to a level where it becomes essential for the prosecution to tender proof on every occasion that the officer concerned was in uniform or had the necessary evidence of authority. As I have indicated in relation to the Cooper v Rowlands case I think it likely that most of the cases coming before the courts will permit an appropriate inference to be drawn without direct proof. So that if there is no challenge in cross-examination during the hearing in court and there has been no question raised at the roadside, then I think a failure by the prosecution to provide direct evidence of the sort discussed in the present case ought not to lead in any automatic way to dismissal of the proceedings.
[14] In Spiekerman v Police6 Wild J surveyed7 several authorities decided since
Quirke. He then said:8
The purposes of s 68B are, I think, twofold:
1.To enable a police constable to establish or demonstrate his authority to enforce the Act and other transport legislation by wearing a uniform, carrying a warrant, or by other evidence of the constable's authority.
2.To enable a motorist or other affected person to observe, or ask to see, evidence of a police constable's authority, thus satisfying the motorist that the person the motorist was dealing with was indeed a duly authorised police constable.
3 Transport Ministry v Quirke [1977] 2 NZLR 497.
4 Cooper v Rowlands [1971] RTR 291.
5 Fn 3 at 504-505
6 Spiekerman v Police HC Wellington AP83/99, 27 May 1999.
7 At 38 At 5
If s 68B is applied with those purposes in mind, then I am in no doubt that Judge Thompson was correct in holding that the evidence here satisfactorily established Constable Johnson's authority. The appellant's willingness to undergo the breath screening test administered to him by the constable at the accident scene, then to accompany the constable back to the Police Station in his patrol car, to answer questions and undergo breath and blood tests at the Police Station, all support an inference that Constable Johnson (who was on duty at the Paraparaumu Police Station when called to the accident scene) was in uniform and authorised to enforce the breath and blood testing provisions of the Acts as he did. On the authority of Woodhouse J’s judgment in Quirke, I consider Judge Thompson was the more entitled to draw an inference because the appellant did not challenge Constable Johnson's authority "in the field" (i.e. at the accident scene, or subsequently at the Police Station), nor was it challenged in crossexamination in the course of the prosecution case before the Judge. I respectfully regard what Woodhouse J said in Quirke as realistic and sensible.
[15] Wild J concluded by saying:9
In the end, the nub of the matter is that the appellant took none of the opportunities afforded to him by the Act and during the hearing to challenge Constable Johnson’s authority. The inherent unlikeliness – the lack of any reasonable doubt – that the appellant would have conducted himself in the way he did at the scene of the accident, in the patrol car and then at the Police Station at Paraparaumu, were Constable Johnson not in police uniform, is such as to expose this appeal as one based on a barren and meritless technicality.
[16] In Russo v Police10 the defendant had been stopped by a police officer in a marked car because he was travelling at a speed greater than the posted speed limit. The officer who stopped the defendant had formed the view that he was under the influence of alcohol and required him to undergo breath testing procedures. At trial, counsel for the defendant had asked the police officer the source of his authority and the officer said that he derived it from s 114 of the Act. He did not mention whether or not he was in uniform when he stopped the defendant. Allan J held that the challenge to the officer’s authority during cross-examination meant that the prosecution was required to adduce evidence of his authority. Given that the officer had responded to a different issue and had failed to provide direct evidence of his authority, the appeal was allowed.
[17] In Crilly v Police11 Miller J reached a similar conclusion even though there had been no direct challenge to the officer’s authority at trial. In that case a plain- clothes police officer in an unmarked police car had stopped the appellant, who was driving his vehicle without headlights. There was no evidence to establish how or why the officer stopped the vehicle, or as to whether the officer had said that he was a police officer and/or showed the appellant any proof that that was the case. Thereafter, the officer required the appellant to undergo a breath screening test and then to accompany the officer to a police station where an evidential breath test and a blood test were undertaken. There was no evidence that the appellant had objected at any stage to doing what the officer had asked him to do. Miller J held that the evidence was nevertheless insufficient to enable the prosecution to establish that the officer was in possession of a warrant or other evidence of his authority.
[18] In Police v O’Meara12 Judge Broadmore followed the approach taken by Miller J in Crilly. That case, too, involved an plain clothes policeofficer in an unmarked police vehicle. He had stopped the defendant after the defendant had been involved in a collision. The officer gave no evidence of having a warrant or other evidence of authority in her possession. Because the officer was not engaged in ordinary patrol duties at the time, she was unable to administer either a passive breath test or a breath screening test. She therefore required the defendant to accompany her back to the police station for the purpose of an evidential breath test. A short time later the officer obtained a breath screening test device from another officer and was able to carry out a breath screening test on the roadside. When this proved positive, the officer required the defendant to accompany her back to the police station for the purpose of an evidential breath test. The defendant again agreed. Once there, however, he refused to undertake an evidential breath test and he also refused to allow a blood sample to be taken. For that reason he was charged with refusing to supply a blood specimen. Like Miller J, Judge Broadmore considered the evidence to be insufficient to establish that the officer had in her possession a warrant or other evidence of her authority at the time that she dealt with the defendant.
[19] It has been held, however, that officers carrying out random breath testing procedures at a vehicle checkpoint can be assumed, even in the absence of direct evidence on the point, to be wearing uniform.13
[20] In the present case the Judge noted that Ms Stevenson had never challenged Constable Barraclough’s authority at the time that he dealt with her either t the roadside or at the police station. In addition, counsel for Ms Stevenson had not cross-examined the constable regarding the source of his authority. He also observed that, unlike Crilly and O’Meara, the evidence did not establish that the constable was in an unmarked police car or in plain clothes. Rather, there was no evidence at all regarding those issues.
[21] The Judge also relied upon the following aspects of the evidence as providing a sufficient evidential basis to enable him to infer that the constable was wearing a police uniform when he dealt with Ms Stevenson:
(a) The constable said that he was ―on patrol‖.
(b) The Judge was satisfied that the constable either stopped Ms
Stevenson’s car or stopped it from driving further.
(c) The constable administered two tests, one of which was at the Police
Station.
(d) The constable read Ms Stevenson her Bill of Rights, which he said he got from a card that he had in his pocket.
(e) The constable said that he knew Dr Delaney, the doctor who took the blood sample, and that he had met him on previous occasions when the doctor was carrying out similar work at the Police Station.
(f) The constable said that he placed the blood sample into a dispatch box at the Police Station.
[22] Of the factors relied upon by the Judge, I consider that the fact that the constable said that he was on patrol is significant. The constable’s evidence was actually to the effect that he and his partner ―were doing patrols around the Karori area, following reports of a vehicle which was seen driving erratically‖. In the
absence of any challenge, the inference to be drawn from this evidence is that the
13 Police v Hancock [2009] DCR 601, approved in Police v Southall HC Wanganui CRI-2010-483-
061, 8 April 2001 at [27].
constable was in a marked patrol car as would normally be the case for cars undertaking traffic patrol duties. If that was the case, it would be highly likely that the occupants of the vehicle would be in uniform. It would also be likely, in my view, even if the officers were using an unmarked police vehicle to undertake traffic patrol activities.
[23] It is also significant, in my view, that Ms Stevenson did not challenge or question the authority of the officer at any stage throughout the time that she dealt with him at the roadside and at the police station. The inference that I draw from this is that she was satisfied, most probably because the constable was wearing a uniform, that the person she was dealing with had the necessary authority to ask her to undergo those procedures.
[24] The fact that Constable Barraclough was able to gain access both to the police station and to breath and blood testing equipment held there is also important. In order to be able to do so it is highly likely that he was either in uniform or held some other evidence of his authority. I consider the possibility of him being able to take those steps whilst in plain clothes and without being in possession of any other evidence of authority to be remote.
[25] Taken together, these factors persuade me that the Judge was entitled to be satisfied beyond reasonable doubt that the officer was in uniform or in possession of other evidence of his authority at the time that he dealt with Ms Stevenson.
c) Was the Judge wrong to reject a defence submission that there was a fatal gap in the chain of custody of the blood sample taken from Ms Stevenson?
[26] As is commonly the case, the prosecution relied on an analyst’s certificate produced under s 75(5) of the Act to establish several facts, including the proportion of alcohol in Ms Stevenson’s blood. The certificate was in the following terms:
BLA106673
25 June 2010
APPROVED ANALYST’S CERTIFICATE UNDER
SECTION 75(5) OF THE LAND TRANSPORT ACT 1998
This is to certify that –
Ablood specimen in a sealed bottle, taken from: STEVENSON, Charlotte Moya
Lawyer
116 Karori Road
KARORI
Was delivered on 23 June 2010 to Louise Tindall (a person employed by an approved laboratory within the meaning of the Land Transport Act 1998 and approved by me for the purpose) for analysis. It was delivered by NZ Couriers E20.60649354 from V Hunter.
On analysis of the blood specimen by N A McGavin, analyst, a proportion of
257 milligrams of alcohol per 100 millilitres of blood was found in the specimen.
No such deteriorating or congealing was found as would prevent a proper analysis.
[27] The deficiency in proof is said to arise because the prosecution did not adduce any direct evidence as to how the samples of blood taken from Ms Stevenson were transported to the ESR. Constable Barraclough said that he placed the blood specimen kit in the watchhouse safe after he received it from Dr Delaney. He expected Ms Hunter, one of the members of the watchhouse staff, to arrange for the kit to be sent to the ESR. He was unable to say, however, whether that actually occurred.
[28] The prosecution was not required to adduce direct evidence relating to prove that the blood specimen kit was conveyed from the police station to the ESR laboratory. It was entitled, as it did in the present case, to rely upon circumstantial evidence to prove that fact.
[29] Several aspects of the evidence were relevant in this context. First, Dr Delaney took the blood samples from Ms Stevenson on 19 June 2010. Constable Barraclough placed the blood specimen kit in the watchhouse safe on the same date. The ESR certificate records that the blood specimen that was subsequently analysed was delivered to the ESR by courier just four days later, on 23 June 2010. Both the blood specimen form that accompanied the kit and the labels on the specimen bottles stated that the blood samples in the bottles emanated from a person having the same
name and address as Ms Stevenson. These factors strongly suggest that the blood samples that the ESR received on 23 June 2010 were those taken from Ms Stevenson on 19 June 2010.
[30] The only factor possibly shedding any doubt on that conclusion arises out of the fact that the ESR certificate records the occupation of the person whose blood was analysed as being that of a lawyer. As noted earlier, Ms Stevenson is a legal secretary and not a lawyer. The explanation for this discrepancy is, however, obvious. It arises from the manner in which Dr Delaney filled out the labels that he affixed to the specimen bottles that contained Ms Stevenson’s blood.
[31] The carbon copy of the labels remains legible in the schedule on the bottom right hand corner of the blood specimen certificate filled out by the doctor and produced by Constable Barraclough in evidence. This shows that Dr Delaney erroneously recorded Ms Delaney’s occupation on the labels as being that of a lawyer. The ESR staff member who drafted the s 75(5) certificate obviously took the occupation of the donor of the blood sample from the labels on the specimen bottles.
[32] When this explanation is taken into account, I do not consider that the reference in the ESR certificate to Ms Stevenson’s occupation being that of a lawyer casts any doubt on the identity of the donor of the blood specimen. Rather, it provides further confirmation that the certificate of analysis relates to the blood that Dr Delaney took from Ms Stevenson on 19 June 2010. .
[33] I therefore consider that the Judge was entitled to conclude that the prosecution had proved the chain of custody beyond reasonable doubt. I do not consider that there was any reasonable possibility that the ESR certificate related to a specimen of blood other than that taken from Ms Stevenson on 19 June 2010.
Result
[34] The appeal against conviction is accordingly dismissed.
Lang J
Solicitors:
Crown Solicitor, Wellington
Counsel:
W M Johnson, Wellington
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