T v Police HC Dunedin CRI 2005-412-52
[2006] NZHC 328
•31 March 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI 2005-412-000052
T
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 13 February 2006
Appearances: C S Withnall QC for Appellant
M J Grills for Respondent
Judgment: 31 March 2006
JUDGMENT OF HON JUSTICE JOHN HANSEN
[1] The Appellant appeals his conviction for driving with excess blood alcohol and the period of disqualification imposed upon him. The decision is said to be wrong in fact and law, and that the learned District Court Judge erred in principle in imposing a period of eight months disqualification on the ground the Appellant had pleaded not guilty.
Background facts
[2] On 18 July 2004, at approximately 1am, the police were called to a motor vehicle accident on the Southern Motorway in Dunedin. A four wheel drive Nissan
T V POLICE HC DUN CRI 2005-412-000052 31 March 2006
Terrano registered in the Appellant’s name was on its roof in the right hand lane of the south bound lanes of the motorway. The police concluded that the vehicle had been travelling south on the motorway and had failed to take a gentle right hand bed. The vehicle collided with some temporary road barriers on the left side of the road, flipped onto its roof and skidded across the lanes.
[3] The police conclusion was substantiated by eye witness accounts of a motorist and his passenger travelling behind the Appellant’s vehicle. They noticed a great ball of water in front of them (from the temporary barriers which were filled with water) and they then saw the Appellant’s vehicle flip on its roof and slide along the road. They stopped and assisted the Appellant and an ambulance was called.
[4] A constable gave evidence that he spoke to the Appellant as he was being helped into the ambulance, when the Appellant said he “just fucked up”. He was then taken to hospital.
[5] Sergeant Baker examined the scene and then spoke with the Appellant at the hospital. He told him he would require a doctor to take a blood sample from him. Around 2.30am he requested Dr Pelvin to obtain blood from the Appellant, and as this was unable to be done immediately he returned to the hospital around 3.30am when he removed the blood sample and a hospital blood medical certificate from Dr Pelvin. The sergeant returned to the police station, completed a blood specimen form, and placed it and the sample in “a secure registered post envelope”. This was then placed in the duty senior sergeant’s safe.
[6] Senior Sergeant Aitkin gave evidence that at 11am on 19 July 2004 he removed a blood sample from the safe. It was packaged in a courier pack and addressed to the ESR. He signed it out of the register, and took it to a Post Shop and received a customer copy of the courier pack identity tag.
[7] In or about the second week of August Sgt Baker received an ESR analyst’s certificate that recorded the Appellant’s result as being 117 milligrams of alcohol per
100 millilitres of blood.
The District Court Judgment
[8] The Judge noted that the blood specimen had been taken in accordance with the hospital procedure set out in s 73 of the Land Transport Act 1998. In accordance with that section the doctor should have sent the specimen to the analyst, with the evidential certificate confirming that procedure. Instead the Judge found the sample was dealt with as if it had been taken outside of a hospital, so that there was non- compliance with s 74(4) relating to the certification of the sample. The Judge described the method adopted as “hybrid” and was satisfied there was effective compliance with s 74(3) which deals with certification of samples taken outside of the hospital.
[9] The Judge rejected the defence submission there was doubt with respect to the “chain of custody” once the specimen reached the police station. Sergeant Baker had described the sample as being secured in “a registered post envelope” while Snr Sgt Aitkin described it as being in “a courier pack”. The Judge described the difference as inconsequential.
[10] He also rejected a similar argument relating to the method of delivery, finding Snr Sgt Aitkin’s evidence as more accurate in reference to the courier pack. The Judge was satisfied the sample had in fact been sent by courier service.
[11] The Judge considered a defence submission that Dr Pelvin had not “caused” the specimen to be sent to the analyst as required by s74(4). He referred to Raina v Police (HC Hamilton, AP 34/01, 19/9/01) and expressed doubt as to whether the doctor’s actions in handing the specimen to Sgt Baker amounted to causation in fact and law. The Judge decided that did not need to be determined in the present case. This was on the basis that even if the statutory procedure was not followed, it was excused by the “reasonable compliance” provisions of s 64(2).
[12] The medical practitioner’s certificate and the approved analyst’s certificate recorded the Appellant’s address as 30 Bush Road, Dunedin. The information refers to a different address. Section 76(1)(a) outlines a presumption that if a medical or analyst’s certificate names a person with the same name, address, and occupation as
the defendant as the person from whom the specimen was taken, the specimen was taken from the defendant. In reliance on Coltman v Ministry of Transport [1979] 1
NZLR 330 the Appellant had submitted this meant the actual name, address and occupation of the defendant. The Judge rejected this, stating that such details were often wrong.
[13] On the basis of the presumption and the evidence before the Court the Judge was satisfied the Appellant was the person from whom the blood specimen was taken.
[14] Finally, the Judge rejected an argument relating to the signature on the analyst’s certificate. It was submitted it was not only illegible but was plainly not that of the analyst named. The Judge rejected this, noting that everyday experience was enough to show that signatures and the names they are meant to represent often do not bear much resemblance. In the absence of any other evidence that the signature was that of the analyst, if it purports to be that of an approved analyst the Judge found it confirms with s 75(5). The Judge relied on two High Court cases as authority that illegibility of the signature does not prevent it from purportedly being the signature of the approved analyst.
Submissions
[15] The Appellant argues that the District Court Judge erred in finding that the doctor’s certificate was admissible. It was argued that the sample was taken under the “hospital case” provisions of s 73, not a “non-hospital case” under s 72. It is argued that that section requires different certification processes from s 72. It was submitted that s 75(4) applies with regard to the handling and delivery of the sample and is deliberately different from the procedure in non-hospital cases. In this case it is argued the section does not comply because all of the appropriate wording has been deleted from the form and there is no reference to a specified, approved analyst as required by s 75(4)(b).
[16] Mr Withnall also argued that the “reasonable compliance” provisions could not excuse the failure to comply with the statutory procedure for sending the sample to the ESR in this case.
[17] Next Mr Withnall argued that the Judge erred in finding that there was alternative evidence to prove the identity of the blood sample as coming from the Appellant. There is a reliance on Coltman, referred to earlier, and Mr Withnall argued that there was no other admissible evidence to prove that the Appellant was the person from whom the specimen of blood was taken.
[18] Mr Withnall argued that the evidence failed to establish a proper proof of the
“chain of custody”.
[19] Finally, Mr Withnall submitted that the name on the analyst’s certificate, D C Kappatos, does not match the signature that appears. He accepted the signature was not completely legible but it was obvious the last three letters were “nty” which did not match that of the analyst’s certificate.
[20] The Crown did not accept that the two procedures for hospital and non- hospital blood samples were exclusory. Ms Grills submitted the purpose of the provisions are the same, which is to ensure the “chain of custody” of the sample from the defendant to the approved analyst is intact and that it is sent within seven days of the date on which the specimen was taken. She submitted the Judge was correct in his finding that from the totality of the evidence the specimen given by the Appellant had gone to the ESR and had been analysed. She said therefore, although there may not have been strict compliance, that was excused by the “reasonable compliance” provisions of s 64(2).
[21] Further, she submitted that the wording of s 74(4) envisages the medical practitioner using an intermediary in the process of sending a specimen, and how the doctor might “cause” that to be sent is not specified. She submitted therefore it was open to use a police officer as the intermediary.
[22] Further, she said that Coltman v Ministry of Transport makes it plain that the primary consideration must be the likelihood of injustice or unfairness and none is demonstrated here.
[23] The Crown submitted that s 74(4) does not require the doctor to name an approved analyst. Ms Grills submitted this is because s 74(4) is in two parts, and it is only in the notification to the Commissioner pursuant to subs (4)(b) that the analyst must be identified.
[24] She also said there was adequate evidence to support the Judge’s findings that the Appellant was the person from whom the specimen of blood was taken. She said there was identification of the Appellant by two civilians at the scene, and the attending ambulance officer, Mr Aitchison. His report, which was produced, confirmed he delivered the defendant to the hospital at 1.27am on 18 June 2004. She said Sgt Baker, after attending the scene, went to the hospital, spoke to the Appellant and requested the doctor to take the blood specimen. That was at 2.35am and that is unchallenged.
[25] The “chain of evidence” as to the identification of the Appellant’s address and occupation also began at the scene. Ms Grills submitted that the report of Mr Aitchison contained details given to him by the Appellant, including the address of
30 Bush Road, Dunedin. She said there was no evidential basis to doubt the doctor’s certificate, that it was a sample taken from Geoffrey Philip T of 30 Bush Road, Dunedin.
[26] She further submitted that it is clear on the face of the blood specimen certificate form that parts A and B were filled out and certified as required by Dr Pelvin, and that part C was carried out by the police officer because it is in different pen.
[27] She said the “chain of custody” was also adequately and properly evidenced.
[28] Finally, she said, in the absence of evidence to the contrary, the signature of the analyst must be accepted pursuant to s 75(4).
Discussion
[29] In this case the relevant statutory provisions can be found in ss 64(2), 72, 73,
74 and 75. These read:
64 Defences
…
(2)It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.
…
72Who must give blood specimen at places other than hospital or surgery
(1)A person must permit a medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—
(a)The person fails or refuses to undergo without delay an evidential breath test after having been required to do so by an enforcement officer under section 69; or
(b)The person has undergone an evidential breath test under section 69(4), and—
(i) It appears to the officer that the test is positive; and
(ii) Within 10 minutes of being advised by an enforcement officer of the matters specified in
section 77(3)(a) (which sets out the conditions of the admissibility of the test), the person advises the
officer that the person wishes to undergo a blood test; or
…
(2)A person who has been required by an enforcement officer under subsection (1) 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.
(3)If it is not practicable for a blood specimen to be taken from a person by a medical practitioner or medical officer at a place where the person has been required under this section to permit the taking of a blood specimen, the person must accompany an enforcement officer to any other place where it is likely that a blood specimen can be
taken from the person by a medical practitioner or medical officer if the officer requires the person to do so.
(4)If a blood specimen taken under this section is insufficient to be divided into 2 parts in accordance with section 74(1),—
(a)The person from whom the specimen was taken must permit a medical practitioner or medical officer to take a further
blood specimen immediately after being requested to so by the medical practitioner or medical officer; and
(b)A further blood specimen so taken is to be treated as part of the original blood specimen taken from the person.
…
73 Who must give blood specimen in hospital or surgery
(1)A person who is under examination, care, or treatment in a hospital or doctor's surgery must permit a blood specimen to be taken from the person by—
(a)The medical practitioner who is in immediate charge of the examination, care, or treatment of the person; or
(b) Another medical practitioner or a medical officer.
(2)If a person under examination, care, or treatment in a hospital or doctor's surgery is unconscious, a blood specimen may be taken from the person under this section by—
(a)The medical practitioner who is in immediate charge of the examination, care, or treatment of the person; or
(b) Another medical practitioner or a medical officer.
(3)The medical practitioner who is in immediate charge of the examination, care, or treatment of the person in a hospital or doctor's surgery—
(a)May cause a blood specimen to be taken by another medical practitioner or a medical officer; and
(b) Must either take a blood specimen or cause a blood
specimen to be taken by another medical practitioner or a medical officer, if an enforcement officer requests him or her to do so,—
whether or not the person has consented to the taking of the specimen and whether or not the person is capable of giving consent.
(4) If the specimen originally taken is insufficient to be divided into 2 parts in accordance with section 74(1), the medical practitioner who is in immediate charge of the examination, care, or treatment of the person may take or cause to be taken by another medical practitioner or a medical officer a further blood specimen (which further specimen is for the purposes of this Act to be treated as a part of the original blood specimen taken from the person), whether or not the person has consented to the taking of the specimen and whether or not the person is capable of giving consent.
(5)Despite subsection (3)(b), a blood specimen may be taken under any provision of this section only if the medical practitioner—
(a)has reasonable grounds to suspect that the person is in the hospital or doctor’s surgery as a result of an accident involving a motor vehicle; and
(b)has examined the person and is satisfied that the taking of the blood specimen would not be prejudicial to the person’s proper care or treatment; and
(c)tells the person (unless the person is unconscious) that the blood specimen is being or was taken under this section for
evidential purposes.
…
(7)No civil or criminal proceedings may be taken against the Crown, a district health board, or any other person in respect of the taking of a blood specimen under this section, or in respect of the sending of a blood specimen to an approved analyst, on the ground of lack of consent of a person whose consent to the taking of the blood specimen would have been otherwise required by law if this section had not been enacted.
(8)Nothing in subsection (7) applies to any proceeding on the ground of any negligent act or omission in the taking of a blood specimen.
74 Procedure for dealing with blood specimens
(1)A blood specimen taken under section 72 or section 73 must be divided into 2 parts, and—
(a) Each part must be placed in a separate bottle and the bottle
must then be sealed; and
(b) Each part is a blood specimen for the purposes of this Act.
(2)One or more preservative substances and anti-coagulant substances may be added to a blood specimen by placing them in the bottle, whether before or after the specimen is taken and placed in the bottle.
(3)In the case of a blood specimen taken under section 72, an enforcement officer must, within 7 days after the date on which the specimen was taken, deliver or cause to be delivered (whether by courier or otherwise), or post by registered post or cause to be posted by registered post, both parts of the blood specimen to an approved analyst for the analysis of 1 of those parts and the custody of the other.
(4)In the case of a blood specimen taken under section 73, the medical practitioner or medical officer by whom the specimen was taken must,—
(a)Within 7 days after the date on which the specimen was taken, deliver or cause to be delivered (whether by courier or
otherwise), or post or cause to be posted by registered post,
both parts of the blood specimen to an approved analyst for the analysis of 1 of those parts and the custody of the other; and
(b) Give the Commissioner a written notification—
(i)Identifying the approved analyst to whom the parts of the blood specimen were (or are being) delivered or posted; and
(ii) Naming the person from whom the blood specimen was taken.
…
75 Certificates in blood-alcohol proceedings
(1)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.
(2)This section applies to a certificate purporting to be signed by a medical practitioner or medical officer and certifying that—
(a)A specimen of venous blood was taken by the practitioner or medical officer in accordance with normal medical
procedures from a person named in the certificate; and
(b)The specimen was divided by the practitioner or medical officer into 2 parts, or the specimen was insufficient for
division and the practitioner or medical officer took a further
specimen; and
(c)The practitioner or medical officer placed and sealed in a separate bottle each part or specimen (as the case may be); and
(d)Each such separate bottle was received by the practitioner or medical officer in a sealed blood specimen collecting kit;
and
(e)The practitioner or medical officer handed each such separate bottle to an enforcement officer named in the
certificate.
(3) This section also applies to a certificate purporting to be signed by a medical practitioner and certifying that—
(a) The person named in the certificate was in a hospital or
doctor's surgery; and
(b) The practitioner, being a medical practitioner in immediate charge of the examination, care, or treatment of that person,
took a blood specimen or caused a blood specimen to be taken by any other medical practitioner or any medical
officer from the person under section 73; and
(c)At the time the blood specimen was taken from the person, the practitioner had reasonable grounds to suspect that the
person was in the hospital or doctor's surgery as a result of
an accident involving a motor vehicle; and
(d)Before taking the blood specimen or causing the blood specimen to be taken from the person, the practitioner examined the person and was satisfied that the taking of the blood specimen would not be prejudicial to the person's proper care or treatment; and
(e) The practitioner either—
(i)Told the person that the blood specimen was being or had been taken under section 73 for evidential purposes; or
(ii) If the person was unconscious when the specimen was taken, notified the person in writing as soon as
practicable that the blood specimen was taken under section 73 for evidential purposes.
(4) This section also applies to a certificate purporting to be signed by a medical practitioner or medical officer and certifying—
(a) All the matters referred to in paragraphs (a) to (d) of
subsection (2); and
(b)That the practitioner or medical officer sent or caused to be sent by registered post, personal delivery, or delivery by
courier, on a specified date, both parts of the specimen (or
both specimens) to a specified approved analyst in accordance with section 74; and
(c) That the practitioner or medical officer notified the
Commissioner in writing of the approved analyst to whom the parts of the specimen (or the specimens) were delivered or posted.
(5) This section also applies to a certificate purporting to be signed by an approved analyst and certifying that—
(a)A blood specimen in a sealed bottle was, on a specified date, delivered to an approved analyst (or a person employed by
an approved laboratory and approved for the purpose by an approved analyst) for analysis, and was delivered by registered post or personal delivery or delivery by courier;
and
(b)On analysis of the blood specimen by an analyst specified in the certificate, a specified proportion of alcohol or of a drug,
or both (as the case may be), was found in the specimen; and
(c)No such deterioration or congealing was found as would prevent a proper analysis.
(6) This section also applies to a certificate purporting to be signed by an approved analyst and certifying that, following an application under section 74, a part of a blood specimen was posted to a specified private analyst by registered post, personal delivery, or delivery by courier, and addressed to the private analyst at the address given in the application.
(7)For the purposes of this section, it is not necessary for the person making a certificate to specify his or her entitlement to give the certificate if the certificate indicates that the person belongs to the general category of persons who may make such a certificate.
[30] The difficulty in this case is not one error, but a combination of errors.
[31] The taking of the specimen is clearly governed by s 73 of the Act. No issue has been taken in this case with whether or not the provisions of that section have
been complied with. Rather, the issue is with the procedure for dealing with blood specimens. Subsection (4) of s 74 imposes on the medical practitioner an obligation to deliver or cause to be delivered both parts of the blood specimen to an approved analyst.
[32] I do not accept Mr Withnall’s argument that this can not be done by handing it to another person to be forwarded to the analyst by registered post or courier. Mr Withnall’s contention would have to be that in a case such as this the person receiving the sample would have to personally deliver it to the analyst. I do not accept that Parliament could have contended for such an illogical approach. It seems to me the effect of the section is that the doctor must send the samples by either registered post, courier post, or by causing them to be delivered to a person who will ensure delivery by either of those means or personally to the ESR or an approved analyst. Only if it is to an approved analyst is there a requirement to name that person.
[33] However, that is not the problem in this case. The difficulty is that in the hospital blood specimen medical certificate Dr Pelvin has not followed a requirement to cross out “whichever is not applicable” but has rather crossed out both options. Clause 4 of part B of that form reads:
I sent/caused to be sent both parts of the specimen or both specimens to the
Analyst in Charge ESR/other being an Approved Analyst by
(a) registered post on
(b) delivery by courier on
(c) causing them to be personally delivered on 18/07/04 by handing each bottle to a named person Sgt ED Baker.
[34] Clause 4 requires the doctor to send both parts of the specimen to the analyst in charge at the ESR or another named approved analyst. The doctor must either attend to the sending personally or cause it to be sent in terms of s 74(4)(a), (b) or (c). However, in this case the doctor has deleted both the “sent” and the “caused”, and has also deleted both the “ESR” and the “other” being an approved analyst.
[35] In my view this is not some simple slip but a fundamental flaw to the certificate. It is obvious on the face of the certificate and could have been cured if he doctor had been called.
[36] The presumption contained in s 76(1)(a) was considered by the Court of Appeal in Coltman. In that case, dealing with a corresponding section in the Transport Act 1962, the Court held that “same name, address and occupation” means the actual name, address and occupation of the defendant which is the name, address and occupation shown on the information. In Coltman the analyst’s certificate showed 44A Muritai Road whereas the defendant’s correct address was 440 Muritai Road. The Court held that there was reasonable compliance pursuant to the equivalent s 264(2).
[37] However, in this case the address is completely different between the analyst’s certificate and the information. Coltman states that if the information incorrectly states any particulars it could be amended, but the analyst’s certificate could not. In this case there is no evidence to suggest the information is other than correct and there is no room to amend the analyst’s certificate.
[38] I cannot accept the Crown’s submissions in relation to the ambulance officer’s evidence. Ms Grills said the Appellant identified himself to Mr Aitchison and gave his address details. The officer did identify the Appellant in Court but gave no evidence of the Appellant giving his details, nor admitting to being the driver. There was no evidence as to how the address came to be in the officer’s report. In this case the presumption cannot be relied on and there is no proof of the Appellant being the driver through to the taking of the blood sample.
[39] In this case I am not concerned with the proof of “chain of custody”. I concur in the learned District Court Judge’s findings, and also the method by which it was sent to the ESR.
[40] However, I do not agree with the learned District Court Judge in relation to the admissibility of the analyst’s certificate. Ms Grills submitted that the Court
could not go behind the learned District Court Judge’s finding, nor the provisions of s 75(5).
[41] The certificate bears a notation under the signature “D C Kappatos Approved
Analyst”. The signature above is not completely legible.
[42] Section 75(1) speaks of “in the absence of proof to the contrary”. That presumption applies in the absence of proof to a civil standard. On any view of the matter the last letter of the signature is a “y”. The preceding letters are not so legible, but could also be “l” or “ty” preceded by a “n” or an “u”. There is also nothing to suggest a “K” or a “p” in the signature. Whatever view is taken, on the balance of probabilities doubt must be raised as to the signature. As well, there is nothing to suggest it is a “pp” signature on behalf of an approved analyst.
[43] A similar matter was considered by Young J in Police v Reynolds (HC Invercargill, AP 16/99, 7/9/99) In that case, at the foot of the certificate, appeared in typewritten words “S G Dickson Approved Analyst”. The signature is illegible but does not appear to be the signature of “S G Dickson”. A squiggle to the left of the signature suggested it may have been on a “pp” basis. In the circumstances the learned District Court Judge in the lower Court held that he was not satisfied beyond reasonable doubt that the certificate had been signed by “S G Dickson” an approved analyst.
[44] Young J, on appeal, referred to a number of authorities dealing with illegible signatures and noted that the Crown ran the appeal on the basis that it was an illegible signature case. The Judge, however, referred to the decision of Sinclair J in Brown v Auckland City Council (HC Auckland, M 681/85, 1/9/85) as being more apposite. There the signature was not that of the person stated in typeset to be the registered medical practitioner. The Judge upheld the learned District Court Judge’s decision that once it is established on the balance of probabilities that the signature is not that of the approved analyst, and it is not someone purporting on a “pp” basis, then the certificate is not signed by an approved analyst, or purported to be signed by an approved analyst.
[45] On the clear evidence of the signature itself, on the balance of probabilities, that is the case here.
[46] While I accept that it would be possible to argue that any one of the particular problems in this case could possibly be cured by reference to the “reasonable compliance” section, the compounding of the mistakes in this case satisfies me it would be inappropriate to excuse them on the “reasonable compliance” grounds. Indeed, the first and the last of the three I have referred to above alone should not, in my view, be rescued on this basis. The error on the face of the form is obvious and could have been cured by calling the doctor. Quite simply, the doctor had to choose between two alternatives but he has deleted both. That is not reasonable compliance, it is a failure to comply. In relation to the last ground the signature is patently not that of the Mr Kappatos and it would be wrong to use “reasonable compliance” provisions or illegible signature authorities to save it.
[47] I do not perceive this to be a case of precedent value. The appeal is allowed because of the combination of three different circumstances that are unlikely to be found in such combination again.
[48] Accordingly, the appeal is allowed and the conviction quashed.
Solicitors:
Kilkelly & Associates, Dunedin for Appellant
(Counsel – C Withnall QC, Dunedin) Crown Solicitor, Dunedin for Respondent
CC:
Judge MacAskill
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