Tebbs v Police

[2013] NZHC 423

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-000250 [2013] NZHC 423

STEPHEN ROSS TEBBS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 March 2013

Counsel:         R D Mulgan and D MacLaurin for the Appellant

K Francis for the Respondent

Judgment:      6 March 2013

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 6 March 2013 at 4.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

R D Mulgan: 09 575 4440

K Francis: [email protected]

TEBBS V POLICE HC AK CRI 2012-404-000250 [6 March 2013]

[1]      Mr Tebbs seeks leave to appeal my reserved judgment dated 18 December

2012.

[2]      In that judgment, I upheld a decision of Judge N R Dawson sitting in the District Court, in which he found that Mr Tebbs was guilty of driving with excess blood alcohol pursuant to s 56(2) of the Land Transport Act 1998.  I held that the presumption contained in s 77(2) of the Act is concerned with timing, and that the subsection does not go so far as to suggest that tests carried out by ESR for the police, or tests carried out by a private analyst for the accused, are presumed to be correct.  Further, I held that the use of glass bottles with plastic screw tops for the storage of an accused’s blood prior to analysis complied with the then relevant statutory provisions, and did not preclude the blood from being a “blood specimen” in terms of the Act.

[3]      Mr Tebbs seeks to  raise three questions for the opinion of the Court of

Appeal. The questions suggested by counsel for Mr Tebbs are as follows:

(a)      Is the conclusive presumption in s 77(2) a bar to the Court considering evidence that bears on the reliability of a blood result taken under the Land Transport Act 1998?;

(b)Is a sample of blood taken with a needle and syringe a blood specimen within the meaning of the Land Transport Act 1998?; and

(c)      Is a sample of blood in a screw top bottle a blood specimen within the meaning of the Land Transport Act 1998?

[4]      The application is opposed by the Crown.

[5]      Mr Mulgan for Mr Tebbs submitted that each of the questions that Mr Tebbs wishes to take to the Court of Appeal are questions of law, and further, that they are questions of general or public importance such as to warrant submission to the Court of Appeal.  He submitted that I should take the view that the questions ought to be submitted to the Court of Appeal, and grant leave accordingly.

[6]      Mr Francis for the police submitted that the first and third questions are not of general or public importance, given changes to the relevant statutory provisions, and that the second question was not determined by me in my judgment.  He further argued that any appeal is unlikely to succeed, and that the first question in particular is not dispositive of the appeal.

Analysis

[7]      Mr  Tebbs’ application  for  leave  to  appeal  is  governed  by  s  144  of  the

Summary Proceedings Act 1957.  It provides as follows:

144     Appeal to Court of Appeal

(1)       Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 or against any determination of the High Court on a question of law arising in any general appeal:

provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2)       A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that court, and the High Court may grant leave accordingly  if  in  the  opinion  of  that  court  the  question  of  law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

(3)       Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the

Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that court, for special leave to appeal to that court, and the Court of Appeal may grant leave accordingly if in the opinion of that court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[8]      It is trite law that there must be: (a)      a question of law;

(b)the question must be one which, by reason of its general or public importance, or any other reason, ought to be submitted to the Court of Appeal; and

(c)       the Court must be of the opinion that it ought to be so submitted.1

Neither the determination of what constitutes a question of law, nor the question of whether that point of law raises a question of general or public importance, are to be diluted.   Section 144 was not intended to provide a second tier of appeals from decisions of a District Court in proceedings under the Summary Proceedings Act, and Parliament intended that such proceedings should be brought to finality with a defendant  having  an  appeal  to  the  High Court  other  than  when  the  conditions

specified in subs (2) and (3) are met and leave to appeal is granted.2

[9]      By way of initial comment, the first question which Mr Mulgan submits I should allow to be put to the Court of Appeal was not decided by me.  When I asked Mr Mulgan to show me in my judgment where I had concluded that s 77(2) is a bar to the Court considering evidence that bears on the reliability of a blood result taken under the Land Transport Act 1998, he was unable to do so.  In my view, if the issue is to go to the Court of Appeal, the question that should properly be asked is as follows  —  what  is  the  effect  of  the  presumption  contained  in  s  77(2)  of  the

Land Transport Act 1998?

1      R v Slater [1997] 1 NZLR 211 (CA) at 215.

2      Ibid at 215.

[10]     I accept that this is a question of law, and that it was determined by me.

[11]     Is the question one which by reason of its general or public importance, ought to be submitted to the Court of Appeal?

[12]     Here, the proposed appeal relates to events which occurred in October 2010. As at that date, the relevant legislative provisions were contained in the Land Transport Act 1998.  Many of those provisions were amended or repealed as from

5 November  2011  by  the  Land  Transport  (Road  Safety  and  Other  Matters) Amendment Act  2011.    In  some  cases,  it  might  well  be debatable whether the interpretation of statutory provisions in repealed legislation raises an issue of general or public importance.  However, in the present case, the amended provisions retain s 77(2), albeit in a different statutory framework.   It cannot be said that the point Mr Tebbs seeks to take to the Court of Appeal is of historical interest only.

[13]     I based my judgment in part on Court of Appeal authority — Livingston v Institute of Environmental Science & Research Limited.3     Where there is an authoritative ruling from the Court of Appeal, that will often count against the grant of leave.   Here, however, the Court of Appeal’s observations in regard to s 77(2) were obiter.  It was dealing with the evidential breath testing regime.  Moreover, its observations were made in the context of an acceptance by counsel then appearing

for the Crown that where results obtained from ESR, and from a private analyst differ, there would be a defence available.  While that might seem to be self evident, as I understand it, Mr Mulgan will seek to argue that my decision in effect bars a Court from considering evidence that bears on the reliability of blood samples tested by ESR for the Crown.

[14]     I accept that the proposed question as reworded by me raises an issue of ongoing importance.  In my judgment, it is appropriate that it should be submitted to the Court of Appeal for further consideration.

[15]     In contrast, issue (b) which Mr Tebbs wishes to take to the Court of Appeal was not decided by me.   Although Mr Mulgan in his submissions asserted that

counsel made oral submissions on the point at the hearing, I have no recollection of that.   Certainly, it was not an issue which I decided in my judgment.   Nor did Judge Dawson in the District Court.   While the law is not clear as to whether a question of law not raised in the Court below may nevertheless be a “question of law arising in any general appeal”,4  given that the point has not been decided either by me, or by the District Court, in my view, is inappropriate to refer the issue to the Court of Appeal.

[16]     The third question did arise in the course of the appeal before me, and I expressly dealt with the same.  I am not sure, however, that the question posed by Mr Mulgan is particularly happily phrased.  To my mind, the better question is as follows — Did the placing of a blood specimen in a glass bottle with a plastic screw top prior to analysis comply with the Land Transport Act 1998, as it stood in October

2010?   This is, I accept, a question of law; it concerns the interpretation of the statute.

[17]     Again, I also accept that this matter is one of general and public importance. Notwithstanding the changes to the legislative provisions, which now require that blood collection is undertaken in accordance with the Land Transport (Blood Specimen Collecting Procedure) Notice 2011, I am told by Mr Mulgan that the previous blood collection practices remain in place. As he understands it, they are to be replaced with new procedures at some point in the future, but there is no certainty about when those new procedures will be introduced.  Mr Francis confirmed that this is also his understanding.

[18]     The use of glass bottles with plastic screw tops remains an ongoing issue. Clearly, there are a large number of people who are potentially affected by the answer to the proposed question.   It has not previously been considered by the Courts insofar as I am aware.   I am satisfied that the question should properly be submitted to the Court of Appeal for consideration.

Result

[19]     I am satisfied that it is appropriate to grant Mr Tebbs leave to appeal to the

Court of Appeal in relation to the following two questions of law:

(a)       What is the effect of the presumption contained in s 77(2) of the

Land Transport Act 1998?;

(b)Did the placing of a blood specimen in a glass bottle with a plastic screw top prior to analysis comply with the Land Transport Act 1998, as it stood in October 2010?

[20]     Leave is granted on the condition that Mr Tebbs files a notice of appeal to the

Court of Appeal within 10 working days of the date of this judgment, and further, that he exercises all reasonable expedition in bringing the appeal on for hearing.

Wylie J