Tebbs v Police - [2012] NZHC 3468

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-000250 [2012] NZHC 3468

STEPHEN ROSS TEBBS
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 12 December 2012

Counsel: P Winkler, R Mulgan and A Simpson for the Appellant
K Francis for the Respondent

Judgment: 18 December 2012

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 18 Dec 2012 at 10.00 am
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

TEBBS V POLICE HC AK CRI 2012-404-000250 [18 December 2012]

[1] The appellant, Mr Tebbs, appeals a conviction for driving with excess blood alcohol pursuant to s 56(2) of the Land Transport Act 1998.

[2] The appeal raises two issues:

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

and

(b)Does the placing of a blood specimen in glass bottles with plastic screw caps prior to analysis comply with the Act, as it stood in October 2010?

Background

[3] On 25 October 2010, Mr Tebbs was pulled over by the police for speeding. He failed a breath-screening test for the presence of alcohol. He was then taken to the North Shore Police Station for an evidential breath test, which he also failed. Mr Tebbs then elected to have a blood specimen taken.

[4] The blood specimen was taken by a nurse, a Ms Woods. She completed the standard blood specimen medical certificate. No request was made for Ms Woods to attend the hearing in the District Court, and the certificate was admitted without opposition.

[5] At the time, the Act required that a blood specimen be divided into two parts. That step was taken. The blood was placed in two glass bottles. The bottles contained a preservative and an anticoagulant, to stop the blood from clotting and to prevent microbial and enzyme actions from altering the makeup of the blood. The bottles were made of glass with a plastic screw cap, and a tamper-free ‘T’-shaped seal was placed over the top of each bottle. The bottles containing the blood specimen were promptly delivered to the ESR. One bottle was placed in a cool store. The blood in the other bottle was analysed by a Noreen McGavin of ESR.

The ESR analysis was undertaken on 29 October 2010, four days after the blood specimen was taken.

[6] The blood was analysed six times by ESR, and blood/alcohol readings between 92.5mg/100ml and 93.38mg/100ml were obtained. Ms McGavin took
92mg/100ml as the truncated average of the six results. She then deducted 6mg/ml from this level, in accordance with standard ESR practice and to account for any possible analytical variations. She reported a final analysis result of 86mg of alcohol to 100 litres of blood.

[7] A summons was issued on 19 November 2010. Mr Tebbs exercised the right available to him under s 74(5) of the Act to have the blood specimen analysed by a private analyst, and that part of the blood specimen that had been stored in…

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 Tebbs v Police

Details

AGLC: Tebbs v Police [2012] NZHC 3468
Case: [2012] NZHC 3468
Decision Date: 18 December 2012

CaseChat Overview and Summary

In the case of Tebbs v Police, the appellant, Mr Tebbs, appealed his conviction for driving with excess blood alcohol. The appeal raised two main issues: the effect of the presumption in s 77(2) of the Land Transport Act 1998 and whether the storage of the blood specimen in glass bottles with plastic screw caps complied with the Act. The court began by examining the presumption in s 77(2), which presumes that the alcohol level in the blood at the time of the alleged offence was the same as the alcohol level in the blood specimen taken later. The court rejected the argument that this presumption required both tests to be correct, noting that all tests showed alcohol levels exceeding the legal limit. The court found that the presumption only addresses the timing of the blood alcohol results and does not guarantee the accuracy of the tests. Therefore, the first appeal point failed.

Regarding the second issue, the court considered whether the storage of the blood specimen in glass bottles with plastic screw caps complied with the Act. The court concluded that the definition of "blood specimen" in the Act required the blood to be taken in accordance with normal medical procedures, but did not extend to the storage of the blood. The court held that the storage method did not affect the validity of the blood specimen. The court further noted that the use of glass bottles with plastic screw caps complied with the Act as it stood in 2010, and that the storage method did not render the blood specimen invalid. The appeal was dismissed, and the conviction was upheld.

The court's decision emphasised the importance of adhering to the statutory regime for blood testing, and that technical arguments should not be used to undermine the purpose of the legislation. The court held that the use of glass bottles with plastic screw caps for storage of blood specimens complied with the Act as it stood in 2010, and that the storage method did not render the blood specimen invalid. The appeal was dismissed, and the conviction was upheld.

Orders