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 the cool room was made available for that purpose.

[8]      The private analyst was a Mr Rory Shanahan.  He analysed the part of blood specimen made available to him on 18 February 2011, almost four months after it had been taken.   He stated at the hearing that he analysed “the blood for alcohol content and deduct[ed] six, and that’s what [he] report[ed]”.   He reported that the blood specimen contained 80mg of alcohol per 100ml of blood.  When asked why he deducted 6mg before reporting, he explained that he did so to follow the standard ESR practice and so that the Court did not end up comparing “apples with oranges” when the two analyses were put side by side.

[9]      The matter came to hearing on 20 February 2012 before Judge NR Dawson in the District Court. There were only two issues before him for decision:

(a)      Was the discrepancy between the results reported by ESR and by Mr Shanahan sufficient to raise a reasonable doubt as to whether the alcohol level in Mr Tebbs’ blood was illegal?; and

(b)Did the police fail to take the blood specimen in accordance with normal medical procedures?

[10]     In a reserved decision issued on 16 April 2012, Judge Dawson detailed the background facts, which I have set out above.

[11]     In  relation  to  the  first  issue,  he  noted  Mr  Shanahan’s  evidence  that  the difference between the two test results could have been caused by microbiological activity which could have either raised or lowered the alcohol content in the blood. He also noted that Mr Shanahan accepted that the deterioration of the blood, if it occurred, may have had no scientific explanation.

[12]     Judge Dawson found as follows:

The analysis of the defendant’s blood by the ESR was undertaken four days after the blood sample was taken.   The analysis by Mr Shanahan was undertaken nearly four months later.   No evidence has been adduced to indicate that the analysis by the ESR was incorrect.  Both expert witnesses gave evidence that the level of alcohol in stored blood can alter over time. Both expert witnesses appear to the Court to be competent in their fields of expertise.  The result of Mr Shanahan’s test, slightly lower than the ESR’s test result, is explainable by the evidence of both expert witnesses to the effect that the level of alcohol in a blood sample can alter over time.  The evidence of Mr Shanahan does not throw the evidence of the ESR test into doubt, it only indicates that on this occasion the level of alcohol in the blood sample has dropped.  Therefore, the discrepancy between the ESR analysis and the analysis by Mr Shanahan does not raise a reasonable doubt as to the accuracy of the ESR test result.

[13]   In relation to the second question, Judge Dawson noted the competing arguments.  He recorded that counsel for Mr Tebbs was arguing that airtight glass tubes with an airtight top should be used to store a blood specimen, and not glass bottles with screw tops.  He referred to the relevant statutory provisions cited by the parties.   He considered that a decision on the issue turned on the meaning of the definition of “blood specimen” contained in s 2 of the Act.  It referred to a specimen of venous blood taken in accordance with “normal medical procedures”.

[14]     Judge Dawson concluded as follows:

A strict reading of this definition indicates that the process of the taking of blood, that is to say the use of a needle to be inserted into a part of the body of the subject person and the extraction of blood into the syringe, is what

must be done in accordance with normal medical procedure.  No evidence or submissions had been received to indicate that this process was not undertaken  using  normal  medical  procedures.    What  happened  after  the taking of the blood was the storage of the blood, in this case by using screw-top bottles.  At that point, s 75(2)(c) comes into play, which requires that the blood be kept “in the appropriate container”, which in s 72(2)(b) must come from “a sealed blood specimen collecting kit”.  No evidence or submissions had been received which indicates that the container used in this case did not come from such a kit, and therefore the certificate supplied pursuant to s 75 applies.

[15]     Mr Tebbs was found guilty.

[16]     On 10 July 2012, Mr Tebbs was fined $400 and ordered to pay Court costs of

$132.89, medical expenses of $80, and an analyst’s fee of $93.   He was also disqualified from holding or obtaining a driver’s licence for six months as from

29 August 2012.

Submissions

[17]     Mr Mulgan submitted first, that the conclusive presumption contained  in s 77(2) of the Act applies to both parts of the blood specimen taken from Mr Tebbs. He argued that this conclusive presumption is a bar to consideration of the factors that might explain a difference between the results of the two analyses and that, because both portions of the specimen are caught by the same presumption, there is no  basis  for preferring  one result  over the other.    He submitted that  the result reported by Mr Shanahan means that no offence has been committed.

[18]     In relation to the appropriate vessel and whether or not glass bottles with screw tops suffice, Mr Mulgan referred to the unchallenged evidence given at the hearing that the use of glass bottles with screw tops for holding blood samples was phased out by the medical profession generally in the 1970s, and that sterile vacuum tubes with a permanent rubber seal are now in common usage.  He noted that the evidence suggested that one of the reasons for the change was to reduce the risk of microbiological contamination of blood.  He submitted that the word “taken” used in the definition of the words “blood specimen” in the Act is not confined to the actual physical taking of the blood, and that the requirement to adopt normal medical procedures extends to the use of appropriate containers for storing any blood that is

taken.  On this basis, he argued that the blood specimen taken from Mr Tebbs was not taken in accordance with normal medical procedures, and that it therefore fell outside the definition of a “blood specimen” contained in the Act and was inadmissible.

[19]     Mr  Francis  for  the  police  started  by referring  to  the  various  test  results obtained by the analysts.  He noted that six tests were carried out by ESR and that one test was carried out by Mr Shanahan, and that all initially showed results in excess of 80mg of alcohol per 100ml of blood.  He asserted that there is no statutory requirement for rounding down, and that the reality is that all testing carried out resulted in analyses of more than 80mg of alcohol per 100ml of blood.

[20]     In relation to the second issue, Mr Francis referred to the statutory framework and the relevant definitions contained in the Act.   He submitted that it is only the taking of venous blood that has to be carried out in accordance with normal medical procedures, and that there are various provisions in the Act that suggest that there is a distinction between the taking of blood and the placing of blood in a bottle.  As a fallback proposition, he argued that there had been reasonable compliance with the Act pursuant to the provisions of s 64(2).

Analysis

[21]     Offences involving drink driving are dealt with in Part 6 of the Act.

[22]     The events in issue in this case occurred on 25 October 2010.  The Act was amended substantially by the Land Transport (Road Safety and Other Matters) Amendment Act 2011.  It put in place a number of new definitions and substantive provisions.  Relevantly, the law now requires that blood collection is undertaken in accordance with the Land Transport (Blood Specimen Collecting Procedure) Notice

2011.  This judgment is not concerned with those provisions.  Rather, it focuses on the provisions which were in place in 2010.

[23]     I start with s 56(2) which creates the offence with which Mr Tebbs was charged.  It provides as follows:

56       Contravention of specified breath or blood-alcohol limit

…

(2)       A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.

…

[24]     The term “blood specimen” is defined in s 2 of the Act.  The definition is as

follows:

blood specimen means a specimen of venous blood taken in accordance with normal medical procedures

[25]     A blood specimen was required to be taken in accordance with s 74.  Inter alia, it provided as follows:

74       Procedure for dealing with blood specimens

(1)      A blood specimen taken under section 72 or 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.

…

[26]     Relevantly, s 75 provided as follows:

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.

[27]     I now turn to deal with the two issues raised by the appeal.

What is the Effect of s 77(2) of the Act?

[28]     Section 77(2) provides as follows:

77       Presumptions relating to alcohol-testing

…

(2)       For  the  purposes  of  proceedings  for  an  offence  against  this Act arising  out  of  the  circumstances  in  respect  of  which  a  blood specimen was taken from the defendant under section 72 or section

73, it is to be conclusively presumed that the proportion of alcohol in the defendant's blood at the time of the alleged offence was the same

as the proportion of alcohol in the blood specimen taken from the defendant.

[29]     It is a companion provision to s 77(1) which deals with evidential breath tests.

[30]     Mr Mulgan argued that the effect of the presumption is that the alcohol in the blood found in both parts of the blood specimen is conclusively presumed to be the same as the alcohol in Mr Tebbs’ blood at the time of the alleged offence.  Because one test did not exceed the threshold set out in s 56(2), he argued that there is a reasonable doubt that Mr Tebbs was not in breach of the Act, and that as a result, the conviction should be set aside.

[31]     I do not agree with these assertions.  In my view, the subsection is concerned with timing.  It deems the blood/alcohol results obtained from testing sometime later to be the same as the blood/alcohol ratio at the time of the offence.  The subsection does not go so far as to suggest that either test or both tests (where the accused obtains a test result from a private analyst) are presumed to be correct.[1]   Indeed, were Mr Mulgan’s interpretation of the subsection to be adopted, the result would be to render otiose the various provisions in the Act that allow a defendant to obtain part of a blood specimen and have it privately analysed.[2]

[1] Livingstone v Institute of Environmental Science & Research Ltd (2003) 20 CRNZ 253 (CA) at 38.

[2] Land Transport Act 1998, s 74(5)–(7).

[32]     Moreover, in the present case, all tests undertaken showed a level in excess of the permitted maximum of 80mg of alcohol per 100ml of blood.  ESR conducted six tests.    All  revealed  actual  levels  above  92mg  of  alcohol  per  100ml  of  blood. Mr Shanahan reported a level of 80mg of alcohol per 100ml of blood, but this was after he had deducted 6mg of alcohol, so that he could report his result on the same basis as ESR had done.  It follows that Mr Shanahan’s actual test result was 86mg of alcohol per 100ml of blood.   All testing shows levels of alcohol in excess of the permitted level.  There is no statutory basis for the deduction made by ESR and by Mr Shanahan, and s 56(2) does not require proof that the proportion of alcohol in a person’s blood is in any specific proportion.  All that needed to be proved is that the

proportion of alcohol in the defendant’s blood exceeded the proscribed level.[3]

[3] Police v Stephenson DC Auckland CRN-0900401008513, at 10–12.

[33]     All testing undertaken of Mr Tebbs’ blood specimen proved that the level of alcohol in his blood at the time of the offence exceeded the proscribed level.  There is no reasonable doubt. The first point raised on the appeal fails.

[34]     I now turn to the second issue.

Use of Glass Bottles — Blood Specimen?

[35]     Mr  Mulgan  argued  that  the  definition  of  the  words  “blood  specimen” contained in the Act required that the bottle used for storage of a defendant’s blood comply with “normal medical procedures”.

[36]     There can be no doubt that if a blood specimen taken from a defendant and relied on by the prosecution does not qualify as a blood specimen, then the defendant cannot  be  found  guilty  of  an  offence  under  s  56(2)  and  the  police  case  must collapse.[4]

[4] Livingstone v Institute of Environmental Science & Research Ltd, above n 1, at 11; R v Faasipa

(1995) 2 HRNZ at 5.

[37]     I am not, however, persuaded that the storage of blood in glass bottles with

screw plastic tops is required by the definition of the words “blood specimen”.

[38]     I agree with Judge Dawson that the issue turns on the meaning to be given to the word “taken” in the statutory definition of the words “blood specimen”.  It is a normal  everyday  word  in  common  usage.     Relevantly,  it  means  extracted, withdrawn, or removed, normally by a syringe or needle.

[39]     The Interpretation Act 1999 requires that a purposive approach is taken to the interpretation of legislation.   I am satisfied that interpreting the word “taken” to mean extracted, withdrawn, or removed, is consistent with that direction.  The taking of blood is an invasive, albeit common, medical procedure, and it is clearly appropriate that it be carried out in accordance with normal medical procedures. Normal medical procedures would extend to identification of the appropriate vein,

swabbing the skin with a disinfectant, the use of a syringe, the use of a swab or

plaster to staunch the wound, and the like.  These are all medical concerns associated directly with the “taking” of the blood.  The same cannot be said of the subsequent storage of the blood in glass bottles with screw taps.  The placing of the specimen in the bottle occurs after the blood has been taken.  The way in which a blood specimen is stored has to do with the preservation of evidence prior to its analysis, not medical procedure or clinical standards.

[40]     Further, other provisions in the Act at the time compelled the conclusion that there is a distinction between a blood specimen being taken, and a blood specimen being placed in a glass bottle.  I refer to the following:

(a)      Section 74(1) referred to a blood specimen taken under the Act being divided into two parts, and each part being placed in a separate bottle which was then sealed;

(b)Section 74(2) referred to the preservatives and anticoagulants being added to the blood specimen “whether before or after the specimen is taken and placed in the bottle”;

(c)      Section 75(2) provided for what a medical certificate could properly certify.   It dealt separately with the taking of venous blood in accordance with normal medical procedures — s 75(2)(a), and then with the placing and sealing of the blood specimen in separate bottles for each part of the specimen — s 75(2)(c);

[41]     All of this suggests that there is already a blood specimen in existence before it is divided into two parts, and before each part is placed in a glass bottle for storage and subsequent analysis.

[42]     Further, s 75(2)(d) provided that a certificate given under s 75(1) certified, inter alia, that each separate bottle was received by a medical practitioner or a medical officer (which expression included a nurse) in a “sealed blood specimen collecting kit”.   Those words were defined to mean a package supplied by, or on behalf of, an approved laboratory.   Here, Nurse Woods signed a certificate, and it

was put in evidence.  She was not called in relation to the certificate, and it was not challenged.  The conclusion must be that the bottles used came from a sealed blood specimen collecting kit.  In other words, the procedure contemplated by the Act was followed.

[43]     Parliament has put in place a comprehensive regime for blood testing and it was followed in this case.  Although they are related to evidential breath testing, the observations of the Court of Appeal in Livingstone are equally applicable.  Where a device of an approved kind is operated in an approved manner, the statutory intent must be that the result is generally presumed to be reliable.  Parliament cannot have intended  the  person  accused  to  be  able  to  challenge  the  general  reliability  of approved devices (in this case, glass bottles) or the general reliability of approved

methods of operating them.[5]   To hold otherwise would undermine the whole purpose

[5] Livingstone v Institute of Environmental Science & Research Ltd, above n 1, at 9.

of the statutory regime.   The Supreme Court has made it clear that drunk drivers should  not  be  able  to  escape  liability through  technicalities.[6]      In  my  view,  the arguments advanced on Mr Tebbs’ behalf are both technical and unmeritorious.

[6] Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].

[44]     It is not necessary for me to go on and deal with the reasonable compliance argument.  The use of glass bottles with screw tops for storage of blood specimens complies with the Act as it stood at 2010, and a blood specimen stored in a glass bottle with a plastic screw cap did not cease to be a “blood specimen” for the purposes of the Act.

[45]     The appeal is dismissed.

Wylie J