Tebbs v R
[2013] NZCA 523
•30 October 2013 at 12 noon
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA160/2013 [2013] NZCA 523 |
| BETWEEN | STEPHEN ROSS TEBBS |
| AND | THE QUEEN |
| Hearing: | 8 October 2013 |
Court: | Hammond, Randerson and French JJ |
Counsel: | P Winkler, A Simpson and R Mulgan for Appellant |
Judgment: | 30 October 2013 at 12 noon |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hammond J)
Introduction
The High Court granted Mr Tebbs leave to appeal to this Court on two questions of law:[1]
(a)What is the effect of the presumption contained in s 77(2) of the Land Transport Act 1998?
(b)Does 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?
Background
[1]The leave judgment is Tebbs v R [2013] NZHC 423.
Mr Tebbs was charged with driving a motor vehicle on 25 October 2010, with the proportion of alcohol in his blood exceeding the statutory maximum of 80 milligrams of alcohol per 100 millilitres of blood.
He had been 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.
This blood specimen was divided into two parts as required by the Act. The blood was placed in two glass bottles with plastic screw caps, which were sealed with tamper-free “T”-shaped seals. 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 from the standard police issue blood taker’s kit.
The bottles containing the blood specimen were delivered to the Institute of Environmental Science and Research (ESR) on 29 October 2010. One bottle was analysed by Noreen McGavin at ESR on 1 November 2010 and 3 November 2010, four and six days after the blood specimen was taken respectively. Ms McGavin analysed the specimen six times and blood/alcohol readings of between 92.5 mg/100 mL and 93.38 mg/100 mL were obtained. Ms McGavin took 92 mg/100 mL as the truncated average of the six results. She then deducted 6 mg/100 mL from this level, in accordance with standard ESR practice, to account for any analytical variations. She reported a final analysis of 86 mg of alcohol per 100 mL of blood.
A summons was issued on 19 November 2010. Mr Tebbs then exercised the right available to him under s 74(5) of the Land Transport Act 1998 (“the Act”) to have the blood specimen analysed by a private analyst.
The second bottle containing Mr Tebbs’ blood specimen that had been stored in the cool room was made available for that purpose. It was despatched to Dr Sanderford for private analysis on 10 January 2011. Mr Shanahan, who was to perform the actual analysis, received the sample from Dr Sanderford on 12 February 2011. Dr Sanderford gave Mr Shanahan verbal assurances that in the intervening period the sample had at all times been stored in a refrigerator.
Mr Shanahan analysed the part of the blood made available to him on 18 February 2011, almost four months after it had been taken. He analysed the sample once and obtained a blood/alcohol reading of 86 mg/100 mL. He then deducted 6 mg/100 mL in line with ESR practice, in order that the Court did not end up comparing “apples with oranges” when the two analyses were compared. Mr Shanahan therefore reported a final analysis of 80 mg of alcohol per 100 mL of blood, which is a legal level under s 56(2) of the Act.
Question One: What is the effect of the presumption contained in s 77(2) of the Land Transport Act 1998?
In the District Court
The question raised in the District Court was: “Is the discrepancy of results of the ESR analysis and the private analysis of the defendant's blood sufficient to raise a reasonable doubt as to whether the alcohol level in the defendant's blood was illegal?”
Judge Dawson held that the discrepancy between the ESR analysis and Mr Shanahan’s analysis did not raise such a reasonable doubt.[2]
[2]New Zealand Police v Tebbs DC North Shore CRN-10044008523, 16 April 2012.
The Judge noted:
(a)The analysis of the blood by ESR was undertaken four days after the blood sample was taken, whereas the private analysis by Mr Shanahan was undertaken four months later on 18 February 2011.
(b)Ms McGavin gave evidence that very few blood samples alter over time, but that of those that do change, most lose some alcohol content, with extremely few seeing an increase in alcohol content. She also gave evidence that it was extremely unlikely that any bacteria could live in the bottle given the amount of fluoride used in the bottles. Mr Shanahan concurred that the level of alcohol in stored blood may alter over time, and that there may be no scientific explanation for this.
(c)Mr Shanahan’s evidence was that the difference in the tests might be explained by microbiological content which can raise or lower the alcohol content in the blood. He said that he checked for smell, which can indicate a deterioration of the sample, but accepted that smell alone would not detect a minor change.
(d)Mr Shanahan accepted that the result of his test did not mean that ESR had conducted an improper test. No evidence was adduced to indicate the analysis undertaken by ESR was incorrect.
In the High Court
Mr Tebbs appealed Judge Dawson’s decision to the High Court. With the encouragement of the High Court Judge, the question was reframed at this stage to focus on the effect of the presumption in s 77(2).
Section 77(2) provides:
(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.
(Emphasis added.)
Counsel for the appellant then argued that the effect of the presumption is that the proportion of alcohol in the blood found in both parts of the blood specimen is conclusively presumed to be the same as the proportion of alcohol in Mr Tebbs’ blood at the time of the alleged offence. This conclusive presumption operates as a bar to consideration of any factors that might explain a difference between the results of the two analyses and, because both portions of the specimen are caught by the same presumption, there is no basis for preferring one result over the other. As such, the result reported by Mr Shanahan meant that no offence had been committed, or at least raised a reasonable doubt on that issue.
Wylie J rejected this argument. He interpreted the statute as being: [3]
… concerned with timing. It deems the blood/alcohol results obtained from testing sometime later to be the same as the blood/alcohol at the time of the offence. The subsection does not go as 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.[4]
[3]Tebbs v New Zealand Police [2012] NZHC 3468 at [31].
[4]Livingstone v Institute of Environmental Science and Research Ltd (2003) 20 CRNZ 253 (CA) at [38].
His Honour went on to say that the appellant's interpretation of the subsection would “render otiose the various provisions in the Act that allow a defendant to obtain part of a blood specimen and have it privately analysed”.[5]
[5]At [31] (footnotes omitted).
Wylie J further noted that all of the actual tests revealed levels higher than the permitted maximum of 80 mg of alcohol per 100 mL of blood. He noted that there was no statutory basis for the deductions made by ESR and Mr Shanahan, and that “s 56(2) does not require proof that the proportion of alcohol in a person’s blood is in any specific proportion [but that] [a]ll that needed to be proved is that the proportion of alcohol in the defendant’s blood exceeded the proscribed level”.[6] All testing of Mr Tebbs’ blood specimen exceeded that level. Consequently, Wylie J held there was no reasonable doubt, and that the appeal on this point failed.[7]
Submissions of the appellant in this Court
[6]At [32].
[7]At [33].
The appellant submits that a reference to timing is not the only effect of s 77(2), but that other consequences flow from it. One of these consequences is that the result of testing is conclusively indicative of the level of alcohol in a defendant’s blood at the time of driving. Where a test is conclusively presumed to be correct, the Court may not enquire into its reliability.
The appellant submits that this interpretation would not render otiose the provisions in the Act that provide for private analysis. Rather, it means that the court will not receive evidence as to how results were arrived at, and the necessary corollary of this is that similar deference must be given to the privately analysed results. Where the two results vary, and one discloses a legal level, the difference is to be resolved by recognising that a reasonable doubt has been created.
The appellant also submits Wylie J misdirected himself in respect of his findings that both blood tests were above the legal level by rejecting customary and uniform scientific practice followed by both analysts in making the 6 mg/100 mL deduction and in holding that there was no statutory basis for such a deduction. Both analysts described it as a standard procedure and counsel submits that it is within the preserve of the scientific community to determine how raw data is turned into formal results. The appellant submitted that his Honour’s finding was effectively a judicial review of the procedure that the blood analysts followed, and that this was not an option available to him.
Finally, the appellant submits that the police took nearly a month to charge Mr Tebbs, which contributed substantially to the delay involved in having independent analysis undertaken. It would be inconsistent with natural justice to prefer the sample that aids the police because the other sample was analysed after deterioration may have occurred, if the opportunity for deterioration was caused or contributed to by police inaction. Further, to uphold the District and High Court decisions would incentivise the police in continuing with this practice of delaying the bringing of charges until well into the limitation period to the obvious disadvantage of defendants.
Submissions of the respondent
The respondent submits that the scheme of the Act supports the conclusion of Wylie J in the High Court: that s 77(2) is concerned with timing and does not go as far as to suggest that either or both tests are presumed to be correct. The respondent submits that the ESR analysis is contestable on the basis of the private result, but it may not be argued that the level of alcohol in the sample was different from the level at the time of driving. If the two analyses conflict, the presumption as to the level at the time of driving will apply to the level determined by the Court. Neither of the analysed samples will be definitive.
The respondent further submits that the origin of the conclusive presumption in s 77(2) provides further support for Wylie J’s interpretation, itself based on Livingstone v Institute of Environmental Science and Research.[8] The presumption in s 59C(8) of the Transport Act 1962 was not expressed to be conclusive. In Stewart v Police, the Full Court considered the meaning of the provision.[9] The majority (Wild CJ and Turner J) held that the presumption was conclusive. North J concluded it was potentially rebuttable. The provision was amended by the Transport Amendment Act 1970 to clarify that it was a “conclusive presumption”. The respondent submits that speeches in the House make it clear that the conclusive presumption was intended to resolve the time lag between driving and sampling, and not the relationship between conflicting analytical results.
[8]Livingstone v Institute of Environmental Science and Research Ltd, above n 4.
[9]Stewart v Police [1970] NZLR 560 (SC).
In terms of decreasing alcohol levels, the respondent notes that the courts have dealt with private analyses showing a reduced level of alcohol in Cocks v New Zealand Police[10] and in Brown v Police.[11] In the former, ESR reported 81 mg/100 mL and the private analysis conducted approximately two months later yielded a result of 75 mg/100 mL. In the latter case, ESR reported 81 mg/100 mL and private analysis conducted after three and a half months showed 77 mg/100 mL. In both cases Ms McGavin of ESR and Mr Shanahan were the analysts. Both appeals failed.
[10]Cocks v New Zealand Police HC Christchurch CRI-2010-409-246, 20 May 2011.
[11]Brown v Police HC Auckland CRI-2006-404-124, 8 December 2006.
The respondent submits that there is little or no basis to suppose that the ESR result in this case was inaccurate because of contamination. The contamination theory would require a legal blood sample to increase to 92 mg (reported as 86 mg) within a few days and without observable signs of microbial activity, followed by a reduction to 86 mg (reported as 80 mg by Mr Shanahan). As in Cocks and Brown, the reduction observed in this case is reasonably explained by the tendency for alcohol concentrations to diminish over time, as indicated by Ms McGavin in her evidence.
Issue
The critical issue is whether the conclusive presumption in s 77(2) operates to preclude a court from considering any factors that might explain the discrepancy between the two samples; or alternatively, that the conclusive presumption merely prevents any argument as to whether the alcohol in the samples was different from the level at the time of driving, but does not preclude consideration of factors explaining discrepancies as between samples.
Conclusion: Question One
We consider first the text of the legislation. The language of s 77(2) is explicit in providing that the proportion of alcohol in the blood specimen taken is conclusively presumed to be the same as the proportion of alcohol in the blood at the time of driving. It says nothing about the accuracy or reliability of the analysis of the sample.
In our view, existing authority affords strong support to the textual interpretation favoured by the respondent. In Livingstone v Institute of Environmental Science and Research Ltd, this Court noted:[12]
Section 77(1) provides that there is a conclusive presumption that the proportion of alcohol in a defendant’s breath at the time of the alleged offence (ie the driving or attempted driving) was the same as the proportion of alcohol in the person’s breath as indicated by the evidential breath test. Section 77(2) deals with blood tests in similar terms. These subsections thus deem the blood/breath, or blood/alcohol results achieved through subsequent testing, to be the same as at the time of the offence. They do not explicitly provide that the breath test or the blood test is conclusive per se. Indeed a blood test is clearly not conclusive. The defendant must be provided with a sample of the blood taken in the test and it is open to the defendant to have that blood analysed privately. … [I]n a case where the results obtained differed from those obtained by the Crown testing, there would be a defence available that the defendant’s analysis is correct.
[12]Livingstone v Institute of Environmental Science and Research Ltd, above n 4, at [38] (emphasis added).
The appellant has not been able to point to any authority supporting its broader interpretation of the presumption.
Second, during the second reading of the Land Transport Bill in 1997, the Hon Maurice Williamson addressed the object of the presumption in s 77(2) in these terms: [13]
The second item relates to an evidential requirement that a court can conclusively presume that the proportion of alcohol in a person’s breath or blood is the same at the time of the test as at the time of the alleged offence. This is a current law that was introduced in 1970 to counter the hip-flask defence whereby people claim that they had a drink to steady their nerves after a crash or other incident but they were not intoxicated at the time of the incident.
[13](27 November 1997) 565 NZPD 5746.
This makes it clear that the purpose of the conclusive presumption in s 77(2) is to acknowledge that there is a necessary time-lag between the committing of the offence of driving with a blood/alcohol level of more than 80 milligrams of alcohol per 100 millilitres of blood, and a blood sample being taken. The presumption operates so as to prevent any argument as to whether the level of alcohol in the samples when taken was different from the level at the time of driving.
In our view, the purposive argument we have set out supports the textual analysis we have adopted.
This appeal point is dismissed.
Question Two: Does 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?
In the District Court
The defendant submitted to the Court that police can only prosecute under s 56(2) of the Act if the defendant’s blood was taken in accordance with normal medical procedures. That section provides:
(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.
“Blood specimen” is defined in s 2 as:
… a specimen of venous blood taken in accordance with normal medical procedures
Two medical practitioners gave evidence that use of the screw top bottles included in the standard police issue blood taker’s kit has not been part of normal medical practice for 30–40 years. Judge Dawson noted that both witnesses were well qualified in this area and no issue was taken with their evidence.
The issue therefore turned upon the meaning of “blood specimen”. Judge Dawson held that a strict reading of the definition indicated that the process of “taking the blood” involved 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, and that it was this process that needed to be done in accordance with normal medical procedures. No evidence or submissions had been received to indicate that this process was not done using normal medical procedures.
The Judge held that the storage of the blood is a distinct process governed by s 75(2)(c), which requires that blood must 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 were received that indicated that the container used had not come from such a kit, and therefore the certificate supplied pursuant to s 75 applied.
Judge Dawson held that this was not too narrow an interpretation of “taken” in respect of “blood specimen” on the basis that the Act and its definitions of each and every part of the blood taking, blood storage and blood testing procedures are then set out in great detail.
Finally, Judge Dawson indicated that he had been further persuaded by a passage in R v Livingston: [14]
When 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, or the general reliability of approved methods of operating them.
[14]R v Livingston [2001] 1 NZLR 167 (CA) at [9] per Tipping J.
Judge Dawson accordingly held that the police did not fail to comply with the Act in the taking of blood from the defendant, and found against the defendant.
In the High Court
The appellant suggested the use of glass bottles with screw tops for holding blood samples falls outside “normal medical procedures”. It was submitted that the word “taken” used in the definition of the words “blood specimen” in the Act was not confined to the actual physical taking of blood, and that the requirement to adopt normal medical procedures extends to the use of appropriate containers for storing any blood that is taken. As such, the appellant argued that the blood specimen taken was not in accordance with normal medical procedures and fell outside the definition “blood specimen” contained in the Act. The appellant submitted that the blood specimen was therefore inadmissible.
The respondent submitted that it is only the taking of venous blood that must be carried out in accordance with normal medical procedures.
In the alternative, the respondent argued that there had been reasonable compliance with the Act pursuant to the provisions of s 64(2).
Wylie J agreed with Judge Dawson that the issue turns on the meaning of the word “taken”. His Honour noted that in ordinary usage, the word in this context means “extracted, withdrawn, or removed, normally by syringe or needle”.[15] He said that a purposive approach to the interpretation of the word was consistent with its ordinary usage. His Honour noted:[16]
… 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 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 blood in glass bottles with screw [tops]. 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.
[15]At [38].
[16]At [39].
His Honour also pointed to various provisions within the Act that indicated a distinction between a blood specimen being taken, and a blood specimen being placed in a glass bottle. These included s 74(1), s 74(2) and s 75(2):[17]
(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 a 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).
[17]At [40].
Finally, Wylie J also referred to the Court of Appeal decision in R v Livingston, that 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.[18]
[18]His Honour cites Livingstone v Institute of Environmental Science and Research Ltd, above n 4, but is clearly referring to R v Livingston, above n 14.
Wylie J therefore dismissed the appeal.
Submissions of the appellant
The appellant once again refers to the expert witness evidence that establishes, in the appellant’s submission, that: (1) open topped blood bottles were phased out by the medical community around 40 years ago; (2) open topped bottles may be contaminated with micro-organisms, with implications for the reliability of the blood sample; and (3) open topped bottles may create an infection risk for people in the working area.
In respect of the statutory interpretation approach taken in the District and High Courts, the appellant submits that the construction accepted does not arise naturally from the ordinary meaning of the words and fails to apply the purposive requirements of the Interpretation Act 1999.
The appellant submits that the phrase “a specimen of venous blood taken in accordance with normal medical procedures” is composed of words with ordinary meanings and would be understood by the lay person as referring to a discrete procedure, carried out by a person brought in for that purpose, and easily distinguishable within the period of detention. It is one continuous act that commences when the blood taker is introduced to the detained motorist, and ends when the blood taker hands the responsible officer the sealed bottles within their polystyrene and cardboard cases. It is submitted that on its ordinary meaning the phrase applies to the whole sequence of steps that occurs within that continuous act. The appellant referred to [39] of the High Court judgment to support its submissions. His Honour there lists the procedures that fall under the concept of “taken”. These include the act of applying a swab or plaster to the subject person’s wound, which can only happen after the blood has been drawn into the syringe and the needle removed.
In terms of a purposive approach, having been unable to find any references to “normal medical procedures” in Hansard, the appellant submits that Parliament’s purpose can be easily determined from the context of the provision. In providing for an invasive procedure that is the preserve of the medical profession, Parliament has directed that the medical profession’s requirements in terms of safety, reliability and professional ethics, be followed. It anticipates that a person will have their blood taken with the same safety, reliability and ethical treatment in a police station as they would expect in their doctor’s surgery. Consequently, drawing a distinction between the moment of extraction and the rest of the procedure is artificial and contrary to the provision’s purpose. The expert witnesses identified issues of safety and reliability inherent in using the outmoded containers.
The appellant submits that the power delegated to an approved laboratory to create a blood taker’s kit is subject to the statutory directive to follow normal medical procedures. The appellant points to a later passage in R v Livingston, which suggests that a test must fulfil its statutory definition. If it does not “the case collapses”. The statutory definition of an admissible blood test result requires blood taken according to normal medical procedures. If it is not taken that way, it falls outside the statutory definition, and R v Livingston is authority for the proposition that such tests cannot be admitted.
The appellant further submits that subsequent amendments to the Land Transport Act 1998 shed light on what was intended by the legislature by the word “taken”. The Act was amended to remove the prescribed steps of the blood taking procedure, empowering the Minister of Police to prescribe the steps in a Gazette notice under s 2(1). The definition of blood specimen was not amended. The Minister of Police subsequently issued the Land Transport (Blood Specimen Collecting Procedure) Notice 2011, which describes not only the extraction of blood, but also the requirement that it be divided, placed into separate containers, and handed to the police officer.
The appellant submits that if the word “taken” in s 2(1) only refers to the act of extraction, these subsequent parts of the Gazette notice would be ultra vires. However, these subsequent parts are the very ones that used to be in the main Act, which the Gazette notice was intended to cover. The appellant submits therefore, not only that this shows what the legislature considers the word to mean, but also that if the Courts adopt the narrow meaning accepted in the District and High Courts, that this will create a lacuna in the law regarding the legal foundation for the current blood taking process, which would create considerable practical difficulties for the prosecution of all blood based drink drive offences that have been brought, and continue to be brought, since the law change.
The appellant submits that s 64(2) does not apply. Section 64(2) provides that there is no defence if any procedure is not strictly complied with, provided that there is reasonable compliance. The appellant submits that the failure to stay abreast of normal medical procedures for four decades is outside anything that could be considered reasonable. Further, the appellant submits that the provision is intended to cover procedural lapses by individuals, not systemic failures at an organisational level. As held in Birchler v New Zealand Police,[19] s 30 of the Evidence Act 2006 concerning the admission of unlawfully obtained evidence does not apply to any sections of the Act governed by s 64(2).
[19]Birchler v New Zealand Police [2010] NZSC 109.
In summary, the appellant submits that the choice before the Court boils down to one between certain technical arguments on the one hand, and on the other the policy implications and the intention of Parliament that police blood taking be safe and reliable, as defined by the standards of the medical profession. The uncontested evidence of the expert witnesses is that current police practices are unsafe and unreliable. It was never Parliament’s intention that such practices be followed, particularly not four decades after the medical profession abandoned them.
Submissions of the respondent
The respondent supported Wylie J’s interpretation of the statute. Sections 74 and 75 of the Act define a series of steps. The first involves the taking of a blood specimen “in accordance with normal medical procedures”, and the provisions contemplate that a specimen exists at that point. The specimen is then divided by placement in separate bottles. In short, there is a distinction between taking the blood, and then dealing with it.
The respondent submits that this distinction is also reinforced by the s 2 definitions. The equipment to be used — the “blood specimen collecting kit” — is defined without reference to any notion of current medical practice. The appropriate equipment is that supplied by or on behalf of a laboratory approved by the Science Minister. That kit, which must involve bottles that can be sealed after placing the blood into them, is to be used “in accordance with normal medical procedures”. In this way, the taking of the sample will be influenced by the nature of the kit provided.
The respondent submits that the legislative changes introduced in 2011, provide further confirmation that the bottle and syringe method is to be used. These changes would enable future deployment of vacutainers by Gazette notice, but the status quo is that blood may only be taken by syringe and needle.
Of most relevance is a new definition inserted into the statute of the term “blood specimen collecting instrument”, which means: “a needle and syringe” or “an instrument of a kind designed for the taking of blood specimens approved by the Minister of Police … by notice in the Gazette”. The Land Transport (Blood Specimen Collecting Procedure) Notice provides that “[a] blood specimen must be collected using a needle and syringe”. Subsequent clauses require the specimen to be placed in “separate blood specimen containers”, which are then to be sealed.
The respondent submits that the 2011 amendments shed considerable light on the issues in this appeal. The syringe method was retained after careful examination of the existing law and alternative procedures. The respondent argues that the appellant would have the Court interpret the 2010 legislation to conflict with the 2011 affirmation that the syringe method is to remain the prescribed blood taking method for blood alcohol testing. In effect, Mr Sinclair said, the appellant is asking the Court to make a policy choice — discarding the syringe in favour of the vacutainer — which Parliament has plainly rejected.
Issue
The issue is whether the interpretation accorded to the definition of s 2 in the District and High Courts is correct; or alternatively, that “normal medical procedures” refers to the entire process of obtaining a blood sample from the subject person.
Conclusion on Question 2
We agree with the view of the High Court Judge that the text and purpose of the Act indicate 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”.[20] Sections 72, 74 and 75 of the Act clearly differentiate between the taking of the blood sample and what is to be done with it thereafter. This includes the process of dividing the sample, placing it into bottles, storage and analysis. The definition of “blood specimen” clearly applies the requirement for “normal medical procedures” to the taking of the sample rather than the subsequent steps required by the legislation.
[20]At [41].
Furthermore, we do not think that the argument in the appellant’s further submissions regarding the use of the phrase “blood specimen” in the Act is tenable. The definition of blood specimen requires that it be taken in accordance with normal medical procedures to qualify as a “blood specimen”. The appellant submits that the use of “blood specimen” in these provisions could be read to mean that the sample is a blood specimen within the meaning of the Act for as long as a sequence of related steps is being complied with, but would not continue to be a blood specimen if there was then a departure from the required process. Counsel does not assert this, but the necessary inference of the argument is that for a “blood specimen” to count as a “blood specimen”, then the definition – “taken in accordance with normal medical procedures” – must logically apply until the stage at which the specimen is legitimately destroyed under s 74(8) of the Act. This would require that “taken in accordance with medical procedures” includes storage of the blood for one year or longer.
Not only do we think the argument is untenable, but we also think it undermines the appellant’s earlier submission on this point that “the phrase refers to a discrete procedure … [which] ends when the blood taker hands the responsible officer the sealed bottles within their polystyrene and cardboard cases” (emphasis added).
As we have noted, the appellant sought to draw support from subsequent amendments to the Act but we are not persuaded that we should take these into account. There have been substantial changes to the legislation, the relevant definitions and Gazette Notice procedures. We do not consider they are of material assistance in interpreting the legislation in force at the time with which we are concerned in this appeal.
In reaching our conclusions, we have not taken into account the consequences were the appellant’s contentions to be accepted. We simply record that it would mean that every blood specimen taken with the use of a police issue blood taking kit (at least prior to the 2011 amendment) would be outside “normal medical procedures” and would therefore not have been in compliance with the Act. We were told from the bar, there were around 30,000 prosecutions.
Finally, there is continuing force in the following passage of this Court’s judgment in R v Livingston:
[9] When 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, or the general reliability of approved methods of operating them. In saying this we have not overlooked Police v McKay [1995] 1 NZLR 303 (CA) at p 305. There Cooke P in an oral judgment appeared to accept a concession of counsel in these terms:
“There are two safeguards. First, the Minister may always revoke an approval if satisfied that a particular model of a device is defective or unreliable. Secondly, if there is in any case evidence raising a reasonable doubt as to the accuracy of the results produced by the model, when properly used as prescribed by the Breath Tests Notice or the instructions on or with the machine, then that device cannot be treated as within the ministerial approval. Mr Pike unhesitatingly accepted the existence of both safeguards.”
That statement should not be read as permitting a general attack on the reliability of tests when an approved device has been operated in an approved manner. That would undermine the whole purpose of the statutory approval regime.
This appeal point too is dismissed.
Conclusion
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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