Tebbs v R - [2013] NZCA 523

IN THE COURT OF APPEAL OF NEW ZEALAND

CA160/2013
[2013] NZCA 523

BETWEEN	STEPHEN ROSS TEBBS Appellant
AND	THE QUEEN Respondent

Hearing:	8 October 2013
Court:	Hammond, Randerson and French JJ
Counsel:	P Winkler, A Simpson and R Mulgan for Appellant F Sinclair for Respondent
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…

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 R

Details

AGLC: Tebbs v R [2013] NZCA 523
Case: [2013] NZCA 523
Decision Date: 30 October 2013 at 12 noon

CaseChat Overview and Summary

In Tebbs v R, the Court of Appeal of New Zealand dismissed an appeal against conviction for driving with a blood alcohol level above the legal limit. The appellant, Mr Tebbs, raised two questions of law on appeal. Firstly, he argued that the conclusive presumption in s 77(2) of the Land Transport Act 1998 precluded consideration of any factors that might explain the discrepancy between the two blood analyses. Secondly, he contended that the use of glass bottles with screw tops for holding blood samples fell outside "normal medical procedures" and therefore the blood specimen was inadmissible. The Court rejected both arguments. It held that s 77(2) was concerned with timing and did not go as far as to suggest that either or both tests are presumed to be correct. Regarding the second issue, the Court held that "normal medical procedures" referred to the taking of the blood sample rather than the subsequent steps required by the legislation. The appeal was dismissed.

Orders