The Queen v Wilson

[2006] NZCA 150

IN THE COURT OF APPEAL OF NEW ZEALAND

CA433/05

THE QUEEN

v

NIGEL NIA NIA WILSON

Hearing:17 May 2006

Court:O'Regan, Panckhurst and Potter JJ

Counsel:T M Petherick for Appellant

G J Burston for Crown

Judgment:3 July 2006 

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       On 8 September 2005 the appellant was convicted by a jury of driving with a proportion of alcohol in his blood exceeding 80 milligrams of alcohol per 100 millilitres of blood, pursuant to s 56(2) of the Land Transport Act 1998 (‘the Act’).  This was the appellant’s third such offence.  Accordingly the offence was deemed by the Act to be indictable: s 56(4).

[2]       On 2 November the appellant was sentenced by the trial judge, Judge Rea.  He was disqualified from holding or obtaining a driver licence for 15 months and sentenced to 150 hours’ community work.

[3]       The appellant appeals both his conviction and sentence to this Court.

Facts

[4]       The appellant was driving his motorcycle in Flaxmere, near Hastings. He fell off. Subsequent inquiries led to his being charged under the Act.  A sample of his blood was analysed on 17 August 2004 by Ms Noreen McGavin, a science technician at the Institute of Environmental Science and Research at Wellington (‘ESR’).  Ms McGavin is authorised as an analyst under the Act and ESR is an authorised laboratory under the Act.

[5]       At trial, Ms McGavin testified as to the procedure by which she undertook the analysis.  First, she checked that the bottle in which the blood sample was contained was sealed.  She noted the bottle had not been tampered with.  As per the standard procedure, she separated the sample into two duplicate portions.  The portions were tested separately.  The two tests yielded results of 133.71 and 134.23 milligrams per 100 millilitres of blood respectively.  The mean of these results was 133.97 milligrams.  It is standard ESR practice to round the number down to the nearest whole number.  This resulted in a figure of 133 milligrams.  Following this, a figure of six was deducted to allow for an analytical variation.  Ms McGavin drew an analogy between this analytical variation and the ‘margin of error’ figure that commonly features in opinion polls.  Hence the final figure entered on the ESR certificate of analysis was 127 milligrams of alcohol per 100 millilitres of blood. 

[6]       The defence arranged for a second specimen of the appellant’s blood to be sent to Dr Arthur Couch at the Auckland District Health Board for independent analysis.  Dr Couch performed his test on 5 October 2004.  The result was a figure of 149 milligrams.  Dr Couch was satisfied the sample he tested was tamper-proof.  He notified Ms McGavin of the difference in outcome between his test and hers.  On 25 November, Ms McGavin re-analysed her sample.  This produced a figure of 128 milligrams. 

[7]       Both Dr Couch and Ms McGavin were therefore satisfied that their respective tests were accurate and had produced results well above 80 milligrams.  Mr Petherick, counsel for the appellant, did not dispute the fact the results were above 80 milligrams.  However he submitted to Judge Rea that since there was a significant discrepancy between the two tests, there was a real possibility of the testing being unreliable.  Mr Petherick did not venture to say which test, that of Dr Couch or that of Ms McGavin, was unreliable.  However Mr Petherick contended that the discrepancy gave rise to a prima facie unreliability.  In Mr Petherick’s submission, the possibility of unreliability should have gone to the jury.

The Judge’s ruling

[8]       On the penultimate day of the trial, Judge Rea delivered an oral ruling as to whether the issue of the possibility of the tests being unreliable should go to the jury.  The Judge referred to this Court’s decision in R v Livingston [2001] 1 NZLR 167. He determined that the reliability issue should go to the jury only if there was an evidential foundation for it. He was satisfied there was not an evidential foundation, and ruled that the jury should be directed that, as a matter of law, it had been proved that Mr Wilson had a blood alcohol level over 80 milligrams and that that level had been ascertained in the manner required by the Act. He directed the jury accordingly.

Role of the Judge and jury

[9]       In Livingston, this Court discussed which aspects of the blood and breath-alcohol regime are to be dealt with by the jury, and which by the Judge, in instances where charges are laid indictably under the Act (Livingston was decided before the 2004 amendments to the Act). On behalf of the Full Court, Tipping J said the following, referring to excess breath alcohol cases (at [13]):

There remains what can be called the reliability issue, by which we mean the issue whether the machine produced a reliable result on the particular occasion when it is claimed there was some particular malfunction. If a reliability issue in this sense is raised by the accused person, the point is for the jury. But in order to have the point left to the jury the accused must satisfy an evidentiary threshold. The Judge should not leave the point to the jury, unless by reason of something in the Crown’s evidence or something in the evidence called by the accused, the Judge is of the view that the jury could be left with a reasonable doubt about the reliability of the device on the particular occasion. Mere assertion, or inconsequential questions in cross-examination of Crown witnesses, will not be enough. The accused must be able to point to a sufficient evidential foundation for the suggestion that the device was unreliable in the relevant sense, before being entitled to have the point considered by the jury. If there is such a foundation, the Crown must establish reliability beyond a reasonable doubt. Without such foundation the presumptive reliability of a test which has been properly conducted with an approved device will prevail, as must have been the legislative intention: compare the analogous certificate provisions in blood-alcohol cases as per s 75 of the Land Transport Act 1998.

[10]     He summarised his conclusion at [32] as follows:

(3)       All reliability issues, as so described in para [13], in relation to the particular evidential breath test result are for the jury to decide; but only if the accused has laid a sufficient evidential foundation for the assertion of unreliability.

[11]     Judge Rea considered this aspect of Livingston, which related only to breath tests, could be applied by analogy to the present situation resulting from a challenge to a blood test.  He drew an analogy between the ‘device’ in breath cases and the testing procedure undertaken in blood cases, such as the present case.

[12]     Tipping J also drew an analogy between a breath testing device and the blood testing procedure at the end of [13] of his judgment, when he referred to s 75 of the Act.  This indicates that Livingston is the applicable law in relation to blood-alcohol cases where s 75 of the Act applies.  Section 75(5) says that a certificate of the result of a blood-alcohol analysis purporting to be signed by an approved analyst is sufficient evidence, in the absence of proof to the contrary, of such matters stated in the certificate.  That is similar to the regime applying to breath tests at the time of the decision in Livingston which was described as follows in Livingston at [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.

[13]     However, s 75(5) did not apply in the present case.  That was so because the scheme of the Act is such that no certificate of the result of blood-alcohol analysis referred to in s 75(5) is admissible in evidence if the Court has ordered that the analyst who gave the certificate ought to appear as a witness at the hearing: s 79(3)(a).  Such an order can be made if the criteria in s 79(4) are met.  Because the test result reported by Dr Couch was over 20 milligrams more than that reported by Ms Gavin, the criteria in s 79(4) were met in this case, and an order under s 79(3)(a) was made.  That meant that, in the present case, a certificate of the result of the analysis was not admissible evidence, and the evidence of the analysis of the blood sample was given viva voce.  No presumption arises in such cases: the jury is simply required to evaluate the evidence of the Crown’s witness (the ESR analyst) and that of the defence analyst and determine as a matter of fact whether on the evidence before it, the Crown has proved beyond reasonable doubt that the proportion of alcohol in the specimen of blood taken from the accused exceeded the lawful limit.  If there is any issue raised about the reliability of the result of the analysis, that issue will need to be determined by the jury.

[14]     We are satisfied therefore that the defence contention, that the Crown had not proved beyond reasonable doubt that the proportion of alcohol in Mr Wilson’s blood sample exceeded the legal limit, ought to have been left to the jury.  In the circumstances of this case, it was not necessary for there to be an evidentiary foundation for the contention.  It was a jury issue and the Judge was, with respect, incorrect to treat it as a question for decision by him.  We do, however, agree with the Judge that Livingston can be applied by analogy to blood-alcohol cases where s 75 applies.

Proviso

[15]     That leaves the question of what the result of this appeal ought to be.  It seems to us that the circumstances are such that it is necessary for us to determine whether the proviso to s 385(1) of the Crimes Act 1961 should apply.

[16]     In a minute dated 1 June 2006, we sought submissions from counsel as to the application of the proviso in the light of the facts of this particular case.  Those submissions have now been received and considered by the members of the Court.

[17]     The proviso provides:

[T]he Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

[18]     In R v Sungsuwan [2006] 1 NZLR 730, two of the Judges of the Supreme Court, Elias CJ and Tipping J, commented on the proviso (at [6] and [113] respectively). It is notable that both considered the proviso could properly be applied in situations where the appeal ground under s 385(1)(b) (wrong decision on a question of law) had been made out. That is the case here.

[19]     In R v McI [1998] 1 NZLR 696 the members of this Court discussed the test to be adopted in applying the proviso. Thomas J (not dissenting in relation to the proviso’s application), said at 701-2:

In my view, it is clear Parliament did not want convicted persons to go free or obtain the benefit of a new trial on the basis of an error of law or irregularity unless the error or irregularity would have made a difference to the outcome…The question therefore becomes; on the whole of the admissible evidence, could a reasonable jury have failed to convict?… The necessary consequence of the proviso is that it is not every error of law or breach of the rules of evidence or procedure which have evolved to ensure a fair trial for an accused which is necessarily fatal.  Any such error or irregularity needs to be material to the outcome of the trial.  Unless it is, no injustice has been done.  The impact of the fact the proviso has been enacted cannot be ignored.  In enacting it, Parliament clearly indicated that it is not every lapse or breach of the rules of procedure or evidence, even though the lapse or breach may amount to a miscarriage of justice, which need result in a successful appeal.  (Emphasis added.)

[20]     And Tipping J said on behalf of himself and Keith J (at 711-2):

[I]t is important to recognise that the Court is not thereby invited to come to its own view about whether the appellant was in fact guilty of the crime or crimes alleged.  Rather, the Court is required to assess whether, without the error or deficiencies of process, the jury would still have convicted.  It is what the jury would have done without the errors or deficiencies which is the issue, not what the Court thinks of the ultimate merits of the conviction.  If, in spite of the errors or deficiencies, the jury would have convicted anyway, there can be no prejudice to the appellant from those errors or deficiencies… [T]he test for application of the proviso should be framed as follows.  Before the proviso may be applied, this Court must be sure that the jury would without doubt have convicted had the matter or matters giving rise to the initial miscarriage of justice not been present.  (Emphasis added.)

[21]     These views were affirmed by this Court in R v Howse [2003] 3 NZLR 767 at [45]. On appeal, the Privy Council affirmed statements of the law in Australia to a similar effect and said the proviso applied only in cases where the dismissal of the appeal would not countenance a radical error in the trial process: R v Howse [2006] 1 NZLR 433 at [34]-[35].

[22]     The High Court of Australia has, very recently, taken a different view.  In Weiss v R (2005) 223 ALR 662, the Court considered the proviso to s 568(1) of the Crimes Act 1958 (Vic), which is in identical terms to the proviso to s 385(1) of the New Zealand Crimes Act. The Court said at [41]:

The task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.  The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.

[23]     In a recent decision, R v Haddon CA311/05 9 May 2006, this Court considered Weiss.  The Court expressed the view that, in the context of an allegation of a miscarriage of justice arising from trial counsel error, the approach outlined by Tipping J in Sungsuwan at [115]-[116] to the application of the proviso should be followed. In this case, we are satisfied that, whichever test is applied, the requirements of the proviso are met.

[24]     Judge Rea determined there was not even an evidential basis for the contention that the test result was unreliable.  He said:

In the circumstances of this case I consider the issue is whether the reliability of a device, namely the testing procedure undertaken, that led to the reported result of 127 milligrams can come under attack based on the evidence that has been given, and whether there is an evidentiary threshold for the matter to go to the jury.

What has been overlooked in this case, in my view, is that the requirement upon the Crown is not to prove a level to any particular degree, but only to prove that at the time he was driving, the accused had in his blood more than 80 milligrams of alcohol per 100 millilitres of blood.

Both of the witnesses in this case are categorical that that was the case.  There is nothing in the evidence before me to suggest that the method by which the first of the tests was undertaken by Ms McGavin is in any way unreliable.  It was never challenged on the basis of its reliability in terms of the machinery used or the way that the test was conducted.

In the end, when boiled down to its basic elements, the defence attack in this case is solely in the range that is available on the evidence of each of the witnesses.  Mr Petherick submits that the range is such that that in itself makes the entire test unreliable.  It is only the range that he can point to to substantiate that particular argument.

There is evidence to indicate why the range may be as it is.  The tests were undertaken at different times under different conditions by different people, presumably in different ways in terms of the way they go about conducting the basic test.  But in the end it is merely an assertion, with no evidential basis at all to suggest that the first test taken by Ms McGavin was in any way deficient or that there was unreliability either in the device used or the methods used to undertake it.

I do not consider that the defence has anywhere near reached the threshold of throwing some doubt onto the procedure sufficient for it to go the jury on the basis that it may be unreliable as proof that the accused has a blood alcohol level of more than 80 milligrams.

[25]     Mr Petherick said the Judge had focussed only on the results of the analyses by ESR and Dr Couch, and the suggestion that the difference between them made the results unreliable.  Mr Petherick suggested the different results may be an indicator of microbial interference with the sample which could have led to the results being unreliable. 

[26]     Mr Petherick said there was other evidence that should have been considered, and which we should take into account.  We have considered that other evidence and our comments are:

(a)Mr Wilson gave evidence of the quantity he had drunk on the night in question.  He said he had consumed only three half pints of beer.  However, he could not explain how he remembered this detail when he could not remember speaking to Constable Horrocks at the hospital where he was taken after the accident.  Constable Horrocks said Mr Wilson told him at the hospital after the accident that he had drunk four pints that night.  Mr Petherick submitted that anything said by Mr Wilson to Constable Horrocks at the hospital was necessarily unreliable, given that Mr Wilson was disoriented and under the influence of medication at that time;

(b)Mr Gazzard, a friend of Mr Wilson who was with Mr Wilson both before and at the time of the accident was asked whether he and Mr Wilson had had “two handles” each.  He replied “I can’t honestly say for Nigel [Mr Wilson], but I myself had a couple of handles because there was a few other people around and we were mingling, talking.”  He confirmed a “handle” was a half pint (300 ml) glass of beer;

(c)Mr Wilson himself gave evidence that while he normally drinks pints of beer, on the night in question he was drinking half-pints.  This was because he knew he would be driving.  Mr Wilson’s evidence is consistent with Mr Gazzard’s evidence;

(d)Constable Horrocks was asked in cross-examination about the Alcohol Advisory Council of New Zealand Guidelines.  He confirmed that these said that in the first hour a person should drink no more than four standard drinks, and no more than one standard drink per hour thereafter.  A half pint of 4% alcohol is a standard drink.

[27]     Mr Petherick said this evidence, when combined with the differences in results by the two analysts, called into question the correctness of the ESR result of 127mg.  He said this added support to the defence suggestion that there may have been microbial interference with the blood specimens.  Mr Petherick submitted it was “axiomatic” that the onus is on the Crown to disprove any suggestion of microbial interference.  He said the differences between the samples could only demonstrate either faulty analysis or microbial interference.

[28]     Mr Petherick pointed out at that the expertise of Ms McGavin, the ESR scientist, was not in assessing such contamination, but in analysing blood samples.  Mr Petherick submitted that if there was microbial interference with the sample, it would have caused only a gradual increase in the alcohol level.  Given the delays in testing, it was therefore possible that the alcohol level at the time the sample was first taken may have been under the prohibited limit.  Mr Petherick sought to explain the discrepancy between Dr Couch’s analysis and Ms McGavin’s second analysis by saying that the microbial interference in Ms McGavin’s sample had “stabilised” earlier than Dr Couch’s.

[29]     The ESR scientist was questioned about this and, although she could not rule it out, she expressed the view that if there had been microbial interference the reading at the second ESR analysis three months after the first would have reflected a greater change in the alcohol level.  The defence analyst did not contest this.

[30]     We think Mr Petherick’s argument concerning possible contamination is speculative.  It has no evidential foundation.  We do not accept that it is “axiomatic” for the Crown to disprove a suggestion of interference, when there is no evidential basis for such a suggestion.

[31]     Having considered the other evidence and the Judge’s assessment of it, we are sure that the jury would without doubt have convicted if the issue had been left to them to decide.  So the McI test is met.  We are also satisfied that the decision of Judge Rea not to leave the issue to the jury has not deprived Mr Wilson of the reasonable possibility of a not guilty verdict.  So the test postulated by Tipping J in Sungsuwan at [115] would also be satisfied if it applies in cases other than those involving trial counsel error. On our assessment of the record, we determine that the Crown proved beyond reasonable doubt that Mr Wilson was guilty of the offence with which he was charged. So the Weiss test is also met.

[32]     We therefore apply the proviso in this case and dismiss the appeal against conviction.

Sentence appeal

[33]     In sentencing, Judge Rea noted he did not consider the fact that the appellant had challenged the charges fully to be an aggravating feature.  The Judge said he could identify no aggravating or mitigating features.  He noted the appellant’s two previous convictions for drink driving.  He said he would not send the appellant to prison, but would give him a final warning; another conviction would certainly result in a custodial sentence.  The Judge sentenced the appellant to 150 hours’ community work and disqualified him from holding or obtaining a motor vehicle licence for 15 months.

[34]     Mr Petherick did not question the community work sentence, but argued that the period of 15 months’ disqualification was manifestly excessive in this case because:

(a)This was Mr Wilson’s first offence of an aggravated excess blood/breath alcohol offence;

(b)Mr Wilson is a professional driver so the loss of his licence has more impact on him than others;

(c)Mr Wilson holds a large number of types of licences, and if disqualified for more than 12 months will be required to re-sit those licences.  This will be hard for him because of his reading and writing difficulties;

(d)Mr Wilson’s first conviction was approximately 15 years before the present case, and his most recent conviction was almost four years before the present conviction;

(e)The blood alcohol reading was moderate.

[35]     Mr Burston said that the problem confronting Mr Wilson was that he did not have the benefit of a guilty plea as a mitigating factor.  This was a matter which was clearly of significance to the Judge, because the minimum period of disqualification for a third offence is 12 months, and the Judge was concerned that this had to be reserved for those who did, in fact, plead guilty.  Mr Burston also noted that Mr Wilson’s driving had resulted in an accident, and that he was significantly above the limit.

[36]     We are satisfied that there has been no error of approach on the Judge’s part, and that the sentence is well within the range available for the present offence.  In those circumstances we dismiss the appeal against sentence as well.

Solicitors:
Gresson Grayson, Hastings for Appellant
Crown Law Office, Wellington