W v Police HC Wellington CRI-2008-485-48

[2008] NZHC 1421

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-48

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 September 2008

Appearances: W M Johnson for Appellant

M W Snape for Police

Judgment:      9 September 2008

ORAL JUDGMENT OF WILD J

Introduction

[1]      The  appellant  was  convicted  on  one  count  of  driving with  excess  blood alcohol  contrary to  s  56(2)  of  the  Land  Transport  Act  1998  (“the  Act”).    The conviction was entered by Judge Davidson following a defended hearing in the District Court at Lower Hutt on 1 May.

[2]      Ms W   appeals against her conviction on the basis that the District Court

Judge erred in holding:

W V NEW ZEALAND POLICE HC WN CRI-2008-485-48  9 September 2008

a)        Her blood specimen was dispatched for analysis within the statutory time frame;

b)An appropriate enforcement officer caused the delivery of that blood specimen; and

c)        That  it  could  be  appropriately  inferred  that  the  blood  specimen received by the ESR analyst was the appellant’s.

Factual background

[3]      At approximately 11.00 pm on 23 December 2006 the appellant was stopped by the police at a checkpoint.  Constable Ringer approached her car and administered a passive breath test.  Ms W   failed that and was therefore required to take an evidential breath test which she also failed.

[4]      The appellant, Ms W  , then accompanied Constable Ringer to a mobile testing station.  She was informed of her rights under the Bill of Rights Act 1990 but declined the opportunity to speak to a lawyer.  She asked that a blood specimen be taken and a nurse arrived to take the specimen at 11.32 pm.

[5]      Constable Ringer’s evidence was that the nurse then placed two bottled specimens into a test kit box.  The Constable secured the box.  Mr Wayne Poole, a non-sworn operational support officer in the traffic alcohol group of the Police, handled delivery of the samples.   Constable Ringer did not give Mr Poole any instructions, instead relying upon “operational protocol”.

[6]      On 28 December Mr Poole travelled to the ESR laboratory in Porirua to deliver the samples personally, as was his practice.   Upon ascertaining that the laboratory was closed Mr Poole went to the Porirua Police Station and arranged for the specimens to be sent by courier.  The ESR analyst’s certificate recorded receipt of the specimens on 3 January 2007, 11 days after they were taken and six days after Mr Poole at the Porirua Police Station arranged for their delivery.

[7]      For  Ms  W  ,  Mr  Johnson  submitted  to  Judge  Davidson  that  this contravened the requirements of s 74 of the Act for dealing with blood specimens with the consequence that a critical element of the offence was not proved beyond reasonable  doubt.    His  submissions  made  to  the  District  Court  correlate  to  the grounds of appeal now put to this Court.

The District Court decision

[8]      Judge Davidson dismissed all Ms W  ’s points.   First, and dealing with the statutory time frame for delivery of the specimens, Judge Davidson looked to the plain meaning of s 74(3) of the Act which provides:

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.

[9]      The Judge interpreted that provision as requiring the dispatch of the specimen within seven days of its taking, rather than receipt by the analyst within seven days. Since the specimens were dispatched six days after they were taken, s 74(3) was complied with.  The Judge considered that this interpretation was reinforced by the fact that the specimens had neither congealed nor deteriorated as a result of the somewhat delayed delivery.  In other words, the interpretation the Judge adopted did not prejudice Ms W  .

[10]     The second point, that Mr Poole was not an enforcement officer for the purposes of s 74(3), was quickly dismissed by the Judge.   He held that it was Constable Ringer, who was an enforcement officer, who put the specimens in a secure box and thus set in motion a system that eventually caused their delivery to the ESR. This approach followed that in Aualiitia v Ministry of Transport [1983] NZLR 727 (CA) at 730.

[11]     The third point was that the evidence did not permit of an inference that the specimens received by the ESR were of Ms W  ’s blood.  The Judge dismissed

this point also, finding that there was an overwhelming inference on the evidence that it was specimens of Ms W  ’s blood that were received by the ESR.

[12]     As such, the Judge found the charge was proved beyond reasonable doubt and accordingly convicted Ms W 

Grounds of appeal

[13]     As I have intimated, this appeal really exactly reflects the points that Ms

W   raised at the District Court.  I deal with each in turn.

The statutory time frame for delivery of specimens

[14]     The salient issue for determination is whether s 74(3) refers to the specimens being dispatched  within  seven  days  of  their  taking,  or  whether  it  refers  to  the specimens being received within seven days. As Judge Davidson noted, there is a dearth of authority on this point.   The Judge, incidentally, regarded that dearth as endorsing the untenability of the interpretation contended for by Ms W  .  Some cases deal with the issue obliquely, for example Police v Smith [1999] DCR 1079 (DC) at 1084:

There is no evidence before me about delivery or posting of the specimen to the  analyst.  Although  there  might  seem  to  be  evidence  that  within  the required seven day period the specimen reached the analyst — by referring to the analyst's certificate…which refers to delivery to the analyst on 22

April 1998 — that is not a matter which can be proved by that certificate. …

[15]     This seems to interpret what was then s 58F(3) of the Transport Act 1962, the predecessor to s 74(3), as requiring receipt within seven days, not just dispatch. However, other cases seem to indicate that it is the dispatch that is the key measure. For example, in R v Flaws (HC CHCH T 77/97 24 October 2007, John Hansen J placed  emphasis  on  whether  the  specimens  were  posted  rather  than  actually delivered.

[16]     Like Judge Davidson, I consider the plain reading of s 74(3) provides the answer – ‘post’ and ‘posted’ can only refer to dispatch.  From a purposive approach

too,  the  section  appears  to  require  dispatch  within  seven  days  –  otherwise  the vagaries  of  courier  and/or  postal  systems  could  often  be  the  cause  of  non- compliance. The purpose of s 74 is to ensure a mandatory procedure so as to prevent contamination or interference with the specimens.  Slow delivery, since it does not correspond to interference, should not be a reason for non-compliance.  A delay in delivery that is not the fault of an enforcement officer – provided that it does not obviously prejudice a defendant – should not create a technical defence.

[17]     Accordingly, I agree with Judge Davidson and hold that s 74(3) refers to dispatch, not receipt.

[18]    Against the event that that view is incorrect, I hold that the reasonable compliance provision in 64(2) of the Act applies to this case. In Aualiitia v MOT at

729, the Court of Appeal held that it will be a question of “fact and degree” whether s 64(2) applies.  I hold, given Mr Poole at least dispatched the specimens within the statutory timeframe, that the specimens were delivered in good condition and that there is no suggestion that Ms W   was prejudiced in any way by the somewhat delayed delivery, that s 64(2) applies here. This first ground of appeal therefore fails.

Delivery by an enforcement officer

[19]     Ms W   argues that it is unclear whether Constable Ringer did in fact cause the samples to be delivered, because the Judge inferred an operational system existed when there was no evidence of such a system.   However, as the Court of Appeal held in Aualiitia at 730, it is legitimate to take a liberal approach to s 74(3) and the word ‘cause’: it includes making use of an office system designed to bring about the result required by s 74(3). Constable Ringer placed the specimens securely in the box, and his actions thereby set a chain of events leading to the receipt of the box containing the specimens by the ESR. There was evidence from Mr Poole and from Constable Ringer as to the process that was followed. I agree with Judge Davidson with this second point on appeal which accordingly also fails.

The identity of the specimens

[20]     Ms W   argues that there were discrepancies between the courier details recorded by Mr Poole on the blood specimen form (47985545) and those on the ESR certificate (E20.47985545), and that the name of the appellant is different on the medical certificate and ESR certificate.  The courier details – bar the prefix E20 – are the same.  In any case, s 75 of the Act states creates a presumption that if the name, address and occupation of the appellant on the ESR certificate are correct, then it is in fact her blood specimen.   On my interpretation of the name and address of Ms W   as it is written on the blood specimen medical certificate (exhibit 5) and the ESR analyst’s certificate (exhibit 6), they are the same.  There is nothing in this third point which also fails.

Result

[21]     Having failed on all three grounds, the appeal is dismissed.

[22]     I note that the respondent has very properly brought to my attention that the judgment of French J in Barr v Police HC CH CRI-2008-409-47 14 August 2008 holds that an order for a person in the appellant’s position to pay medical fees is beyond the Court’s jurisdiction.  Since such an order was made by Judge Davidson, I quash that order and replace it with an order that Ms W   is to pay the analysts fee ($93) only.

“J R Wild J”

Solicitors:         W M Johnson, P O Box 962, Wellington for Appellant

Crown Solicitor, Wellington for Respondent