Wichart v Police - [2019] NZSC 104

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 61/2019
[2019] NZSC 104

BETWEEN	MELANIE WICHART Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Winkelmann CJ and Ellen France J
Counsel:	A S P Tobeck for Applicant R K Thomson for Respondent
Judgment:	27 September 2019

JUDGMENT OF THE COURT

A The application for an extension of time is granted.

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Ms Wichart was convicted of driving with excess blood alcohol after a defended hearing before Judge David Saunders.[1] She appealed unsuccessfully against conviction to the High Court.[2] The Court of Appeal declined her application for leave to hear a second appeal.[3] She now seeks an extension of time for leave to appeal to this Court directly from the decision of the High Court.

Background

[1] New Zealand Police v Wichart [2018] NZDC 13325 [DC judgment].

[2]Wichart v New Zealand Police [2018] NZHC 3069 (Gendall J) [HC judgment].

[3]Wichart v New Zealand Police [2019] NZCA 212 (French, Miller and Lang JJ) [CA judgment].

Ms Wichart was stopped by police while driving on the West Coast on the morning of 1 January 2018. She failed a breath screening test. At the police station she elected to have a blood test. A nurse took the blood sample and signed the Blood Specimen Medical Certificate. Two samples were taken and stored securely at the police station until they were sent to the Institute of Environmental Science and Research (ESR) for analysis. On analysis, the sample was shown to contain 118 milligrams of alcohol per 100 millilitres of blood and Ms Wichart was accordingly charged.[4] Ms Wichart made an application under s 74 of the Land Transport Act 1998 to have the second blood specimen provided to a private analyst. Police asked the ESR to forward the sample to the private analyst.

The proposed appeal

[4]The legal limit is 80 milligrams of alcohol per 100 millilitres of blood.

The proposed appeal is brought on the basis that it raises matters of general or public importance. In particular, Ms Wichart wishes to argue on the appeal, first, that once the defence prove it made a request for a second blood specimen to be sent to a private analyst, the prosecution is required to prove a second blood specimen has been sent to a private analyst in order to rely on the analyst’s certificate. Second, she wishes to argue that when the expiry date of the blood specimen collecting kit is put in issue, the onus should be on the prosecution to prove on the balance of probabilities that the kit has not passed its expiry date.

Assessment

Because the appeal in this case is against a decision of the High Court, it is subject to s 75 of the Senior Courts Act 2016 and requires “exceptional circumstances” to be established for leave to be granted. We note, as well, that the application for leave to appeal was filed out…

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.

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Details

Case: [2019] NZSC 104
Decision Date: 27 September 2019

CaseChat Overview and Summary

Melanie Wichart was convicted of driving with excess blood alcohol and appealed to the High Court, which was unsuccessful. The Court of Appeal declined her application for leave to hear a second appeal, and she now seeks an extension of time for leave to appeal to the Supreme Court directly from the decision of the High Court. The Supreme Court was required to decide whether to grant an extension of time for leave to appeal to the Supreme Court directly from the decision of the High Court. The Court also had to decide if the proposed appeal raised matters of general or public importance and whether the "exceptional circumstances" test was met. The Supreme Court held that the application for an extension of time is granted, but the application for leave to appeal is dismissed. The Court noted that the District Court Judge recorded defence counsel did not ask the Sergeant who gave evidence for the prosecution any question suggesting non-compliance with the request, and there was no evidence to suggest the ESR failed to comply with the letter sent by the police requesting them to send the sample to the private analyst nominated by Ms Wichart. The Court also noted that the applicant did not raise anything that might suggest there is sufficient prospect of a successful challenge to the Court of Appeal's analysis that the current requirements for blood specimen collecting kits do not include a requirement the kits be used before a nominated expiry date. The Court held that the "exceptional circumstances" test was not met, and there was no appearance of a miscarriage of justice arising from the assessment of these issues in the Courts below. The Supreme Court dismissed the application for leave to appeal.

Orders