Wichart v Police
[2019] NZCA 212
•11 June 2019 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA789/2018 [2019] NZCA 212 |
| BETWEEN | MELANIE WICHART |
| AND | NEW ZEALAND POLICE |
| Hearing: | 29 May 2019 |
Court: | French, Miller and Lang JJ |
Counsel: | ASP Tobeck for Applicant |
Judgment: | 11 June 2019 at 3.00 pm |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal against conviction is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
Ms Wichart was charged with driving with excess blood alcohol.[1] She defended the charge on the basis that there were shortcomings in the procedure by which the police had obtained a sample of her blood. In a decision delivered on 6 July 2018 Judge Saunders rejected these arguments and found the charge proved.[2]
[1]Land Transport Act 1998, s 56(2).
[2]Police v Wichart [2018] NZDC 13325.
Ms Wichart appealed unsuccessfully against conviction[3] and now seeks leave to advance a second appeal to this Court.
The statutory test
[3]Wichart v Police [2018] NZHC 3069.
Section 237(2) of the Criminal Procedure Act 2011 prohibits this Court from granting leave for a second appeal unless it is satisfied the proposed appeal involves a matter of general or public importance or, alternatively, a miscarriage of justice has occurred or may occur unless the appeal is heard. In McAllister v R this Court confirmed that the statutory test sets a higher threshold for a second appeal.[4]
The proposed questions on appeal
[4]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
On Ms Wichart’s behalf Mr Tobeck submits leave should be granted on two questions, both of which he says involve issues of public or general importance and/or will result in a miscarriage of justice if leave is not granted. The issues are:
(a)whether the prosecution was required to prove that the blood specimen collection kit the police used to take the blood sample from Ms Wichart had not passed its expiry date; and
(b)whether the prosecution was required to prove that the police complied with a request by Ms Wichart that they should arrange for the Institute of Environmental Science and Research (the ESR) to forward part of the blood sample to a nominated private analyst.
Background
Ms Wichart was stopped by the police when she was driving her motor vehicle in the West Coast township of Harihari on the morning of 1 January 2018. She was required to accompany the officer to a police station after a roadside breath screening test proved positive. At the police station she elected to give a sample of her blood for analysis after she failed an evidential breath test. The police sergeant who was undertaking the testing procedures then arranged for a nurse to take the blood sample using a blood specimen collection kit.
During the testing procedure the sergeant and the nurse completed a blood specimen medical certificate recording details of the procedure they undertook. In doing so they committed several errors, one of which was that the sergeant omitted to fill in a box on the form recording the batch number of the blood specimen collecting kit that had been used to obtain the blood sample.
The sample taken from Ms Wichart was divided into two containers and these were placed back in the blood specimen collection kit. One of these was to be used by the ESR for analysis and the other was to be retained so that it could be sent to a private analyst if Ms Wichart asked for that to be done.[5] The kit was then stored at the Greymouth Police Station until it was couriered to the ESR in Wellington three days later.
[5]As required by cl 6(1) of the Land Transport (Blood Specimen Collecting Instrument and Procedure) Notice 2014.
On 9 January 2018, the ESR issued an approved analyst’s certificate (the certificate of analysis) under s 75(5) of the Land Transport Act 1998 (the LTA). This confirmed that the proportion of alcohol in Ms Wichart’s blood was no less than 118 milligrams of alcohol per 100 millilitres of blood. The legal limit is 80 milligrams of alcohol per 100 millilitres of blood. The certificate of analysis contained a statement that “[n]o such deterioration or congealing was found as would prevent a proper analysis”.
On 5 February 2018, Ms Wichart wrote to the police asking that the container of her blood that had not been used in the ESR analysis be sent to a nominated private analyst. This obliged the police and the ESR to arrange for the second blood sample to be sent to that analyst.[6] The police then wrote to the ESR asking it to forward the second sample to the private analyst named in Ms Wichart’s letter.
The hearing in the District Court
[6]Land Transport Act, s 74(5)(b).
Prior to the hearing in the District Court Ms Wichart’s counsel did not advise the prosecution that he required either the nurse who took the blood sample or the analyst who prepared the certificate of analysis to give evidence.[7] As a result, the only witness called for the prosecution was the police sergeant who had arranged for the nurse to take the blood sample. He produced the blood specimen medical certificate that he and the nurse had completed, together with the certificate of analysis from the ESR.
[7]Sections 79(1) and (3) of the Land Transport Act require a defendant to apply not less than 14 days before the hearing for orders that persons involved in the blood testing procedure appear at the hearing. These include the medical practitioner or medical officer who took the blood sample, the person who delivered or sent the blood sample to the analyst and the analyst who prepared the certificate of analysis to appear at the hearing.
Mr Tobeck, who appeared as counsel for Ms Wichart at the hearing in the District Court, referred two letters to the sergeant in cross-examination. These were copies of the request by Ms Wichart for the remaining blood sample to be forwarded to a private analyst and the letter sent by the police to the ESR requesting that this be done. Mr Tobeck did not go on to ask the sergeant whether the ESR had complied with that request.
In closing submissions Mr Tobeck advanced several technical arguments arising out of the manner in which the nurse and the sergeant had completed the blood specimen medical certificate. These included the fact that the sergeant had not written the batch number of the blood testing kit in the space provided on the certificate. In rejecting these arguments the Judge recorded that Mr Tobeck had not asked the sergeant any question suggesting the ESR had failed to comply with the request by the police to forward the second sample to the nominated analyst.[8] Nor had he made a submission that the police and the ESR had failed to comply with the request to send the second sample to a private analyst.
The appeal to the High Court
[8]Police v Wichart, above n 2, at [22].
On appeal to the High Court, Mr Tobeck again relied on the failure of the sergeant to record the batch number of the blood testing kit. Mr Tobeck contended this was a material defect because it meant the Court could not be sure the blood specimen collection kit had not passed its expiry date. It is not clear whether he advanced the same argument in the District Court because the Judge’s decision does not refer to it. During cross-examination, however, the sergeant had conceded that he had “no idea” of the batch number of the kit or whether it had passed its expiry date.
Justice Gendall considered the argument faced an obvious hurdle in that there was no evidence to confirm that the blood specimen kit in question had an expiry date.[9] He did not consider the cross-examination of the sergeant shed light on this issue because it established only that the sergeant had no knowledge about any expiry date.[10]
[9]Wichart v Police, above n 3, at [10].
[10]Dodgson v New Zealand Police [2011] NZCA 428 at [13].
The Judge also noted that s 75(1) of the LTA provides that production of an analyst’s certificate is sufficient evidence, in the absence of proof to the contrary, of the matters contained in the certificate. There had been no evidence in the present case to suggest the certificate was wrong. The Judge held this to be insuperable by Mr Tobeck’s argument on this point.
Mr Tobeck next contended the certificate of analysis was inadmissible because the prosecution had failed to prove that the ESR had forwarded the second container of Ms Wichart’s blood to a private analyst in accordance with her request under s 74(5)(b) of the LTA. He relied for this argument on s 79(2), which provides that a certificate of analysis will not be admissible if, for whatever reason, the request is not complied with.
The Judge considered this to be a technical argument having no merit. He pointed out that Mr Tobeck had never suggested to the sergeant that the ESR did not comply with the request by the police. This created the obvious inference that Mr Tobeck had not asked the question because he did not wish to mislead the Court.
The Judge considered that the prosecution will only be required to adduce evidence of compliance with a request under s 79(5) of the LTA where the fact of compliance is directly challenged by the defence.[11] Where that does not occur until trial, the prosecution should be permitted to adduce further evidence in rebuttal of the defence argument.
Decision
[11]Wichart v Police, above n 3, at [35].
Mr Tobeck’s submission that a miscarriage of justice may occur if leave to appeal is not granted is without substance in relation to both proposed grounds of appeal. A miscarriage of justice could only occur in the present context if there was an appreciable risk Ms Wichart may have been wrongly convicted. No such risk arises because Ms Wichart has never sought to challenge the information contained in the certificate of analysis. As a result, she was clearly driving when the level of alcohol in her blood was above the legal limit. Leave can therefore only be granted if the proposed appeal raises an issue of public or general importance.
The expiry date issue
The blood specimen was taken from Ms Wichart under s 72 of the LTA. Section 74(1) of the LTA requires all blood samples taken under s 72 to “be dealt with in accordance with the relevant blood specimen collecting procedure”. Section 2 of the LTA defines “blood specimen collection procedure” as being “the taking of a blood specimen by a blood specimen collecting instrument in a manner prescribed by the Commissioner of Police by notice in the Gazette”.
As at 1 January 2018, the operative notice under s 2 was the Land Transport (Blood Specimen Collecting Instrument and Procedure) Notice 2014 (the Notice). Depending on the device used to obtain the sample,[12] cls 6(1) and 9 of the Notice require any blood specimen taken under s 72 of the LTA to be divided into two parts, each of which must be stored in a separate container taken from a sealed blood specimen collecting kit. Once tamper-evident security seals are applied to the containers, the person who took the blood sample must hand them to an enforcement officer.[13]
[12]The Notice permits a blood specimen to be taken using either a needle and syringe or a vacutainer: cl 5(2).
[13]Clause 8.
The LTA defines “blood specimen collecting kit” as follows:[14]
blood specimen collecting kit means a package having endorsed on it or affixed to it or included in it a label indicating that it is a blood specimen collecting kit and that it has been supplied by or on behalf of a laboratory for the time being approved by the Science Minister, by notice in the Gazette, for the purpose of supplying or causing to be supplied blood specimen collecting kits:
[14]Clause 3(2) of the Notice provides that terms or expressions that are defined in the Land Transport Act and used but not defined in the Notice shall have, unless the context otherwise requires, the same meaning as in the Act.
The only substantive reference in the LTA to a “blood specimen collecting kit” is in s 75(2), which relates to the blood specimen medical certificate. This may certify that the containers in which a blood specimen was stored “were received by the medical practitioner or medical officer in a sealed blood specimen collecting kit”.[15] It is therefore irrelevant for present purposes.
[15]Land Transport Act, s 75(2)(d).
Importantly, however, there is no requirement in the Notice that a blood specimen collection kit be used before a nominated expiry date. It follows that, even assuming such kits are issued with expiry dates, failure to use a kit prior to that date will not violate the procedure required by the Notice and the LTA.
The first proposed ground of appeal accordingly has no merit and raises no issue of general or public importance.
The second blood sample
This proposed ground of appeal does not reach the required threshold for two reasons. First, the issue of whether the prosecution will need to prove compliance with a request made under s 74(5) of the LTA will always be highly fact specific. We do not see it as raising any question of general or public importance that would justify a second appeal. Secondly, we agree with the courts below that there is no evidence the ESR failed to comply with the request by the police to forward the second sample to the analyst nominated by Ms Wichart. To the extent that Mr Tobeck asked questions about the issue, he succeeded only in establishing the police had complied with the requirements of the section. If the defence wished to argue there had been non-compliance, Mr Tobeck needed to raise the issue squarely so as to provide an evidential basis for the argument. He did not do so. The second proposed ground of appeal therefore has no prospect of success.
Result
The application for leave to bring a second appeal against conviction is declined.
Solicitors:
Menzies Marshall Law Ltd, Auckland for Applicant
Crown Law Office, Wellington for Respondent
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