Wichart v Police - [2019] NZCA 212

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA789/2018
[2019] NZCA 212

BETWEEN	MELANIE WICHART Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	29 May 2019
Court:	French, Miller and Lang JJ
Counsel:	ASP Tobeck for Applicant R K Thomson and M J Lillico for Respondent
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…

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] NZCA 212
Decision Date: 11 June 2019 at 3.00 pm

CaseChat Overview and Summary

Melanie Wichart applied to the Court of Appeal of New Zealand for leave to bring a second appeal against her conviction for driving with excess blood alcohol. The Court was required to determine whether the application should be granted, as the statutory test under section 237(2) of the Criminal Procedure Act 2011 sets a higher threshold for a second appeal. The proposed questions on appeal were whether the prosecution was required to prove that the blood specimen collection kit used to take the blood sample had not passed its expiry date and whether the prosecution was required to prove that the police complied with a request by Wichart that they should arrange for the Institute of Environmental Science and Research (ESR) to forward part of the blood sample to a nominated private analyst.

The Court held that the first proposed ground of appeal had no merit and raised no issue of general or public importance. There is no requirement in the relevant notice that a blood specimen collection kit be used before a nominated expiry date. The second proposed ground of appeal did not reach the required threshold as the issue of whether the prosecution will need to prove compliance with a request made under s 74(5) of the Land Transport Act will always be highly fact-specific. There was also no evidence the ESR failed to comply with the request by the police to forward the second sample to the analyst nominated by Wichart. The application for leave to bring a second appeal against conviction was declined.

The final orders of the Court were that the application for leave to bring a second appeal against conviction is declined.

Orders