| 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
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
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…
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- Case
- [2019] NZCA 212
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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