Wichart v Police - [2018] NZHC 3069

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000078

[2018] NZHC 3069

BETWEEN
MELANIE WICHART

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 November 2018

Appearances:

ASP Tobeck for Appellant P A Norman for Respondent

Judgment:

23 November 2018

JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Melanie Wichart, was convicted on a charge of drink driving following a defended hearing before Judge Saunders in the District Court in July 2018. On her behalf counsel Mr Tobeck challenges the conviction, arguing the prosecution failed to prove first, that the blood specimen kit used to test her blood sample had not passed its expiry date, and secondly, that the second blood sample taken had been properly sent to a private analyst.

[2] Ms Wichart has an automatic right of appeal against conviction.1 This Court must allow the appeal if it finds that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason.2 Miscarriage of justice is defined as any

1 Criminal Procedure Act 2011, s 229 and 244.
2 Criminal Procedure Act, s 232(2).

WICHART v NEW ZEALAND POLICE [2018] NZHC 3069 [23 November 2018]

error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.3

Facts

[3] On 1 January 2018, Ms Wichart failed an alcohol breath screening test after her vehicle was pulled over by Police. She was taken to the Police Station, where an evidential breath test was administered. After this returned a result in excess of the 400 microgram limit, Ms Wichart elected to undergo an evidential blood test. A nurse came to the station to administer the test. Two samples were taken, and kept in a locked cabinet until 4 January 2018 when they were sent to Wellington for analysis. The sample was shown on analysis to contain 118 milligrams of alcohol per 100 millilitres of blood, and Ms Wichart was charged accordingly.

Issue one: blood specimen kit expiry date

[4] This issue arises out of the failure on the part of Sergeant Cross, the officer who ordered the blood test, to fill out one of the sections on the Blood Specimen Medical Certificate. No details are recorded under the heading “Blood Specimen Collecting Kit number(s)”. Mr Tobeck says this is a material defect because it means the Court cannot be sure that the blood specimen kit used had not passed its expiry date.

[5] In the District Court, Mr Tobeck cross-examined Sergeant Cross on this point. Sergeant Cross admitted he had “no idea” what the batch number was, nor did he know what the expiry date on the kit was.

[6] Mr Tobeck submits that he put the expiry date of the kit in issue, and that the prosecution’s failure to satisfy the…

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: [2018] NZHC 3069
Decision Date: 23 November 2018

CaseChat Overview and Summary

Melanie Wichart, the appellant, was convicted of drink driving after a defended hearing in the District Court. She appeals against the conviction, arguing that the prosecution failed to prove that the blood specimen kit used to test her blood sample had not passed its expiry date, and that the second blood sample taken had been properly sent to a private analyst. The court must allow the appeal if it finds that the judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason. The court found that there was no evidence that the type of Blood Specimen Collecting Kit used has an expiry date at all and that the only way in which the certificate fails to be sufficient evidence of its contents here is if there is proof to the contrary. The court held that the prosecution is only required to proffer evidence of compliance if compliance is directly challenged by the defence.

The court dismissed the appeal.

Orders