Wilson v Police - [2017] NZHC 239

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CRI-2017-485-000002

[2017] NZHC 239

BETWEEN
NATASHIA DONNA WILSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 February 2017

Appearances:

R Stoop and C Stanley for Appellant STA Ellis for Respondent

Judgment:

22 February 2017

JUDGMENT OF COLLINS J

Introduction

[1] This judgment explains why I am allowing Ms Wilson’s appeal from a decision of Judge Doyle delivered in the Hutt Valley District Court on 23 November 2016. In her decision, Judge Doyle found Ms Wilson had refused to permit a medical practitioner to take a blood specimen pursuant to s 73 of the Land Transport Act 1988 (the Act).1 Judge Doyle accordingly convicted Ms Wilson of breaching s 60(1)(c) of the Act.2

Evidence

[2] On 13 April 2016, at approximately 2.45 pm, Ms Wilson was involved in a motor vehicle accident on State Highway 2 near Lower Hutt. Constable Black, who

1 Police v Wilson [2016] NZDC 21782.
2 Failing or refusing to permit a blood specimen to be taken pursuant to s 73 of the Land Transport Act 1998. Maximum penalty is three months’ imprisonment or a fine not exceeding $4,500. The court must disqualify the person from holding or obtaining a driver’s licence for six months.

WILSON v NEW ZEALAND POLICE [2017] NZHC 239 [22 February 2017]

was on duty in Petone, was dispatched to the scene and found four vehicles had been involved in a “nose to tail collision”. It became apparent that a Suzuki Swift, driven by Ms Wilson, had collided into the rear of a Hyundai car which had in turn caused a knock-on accident involving two other vehicles in front of the Hyundai.

[3] Constable Black noted that Ms Wilson’s eyes were bloodshot. He also saw a full bottle of wine on the floor of Ms Wilson’s vehicle. Constable Black formed the view that Ms Wilson may have consumed alcohol. He radioed for another constable to escort Ms Wilson to hospital and request the taking of a blood specimen from her.

[4] Senior Constable Brough arrived at the scene and was briefed by Constable Black. Ms Wilson was taken to Hutt Hospital by ambulance and Senior Constable Brough travelled to that hospital’s Accident & Emergency Department (AED).

[5] When Ms Wilson was admitted to the AED she was assessed in a cubicle by Dr Kohli, an experienced registrar. Dr Kohli was informed Ms Wilson had been involved in a motor vehicle accident and was asked by Senior Constable Brough to take a blood specimen from Ms Wilson. This occurred at approximately 3.45 pm. Dr Kohli examined Ms Wilson who was “difficult to assess” because she appeared to be “agitated” and “distressed”.3 Dr Kohli formed the view that taking a blood specimen would not be prejudicial to Ms Wilson’s proper care or treatment. Dr Kohli informed Ms Wilson that the police had asked for a blood specimen to be taken to check her “alcohol level” and that she was allowed to decline “but if she did…

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: [2017] NZHC 239
Decision Date: 22 February 2017

CaseChat Overview and Summary

In this case, Natashia Donna Wilson appealed against her conviction for refusing to permit a blood specimen to be taken under the Land Transport Act 1988. The District Court had found that Wilson had refused to allow a blood specimen to be taken by Dr Makower, a medical practitioner, and had convicted her of the offence. The High Court of New Zealand was asked to decide whether the District Court had erred in its assessment of the evidence and application of the law, leading to a miscarriage of justice.

The critical issue in this case was determining which doctor was "in immediate charge" of Wilson's examination, care, or treatment for the purposes of the Act. The Court found that Dr Kohli, not Dr Makower, was the doctor in immediate charge. The Court considered three main reasons for this conclusion. Firstly, Dr Kohli had reasonable grounds to suspect that Wilson had been in a motor vehicle accident, examined her, and formed the opinion that taking a blood specimen would not be prejudicial to her proper care and treatment. Secondly, Dr Makower had not engaged in a therapeutic relationship with Wilson and did not examine or treat her. Lastly, the certificate signed by Dr Makower was of little assistance to the Police, as it did not meet the requirements of the Act.

The Court allowed the appeal and quashed the conviction against Wilson, finding that a miscarriage of justice had occurred. The decision highlights the importance of determining the medical practitioner in immediate charge of a patient for the purposes of the Act and the need to balance the rights of the patient with the objectives of the legislation.

Orders