Carpenter v R [2005] NZCA 277 (18 November 2005)

Court of Appeal of New Zealand

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Carpenter v R [2005] NZCA 277 (18 November 2005)

Last Updated: 14 December 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA316/05

THE QUEEN

v



ROBIN CARPENTER

Hearing: 14 November 2005

Court: Hammond, William Young and Panckhurst JJ

Counsel: F P Hogan for Applicant
A M Powell and J D Sutton for Crown

Judgment: 18 November 2005

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

(Given by Panckhurst J)

Introduction

[1]	This is an application for special leave to appeal pursuant to s 144 of the Summary Proceedings Act 1957. The appellant was convicted in the District Court at Manukau upon charges that he drove with an excess blood alcohol concentration and carelessly.
[2]	He appealed to the High Court against the former conviction. Randerson J dismissed the appeal. Subsequently, on 20 June 2005, he declined leave for a further appeal to this Court.
[3]	In order to secure a further right of appeal the intending appellant must demonstrate the existence of a question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for determination : R v Slater [1997] 1 NZLR 211 (CA).

The proposed questions

[4]	Mr Hogan sought leave in relation to two questions:

1 Whether as a matter of law the medical certificate to be produced under Section 75(2) of the Land Transport Act must be disclosed to the defence in sufficient time prior to the hearing of the case to permit an application be made under Section 79(1) of the Land Transport Act.

2 Whether in the absence of the evidence on a material point an entry on a checklist can be admissible and sufficient evidence of compliance with the statutory requirements of proof of a charge brought under Section 56(2) of the Land Transport Act 1998.

Question 1

[5]	Prior to the District Court hearing counsel understood that the medical officer who attended in order to take a blood specimen from the appellant was to be called as a witness. However, shortly before the hearing counsel was advised that this was not so, rather the informant would rely upon a certificate in terms of s 75 of the Land Transport Act 1998.
[6]	In these circumstances Mr Hogan was in no position to apply pursuant to s 79(1) of the Act for an order requiring the attendance of the medical officer as a witness, since such an application must be made not less than 14 days before the hearing. It is common ground that there were difficulties in obtaining the blood specimen since attempts were made to take blood from both Mr Carpenter’s arms, before a specimen was eventually obtained. Counsel wished to cross-examine the witness concerning this aspect.
[7]	Despite the somewhat unusual features of this case, we are unpersuaded that leave should be granted in relation to the proposed question. We agree with Randerson J who, in declining to grant leave, said that the imposition of a time requirement was not "fairly arguable". Despite the 14 day requirement imposed upon defence counsel, the Act is simply silent in relation to an obligation to serve the certificate in advance of the 14 day period (unlike, we note, s 31 of the Misuse of Drugs Act 1975 where there is a requirement of the kind for which Mr Hogan contends in the present context).
[8]	We also agree with a point made by Mr Powell, namely that, absent a specific requirement in the Act, the proposed question amounts to an invitation to amend rather than interpret the section. Where counsel are faced with a difficulty of the kind which arose in this instance, the available remedy is to seek an adjournment of the hearing so that application can be made for the medical officer to be called. That, we note, was not done in this case.

Question 2

[9]	In the District Court Judge Henwood allowed the police constable who dealt with Mr Carpenter on the relevant occasion to produce a blood test check list which recorded the fact and timing of relevant aspects of the process. This was done against the background of a delay of about two years between the relevant events and the defended hearing. Although there was a brief hearing in the nature of a voir dire, the constable was not expressly asked and did not volunteer that he could not independently recall the relevant events.
[10]	Instead, the Judge inferred that the officer would not have been able to remember and, hence, that s 3(1)(b)(iii) of the Evidence Amendment Act (No 2) 1980 was satisfied (ie that the officer could not reasonably be expected, having regard to the time that had elapsed, to recollect matters dealt with in the check list).
[11]	We are unpersuaded that the proposed question raises any question of law which justifies leave. To the contrary the case involved a fairly conventional application of s 3 of the Evidence Amendment Act, as interpreted by Gallen J in the blood alcohol context in Ngaamo v Ministry of Transport [1987] 1 NZLR 170 (HC).

Result

[12]	The application for leave to appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington