R v Lemalu [2007] NZCA 533 (22 November 2007)

Last Updated: 3 January 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA446/07 [2007] NZCA 533

THE QUEEN

v

PELEPELE LEMALU

Hearing: 6 November 2007

Court: Wilson, Ronald Young and Venning JJ Counsel: W M Johnson for Appellant

A M Powell and J D Sutton for Respondent

Judgment: 22 November 2007 at 12pm

_{JUDGMENT OF THE COURT}

A Appeal against legality of blood test dismissed.

2. Appeal against determination that analysed blood sample that of appellant allowed.

100. Order that whether analysed blood sample that of appellant be determined at trial.

R V PELEPELE LEMALU CA CA446/07 22 November 2007

REASONS OF THE COURT

_{(Given by Wilson J)}

Introduction

[1] The appellant, Mr Lemalu, is charged with driving with excess blood alcohol under s 56(2) of the Land Transport Act 1998, and driving with excess blood alcohol (third or subsequent offence) under s 56(4) of that Act. In a preliminary decision of

17 August 2007, Judge S E Thomas found that the prosecution had proved that Mr Lemalu had a blood alcohol level of 155 milligrams per 100 millilitres of blood, and that the level was ascertained in the manner prescribed by the Act. Mr Lemalu appeals against that decision.

Background

[2] On the evening of 20 September 2005, Sergeant Keleher and Constable Sollitt were on mobile patrol in the Porirua area. When they pulled Mr Lemalu over, he showed signs of recent alcohol consumption and admitted to having drunk “half a dozen beers”. He failed the passive breath test and the breath screening test and was required to accompany the police officers to the Porirua police station for the purpose of an evidential breath test, blood test or both. Mr Lemalu was informed of his rights and signed the acknowledging form. He declined the opportunity to speak to a lawyer.

[3] The first evidential breath test showed 678 micrograms of alcohol per litre of breath. That test failed to print out and Constable Sollitt sought the advice of her supervisor, Sergeant Keleher, before undertaking a second test. The second test gave a reading of 697 micrograms. The defendant then spoke to a lawyer and requested a blood test. The result of the blood test was 155 milligrams of alcohol per 100 millilitres of blood.

[4] Mr Lemalu elected trial by jury. On 13 March 2007, pursuant to an application made by the Crown under s 344A of the Crimes Act 1961, Judge M J Behrens QC ordered that the legality of the testing procedure be determined prior to trial before a Judge alone. The hearing was conducted by Judge Thomas, who found that the tests were legally performed and that the prosecution had proved Mr Lemalu’s excess blood alcohol.

Grounds of Appeal

[5] Mr Lemalu, through his counsel Mr Johnson, appealed on two grounds. The first was that the procedure adopted in the District Courts in relation to s 344A applications requires revision because it effectively requires defendants to disclose their defence prior to trial.

[6] Alternatively, the Judge was alleged to have erred in the following four respects in holding that the evidence of the appellant’s blood alcohol level was admissible.

(a) There was no power to take the blood test under s 70(1) of the Land Transport Act because the Constable had not exercised her discretion in requiring the second breath test.

(b) There was no evidence that the Constable conducted the breath test pursuant to the Transport (Breath Tests) Notice (No 2) 1989 (the Notice).

(c) Finding that the appellant had been given advice of the positive evidential blood test without delay.

(d) Finding that the blood sample analysed was the sample taken from the appellant.

[7] At the hearing, and having read the Crown’s written submissions, Mr Johnson responsibly abandoned the first ground and the third part of the second ground.

[8] Accordingly, the only matters requiring our determination are those, identified above at sub-paras [6] (a), (b), and (d).

Exercise of discretion

[9] The second breath test was purportedly taken pursuant to s 70(1) which provides that:

If for any reason an evidential breath test carried out under section 69 by an enforcement officer fails to produce a result, the enforcement officer may, at his or her discretion, either require the person to undergo without delay a further evidential breath test or proceed as if section 72(1)(c) applies.

[10] Mr Johnson submits that the phrase “at his or her discretion” indicates that the exercise of discretion is of fundamental importance. In this case, Constable Sollitt went to Sergeant Keleher for advice and assistance when the machine failed to print out the result of the first test. Sergeant Keleher replaced the paper and then “instructed” Constable Sollit to carry on and that, as the machine had failed to produce a result, she should require Mr Lemalu to undergo a further evidential test. Judge Thomas accepted that, in undertaking the second test, Constable Sollitt was not exercising her discretion, but was merely following orders. She therefore had no power to undertake the test under s 70. The Judge apparently accepted Mr Johnson’s submission on this point, but found that the evidence was nevertheless admissible because of the saving provision in s 64(2) and because the charges related to the blood test, rather than the breath test.

[11] Section 64(2) states that, provided there has been reasonable compliance with the legislated procedure for alcohol testing, it is no defence that a provision has not been strictly complied with or has not been complied with at all. Mr Johnson argues that, where a test is purportedly undertaken under s 70 but the enforcing officer fails to exercise his or her own discretion, the failure is so serious that there is not reasonable compliance.

[12] The Crown submits that the reasonable compliance provision in s 64(2) must apply. In deferring to the greater experience of Sergeant Keleher, Constable Sollit achieved the correct outcome. Under s 70(1), the options available to her after the

first test failed to print out were to require the appellant to undergo a second evidential breath test, or require a blood sample under s 72(1)(c). Given that another test was required only because the machine ran out of paper, the less intrusive breath test was the preferable option. Mr Lemalu did not suffer any prejudice as a result of Constable Sollit’s failure to exercise discretion that would militate against s 64(2) applying.

[13] In our view these submissions of the Crown are plainly correct. The ambit of the s 70(1) discretion is confined to a determination of whether a second breath test or a blood test is required. There was no possible prejudice to the appellant through his being required to undergo a second breath test rather than an immediate blood test.

[14] Indeed, it would be difficult to think of a more obvious case for the application of s 64(2).

Compliance with the Notice

[15] Mr Johnson submits that the Judge erred in holding that there was sufficient evidence to infer that the Constable complied with the Notice. He accepts that the evidentiary burden is on the defence to show that the test was not compliant, but argues that the burden only arises if the “magic words” have been said. If the officer does not explicitly say that the test was conducted in compliance with the Notice, then the prosecution has not proved that the test was so conducted. Consequently, there is no need for the defence to disprove it. He relies on Burgess v Police HC WN AP169/99 28 July 1999 and Police v Aylwin HC AK CRI-2005-404-440 14

September 2006 for this proposition.

[16] Mr Johnson says that, in the present case, the police officers made no statement that the complied with the Notice; the only reference to it is a question put to Constable Sollit by Ms Murdoch, counsel for the Crown:

Q. Are you able to say whether [the ethometer] is approved by the

Gazette notice?

A. Yes it is.

A Certificate of Compliance was also produced but there was no evidence as to the conduct of the test.

[17] The Crown submits that s 72(1)(b) does not require the Court to examine the legality of the evidential blood test, but merely to establish that such a test was taken and that the result was positive.

[18] In the alternative, if the legality of the evidential breath test is relevant, the Crown contends that Mr Johnson’s submission can be met by the reasonable compliance provision.

[19] It is clear, on the longstanding authority of Falesiva v Ministry of Transport [1987] 1 NZLR 275 (CA), that all that the Crown is required to establish is that an evidential breath test was undertaken in fact and produced a positive result.

[20] As Cooke P and Hillyer J said in their joint judgment at 279:

In our opinion s 58(5) [of the Transport Act 1962, in materially the same terms as s 64(2)] should be held to apply to errors or possible errors in the results of preceding evidential breath tests, howsoever occurring. The cause of the error or possible error is immaterial. For example the officer may have made a mistake in endeavouring to follow the steps in the Notice or may even have inadvertently omitted a step. Or the device may have malfunctioned. These examples are not meant to be exhaustive. The legislature has evidently acted on the view that a blood test, taken by a registered medical practitioner with the result scientifically analysed, is the motorist’s ultimate protection and a reliable basis for a conviction. If the procedure has reached that stage it does not matter that there may have been some defect in the earlier administration of the evidential breath test possibly vitiating the result of that test. One has to bear in mind also that from the outset there has been the added safeguard of a breath-screening test.

[21] To like effect the third member of the Court, McMullin J said at 282:

The phrase “error in the result of the evidential breath test” is a wide one. The error is not limited to one which has occurred in a particular way. An error in the result of an evidential breath test may occur in a number of ways; for instance from a defect in the testing device, or a failure on the part of the enforcement officer to observe the proper procedure or the making of a wrong reading during the taking of the prescribed steps. It may result from a mechanical failure or a human failure. If anyone of these defects, mistakes or failures results in an error in the result of the evidential breath test then that will be an error falling within s 58(5). The wording of the subsection is wide enough to encompass all these matters.

[22] On any view of the evidence in the present case, a breath test was in fact undertaken, whether or not there were legal deficiencies in the way in which this was done, and produced a positive result.

[23] Section 72(1)(b) therefore applies so as to validate the blood test.

[24] We also note that, for the same reasons, the blood test would be valid even if, contrary to our earlier finding (at [13] above) s 64(2) did not apply to the failure to exercise discretion.

Chain of custody

[25] Finally, Mr Johnson submits that Judge Thomas was wrong to find there was no break in the chain of custody of the blood sample. There was no evidence that the blood samples had been adequately stored and that the security of the blood sample could not be assured. In particular, Constable Sollitt did not know who had taken the blood sample from the “blood safe area”, where she left it, to hand it to the courier. Mr Johnson argues that she had therefore not delivered or caused delivery of the blood sample in terms of the procedure set out in s 74(3) of the Land Transport Act. As a result, there was a break in the chain of custody.

[26] The Crown submits that questions about the chain of custody of a blood sample are not an appropriate subject for a ruling under s 344A because the Court, on the application of the defendant, may under s 79 order any of the witnesses involved in the collection, delivery or analysis of the blood sample to give evidence rather than have their evidence proved by a certificate.

[27] We agree with these submissions from the Crown. There was we think an ambiguity in the order for pre-trial determination by a Judge of “the legality of the testing procedures” insofar as it was not clear whether or not the order encompassed the question of whether there was a break in the chain of custody of the blood sample.

[28] It was therefore understandable that Judge Thomas should have decided that the chain of custody had been established, particularly when Mr Johnson had raised this very issue.

[29] We think however that questions about the chain of custody are not appropriately determined by a s 344A ruling; such issues should be resolved under the s 79 procedure with, if necessary, determination by the jury as the tribunal of fact.

Result

[30] For the reasons we have given, the challenge to the legality of the blood test is dismissed.

[31] The appeal is however allowed insofar as it is against the finding that the chain of custody of the blood sample had been established, and an order is made that whether the blood sample analysed was that of the appellant is to be determined at trial.

Solicitors:

Crown Law, Wellington for Respondent