Patel v R [2012] NZCA 318 (20 July 2012)

Last Updated: 25 July 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA13/2012 [2012] NZCA 318

BETWEEN ASHOK DAJI PATEL Applicant

AND THE QUEEN Respondent

Hearing: 10 July 2012

Court: Arnold, Potter and MacKenzie JJ

Counsel: N K McDonald for Applicant J M Jelas for Respondent

Judgment: 20 July 2012 at 11.45 am

JUDGMENT OF THE COURT

A The application for special leave to appeal is dismissed.

B The interim order for name suppression is discharged.

____________________________________________________________________

REASONS OF THE COURT
(Given by Potter J)

Introduction

[1] Mr Ashok Patel applies under s 144(3) of the Summary Proceedings Act 1957 for special leave to appeal against his conviction for driving with excess blood alcohol contrary to s 56(2) of the Land Transport Act 1998 (the Act).[1]
[2] Following a defended hearing in the District Court the applicant was convicted and sentenced to pay a fine of $800 and costs of $132.89. He was disqualified from holding a driver’s licence for six months.[2] He sought to have his interim name suppression made permanent, but that application was declined.
[3] The applicant then appealed to the High Court against his conviction and refusal to grant name suppression. The appeal against conviction was unsuccessful,[3] as was an application under s 144(1) of the Summary Proceedings Act 1957 for leave to appeal to this Court on a question of law.[4] However, the High Court granted limited leave to appeal the refusal to extend interim name suppression.[5] The applicant has now abandoned that part of the appeal. The interim name suppression order is accordingly discharged.

Special leave to appeal

[4] Section 144(3) of the Summary Proceedings Act provides that where the High Court refuses leave to appeal, this Court may grant special leave if in its opinion the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.
[5] Three questions therefore arise:

• (a) Does the appeal involve a question of law?
• (b) If so, is the question of law of general or public importance?
• (c) Ought the question to be submitted to this Court for decision for that or any other reason?

[6] As to the first of these questions, the Supreme Court held in Bryson v Three Foot Six Ltd:[6]

An appeal cannot, however, be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.

Questions of law identified by the applicant

[7] Ms McDonald for the applicant addressed three questions that, she submitted, are questions of law:

• (a) whether the nurse who took the applicant’s blood sample erred in law by failing to take a sufficient blood specimen to divide into two parts;
• (b) whether the police lacked power and authority to send the re-sealed blood specimen for private analysis; and
• (c) whether the prosecution must fail due to either of these two alleged errors.

[8] Ms McDonald submitted that because of the mandatory provisions of the Act in relation to the blood specimen collecting procedure, the failure by the nurse to take a sufficient blood sample from the applicant to provide two separate specimens meant that, upon request being made by the applicant for independent analysis of the blood specimen, the prosecution must fail; this because there was not available a separate sealed part of the blood specimen to be sent to the independent analyst.
[9] She submitted these questions of law raise matters of general or public importance because they touch upon the fundamental protections given by Parliament to a person charged with a drink driving offence under the Act, namely to elect to have a blood test, and then to have a sealed portion of the blood specimen independently tested.

Crown’s response

[10] The Crown accepts that the mandatory requirements of the Act relating to collection of blood specimens were not followed in this case. It was submitted, however, that the reasonable compliance provision in s 64(2) of the Act applies in the circumstances of this case to the steps taken both by the nurse and by the police in making available the blood specimen for independent analysis at the request of the applicant. The Crown submitted that:

• (a) the nurse reasonably complied with the requirement to take a blood sample sufficient to divide into two parts; and
• (b) the police reasonably complied with the requirement to send a part of the applicant’s blood specimen to a specified private analyst upon request by sending the resealed sample.

[11] The Crown further submitted that the application of the reasonable compliance provision is a question of fact, not of law; but in the alternative, if the application of the reasonable compliance provision is a question of law, in the circumstances of this case it raises no questions of general or public importance.

Relevant statutory procedures

[12] Under the Act, if a breath test administered under s 69(4) returns a positive result and the driver elects to take an evidential blood test,[7] the driver is required to permit a medical practitioner or medical officer (in this case a nurse) to take a blood specimen.[8]
[13] At the time of the applicant’s offending in November 2010, s 74 provided that the blood specimen had to be divided into two parts and each part placed in a separate bottle, which then had to be sealed.[9]
[14] Section 72(4) allowed the medical practitioner to take a further sample, if the first specimen taken was insufficient to be divided into two parts.
[15] There was no statutory limit to the number of attempts that could be made if no blood was drawn. It may have been necessary to take more than one sample where the first was insufficient to divide into two parts as required by s 74 of the Act. But there was no requirement that further attempts be made if an insufficient specimen was taken at the first or subsequent attempt.
[16] The blood samples in the separate bottles were then to be sent to an approved analyst (currently ESR), one part to be analysed, the other to be held in custody.
[17] Section 74(5) provided that if the person from whom a blood specimen was taken wished to have the specimen analysed by a private analyst and duly made application, the approved analyst (ESR) was required to send one part of the blood specimen to the private analyst specified in the application.[10]
[18] The reasonable compliance provision in s 64(2) of the Act provides:

It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.

[19] The provisions of the Act that govern the blood testing regime, ss 72 to 74, are provisions within the ambit of the reasonable compliance provision as set out in the previous paragraph.

District Court judgment

[20] Judge Cunningham concluded that while there had not been strict compliance with the relevant provisions of the Act by the nurse in taking the blood sample and by the police in forwarding the only blood specimen available, there was reasonable compliance in terms of s 64(2).
[21] The Judge also noted there was no medical evidence to contradict that of the nurse that she had made all reasonable attempts to extract a blood sample from the applicant and it was her view that it was fruitless to keep trying to take a specimen of blood from the applicant. The Judge concluded that the nurse had acted reasonably in the circumstances.
[22] She referred to the evidence of Ms McGavin, a scientist employed by ESR who specialises in the analysis of blood and other body fluids. Ms McGavin said the sample taken from the applicant was small. For that reason she used a modified model of the usual method for analysing the blood, which requires only one quarter of the usual amount of blood. She took four small portions from the sample and analysed each one individually. She said there were no problems with the samples in that there was no congealing of the blood or deterioration that caused her concern. For each of the four samples she received a strikingly similar result of 173-point-something milligrams of alcohol per 100 millilitres of blood.
[23] The Judge referred to a letter or form from Dr Sandiford, to whom the sample had been sent for private analysis, on which something had been crossed out “which could have borne an interpretation that there was an insufficient sized sample for analysis”. But the Judge noted there was no evidence from Dr Sandiford explaining exactly why the blood specimen provided could not be analysed, and that Ms McGavin’s opinion was that the integrity of the sample was intact and there was no reason why it was not suitable for analysis. The Judge also found that the police did all they could to comply with the requirements of s 74(5). In circumstances where there was not available for private analysis a second sealed sample of the blood specimen, the decision made by the police to send for private analysis the sample Ms McGavin had used, was reasonable.
[24] The Judge said she was satisfied that by invoking the reasonable compliance regime there was no unfairness or injustice to Mr Patel.

High Court judgment

[25] On appeal in the High Court, Whata J saw no reason to depart from Judge Cunningham’s first-hand assessment of the witnesses’ credibility and reliability. He concluded that the nurse had acted reasonably when she took only one sample. He held that given the consistent results from the four tests run by Ms McGavin and the applicant’s own admissions that he had consumed two bottles of wine, there was ample evidence for conviction. The Judge specifically excluded from his assessment the results of the breath test to which the District Court Judge had referred, noting they were not admissible once a blood test had been taken. He said that while it was plainly a minor matter in the overall assessment of the District Court Judge, he excluded it from his own analysis in reaching the conclusion that there was an ample and proper basis for conviction. He agreed with the conclusion of the District Court Judge that there was reasonable compliance with the Act.

Application for leave to appeal

[26] In dismissing Mr Patel’s application for leave to appeal, Whata J said the central issue in the case had always been essentially factual: whether there had been reasonable compliance with the provisions of ss 72 and 74. He said that while Ms McDonald has endeavoured to reframe the basic issue into questions of law, ultimately the applicant’s conviction depended on the resolution of that factual issue.
[27] He referred to the statement by this Court in R v Aylwin:[11]

The test as to whether there has been reasonable compliance has been seen as involving the consideration of two questions, as set out in Soutar v MOT [1981] 1 NZLR 545 (CA), at p 550, and Aualiitia v MOT [1983] NZLR 727 (CA), at p 729. The first question is whether the extent of the non-compliance gives rise to a reasonable doubt about the correctness of the result. The second question is whether there is a risk of the defendant suffering injustice or unfairness. The need for this test to be applied liberally was reiterated by this Court in Shaw v Police 21/9/95, CA 212/95. Accordingly, where the non-compliance does not create the possibility or likelihood of error, it should be saved by reasonable compliance.

[28] Whata J concluded that, the question of reasonable compliance having been thoroughly addressed both at first instance and on appeal, he saw no basis for allowing leave to appeal to this Court on the five questions proposed by the applicant.

Discussion and conclusion

[29] The reasonable compliance provision in s 64(2) applies in circumstances where the relevant provisions of the Act have not been strictly complied with or have not been complied with at all, provided there has been reasonable compliance with those provisions.
[30] The purpose of the blood testing regime in the Act is to ensure that those who elect to have a blood test to assess the proportion of alcohol in their blood have the protections that the blood specimen is taken by a qualified medical practitioner or medical officer, that the sample retains its integrity for the purposes of analysis by an approved analyst and that an untainted specimen is available for testing by a private analyst if required.
[31] Whether there has been reasonable compliance in terms of s 64(2) with the relevant provisions of the Act is essentially a factual inquiry.
[32] We do not accept Ms McDonald’s submission that the use of the word “must” in s 74(1) in relation to the division of the blood specimen into two parts, and in s 74(5) in relation to the requirement to send one part of the blood specimen to the private analyst, makes those requirements mandatory so as to override the reasonable compliance provision. Section 64(2) specifically applies to those sections of the Act that define the procedure for taking and dealing with blood specimens and clearly applies to that regime. Two courts have carefully analysed the relevant evidence in this case and have found there has been reasonable compliance with the relevant provisions of the Act. We have no reason to disagree.
[33] The Supreme Court said in Aylwin v Police:[12]

Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable. The great majority of drivers comply with their obligations in this respect. A small minority do not. Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences. The courts must give full effect to that clear parliamentary indication.

[34] In the circumstances of this case there was no prejudice to the applicant either in the manner in which the blood sample was taken, the testing procedures applied by the ESR analyst or the decision of the police to send for analysis by the private analyst advised by the applicant the blood specimen that had been analysed by the ESR scientist.
[35] We answer the questions in [5] as follows:

• (a) No question of law arises. The inquiry as to reasonable compliance is essentially factual.
• (b) If there were a question of law, it is not one of general or public importance but would relate to the particular circumstances of this case and would not be suitable for submission to this Court for decision.

Result

[36] The application for special leave to appeal is dismissed.

Solicitors:
Oranga Law, Auckland for Applicant
Crown Law Office, Wellington for Respondent

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[1] Police v Patel DC Auckland CRI-2010-004-22032, 19 May 2011.

[2] Counsel for Mr Patel advised that the disqualification period has been served.
[3] Patel v Police HC Auckland CRI-2011-404-184, 5 October 2011.
[4] Patel v Police HC Auckland CRI-2011-404-184, 21 December 2011.
[5] Ibid at [41](c).
[6] Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25].
[7] Land Transport Act 1998, s 70A.
[8] Section 72(1)(b).

[9] The Act’s provisions setting out the blood specimen collection procedure were amended from 5 November 2011 by the Land Transport (Road Safety and Other Matters) Amendment Act 2011. The procedure is now set out in the Land Transport (Specimen Collecting Procedure) Notice 2011.

[10] By the amendments to the Act on 5 November 2011 the blood specimen collecting procedure in s 74 of the Act was amended to provide that a blood specimen taken under s 72 or 73 must be dealt with in accordance with the relevant blood specimen collecting procedure. That procedure is set forth in the Land Transport (Blood Specimen Collecting Procedure) Notice 2011, which came into force on 5 November 2011. Paragraph 6(3) of the Notice requires that the one part of the blood specimen to be sent to the private analyst upon request under s 74(5)(b)(ii), is the part held in custody by the approved laboratory. This provision confirms the practice that the one part sent for analysis by a private analyst is the part of the specimen held in custody.

[11] R v Aylwin [2008] NZCA 154, (2008) 24 CRNZ 87 at [41]. Upheld on appeal: Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.
[12] Aylwin v Police, above n 11, at [17].