Ludemann v R [2013] NZCA 531 (1 November 2013)

Last Updated: 6 November 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA600/2013 [2013] NZCA 531
BETWEEN	MURRAY LUDEMANN Applicant
AND	THE QUEEN Respondent

Hearing:	22 October 2013
Court:	Miller, Venning and Andrews JJ
Counsel:	S C Blake for Appellant J M Jelas for Respondent
Judgment:	1 November 2013 at 2.00 pm

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

[1] Mr Ludemann seeks special leave^[1] to appeal his conviction, entered in the District Court^[2] and upheld on appeal in the High Court,^[3] for driving with excess blood alcohol.^[4] He required leave to bring the application out of time.^[5]
[2] The conviction was founded upon a blood sample taken from Mr Ludemann by a registered medical practitioner, on the insistence of the police, after he failed to provide an evidential breath specimen. The sample revealed a blood alcohol level of 130 milligrams of alcohol per 100 millilitres of blood. Mr Ludemann complains that the evidence at the summary hearing failed to prove that the sample was venous blood, as the Land Transport Act 1998 requires, and that rather than allow the appeal on this ground, Whata J adjourned so the police might call further evidence from the doctor,^[6] who duly confirmed that the sample was indeed venous blood.
[3] The general question is whether the High Court Judge was right to allow the police to remedy the evidential defect on appeal. Mr Ludemann would have this Court answer the following questions of law:

1. Did the learned High Court Judge have the jurisdiction pursuant to section 119(3) of the Summary Proceedings Act 1957, to call for further evidence which could in the circumstances have reasonably been adduced by the prosecution at the District Court hearing;
2. Did the learned High Court Judge have the jurisdiction pursuant to section 119(2) of the Summary Proceedings Act 1957, to call for further evidence in a matter of law, especially when the circumstances could not be truly categorised as ‘special’, nor was it a matter where the adequacy of the transcript evidence from the District Court was incomplete in any material way;
3. Did the addendum in Aylwin v Police [2008] NZSC 133 that ‘drink driving offending will not escape reproach on the basis of a technical defence only’ justify the High Court adjourning the appeal and granting leave for the Crown to file new evidence, by way of affidavit, to cure an accepted evidential deficiency that would otherwise be considered fatal.

[4] In order to obtain leave, Mr Ludemann must persuade us that these questions raise some point of law that, in this Court’s opinion, ought to be submitted to the Court for decision by reason of its general or public importance or for any other reason.^[7] As will be seen, there is also a question of jurisdiction.

The District Court hearing

[5] Mr Ludemann was found guilty following a summary hearing in the District Court at Timaru on 22 November 2012. It appears that the doctor who took the blood specimen, Ian Smith, had signed the usual certificate that he had taken a sample of venous blood using normal medical procedures. But defence counsel required that he give oral evidence, with the result that the certificate was inadmissible.^[8] The Land Transport Act defines a blood specimen as “a specimen of venous blood taken in accordance with normal medical procedures”.^[9] There was evidence that Mr Ludemann consented to having a venous blood sample taken, and Dr Smith gave evidence that he had taken a blood specimen from Mr Ludemann’s arm using normal medical procedures. But the doctor did not specify that it was venous, as opposed to arterial, blood. Defence counsel relied on the omission to contend that the police had failed to prove an essential ingredient of the charge. Judge Maze disagreed, holding that there had been reasonable compliance for purposes of s 64(2) of the Act.^[10]

The appeal

[6] On appeal, Whata J found it arguable that a “blood specimen”, as defined, had not been taken, and he further found it arguable that the omission was not a procedural irregularity that s 64(2) might cure but a failure to prove an essential element of the offence. He was disposed to draw the inference from the doctor’s viva voce evidence that the sample was venous.^[11] We agree with Ms Jelas that the inference was available. But rather than reach a final view, the Judge took what he described as a precautionary approach by allowing the police to remedy the omission. He identified two courses of action: he might remit the case to the District Court for reconsideration, or he might call for evidence. He chose the latter course, reasoning that it was more expedient, and adjourned for the evidence.^[12]
[7] Dr Smith duly swore an affidavit confirming that the specimen was venous blood. Mr Ludemann’s then counsel, Mr Simperingham, declined Whata J’s invitation to cross-examine the doctor. He maintained that the High Court could only quash the conviction or remit the proceeding to the District Court for rehearing.
[8] The appeal was then dismissed without a further hearing. In his judgment of 28 June 2013 Whata J held that under s 131 of the Summary Proceedings Act 1957 (SPA) he need not remit the matter to the District Court and that under s 119(3) he might receive the evidence.^[13] On the merits, it was better to receive the evidence than to allow the appeal, for the policy of the Land Transport Act is that offenders should not escape on technicalities.^[14]
[9] Mr Blake was instructed on the application for leave to appeal. In his judgment of 15 August the Judge found that the appeal focused on the exercise of his discretion rather than any point of law.^[15] He accordingly declined to extend time for bringing the leave application.

Jurisdiction

[10] Both counsel assumed that this Court has jurisdiction under s 144 of the SPA to entertain the application. There is settled authority to the contrary. In O’Byrne v Waimakariri District Council this Court held that we are without jurisdiction where the High Court, having dismissed the substantive appeal, refuses an extension of time to seek leave to appeal.^[16] A contrary view of the legislation is possible, but counsel were not able to assist us and, as we now go on explain, we would not grant leave on the merits in any event.

The application for leave in this Court

[11] Mr Blake emphasised that under ss 121 and 131 of the SPA the High Court might relevantly confirm the conviction or set it aside, and if the latter course was chosen, the Court might remit the matter to the District Court with a direction that it be reheard. In this case the Court chose to confirm the conviction, relying on the further evidence of Dr Smith. Counsel accepted that the High Court may receive further evidence on appeal under s 119(3) of the SPA, but only where the evidence could not reasonably have been adduced at the District Court hearing. Section 119(3) provides:

119 Procedure on appeal

...

(3) The High Court shall have the same jurisdiction and authority as the District Court, including powers as to amendment, and shall have full discretionary power to hear and receive further evidence, if that further evidence could not in the circumstances have reasonably been adduced at the hearing, and for that purpose shall have the same jurisdiction and authority to make any order under section 31 or section 32 of this Act as the Court from whose decision the appeal is made, or a District Court Judge, had.

[12] We observe that this submission overlooks the proviso to s 119(2), which gives the High Court discretion to rehear the whole or any part of the evidence. Ms Jelas took the point that what Whata J did here amounted to rehearing part of Dr Smith’s evidence. The Judge himself made that point, stating in the leave decision that it had not been necessary to rely upon s 119(3).^[17] In any event, as the Judge observed, Mr Blake’s submissions on this issue amounted to a challenge to the exercise of the High Court’s discretion to hear further evidence on a particular set of facts.
[13] Perhaps recognising this last difficulty, counsel also argued before us that the High Court lacked jurisdiction to hear further evidence, for the appeal was brought on a point of law and further evidence may be received only in appeals on questions of fact. This submission raises a question of law, but it has no merit. As a matter of construction, the Court’s power to consider evidential questions is not confined to cases where the appellant appeals on a question of fact. It is enough that a question of fact arises, as it did here.
[14] To elaborate, s 121(1) of the SPA provides that the High Court shall hear and determine every general appeal:

121 High Court to hear and determine appeal

(1) The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.

Section 119(1) provides that all general appeals are by way of rehearing, and subsection (2) of that section envisages that the evidence in the District Court will be brought before the High Court “[w]here any question of fact is involved in any appeal”.

[15] What is left is a challenge to the exercise, on particular facts, of the High Court’s jurisdiction to receive further evidence. This raises no question of law of general or public importance. Nor is there any question of a miscarriage. Even if Whata J erred in the exercise of his discretion, the end result must be, as the Judge recognised, a rehearing in the District Court at which Mr Ludemann would inevitably be convicted. In his written submissions Mr Blake sought to argue otherwise, relying on authorities decided under former legislation. But this was a purely technical failure of proof, as opposed to substance, and the policy of the Land Transport Act is that offenders should not escape through technical and unmeritorious defences.^[18]
[16] We dismiss the application for leave to appeal.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Summary Proceedings Act 1957, s 144(3).

^[2] Police v Ludemann DC Timaru CRI-2012-076-205, 22 November 2012.

^[3] Ludemann v Police [2013] NZHC 1544 [Dismissal decision].

^[4] Land Transport Act 1998, s 56(2).

^[5] Whata J dismissed the appeal on 28 June 2013: the application for leave to appeal to this Court was filed on 25 July, six days out of time. Whata J dismissed it on 15 August 2013: Ludemann v Police [2013] NZHC 2062 [Leave decision].

^[6] Ludemann v Police [2013] NZHC 1238 at [27] [Adjournment decision].

^[7] R v Slater [1997] 1 NZLR 211 (CA).

^[8] Land Transport Act, s 79(1).

^[9] Section 2.

^[10] Section 64(2) provides there is no defence if there has been reasonable, but not strict, compliance with the procedure for taking a blood specimen, amongst other procedures.

^[11] Adjournment decision at [23].

^[12] At [27].

^[13] Dismissal decision at [8].

^[14] At [9]–[10].

^[15] Leave decision at [25].

^[16] O’Byrne v Waimakariri District Council [2012] NZCA 374. See Tocker v Police CA127/94, 2 August 1994 and Taufoou v Department of Labour [1981] 1 NZLR 573 (CA).

^[17] At [16].

^[18] Aylwin v Police [2008] NZSC 133, [2009] 2 NZLR 1 at [17].