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Court of Appeal of New Zealand |
Last Updated: 19 October 2015
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
9 September 2015 |
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Court: |
Ellen France P, Harrison and Winkelmann
JJ |
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Counsel: |
M D Downs and J D Slankard for Appellant
C S Withnall QC for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Winkelmann J)
[1] Mr Harrison was convicted of one charge of driving with excess blood alcohol causing death, following a defended hearing in the Christchurch District Court.[1] He had defended the charge on the basis that he was a passenger, not the driver of the car, and also on the basis that the requirements of s 73 of the Land Transport Act 1998 (the Act) had not been followed when an evidential blood specimen was taken at the hospital.
[2] Mr Harrison was sentenced to two years, four months’ imprisonment, disqualified from holding or obtaining a driver’s licence for a period of two years and ordered to pay reparation to the family of the victim.[2] He appealed his conviction to the High Court, on the grounds that District Court Judge Garland had been wrong to find that the evidential blood specimen had been taken in reasonable compliance with the requirements of s 73 of the Act and also that he had been wrong to find that the police had proved beyond reasonable doubt that Mr Harrison was the driver.[3]
[3] In the High Court Whata J rejected the ground of appeal that it was not reasonably available to the District Court Judge to find that Mr Harrison was the driver of the vehicle involved in the accident causing the death of the victim. However, he allowed the appeal on the first ground. He held that the specimen had not been taken by the doctor in “immediate charge” of Mr Harrison’s care, as required by s 73(3) of the Act, and that the prosecution could not invoke the reasonable compliance provisions of s 64(2) of the Act, which provides it is no defence that certain provisions have not been complied with if there is reasonable compliance.
[4] Whata J granted leave to appeal on the following questions of law:[4]
- Was I correct to hold that Dr Weaver was not, in terms of s 73(3) of the Land Transport Act 1998, the medical practitioner in immediate charge of Mr Harrison at the time the blood specimen was taken? and
- If so, was I correct to hold that strict non-compliance with s 73(3) is not curable by recourse of the "reasonable compliance" proviso in s 64(2) of the Act?
[5] Mr Harrison has given notice that should this Court answer either of the above questions in the negative, he challenges the High Court’s finding that he was the driver of the vehicle at the time of the accident.
A preliminary issue
[6] This is an appeal under the provisions of s 144 of the Summary Proceedings Act 1957. That section provides relevantly as follows:
144 Appeal to Court of Appeal
(1) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under s 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal ...
[7] Mr Harrison’s proposed cross-appeal relates to a finding of fact. We are told that at the time leave to appeal was dealt with in the High Court, counsel agreed this Court has jurisdiction to address this further factual issue, taking the view that s 144B(a) confers the necessary powers upon the Court. Section 144B provides:
144B Powers of Court of Appeal and Supreme Court on appeal
On an appeal under section 144 or section 144A to the Court of Appeal or the Supreme Court,—
(a) the court appealed to has the same power to adjudicate on the proceeding that the High Court had; and
(b) the same judgment must be entered in the High Court, and the same execution and other consequences and proceedings follow, as if the decision of the court appealed to had been given in the High Court.
[8] Sections 144 and 144B must be read together. The latter operates to give this Court the same powers in connection with the disposal of an appeal as the Court appealed from, but only when adjudicating upon the questions of law addressed under s 144. It is an unlikely reading, and one which we reject, that this provision operates backwards to confer a power to hear appeals on questions of fact as well as on questions of law. We therefore give no further consideration to the ground of appeal Mr Harrison seeks to advance in connection with the factual finding that he was the driver of the car. We see nothing unfair in this for Mr Harrison. There are concurrent findings against him on this point, in the District Court and the High Court.[5]
Factual background
The case against Mr Harrison
[9] The case against Mr Harrison was that he and the victim were drinking together at a local hotel in the late afternoon and early evening of 23 December 2012, before setting out in the victim’s vehicle in the direction of the farm where they both worked. After crossing the Waiau Bridge and turning left on to Iverachs Road, the vehicle failed to take a bend, leaving the road and overturning. The victim was thrown from the vehicle and was killed. The police alleged that Mr Harrison was the driver.
[10] Mr Harrison was taken to Christchurch Hospital and admitted for treatment. Dr Weaver was on duty and took a blood specimen from Mr Harrison. When this specimen was tested, Mr Harrison’s blood was found to contain 144 milligrams of alcohol per 100 millilitres of blood, above the legal limit.[6]
[11] The blood specimen was taken pursuant to s 73 of the Act, which provides in material part:[7]
73 Who must give blood specimen in hospital or surgery
(1) A person who is under examination, care, or treatment in a hospital or doctor’s surgery must permit a blood specimen to be taken from the person by—
(a) the medical practitioner who is in immediate charge of the examination, care, or treatment of the person; or
(b) another medical practitioner or a medical officer.
...
(3) The medical practitioner who is in immediate charge of the examination, care, or treatment of the person in a hospital or doctor’s surgery—
(a) may take a blood specimen or cause a blood specimen to be taken by another medical practitioner or a medical officer; and
(b) must either take a blood specimen or cause a blood specimen to be taken by another medical practitioner or a medical officer, if an enforcement officer requests him or her to do so,—
whether or not the person has consented to the taking of the specimen and whether or not the person is capable of giving consent.
...
(5) Despite subsection (3), a blood specimen may be taken under any provision of this section only if the medical practitioner—
(a) has reasonable grounds to suspect that the person is in the hospital or doctor’s surgery as a result of—
(i) an accident or incident involving a motor vehicle:
(ii) an injury or a medical condition arising subsequent to an accident or incident involving a motor vehicle; and
(b) has examined the person and is satisfied that the taking of the blood specimen would not be prejudicial to the person’s proper care or treatment; and
(c) tells the person (unless the person is unconscious) that the blood specimen is being or was taken under this section for evidential purposes.
...
[12] Dr Weaver completed a certificate under s 75 of the Act as he was required to do. He certified:
- (a) He was in immediate charge of the examination, care, or treatment of Mr Harrison and that he had taken a blood specimen from him pursuant to s 73 of the Act;
- (b) When the specimen was taken he had reasonable grounds to suspect that Mr Harrison was in hospital as a result of an accident involving a motor vehicle;
- (c) Before taking the blood specimen or causing the specimen to be taken from Mr Harrison, he had examined him and was satisfied that the taking of the specimen would not be prejudicial to his proper care or treatment; and
- (d) Before the blood specimen was taken, he had told Mr Harrison that the specimen was being taken pursuant to s 73 for evidential purposes.
[13] Section 75(1) provides that with certain limited exceptions, production of a s 75 certificate is sufficient evidence, in the absence of proof to the contrary, of the matters that are stated in the certificate and “of the sufficiency of the authority and qualifications of the person by whom the certificate is made ...”.
District Court hearing
[14] When the case against Mr Harrison came on for hearing in the District Court, Dr Weaver was called to give evidence. Part of his evidence was given by written brief of evidence, in which he stated he was on duty in the emergency department of Christchurch Public Hospital when Mr Harrison was brought to him for medical treatment. In oral evidence he added that he had taken over Mr Harrison’s care from the evening doctor, Dr Kuang.
[15] Dr Weaver was then cross-examined by Mr Withnall QC. He was referred to medical notes which recorded that he took over care of Mr Harrison from Dr Kuang at about 10.30 or 11 pm. The certificate recorded that the blood specimen had been taken at 9.50 pm.
[16] The following question and answer exchange then occurred:
- ... So up until the time you took over, Dr Kuang was the medical practitioner in immediate charge of Mr Harrison’s care, examination and treatment?
- That’s what it appears like from my review of his notes, yes.
[17] Dr Weaver was re-examined on this issue. He was asked by counsel for the police how it was that he came to be the doctor taking the blood specimen from Mr Harrison, and to answer that question from his memory. He responded:
- From my memory that it would be routine whoever was responsible for the patient at the time when the police came to collect the sample that whoever the doctor who was taking care of the patient would be the doctor who took the blood sample.
...
A. I was his caring doctor at the time.
...
A. I, I can’t be sure at that time.
A. No, I can’t recall that, sorry.
[18] In both the District Court and the High Court it was argued for Mr Harrison that Dr Kuang was the doctor in immediate charge of Mr Harrison, so that Dr Weaver did not have the requisite authority to collect the blood specimen. This argument succeeded in both courts.[8]
First question on appeal: was the High Court Judge correct to hold that Dr Weaver was not, in terms of s 73(3) of the Land Transport Act 1998, the medical practitioner in immediate charge of Mr Harrison at the time the blood specimen was taken?
[19] It is helpful to begin with the findings of the District Court Judge on this point. His assessment of the evidence was as follows:[9]
The evidence on this point from Dr Weaver was contradictory. Clearly the doctors were in the process of changing shifts and Dr Weaver had assumed a hands on care by 9.50pm. I conclude that while Dr Kuang was strictly speaking still the MPIC of the defendant’s care until between 10.30 and 11 pm, in fact the doctors were in the process of changing shifts and Dr Weaver had assumed the “hands on” care of the defendant by 9.50 pm.
[20] Following an extensive review of the authorities the Judge concluded:
[50] In my view the drafting of section 73 is not capable of being interpreted as alIowing for concurrent medical practitioners to be in immediate charge of the examination, care and treatment of a person. But for Dr Weaver's candid concession that Dr Kuang was still the MPIC until between 10.30 and 11pm, I would have been persuaded as a matter of fact that Dr Weaver was the MPIC at the time the blood specimen was taken because he had clearly assumed the "hands on" care of the defendant. Without doubt a doctor/patient relationship existed between Dr Weaver and the defendant at that time notwithstanding the fact that Dr Kuang was still strictly speaking, in charge of the defendant's care. Having said that, I am unable to ignore Dr Weaver's concession that at the time the blood specimen was taken from the defendant, Dr Kuang was still the MPIC of the defendant's care.
[21] The Judge therefore concluded that Dr Weaver was not the medical practitioner in immediate charge of the care, examination, or treatment of Mr Harrison at the time that the blood specimen was taken.[10]
[22] In the High Court Whata J reached the same conclusion. After a careful review of s 73, he said that the natural meaning of the phrase “medical practitioner in immediate charge” is the medical practitioner who has primary responsibility for the care of the patient.[11] He continued:
[43] The necessary implication of all of this is that while all medical practitioners may be allowed by the affected person to take blood and all of them must believe on reasonable grounds that the person has had an accident, only the medical practitioner in immediate charge, or a medical practitioner instructed by him, may take blood with or without the consent of the patient. Furthermore, as the Court of Appeal stated in R v Cameron:[12]
The crucial point is that it must be a doctor in immediate charge who takes the blood specimen, or causes it to be taken. That requirement was obviously introduced in the interests of the patient.
[23] He concluded:
[46] Accordingly, Dr Weaver's acceptance that he did not take over from Dr Kuang until between 10.30 pm - 11 pm meant that he was not the medical practitioner in fact "in immediate charge" of the appellant at the time the blood sample was taken. Dr Weaver was also unsure what his role was at that time and he could not recall how he was located as the doctor to take the blood. Therefore the blood sample was not taken in compliance with s 73(3).
Analysis
(a) The meaning of in “immediate charge”
[24] The place to begin consideration of this question is the words of the statute. The medical practitioner who must form the requisite view that the person has been involved in an accident involving a motor vehicle, and must either take, or direct the taking of, a blood specimen, is “the” medical practitioner who is in “immediate charge of the examination, care, or treatment of the person”.[13]
[25] The use of the word “immediate” is significant. It suggests both physical and temporal proximity. In our view the use of this word as a qualifier confirms that while other medical practitioners may be in charge of the treatment of that person in a hierarchical or official sense for hospital purposes, it is the medical practitioner attending upon the patient at the relevant times who has the authority under s 73 to take the blood specimen. It is the person in that proximate relationship who must be satisfied of the reasonable grounds to suspect the person is in hospital as a result of an accident involving a motor vehicle under s 73(5)(a), who must undertake the examination of the patient and be satisfied following that examination that the taking of the blood specimen would not be prejudicial to the person’s proper care or treatment under s 73(5)(b), and who must advise the patient of the taking of the specimen under s 73(5)(c). Proximity to the patient is essential for the undertaking of all of these tasks.
[26] We also think it implicit in the section that there must exist a doctor/patient relationship between the medical practitioner and the patient. The section only operates when someone is in a hospital or doctor’s surgery. Moreover the section balances the power it creates to take the blood by placing someone in a therapeutic relationship with the patient in control of that process. This is the context for the prerequisite to the taking of blood that the doctor is satisfied the procedure will not prejudice the care or treatment of the patient.
[27] Speaking of a statutory predecessor of s 73, in Alexander v Police this Court said:[14]
It is a prerequisite for the use of s 58D that a doctor-patient relationship exists between the medical practitioner and the person from whom blood is taken by that medical practitioner, another medical practitioner or an authorised person.
[28] To similar effect is the decision of this Court in R v Cameron.[15] In that case the doctor who examined Mr Cameron had not attended upon him before being asked by the nurse, who was passing on the request of the enforcement officer, to take the blood specimen. The doctor examined Mr Cameron for the first time to determine whether the taking of a blood specimen would be prejudicial to him. Having satisfied himself it would not be prejudicial he was then called away to attend a more urgent case, although the evidence was that he would have continued to treat Mr Cameron were it not for that case. The District Court Judge’s finding that the doctor was in immediate charge of the appellant’s examination, care or treatment for the purposes of the section was upheld. This Court said:[16]
While Dr Craig had had no dealings with the appellant before he received the request through the nurse, that request continued to speak and authorised him, indeed required him, when he became in charge of the appellant to take the blood specimen. At the time he did so there was clearly a doctor and patient relationship between himself and the appellant: see Alexander v Police (CA415/97, judgment of 4 May 1998).
The Court considered the crucial point to be that “it must be a doctor in immediate charge who takes the blood specimen, or causes it to be taken”.[17] This last passage is set out in the High Court judgment, but an error appears in the quotation there, as the word “immediate” is omitted.[18]
[29] We accept that the scheme of the legislation also imports the requirement that the doctor taking or directing the taking of the s 73 specimen must have authority to make decisions in respect of the patient’s examination, care or treatment.[19] That follows from the notion of being in “immediate charge” of that aspect or those aspects of the patients care. This is also reinforced by the language of s 75, which provides that a s 75 certificate is sufficient evidence, in the absence of proof to the contrary, of matters including the sufficiency of the authority and qualifications of the person by whom the certificate is made.[20]
[30] In the case of New Zealand Police v Irwin the requirements of s 58D (the statutory predecessor of s 73) were found not to have been complied with where a junior doctor took the specimen.[21] However, the factual findings there were that the doctor was only involved in performing isolated tasks, and had not examined the patient herself. In those circumstances, the Judge said that, “the doctor who took the specimens was not herself in charge of this patient, and so could not without superior authority or direction take the specimen”.[22]
(b) Approach to fact finding in the District Court and High Court
[31] In the light of the principles we have identified, we are satisfied that both the District Court and High Court Judges erred in finding that Dr Weaver was not the doctor in immediate charge of Mr Harrison at the relevant times.
[32] The District Court Judge was satisfied that Dr Weaver had assumed the hands on care for Mr Harrison, and “without doubt” a doctor/patient relationship existed between them when the specimen was taken.[23] He nevertheless said that Dr Weaver’s “candid” concession that Dr Kuang was the medical practitioner in charge was decisive because s 73 does not allow two practitioners to be in “immediate charge”. We do not see that concession as at all determinative. Once it was put in issue just who was the doctor in immediate charge, there was a mixed question of law and fact which the Judge had to decide by reference to the evidence. A witness’s concession as to what is a mixed issue of fact and law should not have deterred the Judge from undertaking that task.
[33] Mr Downs also argued that the District Court Judge erred in finding that two practitioners could not simultaneously be in immediate charge of a patient because the phrase “the medical practitioner who is in immediate charge” suggests there can only be one such practitioner at any time. On the facts of this case that issue does not arise because Dr Kuang was not attending upon Mr Harrison at the relevant time, and so was not in immediate charge of him. We prefer not to address it in the hypothetical.
[34] In the High Court the Judge also treated as determinative Dr Weaver’s acceptance that he did not take over from Dr Kuang until after the blood specimen was taken. The Judge said it followed that he was not the doctor in immediate charge of Mr Harrison, erroneously equating the hospital’s concept of the responsible clinician with the statutory concept of the clinician in immediate charge. The Judge also said he was not satisfied on the balance of probabilities that Dr Weaver assumed “hands on” responsibility because Dr Weaver was unsure what his role was at the time he took the specimen and could not recall how he was located as the doctor to take the blood.[24]
(c) Our approach
[35] Because of the difficulties we have identified with the judgments in the District Court and High Court, we think it necessary to clarify the approach that should have been taken to the issue of whether Dr Weaver was the medical practitioner in immediate charge of Mr Harrison at the time he took the specimen.
[36] We start with the certificate given under s 75. The certificate is proof of its contents unless the defendant shows that the contents are untrue, the burden of proof in that regard resting upon the defendant to the civil standard of the balance of probabilities. In light of Dr Weaver’s production of the certificate, it was not for the prosecution to establish that Dr Weaver was the doctor in immediate charge when he took the specimen, it was for Mr Harrison to establish that he was not. We note that in the High Court the Judge erroneously reversed this onus of proof.
[37] In the certificate Dr Weaver said he was the doctor in immediate charge. On cross-examination Dr Weaver accepted counsel’s proposition that Dr Kuang was the doctor in immediate charge. We have reservations about attaching any weight to a witness’s acceptance from counsel of a proposition which mixes questions of fact and law. However, there is something to Mr Withnall’s proposition that Dr Weaver’s certification that he was the doctor in immediate charge was in itself an assertion which mixed questions of fact and law and if he could certify to that effect, he must also be able to withdraw that certification.
[38] The Judge was nevertheless left with the balance of the certificate. Dr Weaver certified that he had carried out the examination before blood was taken and that he was satisfied the taking of the specimen would not be prejudicial to Mr Harrison’s proper care or treatment. He was not challenged on these aspects of the certificate. Nor was it put to him that he did not have authority to undertake the examination and make the decision in connection with the blood specimen. There was no other evidence to suggest that Dr Weaver did not have this authority. Dr Weaver’s evidence was that Mr Harrison was brought to him for medical treatment and he examined Mr Harrison and took a blood specimen. It is improbable that he was in any sense a rogue doctor acting beyond his authority.
[39] The issue for determination was whether Dr Weaver was attending upon Mr Harrison in the course of a doctor/patient relationship at the time he examined him and took the specimen, and whether at that time he had the authority to make decisions in connection with Mr Harrison’s examination, care, or treatment. The remaining content of the certificate together with Dr Weaver’s evidence established these necessary facts. Mr Harrison neither produced nor elicited evidence to contradict this.
[40] It follows that the answer to the first question on appeal is no, the High Court Judge was not correct to find Dr Weaver was not, in terms of s 73(3), the medical practitioner in immediate charge of Mr Harrison at the time the blood specimen was taken.
Second question: if so, was the High Court Judge correct to hold that strict noncompliance with s 73(3) is not curable by recourse to the “reasonable compliance” proviso in s 64(2) of the Act?
[41] Because we have answered the first question in the negative, we do not need to address this question. The appellant asked us to nevertheless proceed to do so. We will briefly address argument we heard on the question.
Factual background.
[42] The District Court Judge held that although Dr Weaver was not the doctor in immediate charge, there had nevertheless been reasonable compliance with the requirements of s 73 so that s 64(2) of the Act applied.[25] Section 64(2) provides:
64 Defences
...
(2) 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.
...
[43] In the High Court Whata J held that s 64(2) could not apply to save noncompliance with the requirements of s 73(3).[26] He regarded himself as bound to reach that view by an earlier decision of this Court in R v O’Callaghan (No 2).[27] He also said that such a strict approach to statutory interpretation was consistent with the assumption that very clear statutory words are required to provide dispensation for an unlawful violation of personal integrity.[28]
[44] In O’Callaghan (No 2) the issue was whether the medical practitioner believed that his patient was in hospital as a result of an accident involving a motor vehicle. In the High Court the Judge held there was no evidence that the doctor did hold that belief at the relevant time. However, he found that there had been reasonable compliance with s 58D, the statutory predecessor of s 73.[29]
[45] On appeal all members of this Court agreed that it was the inevitable inference from the evidence that the doctor did have that belief at the relevant time.[30] The majority view was that if he had not, there would not have been reasonable compliance for the purposes of s 55(5), the statutory predecessor of s 64(2). Woodhouse P said:[31]
In my opinion a failure to satisfy that essential precondition before embarking upon the process of taking a blood specimen involves not merely a fundamental departure from what is contemplated by the Act: it involves taking action which is impermissible. According I am satisfied that s 55(5) could not be used to cure the problem...
Agreeing with that approach, McMullin J said:[32]
There is a fundamental difference between the non-observance of a machinery step in the taking of a blood sample where the substratum for the taking of the sample has been laid, and the non-existence of the substratum itself upon which the jurisdiction is founded. For these reasons I think that s 55(5) could not be applied.
[46] Savage J dissented on this point. He said of s 55(5):[33]
It is a section that is very wide in its terms and unrestricted in its approach. Its words are plain: “any provision or provisions” that “have not been strictly complied with or have not been complied with at all”. This section draws no distinction between “fundamental” provisions and other provisions. In my view it is difficult to find acceptable reasons for saying that one or more of the seven requirements I have outlined is or are fundamental while the others are not.
[47] Somewhat counter-intuitively the Crown submits that Whata J was correct in construing the majority decision in O’Callaghan as supporting the proposition that s 64 cannot apply where there has been non-compliance with the provisions of s 73(5). However the Crown invites us to take a different view, and make clear that there is no absolute bar to the application of s 64 where there has been noncompliance with s 73(5).
[48] We do not read the comments of the majority in O’Callaghan (set out above) as authority for the broad proposition that s 64 can have no application where there has been non-compliance with s 73(5).[34] Both Judges say that the reasonable compliance provision could not be used to cure the particular defect, which was, on the High Court Judge’s finding, that the doctor did not believe the patient had been in a motor vehicle accident when he took the blood specimen. The disagreement in the Court of Appeal on this issue may well have arisen because when the Court came to address the application of the reasonable compliance proviso, it did so in the context of a hypothetical scenario — the Court had already found there had been compliance with the section. Not only was it a hypothetical scenario, it was one they had discounted as improbable.
[49] We have decided to decline the Crown’s invitation to undertake a review of the application of s 64 to cases involving non-compliance with s 73(5). Because of the view we have taken on the first question on appeal, the issue does not arise on the facts of this case. We also do not think that the second question can or should be addressed on the basis of some hypothetical, alternative scenario.
Result
[50] Given our answers to the questions on appeal for which leave was given, we allow the appeal.
[51] Mr Harrison’s conviction for driving with excess blood alcohol causing death, entered by the District Court and quashed by the High Court, is therefore reinstated.
[52] It follows from the reinstatement of that conviction that the sentence of two years, four months’ imprisonment, two years’ disqualification from holding or obtaining a driver’s licence, and payment to the victim’s daughters of $5,000, imposed on Mr Harrison in the District Court, is also reinstated.
[53] Mr Harrison is ordered to surrender himself to Customer Service Counter at the Christchurch District Court at 10.00 am on Friday 16 October 2015.
Solicitors:
Crown Law Office, Wellington
for Appellant
C & F Legal Ltd, Nelson for Respondent
[1] Police v Harrison DC Christchurch CRI-2013-061-363, 23 April 2014 [District Court decision].
[2] Police v Harrison DC Christchurch CRI-2013-061-363, 11 July 2014.
[3] Harrison v Police [2014] NZHC 3126 [High Court decision].
[4] Police v Harrison [2015] NZHC 173.
[5] District Court decision, above n 1, at [35]; High Court decision, above n 3, at [76]–[77].
[6] It is an offence to drive or attempt to drive a motor vehicle on a road while the proportion of alcohol in a person’s blood exceeds 80 milligrams of alcohol per 100 millilitres of blood, Land Transport Act 1998, s 56(2).
[7] Doctor’s surgery, hospital and medical practitioners are all defined terms (s 2(1)).
[8] District Court decision, above n 1, at [51]; High Court decision, above n 3, at [46].
[9] District Court decision, above n 1, at [41].
[10] At [51].
[11] High Court decision, above n 3, at [40].
[12] R v Cameron CA46/98, 15 June 1998.
[13] Land Transport Act, s 73.
[14] Alexander v Police (1998) 4 HRNZ 632 at 639.
[15] R v Cameron, above n 12.
[16] At 4.
[17] At 3.
[18] High Court decision, above n 3, at [43].
[19] The practitioner may “cause a blood specimen to be taken by another medical practitioner”, s 73(3).
[20] Land Transport Act, s 75(1).
[21] New Zealand Police v Irwin HC Napier AP18/94, 22 September 1994.
[22] At 6.
[23] District Court decision, above n 1, at [50].
[24] High Court decision, above n 3, at [46] and [59].
[25] District Court decision, above n 1, at [59].
[26] High Court decision, above n 3, at [55].
[27] R v O’Callaghan (No 2) [1985] 1 NZLR 208 (CA).
[28] High Court decision, above n 3, at [55].
[29] R v O’Callaghan (No 2), above n 27, at 211.
[30] Per Woodhouse P at 212, per McMullin J at 214 and per Savage J at 217.
[31] At 212.
[32] At 213.
[33] At 217.
[34] We note that the quoted passages were obiter, in light of the Court’s factual finding that the doctor did have the requisite belief.
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