Mabee v Police [2017] NZCA 570 (7 December 2017)

Last Updated: 14 December 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA533/2017 [2017] NZCA 570
BETWEEN	VAUGHAN GROSVENOR MABEE Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Winkelmann, Venning and Duffy JJ
Counsel:	ASP Tobeck for Applicant Z A Fuhr for Respondent
Judgment: (On the papers)	7 December 2017 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against conviction is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

[1] Mr Mabee seeks leave to bring a second appeal against his conviction for driving with excess blood alcohol, his first appeal having been dismissed by Dunningham J.^[1]
[2] Before granting leave to bring a second appeal this Court must be satisfied either that:^[2]

• (a) the appeal involves a matter of general or public importance, such as an issue of general principle or of general importance in the administration of the criminal law by the Courts;^[3] or
• (b) a miscarriage of justice may have occurred or may occur unless the appeal is heard.

[3] Mr Mabee argues that both grounds support his application. The respondent opposes the grant of leave.

Background

[4] In November 2015 Mr Mabee was involved in a car accident. Although he left the scene, police found him some time later at his employer’s home. The police administered a screening breath test to him, which indicated that he was over the legal limit. Mr Mabee was asked to accompany police to the Queenstown Police Station to undergo an evidential breath test, blood test or both. When they were on the way to the Police Station, Mr Mabee told the accompanying officers that he had knocked his head during the accident. The police therefore diverted to Queenstown Lakes District Hospital.
[5] Mr Mabee was examined by Dr Wills on arrival at the hospital. Two police officers were present through Dr Wills’ initial examination and, at its conclusion, one of the officers informed Mr Mabee that he would be required to permit a blood sample to be taken, and cautioned him. Dr Wills then spoke to Mr Mabee. At his direction, a nurse took the specimen, checking first with Mr Mabee that he consented. The nurse then sealed the blood specimen collection kit and handed it to one of the police officers present, Constable Hargraves, who later sent it to the ESR. Analysis of that blood specimen found 137 milligrams of alcohol per 100 millilitres of blood, therefore in excess of the 80-milligram limit.^[4]

Proposed grounds of appeal

[6] Mr Mabee seeks leave to argue three grounds of appeal as follows:

• (a) police presence during Mr Mabee’s examination at Queenstown Hospital was a breach of the Land Transport Act 1998 and/or an unreasonable and arbitrary detention. In the circumstances evidence from the sample obtained should be ruled inadmissible;
• (b) the procedure set out in s 73 of the Land Transport Act for taking a blood specimen was not followed at the hospital; and
• (c) the procedure set out in s 74(4) for dealing with a blood specimen was not followed in this case.

First proposed ground of appeal: police presence

[7] Mr Mabee intends to argue on appeal that s 73 of the Land Transport Act precludes police presence during the initial examination, and that their presence at the hospital amounted to an unlawful and arbitrary detention, and an abuse of police powers. Mr Mabee says that police presence during the examination may have had a prejudicial effect on his examination and treatment.
[8] Most of these arguments were addressed and rejected by Dunningham J in the High Court. She held:^[5]

While s 73 places control of the process of the blood specimen in the hands of medical staff, that is so they can ensure the taking of blood would not be prejudicial to the person’s proper care or treatment. Nothing in that precludes an enforcement officer being present. There is clearly no prohibition on an enforcement officer being present when a blood specimen is taken under any other circumstance. It may be that a doctor may choose to undertake the examination process prior to the taking of the specimen in private, but that is for the doctor to direct having regard to the patient’s needs. There is no suggestion that in this case the doctor thought it necessary to assess the patient in private. In any event, that would not be relevant to whether s 73 was complied with, though a failure to provide privacy where it was requested by a doctor could give rise to other legitimate complaints.

[9] We see no error in her analysis. We note the absence of argument that the medical care and attention Mr Mabee received was actually prejudiced (rather than that a notional risk of prejudice had been created). Dr Wills had completed his examination of Mr Mabee before the blood specimen was taken and, on the blood specimen certificate issued under s 75 of the Land Transport Act, certified “before the blood specimen was taken from the person I examined him/her and I was satisfied that taking the specimen would not be prejudicial to his/her proper care or treatment”. Pursuant to s 75 of the Land Transport Act that certificate is sufficient evidence, in the absence of proof to the contrary, of the matters stated in it.
[10] The argument that Mr Mabee was arbitrarily detained has no prospects of success in the light of the provisions of s 69 of the Land Transport Act. That provision authorises police to require persons who have failed a screening test to accompany them to provide a blood specimen and to remain at a place (which in this case was a hospital) until the blood test has been taken.
[11] To conclude in respect of this ground of appeal, Mr Mabee has failed to identify any tenable argument that the Judge erred in her treatment of these arguments. We assess this proposed ground of appeal as being without merit.

Second proposed ground of appeal: compliance with procedure for taking blood specimen at hospital

[12] Under s 73(5)(c) of the Land Transport Act the medical practitioner must tell the person that the blood specimen is being taken for evidential purposes. Mr Mabee wishes to argue that the evidence establishes that it was a police officer, not Dr Wills, who told him the blood specimen was being taken for evidential purposes.
[13] Dunningham J rejected this ground of appeal on the basis that there was adequate evidence that the s 73(5)(c) procedure had been followed.^[6] We agree with her assessment. Dr Wills had signed a s 75 certificate recording that before the blood specimen was taken he had told Mr Mabee that the blood specimen was being taken under s 73 for evidential purposes. Although Dr Wills’ evidence in the District Court was that he could not specifically recall what he said at the time, he did say that he would have followed the usual procedure as evidenced by the blood specimen certificate he signed. As noted, in the absence of proof to the contrary, that certificate is sufficient evidence of the matters stated in it.
[14] Again, Mr Mabee has not identified an arguable error in the reasoning of the Judge. We assess this proposed ground of appeal as having no merit.

Third proposed ground of appeal: compliance with procedure for dealing with blood specimen

[15] The evidence in connection with the handling of the blood specimen was as follows. The nurse took the blood sample, placed it in a blood specimen kit and handed it to a police officer. The nurse did not give any direction to the police officer, nor did the nurse know what the police officer did with it. The police officer took the sample to the police station and placed it in a refrigerator before sending it to ESR, an approved laboratory, for testing.
[16] Mr Mabee wishes to argue that the nurse breached his obligations under s 74(4) of the Land Transport Act which provides as follows:

74. Procedure for dealing with blood specimens

• (1) A blood specimen taken under section 72 or 73 must be dealt with in accordance with the relevant blood specimen collecting procedure.

...

(4) In the case of a blood specimen taken under section 73, the medical practitioner or medical officer by whom the specimen was taken must,—

(a) within 7 days after the date on which the specimen was taken, deliver or cause to be delivered (whether by courier or otherwise), or post or cause to be posted by registered post, the blood specimen to an approved laboratory for its analysis and custody in accordance with the relevant blood specimen collecting procedure; and

(b) if, at the time the blood specimen is taken, there is more than 1 approved laboratory, give the Commissioner a written notification—

(i) identifying the approved laboratory to whom the blood specimen was (or is being) delivered or posted; and

(ii) naming the person from whom the blood specimen was taken.

[17] Mr Mabee contends that handing the sample to the officer was insufficient to “cause” the sample to be delivered under s 74(4)(a), and that a further consequential breach flowed from this. Because the nurse did not give any instructions to the officer, it was impossible for the nurse to comply with s 74(4)(b).
[18] The Judge was satisfied that given the broad wording of s 74(4) and the pragmatic approach adopted to its interpretation in other cases, such as Aualiitia v Ministry of Transport,^[7] it was sufficient in this case for the doctor to hand the blood specimen to the enforcement officer for the purpose of arranging delivery.^[8] She was satisfied that this met the requirement to “cause” it to be delivered. In any event, if she was wrong she was satisfied that the method of effective delivery clearly met the “reasonable compliance” test in s 64(2) of the Land Transport Act.^[9]
[19] We agree with the Judge that the permissive language of s 74(4) contemplates multiple methods by which a medical officer can dispatch a blood specimen to the laboratory and that this can include utilising a police officer to organise that dispatch. As the Judge observed, the Courts have liberally construed a requirement to “cause” delivery”.^[10] The point does not, however, address the nurse’s failures to specify to which approved laboratory the police officer should send the specimen and to notify the Commissioner of Police of the laboratory to which the sample was sent.
[20] Nevertheless, we agree with Dunningham J that any failure to comply with s 74(4) in this case was of a technical nature, to which s 64(2) of the Land Transport Act applies. Section 64(2) provides:

(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.

[21] This provision clearly applies in respect of the failure to specify the laboratory and to give the Commissioner the required notice. The specimen was in fact delivered to an approved laboratory and there is no suggestion that it was tampered with in any way. There has therefore been reasonable compliance with the provisions and there is no risk of a miscarriage of justice.
[22] We note the following statement by the Supreme Court in Aylwin v Police which we consider applies with full force in this case:^[11]

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 the clear Parliamentary indication.

Conclusion

[23] We are satisfied that each of the proposed grounds of appeal has no merit. Where a proposed appeal has no prospect of success it cannot meet the threshold of either raising a matter of general or public importance or showing that a miscarriage of justice may occur unless the appeal is heard. Mr Mabee has had the opportunity to pursue these technical and unmeritorious arguments on two previous occasions. There is no reason why he should be afforded that opportunity a third time.

Result

[24] The application for leave to bring a second appeal against conviction is declined.

Solicitors:
Andrew Marshall, Winton for Applicant
Crown Law Office, Wellington for Respondent

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^[1] Mabee v Police [2017] NZHC 2015.

^[2] Criminal Procedure Act 2011, s 237.

^[3] See McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37].

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

^[5] Mabee v Police, above n 1, at [54].

^[6] At [34].

^[7] Aualiitia v Ministry of Transport [1983] NZLR 727 (CA) at 730. In this case the Court was discussing s 58B(6) of the Transport Act 1962.

^[8] Mabee v Police, above n 1, at [47].

^[9] At [48].

^[10] See for example Aualiitia v Ministry of Transport, above n 7.

^[11] Aylwin v New Zealand Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].