Haines v Police [2018] NZCA 323 (27 August 2018)

Last Updated: 10 October 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA647/2017 [2018] NZCA 323

	BETWEEN	QUENTIN STOBART HAINES Applicant
	AND	NEW ZEALAND POLICE Respondent

Hearing:	23 July 2018
Court:	Williams, Brewer and Thomas JJ
Appearances:	Applicant in person C A Brook and Z A Fuhr for Respondent
Judgment:	27 August 2018 at 3.00 pm

JUDGMENT OF THE COURT

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

REASONS OF THE COURT

(Given by Brewer J)

Introduction

[1] Mr Haines seeks leave to bring a second appeal against his conviction for driving with excess blood alcohol.^[1] We may grant leave only if satisfied 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.

Facts

[2] On 29 May 2016, Mr Haines was stopped by police while driving a motor vehicle. He underwent breath screening and evidential breath test procedures, following which he elected to have a blood sample taken and analysed. The result, provided by ESR on 1 June 2016, was a reading of 95 mg per 100 ml of blood. The legal limit is 80 mg per 100 ml of blood.^[4]
[3] Mr Haines elected to have the second part of his blood sample sent off for independent analysis.^[5] Such a request must be made within 28 days of the date of being charged with the offence in respect of which the blood sample was taken.^[6] The relevant charging document was filed on 21 August 2016. It is unclear precisely when Mr Haines requested to have his blood sample reanalysed, but there is no suggestion that he failed to comply with the 28-day timeframe.
[4] However, Mr Haines’s blood sample was stored in a “vacutainer” which had an expiry date of 31 August 2016.^[7] That date had passed by the time Mr Haines sought private testing. There is only one private testing facility in New Zealand. It declined to test the sample because it has a policy that it will not analyse samples stored in expired containers.
[5] The issue for us is whether this situation involves a matter of general or public importance or points to a risk that a miscarriage of justice may have occurred or may occur unless the appeal is heard.

Discussion

[6] Mr Haines’s argument is simple. He submits he had a right to have the second sample tested independently so he could challenge, if the outcome made that feasible, the ESR test result. Parliament has provided for a person in his position to have an independent test of the second sample and this right was denied to him. Further, it was denied to him because of the actions of the police. The police failed to ensure his blood sample was stored in a container, the use-by date of which would not expire until testing could be done in the normal course of things. Mr Haines submits it is a matter of general or public importance that the police ensure statutory systems to safeguard the rights of people charged with offences are given effect. He submits, further, that in a situation where, because of police failure, a right to challenge Crown evidence is lost, there is a risk of a miscarriage of justice.
[7] We do not accept Mr Haines’s submissions. First, there is no risk of a miscarriage of justice. The legislation provides a procedure where, for any reason, an independent test of the second sample is sought but does not take place.^[8] In such a situation, the trial Judge may forbid the prosecution from relying on the certificate of analysis which would otherwise be the admissible evidence of the blood alcohol reading and instead call the analyst and other relevant witnesses to prove the blood alcohol reading in the conventional manner.^[9] This was done in this case. Further, the original sample was analysed again and a comparable result was obtained.
[8] Second, this statutory procedure removes the force of Mr Haines’s submission that there is a matter of general or public importance arising from the fact he was unable to have the second sample tested. We agree with Simon France J who, in dismissing Mr Haines’s appeal against conviction, said:

[15] The effect of the appellant’s case, if accepted, is that there could not be a prosecution whenever the second sample cannot be tested. I do not accept that would be consistent with a statutory scheme which both itself creates the obligation to have a second sample, and sets out the consequences of a flawed second sample. This latter aspect of the legislation would be otiose if in fact the consequence of an ability to test is that a prosecution cannot continue.

[16] The ability to have a second sample tested is an important safeguard. However, I do not accept that in those cases where for whatever reason it is not possible to have the test done, any prosecution thereby becomes unfair. There are other significant safeguards built into the processes attaching to the initial testing, all of which can be challenged. If those processes are complied with, the intent and effect of the legislation will almost always be that a reliable testing outcome is produced. That affords sufficient safeguard to make the prosecution fair notwithstanding the inability to test the second sample.

[9] We have not overlooked that a Court may stay a prosecution if the actions of the police have deliberately or unfairly deprived a defendant of a defence.^[10] But, there is no question of that here. Police policy at the time required that the vacutainers have at least three months left before their expiry dates if used for storing evidential blood samples. That policy was complied with. Further, the evidence is that the expiry date on the container does not relate to its ability to store blood properly but to the integrity of the vacuum system that assists with the drawing of blood.^[11] There was nothing stopping the independent laboratory from testing Mr Haines’s sample except its policy.
[10] It is therefore our view that this situation does not involve a matter of general of public importance nor does it point to a risk that a miscarriage of justice may have occurred or may occur unless the appeal is heard.

Result

[11] It follows that the application for leave to bring a second appeal is declined.

Solicitors:
Iorns Legal, Porirua for Applicant
Crown Law Office, Wellington for Respondent

---

^[1] Mr Haines was convicted in the District Court: Police v Haines [2017] NZDC 17720. His first appeal was to the High Court: Haines v Police [2017] NZHC 2541.

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

^[3] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36], citing Keenan v R [2005] NZSC 63 at [5].

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

^[5] In accordance with Land Transport Act, s 74(5).

^[6] Section 74(7).

^[7] Defined in the Land Transport (Blood Specimen Collecting Instrument and Procedure) Notice 2014, reg 3(1) as a “tube or tube-like container ... evacuated to create inside it a partial vacuum that helps draw a volume of blood ... ”.

^[8] Land Transport Act, s 79.

^[9] Sections 79(3) and (4).

^[10] Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705.

^[11] Rosemary Moar, a scientist employed by ESR gave evidence that “[t]he expiry date refers to the vacutainers’ ability to draw a blood sample and not the expiry date of the preservative and anticoagulant in the container”; the expert witness called by Mr Haines, Dr Anna Sandiford, gave similar evidence.