Rogers v Police [2019] NZCA 94 (8 April 2019)

Last Updated: 17 April 2019

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

CA584/2018 [2019] NZCA 94

	BETWEEN	CLIFFORD TREVOR ROGERS Applicant
	AND	NEW ZEALAND POLICE Respondent

Court:	Gilbert, Wylie and Thomas JJ
Counsel:	W R Hawkins for Applicant R K Thomson for Respondent
Judgment: (On the papers)	8 April 2019 at 2 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to file the application for leave to appeal is granted.
2. The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

[1] At 12.35 pm on 17 September 2017, Clifford Rogers was driving a truck on State Highway 2 near Hastings when he failed to negotiate a gentle curve in the road and crashed into a fence. Mr Rogers was taken to hospital where a blood specimen was taken pursuant to s 73 of the Land Transport Act 1998 (the Act). On analysis, the specimen was found to contain methamphetamine, a controlled drug specified in sch 1 of the Misuse of Drugs Act 1975. Mr Rogers was then charged under s 58(1)(b) of the Act which provides:

58 Contravention of section 12

(1) A person commits an offence if the person drives ... a motor vehicle on a road—

...

(b) If the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken under section 73, contains evidence of the use of a controlled drug specified in Schedule 1 of the Misuse of Drugs Act 1975.

[2] Mr Rogers gave evidence at his trial before Judge Adeane. He said that the day before the accident, he assisted in decontaminating a motel unit which “may have been affected by methamphetamine”. The Judge said of this suggestion:^[1]

There is absolutely no evidence, however, of this. Of where the premises were. Of the reasons for which it is considered methamphetamine might have been present at any time. Of the need for the decontamination. Of the part played in it by Mr Rogers. Or indeed of anything else — except Mr Rogers’ assertion, (which could be a convenient one) that he had cleaned up some methamphetamine the day before thereby leading the Court to speculate that this may bear in some relevant way upon the charge.

[3] In the absence of any evidence to support Mr Rogers’ defence, the Judge found the charge proved. Mr Rogers was accordingly convicted, fined $600 and disqualified from driving for six months.
[4] Mr Rogers appealed against his conviction to the High Court. The appeal was dismissed by Collins J in a judgment delivered on 28 August 2018.^[2] The Judge noted that the offence created under s 58(1)(b) of the Act is one of strict liability.^[3] Once the prosecution has proved the act of driving and evidence of use of the controlled drug as ascertained from an analysis of a blood specimen taken from the driver, the onus shifts to the defendant driver to prove absence of fault on their part on the balance of probabilities.^[4] Collins J agreed with Judge Adeane that Mr Rogers had failed to discharge that onus.^[5]
[5] Mr Rogers now applies for leave to bring a second appeal.

Extension of time

[6] Mr Rogers’ notice of appeal was filed late but he has explained the delay. The Crown does not oppose his application for an extension of time and we are satisfied it is appropriate to grant that application accordingly.

Proposed appeal

[7] Mr Hawkins, for Mr Rogers, submits that the courts below erred in their interpretation of the words “evidence of use” in s 58(1)(b) of the Act. He contends that “evidence of use” means not just the presence of the drug in the person’s blood but requires evidence of “voluntary use of a drug”. The second ground of the proposed appeal is that the courts below did not apply the correct standard of proof because the level of methamphetamine found in Mr Rogers’ blood was not proved, leaving open the reasonable possibility the evidence of use was no more than de minimis. Mr Hawkins submits that these errors led to a miscarriage of justice, and there should be a second appeal.

Decision

[8] Section 58(1)(b) of the Act requires proof that the person’s blood “contains evidence of the use of a controlled drug”. This must be ascertained from an analysis of a blood specimen taken under s 73 of the Act. The prosecution does not need to prove that the driver knowingly consumed the controlled drug. Such a requirement would defeat the clear intention of the legislature in creating this strict liability offence. Nor is the prosecution required to prove the level at which the controlled drug was present. The presence of the controlled drug in the driver’s blood is the evidence of its use for the purposes of the section. We agree with Collins J that once the prosecution has proved evidence of use by demonstrating the presence of the drug in the driver’s blood, the onus shifts to the defendant to prove his or her total absence of fault for driving with the controlled drug in their bloodstream. Total absence of fault must be proved on the balance of probabilities.
[9] The Court must not give leave for a second appeal unless satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred.^[6] We are not persuaded the proposed appeal raises a question of general or public importance capable of serious argument. Nor is there any appearance of a miscarriage of justice having occurred. The application for leave to bring a second appeal must accordingly be declined.

Result

[10] The application for an extension of time to file the application for leave to appeal is granted.
[11] The application for leave to bring a second appeal is declined.

Solicitors:
Bramwell Bate Lawyers, Hastings for Applicant
Crown Law Office, Wellington for Respondent

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^[1] Police v Rogers [2018] NZDC 15132 at [3].

^[2] Rogers v Police [2018] NZHC 2221.

^[3] At [16].

^[4] Tell v Maritime Safety Authority [2008] NZAR 306 (CA) at [13].

^[5] At [22]–[23].

^[6] Criminal Procedure Act 2011, s 237(2).