M v Police HC Gisborne CRI-2009-416-11 [2009] NZHC 2101 (13 November 2009)

Last Updated: 1 February 2016

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IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

_{CRI-2009-416-000011}

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 31 July 2009 and by subsequent affidavits and memoranda

Appearances: Mr J C Mathieson for Appellant

Mr C R Walker for Respondent

Judgment: 13 November 2009 at 3.30 pm

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 13 November 2009 at 3.30 pm, pursuant to Rule

11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors:

Crown Solicitor, Gisborne

_{Rishworth, Wall & Mathieson, Gisborne}

M V NEW ZEALAND POLICE HC GIS CRI-2009-416-000011 13 November 2009

[1] On 13 June 2008 the police stopped Mr M at a breath test checkpoint in Rutene Road, Gisborne. He failed the breath screening test administered at the roadside and was required to take an evidential breath test in a “booze bus” parked nearby. This recorded a reading of 427 micrograms of alcohol per millilitre of breath. He then elected to provide the police with a specimen of his blood. Upon analysis, this was found to contain 103 milligrams of alcohol per 100 millilitres of blood. As a result, the police charged Mr M with driving with excess blood alcohol.

[2] After a defended hearing that concluded on 10 June 2009, His Honour Judge Connell found the charge proved. He convicted Mr M , fined him $600 and ordered him to pay court costs and the analyst’s fee. He also disqualified Mr M from holding or obtaining a driver’s licence for six months from the date of conviction.

[3] Mr M now appeals to this Court against his conviction.

Grounds of appeal

[4] The police engaged the services of a registered nurse to take a specimen of Mr M ’s blood after he failed the evidential breath test. When the nurse arrived to take the sample from Mr M in the bus, he challenged her qualifications. After speaking with his solicitor, however, he agreed to allow the nurse to take the sample. His appeal is based on the circumstances that led to the nurse taking the blood sample.

[5] As originally formulated, Mr M advanced the following interlapping grounds of appeal:

1. That the Judge applied the wrong test in determining whether Mr

M had an honest doubt as to the nurse’s qualifications; and

2. The Judge was wrong in fact and in law in determining whether Mr M ’s challenge to the nurse’s qualification amounted to an exceptional circumstance.

[6] The written submissions that counsel for the Appellant filed in support of the appeal expanded upon these two grounds. In particular, counsel analysed the decisions of this Court in Payne v Goodgame (1986) 2 CRNZ 100 and Hercock v Police HC WN AP312/90 14 March 1991 Gallen J. In those cases the Court recognised that a person charged with failing to provide a blood specimen may be acquitted if he or she held a genuine doubt or belief as to whether the person nominated to take the specimen possessed the requisite qualifications to do so. The rationale for this conclusion is that the existence of such a doubt or belief will prevent the prosecution from establishing the mental element necessary to prove a charge of refusing to provide a blood specimen.

[7] Mr M ’s difficulty is that he was not charged with refusing to provide a blood specimen. Rather, he faced a charge of driving with excess blood alcohol. That charge arose as a result of the fact that he had agreed, and not refused, to provide a specimen of his blood to the nurse. The reasoning in the cases cited above does not apply, because a charge of driving with excess blood alcohol does not have the same mental element as a charge of refusing to provide a blood specimen.

[8] Faced with this hurdle, counsel for Mr M understandably changed tack on the appeal. He submitted that Mr M had only elected to provide the nurse with a specimen of his blood because of certain advice that counsel had given him during a telephone discussion immediately before Mr M elected to give blood. Counsel submitted that his advice had been incorrect, and that he ought to have advised Mr M to refuse to give a blood sample on the basis that he had a genuine doubt as to the qualifications of the nurse. As a result, he submitted that the blood sample had been unfairly or improperly obtained and that Mr M had never had the opportunity to advance that argument before the District Court. He contended that I should allow the appeal and remit the case back to the District Court for it to be re-heard.

[9] At that point I adjourned the hearing so that these factual assertions could be placed before the Court in affidavit form rather than through submissions from the bar.

[10] I have now received affidavits from both Mr M and his counsel. It is appropriate to record the thrust of this evidence at this stage.

The new evidence

[11] Mr M deposes:

1. At about 10:45pm on Friday the 13^th of June 2008 I was stopped at a roadside breath test check point. I failed the initial test and was required to go into the booze bus for an evidential breath test.

2. After I had failed the initial breath test, I was given an opportunity of speaking with a solicitor, and I telephoned Mr John Mathieson at about 10:55pm and spoke with him.

3. I told Mr Mathieson that I had failed the initial test, and that the Police were requiring me to undergo an evidential breath test. We discussed the situation, and Mr Mathieson’s advice was to go ahead and take the evidential breath test, and if the reading was over 400 milligrams his advice was to elect to take a blood test.

4. I underwent the evidential breath test and the reading was 472 milligrams, I was subsequently given 10 minutes to decide to take a blood test or not and I elected to do so within that time.

5. Sometime after that a female person arrived at the booze bus. She was not introduced to me by name. I was told by a Policeman that this was the lady who would be taking my blood.

6. I had never seen this person before, she was dressed casually in jeans and a sweater and she had no badge indicating who she was.

7. As that person was about to take the blood sample, I asked her if she had a practising certificate or some other form of identification and she replied that she did not. That person then threw some papers down on the table and walked out of the booze bus. One of the Policeman said words to the effect that you can take my word for it that she is a nurse, and that Policeman also told me that they would be producing a practising certificate in Court.

8. I was very concerned about the qualifications of the person who had proposed to take blood from me, and I asked the Police whether I could have a doctor whom I knew to take the blood sample. I was told that I could not.

9. Shortly after that, the Police then threatened to arrest me and charge me with refusing to provide a blood sample, unless I allowed the female person to take the blood specimen from me.

10. I requested another phone call to Mr Mathieson and the Police allowed me to do this. I subsequently spoke to Mr Mathieson from a telephone inside the booze bus I told Mr Mathieson that the woman that the Police had brought into the booze bus had no proof of qualifications and no form of identification. I told him that I was concerned about her qualifications to take the blood sample from me. I also told Mr Mathieson that the Police were threatening to arrest me and charge me with refusing to supply a blood sample, unless I gave them a blood sample straight away.

11. Mr Mathieson told me that even though I had serious concerns about the woman’s qualifications and her identification, that it was better to give the blood specimen and to deal with my concerns later on in Court.

12. Mr Mathieson also told me that if I refused to provide a blood specimen then I would be arrested and taken to the Police station, held there for sometime and bailed. He also told me that if I refused, then my licence would be automatically suspended for 28 days from that point.

13. As a result of the advice I received from Mr Mathieson, I reluctantly agreed to provide a blood specimen to the Police.

[12] Mr M ’s counsel, Mr Mathieson, largely confirms Mr M ’s evidence. He says:

...

5. At about 11.30pm I received another call from the Police advising me that Mr M would like to speak to me again.

6. Mr M then took the line and told me that he had serious concerns about the qualifications and the identity of the person who was about to take the blood specimen from him. He told me that the Police had not introduced this person to him and that she had no proof of qualifications or any form of identification.

7. Mr M also told me that the Police had told him that they would arrest him and charge him with refusing to provide a blood specimen, if he did not do so immediately. Mr M and I discussed the threat to arrest and charge him, and I told him that if he refused, the Police would suspend his licence automatically for

28 days from that point in time, and that he would be arrested and taken to the Police station and held there in the cells until he would be bailed.

8. I also advised Mr M that even though he had serious concerns about the woman’s qualifications and identification, that it was

better to give the blood specimen now, and to address his concerns about the woman’s qualifications later on in Court.

9. Mr M accepted that advice and the telephone call ended at that point.

10. At the time that I gave that advice to Mr M , I was unaware of the effect of the leading High Court authorities on the point, and namely the cases of Payne v Goodgame [1986] 2 CRNZ and Hercock v Police (1991) High Court Wellington, AP312/09. During

30 years of legal practice I have never come across the issue, and I

was unaware that if a person genuinely doubted the qualifications of the person proposing to take a blood specimen, then the subject person would be entitled to refuse and to later advance a defence of lack of mens rea. I did not discover this until I later received instructions from Mr M to defend the charge, and conducted my legal research.

11. I am now concerned about the fact that the best advice I should have given Mr M was to refuse the blood specimen and to later advance a defence of lack of mens rea. As a result of the advice I gave to Mr M , it would appear that he has been deprived of the opportunity of advancing that defence in Court.

Decision

[13] Stripped to its essentials, Mr M seeks a re-hearing because of two errors that his counsel is said to have made. The first came in the form of the advice that counsel gave to Mr M immediately before he elected to provide the blood sample. The second, which arose from the first, was the manner in which counsel for Mr M elected to defend the charge in the District Court.

[14] Ordinarily this Court will only allow an appeal against conviction in the summary jurisdiction on the grounds of counsel error if it is satisfied that a miscarriage of justice may have occurred: Osten v Police HC WLG M84/86 22 May

1986 Greig J. Where the error is of no material consequence to the outcome of the proceeding, the appeal is unlikely to be allowed. In this context the following passage from the judgment of the Supreme Court in R v Sungsuwan [2006] 1 NZLR

730 is relevant notwithstanding the fact that that case was an appeal against conviction in the indictable jurisdiction:

[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the

outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel's conduct will be unnecessary...

[15] The principal error in this case did not occur in the conduct of the defence at the defended hearing. Rather, it occurred when Mr M ’s counsel advised him to provide a sample of his blood during the second telephone conversation in the bus. With the benefit of insight, Mr M ’s counsel ought to have advised him that, if he held a genuine doubt regarding the nurse’s qualifications, he should decline to provide the blood specimen. He would then have been able to defend any charge of refusing to provide a blood specimen on the basis of that doubt.

[16] In practical terms it is no longer possible to turn back the clock and return Mr M to the position that he was in at the time that his counsel advised him to provide the nurse with a specimen of his blood. Once Mr M followed that advice, the die was cast. The fact that he volunteered to provide the specimen meant that he lost the ability to defend the resulting charge on the basis that he held a genuine doubt regarding the nurse’s qualifications. The issue of his belief regarding the nurse’s qualifications was irrelevant to the charge that he then faced.

[17] In the present case I consider that the course that the hearing in the District Court took is a significant factor in determining whether a miscarriage of justice may have occurred. In that court, as on appeal, Mr M advanced his case as if he was facing a charge of refusing to provide a blood sample. His counsel cross- examined the prosecution witnesses extensively regarding the concerns that Mr M had raised in the bus about the nurse’s qualifications. He also gave evidence himself on that topic. All of this occurred notwithstanding the fact that this particular issue could not affect the outcome of a charge of driving with excess breath alcohol.

[18] Given that background it is not surprising that the Judge also dealt expressly with the issue. He determined it in favour of the prosecution in the following passages of his decision:

[66] If I move to my analysis of this issue of nurse’s qualifications, under s 75(1) the person, who prepares the certificate and signs it, is noted on that

certificate. It is sufficient proof, unless proven to the contrary, that the person is qualified to do so. Under normal circumstances a person represented by the police as a qualified nurse and confirmed by the nurse would be taken to be true. When such is challenged, the test is whether an assessment of the facts in terms of the enquiry made by the accused and the general conduct of the qualified nurse amounts to something exceptional under the circumstances. And it is noted from the facts of both Payne and Hercock that, unlike in those cases, the accused in this case simply asked to see the certificate of the nurse and not a general ID. It cannot reasonably be expected that qualified persons carry their certificates around with them. Hence for practical reasons I do not think that this was a reasonable enquiry by the defendant.

[67] Even if the defendant here had simply asked for an identification and none was produced, as really was the situation, I would have to consider whether the defendant had any genuine doubt about this person being a qualified nurse. I note really from the facts as I have determined them, after requesting the certificate further legal advice was sought and the defendant then proceeded with the blood test, by allowing the sample to be taken.

[68] It cannot be said with certainty that the advice the defendant sought had anything to do with the enquiry about the nurse’s qualifications. However, the fact that he went ahead with the blood test indicated to me that even if Mr M had doubts, it was not of the level which made him not take the blood test. Therefore that really, it will be understood from what I said earlier, effectively puts paid to the objection taken by counsel in respect of that matter. I reject effectively the submission that there had to be some matter of identification and display of qualifications of the nurse.

[19] As I read these passages, the Judge was saying that was not satisfied that Mr

M held a genuine belief regarding the nurse’s qualifications.

[20] I accept that one of the matters to which the Judge had regard when reaching this conclusion was the fact that Mr M had agreed to provide the blood specimen after receiving legal advice from his counsel. The Judge also expressed some doubt (at [68]) as to whether Mr M had even sought legal advice about the issue of the nurse’s qualifications.

[21] If the new evidence of Mr M and his counsel is accepted, however, that issue was the focus of Mr M ’s request for legal advice. Moreover, Mr M ’s decision to provide a specimen of his blood was only made after his counsel expressly advised him to provide it, and also advised him that he would be able to raise the issue of the nurse’s qualifications at a later point.

[22] I therefore accept that the new evidence suggests that one of the factors that the Judge relied upon may not have had a concrete factual basis. This is no fault of the Judge. He was required to determine the case on the basis of the evidence that the parties, and Mr M in particular, elected to place before him in the District Court.

[23] That is not, however, the end of the matter. Reviewing the evidence afresh and as a whole, I do not consider that Mr M comes anywhere near establishing a foundation for his argument that he had real and genuine grounds for doubting the qualifications of the nurse. In short, the evidence established that he asked to see the nurse’s practising certificate or some evidence that she was a nurse. She responded by saying that she was not required to carry her certificate with her at all times. He was also told that the certificate would be produced if the matter went to Court. Mr M then asked to telephone his lawyer. Having done so, he agreed to provide a specimen of his blood, and did not say anything more to indicate that he had real reservations as to whether or not the nurse held the appropriate qualifications. Other than the nurse’s casual dress and her inability to provide a copy of her practising certificate, Mr M was unable to point to any specific matter that called the nurse’s qualifications into question.

[24] Mr M ’s assertion that he had doubts as to the nurse’s qualifications needs to be measured against the context in which his discussion with the nurse occurred. At that time he was in an environment operated and controlled by the police as part of their ongoing endeavour to reduce the incidence of drink driving. The bus was especially equipped to allow the police to carry out breath and blood testing procedures to a forensic standard. Reasonable persons of average intelligence would understand that, if the police advised them that a blood sample was to be taken by a registered nurse, that was what was likely to occur. Most people would also probably accept that it would not be usual for a nurse to carry a copy of his or her registration certificate so that it was available for inspection at all times.

[25] The police introduced the person who ultimately took the blood sample from Mr M as a registered nurse. That person told Mr M that she did not carry her certificate with her but that she could produce it in Court if that became

necessary. The clear inference to be drawn from that comment is that the nurse did, in fact, hold the necessary qualifications to allow her to take a specimen of Mr M ’s blood. Faced with that information, it is difficult to see how any reasonable person in Mr M ’s position could continue to hold a real and genuine doubt regarding the nurse’s qualifications. Something more would be required to produce such a doubt in the mind of a reasonable person of average intelligence.

[26] I have therefore concluded that, even putting to one side the fact that Mr M made his decision to provide a blood sample on the basis of legal advice, the Judge was entitled to reach the decision that he did. It was open to him to conclude that Mr M did not have real and genuine doubts regarding the qualifications of the nurse. For these reasons I do not consider that any miscarriage of justice has occurred.

[27] It was, perhaps, also open to Mr M to argue that the police had obtained the blood specimen improperly, in the sense of unfairly, in terms of s 30(1) of the Evidence Act 2006. One can envisage situations in which the police might act in an improper or unfair manner in obtaining the consent of a suspect to provide a blood specimen. In such a case it would be open to the Court to conclude that the evidence was improperly obtained. It would then need to undertake the balancing process prescribed by s 30(2)(b) in order to determine whether the evidence should be admitted or excluded as evidence.

[28] In the present case any such challenge would have required Mr M to explain to the Judge in the District Court the nature of the advice that he had received from his counsel. Mr M could also have waived privilege and called his counsel to give the evidence that he has now given in his affidavit.

[29] I do not consider, however, that such evidence could establish that the police obtained the blood specimen unfairly. The police permitted Mr M to make two telephone calls to his counsel from a private booth within the bus. The second of these led directly to Mr M ’s decision to provide the blood specimen. His right to obtain legal advice without delay and in private was therefore scrupulously

observed. He made his decision on the basis of that advice. Even if the advice may have been wrong, it is impossible to argue that the police acted unfairly or improperly.

Result

[30] The appeal is dismissed.

Lang J