D v Police HC Wellington CRI 2009-485-105 [2009] NZHC 2374 (25 November 2009)

Last Updated: 5 February 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI 2009-485-105}

BETWEEN D

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 24 November 2009

Counsel: W M Johnson for the Appellant

I Murray for the Respondent

Judgment: 25 November 2009

_{JUDGMENT OF MILLER J}

Introduction

[1] Mr D was convicted after trial on one charge of driving with excess blood alcohol, and sentenced to a $1,500 fine, $292.40 reparation, costs of $130, and

18 months’ disqualification. He appeals against his conviction and sentence.

Factual background

[2] Mr D was stopped by the police at Northland at 1.45am on 21

February 2008. He failed a passive breath test. After the appropriate caution, he accompanied the officer to the Police Station. There he produced an evidential reading of 1022 micrograms of alcohol per litre of breath, well over the legal limit.

_{Mr D spoke to a lawyer and elected to have a blood sample taken.}

D V NEW ZEALAND POLICE HC WN CRI 2009-485-105 25 November 2009

[3] Dr Delaney was called and took the sample. It was placed in the watch-house at the Police Station, and processed later on 21 February. The watch-house keeper dealt with Mr D ’s sample, and another sample, and made an error in entering Mr D ’s name, confusing it with the name of the other offender. However, she corrected the error and the sample was sent to an ESR laboratory, which supplied a reading of 220 milligrams of alcohol per 100 millilitres of blood, 140 milligrams in excess of the limit. Mr D pleaded not guilty to the charge.

[4] Remarkably, it was not until 23 July 2009 until the hearing commenced. I inquired about the reasons for delay. Those inquiries were inconclusive. It appears that some adjournments were at the request of the defence, others the prosecution.

District Court decision

[5] Dr Delaney gave evidence. He said that he had no independent recollection of taking Mr D ’s sample. He recognised his signature on the blood specimen form, however, and he confirmed that he followed the set procedure he always follows; he had taken such samples thousands of times before. The evidence was:

Q. Yes, and so you took some blood from Mr D , is that correct? A. Yes, that is right.

Q. And what did you do once you had taken it?

A. I do the – just the usual procedure, which is to do – I divide it up into half and put half in, half in each of the two tubes, label them, put them in the box and, um, give them to the constable, ah, give them to Sergeant Taylor. Just the usual procedure which I have done, I hate to say this, but I, I say now thousands of times.

[6] Accordingly, the Doctor’s evidence was that he had an invariable practice and would have followed it on this occasion. After he had been referred to the blood specimen form it was produced as an exhibit by the police officer in whose presence it had been completed. It appears that Mr Johnson objected to its admission. Also admitted was the Doctor’s blood specimen medical certificate.

[7] After recounting the facts, the Judge recorded that because Dr Delaney had given oral evidence the blood specimen form was inadmissible, but the witness might still be referred to it. He accepted the Doctor’s evidence and rejected Mr Johnson’s argument that it was inadequate to prove the sample had been taken in accordance with normal medical procedures.

[8] Looking to the watch-house keeper’s error, the Judge held that the keeper, Miss Hunter, knew that she was dealing with Mr D ’s sample and that the courier number assigned was the same on the laboratory certificate, satisfying him that it was Mr D ’s sample.

[9] Lastly, he cited R v Aylwin [2008] 2 NZLR 1 (SC) for the proposition that the Court should take a robust approach to proof in such proceedings, and finally held that the sample was taken, processed and analysed correctly, and the charge was proved.

[10] At sentencing, the Judge took into account that Mr D only had one previous conviction for driving with excess breath alcohol ten years previously. He rejected a submission that Mr D ’s alleged head injury was a mitigating factor, noting that it was offset by the high alcohol level.

The conviction appeal

Submissions

[11] Mr Johnson contended that there were three errors in the Judge’s approach. [12] The first is that Dr Delaney’s evidence was insufficient. He could not

remember taking Mr D ’s blood sample, and Mr Johnson argued that at no point is there evidence he even took the sample, or checked the medical kit he was using. Accordingly, the Court cannot be satisfied that normal medical procedures were followed, or that Dr Delaney complied with his statutory obligations by using an approved kit and handling the samples properly.

[13] Mr Johnson argued secondly that the blood specimen medical certificate was effectively admitted ‘through the back door’ via evidence of the police officer, contrary to section 79 Land Transport Act 1998.

[14] Lastly, Mr Johnson argued that Ms Hunter testified to sending two samples under the same track and trace number, so it cannot be proved beyond reasonable doubt that the samples were not switched.

Did the Judge err in accepting Dr Delaney’s evidence?

[15] I begin by setting out the statutory provisions about the medical certificate. Sections 74 and 75 and 79 of the Land Transport Act provide so far as relevant:

74 Procedure for dealing with blood specimens

(1) A blood specimen taken under section 72 or section 73 must be divided into 2 parts, and—

(a) each part must be placed in a separate bottle and the bottle must then be sealed; and

(b) each part is a blood specimen for the purposes of this Act.

(2) One or more preservative substances and anti-coagulant substances may be added to a blood specimen by placing them in the bottle, whether before or after the specimen is taken and placed in the bottle.

75 Certificates in blood-alcohol proceedings

(1) Except as provided in section 79, production of a certificate to which this section applies in proceedings for an offence against this Part is sufficient evidence, in the absence of proof to the contrary, of such of the matters as are stated in the certificate and of the sufficiency of the authority and qualifications of the person by whom the certificate is made and, in the case of a certificate referred to in subsection (5), of the person who carried out the analysis.

(2) This section applies to a certificate purporting to be signed by a medical practitioner or medical officer and certifying that—

(a) A specimen of venous blood was taken by the practitioner or medical officer in accordance with normal medical procedures from a person named in the certificate; and

(b) The specimen was divided by the practitioner or medical officer into 2 parts, or the specimen was insufficient for

division and the practitioner or medical officer took a further specimen; and

(c) The practitioner or medical officer placed and sealed in a separate bottle each part or specimen (as the case may be); and

(d) Each such separate bottle was received by the practitioner or medical officer in a sealed blood specimen collecting kit; and

(e) The practitioner or medical officer handed each such separate bottle to an enforcement officer named in the certificate. [...]

79 Circumstances in which certificate not admissible in proceedings

(1) No certificate referred to in subsection (2) or subsection (3) or subsection (4) of section 75 (which certificates relate to the taking of a blood specimen by a medical practitioner or medical officer) is admissible in evidence in proceedings for an offence against this Act if the court, on application made by the defendant not less than 14 days before the hearing, orders that the registered medical practitioner or medical officer who gave the certificate ought to appear as a witness at the hearing.

[16] Mr Johnson made an application under s 79(1) on 13 February 2009. Accordingly the certificate was not admissible. This however, does not mean that Dr Delaney was required to prove that the blood was taken using normal medical procedures, as s 75 requires, or that he was using an approved medical kit. Section

75 applies only when the certificate is relied upon. It has no application when the doctor is called to give evidence: R v Morunga [2009] NZCA 292 at [19]. For the reasons given by the Court of Appeal in that case, Mr Johnson’s argument is without merit.

[17] Further, the doctor’s evidence established sufficiently that the requirements of s 74 were complied with. Specifically, a blood specimen was taken from Mr D , divided into two, placed in bottles, and given to the enforcement officer. The doctor did not say that he sealed the bottles, but the inference is inescapable that he did so to contain the blood, and s 64(2) would apply in circumstances where nothing in the evidence (including the analyst’s certificate) suggested any possibility of contamination.

Was the blood specimen medical certificate improperly admitted?

[18] Mr Johnson argued that the doctor ought not to have referred to the certificate, nor should it have been produced in evidence.

[19] Questions of admissibility frequently turn on the purpose for which the evidence is wanted. In this case, s 75 provides that a medical certificate is evidence, in the absence of proof to the contrary, of the matters in it. It may prove, in other words, that a sample was taken by a medical practitioner from the accused and dealt with in terms of the statutory procedures. It is inadmissible when the medical practitioner is called in person to depose to those matters. The evident legislative purpose was that the prosecution might not admit the certificate in evidence to prove the truth of its content in such circumstances.

[20] Section 35(3) of the Evidence Act is available when the witness has not recollection of the events referred to in a previous statement. It provides that the previous statement may be admitted as proof of its contents:

35 Previous consistent statements rule

(3) A previous statement of a witness that is consistent with the witness's evidence is admissible if—

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b) the statement provides the court with information that the witness is unable to recall.

[21] The blood specimen medical certificate was admitted in evidence, and the police laid a sufficient foundation for doing so under s 35(3). The question is whether such a certificate might be admitted in that way having regard to s 79 of the Land Transport Act. Mr Murray conceded that it could not. I agree. I doubt that the legislature intended this result, but the language of s 79 is plain.

[22] This conclusion does not preclude use of the certificate to refresh memory under s 90 of the Evidence Act; see for example R v Foreman [2008] NZCA 55. In such a case the document is a prior consistent statement that is not itself admissible

to prove the truth of its contents. The oral evidence remains the best evidence. However, the certificate was not used in that way in this case. Dr Delaney was referred to the certificate but he still had no recollection of the incident.

[23] However, the doctor gave evidence of the invariable practice that he has followed on thousands of occasions, without objection, and the Judge relied upon that evidence, rather than the certificate. Evidence that a witness has an invariable practice that he follows on certain occasions tends to prove that he did so on any given occasion, and so is admissible under s 7 of the Evidence Act. That corresponds to the position at common law. In Bryant v Dickson (1946) 31 Cr. App. R. 146, 150 Lynskey J held:

...the law allows a person who has kept a record to look at it for the purpose of refreshing his memory. “Refreshing his memory” is an inaccurate expression in some respects, but on most occasions it enables the witness to speak to something which his memory cannot carry from a record made at the time. Ever since the law of evidence has been what it is, it has been perfectly legitimate for a witness to say: “I have my own record; it was my duty to keep it; I did keep it accurately according to the best of my powers, and I can say from looking at my record that an event happened on a certain day, and on another occasion, either on that day or some other day, another event happened”.

[24] The evidence was accordingly admissible, and sufficient, to prove that such practice was followed on this occasion.

Was the Judge correct to hold that chain of custody was proved?

[25] Ms Hunter admitted her error in entering the wrong name when referring to Mr D ’s blood sample in her brief of evidence, amending it and initialling the amendment. Mr Johnson argued that it is not clear that the track and trace courier number was correctly attributed to Mr D ’s blood sample.

[26] It is unclear how this small error throws any doubt on the chain of custody. The evidence was that the sample bore Mr D ’s name. Ms Hunter entered the name ‘D ’ next to a courier post sticker – EA 586 048 430 NZ. The ESR laboratory in its analyst’s certificate stated that it received the sample in a courier package with the same number. Mr Johnson tried to make something of the fact that

two samples may have been sent in the same package, but this does not derogate in any way from the evidence that Ms Hunter sent Mr D ’s labelled sample to the ESR and the ESR received it. Like the Judge, I am satisfied that chain of custody was proved. This ground of appeal also fails.

Was the sentence manifestly excessive?

[27] Mr Johnson argued that Mr D laboured under a head injury, a concussion apparently suffered not long before he was apprehended; accordingly, the sentence was manifestly excessive. Mr Murray argued that even if the Judge had taken it into account (and he was correct not to), that mitigating factor was nullified by the high alcohol level, and the sentence is not manifestly excessive.

[28] The Judge was evidently sceptical about the claim that Mr D was suffering from a head injury. The doctor had been asked in cross-examination, but had noted no evidence of it. Nor did the apprehending officer. Counsel produced before me, as he did in the District Court, photographs showing facial bruising and a medical certificate authorising Mr D to take time off work. However, I accept Mr Murray’s submission that this was not enough to demonstrate reduced culpability. The high alcohol level is a more plausible explanation for Mr D ’s decision to drive. For these reasons, I consider that the Judge was right to attach no weight to the alleged head injury.

[29] The high blood level was an aggravating factor. The Judge gave appropriate weight to the other aggravating factor in this case – Mr D ’s previous conviction for driving with excess breath-alcohol – by noting it was nine years in the past. There was no driving fault, but to say that is merely to point to the absence of an aggravating factor.

[30] The maximum penalty for a first such offence is a $4,500 fine and three months imprisonment, with a minimum disqualification of six months. Counsel agreed that the fine and disqualification are high; Mr Murray suggested that a fine of

$1,200 and 12 months disqualification would be customary. But having regard to

the high alcohol level and the maximum penalty, I am unable to say that the sentence is manifestly excessive.

Decision

[31] The appeals against conviction and sentence are dismissed.

Miller J

Solicitors:

W M Johnson, Wellington for the Appellant

Crown Solicitor’s Office, Wellington for the Respondent