C v Police HC Auckland CRI 2009-404-67 [2009] NZHC 681 (8 June 2009)

Last Updated: 4 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2009-404-67}

C

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 8 June 2009

Appearances: M J Harte for Appellant

P Singh for Respondent

Judgment: 8 June 2009

_{JUDGMENT OF KEANE J}

_Solicitors:

_{Crown Solicitor, Auckland}

C V POLICE HC AK CRI 2009-404-67 8 June 2009

[1] On 2 February 2009, after a defended hearing, Lana C was convicted of failing on 14 May 2008 to permit a blood specimen to be taken from her without delay, having been requested to do so by a medical officer.

[2] On this appeal she takes a single point. It is that the evidence establishes that some quantity blood was taken from her with her consent. The prosecution failed to establish that it was insufficient for analysis and therefore that there was a material failure on her part to permit blood to be taken.

[3] This point was not taken at the hearing. Accordingly, it is contended, if the charge is not to be dismissed outright, the case ought to be remitted to the District Court for a rehearing on that issue.

Context

[4] On 14 May 2008 at 9.27 pm Ms C was stopped at a compulsory check point on Great South Road, Takanini. She underwent a passive test and then a breath screening test, each of which she failed and she was required to go to the bus nearby to undergo an evidential breath test. When that test was administered she made several attempts to comply, as many as ten. The test proved incomplete. She was required to supply a specimen of blood.

[5] The medical officer called, a registered nurse with eight years experience of taking blood from motorists, as she says literally thousands, first attempted to take it from Ms C ’ right arm. Her evidence and that of the constable was that Ms C frustrated that by pulling her arm away. The nurse then attempted to take blood from Ms C ’ left arm. This time she succeeded in beginning to take blood. The constable supported Ms C ’ right elbow to hold it secure. Once again, their evidence was, Ms C pulled her arm away.

[6] At the hearing in the District Court the only issue was whether Ms C failed or refused to permit blood to be taken. She put that in issue quite starkly. She maintained that it was the nurse who frustrated the attempt, not her. She was always willing, she said, to have blood taken. She would have preferred to have had it taken

from her hand but she tolerated the two attempts made. She called her general practitioner to confirm how difficult it was to take blood from her arms and that it was preferable to take it from her hands.

[7] The Judge, in finding the offence proved, accepted the evidence of the constable and the nurse. She found that Ms C withdrew her arm, not once but twice, and in such a way that the nurse was not able to take a blood specimen from her.

Sufficient specimen

[8] On this appeal the single point Mr Harte takes, and he was not counsel at the hearing, is that the nurse gave evidence sufficient to confirm that Ms C did permit blood to be taken and it was for the prosecution to show that it did not suffice.

[9] In this Mr Harte relies principally on Auckland City Council v Bostock (HC AK, M61/81, 3 June 1980), where Mahon J held that a specimen of blood, then for the purpose of s 58B(2) of the Transport Act 1962, need only be ‘any appreciable quantity of blood withdrawn from a suspect’; though he did to on to say that, whether it was sufficient for analysis was of primary importance. That was why s 58B(2) permitted the taking of a second sample if the first proved insufficient to be divided into two. Goddard J adopted this analysis in Hilton v New Zealand Police (HC WN, AP 105/01, 23 August 2001).

[10] The final case on which Mr Harte relies is Smith v Lower Hutt City Corporation (HC WN, M 556/75, 18 February 1976), where Quilliam J warned against accepting uncritically the assurance of an enforcement officer that he or she has complied with the prescribed process. The nurse is not to be assumed to have appreciated that she might have taken sufficient blood for analysis.

Three immediate issues

[11] There are three issues that arise and the first is that this is a new point on the

appeal and, though s 75 of the District Courts Act 1947 makes an appeal by way of rehearing, this Court on appeal must reconsider a matter already decided. A new point can be entertained but only if arguable on the evidence as it is and without any evidence in rebuttal: Savill v Chase Holdings (Wellington) Ltd [1988] NZCA 113; [1989] 1 NZLR 257; Paulger v Butland Industries Ltd [1989] NZCA 190; [1989] 3 NZLR 549.

[12] Secondly, in the two cases on which Mr Harte relies primarily, Bostock and Hilton, the issue was materially different from that arising here. Each concerned whether it was permissible to take more than two specimens of blood from a motorist in order to obtain a sample sufficient for analysis. In each, it was held, only two are expressly permitted and that remains the case still. Section 72(4) now applies.

[13] In Bostock one cc of blood was taken on a first attempt, another on a second and then apparently more on a third, the three together constituting the specimen divided, and analysed, resulting in the analysis on which the charge was founded. Mahon J held that the blood extracted on the first two occasions each constituted a specimen for the purpose of s 58B(2). The third was impermissible and the charge was rightly dismissed. In Hilton there were more than two attempts but blood was only extracted on two. The converse resulted.

[14] The question is here whether the quantity of blood taken from Ms C on the second occasion was enough to enable her to avoid culpability for failure to permit a blood specimen to be taken; a specimen sufficient for the purpose of analysis, as that is prescribed, sufficient to divide into two.

[15] The third issue is this. Can the evidence as it is be held on this appeal insufficient to resolve the point if the point was not taken at the hearing or put to the nurse? The Smith case, which may be understood to suggest that, if there is a void in the prosecution evidence that is fatal, even if the point resulting was never put, does not state the law. Contrast Auckland City Council v Scale (1985) 1 CRNZ 544, CA and see also now s 92(1) of the Evidence Act 2006.

Conclusions

[16] It is against those principles that I must resolve this appeal and I do so on the basis that the whole purport of the prosecution was that Ms C had failed to supply a specimen, when requested to do so by a medical officer; and that the specimen that she failed to permit to be taken was one sufficient in the sense that it was capable of being divided into two.

[17] If there had been any concern about that proposition it should have been at the forefront of the defence. The defence, by contrast as I have said, came at it rather from the opposite premise, implicitly accepting that the sample was insufficient. The whole focus was on whether there had been a failure to permit. The question then becomes whether such evidence as there is actually contradicts that assumption. I do not consider that it does.

[18] It is true the nurse did say she extracted some blood from Ms C ’ right arm. She was not asked to state how much. She at first said that when she was getting blood Ms C became upset. She continued to take blood until Ms C pulled her arm away, causing the needle to come out, and pushed the syringe away. It was only then that the nurse spoke about quantity. She said:

after she pushed the syringe away I said I considered that a refusal because it was putting everyone in danger because there was blood in the syringe that could have been knocked out of my hand and gone into somebody else.

[19] It is material to this issue that, as the Judge said, the nurse was very experienced. Not only had she been a registered nurse for 24 years, she had been taking blood from motorists for eight and a half years and had trained other nurses in the procedure. One would have expected then that, if she had considered there was enough blood to divide into two for the purpose of analysis, she would have stopped short and not simply deemed this to be a failure.

[20] If that were to be put in question she would have had to be tested more particularly than she was. Moreover, there was a medical practitioner who gave evidence for the defence. He might have assisted had there been a point to take. I see then no warrant on this appeal for allowing the point taken any force. The evidence

does not suffice. Nor do I consider that it ought to be a point revisited at a rehearing, though Mr Harte strongly invites me to.

[21] The Judge was entitled to conclude, as she did, that Ms C had failed to permit a specimen of blood to be taken. As to that, the evidence of the constable and nurse was more than sufficient on its face. Whatever quantity of blood the nurse obtained on the second attempt, it is clear she would have had to make a third attempt to obtain enough to divide into two. But by then Ms C ’ position was plain. She could not tolerate that happening. Any further attempt would have been

_{met by a further failure. The appeal is dismissed.}

P.J. Keane J