McClelland v Police [2012] NZHC 3624 (24 December 2012)

Last Updated: 7 January 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-97 [2012] NZHC 3624

TERENCE MCCLELLAND

v

NEW ZEALAND POLICE

Hearing: 18 December 2012

Counsel: F Geiringer for Appellant

I R Murray for Respondent

Judgment: 24 December 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 9.00am on the 24th December 2012.

_{JUDGMENT OF WILLIAMS J}

[1] In a judgment issued on 21 August 2012, the District Court found the appellant guilty of driving with excess blood alcohol in breach of s 56(2) of the Land Transport Act 1998. He now appeals against conviction.

[2] The background facts are undisputed. It is sufficient for my purposes simply to record that on 18 August 2010 the appellant was arrested following a collision. He was breathalysed and elected a blood alcohol test. A specimen of his blood was duly taken by a medical practitioner. There is no question in relation to chain of

_custody.

TERENCE MCCLELLAND V NEW ZEALAND POLICE HC WN CRI-2012-485-97 [24 December 2012]

[3] Once blood samples are tested at the ESR laboratory, s 75(1) and (5) of the Land Transport Act provide that an approved analyst may certify that a specified proportion of alcohol was found in the blood specimen provided. The effect of such a certificate is to create a presumption that the certificate itself is sufficient evidence of that fact “in the absence of proof to the contrary”. Section 75(5)(c) allows an analyst to certify that no “deterioration or congealing was found as would prevent a proper analysis”.

[4] ESR analyst, Ms Noreen McGavin (an approved analyst for the purposes of s 75) tested the specimen taken. It is standard procedure for the specimen to be split into two samples and duplicate tests undertaken. They returned readings of 234.75 and 244.45 milligrams of alcohol per 100 millilitres of blood respectively – approximately three times the limit.

[5] According to Ms McGavin, ESR guidelines provide that variation between test results should be no greater than 4 milligrams. Because the variation in this case was nearly 10 milligrams, it was treated as a non-standard result. Ms McGavin meanwhile discovered that the specimen had partially congealed. The tests had been conducted on the uncongealed portion of each sample. Because the result was non- standard, she conducted four further tests on the samples in accordance with ESR procedure. The scores were 228.13, 237.02, 237.44 and 239.03. Ms McGavin’s evidence was, because the tests doubled from two to four, the allowable variation also doubled from 4 milligrams to 8 milligrams. Because of the very low first score (228), these results were also non-standard, the variation being, again, too great.

[6] Ms McGavin was not prepared to certify these non-standard results under s 75. Instead, she recorded an average of the second lot of four tests – that average being 235 milligrams – and advised the police of her findings. The police decided to prosecute in reliance on Ms McGavin’s analysis and without certification.

[7] The underlying question in this appeal is how far the police must go (when there is no s 75 certification) in proving that the test results undertaken by the analyst

contain reliable evidence that the alcohol present in the appellant’s blood specimen exceeded 80 milligrams per 100 millilitres of blood.[1]

[8] In the District Court, Her Honour Judge Kelly accepted Ms McGavin’s opinion as establishing Mr McClelland’s guilt beyond a reasonable doubt. The learned Judge found:

(a) Judicial notice could be taken of the reliability of the equipment used to produce the result adduced in evidence. She relied in that respect on s 137 of Evidence Act and the decision of Stephens J in R v Ah Chong[2];

(b) Ms McGavin’s evidence was admissible under s 25(3) of the Evidence Act being based on facts (equipment reliability) of which judicial notice had been taken;

(c) a s 75 Certificate was not necessary to establish alcohol levels, and the court could instead safely rely on Ms McGavin’s evidence in establishing that the 80 milligram limit had been exceeded (the learned Judge relied here on the District Court decision in Police v Dunbar[3]);

(d) if the appellant had been concerned about the reliability of Ms McGavin’s evidence, he should have applied for a private analysis of the specimen pursuant to s 74 LTA and/or applied for third party disclosure against ESR regarding that agency’s testing procedures.

[9] Mr Geiringer’s argument was that the learned Judge had wrongly applied

s 25(3) of the Evidence Act. The subsection provides:

If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be

relied on by the fact-finder only if that fact is or will be provided or judicially noticed in the proceeding.

[10] As I apprehend Mr Geiringer’s submission it was that it was not appropriate for the court to take judicial notice of the accuracy of the testing equipment ESR used, because the non-standard sampling results called that accuracy into question and the police had led no evidence of the procedures they used to ensure any results were reliable given that both sets of tests had produced non-standard results. In the absence of that explanation, it was not possible, he argued, for the court to be satisfied the equipment had in fact produced reliable results. This meant that, the Judge should not have taken judicial notice of equipment reliability and, in terms of the requirements of s 25(3), the foundation for Ms McGavin’s opinion was removed.

[11] If that was the only evidence available to support the prosecution, Mr Geiringer may well have had a point. Reliability was the very issue in the case. And Mr Geiringer had called an expert who said she could not be satisfied of reliability without more information, implying that the Judge should not have been satisfied either. In this respect both Ah Chong and Dunbar upon which the judge relied may have been distinguishable. Neither appeared to have countervailing expert evidence. Unfortunately for the appellant, that was not the only evidence Judge Kelly heard. It is necessary to traverse that evidence in some detail in order to demonstrate that while Mr Geiringer may well have been right in theory, the facts did not quite get him over the line.

[12] Ms McGavin was called to give evidence in support of her results. Ms McGavin had a certificate of science and biology and for the last 22 years had been an alcohol analyst with ESR and its predecessor the DSIR. She accepted that because coagulation had caused the blood cells and serum in the specimen to separate to some extent, and because the sample she took necessarily came from the more liquefied serum rich portion of the specimen, there was potential for a greater concentration of alcohol in the serum rich portion when compared to the cell rich coagulated portion. She accepted that, as a result, her sampling may have over- estimated the proportion of alcohol in the appellant’s bloodstream on the night in question by up to 11 per cent. However, she was satisfied that given the average figure taken from the sample of 235 milligrams per 100 millilitres of blood, a

reduction by 11 per cent would still produce a result over 200 milligrams – well over the legal limit of 80 milligrams.

[13] The appellant at trial called Dr Anna Sandiford. She had a Post-graduate Certificate of Proficiency in Forensic Science from the University of Auckland (in addition to a Doctorate of Philosophy in Geology from the University of Southampton). She had a consulting practice that included alcohol related and drink- drive cases in criminal and civil proceedings.

[14] On this question of serum rich sampling, Dr Sandiford’s evidence was that the potential concentration effect when the sample is not a whole blood sample, could be as high as 20 per cent. This she said, would bring the reading in this case down to 188 milligrams rather than 235. Still, Dr Sandiford accepted, well over

80 milligrams.

[15] By consent, the Judge adjusted the particulars of offending in line with

Dr Sandiford’s calculation. That issue can therefore be set to one side.

[16] Mr Geiringer nonetheless complained that the police’s case had not disclosed the procedures by which the ESR manuals instructed analysts to test non-standard samples. Relying on Dr Sandiford’s opinion, he said in the absence of this information, it was impossible for the court to determine whether the readings Ms McGavin obtained were in fact a reliable assessment of the alcohol content in the specimen.

[17] Ms McGavin gave evidence in that respect at various points during the course of Mr Geiringer’s cross-examination, but the thrust of it is articulated in the following extract from Mr Geiringer’s cross-examination in the Notes of Evidence:

A Well, it’s my understanding that the method we used, which is headspace gas chromatography, is a well known method but our manuals describe the procedures that have been set down for us to follow, to ensure accuracy and also to follow all the requirements of our accreditation as far as quality goes.

Q Those procedures for accreditation, do they include a specific procedure to deal with a congealed sampling?

A No.

Q Do the procedure manuals themselves set out a specific procedure to following in the case of congealed samples?

A It’s been a while since I read it. Basically we would follow the normal procedures, if we got a bad agreement (sic), it would be repeated. If congealing is noted, we do not certify because of the wording in the certificate. Every effort is made–

Every effort is made to obtain full dilutions, as I explained earlier. If this is not possible–

Q Sorry, I’m concerned you may not have understood the question.

Are there specific procedures set out in your procedure manuals to

cover the situation where there’s congealing?

A No, it’s normal procedure. The only difference is the lack of a

certificate.

[18] In other words, Ms McGavin said she followed the procedures set out in the ESR manual for such tests – they not having been set out in prosecution evidence. She made it clear that she did not know why the manual provided that non-standard variations should be retested using normal testing procedures. She simply indicated that this approach had been in place long before her arrival in 1990.

[19] While Ms McGavin felt that the variation was explicable because the sample had partially congealed, she accepted that there could well have been other reasons. One possibility was that air bubbles were present when she drew the sample. When she was asked of other possibilities, she said:

I’m sure there could be. I mean I could go on all day

[20] In contrast, Dr Sandiford’s view was that a non-standard variation such as occurred in this case should have been subjected to a non-standard testing procedure. She expressed some concern that this had not been the case, in light of the absence of an explanation in the evidence as to why a standard procedure had been adopted in the second series of tests. She said she could not assess whether the ESR approach of re-running normal test procedures was acceptable without better information from ESR. Mr Geiringer put the following question to Dr Sandiford:

Q [If] we just base your view on all the material that’s been provided to you to date including all of the material that’s been presented by the

Crown, is that sufficient for you to assess validity of the ESR’s

procedures?

A As it stands right now? Q As it stands right now? A No.

[21] In addition to the 11 per cent or 20 per cent premium on sample readings (depending on the witness), Dr Sandiford raised the possibility of alcohol content being enhanced in the specimen due to the introduction of microbial action. This seemed to be at the core of her concerns. She said if microbes had found their way into the specimen, alcohol would be generated through anaerobic respiration. She said that in theory at least, this could increase the alcohol content in the specimen from 80 milligrams to 235 milligrams, though she accepted that she had never actually seen such a significant increase in practice.

[22] Ms McGavin’s response to that challenge was that the inner surface of all specimen bottles is treated with both an anti-coagulant and a preservative. She said that in her experience some times the anti-coagulant did not work properly because the doctors who extracted the blood samples from drivers failed to shake the bottle sufficiently. Nonetheless, she said, the preservative in the bottle would prevent microbial incursion into the sample because mixing is less important in that respect.

[23] In the end, and after some hesitation, Dr Sandiford accepted Ms McGavin’s evidence that there had been no microbial incursion in this case. She referred to Ms McGavin’s evidence that there was no indication of a “volatile presence” in the sample trace in this case. She accepted Ms McGavin’s evidence that this was a reliable sign of the lack of microbial activity in the sample. Dr Sandiford did say that she had not herself seen the trace and was therefore reliant on Ms McGavin’s evidence of what it said:

17. If Ms McGavin says there was nothing in the trace, would you have anything to doubt what she says?
    

A No. I mean she’s used to reading them, and I have no choice but to

accept what she says.

[24] On that basis, Dr Sandiford made the following crucial concession:

Q I’m just wondering if you can turn to page 7, please, to paragraph

29. If the ESR have excluded possibility of alcohol generation, and

that’s by way of microbial growth?

A Yes.

Q Yes. And you accept, on the basis of Ms McGavin’s evidence, that there isn’t any microbial growth, there was nothing in the trace, correct?

A Yes, I have to accept that because I haven’t seen any of the data.

Q You’d be confident to say that Mr McClelland’s blood alcohol concentration at the time was in excess of 80 milligrams?

A Yes.

Q Do you stick to that? A Yes.

Q So, we’re arguing really the result being well over 80 milligrams, aren’t we?

A If you take the preservative issue out? Q Yes?

A Yes.

[25] Thus, without having herself reviewed Ms McGavin’s sampling data or indeed undertaking any testing herself, she accepted that the evidence of Ms McGavin was sufficient to demonstrate first that there was no microbial incursion; and second as a result of that, that Mr McClelland’s blood alcohol concentration at the time must have been in excess of 80 milligrams.

[26] That concession, in my view, ends the contest. On a fair reading of the Notes of Evidence, it is clear that Dr Sandiford’s primary concern was microbial incursion as this seemed to be the only variable capable of bridging the gap in the specimen between the 80 milligram legal limit and the 188 milligram reduced reading. Once that became clear, s 25(3) of the Evidence Act falls away, in my view. That is because Dr Sandiford accepted that Ms McGavin was sufficiently expert and experienced to read and understand the sample trace.

[27] Mr Geiringer suggested that the non-standard variation in the two sets of tests might possibly have indicated something more fundamental was wrong with the

equipment. Given that his own expert did not suggest such a possibility, at least not in the clear terms she employed to address her concerns in respect microbial action, that must be seen as speculative.

_{[28] The appeal is dismissed accordingly.}

Williams J

---

[1] Section 77(2) LTA creates an irrebuttable presumption that the proportion of alcohol in the specimen analysed is the same as the proportion in the accused’s blood at the time of the alleged offence.
[2] _{R v Ah Chong HC Auckland CRI-2004-004-010735, 12 September 2006.}
[3] Police v Dunbar DC Queenstown, 17 October 2011, CRI-2011-0591133.