Haines v Police [2017] NZHC 2541 (18 October 2017)

Last Updated: 3 October 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2017-454-15 [2017] NZHC 2541

BETWEEN	QUENTIN STOBART HAINES Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	17 October 2017
Counsel:	A OʼConnor for Appellant M Blaschke for Respondent
Judgment:	18 October 2017

JUDGMENT OF SIMON FRANCE J

[1] Mr Haines appeals his conviction and sentence on a charge of driving with excess blood alcohol.¹ At issue is the inability of Mr Haines to have the second blood sample tested independently. Prior to trial he unsuccessfully argued this inability should mean that his trial was stayed.² At trial he argued the same defect meant the prosecution could not prove the charge beyond reasonable doubt.

Facts

[2] The vehicle Mr Haines was driving was stopped. Mr Haines failed an evidential breath test and requested a blood sample be taken. This was done and the result provided by ESR was a reading of 95 mg per 100 ml of blood.

1. New Zealand Police v Haines [2017] NZDC 17720 (conviction) and [2017] NZDC 18453 (sentence).

² New Zealand Police v Haines [2017] NZDC 13527.

HAINES v POLICE [2017] NZHC 2541 [18 October 2017]

[3] Mr Haines required the second sample to be tested and it was sent off for testing. However, the agency that conducts the test declined to analyse it because the blood was stored in a vacutainer the expiry date for which had passed. It is that laboratory’s policy not to test samples in such circumstances. No alternative independent testing facility is available in New Zealand.

[4] Some further relevant facts emerged from the evidence. Traditionally blood was taken by a syringe and stored in glass bottles. However, the practice changed so that the blood was taken by and stored in what are known as vacutainers. The reason for the change related to the fact that vacutainers proffer a better method of taking blood than a syringe. The reason for an expiry date relates to the utility of the vacutainer as a blood drawing device. Two experienced scientists confirmed at trial that the expiry date is irrelevant to the vacutainer as a blood storage device. It is sound for those purposes before or after expiry.

[5] As noted, evidence was taken from two scientists. The first was Ms Moar from ESR and was the analyst who did the initial testing. She confirmed the sample appeared sound. She retested it 13 months later and obtained a slightly lower blood alcohol reading, a result consistent with known deterioration rates for alcohol in such conditions.

[6] The second scientist, Dr Sandiford, was called by Mr Haines. It was to her the sample was sent. Dr Sandiford uses the services of the only available laboratory, which as noted declined to test it. Dr Sandiford confirmed the evidence of the ESR scientist about vacutainers, and also commented that from her visual observation of the untested sample there were no obvious problems with it. She also agreed the retesting results were consistent with established norms.

Decision

[7] I deal first with the sufficiency of evidence point. What one has here is the absence of evidence (the second blood sample). From a sufficiency of proof point of view, the issue can only be whether that absence creates a reasonable doubt. Overwhelmingly here, on the evidence already detailed, it did not. It was possible, indeed inevitable, to be sure about the soundness of the initial result.
[8] Conceptually in these situations the absence of a second test will normally not create a reasonable doubt as long as the result that is available is a product of the correct statutory process and is certificated by the appropriate person. A trial situation such as here where a defendant has been unable to obtain a second analysis is identical from a proof viewpoint to the trial situation where a defendant has not requested such an analysis, or otherwise sought to impeach the original result. The available evidence is the same. Put concisely, something more is needed to cast a concern about the sample and its testing before the inability to undertake a second test is likely to be of any import.

[9] Moving on from the sufficiency of evidence point, in my view the appellant was correct conceptually to seek a stay of proceedings on the basis of an unfair trial. For the reasons given the situation is not one of insufficient evidence, and so resort to a wider principle is required. That said, the application for a stay runs counter to the statutory scheme and was correctly dismissed. Now cast as a conviction appeal point, the answer is that a trial in these circumstances is not unfair.

[10] The basic scheme of the Land Transport Act 1988 is that the analyst who does the initial testing produces a certificate confirming the process and the outcome. Section 75(1) provides that the certificate is then sufficient evidence of its contents, in the absence of evidence to the contrary.

[11] An alleged offender is entitled to have the second sample sent to an independent person for testing. Section 79 sets out the consequences if the alleged offender makes an application for independent testing but this does not happen:

(a) if the second sample is not sent, the initial certificate becomes inadmissible;

(b) if the second sample is sent but does not produce a useable outcome, a Court may direct the initial certificate to be inadmissible and instead require the initial analyst to appear to give oral evidence about the testing. Such an order may only be made after affidavit evidence is received from the second analyst as to why a result was not obtainable.
[12] The statute therefore provides its own consequences for a failed second sample process. The prosecution cannot rely on the certification process but must produce direct reliable evidence of the testing and the results on which it relies. There is no suggestion, however, that the charge cannot still be proven or proceed at all.

[13] The Court of Appeal addressed this issue in relation to the previous but very similar scheme in Shea v Auckland City Council.³ There the Court held the prior scheme did not require that the second sample be capable of analysis, only that it be delivered. More importantly, the Court observed that the key issue is whether the reason for a defect in the second sample raises a doubt about the validity of the initial test. In other words, it is a question of proof.

[14] The appellant relied on Police v Tidswell.⁴ There the initial ESR analyst had raised by letter a question about the security of the seal on the second sample. This letter was not disclosed to the defendant. The Court saw the consequence of non-disclosure as a lost opportunity to challenge the blood alcohol level through a second test. The prosecution was stayed. The Court was clearly influenced by concerns about non-disclosure, but I accept the decision is also premised on according greater weight to an ineffective second sample than I am.

Conclusion

[15] The effect of the appellant’s case, if accepted, is that there could not be a prosecution whenever the second sample cannot be tested. I do not accept that would be consistent with a statutory scheme which both itself creates the obligation to have a second sample, and sets out the consequences of a flawed second sample. This latter aspect of the legislation would be otiose if in fact the consequence of an ability to test is that a prosecution cannot continue.

[16] The ability to have a second sample tested is an important safeguard. However, I do not accept that in those cases where for whatever reason it is not possible to have the test done, any prosecution thereby becomes unfair. There are other significant

³ Shea v Auckland City Council [1980] 2 NZLR 503 (CA) at 506.

⁴ Police v Tidswell DC Porirua CRI 2011-091-2652, 6 December 2012 per Judge Walker.

safeguards built into the processes attaching to the initial testing, all of which can be challenged. If those processes are complied with, the intent and effect of the legislation will almost always be that a reliable testing outcome is produced. That affords sufficient safeguard to make the prosecution fair notwithstanding the inability to test the second sample.

[17] The appeal against conviction is dismissed.

[18] The sentence appeal related to a $60 order for witness fees. The Crown accepts it is not correctly included in this case, and to that extent the sentence appeal is allowed, and the order to pay a $60 witness fee is quashed.






Simon France J

Postscript

[19] The evidence suggests in New Zealand there is only one independent testing option. That laboratory presently will not test in these circumstances. I do not know how common the present situation is, but obviously it is to be avoided. If expired vacutainers were regularly used, then that could be seen as systemically undermining the statutory scheme, given that for practical purposes it means testing of the second sample cannot be done. Either expired vacutainers should not be used for these blood alcohol purposes, or discussions need to occur to ensure the independent lab will anyway test the sample.

[20] For these reasons, I direct the Registry to forward this judgment to the Commissioner of Police (Chief Legal Adviser) and the Deputy Solicitor-General (Criminal).