ROGERS v POLICE [2019] NZCA 94

ROGERS v POLICE [2019] NZCA 94 [8 April 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA584/2018[2019] NZCA 94BETWEEN CLIFFORD TREVOR ROGERSApplicantAND NEW ZEALAND POLICERespondentCourt: Gilbert, Wylie and Thomas JJCounsel: W R Hawkins for ApplicantR K Thomson for RespondentJudgment:(On the papers)8 April 2019 at 2 pmJUDGMENT OF THE COURTA The application for an extension of time to file the application for leave toappeal is granted.B The application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] At 12.35 pm on 17 September 2017, Clifford Rogers was driving a truck onState Highway 2 near Hastings when he failed to negotiate a gentle curve in the roadand crashed into a fence. Mr Rogers was taken to hospital where a blood specimenwas taken pursuant to s 73 of the Land Transport Act 1998 (the Act). On analysis,the specimen was found to contain methamphetamine, a controlled drug specified insch 1 of the Misuse of Drugs Act 1975. Mr Rogers was then charged under s 58(1)(b)of the Act which provides:58 Contravention of section 12(1) A person commits an offence if the person drives a motor vehicleon a road—(b) If the person's blood, as ascertained from an analysis of ablood specimen subsequently taken under section 73, containsevidence of the use of a controlled drug specified inSchedule 1 of the Misuse of Drugs Act 1975.[2] Mr Rogers gave evidence at his trial before Judge Adeane. He said that the daybefore the accident, he assisted in decontaminating a motel unit which "may have beenaffected by methamphetamine". The Judge said of this suggestion:1There is absolutely no evidence, however, of this. Of where the premiseswere. Of the reasons for which it is considered methamphetamine might havebeen present at any time. Of the need for the decontamination. Of the partplayed in it by Mr Rogers. Or indeed of anything else — except Mr Rogers'assertion, (which could be a convenient one) that he had cleaned up somemethamphetamine the day before thereby leading the Court to speculate thatthis may bear in some relevant way upon the charge.[3] In the absence of any evidence to support Mr Rogers' defence, the Judge foundthe charge proved. Mr Rogers was accordingly convicted, fined $600 and disqualifiedfrom driving for six months.[4] Mr Rogers appealed against his conviction to the High Court. The appeal wasdismissed by Collins J in a judgment delivered on 28 August 2018.2 The Judge notedthat the offence created under s 58(1)(b) of the Act is one of strict liability.3Once the prosecution has proved the act of driving and evidence of use ofthe controlled drug as ascertained from an analysis of a blood specimen taken fromthe driver, the onus shifts to the defendant driver to prove absence of fault on their part1 Police v Rogers [2018] NZDC 15132 at [3].2 Rogers v Police [2018] NZHC 2221.3 At [16].on the balance of probabilities.4 Collins J agreed with Judge Adeane that Mr Rogershad failed to discharge that onus.5[5] Mr Rogers now applies for leave to bring a second appeal.Extension of time[6] Mr Rogers' notice of appeal was filed late but he has explained the delay.The Crown does not oppose his application for an extension of time and we aresatisfied it is appropriate to grant that application accordingly.Proposed appeal[7] Mr Hawkins, for Mr Rogers, submits that the courts below erred in theirinterpretation of the words "evidence of use" in s 58(1)(b) of the Act. He contendsthat "evidence of use" means not just the presence of the drug in the person's bloodbut requires evidence of "voluntary use of a drug". The second ground of the proposedappeal is that the courts below did not apply the correct standard of proof becausethe level of methamphetamine found in Mr Rogers' blood was not proved, leavingopen the reasonable possibility the evidence of use was no more than de minimis.Mr Hawkins submits that these errors led to a miscarriage of justice, and there shouldbe a second appeal.Decision[8] Section 58(1)(b) of the Act requires proof that the person's blood "containsevidence of the use of a controlled drug". This must be ascertained from an analysisof a blood specimen taken under s 73 of the Act. The prosecution does not need toprove that the driver knowingly consumed the controlled drug. Such a requirementwould defeat the clear intention of the legislature in creating this strict liability offence.Nor is the prosecution required to prove the level at which the controlled drug waspresent. The presence of the controlled drug in the driver's blood is the evidence ofits use for the purposes of the section. We agree with Collins J that once4 Tell v Maritime Safety Authority [2008] NZAR 306 (CA) at [13].5 At [22]–[23].the prosecution has proved evidence of use by demonstrating the presence of the drugin the driver's blood, the onus shifts to the defendant to prove his or her total absenceof fault for driving with the controlled drug in their bloodstream. Total absence offault must be proved on the balance of probabilities.[9] The Court must not give leave for a second appeal unless satisfied thatthe appeal involves a matter of general or public importance or a miscarriage of justicemay have occurred.6 We are not persuaded the proposed appeal raises a question ofgeneral or public importance capable of serious argument. Nor is there any appearanceof a miscarriage of justice having occurred. The application for leave to bring a secondappeal must accordingly be declined.Result[10] The application for an extension of time to file the application for leave toappeal is granted.[11] The application for leave to bring a second appeal is declined.Solicitors:Bramwell Bate Lawyers, Hastings for ApplicantCrown Law Office, Wellington for Respondent6 Criminal Procedure Act 2011, s 237(2).