LAUREN DODGSON V NEW ZEALAND POLICE COA CA124/2011

LAUREN DODGSON V NEW ZEALAND POLICE COA CA124/2011 30 August 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA124/2011[2011] NZCA 428BETWEEN LAUREN DODGSONApplicantAND NEW ZEALAND POLICERespondentHearing: 25 August 2011Court: O'Regan P, Ronald Young and Venning JJCounsel: W M Johnson for AppellantC A Brook for RespondentJudgment: 30 August 2011 at 3:00 PMJUDGMENT OF THE COURTSpecial leave to appeal is refused.____________________________________________________________________REASONS OF THE COURT(Given by Ronald Young J)Introduction[1] On 30 August 2009 Ms Dodgson was driving her car when she was stopped by a police officer. Subsequent testing showed that while driving she had had 167 milligrams of alcohol per 100 millilitres of blood, just over double the maximum allowed under the Land Transport Act 1998.11 Land Transport Act 1998, s 56(2).[2] The applicant was convicted of driving with excess blood alcohol in the District Court.2 Her appeal against conviction was dismissed in the High Court3 and that Court refused leave to appeal concluding the two questions posed by the applicant had no arguable chance of success.4[3] The applicant now seeks special leave to appeal to this Court on the same two questions:(a) Does the prosecution in a driving with excess blood alcohol case have to prove the chain of custody of the blood sample once taken and sent for analysis, beyond reasonable doubt by producing evidence of that chain of custody?(b) Does the prosecution, relying on a Blood Medical Certificate pursuant to s 75(2) of the Land Transport Act 1998 in a driving with excess blood alcohol case, have to prove the particulars of a blood specimen collecting kit, (as defined by s 2 of the Act), when challenged as to those particular by the defence?[4] The applicant must establish there is a question of law "which by reason ofits general or public importance or for any other reason ought to be submitted to theCourt of Appeal for decision".5 We accept in this case both are questions of law.Chain of custody evidence[5] As to the first point, as the respondent submitted, in a prosecution for driving with an excess blood alcohol the prosecution must prove beyond reasonable doubt:(a) that the defendant was driving;2 New Zealand Police v Dodgson DC Lower Hutt CRI-2009-078-4285, 6 September 2010.3 Dodgson v Police HC Wellington CRI-2010-485-99, 30 November 2010.4 Dodgson v New Zealand Police HC Wellington CRI-2010-48-99, 16 February 2011.5 Summary Proceedings Act 1957, s 144(2).(b) that he or she was driving on the road;(c) that while driving on the road, the proportion of alcohol in thedefendant's blood exceeded the maximum allowable (as ascertained by the legislatively approved process under the Land Transport Act).[6] The applicant's first question focuses on a chain of custody argument. Counsel submits that once blood is taken from a defendant and comes into the possession of the police officer undertaking the process, then there must be evidence which establishes beyond reasonable doubt how the blood sample, in the possession of the police officer, gets to the ESR for analysis. The applicant's case is that theprosecution must prove beyond reasonable doubt a chain of custody which links the police officer's dispatch of the blood with the receipt by the ESR.[7] The applicant's case is that in the absence of evidence of a chain of custody, aCourt could not be satisfied beyond reasonable doubt that the blood being analysed is the defendant's, taken at the relevant time.[8] In each blood alcohol prosecution it must be proved beyond reasonable doubt that the blood that is analysed by the ESR is the defendant's, taken in relation to the occasion of the driving alleged in the information. How that is proved will be a matter for the prosecution. Whether it is proved will be a factual matter for the trial Judge to be assessed individually in each case. In this case the Judges in the District Court and the High Court recognised this point. They were satisfied that the bloodanalysed was the applicant's, taken from her after her apprehension by the police officer. We agree with Mallon J in the High Court that there is no arguable prospect of success on this point.Land Transport Act 1998, s 75[9] The second proposed ground of appeal relates to the use of the blood specimen collecting kit in s 75 of the Land Transport Act. Section 75 provides as follows: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 amedical 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.[10] The essence of s 75 is that, subject to s 79, the certificate is sufficient proof of the matters in the certificate. In this case the prosecution elected to rely upon the s 75 certificate. During the hearing in the District Court the applicant's counselasked the police officer some questions about the blood specimen collecting kit. The Judge in the High Court identified the exchange in this way:[31] In cross-examination of the police officer, counsel for Ms Dodgson asked the officer who obtained the kit. The officer replied that he had not obtained the kit because the nurse knew that the kits were kept in the cupboard in the medical room at the police station. The officer said the medical room was opened with a set of keys. Counsel asked the officer if he had looked at the materials for taking the blood. The officer said that it comes in a box and has a plastic wrapper with a batch number around the outside of it. The officer was asked if he knew what the batch number wasand what the wording was on the box. The officer said that "[f]rom memory I'm not sure". He was asked what the expiry date was and he gave the sameanswer.[11] The applicant's case is that once the applicant had challenged the police officer in evidence about the blood specimen collecting kit then such a challenge constituted proof to the contrary in s 75(1).[12] Thus, counsel for the applicant says given his challenge there is proof to the contrary of some of the matters in the s 75 certificate. This in turn means the s 75 certificate could no longer be relied upon by the prosecution.[13] This submission is based on a false premise. Counsel's questions, unlessaccepted by the witness, are not evidence. Here, the applicant put a series of propositions to the police officer about the blood specimen collecting kit to which the police officer could not respond. He did not know the answers to the questions. The result was that counsel for the applicant established nothing other than theofficer's lack of knowledge. He did not "prove to the contrary" any of the details ofthe certificate. The s 75 certificate remained as evidence and established the matters contained in the certificate. We agree with Mallon J this challenge has no prospect of success.[14] For the reasons given, therefore, special leave to appeal on both grounds is refused.Solicitors:Crown Law Office, Wellington for Respondent