DARCH v POLICE [2019] NZHC 3449

DARCH v POLICE [2019] NZHC 3449 [19 December 2019]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2019-425-000012[2019] NZHC 3449BETWEEN LESLEY ANN DARCHAppellantAND NEW ZEALAND POLICERespondentHearing: 16 December 2019Appearances: T McCullum for the AppellantS McKenzie for the RespondentJudgment: 19 December 2019JUDGMENT OF NATION JIntroduction[1] Ms Darch was charged with driving with excess blood alcohol (3rd orsubsequent). She defended the charge on the basis the procedure by which her bloodwas taken was incorrect and it was improperly obtained evidence. On 8 February2019, Judge Callaghan rejected that argument and found the charge proven. On 12March 2019, Ms Darch was sentenced to 200 hours' community work, 12 months'supervision, special conditions to complete an alcohol and drug programme, and 12months one day's suspension from driving.[2] Ms Darch's appeal was filed by previous counsel as being against convictionand sentence. Ms McCullum before me only advanced arguments as to conviction.Facts[3] On 23 December, Ms Darch was driving her vehicle in Gore. She came closeto colliding with a member of the public, who called the Police. The Police arrivedand required her to undergo a roadside alcohol breath test. She was required toaccompany the officer to a Police station after a roadside breath screening test provedpositive.[4] Ms Darch was unable to complete the evidential breath screening test and wasrequired to provide a sample of blood. She did so at the Emergency Department ofGore Hospital. The sample was taken by a nurse, Ms Borthwick.[5] Analysis of that sample concluded she had 277 milligrams of alcohol per 100millilitres of blood, in excess of the 80 milligrams per 100 millilitres of blood thresholdin s 56 Land Transport Act 1998 (the Act).District Court decision[6] Ms Darch's defence at trial, and on appeal, is that the blood was not taken byMs Borthwick following the correct procedure in the Act. Judge Callaghan set outhow Ms Darch and the respondent differed as to the facts of the way that blood samplewas taken.[7] The nurse's evidence was that there were two initial attempts to take bloodfrom Ms Darch. They were stopped because Ms Darch was upset or moving. Neithertime was Ms Darch's skin pierced (although it may have been scratched when shemoved the first time). In both instances the nurse gave Ms Darch time to composeherself. The nurse obtained the blood on the third attempt. Conversely, Ms Darch saidthe needle went into her left arm three times before the nurse tried twice on her rightarm. She says that blood was obtained on the fifth puncture.[8] The judge said when comparing the evidence:... I prefer the evidence of Ms Borthwick who was able to recall quite clearlywhat the procedures were, the fact that she attempted to puncture the vein onthe first occasion, but did not and openly admitted a slight touching the skinsurface which did not draw blood when Ms Darch's arm moved away, that shegave her a chance to recollect herself and then attempted again with herpermission. Again because of the state that Ms Darch was in, namely that shewas anxious and quite shaky, she again was unable to puncture the vein on thesecond occasion and did not actually touch the skin, that on the third occasionthe procedure went through and she extracted the two samples of blood. Ireject Ms Darch's assertion that there were five puncture wounds. She openlyadmitted that she was intoxicated on this day, she maintains that she has agood memory of what occurred but her level of 262 milligrams of alcohol per100 millilitres of blood Would indicate that she was extremely intoxicated atthe time that this was occurring. She also says that she was lying on the bed.The clear evidence of both the constable and the nurse was that she was sittingin the chair with her left arm on the bed. I reject her evidence and prefer theevidence of the constable.[9] The Judge set out in detail how the blood was taken. He noted the nurse had25 years of experience and took blood two or three times a day by needle. The nurseexplained two officers were in the room while this happened. One of those officers,Constable Robinson, gave evidence that he saw the vein get punctured once. MsDarch gave evidence that only one Police officer was present. That is despite theconstable being able to give the name of the policewoman present.Principles on appeal[10] Section 232 Criminal Procedure Act 2011 provides that the High Court mayonly allow an appeal against conviction if satisfied that the trial judge "erred in his orher assessment of the evidence to such an extent that a miscarriage of justice hasoccurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.1 In this section, a trial includes a proceeding in which theappellant pleaded guilty.2[11] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011, and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied there has been anerror in the imposition of the sentence and that a different sentence should beimposed.31 Section 232(4).2 Section 232(5).3 Criminal Procedure Act, ss 250(2) and 250(3).Submissions[12] In her initial submissions for Ms Darch, her present counsel Ms McCullumsaid:As the appellant's original counsel was suspended from practice within a shorttime following the appellant's Judge along trial, counsel submits that it is inthe interests of justice that this appeal is allowed. Issues with counsel is a wellestablished ground for granting of an appeal.[13] On the hearing of the appeal, Ms McCullum said the background was advancedwith the appeal when it was first due to be heard. At that time, she had been unable toproperly advance the appeal through being unable to obtain from previous counsel therecord of evidence from trial or any other material or information that he had held.That had been subsequently remedied through further information provided to her bythe Crown, the Police and the Court. That ground of appeal was not advanced furtherat the hearing. The position as to that submission is as stated by Mr Donnelly for theCrown in his written submissions.[14] The further ground of appeal, as filed by Ms Darch's previous counsel, wasthat the Judge had been in error in accepting the evidence of prosecution witnesses. Itwas submitted for Ms Darch on appeal that the Judge placed significant weight on theevidence of Mr Borthwick, the nurse. Counsel pointed to the conflict between whatthe nurse and constable said with what Ms Darch said and tentatively suggested thatthe Judge had not given adequate reasons for preferring the evidence of prosecutionwitnesses to that of Ms Darch.[15] For the respondent, the Crown submits that a simple error in an assessment ofevidence will not justify an appellate court overturning a conviction unless the errorwas to such an extent that a miscarriage of justice has occurred. The respondent saysthat has not occurred here.Analysis[16] When considering the conduct of trial counsel, the relevant principles are wellsettled. In R v Sungsuwan, Gault J said:4[C]onsideration of whether there was in fact an error or irregularity on the partof counsel, and whether there is a real risk it affected the outcome, generallywill be an appropriate approach. If the matter could not have affected theoutcome any further scrutiny of counsel's conduct will be unnecessary. Butwhatever approach is taken, it must remain open for an appellate court toensure justice where there is real concern for the safety of a verdict as a resultof the conduct of counsel even though, in the circumstances at the time, thatconduct may have met the objectively reasonable standard of competence.[17] In the Court of Appeal, Arnold J later stated (referring to Sungsuwan) that thefocus should be on the trial process and its outcome, rather than on the characterisationof counsel's conduct.5[18] In a matter involving the appellant's trial counsel, Mr Claver, the SupremeCourt recently issued a judgment in the matter of Bunting v R.6[19] Although the Supreme Court left open the possibility that an unfair trial couldhave resulted (based on the finding of the New Zealand Lawyers and ConveyanceDisciplinary Tribunal that over a period of two to three years there had been a rangeof failures by Mr Claver) the Crown submits the principles earlier articulated remainrelevant. It is not enough to say that because of later disciplinary sanctions all of theproceedings previously conducted by trial counsel, within the time period relating tohis/her misconduct, represent miscarriages of justice. Something from the trial muststill be identified as giving rise to an unfair trial, or a trial that is a nullity.[20] The Court of Appeal had earlier reviewed Mr Claver's conduct at trial (in theprosecution of Mr Bunting) and had dismissed the appeal based on trial counsel error(and other grounds).74 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70].5 R v Scurrah CA 159/06, 12 September 2006.6 Bunting v R [2019] NZSC 95.7 Bunting v R [2018] NZCA 602.[21] Under s 72 Land Transport Act, a Police officer may require a suspect, such asthe present appellant, to permit a medical practitioner or medical officer to take a bloodspecimen from them. Section 72(4) provides that, if the blood specimen taken isinsufficient to be divided into two parts as is required by s 74(1), the suspect mustpermit a medical practitioner or medical officer to take a further blood specimenimmediately after being requested to do so by that medical practitioner or medicalofficer. In Curle v Police the High Court held that it followed that, in certain, limitedcircumstances, s 72 authorises the taking of two blood specimens.8[22] The restriction on taking blood specimens is because taking a specimen froma person is highly invasive.9 If not taken pursuant to statutory authority, it would beunlawful and a serious breach of s 21 New Zealand Bill of Rights Act 1990.[23] Counsel for Ms Darch seeks to advance an argument that testing done by MsBorthwick was in breach of procedure and thus her rights. This appeal can only beallowed if this Court is satisfied that the trial Judge erred in his assessment of theevidence to such an extent that a miscarriage of justice has occurred. Ms Darch hasfailed to put forward any error in the sentencing Judge's reasoning and there is noreason why the evidence for Ms Darch should be preferred over the evidence of anexperienced nurse and Police officer. In the passage of the Judge's decision citedabove, he does adequately explain why he provided the evidence of crucial prosecutionwitnesses.[24] In any event, even taking the most favourable view of the evidence in line withMs Darch's account of what occurred, there is nothing to suggest there was a breachof medical procedure.[25] That procedure was set out by Judge Callaghan with referred to Bostock andCarpenter.10 In Carpenter, there were said to have been four unsuccessful attemptsto take a blood sample before a successful one on the fifth. In Bostock, the medicalpractitioner initially tried to extract blood from Ms Bostock's arm but only succeeded8 Curle v Police HC Auckland CRI-2011-404-000176 at [14].9 At [8].10 Auckland City Council v Bostock HC Auckland, m390/80, 3 June 1980 and Carpenter v Police[2006] DCR440.in withdrawing less than one cc of blood before the vein collapsed. The doctor thentried the other arm but again withdrew less than one cc before that vein also collapsed.She then proceeded to extract blood successfully from a vein on the back of MsBostock's right hand. The evidence was allowed in Carpenter but was not allowed inBostock.[26] In the present case, Ms Darch does not allege that blood was taken in any ofthe first four attempts, as described by Ms Darch. As Venning J held in Curle vPolice:11Carpenter, like the present case, can be distinguished from Bostock on thebasis that in Carpenter, like this case, the earlier unsuccessful attempts by themedical officer did not result in any blood specimens being taken. Bostock isauthority for the proposition that if two specimens of venous blood are taken,but for whatever reason are insufficient for the purposes of s 74, s 72 does notauthorise a third blood specimen to be taken. However, it does not have theeffect of preventing a medical officer taking a blood specimen if the first orsubsequent attempts to do so are unsuccessful and do not draw blood.[27] I do not prefer the evidence of Ms Darch. Even if I did, she does not claimmore than two specimens of blood were taken. As in Carpenter, there has been nobreach of medical procedure. Nor was there any element of unreasonableness in termsof s 21 New Zealand Bill of Rights Act.Conclusion[28] Accordingly, the appeal is dismissed.Solicitors:Southern Law, InvercargillPreston Russell Law, Invercargill.This judgment was delivered by me on 19 December 2019 at 4.00 pmRegistrar / Deputy RegistrarDate: 19 December 201911 At [20].