MELANIE WICHART v NEW ZEALAND POLICE [2019] NZCA 212

WICHART v NEW ZEALAND POLICE [2019] NZCA 212 [11 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA789/2018[2019] NZCA 212BETWEEN MELANIE WICHARTApplicantAND NEW ZEALAND POLICERespondentHearing: 29 May 2019Court: French, Miller and Lang JJCounsel: ASP Tobeck for ApplicantR K Thomson and M J Lillico for RespondentJudgment: 11 June 2019 at 3.00 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal against conviction is declined.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Ms Wichart was charged with driving with excess blood alcohol.1She defended the charge on the basis that there were shortcomings in the procedure bywhich the police had obtained a sample of her blood. In a decision delivered on6 July 2018 Judge Saunders rejected these arguments and found the charge proved.21 Land Transport Act 1998, s 56(2).2 Police v Wichart [2018] NZDC 13325.[2] Ms Wichart appealed unsuccessfully against conviction3 and now seeks leaveto advance a second appeal to this Court.The statutory test[3] Section 237(2) of the Criminal Procedure Act 2011 prohibits this Court fromgranting leave for a second appeal unless it is satisfied the proposed appeal involves amatter of general or public importance or, alternatively, a miscarriage of justice hasoccurred or may occur unless the appeal is heard. In McAllister v R this Courtconfirmed that the statutory test sets a higher threshold for a second appeal.4The proposed questions on appeal[4] On Ms Wichart's behalf Mr Tobeck submits leave should be granted on twoquestions, both of which he says involve issues of public or general importance and/orwill result in a miscarriage of justice if leave is not granted. The issues are:(a) whether the prosecution was required to prove that the blood specimencollection kit the police used to take the blood sample from Ms Wicharthad not passed its expiry date; and(b) whether the prosecution was required to prove that the police compliedwith a request by Ms Wichart that they should arrange for the Instituteof Environmental Science and Research (the ESR) to forward part ofthe blood sample to a nominated private analyst.Background[5] Ms Wichart was stopped by the police when she was driving her motor vehiclein the West Coast township of Harihari on the morning of 1 January 2018. She wasrequired to accompany the officer to a police station after a roadside breath screeningtest proved positive. At the police station she elected to give a sample of her blood foranalysis after she failed an evidential breath test. The police sergeant who was3 Wichart v Police [2018] NZHC 3069.4 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.undertaking the testing procedures then arranged for a nurse to take the blood sampleusing a blood specimen collection kit.[6] During the testing procedure the sergeant and the nurse completed a bloodspecimen medical certificate recording details of the procedure they undertook.In doing so they committed several errors, one of which was that the sergeant omittedto fill in a box on the form recording the batch number of the blood specimencollecting kit that had been used to obtain the blood sample.[7] The sample taken from Ms Wichart was divided into two containers and thesewere placed back in the blood specimen collection kit. One of these was to be usedby the ESR for analysis and the other was to be retained so that it could be sent to aprivate analyst if Ms Wichart asked for that to be done.5 The kit was then stored atthe Greymouth Police Station until it was couriered to the ESR in Wellingtonthree days later.[8] On 9 January 2018, the ESR issued an approved analyst's certificate(the certificate of analysis) under s 75(5) of the Land Transport Act 1998 (the LTA).This confirmed that the proportion of alcohol in Ms Wichart's blood was no less than118 milligrams of alcohol per 100 millilitres of blood. The legal limit is 80 milligramsof alcohol per 100 millilitres of blood. The certificate of analysis contained astatement that "[n]o such deterioration or congealing was found as would prevent aproper analysis".[9] On 5 February 2018, Ms Wichart wrote to the police asking that the containerof her blood that had not been used in the ESR analysis be sent to a nominated privateanalyst. This obliged the police and the ESR to arrange for the second blood sampleto be sent to that analyst.6 The police then wrote to the ESR asking it to forward thesecond sample to the private analyst named in Ms Wichart's letter.5 As required by cl 6(1) of the Land Transport (Blood Specimen Collecting Instrument andProcedure) Notice 2014.6 Land Transport Act, s 74(5)(b).The hearing in the District Court[10] Prior to the hearing in the District Court Ms Wichart's counsel did not advisethe prosecution that he required either the nurse who took the blood sample orthe analyst who prepared the certificate of analysis to give evidence.7 As a result, theonly witness called for the prosecution was the police sergeant who had arranged forthe nurse to take the blood sample. He produced the blood specimen medicalcertificate that he and the nurse had completed, together with the certificate of analysisfrom the ESR.[11] Mr Tobeck, who appeared as counsel for Ms Wichart at the hearing inthe District Court, referred two letters to the sergeant in cross-examination. Thesewere copies of the request by Ms Wichart for the remaining blood sample to beforwarded to a private analyst and the letter sent by the police to the ESR requestingthat this be done. Mr Tobeck did not go on to ask the sergeant whether the ESR hadcomplied with that request.[12] In closing submissions Mr Tobeck advanced several technical argumentsarising out of the manner in which the nurse and the sergeant had completed the bloodspecimen medical certificate. These included the fact that the sergeant had not writtenthe batch number of the blood testing kit in the space provided on the certificate.In rejecting these arguments the Judge recorded that Mr Tobeck had not askedthe sergeant any question suggesting the ESR had failed to comply with the request bythe police to forward the second sample to the nominated analyst.8 Nor had he madea submission that the police and the ESR had failed to comply with the request to sendthe second sample to a private analyst.The appeal to the High Court[13] On appeal to the High Court, Mr Tobeck again relied on the failure ofthe sergeant to record the batch number of the blood testing kit. Mr Tobeck contended7 Sections 79(1) and (3) of the Land Transport Act require a defendant to apply not less than 14 daysbefore the hearing for orders that persons involved in the blood testing procedure appear at thehearing. These include the medical practitioner or medical officer who took the blood sample, theperson who delivered or sent the blood sample to the analyst and the analyst who prepared thecertificate of analysis to appear at the hearing.8 Police v Wichart, above n 2, at [22].this was a material defect because it meant the Court could not be sure the bloodspecimen collection kit had not passed its expiry date. It is not clear whether headvanced the same argument in the District Court because the Judge's decision doesnot refer to it. During cross-examination, however, the sergeant had conceded that hehad "no idea" of the batch number of the kit or whether it had passed its expiry date.[14] Justice Gendall considered the argument faced an obvious hurdle in that therewas no evidence to confirm that the blood specimen kit in question had an expiry date.9He did not consider the cross-examination of the sergeant shed light on this issuebecause it established only that the sergeant had no knowledge about any expiry date.10[15] The Judge also noted that s 75(1) of the LTA provides that production of ananalyst's certificate is sufficient evidence, in the absence of proof to the contrary, ofthe matters contained in the certificate. There had been no evidence in the presentcase to suggest the certificate was wrong. The Judge held this to be insuperable byMr Tobeck's argument on this point.[16] Mr Tobeck next contended the certificate of analysis was inadmissible becausethe prosecution had failed to prove that the ESR had forwarded the second containerof Ms Wichart's blood to a private analyst in accordance with her request unders 74(5)(b) of the LTA. He relied for this argument on s 79(2), which provides that acertificate of analysis will not be admissible if, for whatever reason, the request is notcomplied with.[17] The Judge considered this to be a technical argument having no merit.He pointed out that Mr Tobeck had never suggested to the sergeant that the ESR didnot comply with the request by the police. This created the obvious inference thatMr Tobeck had not asked the question because he did not wish to mislead the Court.[18] The Judge considered that the prosecution will only be required to adduceevidence of compliance with a request under s 79(5) of the LTA where the fact ofcompliance is directly challenged by the defence.11 Where that does not occur until9 Wichart v Police, above n 3, at [10].10 Dodgson v New Zealand Police [2011] NZCA 428 at [13].11 Wichart v Police, above n 3, at [35].trial, the prosecution should be permitted to adduce further evidence in rebuttal of thedefence argument.Decision[19] Mr Tobeck's submission that a miscarriage of justice may occur if leave toappeal is not granted is without substance in relation to both proposed grounds ofappeal. A miscarriage of justice could only occur in the present context if there wasan appreciable risk Ms Wichart may have been wrongly convicted. No such risk arisesbecause Ms Wichart has never sought to challenge the information contained in thecertificate of analysis. As a result, she was clearly driving when the level of alcoholin her blood was above the legal limit. Leave can therefore only be granted if theproposed appeal raises an issue of public or general importance.The expiry date issue[20] The blood specimen was taken from Ms Wichart under s 72 of the LTA.Section 74(1) of the LTA requires all blood samples taken under s 72 to "be dealt within accordance with the relevant blood specimen collecting procedure". Section 2 ofthe LTA defines "blood specimen collection procedure" as being "the taking of a bloodspecimen by a blood specimen collecting instrument in a manner prescribed bythe Commissioner of Police by notice in the Gazette".[21] As at 1 January 2018, the operative notice under s 2 was the Land Transport(Blood Specimen Collecting Instrument and Procedure) Notice 2014 (the Notice).Depending on the device used to obtain the sample,12 cls 6(1) and 9 of the Noticerequire any blood specimen taken under s 72 of the LTA to be divided into two parts,each of which must be stored in a separate container taken from a sealed bloodspecimen collecting kit. Once tamper-evident security seals are applied to thecontainers, the person who took the blood sample must hand them to an enforcementofficer.1312 The Notice permits a blood specimen to be taken using either a needle and syringe or a vacutainer:cl 5(2).13 Clause 8.[22] The LTA defines "blood specimen collecting kit" as follows:14blood specimen collecting kit means a package having endorsed on it oraffixed to it or included in it a label indicating that it is a blood specimencollecting kit and that it has been supplied by or on behalf of a laboratory forthe time being approved by the Science Minister, by notice in the Gazette, forthe purpose of supplying or causing to be supplied blood specimen collectingkits:[23] The only substantive reference in the LTA to a "blood specimen collecting kit"is in s 75(2), which relates to the blood specimen medical certificate. This may certifythat the containers in which a blood specimen was stored "were received bythe medical practitioner or medical officer in a sealed blood specimen collecting kit".15It is therefore irrelevant for present purposes.[24] Importantly, however, there is no requirement in the Notice that a bloodspecimen collection kit be used before a nominated expiry date. It follows that, evenassuming such kits are issued with expiry dates, failure to use a kit prior to that datewill not violate the procedure required by the Notice and the LTA.[25] The first proposed ground of appeal accordingly has no merit and raises noissue of general or public importance.The second blood sample[26] This proposed ground of appeal does not reach the required threshold for tworeasons. First, the issue of whether the prosecution will need to prove compliancewith a request made under s 74(5) of the LTA will always be highly fact specific.We do not see it as raising any question of general or public importance that wouldjustify a second appeal. Secondly, we agree with the courts below that there is noevidence the ESR failed to comply with the request by the police to forward the secondsample to the analyst nominated by Ms Wichart. To the extent that Mr Tobeck askedquestions about the issue, he succeeded only in establishing the police had compliedwith the requirements of the section. If the defence wished to argue there had been14 Clause 3(2) of the Notice provides that terms or expressions that are defined in the Land TransportAct and used but not defined in the Notice shall have, unless the context otherwise requires, thesame meaning as in the Act.15 Land Transport Act, s 75(2)(d).non-compliance, Mr Tobeck needed to raise the issue squarely so as to provide anevidential basis for the argument. He did not do so. The second proposed ground ofappeal therefore has no prospect of success.Result[27] The application for leave to bring a second appeal against conviction isdeclined.Solicitors:Menzies Marshall Law Ltd, Auckland for ApplicantCrown Law Office, Wellington for Respondent