MELANIE WICHART v NEW ZEALAND POLICE [2019] NZSC 104

MELANIE WICHART v NEW ZEALAND POLICE [2019] NZSC 104 [27 September 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 61/2019[2019] NZSC 104BETWEEN MELANIE WICHARTApplicantAND NEW ZEALAND POLICERespondentCourt: Winkelmann CJ and Ellen France JCounsel: A S P Tobeck for ApplicantR K Thomson for RespondentJudgment: 27 September 2019JUDGMENT OF THE COURTA The application for an extension of time is granted.B The application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] Ms Wichart was convicted of driving with excess blood alcohol after adefended hearing before Judge David Saunders.1 She appealed unsuccessfully againstconviction to the High Court.2 The Court of Appeal declined her application for leaveto hear a second appeal.3 She now seeks an extension of time for leave to appeal tothis Court directly from the decision of the High Court.1 New Zealand Police v Wichart [2018] NZDC 13325 [DC judgment].2 Wichart v New Zealand Police [2018] NZHC 3069 (Gendall J) [HC judgment].3 Wichart v New Zealand Police [2019] NZCA 212 (French, Miller and Lang JJ) [CA judgment].Background[2] Ms Wichart was stopped by police while driving on the West Coast on themorning of 1 January 2018. She failed a breath screening test. At the police stationshe elected to have a blood test. A nurse took the blood sample and signed the BloodSpecimen Medical Certificate. Two samples were taken and stored securely at thepolice station until they were sent to the Institute of Environmental Science andResearch (ESR) for analysis. On analysis, the sample was shown to contain118 milligrams of alcohol per 100 millilitres of blood and Ms Wichart was accordinglycharged.4 Ms Wichart made an application under s 74 of the Land Transport Act 1998to have the second blood specimen provided to a private analyst. Police asked theESR to forward the sample to the private analyst.The proposed appeal[3] The proposed appeal is brought on the basis that it raises matters of general orpublic importance. In particular, Ms Wichart wishes to argue on the appeal, first, thatonce the defence prove it made a request for a second blood specimen to be sent to aprivate analyst, the prosecution is required to prove a second blood specimen has beensent to a private analyst in order to rely on the analyst's certificate. Second, she wishesto argue that when the expiry date of the blood specimen collecting kit is put in issue,the onus should be on the prosecution to prove on the balance of probabilities that thekit has not passed its expiry date.Assessment[4] Because the appeal in this case is against a decision of the High Court, it issubject to s 75 of the Senior Courts Act 2016 and requires "exceptional circumstances"to be established for leave to be granted. We note, as well, that the application forleave to appeal was filed out of time. The respondent, although opposing leave, abidesthe decision of the Court on this latter point. We accordingly deal with the applicationon its merits.4 The legal limit is 80 milligrams of alcohol per 100 millilitres of blood.[5] The first proposed appeal ground arises from s 79(2) of the Land TransportAct. That section provides that an analyst's certificate is not admissible if anapplication has been made by the defence under s 74 for the second blood specimento be sent to a private analyst and, for whatever reason, the specimen has not been sentto a private analyst in compliance with the application. While there may be scope fordebate about where the onus lies in relation to this provision in a particular case, wedo not see this case as raising a question of general or public importance.[6] The first point to note is that the District Court Judge recorded defence counseldid not ask the Sergeant who gave evidence for the prosecution any questionsuggesting non-compliance with the request and nor did he make a submission thatthere was non-compliance.5 Rather, as Gendall J noted in the High Court, the Sergeantwas asked if he had seen the relevant correspondence including a letter apparently inreply from the ESR to the police letter asking for the specimen to be sent to a privateanalyst.6 The Sergeant said he had seen the reply letter but not the letter from police.[7] Gendall J in the High Court considered the inference was "obvious", that is,defence counsel had not suggested there was non-compliance with the request to sendthe sample to the private analyst because "to do so might be to mislead the Court".7The only evidence is therefore that there was compliance and there is no evidence tosuggest the ESR failed to comply with the letter sent by the police requesting them tosend the sample to the private analyst nominated by Ms Wichart. Against thisbackground, the argument the Court of Appeal was wrong to say that in thesecircumstances the defence "needed to raise the issue squarely so as to provide anevidential basis for the argument" has an insufficient prospect of success.8 Theargument is a technical one.9[8] On the second point, the applicant does not raise anything that might suggestthere is sufficient prospect of a successful challenge to the Court of Appeal's analysis5 DC judgment, above n 1, at [21]–[23]. Nor was any application made prior to the hearing foreither the author of the blood specimen medical certificate or the analyst to be present as providedfor in s 74 of the Land Transport Act 1998.6 HC judgment, above n 2, at [18].7 At [34].8 CA judgment, above n 3, at [26].9 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].that the current requirements for blood specimen collecting kits do not include arequirement the kits be used before a nominated expiry date.10 On this basis, even ifthere was an expiry date on the kit failure to use it before the date does not breach therequirements. This is, in any event, of no moment where the certificate of analysisrecorded there was no "such deterioration or congealing as would prevent a properanalysis".[9] The "exceptional circumstances" test is therefore not met. We add that we seeno appearance of a miscarriage of justice arising from the assessment of these issuesin the Courts below.11 As is apparent, we see no reason to hold an oral hearing todetermine the leave application as sought by the applicant.[10] The application for an extension of time is granted. The application for leaveto appeal is dismissed.Solicitors:Menzies Marshall Law Ltd, Winton for ApplicantCrown Law Office, Wellington for Respondent10 At [24].11 Senior Courts Act 2016, s 74(2)(b).