HAINES v NEW ZEALAND POLICE [2018] NZCA 323

HAINES v NEW ZEALAND POLICE [2018] NZCA 323 [27 August 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA647/2017[2018] NZCA 323BETWEEN QUENTIN STOBART HAINESApplicantAND NEW ZEALAND POLICERespondentHearing: 23 July 2018Court: Williams, Brewer and Thomas JJAppearances: Applicant in personC A Brook and Z A Fuhr for RespondentJudgment: 27 August 2018 at 3.00 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Haines seeks leave to bring a second appeal against his conviction fordriving with excess blood alcohol.1 We may grant leave only if satisfied that:21 Mr Haines was convicted in the District Court: Police v Haines [2017] NZDC 17720. His firstappeal was to the High Court: Haines v Police [2017] NZHC 2541.2 Criminal Procedure Act 2011, s 237(2).(a) the appeal involves a matter of general or public importance, such asan issue of "general principle or of general importance in theadministration of the criminal law by the Courts";3 or(b) a miscarriage of justice may have occurred or may occur unless theappeal is heard.Facts[2] On 29 May 2016, Mr Haines was stopped by police while driving amotor vehicle. He underwent breath screening and evidential breath test procedures,following which he elected to have a blood sample taken and analysed. The result,provided by ESR on 1 June 2016, was a reading of 95 mg per 100 ml of blood.The legal limit is 80 mg per 100 ml of blood.4[3] Mr Haines elected to have the second part of his blood sample sent off forindependent analysis.5 Such a request must be made within 28 days of the date ofbeing charged with the offence in respect of which the blood sample was taken.6The relevant charging document was filed on 21 August 2016. It is unclear preciselywhen Mr Haines requested to have his blood sample reanalysed, but there is nosuggestion that he failed to comply with the 28-day timeframe.[4] However, Mr Haines's blood sample was stored in a "vacutainer" which hadan expiry date of 31 August 2016.7 That date had passed by the time Mr Haines soughtprivate testing. There is only one private testing facility in New Zealand. It declinedto test the sample because it has a policy that it will not analyse samples stored inexpired containers.3 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36], citing Keenan v R [2005] NZSC63 at [5].4 Land Transport Act 1998, s 56(2).5 In accordance with Land Transport Act, s 74(5).6 Section 74(7).7 Defined in the Land Transport (Blood Specimen Collecting Instrument and Procedure) Notice2014, reg 3(1) as a "tube or tube-like container evacuated to create inside it a partial vacuumthat helps draw a volume of blood ".[5] The issue for us is whether this situation involves a matter of general or publicimportance or points to a risk that a miscarriage of justice may have occurred or mayoccur unless the appeal is heard.Discussion[6] Mr Haines's argument is simple. He submits he had a right to have the secondsample tested independently so he could challenge, if the outcome made that feasible,the ESR test result. Parliament has provided for a person in his position to have anindependent test of the second sample and this right was denied to him. Further, itwas denied to him because of the actions of the police. The police failed to ensure hisblood sample was stored in a container, the use-by date of which would not expireuntil testing could be done in the normal course of things. Mr Haines submits it is amatter of general or public importance that the police ensure statutory systems tosafeguard the rights of people charged with offences are given effect. He submits,further, that in a situation where, because of police failure, a right to challenge Crownevidence is lost, there is a risk of a miscarriage of justice.[7] We do not accept Mr Haines's submissions. First, there is no risk of amiscarriage of justice. The legislation provides a procedure where, for any reason, anindependent test of the second sample is sought but does not take place.8 In such asituation, the trial Judge may forbid the prosecution from relying on the certificate ofanalysis which would otherwise be the admissible evidence of the blood alcoholreading and instead call the analyst and other relevant witnesses to prove the bloodalcohol reading in the conventional manner.9 This was done in this case. Further, theoriginal sample was analysed again and a comparable result was obtained.[8] Second, this statutory procedure removes the force of Mr Haines's submissionthat there is a matter of general or public importance arising from the fact he wasunable to have the second sample tested. We agree with Simon France J who, indismissing Mr Haines's appeal against conviction, said:8 Land Transport Act, s 79.9 Sections 79(3) and (4).[15] The effect of the appellant's case, if accepted, is that there could notbe a prosecution whenever the second sample cannot be tested. I do not acceptthat would be consistent with a statutory scheme which both itself createsthe obligation to have a second sample, and sets out the consequences of aflawed second sample. This latter aspect of the legislation would be otiose ifin fact the consequence of an ability to test is that a prosecution cannotcontinue.[16] The ability to have a second sample tested is an important safeguard.However, I do not accept that in those cases where for whatever reason it isnot possible to have the test done, any prosecution thereby becomes unfair.There are other significant safeguards built into the processes attaching to theinitial testing, all of which can be challenged. If those processes are compliedwith, the intent and effect of the legislation will almost always be that areliable testing outcome is produced. That affords sufficient safeguard tomake the prosecution fair notwithstanding the inability to test the secondsample.[9] We have not overlooked that a Court may stay a prosecution if the actions ofthe police have deliberately or unfairly deprived a defendant of a defence.10 But, thereis no question of that here. Police policy at the time required that the vacutainers haveat least three months left before their expiry dates if used for storing evidential bloodsamples. That policy was complied with. Further, the evidence is that the expiry dateon the container does not relate to its ability to store blood properly but to the integrityof the vacuum system that assists with the drawing of blood.11 There was nothingstopping the independent laboratory from testing Mr Haines's sample except its policy.[10] It is therefore our view that this situation does not involve a matter of generalof public importance nor does it point to a risk that a miscarriage of justice may haveoccurred or may occur unless the appeal is heard.Result[11] It follows that the application for leave to bring a second appeal is declined.Solicitors:Iorns Legal, Porirua for ApplicantCrown Law Office, Wellington for Respondent10 Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705.11 Rosemary Moar, a scientist employed by ESR gave evidence that "[t]he expiry date refers to thevacutainers' ability to draw a blood sample and not the expiry date of the preservative andanticoagulant in the container"; the expert witness called by Mr Haines, Dr Anna Sandiford, gavesimilar evidence.