MABEE v NEW ZEALAND POLICE [2017] NZCA 570

MABEE v NEW ZEALAND POLICE [2017] NZCA 570 [7 December 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA533/2017[2017] NZCA 570BETWEEN VAUGHAN GROSVENOR MABEEApplicantAND NEW ZEALAND POLICERespondentCourt: Winkelmann, Venning and Duffy JJCounsel: ASP Tobeck for ApplicantZ A Fuhr for RespondentJudgment:(On the papers)7 December 2017 at 10.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal against conviction is declined.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] Mr Mabee seeks leave to bring a second appeal against his conviction fordriving with excess blood alcohol, his first appeal having been dismissed byDunningham J.1[2] Before granting leave to bring a second appeal this Court must be satisfiedeither that:21 Mabee v Police [2017] NZHC 2015.2 Criminal Procedure Act 2011, s 237.(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.[3] Mr Mabee argues that both grounds support his application. The respondentopposes the grant of leave.Background[4] In November 2015 Mr Mabee was involved in a car accident. Although he leftthe scene, police found him some time later at his employer's home. The policeadministered a screening breath test to him, which indicated that he was over the legallimit. Mr Mabee was asked to accompany police to the Queenstown Police Station toundergo an evidential breath test, blood test or both. When they were on the way tothe Police Station, Mr Mabee told the accompanying officers that he had knocked hishead during the accident. The police therefore diverted to Queenstown Lakes DistrictHospital.[5] Mr Mabee was examined by Dr Wills on arrival at the hospital. Two policeofficers were present through Dr Wills' initial examination and, at its conclusion, oneof the officers informed Mr Mabee that he would be required to permit a blood sampleto be taken, and cautioned him. Dr Wills then spoke to Mr Mabee. At his direction, anurse took the specimen, checking first with Mr Mabee that he consented. The nursethen sealed the blood specimen collection kit and handed it to one of the police officerspresent, Constable Hargraves, who later sent it to the ESR. Analysis of that bloodspecimen found 137 milligrams of alcohol per 100 millilitres of blood, therefore inexcess of the 80-milligram limit.43 See McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37].4 Land Transport Act 1998, s 56(2).Proposed grounds of appeal[6] Mr Mabee seeks leave to argue three grounds of appeal as follows:(a) police presence during Mr Mabee's examination atQueenstown Hospital was a breach of the Land Transport Act 1998and/or an unreasonable and arbitrary detention. In the circumstancesevidence from the sample obtained should be ruled inadmissible;(b) the procedure set out in s 73 of the Land Transport Act for taking ablood specimen was not followed at the hospital; and(c) the procedure set out in s 74(4) for dealing with a blood specimen wasnot followed in this case.First proposed ground of appeal: police presence[7] Mr Mabee intends to argue on appeal that s 73 of the Land Transport Actprecludes police presence during the initial examination, and that their presence at thehospital amounted to an unlawful and arbitrary detention, and an abuse of policepowers. Mr Mabee says that police presence during the examination may have had aprejudicial effect on his examination and treatment.[8] Most of these arguments were addressed and rejected by Dunningham J in theHigh Court. She held:5While s 73 places control of the process of the blood specimen in the hands ofmedical staff, that is so they can ensure the taking of blood would not beprejudicial to the person's proper care or treatment. Nothing in that precludesan enforcement officer being present. There is clearly no prohibition on anenforcement officer being present when a blood specimen is taken under anyother circumstance. It may be that a doctor may choose to undertake theexamination process prior to the taking of the specimen in private, but that isfor the doctor to direct having regard to the patient's needs. There is nosuggestion that in this case the doctor thought it necessary to assess the patientin private. In any event, that would not be relevant to whether s 73 wascomplied with, though a failure to provide privacy where it was requested bya doctor could give rise to other legitimate complaints.5 Mabee v Police, above n 1, at [54].[9] We see no error in her analysis. We note the absence of argument that themedical care and attention Mr Mabee received was actually prejudiced (rather thanthat a notional risk of prejudice had been created). Dr Wills had completed hisexamination of Mr Mabee before the blood specimen was taken and, on the bloodspecimen certificate issued under s 75 of the Land Transport Act, certified "before theblood specimen was taken from the person I examined him/her and I was satisfied thattaking the specimen would not be prejudicial to his/her proper care or treatment".Pursuant to s 75 of the Land Transport Act that certificate is sufficient evidence, in theabsence of proof to the contrary, of the matters stated in it.[10] The argument that Mr Mabee was arbitrarily detained has no prospects ofsuccess in the light of the provisions of s 69 of the Land Transport Act. That provisionauthorises police to require persons who have failed a screening test to accompanythem to provide a blood specimen and to remain at a place (which in this case was ahospital) until the blood test has been taken.[11] To conclude in respect of this ground of appeal, Mr Mabee has failed to identifyany tenable argument that the Judge erred in her treatment of these arguments. Weassess this proposed ground of appeal as being without merit.Second proposed ground of appeal: compliance with procedure for taking bloodspecimen at hospital[12] Under s 73(5)(c) of the Land Transport Act the medical practitioner must tellthe person that the blood specimen is being taken for evidential purposes. Mr Mabeewishes to argue that the evidence establishes that it was a police officer, not Dr Wills,who told him the blood specimen was being taken for evidential purposes.[13] Dunningham J rejected this ground of appeal on the basis that there wasadequate evidence that the s 73(5)(c) procedure had been followed.6 We agree withher assessment. Dr Wills had signed a s 75 certificate recording that before the bloodspecimen was taken he had told Mr Mabee that the blood specimen was being takenunder s 73 for evidential purposes. Although Dr Wills' evidence in the District Court6 At [34].was that he could not specifically recall what he said at the time, he did say that hewould have followed the usual procedure as evidenced by the blood specimencertificate he signed. As noted, in the absence of proof to the contrary, that certificateis sufficient evidence of the matters stated in it.[14] Again, Mr Mabee has not identified an arguable error in the reasoning ofthe Judge. We assess this proposed ground of appeal as having no merit.Third proposed ground of appeal: compliance with procedure for dealing withblood specimen[15] The evidence in connection with the handling of the blood specimen was asfollows. The nurse took the blood sample, placed it in a blood specimen kit and handedit to a police officer. The nurse did not give any direction to the police officer, nor didthe nurse know what the police officer did with it. The police officer took the sampleto the police station and placed it in a refrigerator before sending it to ESR, anapproved laboratory, for testing.[16] Mr Mabee wishes to argue that the nurse breached his obligations under s 74(4)of the Land Transport Act which provides as follows:74 Procedure for dealing with blood specimens(1) A blood specimen taken under section 72 or 73 must be dealt with inaccordance with the relevant blood specimen collecting procedure.(4) In the case of a blood specimen taken under section 73, the medicalpractitioner or medical officer by whom the specimen was takenmust,—(a) within 7 days after the date on which the specimen was taken,deliver or cause to be delivered (whether by courier orotherwise), or post or cause to be posted by registered post,the blood specimen to an approved laboratory for its analysisand custody in accordance with the relevant blood specimencollecting procedure; and(b) if, at the time the blood specimen is taken, there is more than1 approved laboratory, give the Commissioner a writtennotification—(i) identifying the approved laboratory to whom theblood specimen was (or is being) delivered or posted;and(ii) naming the person from whom the blood specimenwas taken.[17] Mr Mabee contends that handing the sample to the officer was insufficient to"cause" the sample to be delivered under s 74(4)(a), and that a further consequentialbreach flowed from this. Because the nurse did not give any instructions to the officer,it was impossible for the nurse to comply with s 74(4)(b).[18] The Judge was satisfied that given the broad wording of s 74(4) and thepragmatic approach adopted to its interpretation in other cases, such as Aualiitia vMinistry of Transport,7 it was sufficient in this case for the doctor to hand the bloodspecimen to the enforcement officer for the purpose of arranging delivery.8 She wassatisfied that this met the requirement to "cause" it to be delivered. In any event, ifshe was wrong she was satisfied that the method of effective delivery clearly met the"reasonable compliance" test in s 64(2) of the Land Transport Act.9[19] We agree with the Judge that the permissive language of s 74(4) contemplatesmultiple methods by which a medical officer can dispatch a blood specimen to thelaboratory and that this can include utilising a police officer to organise that dispatch.As the Judge observed, the Courts have liberally construed a requirement to "cause"delivery".10 The point does not, however, address the nurse's failures to specify towhich approved laboratory the police officer should send the specimen and to notifythe Commissioner of Police of the laboratory to which the sample was sent.[20] Nevertheless, we agree with Dunningham J that any failure to comply withs 74(4) in this case was of a technical nature, to which s 64(2) of the Land TransportAct applies. Section 64(2) provides:(2) It is no defence to proceedings for an offence that a provision formingpart of sections 68 to 75A, and 77 has not been strictly complied with7 Aualiitia v Ministry of Transport [1983] NZLR 727 (CA) at 730. In this case the Court wasdiscussing s 58B(6) of the Transport Act 1962.8 Mabee v Police, above n 1, at [47].9 At [48].10 See for example Aualiitia v Ministry of Transport, above n 7.or has not been complied with at all, provided there has beenreasonable compliance with such of those provisions as apply.[21] This provision clearly applies in respect of the failure to specify the laboratoryand to give the Commissioner the required notice. The specimen was in fact deliveredto an approved laboratory and there is no suggestion that it was tampered with in anyway. There has therefore been reasonable compliance with the provisions and there isno risk of a miscarriage of justice.[22] We note the following statement by the Supreme Court in Aylwin v Policewhich we consider applies with full force in this case:11Every driver of a motor vehicle on the roads of this country should by now beaware that driving after consuming more than a small amount of alcohol isdangerous, illegal and socially unacceptable. The great majority of driverscomply with their obligations in this respect. A small minority do not.Parliament has legislated to ensure that these drivers do not escaperesponsibility through technical and unmeritorious defences. The Courts mustgive full effect to the clear Parliamentary indication.Conclusion[23] We are satisfied that each of the proposed grounds of appeal has no merit.Where a proposed appeal has no prospect of success it cannot meet the threshold ofeither raising a matter of general or public importance or showing that a miscarriageof justice may occur unless the appeal is heard. Mr Mabee has had the opportunity topursue these technical and unmeritorious arguments on two previous occasions. Thereis no reason why he should be afforded that opportunity a third time.Result[24] The application for leave to bring a second appeal against conviction isdeclined.Solicitors:Andrew Marshall, Winton for ApplicantCrown Law Office, Wellington for Respondent11 Aylwin v New Zealand Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].