IN THE HIGH COURT OF NEW ZEALAND
NAPIER REGISTRY	
CRI-2015-441-44
[2016] NZHC 1581	

BETWEEN	BRENDAN LEWIS MILLER
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	19 May 2016	
Counsel:	E R Fairbrother QC for Appellant M M Mitchell for Respondent	
Judgment:	12 July 2016	

JUDGMENT OF CLARK J

[1]	This is an appeal against a conviction for driving with an excess blood alcohol level.1

Background facts

[2]	On 26 April 2015 Mr Miller was travelling on State Highway 50A in Hastings. He was stopped by police for a minor traffic breach. He failed a roadside breath test and subsequently elected to provide a blood sample which was dispatched to the ESR for analysis. The evidential breath test had resulted in a reading of 493 micrograms of alcohol per litre of breath. The ESR analysis returned a reading of 145 milligrams of alcohol per 100 millilitres of blood.

1	Land Transport Act 1998 s 56(2).

MILLER v NEW ZEALAND POLICE [2016] NZHC 1581 [12 July 2016]

The District Court decision

[3]	On 19 October 2015, having heard evidence, Judge Adeane found that the charge was proved beyond reasonable doubt.2 In reaching his conclusion the Judge was required to decide two evidential issues raised in Mr Miller’s defence. One concerned the chain of custody of the blood samples taken from Mr Miller and the second concerned arose because the sample of blood was not in a sealed container. The ESR analyst’s evidence was that although the sample containers were firmly capped when received at ESR and were not leaking they were not sealed, that is, the samples were not marked by a seal in the ordinary way. For lack of seal, a certificate of analysis was not provided.3 Instead, the analyst’s evidence at trial was that two samples were received with accompanying POL540 forms indicating the blood was sampled from Brendan Lewis Miller of 912 Wentworth Street Hastings.

[4]	The Judge concluded that the analyst’s evidence in combination with that of the senior constable who oversaw the blood sampling procedures, and dispatched the blood specimen medical certificate to ESR with the samples taken from Mr Miller established beyond reasonable doubt that the blood was taken from Mr Miller at the time and place described in the documentation.

[5]	Further it would have been, in the Judge’s view:4

“an extraordinary coincidence if blood taken from some other Mr Miller at that time and place had arrived at the ESR and been mistaken for blood taken from the defendant from this defendant. The possibility of that coincidence in fact happening and a miscarriage of justice resulting is so remote as to be discounted with confidence.

The appeal

[6]	Although the ground of appeal in the notice was that the District Court Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred Mr Fairbrother QC refined the ground at the hearing to a narrow point.

2	Police v Miller [2015] NZDC 21927
3	This meant the containers were not sealed in the sense of using a wax seal not that there was any scientific basis on which to suspect the integrity of the samples which the Judge said was better maintained under the new regime: at [12]-[13].
4	At [8].

Mr Fairbrother’s position was that the trial was unfair because the interactions with the Judge made it untenable for counsel to continue. Consequently Mr Miller’s defence could not be properly advanced.

Submissions

Appellant

[7]	Mr Fairbrother submitted that the officer had failed to follow the appropriate procedures. In his written outline Mr Fairbrother submitted that the officer had advised Mr Miller to plead guilty and “the persuasion attempt followed through to service of the summons”. The officer denied this and credibility became the issue in trial. The unfairness, Mr Fairbrother submitted, lay in the Judge disallowing the defence to be properly put before the Court :

(a)	by rejection of cross-examination questions required by s 92 of the Evidence Act 2006.

(b)	by failing to adequately deal with objections to evidence based on hearsay and use of prior consistent statements.

[8]	Mr Fairbrother submitted that Mr Miller was not told the result of the evidential breath test and that he elected to have a blood test because the officer told him to just plead guilty. When attempting to cross-examine the officer on the point the Judge intervened. The impression of hostility from the bench was such that it was untenable to continue with the effect of preventing the defence from being placed before the Court. The Judge’s partiality to the prosecution at the expense of argument or evidence to the contrary resulted in an unsatisfactory verdict.

Respondent

[9]	For the respondent Ms Mitchell submitted no appearance of bias can reasonably be imputed from the exchange between defence counsel and the Judge. The exchange most at issue does not reflect bias or improper interjection by the Judge but was an appropriate reminder of the need for an evidential foundation to exist for the proposition being put to the witness.

[10]	Even had the Police Officer failed to advise the appellant of the evidential breath test reading s 64(5)(a) of the Land Transport operated to prevent an error in breath testing procedure from being relied on where a subsequent blood test revealed excess alcohol. Ms Mitchell submitted there was nothing in the appellant’s evidence to support a tenable defence with the consequence that it could not be said there had been any miscarriage of justice.

Decision

[11]	Having reviewed the notes of evidence, including the transcript of the relevant legal discussion which became available in time for the hearing of the appeal, it is not apparent to me that the Judge’s intervention and directions to counsel demonstrated partiality or were in any other sense inappropriate.

[12]	It was put to the officer in cross-examination that he had said to the appellant not to worry about what the reading was:

Just plead guilty and you will have your license – back by Christmas.

The officer replied:

No, no. No, no I showed him the reading straight away as it was printing out because he was standing right in front of it, he knew exactly what the reading was and I just confirmed it.

[13]	At that point the Judge asked counsel whether that was a question he asked on instructions. Counsel confirmed that it was and the Judge asked if he was going to call evidence. The transcript of this legal discussion records the following exchange:

THE COURT:

Am I going to hear evidence?

MR FAIRBROTHER:

If I call evidence Sir, you will hear that.

THE COURT:

I hope so.

MR FAIRBROTHER:

Well Sir I don’t have to call evidence.

THE COURT:

I hope so Mr Fairbrother. It is an allegation of improper conduct.

MR FAIRBROTHER:

Sir I am putting matters to the witness. I will determine whether I call evidence of it Sir. If I call evidence Sir this is likely –

THE COURT:

Be very careful, be very careful.

MR FAIRBROTHER:

Well Sir I am obliged to put –

THE COURT:

You are obliged to put allegations of misconduct, if you yourself have reasonable basis on which to believe that there is substance in it. You cannot go suggesting misconduct by a witness.

MR FAIRBROTHER:

Sir I am not obliged to call a witness. I may decide at the end of this case whether I do or not Sir.

THE COURT:

You have heard what I have got to say Mr Fairbrother.

MR FAIRBROTHER:

But Sir I am acting on instructions to this matter. And if I decided to call my client, this is what I understand he will say.

THE COURT:

The two issues are unconnected Mr Fairbrother.

MR FAIRBROTHER:

Well Sir I am obliged to put –

THE COURT:

Clients say things to lawyers all the time. Not all of those are available to the lawyer to put to the witness. Now I am simply making the point and asking you to be very careful and move on with your cross-examination.

[14]	Mr Fairbrother did not argue that there was no need for an evidential basis before this proposition could be put to the constable. His point on appeal was that the

Judge had jumped into the fray too early and that this was the point when the trial became unfair. It was this intervention that was instrumental in the decision not to give evidence namely that the officer did not follow correct procedure and was determined to persuade Mr Miller to plead guilty. The cross-examination was designed to show the officer had limited recall.

[15]	That is not how I view the exchange between counsel and the Judge.

[16]	The notes of evidence record the constable as vehemently denying the proposition put to him namely, that he had told Mr Miller to just plead guilty and he would have the license back by Christmas and that he had not shown Mr Miller the reading.

[17]	I agree with the respondent’s submission. The exchange was an appropriate reminder by the Judge of the need for an evidential foundation for the proposition being put to the witness. The Procedural Note sets out the procedure to be followed to ensure that propositions are not put in cross-examination that cannot or will not be proven by evidence:5
A question in cross-examination which invites an answer on the basis that a witness may give certain evidence will only be permitted if cross-examining counsel gives an assurance, or the question clearly indicates, that the suggested evidence will be adduced.

[18]	As the Judge said at a later point in response to counsel’s expression of concern at the Judge’s intervention, the proposition that Mr Miller was offered some sort of inducement to do something against his interest could be put to the officer providing there was some basis for it beyond mere instruction.

[19]	Not only was the exchange between the Judge and counsel unobjectionable, the breath and blood alcohol procedure sheet records in section J, above Mr Miller’s signature, his acknowledgment that he had been advised of the positive result of his evidential breath test and that this advice was given without delay.

5	Procedural Note (Hypothetical Questions) [1985] 1 NZLR 386.

[20]	The evidence of the officer under cross-examination, Mr Miller’s signed acknowledgment that the evidential breath test he had just undergone had given a positive result of 493 micrograms of alcohol per litre of breath, and his election to have a blood test stand in the way of this aspect of the appeal.

[21]	A further and central difficulty in the appellant’s case is the fact that the proportion  of  alcohol  in  the  appellant’s  blood  exceeded  80  milligrams  per   100 millilitres of blood. Even had there been trial error, unless it was capable of affecting the outcome the appeal court will not quash the conviction. For an appeal court to be satisfied that a miscarriage of justice has occurred the Court must be satisfied that the irregularity in question has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.6

[22]	This is far from such a case. The appellant has demonstrated no real risk that the trial was unfair or that its outcome was affected.

Result

[23]	The appeal against conviction is dismissed.

Karen Clark J

Solicitors:
Fairbrother Family Law, Napier for Appellant Crown Solicitor, Napier for Respondent

6	Criminal Procedure Act 2011, s 232.