SUBMISSION. THE TRANSPORT AND INDUSTRIAL RElATIONS. SElECT COMMITTEE THE LAND TRANSPORT (ROAD SAFETY AND OTHER MATTERS) AMENDMENT BILL (2010)

Transcription

1 SUBMISSION TO THE TRANSPORT AND INDUSTRIAL RElATIONS SElECT COMMITTEE ON THE LAND TRANSPORT (ROAD SAFETY AND OTHER MATTERS) AMENDMENT BILL (2010) PRESENTED BY: DR RODERICK MULGAN PATRICK WINKLER DR ANNA SANDIFORD Ph: (09) Fax: (09) Mob:

2 1.0 Introduction 1.1 This submission is presented by Dr Roderick Mulgan, Registered Medical Practitioner and Barrister, Patrick Winkler Barrister, and Dr Anna Sandiford, Scientist. Roderick Mulgan and Patrick Winkler specialise in transport law mostly in the Auckland region. Dr Mulgan is a former police doctor. Dr Sandiford is a forensic scientist with considerable experience of blood alcohol analysis in New Zealand and England. 1.2 We would be grateful for the opportunity to appear before the Committee. Our contact details are: 51 Pembroke Crescent Glendowie Auckland 1071 Ph: (09) Fax: (09) Mob: (Patrick Winkler) patrickwinkler@xtra.co.nz 2.0 Summary of Submission 2.1 We support the Bill's goal of promoting road safety and key initiatives from Safer Journeys (the Government's road safety strategy to 2020). 2.2 We oppose clause 33 of the Bill. We seek to retain an important point of due process in s 74 of the Land Transport Act (the 'LTA'L that permits a person charged with drink driving to obtain an independent analysis of their blood sample. Clause 33 removes this right. 2.3 We also ask that the status of the independent result be clarified, as it is not certain under the law as it stands. 3.0 Current Law and its History 3.1 Section 74(1) of the LTA requires that a sample of blood taken from an allegedly intoxicated motorist be divided into two. Section 74(5) permits the motorist to have one of the samples analysed by an independent analyst.

3 3.2 Section 74 of the LTA replaced s 58F Transport Act The requirement to divide the sample in two was inserted as from 11 December 1988, by s 7 Transport Amendment Act (No 2) The same round of legislative reform provided that the accuracy of a reading of an approved evidential breath testing device cannot be challenged (s77(l) of the LTA). This had previously been an important defence right. Losing the power to challenge the accuracy of breath testing equipment placed more emphasis on the defendant's right to resort to a blood test, and have that test independently undertaken. 3.4 Section 33 of the Bill amends s 74 of the LTA to remove the requirement for the sample to be divided. Without division of the sample (or the taking of another sample) there is nothing that can be forwarded to an independent analyst. A motorist charged with drink driving would have no access to independent testing under this proposal. We submit the right to have analysed an independent sample should be retained. 3.5 Despite the legislative protection of an independent analysis, case law has not determined how an independent result should be treated if it differs from the police one. The position seems to be that the defendant has to show on the balance of probabilities that the police result is wrong. See, for instance, Brown v Police, High Court, Auckland, CRI , and Police v Perfect, District Court, Waitakere The judges in these cases concluded that any differences in the samples may be due to deterioration, although the evidence before them in both cases was that deterioration only occurs in 10% to 20% of samples, and that any error could equally well have been with the independent analysis as the Crown one. We submit the Bill should amend the LTA to resolve this issue. We submit that the defendant is entitled to the benefit of any reasonable doubt in the prosecution's evidence (as is the ordinary criminal law standard), and should not have his full liberty hang on the far weaker balance of probabilities test. 4.0 Proposed Reform and its Rationale 4.1 The explanatory note to the Land Transport Amendment Bill states that: a. blood taking procedures will be streamlined by allowing the Minister of Police to gazette a new, or an amended, blood collection process;

4 b. section 74 of the LTA will be amended by clause 33 of the Bill to remove the requirement to divide the blood sample, and provide one part for independent analysis; c. the changes will allow the process to be made more generic and streamlined, and also allow the easier introduction of new, potentially safer techniques for blood collection (for example, vacutainers, a type of blood taking tube). 4.2 We submit that: An independent analysis of the blood sample is essential for ensuring the process is fair in both appearance and reality. This is the substance of our submission, and is developed below A generic process (in the sense of being consistent) already exists. Removing a legislative prescription of the steps to be taken will undermine consistency and reliability, not enhance them The only rationale for withdrawing the right to an independent sample is administrative convenience to a very limited number of officials in the Police Department. But the procedure is not difficult and does not place an unreasonable burden on the police Section 2 of the LTA currently specifies that a blood specimen means ({a specimen of venous blood taken in accordance with normal medical procedures". Normal medical procedures can be taken to refer to anything in common use for taking blood. The 'new' vacutainers, and anything else that might be developed, can be used without specific authorisation under the legislation as it exists. 5.0 Importance of Independent Analysis S.llt is accepted that the result from the second sample does not often differ significantly from the first one. This does not render the right to independent analysis irrelevant. In marginal cases, independent analysis can also produce a negative (Le. non-criminal) result. 5.2 The ability of the defence to probe the prosecution's case is of prime importance in criminal procedures. It is protected by s 24(d) of the Bill of Rights As part of this the defence in a criminal trial are entitled to have exhibits analysed by their own

5 experts. A citizen should not be convicted on evidence from an institution retained by the Crown whose procedures cannot be independently checked and if necessary challenged. There are some 30,000 drink drive prosecutions per year and the offence of drink driving very often (and perhaps mostly) involves non-criminal-class 'Average New Zealanders'. Though a relatively modest number of cases end up being defended, the right to independent analysis is part of demonstrating fairness to the population of motorists in this country and thereby retaining the population's faith in the system of enforcement and in enforcement agencies. 5.3 Blood samples are a vital protection for motorists accused of drink drive offences, as they cannot challenge the reliability of the evidential breath test. The quid pro quo of abolishing the right to challenge the reliability of the evidential breath testing device was explained as being counterbalanced by the expansion of the right (to everyone) to have the more accurate blood test. The current proposal is a back-tracking on that undertaking that would break the social contract made then with the motoring population. Moreover, attempts at abolishing rights often in fact create uncertainty that spurs costly litigation that could have been avoided. 5.4 Independent analysis may also act as a counterweight that keeps the prosecution's analysis honest, meticulous and consistent. Without it, or any other right to probe procedures, there is no independent evidence that the prosecution's testing regime remains robust. Independent peer review is a cornerstone of modern science and the fact that results from the two samples tend to generally concur at the moment does not prove the prosecution's systems would continue in the same manner over time if this window on their reliability were to be closed. Indeed the Christchurch Press reported as recently as 19 October that: "Public trust in scientists is rising, but a growing number of people believe there should be tight controls over laboratory work. "A Ministry of Research, Science and Technology survey, released yesterday, also showed... scientists working in industry were the most trustworthy sources of information on science issues. The level of trust for those in industry rose from 57 per cent five years ago to 69 per cent this time. "But scientists working in the public sector were seen as less trustworthy in the latest survey, dropping to 64 per cent from 74 per cent in 2005". 5.5 The right to have the second sample independently analysed could potentially allow a challenge to the identity of the sample, not just to its alcohol levels. If the label on the second bottle is illegible there could be grounds for challenging its admissibility, as

6 does happen in rare cases. It is also conceivable that error could result in samples from different people being mixed up. A senior ESR scientist has recently acknowledged to one of the writers of this submission that with so many samples going through their hands this concern is a real issue that they need to watch. Flaws in the system will not come to light unless the defence can require an independent analysis. 5.6 The procedure currently followed by police blood takers is to draw a syringe of 10 mls or so of blood from the motorist, and empty it equally into two glass sample bottles with plastic screw tops. Where the subject has difficult veins, the sample may be much smaller. The blood taker will write identifying details on a tear-off form that makes carbon copies, and place one copy around each of the bottles. The police will send both bottles in a sealed container to an approved government analyst, who will analyse one and release the other to an independent analyst on request from the accused. 5.7 Our enquiries with an independent analyst of many years standing and who has appeared as an expert witness in many court cases, indicate anecdotally that anything up to 15% of people with an alcohol level just over the legal limit on the police sample will return a level below the limit on the independently analysed one. 5.8 There is also anecdotal evidence that occasionally samples may be found to have illegible labels when submitted to the independent analyst, or be unsuitable for analysis due to inadequate sealing or an insufficient volume of sample. As both sample bottles are labelled identically (see above), filled from the same syringe, and sealed at the same time, these flaws in the independent sample must cast doubt on the reliability of the result used by the police. 5.9 Blood testing is likely to be particularly important if zero limits are enacted for some classes of drivers. Breath tests may show traces of alcohol from contaminants such as certain medications, including ones available without prescription (e.g. cough suppressants), and cleaning substances. With the provision in s 77(1) of the LTA, that the result on evidential breath cannot be challenged in its own right, a blood test is the only rebuttal to these sources of inaccuracy. It is essential the blood test procedure be a robust one. 5.10A defendant in a drink driving case has practically no check on the accuracy of the processes used to prove his alcohol level other than the independent analysis. Both breath and blood testing are subject to a conclusive presumption in s 77 of the LTA that the result returned represents the subject's true alcohol level. This section precludes enquiry into testing processes or accuracy. An independent sample is a

7 check not only on the level of alcohol in a sample, but also its suitability for testing (such as the adequacy of the seal, or volume of testing substancel and its identity and labelling. 6.0 Recommendation 6.1 We submit that: clause 33 be withdrawn to the extent that it modifies s 74(1) and (5) of the LTA, a nd that s 74(1) and (5) be retained in their current form; the current provision for private analysts to undertake blood analysis be retained; the LTA be amended to establish the evidential relevance of the independently analysed sample. We ask the Committee to consider the inclusion of a clause that provides: "Where a defendant exercises their right under s 74(5) to independent analysis of their blood sample, it is to be conclusively presumed that the proportion of alcohol in the defendant's blood at the time of the alleged offence was the same as the proportion of alcohol in the independently analysed blood specimen taken from the defendant./i We thank you for considering our submission. DR RODERICK MULGAN PATRICK WINKLER DR ANNA SANDIFORD 21 October 2010

8