SUPREME COURT Conviction on driving charge quashed

Press, Volume CXV, Issue 34031, 20 December 1975, Page 13

SUPREME COURT Conviction on driving charge quashed

i A conviction against Victor lan Sullivan, aged 30, a cartage contractor, for driving on the Old Tai Tapu Road ,on April 26 with an excess blood-alcohol concentration (151 mg.) has heen quashed on appeal to Mr Justice Somers in the Supreme Court.

The appellant had been i fined $125 and had his ’driver’s licence cancelled for I six months by Mr H. J.

Evans, S.M., in the Magistrate’s Court. Evidence had been given that a traffic officer attended an accident on the Old Tai Tapu Road about 10.30 p.m. on April 26 in which a car was extensively damaged about the rear. The appellant was taken to the Christchurch Hospital, where a blood test was taken. Mr G. R. Lascelles appeared for the appellant, and Mr N. W. Williamson for’ ithe Ministry of Transport. His Honour said that sec-j ition 58D of the Transport ‘Act contained a sub-section iwhich said that it was the (duty of a hospital board to i ensure in certain circum- | stances that, if practicable, a (specimen of blood was [taken. CIRCUMSTANCES DEFINED Those circumstances were, first, that a person was received in the hospital for examination or treatment as a result of an accident involving a motor-vehicle; and, second, that the doctor in immediate charge of the examination or treatment believed either that the person was the driver of the vehicle at the time of the accident, or that the person, being one who appeared to be over 15, was in the vehicle at the time but was uncertain as to which of the persons in the vehicle at the time of the accident was the driver. iMr Lascelles had sub[mitted that there was no evidence that the doctor concerned, Dr Forster, believed that the appellant was the driver of the car, or, alternative!}', was in the vehicle but was uncertain as to which of the persons in the vehicle at the time of the accident was the driver. The Magistrate had taken the view that the whole of the evidence given by Dr Forster established her belief that the appellant (that was to say, the person examined by her) was the driver; and, alternatively, if the Magistrate was wrong in taking that view, he held that Dr Forster’s belief at least went to the point that satisfied the alternative test. There was no evidence at all in his view, his Honour said, to show that Dr Forster even knew there was more than one person in the vehicle, let alone entertained any uncertainty as to who was the driver or that, objectively, it was possible

I for any such view to be held |by her. ADMISSION SHEET “It was conceded by Mr Williamson, and in my view rightly conceded, that there was no evidence save for one matter, to which 1 shall refer in a moment, that Dr Forster believed the person ■ examined by her was the j driver,” his Honour said, i “What she said was that I there were no features why ; she should not take a blood i specimen, and she proceeded to do so. She produced in evidence a form forming part of the hospital records, the reverse side of which has a summary of certain findings made upon an immediate examination of the appellant. “The front contains the name and address of the: appellant and is described as; being an accident ward admission sheet. Under the heading, ‘Traffic Injuries Survey,’ the word ‘driver’ is ringed. It is apparent that the front part of the form is not the original form, for it is in carbon. “There is no evidence in the first place to show that! Dr Forster ever read it, or, i having read it, accepted it,”; said his Honour. “I think! that the evidence is' too! tenuous to sustain the' finding necessary in this; case where reliance is placed l upon proof by certificate as; authorised by the Act. “Accordingly, therefore,! the appeal will be allowed.”' his Honour said. Mr Williamson had sub-; mitted that the case should be remitted for a rehearing. He did not think that would be appropriate in the circumstances, his Honour said. “In the first place, Dr Forster was cross-examined, and it seems to me improbable that she could be led to give evidence in any other manner than that which she has already given,” he said. “In the second place, such defect, as I think presently exists, may — and I do not say can. but may — perhaps be cured by presenting the case in a wholly different; form, namely by calling the! analyst,” said his Honour., “Having, as I think, made an! election to proceed by! certificate, the case ought tobe dealt with on that foot-! ing. “Accordingly, I am not; prepared to remit the mat-J ter.” he said.