B v Police HC Auckland CRI 2008-404-189

[2008] NZHC 1544

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-00189

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 September 2008

Appearances: Z K Mohamed for Appellant

A R Longdill for Respondent

Judgment:      2 October 2008

JUDGMENT OF KEANE J

This judgment was delivered by Justice Keane on 2 October 2008 at 9am pursuant to Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland

B V  POLICE HC AK CRI 2008-404-00189  2 October 2008

[1]      On 19 June 2008, in the District Court at Manukau, Warren  B    was convicted of driving on 24 August 2007 in Manurewa with an excess blood alcohol level. The level was 117 milligrams of alcohol per 100 millilitres of blood. He was fined $750 and disqualified for seven months. He takes a single issue on this appeal.

[2]      Mr B   accepts that at the roadside, after he was required to accompany, having failed a breath screening test, he was advised of his right to advice, and then twice more, first before the evidential breath test, which proved positive, 457 micrograms of alcohol per litre of breath, and also after he was advised of his right to elect the taking of a blood sample.

[3]      Each time, he accepts, he declined to take legal advice but on this appeal pursues the second of two points that did not find favour at the hearing. It is as to whether he was advised, in a real sense, of his right to advice; whether it was made clear to him that the Police Detention Legal Assistance Scheme afforded him an immediate right without cost to take advice from one of a panel of lawyers available for the purpose.

[4]      The essential point taken on this appeal is that the Judge was wrong to follow a recent decision in that Court, New Zealand Police v Gallichan   (DC AK, CRN

0700-402-4242),  26  May  2008),  Judge  O’Driscoll.  My  decision  on  the  appeal brought against that decision, which I heard just before this appeal, it is accepted, will determine the outcome here.

Decision under appeal

[5]      On 24 August 2007, the Judge narrated, relying on the evidence of the testing officer, Constable Matthews, who had by consent given his evidence by reading his brief, Mr B   was apprehended in Rowandale Avenue, Manurewa. He had been seen making a U-turn before a checkpoint site.

[6]      Mr  B  ,  the  Judge  noted,  having  failed  a  breath  screening  test,  was required to accompany the officer to a nearby police bus and, whilst still at the roadside, the constable cautioned him and advised him of his right to advice in the

terms now standard. They included reference to his right to advice without charge under the Police Detention Legal Assistance Scheme. The constable also asked Mr B   if he understood this and he said that he did.

[7]      At the bus close by, the Judge noted, before requiring Mr B   to undergo an evidential breath test, the constable read out to him in its entirety the first form of advice now customary, entitled ‘Advice pursuant to New Zealand Bill of Rights Act

1990 and the Chief Justice’s practice note on police questioning’. The essential part, set out in upper case, was this:

You have the right to consult and instruct a lawyer without delay and in private. This right may be exercised without charge under the Police Detention Legal Assistance Scheme.

Beneath that statement, in lower case, was this:

These rights will continue throughout the breath/blood alcohol procedures. If you wish to consult and instruct a lawyer a telephone will be made available for that purpose as soon as practicable and before you undergo an evidential breath test, blood test or both. You will have a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you.

[8]      The  constable,  the  Judge  noted,  asked  Mr  B    whether  he  wished  to exercise that  right  and  he said  that  he  did  not;  and  then,  after  stating  that  the evidential breath test proved positive, the Judge turned to the adequacy of the form of advice given.

[9]      The Judge agreed that the references to the scheme and the question of charge were abstract but held that in itself no impediment. Mr B   at no stage questioned what they meant. Only then would the constable have come under any duty to expound the right more fully. Indeed, the Judge said, the contrary was the case:

… it is quite clear that Mr B  , when given this particular advice, understood the information that was being conveyed to him, and like Mr Gallichan he was told three times. He was told once the requirement to accompany was made. He was told of his rights, he was asked if he understood, he said that he did. On both occasions when he was presented with the documentation he demonstrated in two ways that he clearly understood what he was doing.

[10]     Further, the Judge said:

First he signed an acknowledgement that he had been advised of the matters set out above, so that satisfied the advice-giving requirement. Secondly, he indicates clearly that has comprehended the information that was given to him  and  made  an  informed  decision  when  he  circled  in  answer  to  the question ‘would you like to consult a lawyer?’ the answer ‘no’ and signed it.

[11]     Relying on the Gallichan analysis, on facts which he found indistinguishable, an analysis he found untouched by the recent decision R v Tye [2008] 1 NZLR 214, CA, the Judge was satisfied that the officer had not acted in breach of his duty under s 23(1)(b) of the New Zealand Bill of Rights Act 1990. The blood alcohol analysis, on which the charge rested, he concluded, was admissible. He found the offence proved.

Gallichan decision

[12]     The Judge’s analysis, I consider, was true to the evidence, and correct in law, for the reasons I have set out in my decision, issued with this one, Gallichan v New Zealand Police (HC AK, CRI 2008-404-000184). There I said, when dismissing that appeal, just as I must dismiss this one:

[37]On the evidence, it was clearly open to the Judge, … to conclude that Mr Gallichan was adequately advised of his right to advice, and that no breach of s 35(a)(c) of the Evidence Act 2006 rendered the analysis on which the charge was ultimately founded inadmissible.

[38]It was open to the Judge to conclude that Mr Gallichan was told adequately of his right to have recourse to the scheme and that it entailed  no  cost;  and  that,  even  if  the  advice  was  abstractly expressed, Mr Gallichan’s response each time that, understanding his right, he did not wish to exercise it, could be taken at face value. That there was no objective cause for concern.

[39]If, however, there could be any suggestion that the constable ought to have gone further despite Mr Gallichan’s apparent lack of interest in taking advice, any omission on the constable’s part ought not ... to have rendered the blood test inadmissible. In terms of s 30(2)(b) that would have been wholly disproportionate.

[13]     Those conclusions hold indistinguishably here. But I should add also that, on the Crown’s case certainly, Mr B   may not be as well placed as Mr Gallichan because, in contrast, he elected not to give evidence. In this, the Crown contends, he failed, as s 30(1)(a) of the Evidence Act 2006 requires, to raise any issue of impropriety ‘on the basis of an evidential foundation’.

[14]     I am not convinced that he did fail in that way. Section 30(1)(a) does not impose any onus. Nor is any imposed on either prosecution or defence elsewhere in s 30 to convince the Judge to the standard applying, the balance of probabilities: s

30(2)(a). Mr B   may have done enough by pointing to a concerning feature of the prosecution’s own evidence. But, to decide this appeal, that is not an issue I need to resolve.

Conclusion

[15]     For  the  reasons  that  I  have  given  this  appeal  will  be  dismissed.  The conviction and the sentence will stand. If the period of disqualification imposed on Mr B   is presently suspended, that will cease 48 hours after the date of the issue

of this decision.

P.J. Keane  J