B v Police HC Wanganui CRI 2007-483-25

[2008] NZHC 121

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2007-483-000025

BETWEEN  B

Appellant

ANDPOLICE Respondent

Hearing:         6 December 2007

Appearances: L C Rowe for Appellant

K Raftery for Respondent

Judgment:      14 February 2008

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

14 February 2008 at 4.00 p.m., pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Armstrong Barton, PO Box 441, Wanganui

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.

B V POLICE HC WANG CRI 2007-483-000025  14 February 2008

[1]      The appellant was convicted in the District Court at Wanganui of driving while the proportion of alcohol in his blood exceeded the limit of 80 milligrams per

100 millilitres of blood, prescribed by s 56(2) of the Land Transport Act 1998.  He now appeals against his conviction.   The principal issue raised on the appeal is whether the appellant’s right to consult and instruct a lawyer, affirmed by s23(l)(b) of the New Zealand Bill of Rights Act 1990, was infringed by the actions of the police in relation to the evidential breath testing procedures.

The facts

[2]      The appellant took no issue as to the facts found by the learned District Court

Judge. They may be summarised as follows.

[3]      The appellant was stopped while driving his car in the vicinity of the Kai Iwi tavern, north-west of Wanganui.   He failed a breath-screening test and, at their request, agreed to accompany the police to the Wanganui Police Station to undergo a breath test, a blood test or both.  The appellant was at this point orally advised of his rights under the New Zealand Bill of Rights.

[4]      The appellant arrived at the Wanganui police station at 10.10 p.m. The “EBA suite” at the station, in which suspects are subject to the breath and blood testing procedures  under  the  Land  Transport  Act  1998,  was  at  that  stage  occupied. However, the appellant was then given written advice of his rights under the New Zealand Bill of Rights Act.  The Judge referred to an assertion by the appellant that he asked for pen and paper at that time so that he was able to record the delay.  The pen and paper were not supplied until after entry into the EBA suite.  The Judge also observed that:

There  were  signs  that  the  police  believed  that  the  well-known  defence lawyer they had in their custody was acting in cunning ways to defeat the lawful process.  In the end none of this impresses me as having anything to do with the decision I must make.

[5]      The EBA suite became available at 10.26 and, on entering it the appellant asked to speak to a New Plymouth lawyer, Mr Paul Keegan.  The police facilitated the appellant’s request.  Their telephone logs recorded a call made by the appellant

to Mr Keegan’s New Plymouth telephone number, commencing at 10.33 p.m. and lasting three minutes 38 seconds.

[6]      At approximately 10.45 p.m. a constable (Constable Harpur) discussed with the appellant the workings of the evidential breath testing machine.  The constable then said to the appellant, “I instruct you to undergo an evidential breath test”.   It seems, however, that before the appellant could respond a senior constable also present (Senior Constable West) made the constable deliver her statement again, this time as a request.  The appellant responded to this by asking to speak again with a lawyer.   His request was declined on the ground that he had already spoken to a lawyer.   The appellant in turn reiterated his request, saying that as he wished to speak to a lawyer before blowing into the machine he was not prepared to blow into it “at that time”.  The Judge found that both Senior Constable West and the appellant reiterated these positions, the former calling on the appellant to provide the breath sample and the appellant declining in the same terms.

[7]      The Judge noted that there was a dispute on the evidence, which he was unable to resolve, as to whether the appellant had asked the constable to record in her notebook his request to speak to a lawyer and her declining of the request. Nevertheless, the Judge plainly found that the request had been made and refused, apparently on three occasions.  It had become clear that, because of his outstanding declined request, the appellant would not provide a sample of his breath.  Constable Harpur allowed the evidential breath testing machine to run its course without proffering the mouthpiece to the appellant, but nothing turns on that.

[8]      She then required him to provide a blood sample, reading to him the first part of the blood specimen form, including the statement as to the consequences of being charged with an offence in the case of refusal.   The appellant agreed, but on the condition that the constable record in her book that he was doing so under duress because of the refusal to afford him an opportunity to ring his lawyer a second time. Constable Harpur recorded the appellant’s objection.   She then read to him the written Bill of Rights Act advice, referring again to his right to speak with a lawyer.

[9]      The appellant at this point asked Senior Constable West whether the breath test process could be gone back to.   He was advised that it could not, that the procedure had to move forward.  The appellant did not seek to speak again with his lawyer. He assented to the blood test, which produced a reading of 171 milligrams of alcohol to 100 millilitres of blood.   The limit prescribed by s 56(2) of the Land Transport Act  is 80 milligrams.

[10]     In one respect, the appellant’s argument on appeal relied on evidence that had been given by the appellant, but not made the subject of any specific finding by the Judge.  It had been the appellant’s evidence that he had had two reasons for wanting to speak to Mr Keegan for a second time before undergoing an evidential breath test. First, he had wanted advice on the implications of Constable Harpur having initially given him an instruction, rather than making a request, that he undertake the evidential breath test.   Second, it had occurred to him, after his discussion with Mr Keegan, that he had not asked him about the level of breath alcohol at which the police were empowered to suspend his licence for 28 days under s 95 of the Land Transport Act.  It was the appellant’s evidence in the District Court that his decision not to speak to Mr Keegan before giving a blood sample was because the question that he had related to the evidential breath test process, something that the constable had said could not be reverted to.

[11]     Mr Rowe submitted, accurately, that the Judge had not given any indication in his decision that he did not accept the appellant’s evidence on these matters. However, in his decision, he only discussed the second reason, not the first.   Mr Rowe contended that this had been a significant omission.

District Court decision

[12]     The Judge found the charge proved.  He held that the result of the analysis of the appellant’s blood sample was admissible, it having been obtained in accordance with both the Land Transport Act and the New Zealand Bill of Rights Act.   With respect to the Land Transport Act, the appellant had, by his words and actions, “refused” to undergo an evidential breath test, justifying the collection of an evidential blood sample.

[13]     In terms of the New Zealand Bill of Rights Act, the Judge held that the police complied  with  s 23(1)(b)  by  affording  the  appellant  access  to  a  lawyer  before attempting to administer the evidential breath test, and by offering him similar access immediately  before  administering  the  evidential  blood  test.     The  Judge  also concluded that, had s 23(1)(b) been breached, he would still have admitted the result of the evidential blood test pursuant to the balancing process required to be followed under s 30(2)(b) of the Evidence Act 2006.  Finally, and on the basis of the findings that both the Land Transport Act and the New Zealand Bill of Rights Act were complied with, there was no duress or abuse of power warranting the exclusion of evidence of the blood sample.

The appeal

[14]     There was an issue raised in the District Court as to whether or not the appellant’s statement that he would not give a breath sample “at this time” without a second consultation with Mr Keegan, was a refusal in terms of s 72(1)(a) of the Land Transport  Act.    The  Judge  found  that  the  appellant  had  by  actions  and  words declined to engage in the breath testing process.   That amounted to a failure or refusal under the subsection.   That conclusion has not been challenged on appeal. Rather, the main point on the appeal is whether the police officer acted correctly in refusing to allow the appellant to contact Mr Keegan for a second time before giving a breath sample.

[15]     Mr Rowe argued that both R v Mallinson [1993] 1 NZLR 528 and Rae v Police [2000] 3 NZLR 452, were authorities for the proposition that the right to receive legal advice continues throughout the breath and blood alcohol procedures. From the latter decision, he quoted the observations of Blanchard J (speaking also for Richardson P and Thomas and Keith JJ) at [44] that:

It is settled law since Noort that a citizen is entitled to the rights conferred by s 23(1)(b) when required to undergo evidential breath testing.  Such testing is part of an integrated set of procedures.  It would be astonishing if, to adopt Mr Eaton’s expression, the rights were to switch off and then switch on again during the process, particularly if they were switched off at the time when the person subject to the processs might be most in need of legal counsel, namely when it appears from the result of the evidential breath test that an offence may have been committed.

[16]     Mr Rowe argued that the Court of Appeal in that passage had not been intending to confine its observation about when a person might be most in need of legal advice to the point at which result of the evidential breath test showed that an offence may have been committed.  He contended that the suspect might be in real need of advice at a number of stages, including the point at which the suspect was required to accompany, or required to give a breath sample, or if there was some problem with the evidential breath testing device, or at the point when there was a requirement to give a blood sample or a right to elect a blood sample or, perhaps, in the case of genuine confusion about instructions given by the police at any stage of the proceedings.

[17]     Mr Rowe also referred to Beecroft and Hall’s Transport Law where the learned authors list (at chapter LTA pg4) twenty-seven separate matters that might need to be considered by a lawyer advising a suspect undergoing the procedures. The text recognises that situations might arise where it is necessary for the person to request another telephone call to the legal advisor so that the implications of what has occurred may be clarified.  Mr Rowe drew particular attention to observations that if there is a possibility that the suspect might return a positive evidential breath test over 650 micrograms of alcohol per litre of breath, prudent advice might be to refuse the evidential breath test and undergo a blood test, the results of which will not be known for several weeks;  that the decision must always be that of the suspect after advice that will need to be “quite sophisticated”;  and that, should the situation in any way change from that on which the lawyer has advised, the suspect should telephone the lawyer again.

[18]     Mr Rowe also referred to the decision of the Full Court in Brown v New Zealand Police (HC AK CRI 419-87-04 22 October 2004 Priestley and Winkelmann JJ), where, after quoting from the decision of Blanchard J in Rae, the Court observed (at [66]) that circumstances can arise that require repetition of the recital of rights to properly facilitate the exercise of the suspect’s rights under s 23; there can be no hard and fast rule that limits the suspect to one call only at the evidential breath test stage of the procedure.

[19]     On the basis of his review of the authorities, Mr Rowe submitted that the relevant matters to consider in assessing the reasonableness of a second consultation with Mr Keegan were the reasons given for wanting a second consultation, the circumstances that existed at the time of the appellant’s request and the operational requirements of the legislation.

[20]     As has been seen, the appellant wished to consult his lawyer for a second time prior to the evidential breath test because he wished to be advised of the implications  of  the  constable  initially  having  given  him  a  direction  rather  than making a request that he submit to the evidential breath test and secondly, that he wished to be advised of the breath alcohol level at which the mandatory 28 days suspension would apply, a matter that had not been covered in the previous consultation.

[21]     The first point was not discussed in the decision of the learned District Court Judge.   It is plain from s 69(4) and s 72(1)(a) of the Land Transport Act that the enforcement officer’s authority is to require an evidential breath test.   Mr Rowe argued that a person is entitled to fail or refuse to undergo an evidential breath test if there has not been a proper requirement to undertake that test.  Here, he pointed to some confusion between the constable and the senior constable about the form of words necessary to convey the requirement to undergo the evidential breath test. According to the evidence of Senior Constable West, once Constable Harpur had used the wrong language to convey the requirement, he had corrected her, and told her that she needed to require and not instruct.   It was put to the constable that Mr B   had then said “something’s wrong here I want to ring my lawyer”. Constable  West  denied  that,  giving  evidence  that  Mr B    had  not  said “something’s wrong here”.  However, he accepted that the appellant had mentioned at that point that he wished to speak with a lawyer again.

[22]     Mr Rowe submitted that even though the appellant had not articulated his reasons for wanting to speak again with Mr Keegan, it should have been reasonably obvious, given the timing of his request, what it was about.  Since the appellant’s obligation either to give a breath sample or a blood sample could depend upon whether a proper requirement had been made to undergo the evidential breath test at

this stage, it was an important development that he was entitled to take legal advice about.

[23]     The appellant’s second reason for wanting to speak to a lawyer had been dealt with by the learned District Court Judge, who noted that the appellant had avoided the possibility of immediate suspension by not undertaking the breath test. However, Mr Rowe submitted that the analysis should not end at that point. Consideration should also have been given to what the appellant gave away by not submitting to the evidential breath test.  That included the costs of submitting to a blood test and the probability that the evidential breath test would yield a lower level of alcohol than a subsequent blood test.  Not having the sophisticated knowledge nor advice required at this point, he was at a significant disadvantage when it came to assessing his options.  In all the circumstances, there was a legitimate reason for the appellant wanting further advice on this ground.

[24]     As to the circumstances at the time, there had been a delay of some 16 minutes from the time of arrival at the police station prior to entry into the “EBA suite”.  There had been a further delay of seven minutes in contacting Mr Keegan. There had then been a discussion between the appellant and Mr Keegan which had lasted about three minutes and 38 seconds.  The appellant had complained about the delay after first arriving at the police station.   However, Mr Rowe submitted that overall the result of the delay had not been excessive.  He referred in that regard to further observations that had been made in Rae v Police, at [55] to the effect that there is no special urgency in the taking of a blood test, and that a delay for a short time would be unlikely to be crucial to the result in any but a very few borderline cases.   Here, Mr Rowe argued that it could not be said that the stage had been reached where the integrity of the breath testing procedure would have been affected by a further short consultation between the appellant and Mr Keegan.   The police had acted unreasonably in denying the right to make a second telephone call.

[25]   In addressing the operational requirements of the legislation, the same arguments, of course, arose.  On the facts, Mr Rowe argued that there could be no suggestion here that the process would have been put at risk by a further short consultation.

[26]     In summary, Mr Rowe argued that the refusal to allow Mr B   to consult his lawyer for a second time prior to undertaking the evidential breath test was unreasonable given:

a)       One of the points he wished to seek advice on arose from the initial mis-statement by the police of the requirement to undergo the breath test.

b)The decision whether to give a breath test and risk instant suspension of licence is a difficult and complex one.

c)       The first consultation with the lawyer was relatively brief and had not significantly delayed matters.

d)The integrity of the overall process would not have been threatened by a further brief consultation at that time.

Respondent’s argument

[27]     In response, Mr Raftery pointed out that it was clear that the appellant had been advised of his right to counsel pursuant to s 23(1)(b) of the New Zealand Bill of Rights Act.  The appellant had named a specific lawyer, Mr Keegan.  The police had successfully  located  the  lawyer  and  the  appellant  spoke  to  him  prior  to  being required to undergo the evidential breath test.   It was at the same stage of the procedure that the appellant’s request to speak again to his lawyer had been declined.

[28]     He emphasised the conclusions that the learned District Court Judge had set out at [31]:

In the sense discussed by Richardson J in Noort the criminal process in its actual process and its consequences did not act unfairly for this defendant. He was afforded access to his own lawyer immediately before the administration of the breath test.   He was offered the same  opportunity immediately before the administration of the blood test.   In that sense the prosecutors  were compliant  both  with the existence  of  the right  and  its continuing nature.  As a matter of common sense and proportion the denial of an immediate reprise of the opportunity already taken for advice was not erroneous.

[29]     Mr Raftery argued that both the Judge’s reasoning and his conclusion were unassailable.  There had been no breach of the duty to adequately facilitate access to counsel in the circumstances.

Discussion

[30]     The Judge noted in his decision that the appellant had explained in evidence that he had two reasons for wishing to speak again to Mr Keegan.  However, he also held that the reasons were not articulated to the police officers at the time.  While it is correct that in the latter part of the decision containing the Judge’s reasoning he did not mention the appellant’s desire  for  advice on  the instruction/requirement issue, I am not persuaded that that was a material error which would have affected the outcome of the case.

[31]     I say that for two reasons.  First, as I have just noted, the Judge was plainly aware  that  that  was  one  of  the  reasons  why  the  appellant  wished  to  speak  to Mr Keegan for a second time.  Secondly, I do not see much significance in the fact that the police constable used the wrong form of words to convey the requirement that the appellant undergo the evidential breath test.   On the evidence, she was immediately corrected by her superior and there is no suggestion that the corrected version failed to comply with the legislation in any way.  Since the appellant had not taken any action in relation to the first and incorrect “instruction” it is difficult to see how his position was at all affected by it.  It was not until the statement had been corrected that he made his request to speak again to Mr Keegan.

[32]     Although in this field issues of technical non-compliance with the statute can sometimes be significant, I do not think that should be the case here.  There is not a great difference in any event between the words “instruct” and “require”, and I tend to the view, as Mr Raftery submitted, that even had there not been the immediate “correction”  of  what  had  been  said,  s 64(2)  of  the  Land  Transport  Act  (the reasonable compliance provision) would have cured the error.  Given that a perfectly proper requirement was, however, immediately substituted, the point does not really arise.  I do not consider that it can be credibly argued that the appellant’s rights were

infringed by failing to afford him the opportunity for a second consultation on this point.

[33]     The second reason advanced for the appellant wanting to consult Mr Keegan again was the issue concerning the prospect of immediate disqualification given an adverse outcome of an evidential breath test.  The issue had simply not been raised during the first discussion.   In the event, the  appellant effectively chose not to undergo the evidential breath test with the consequence that any risk that he might be immediately disqualified was removed.   That point was plainly influential in the learned District Court Judge’s reasoning.

[34]     Mr Rowe maintained that the Judge should have gone further, and considered what the appellant lost by not being able to seek advice on this point.   His submissions have already been summarised above.  However, in the absence of any observation to the police officer that there was an issue on which he had omitted to seek necessary advice, I consider that the police were entitled to take the view that they had properly afforded the appellant his necessary rights under s 23 of the New Zealand Bill of Rights Act at that stage of the process.

[35]     While it is doubtless correct, as Mr Rowe submitted, that numerous separate legal issues might arise at the same stage of the process (that is, the evidential breath testing process) it cannot be the case that a suspect has a right to repeatedly request a further consultation with his or her legal advice during the same stage of the procedures.  I accept Mr Rowe’s submission that there cannot be a hard and fast rule that the suspect has only one right to seek advice during the evidential breath testing phase of the process.  However, where the suspect has been given and exercised the right to seek legal advice, it seems to me that unless there has been some material change in circumstances or some event which plainly presents as a basis for seeking further advice, the police will not err if they do not offer an opportunity to take further legal advice.

[36]     There  was  nothing  of  that  nature  here.    I  have  already  dealt  with  the immediately corrected “instruction” to undergo an evidential breath test.   I do not think that those events should have caused the police constables to understand that

the appellant would have had a valid reason for seeking further advice.   A more natural reaction on their part would have been to treat the incident as trivial.  In that respect, there was nothing to cause them to have any different reaction.  The Judge made no finding that the appellant had observed “something’s wrong here”;  Senior Constable West denied that proposition when it was put to him and although he gave evidence, the appellant did not mention having spoken those words.

[37]     Neither were the police to know, in the absence of any intimation to that effect, that there was an issue on which the appellant had omitted to seek advice during the first discussion.  Had he given such an indication, the situation might have been different.  As it is, and given that he chose to give a specimen of his blood, I do not consider that it can be properly said that his rights were adversely affected by what occurred.

Result

[38]     Because of the conclusion that I have reached, it is unnecessary for me to deal with the second argument advanced by Mr Rowe that the Judge had been wrong to conclude that, even if there had been a breach of s 23(1)(b) of the New Zealand Bill of Rights Act, the evidence of the blood test should nevertheless have been admitted after carrying out the balancing exercise required by s 30 of the Evidence Act 2006.

[39]     The conclusion that there has been no breach of the appellant’s rights means that the appeal must, for that reason, be dismissed.

Conclusion

[40]     The appeal against conviction is dismissed.