B v Police HC Wanganui CRI 2008-483-3

[2008] NZHC 884

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2008-483-000003

BETWEEN  B

Applicant

ANDPOLICE Respondent

Hearing:         12 June 2008

(Heard at Auckland)

Appearances: I Rosic for Applicant

A R Longdill for Respondent

Judgment:      12 June 2008

JUDGMENT OF COOPER J

Solicitors:

Armstrong Barton, PO Box 441, Wanganui

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

I Rosic, PO Box 105513, Auckland

B V POLICE HC WANG CRI 2008-483-000003  12 June 2008

[1]      This is an application for leave to appeal to the Court of Appeal from a judgment that I delivered on 14 February 2008.

[2]      In that judgment I dismissed the appellant’s appeal against his conviction in the District Court at Wanganui for driving while the proportion of alcohol in his blood exceeded the limit of 80 milligrams per 100 millilitres prescribed by s 56(2) of the Land Transport Act 1998.

[3]      The present application falls to be considered under s 144 of the Summary Proceedings  Act  1957.    In  particular,  s 144(2)  of  that  Act  is  relevant.    That subsection provides that:

A party desiring to appeal to the Court of Appeal under this section shall within 21 days after the determination of the High Court, or in such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[4]      In R v Slater [1997] 1 NZLR 211 Thomas J, delivering the judgment of the

Court of Appeal said at 215:

Section 144 was  not intended to  provide a  second tier  of appeals from decisions   of   the   District   Court   in   proceedings   under   the   Summary Proceedings Act.   Parliament intended such proceedings to be brought to finality with the defendant having appealed to the High Court other than when the conditions it has specified in subsections (2) and (3) are met and leave to appeal is granted.  Neither the determination of what comprises a question of law nor the question whether that point of law raises a question of general or public importance are to be diluted.

[5]      In the application for leave to appeal the appellant sets out three questions of law to be advanced on appeal.   The first is whether a suspect in the appellant’s position having been given and exercised the right to obtain legal advice requires a material change in circumstance or some event which plainly presents as a basis for seeking further advice before the police are required to facilitate a second or subsequent request for legal advice.

[6]      The second question which it is proposed to be pursued on appeal is whether a suspect in the appellant’s position is required to articulate the reasons for seeking further legal advice before the police are required to facilitate that further request. The third question is, whether on the facts established in this case the police ought to have been required to facilitate the further request for legal advice.

[7]      In a subsequent memorandum counsel for the appellant emphasise what I said at paragraph [35] of the judgment.  They highlight in particular the following words towards the end of the paragraph:

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.

[8]      Counsel  contend  that  this  in  effect  amounts  to  the  imposition  of  a requirement for a material change in circumstances or some other event occurring before a suspect can be permitted upon request to further consult with his or her legal advisor.   Potentially it is said that test runs contrary to previous decisions of the Court of Appeal in R v Mallinson [1993] 1 NZLR 528 and Rae v The Police [2000] 3

NZLR 452 which have emphasised that the right to seek and receive legal advice continues throughout the necessary statutory procedures.   They submit that the circumstances in which a second or subsequent request for legal advice ought to be permitted are far from settled and that if there is to be an approach such as that which I have articulated at paragraph [35] of my judgment, then that should be the subject of consideration at appellate level.

[9]      Ms Longdill, for the respondent, has opposed the grant of leave.  She submits that the approach set out in my judgment will give reasonable guidance to police officers confronted with second requests to obtain legal advice arising as in this case, at the same stage of the statutory procedures.  She also submits that the issue having not previously arisen in its present previous form might be thought to be one which will not often arise, with the consequence that its public importance is diminished for that reason.

[10]     I am satisfied that the statutory tests are met and that leave should be granted to appeal to the Court of Appeal.  The points set out in the application are all, in my view, related and they do raise issues of public importance which would benefit from appellate consideration.

[11]     While it is correct that the issue has not apparently arisen in quite the same form  that  it  has  in  this  case  in  previous  cases,  nevertheless,  because  the  issue concerns possible limitations on the right to seek legal advice, a right guaranteed the suspects under s23(1)(b) of the New Zealand Bill of Rights Act, it seems to me that the subject matter is inherently important.

[12]     In the circumstances the application for leave to appeal is granted.