B v Police HC Whangarei CRI 2007-488-002
[2008] NZHC 438
•3 April 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2007-488-0029
B
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 18 March 2008
Appearances: G Anson for the appellant
A Hyndman for the respondent
Judgment: 3 April 2008
JUDGMENT OF STEVENS J
This judgment was delivered by me on Thursday, 3 April 2008 at 11am pursuant to r 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, PO Box 146, Whangarei
G Anson, PO Box 248, Kerikeri
McLeods Lawyers, Private Bag 1002, Kerikeri
B V NZ POLICE HC WHA CRI 2007-488-0029 3 April 2008
Introduction
[1] This is an appeal against conviction by B , the appellant, on a charge of driving with excess blood alcohol contrary to s 56(2) of the Land Transport Act 1998 (the Act). The appellant was convicted following a defended hearing in the District Court at Kaikohe before Judge H L Moore. The Judge’s reasons for his decision are contained in a reserved judgment dated 11 January 2005. The appellant was fined $450 with costs of $130 and disqualified from driving for six months.
[2] For the reasons which follow, none of the grounds of appeal can succeed. The appeal against conviction must be dismissed.
Factual background
[3] The charge relates to an incident on the night of 23 May 2004 when Police stopped the appellant at a roadside checkpoint in Paihia. He showed signs of recent alcohol consumption. He was twice required to undergo a breath-screening test, which twice produced a failed result. The appellant was required to accompany the officer, Constable Kite, to the Paihia Police Station where he underwent an evidential breath test. His breath alcohol level measured 460 micrograms of alcohol per litre of breath. The appellant was informed of the result and the consequences. As the reading was over 400 micrograms, if he did not within ten minutes request a blood test under s 72(1)(b)(ii) of the Act, he faced being convicted of driving with excess breath alcohol under s 56(1) of the Act. If the appellant chose to undergo a blood test, he could not then be charged with driving with excess breath alcohol. Rather, the result of the blood test might be used to support a charge based on the level of blood alcohol concentration.
[4] The positive result of the evidential breath test was recorded by the Constable on a form entitled “Advice of Positive Evidential Breath Test”. Relevantly to the appellant’s situation of a result over 400 micrograms, the form stated:
3.(over 400mcg) If you do not within 10 minutes request a blood test, the test you have just undergone could, of itself, be conclusive evidence to lead to your conviction for an offence against the Land Transport Act 1998.
…
4. If you wish to undergo a blood test you must request one within 10 minutes.
5. If you in fact undergo a blood test the result of the evidential breath test cannot be used in court proceedings to support a charge of driving or attempting to drive with excess breath alcohol concentration;
BUT the result of the blood test may be used to support a charge based on an analysis of your blood alcohol concentration.
6. If you do not choose to have a blood test to assess the proportion of alcohol in your blood, it is no defence to proceedings for an offence against the Land Transport Act in respect of the proportion of alcohol in your breath that there was or may have been an error in the result of the breath screening test or evidential breath test.
The appellant signed the form beneath a statement:
I acknowledge that an enforcement officer has advised me of the matters set out above.
[5] Following the advice of the positive evidential breath test, the appellant was given advice by the Constable of his right to consult a lawyer pursuant to the New Zealand Bill of Rights Act 1990. The fact that such advice was given was acknowledged by the appellant signing a document headed “Bill of Rights – 2nd Form”. Having been so advised, the appellant indicated on the form that he would like to consult a lawyer.
[6] Because of its relevance to one of the grounds of appeal, the form of the advice given by the Constable is outlined. It is recorded on the signed form in the following format:
YOU ARE ADVISED THAT YOU HAVE THE RIGHT TO CONSULT AND INSTRUCT A LAWYER WITHOUT DELAY AND TO CARRY OUT THAT RIGHT IN PRIVACY. YOU ALSO HAVE THE RIGHT TO RETRAIN FROM MAKING A STATEMENT
These rights will continue throughout the blood alcohol procedures. A telephone will be made available for that purpose as soon as practicable and before you undergo a blood test. You will have a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you. If
you do not have your own lawyer a list will be provided of on-call lawyers for you to choose from. These lawyers are available to give advice free of charge.
I acknowledge that an enforcement officer has advised me of the matters set out above.
[7] The appellant told the Constable that he wished to speak to his lawyer in Auckland. It seems that the Constable assumed that there was no Auckland telephone directory in the Paihia Police Station. He told the appellant that, if he could provide the lawyer’s telephone number he could call that lawyer, but he assumed that he would not be able to find the number. Thus if the appellant could not provide it, he would have to talk to a local lawyer whose numbers the police had.
[8] The Constable himself was not based in Paihia and having made the request to the appellant to accompany him for completion of the required procedures, had to open up the police station in the absence of the local officer. From the Constable’s perspective, another factor was that it was a Sunday evening when lawyer’s offices were closed. The Judge noted at [8] that there were differences between the appellant and the Constable as to what happened next. In that context, the Judge preferred the evidence of the Constable. That conclusion was not challenged on appeal.
[9] The Judge found that the appellant was given the opportunity of making telephone communication with a local lawyer. The usual list was shown to the appellant, he indicated his choice and then the Constable put through a telephone call to that lawyer. Whether it was the first lawyer chosen or the first lawyer called was unclear, but the appellant was left in privacy in order to take legal advice from a lawyer over the telephone.
[10] After the appellant had taken legal advice, the procedures continued to the stage of the taking of a blood specimen. This step is recorded on two forms, the first headed “Blood Specimen Forms” and the second headed “Blood Specimen Medical Certificate”. Incidentally, all forms referred to up to this point recorded the details of the appellant as “Peter Graeme B , 419 Puketona Road, unemployed”.
[11] The first section of the Blood Specimen Forms recorded the following advice:
You are advised that you are required under the Land Transport Act 1998 to permit a registered medical practitioner or medical officer to take, for the purposes of analysis, a specimen of your venous blood in accordance with normal medical procedures. Do you consent to the taking of a specimen of blood? Please answer “Yes” or “No”.
The word “Yes” is then recorded and that section of the form has been signed by the appellant and the word “agreed” circled in the panel indicating that he agreed to sign his consent to the taking of a blood specimen.
[12] The blood specimen was duly taken from the appellant by a medical officer in accordance with normal medical procedures. The specimen was divided into two parts, each of which was placed and sealed in a separate bottle. It is not disputed that the separate bottles were handed to the Constable for the purpose of being used for analysis by the ESR.
[13] Subsequently, the Constable returned to Whangarei. The sealed and packaged blood specimen was placed by him in the watch house at the Whangarei Police Station so as to cause it to be sent to the ESR for analysis. The documentation establishes that the blood specimen was dispatched by courier post to the ESR by another police officer, Constable Taylor. The applicable sticker from the courier post company (SA155 449 009NZ) is affixed to the documentation.
[14] The blood specimen was found upon analysis by an approved analyst to contain 112 milligrams of alcohol per 100 millilitres of blood. This result was proved at the hearing by an approved analyst’s certificate in the same name and address as those of the appellant. The certificate confirms delivery of the blood specimen to the ESR by courier post SA155 449 009NZ. This is the same number as recorded on the police documentation confirming dispatch by Constable Taylor.
[15] The appellant raised four grounds of appeal. The second and third grounds may be dealt with together. The three grounds may be summarised as follows.
No evidence of election to undergo blood test
[16] Before a suspect may be required to permit a medical practitioner to take a blood specimen for the purposes of analysis, the requirements of s 72 of the Act must be complied with. One such requirement (in s 72(1)(b)) is that, within ten minutes of being advised of certain matters pertaining to the conditions of admissibility of the evidential breath test, the person has advised the officer that he wishes to undergo a blood test. The Judge’s decision records at [9] that the appellant “elected to provide a blood specimen”. The appellant submitted that there is no evidence to support this finding. The appellant’s argument focused on the blood specimen form which recorded that the appellant was “required” to permit a blood sample to be taken. It was submitted that there is no evidence that the appellant advised the officer that he wished to undergo a blood test as required by s 72(1) of the Act.
Proof of chain of custody of blood specimen
[17] The appellant contended that the Judge erred by admitting hearsay evidence of delivery of the blood sample to ESR and the identity of that blood sample. Counsel argued that, given that Constable Taylor, who dispatched the blood specimen to the ESR by courier on 26 May 2004, did not give evidence, it was impermissible for the prosecution to rely on hearsay evidence of what steps the officer took. Further, counsel submitted that the Constable gave conflicting evidence regarding the steps that were taken with respect to the dispatch of the blood specimen. Such conflicts raised concerns about the weight of the evidence regarding the chain of custody of the blood sample.
[18] Finally, the appellant submitted that there was a breach of the provisions of s 23 of the New Zealand Bill of Rights Act. The right of a detained person to consult and instruct a lawyer was a fundamental right and, given that the appellant had expressed a desire to speak to his own lawyer in Auckland, the steps taken by the police to facilitate access to such legal advice were inadequate.
Statutory context
[19] Section 56(2) of the Act provides:
56 Contravention of specified breath or blood-alcohol limit
…
(2) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.
[20] Section 72(1) of the Act sets out when a person must give a blood sample to a medical practitioner:
72 Who must give blood specimen at places other than hospital or surgery
(1) A person must permit a [ ] medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—
(a) The person fails or refuses to undergo without delay an evidential breath test after having been required to do so by an enforcement officer under section 69; or
(b) The person has undergone an evidential breath test under section
69(4) [ ], and—
(i) It appears to the officer that the test is positive; and
(ii) Within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), the person advises the officer that the person wishes to undergo a blood test; or
…
77 Presumptions relating to alcohol-testing
…
(3) Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—
(a) The person who underwent the test is not advised by an enforcement officer, [without delay] after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes,—
(i) In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be [conclusive] evidence to lead to that person's conviction for an offence against this Act; or
(ii) In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 150 but does not exceed 400 micrograms of alcohol per litre of breath, the test could of itself, unless the person is 20 or older, be [conclusive] evidence to lead to that person's conviction for an offence against this Act; or
…
[22] Section 23(1)(b) of the New Zealand Bill of Rights Act provides:
23 Rights of persons arrested or detained
(1) Everyone who is arrested or who is detained under any enactment-
…
(b) Shall have the right co consult and instruct a lawyer without delay and to be informed of that right.
Powers on appeal
[23] The appellant has a general right of appeal against conviction or sentence for an offence under the Act pursuant to s 115 of the Summary Proceedings Act 1957. A general appeal is by way of rehearing: see s 119. The High Court’s general powers on rehearing are outlined in s 121.
[24] The principles applicable to general appeals have recently been considered by the Supreme Court in Austin Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103 11 December 2007. Giving the judgment of the Court, Elias CJ stated at [16] that:
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[25] Section 119 of the Summary Proceedings Act allows the Court to order that any viva voce evidence be heard again or to permit fresh evidence to be introduced if it meets the requisite tests. That issue did not arise in this case. According to the Court of Appeal in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190, an appellate court should not reverse a factual finding unless compelling grounds were shown for doing so. However, this may now be regarded as too broadly stated a principle. The Supreme Court in Austin Nichols was careful to limit the deference advocated in Rae to instances where findings of fact were credibility-dependent. The Court stated at [13] that:
The appeal court must be persuaded that the decision is wrong but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important.
[26] According to the Supreme Court, although an appellate court may rightly be cautious of departing from factual findings, it is nevertheless required to form its own opinion on the basis of all the material before it. That is the approach I have applied in this case.
Discussion
No evidence of election to undergo blood test
[27] This ground is essentially a challenge to the factual findings of the Judge at [9] and [28] that the appellant advised the officer that he wished to undergo a blood test. It is true that there is no explicit reference in the notes of evidence that the appellant advised the Constable that he wished to undergo a blood test within ten minutes of being advised of the matters specified in s 77(3)(a) of the Act, being the same matters as set out in the advice of positive evidential breath test form quoted at [4] above. However, Ms Hyndman for the respondent submitted that there was ample basis for the Judge to have inferred that the appellant did express such a wish thus complying with the requirement of s 72(1)(b)(ii) of the Act.
[28] In terms of the factual chronology, the Constable advised the appellant of the matters in s 77(3)(a) of the Act at 8.07pm. The Constable repeated to the appellant his Bill of Rights advice at 8.09pm. The appellant requested and spoke to a lawyer following such advice. After the appellant had consulted a lawyer, the Constable filled out section 1 of a Blood Specimen Form (described at [11] above) confirming advice to the appellant that he was required to permit a medical officer to take a specimen of venous blood and asking whether the appellant would consent. As already noted, the appellant agreed to the taking of a blood specimen. At 8.45pm the medical officer took a blood specimen from the appellant. So far as the ten minute timeframe referred to in s 72(1)(b)(ii) of the Act is concerned, it is well recognised that such timeframe excludes the time reasonably taken to consult counsel. An officer has a discretion to permit further time: see Rae v Police [2000] 3 NZLR 452 (CA) at 52.
[29] I am satisfied that the above facts give rise to a clear inference that the appellant advised the Constable that he wished to undergo a blood test. Such a view of the evidence was open to, and in fact found, by the Judge. As noted in the decision at [28], the appellant took legal advice and “thereafter made the choice which seemed almost inevitable in terms of his obvious outlook at the time and the advice likely to have been given to a person in his situation.” I agree with such
reasoning. It is also the case that the inference gains support from the fact that there is no evidence whatsoever that the appellant objected when asked whether he consented to the taking of a blood specimen. The first ground of appeal cannot succeed.
Proof of chain of custody
[30] The appellant contended that the proof of the chain of custody of the blood specimen from the Whangarei Police Station to the ESR was inadequate. In particular, the fact that the officer who sent the blood specimen to ESR, Constable Taylor, did not give evidence meant that the chain of proof had been broken. In the absence of direct evidence, proof of delivery could only be established by reference to satisfactory evidence about police procedure. Counsel for the appellant submitted that when Constable Kite gave evidence about how and when delivery of the blood specimen occurred, there were inconsistencies which made the evidence unreliable.
[31] For the respondent, Ms Hyndman referred to the findings of the Judge at [9]
where he stated:
Subsequently the officer returned to Whangarei. The sealed and packaged blood was so placed by him in the Police Station watchhouse there as to cause it to be sent to the ESR. Police documentation indicates that despatch was by courier on 26 May. On the evidence before the Court there is no room for any conclusion other than that the sealed blood specimen collecting kit remained sealed until after it was received by the ESR; that the kit contained the samples of Mr B ’s blood taken in the context already described; that there was no deterioration or congealing as would prevent a proper analysis; and that upon analysis by an approved analyst the blood sample taken from Mr B was found to contain 112 milligrams of alcohol per 100 millilitres of blood.
[32] Counsel for the respondent referred to the evidence which touched upon the chain of evidence of the blood sample from the Whangarei Police Station to the ESR. She submitted that, despite the criticisms of unreliability by the appellant, there was ample evidence to justify the conclusions of the Judge at [9]. Such findings were founded upon the evidence of Constable Kite regarding the system for conveying blood samples to ESR and its reliability. Such findings were clearly open to the Judge.
[33] Ms Hyndman also cited a passage dealing with proof of the chain of evidence from Cameron v Police HC WN CRI 2005-485-187 14 March 2006, MacKenzie J. In a case with certain factual similarities to the present, MacKenzie J at [4] stated:
Dealing with … the chain of evidence as to the blood sample, the officer’s evidence was that he placed the blood specimen in a bag which he obtained from the senior sergeant in the watch-house. He said that it was addressed to the ESR. He filled out the blood specimen form. He placed the sample in a bag and placed that bag in what he described in cross-examination as a locked letter-box. He was unable to give further evidence as to the removal of the sample from that box and its carriage to ESR. The ESR analyst’s certificate certified receipt of a blood specimen taken from the appellant, who was named and whose address was given.
[34] Later in the judgment, MacKenzie J stated at [7] as follows:
In my view, the evidence was sufficient to enable the Judge to draw the conclusions which he did. The requirement is that the officer caused the sample to be conveyed to ESR. It is not necessary that every person involved in the chain of that communication be called as a witness to give evidence of the handling of the sample while it was in their possession. There must be evidence from the officer administering the procedures to establish that he caused it to be conveyed by adopting a system which is sufficient to satisfy the Judge dealing with the particular case that any opportunity for interfering with the sample is eliminated so far as that can humanly be done. Here there was evidence which was sufficient to enable the Judge to draw the conclusion that he did. The sample was placed in a locked letterbox by the constable who administered the procedures. The evidence in the analyst’s certificate established that the sample was received at ESR. There was sufficient evidence that that was in accordance with a system which enabled the Judge to be confident in the conclusion that he did express that there was no risk of the sample analysed being anything other than the sample taken from the defendant and no risk of the sample being tampered with.
[35] I consider that the approach taken in Cameron is entirely applicable to the circumstances of the present case. There was evidence open to the Judge from which to conclude that the chain of evidence of the blood specimen from the Whangarei Police Station to the ESR laboratory was complete. Counsel for the appellant was unable to point to any evidence before the Judge which would demonstrate that there was a risk that the sample analysed was anything other than the sample taken from the appellant. Moreover, there was no demonstrated risk of the sample being tampered with or contaminated.
[36] I am unable to see any basis upon which the factual findings of the Judge on this point should be overturned. The second ground of appeal cannot succeed.
Failure to facilitate right to counsel
[37] The findings of the Judge on this point at [14] are:
On the evidence, this is clearly not a case where the Police deliberately sought to deny a suspect his right to consult the lawyer of his choice, recklessly disregarded that right, or were grossly careless. Rather, the officer saw the lack of an Auckland telephone directory as an insurmountable obstacle when it was not. He did not consider, and the defendant did not raise with him, the possibility of a call to the Telecom Directory Service.
[38] The right to a lawyer under s 23(1)(b) of the New Zealand Bill of Rights Act is in the first instance to consult one’s own lawyer. In Ministry of Transport v Noort; Police v Curran [1992] 3 NZLR 260 (CA), Cooke P at 274 observed that a driver who cannot immediately contact his or her own lawyer should normally be allowed to try one or two others. Cooke P added that “hard-and-fast rules cannot be laid down for all circumstances. Ultimately it must always be a question of fact and common sense whether a reasonable opportunity has been given.”
[39] With respect to what is reasonable, where a person is new to an area, they may naturally wish to try to make contact with their lawyer in another city. Plainly, any obstruction of such an attempt could amount to a breach: see McMillan v Police HC CHCH AP176/95 17 August 1995, John Hansen J.
[40] The question of facilitation in the context of the breath and blood alcohol legislation was considered in Rae v Police. The judgment of Richardson P, Thomas, Keith, Blanchard and Tipping JJ was delivered by Blanchard J. On the topic of facilitation, he stated at [57] that:
It follows from the availability of the right to counsel during the entire process that the obligation of the enforcement officer to facilitate the exercise of the right, which this Court recognised in R v Mallinson [1993]
1 NZLR 528, also continues throughout. The obligation matches the circumstances. What is required at any particular point during the procedures
will depend upon the circumstances at that time, including of course the
requirements of the Act. It is not to be overlooked that it may only be when the evidential breath test result is ascertained that the motorist appreciates
that an offence may have been committed. What has to be provided in that
circumstance is a fair opportunity for the detained person to consider and decide whether or not to exercise the right (Mallinson at p 530). It is a question of whether the motorist has been afforded the facility “to exercise
the right in a real and practicable way once there has been an indication that he or she wishes to do so”, as Neazor J put it in Steel v Police (1994)
11 CRNZ 383 at p 391.
[41] The principles relating to facilitation of the exercise of the right to consult a lawyer were discussed recently by the Court of Appeal in R v Alo [2008] 1 NZLR
168. The judgment of William Young P and Arnold J made reference to Mallinson, particularly the seven principles set out by Richardson P in that case. Relative to the facilitation issue, the judgment at [68] refers to the key passages including the following:
7. Informing persons arrested of their s 23(1)(b) rights ordinarily carries with it the obvious implication that they are entitled to exercise those rights. But there is no duty on the police when informing persons arrested of their right to a lawyer to go on to give advice designed to facilitate the exercise of that right. The police officer may decide to do so in order to assist in the understanding of the right. But any duty to facilitate the manner of its exercise is not triggered until there is an indication by the person arrested of the desire to consult a lawyer. What, if anything, is then required of the police will depend on the particular circumstances. [Emphasis added]
[42] The question of what amounts to facilitation of a request has been considered by the Full Court of the High Court in Brown v Police HC HAM CRI 2004-419-000087 22 October 2004, Priestley and Winkelmann JJ. In that case, the relevant telephone directory was not available in the station. The police officer attempted to use the police TESSA system, which he understood incorporated all the Telecom White and Yellow Pages information. He made several futile telephone calls endeavouring to obtain the lawyer’s number. But the officer was inadvertently using a misspelling as the appellant had not provided the officer with the correct spelling. The Court cautioned at [61] that it is always possible with the benefit of “hindsight” to deduce that other actions might have been taken to better facilitate the exercise of s 23 rights. The Full Court held that in the circumstances of that case the officer did adequately facilitate the request to contact the lawyer.
[43] Another feature of the application of the right in s 23(1)(b) of the New Zealand Bill of Rights Act to consult a lawyer is that there are statutory timeframes within which the officer must work. For cases involving both the breath and blood alcohol regime, the officer is required not only to comply with the strict procedures of the relevant Act section but also to observe the rights protected by the New
Zealand Bill of Rights Act. As was observed by John Hansen J in Gorrie v Dunedin District Court HC DUN CP15/02 5 August 2002, at [16] there is “an obvious urgency inherent in the need to obtain breath/blood samples within a limited timeframe.” Such a sentiment was no doubt behind the observations of the Court of Appeal in Noort where it was stated at 284 that:
But the due carrying out of the statutory testing process cannot be unduly hindered by hopeless or hapless quests for particular, unobtainable lawyers or by an insistence on the part of the motorist not to comply unless his or her lawyer attends there in person.
[44] A synthesis of the above principles would suggest that the fundamental right in s 23(1)(b) is to consult and instruct a lawyer without delay and to be informed of that right. Where a motorist is informed of the right and makes a request to consult his own lawyer, the extent of the facilitation obligations on the police will turn on a range of factors including time, place and circumstances. Questions of reasonableness and practicality will obviously apply so that a motorist is not entitled to reframe or redefine the s 23(1)(b) right by insisting unreasonably on only dealing with his own lawyer. Whether the police have adequately facilitated the exercise of the right to consult a lawyer will be a question of fact and common sense and will depend on all the circumstances of the particular case.
[45] For the appellant, Mr Anson submitted that the facts of this case, correctly interpreted, disclosed a clear breach of the right in s 23(1)(b) as that right has been interpreted by the authorities. For the respondent, Ms Hyndman submitted that the findings of fact determined by the Judge were decisive. Such findings against any serious breach were clearly open on the evidence.
[46] Such findings included those already referred to in [14] of the Judge’s decision, quoted at [37] above. They also include the following factual determinations at [26] of the decision, namely, that:
…there was, marginally, an unintended breach of the duty to facilitate to contact with Mr B ’s chosen lawyer. But it was not a deliberate breach, nor one involving reckless disregard of Mr B ’s rights or even gross carelessness. It flowed from a failure to consider the possibility of ways around an obvious practical difficulty. Those ways could have included not only a call to Directory Service but even a call to a major police station, such as of that at Whangarei, where it would be reasonable to expect Auckland
Directories, Yellow pages and possibly even a comprehensive law list would be held.
[47] To these consideration, Ms Hyndman submitted that the following could be added to the overall circumstances. First, there is no suggestion in the evidence that the appellant on the night in question gave the telephone or other details of his own lawyer to the Constable. Nor is there any suggestion that he refused to follow up when specific information relating to possible communication with the appellant’s own lawyer was provided by the appellant. Second, there was no evidence that the appellant was in the habit of calling his lawyer in Auckland after hours. Third, there was no evidence of any request by the appellant that the Constable should use the Telecom 018 number and no evidence of a refusal to follow that course. Finally, when the appellant was provided with the form with the names of the on-call lawyers on it, there was no evidence of any protest or expression of concern by the appellant that he was being offered this inferior means of complying with the right to consult a lawyer.
[48] With respect to the factual findings of the Judge and the further considerations just outlined, it seems that the breach of the appellant’s right to consult a lawyer in the circumstances of this case lay in the assumption that there was no Auckland telephone directory on hand and no other means available (such as use of the 018 service) to endeavour to track the number. But even if such circumstances did involve a breach of s 23(1)(b) of the New Zealand Bill of Rights Act, I agree with the conclusion of the Judge that at worst there was “marginally, an unintended breach”.
[49] This conclusion was reached applying the decision of the High Court in Tawhai v Police HC AK A109/02 26 August 2002, Rodney Hansen J. There it was held that a breach of s 23(1)(b) of the New Zealand Bill of Rights Act necessitated a balancing exercise pursuant to R v Shaheed [2002] 2 NZLR 377 (CA) to determine whether the evidence tainted by the breach should be excluded. In Tawhai, the lawyer of choice could not be contacted despite a number of attempts by the officer. The breach was held to be sufficiently trivial that exclusion of the evidence would have been disproportionate.
[50] Rodney Hansen J analysed the position as follows:
[22] Even if I am wrong in concluding that Mr Tawhai’s s 23(1)(b) right was not breached, I am satisfied that any breach would not justify exclusion of the blood test results. That requires a balancing exercise: R v Shaheed [2002] 2 NZLR 377; (2002) 19 CRNZ 166 (CA) at para 26:
“The Judge must decide by a balancing of the relevant factors whether exclusion of the evidence is in the circumstances a response which is proportionate to the breach which has occurred of the right in question.”
[23] Blanchard J went on to identify the matters which are likely to be relevant to the balancing exercise as:
· The value which the right protects and the seriousness of the intrusion on it.
· Whether the breach has been committed deliberately or with reckless disregard of the suspect’s rights or through gross carelessness on the part of the police.
· Whether other investigatory techniques, not involving any breach of rights, were known to be available and not used.
· The nature and quality of the disputed evidence.
· The centrality of the evidence to the prosecution’s case.
· The availability of an alternative remedy or remedies.
[24] A brief review of these factors is sufficient to establish that any breach in this case would not justify the exclusion of the blood test results. The right to a lawyer is, of course, a fundamental one. But any intrusion in this case could only be described as minor. Mr Tawhai had set his face against consulting any lawyer but Mr Lloyd. If there was a breach, it was an oversight arising out of a conscientious attempt by the police constable to ensure that Mr Tawhai had a full opportunity to consult a lawyer. There could be no question or recklessness or bad faith.
[25] The results of the blood test provide conclusive proof of blood alcohol levels: s 77(2) of the Act. The evidence has presumed accuracy and reliability. The evidence is of vital importance. The Crown’s case will fail if the results of the blood test are excluded; s 77(3)(a)(i) of the Act prevents recourse to the evidential breath test result.
[26] Weighing these factors, I am satisfied that even if there was a breach of the Bill of Rights, the exclusion of the results of the blood test would be a wholly disproportionate response.
[51] In the case under appeal, Judge Moore referred to and applied the reasoning in Tawhai. I am satisfied that on the facts before him (assuming a breach of
s 23(1)(b)) it was entirely appropriate to do so. It follows that, if there were a breach, exclusion of the evidence of the blood test would be wholly disproportionate to the breach of the right that occurred.
Result
[52] In the light of the above conclusions, the final ground of appeal has not been made out. The appeal against conviction must therefore be dismissed.
[53] The respondent did not seek costs. There will be no order as to costs.
Stevens J
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