Bai v Police

[2017] NZHC 254

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000130 [2017] NZHC 254

BETWEEN

YI FAN BAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 February 2017
Appearances:	P J Doody for Appellant B Hawes for Crown
Judgment:	23 February 2017

JUDGMENT OF DUNNINGHAM J

[1]      The appellant, Mr Yi Fan Bai, appeals his conviction on a charge of driving with excess breath alcohol contrary to s 56(1) of the Land Transport Act 1998.  His breath alcohol reading was 607 micrograms of alcohol per litre of breath, more than twice the legal limit for adult drivers of 250 micrograms.

[2]      He was convicted in the District Court on 21 October 2016 and fined $700, ordered to pay Court costs of $130 and disqualified from driving indefinitely, although with leave to apply, in three months time, for a licence on the basis that an alcohol interlock device was fitted to his car.

Grounds of appeal

[3]      The  appellant  appeals  his  conviction  on  two  grounds.     He  says  the District Court Judge erred in finding that there had not been a breach of s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) and the Judge erred in his

assessment that, even if a breach had occurred, exclusion of the evidence would not

BAI v NEW ZEALAND POLICE [2017] NZHC 254 [23 February 2017]

be proportionate to the breach under s 30 of the Evidence Act 2006, because it failed to take account of alleged bad faith on the part of the police.

Background

[4]      In the early hours of the morning on 3 January 2016, the appellant was driving down Manchester Street in central Christchurch when he was seen by police to drive through a red traffic light and was pulled over as a result.

[5]      When asked if he had been drinking alcohol that evening he responded that he had consumed one beer. A breath screening test was administered which provided a reading of over 400 micrograms of alcohol per litre of breath.  The appellant was then asked to accompany the constable back to Christchurch Police Station for the purpose of undertaking an evidential breath test, blood test, or both.  The appellant was informed of his rights, and when asked, he indicated that he understood those rights.

[6]      Once at the police station the appellant was again informed of his rights and asked whether he would like to speak to a lawyer.  He replied that he would like to speak to his lawyer, Mr Andy Gao.   The appellant provided the constable with Mr Gao’s contact details and the constable called the number, but there was no answer.  The constable then provided the appellant with the list of available lawyers prepared under the Police Detention Legal Assistance (PDLA) service.   From that list a further eight lawyers were called, but none answered the telephone.   This process took some 20 minutes.  After this, the constable made a further telephone call to Mr Bai’s own lawyer and again there was no answer.  He then administered an evidential breath test which resulted in a reading of 607 micrograms of alcohol per litre of breath.  Following this he provided Mr Bai with advice about the 10 minute period in which to decide whether he wanted to proceed with a blood test.  He again asked whether Mr Bai wanted to speak to a lawyer.  At Mr Bai’s request, Mr Gao was  rung for a third time but  again  there was  no  answer.   The constable  then commenced the 10 minute period in which Mr Bai could decide whether to proceed with a blood test or not.  At the end of the period Mr Bai declined to have a blood

test saying he would stick with his breath test results.  He was convicted on the basis of those results.

Was s 23 of the New Zealand Bill of Rights Act 1990 observed?

[7]      Mr Doody’s primary claim was that there has been a breach of Mr Bai’s rights  under  s  23(1)  of  NZBORA in  the  particular  circumstances  of  this  case. Section 23(1) provides:

23       Rights of persons arrested or detained

(1)      Everyone who is arrested or who is detained under any enactment—

(a)       shall be informed at the time of the arrest or detention of the reason for it; and

(b)       shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

(c)       shall  have  the right to  have  the  validity  of  the arrest  or detention  determined  without  delay  by  way  of  habeas corpus and to be released if the arrest or detention is not lawful.

[8]      Mr Doody submitted that, in all the circumstances, the constable attending Mr Bai did not take sufficient steps to facilitate his access to legal advice as he was entitled to under s 23(1)(b) of NZBORA.  For this reason there was a breach of his rights and, as a consequence, prima facie, the rule of exclusion will apply.

[9]      Initially it appeared the appellant’s position was that the right to consult a lawyer was absolute and there was a breach of that right whenever a detainee elects to consult a lawyer but is unable to do so.   However, in oral submissions it was clarified that Mr Doody was not asserting that the constable had an absolute duty to ensure legal  advice was  obtained.    Rather,  Mr  Doody relied  on  the constable’s admission that over the last two and a half years that he had been working as a constable, he had not got an answer when he telephoned the duty lawyers on the PDLA list “maybe seven times out of 10”, and that he had never raised that up as a concern with his superiors or any other responsible authority.   Mr Doody asserted that this demonstrated that insufficient had been done in this case, by this officer.

[10]     Mr Doody submitted that access to legal advice for a person detained by the police is fundamental to the administration of justice and when that right can not be properly afforded, the system itself is brought into dispute.  In this circumstance, not only could Mr Bai not contact his own lawyer, but the PDLA scheme failed Mr Bai, and the constable knew that was likely to be the case given his experience.  The main thrust of Mr Doody’s submission was that the failure of the PDLA scheme, which was intended to address the right enshrined in s 23(1)(b), meant there was a breach of that right in this case as it was “not for a person detained to be put in a position where they are required to undergo procedures or questioning because of a failure in the system”.

Discussion

[11]     The issue of access to legal counsel in the context of a breath alcohol regime has been considered by the Higher Courts on several occasions.   It was common ground  at  the  hearing that  the leading  case is  the Court  of Appeal  decision  in Ministry of Transport v Noort.1   In that case the defendant was convicted for refusing to permit a blood specimen to be taken after having been required by an enforcement officer to do so.  The defendant’s reason for the refusal was that his lawyer was not

present and the police had made no efforts to facilitate access to legal advice.

[12]     In discussing how s 23(1)(b) of the NZBORA could be applied and read with the Transport Act 1962, Cooke P held:2

The opportunity [to obtain legal advice] is to be limited but reasonable.  It is not necessarily restricted to one call, but there must be no unreasonable delay.   A driver who cannot immediately contact his  or her own lawyer should normally be allowed to try one or two others.  If, despite a reasonable opportunity, no lawyer can be contacted (perhaps because of the hour of the night) the test need not be delayed further.  Rosters of lawyers, available to undertake this work at an appropriate fee, may be prepared by the Law Society, the police, or the Ministry, but this is outside the control of the Court.   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.

[13]     These  views  have  been  endorsed  and  elaborated  on  in  a  number  of subsequent judgments. The High Court in Barry v Police said:3

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.

[14]     Similarly, in Tallentire v Police, the High Court said:4

The police must take reasonable action to facilitate the detainee’s exercise of the right.   But the police have no obligation to find for the detainee the detainee’s lawyer of choice.  The obligation is to facilitate, not to provide, and the requirement to assist with the provision of this opportunity is not a counsel of perfection.

[15]     While Mr Doody accepted that there was no obligation to ensure legal advice was obtained if requested, and that the decision to proceed with an evidential breath alcohol test or a blood test or both could be deferred until the morning, he submitted that the constable’s efforts were conducted in “bad faith”, because he knew from experience that there was a high probability no lawyer would be available, and yet he had never sought to address this shortfall in the system.

[16]     I am satisfied that that submission simply cannot be sustained on the facts. Having accepted that the police only have to do what is reasonable in the circumstances to assist a detained driver to contact his own lawyer, or an alternative lawyer, I do not accept that the constable’s 11 attempts to call nine lawyers over a

20 minute period did not meet or exceed the bounds of what was reasonable.  The suggestion that the police should be visited with the shortcomings of the PDLA service, because this constable had not taken any steps to remedy it, is untenable.

[17]     It is even less meritorious to suggest that the constable was acting in bad faith.   Bad faith requires the actions to be motivated by malice, or fraudulent or dishonest intent.   It cannot encompass the efforts to reasonably assist someone to

contact their own lawyer or, alternatively, a lawyer through a service designed to address s 23(1)(b) rights, albeit one which it is known to have shortcomings.

[18]     Furthermore, allegations of this kind are serious and require a high standard of proof.5   In this case, there was simply the bold assertion that I could draw from the constable’s admission that the PDLA service was often ineffective when sought to be accessed at night, to support the appellant’s assertion that the constable’s efforts to use the service on this occasion demonstrated the degree of conscious misconduct required to establish bad faith.

[19]     As I have already said, such a submission is untenable.  In the present case, the constable telephoned nine different lawyers including three calls to the detainee’s own lawyer, over a period of 20 minutes.  Those efforts were exemplary and readily met the standard required of the police, as articulated in Noort.   It was perfectly reasonable, given the time that had elapsed to that point, for the constable to then proceed with administering an evidential breath test.

[20]     Given  my  conclusions  that  there  has  been  no  breach  of  s  23(1)(b)  of NZBORA,  because  the  police  only  have  an  obligation  to  facilitate,  and  not  to provide, access to a lawyer, I do not need to consider the analysis under s 30 of the Evidence Act 2006 and whether the exclusion of the evidence was proportionate to the alleged impropriety.

[21]     In  any  event,  Mr  Doody’s  only  challenge  to  the  District  Court  Judge’s analysis under s 30, was that he failed to take into account the element of “bad faith” involved.  As that is the only factor advanced by Mr Doody to alter the s 30 analysis undertaken by the Judge, that aspect of the decision is also upheld as a correct

analysis of the facts and law.

5      See WEL Energy Trust v Waikato Electricity Authority HC Hamilton, CP 69/93, 31 August 1994 at 105-106 and First City Corporation v Downsview Nominees Ltd (No. 2) [1989] 3 NZLR 710 at 766.

Conclusion

[22]     The evidential breath test relied on to support Mr Bai’s conviction was not improperly obtained in breach of s 23(1)(b) NZBORA, as the constable made all reasonable efforts to facilitate the exercise of that right.

[23]     Accordingly, the appeal is dismissed.

Solicitors:

Peter Doody, Christchurch

Raymond Donnelly & Co., Christchurch