Barrie v Police HC Tauranga CRI-2011-470-6

[2011] NZHC 1762

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2011-470-6

DANIEL BRIAN THOMAS BARRIE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         On the papers

Counsel:         V Winiata for appellant

S Simmers for respondent

Judgment:      22 November 2011 at 2:00 PM

JUDGMENT OF LANG J

[on application for leave to appeal to Court of Appeal on a question of law]

This judgment was delivered by me on 22 November 2011 at 2 pm, pursuant to Rule

11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BARRIE V NEW ZEALAND POLICE HC TAU CRI-2011-470-6 22 November 2011

[1]      On 6 October 2011 I delivered a judgment in which I dismissed an appeal by Mr Barrie against his conviction on a charge of refusing to provide a blood sample when required to do so by an enforcement officer.[1]    Mr Barrie now seeks leave to appeal to the Court of Appeal against that judgment on specified questions of law.

Relevant principles

[1] Barrie v New Zealand Police HC Tauranga CRI- 2011-470-6, 6 October 2011.

[2]      There is no dispute regarding the principles to be applied in determining an application for leave to appeal.

[3]      Jurisdiction to grant such an application is given by s 144 of the Summary

Proceedings Act 1957 which provides:

144    Appeal to Court of Appeal

(1)     Either party may, with the leave of the [High Court], appeal to the Court of Appeal against any determination of the [High Court] on any case stated for the opinion of the [High Court] under section 107 of this  Act  or  against  any  determination  of  the  [High  Court]  on  a question of law arising in any general appeal:

Provided that, if the [High Court] refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2)     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 within 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]      As counsel note, the Court of Appeal enunciated the general principle to be applied when considering s 144 in R v Slater[2]

[2] R v Slater [1997] 1 NZLR 211 at 215.

Section 144 was not intended to provide a second tier of appeal 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 an appeal to the High Court other than when the conditions it has specified in subs (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 is to be diluted.

[5]      Mr Barrie must therefore demonstrate that my judgment raises a question of law that is of sufficient public and/or general importance to warrant the further delay and expense that will inevitably result from an appeal to the Court of Appeal.

The proposed questions of law

[6]      The police officers who dealt with Mr Barrie during the incident that led to the charge advised him of his right to consult and instruct a lawyer without delay. He then indicated that he wanted to contact his solicitor in Sydney.  He did not know his solicitor’s telephone number, and asked the police officers whether he could use a telephone at the police station to contact his brother in Australia in order to obtain his solicitor’s contact details. The officers declined that request.

[7]      At the heart of Mr Barrie’s appeal was the proposition that a person who has been asked to provide an evidential breath or blood sample has the right under s

23(1)(b) of the New Zealand Bill of Rights Act 1990 to consult or instruct a lawyer of his or her choice.  Counsel for Mr Barrie advanced that proposition in absolute terms.  He submitted that it did not matter where the lawyer lived or practised, or whether he or she held a current practising certificate under the Lawyers and Conveyancing Act 2003.   The Judge in the District Court had rejected that proposition, and held that the right under s 23(1)(b) only entitled a detainee to seek advice from a lawyer holding a valid New Zealand practising certificate.

[8]      I concluded that a detainee is not limited to consulting or instructing a lawyer who holds a current New Zealand practising certificate.  For that reason a detainee is not necessarily precluded from seeking advice from a lawyer who practises overseas. In that event, however, the detainee must justify his or her request, in the sense that he or she must advise the officers to whom the request is made why the overseas lawyer may be able to provide relevant advice.  Mr Barrie did not tell the officers why he believed that he could obtain relevant advice from a solicitor practising in

Sydney.  For that reason they were entitled to decline his request to use a telephone to obtain the lawyer’s contact details.

[9]      Against that background, the questions of law that Mr Barrie wishes the

Court of Appeal to determine are:

1.Does s 23(1)(b) of the New Zealand Bill of Rights Act 1990 provide a detainee with an automatic right to consult his or her lawyer in any case where the lawyer practises overseas?

2.If so, is a detainee who seeks to exercise the s 23(1)(b) right in this way required to justify his or her request to seek legal advice beyond New Zealand  boundaries  (by  demonstrating  that  there  are  reasonable grounds to believe that he or she may be able to obtain relevant legal advice from such a source)?

3.In the absence of such grounds will the police be justified in declining the request?

4.By implication, having regard to the facts of this case, were the police obliged to advise or explain to the detainee those limitations on the s 23(1)(b) right?

Decision

[10]     Many visitors from overseas drive vehicles on roads in New Zealand every day.  In addition, many persons who were originally born in New Zealand now live overseas, but visit New Zealand on a regular basis.   They, too, drive regularly on New Zealand’s roads.   Like all other road users in New Zealand, visitors to this country run the risk of being stopped and detained by the police, either at a checkpoint or for some other reason.  When this occurs, there is a high probability that  they  will  become  subject  to  the  breath  and  blood  screening  procedures authorised by Part 6 of the Land Transport Act 1998.

[11]     If initial breath screening tests indicate the presence of alcohol, the detainee will be asked to provide a sample of breath and/or blood for evidential purposes.  At that point the rights contained in s 23(1)(b) of the New Zealand Bill of Rights Act

1990 will be engaged.  The detainee will be told of the right to instruct and consult a lawyer without delay and in private.  Visitors from overseas may not know any local lawyers, but they may have a strong connection with a lawyer overseas.

[12]     The extent to which, if at all, such persons may be entitled to obtain legal advice from lawyers practising overseas is, in my view, a matter of public and/or general importance given the number of overseas visitors who drive on New Zealand’s roads.  So, too, is my conclusion that a detainee who wishes to instruct or consult an overseas lawyer must provide justification for that request.

[13]     I consider that these issues are of sufficient general and/or public importance to warrant leave to appeal being granted.   I therefore grant leave to appeal to the

Court of Appeal on the questions of law set out above.

Lang J

Solicitors:

Crown Solicitor, Tauranga

Counsel:
V Winiata, Tauranga