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

[2011] NZHC 1194

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2011-470-6

DANIEL BRIAN THOMAS BARRIE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 September 2011 (Heard at ROTORUA)

Counsel:         V Winiata for Appellant

S Simmers for Respondent

Judgment:      6 October 2011 at 11:00 AM

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 6 October 2011 at 11 am, 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 6 October 2011

[1]      Mr  Barrie  was  charged  with  refusing  to  provide  a  blood  sample  when required to do so by an enforcement officer.[1]    Following a defended hearing Judge Ingram convicted Mr Barrie and fined him $750.[2]    He also disqualified Mr Barrie from driving for six months.   Mr Barrie now appeals against both conviction and sentence.

[1] Under s 60(1)(a) of the Land Transport Act 1998. 

[2] New Zealand Police v Barrie DC Tauranga CRI-2010-070-5243, 14 January 2011.

[2]      Mr Barrie argues that the police who dealt with him during the incident that led to the charge prevented him from exercising his right under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (“NZBORA”) to consult or instruct a lawyer without delay.  As a result, he contends that the Judge was wrong to convict him.  In the alternative, Mr Barrie submits that the Judge ought to have discharged him without conviction.

[3]      After Mr Barrie filed the appeal his counsel discovered that there was no record of the evidence taken at the hearing in the District Court.   Normally that would require the appeal to be allowed, and the matter remitted to the District Court for re-hearing.  In the present case, however, counsel have filed a joint memorandum setting out the facts upon which the conviction was based.  They ask the Court to determine the appeal based on those facts.

Facts

[4]      At about 11.55 pm on Friday 18 June 2010, Mr Barrie was the subject of a routine stop by a police patrol whilst driving a motor vehicle on Grove Avenue, Mount Maunganui.  One of the patrol members, Constable Shannon Waters, asked Mr Barrie if he had been drinking alcohol and he denied that he had.

[5]      Constable  Waters  then  required  Mr  Barrie  to  undergo  a  roadside  breath screening test.  Mr Barrie complied with that request, and the test produced a “Fail General” result.  At around 12.05 am Constable Waters advised Mr Barrie of that result, and required him to accompany her to the Mount Maunganui Police Station

for the purpose of an evidential breath test, blood test or both.

[6]      A few minutes later the constable also advised Mr Barrie that he had “the right to speak to a lawyer without delay and in private before deciding whether to answer questions.  Police have a list of lawyers you may speak to for free”.  When Mr Barrie was asked if he understood those rights, he said “yes”.

[7]      Mr Barrie  then  accompanied Constable Waters  to  the Mount  Maunganui Police Station.  Upon his arrival, Mr Barrie was taken to a medical room where the breath testing equipment was located.  At that point Constable Waters advised Mr Barrie:

You have the right to remain silent.  You do not have to make any statement. Anything you say will be recorded and may be given in evidence in Court. Police have a list of lawyers you may speak to for free.  These rights will continue throughout the breath/blood alcohol procedures.  A telephone will be made available for that purpose as soon as practicable and before you undergo an evidential breath test, blood test or both.  You will have a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you.

[8]      At 12.20 am Mr Barrie said that he wished to speak to his own lawyer, who was based in Sydney.  Constable Waters’ evidence was that Mr Barrie told her that the lawyer’s name was “Stu”, but Mr Barrie could not remember the lawyer’s surname or his telephone number.  When he gave evidence at the defended hearing, Mr Barrie denied having given the constable the name “Stu”, but confirmed that when he was at the Mount Maunganui Police Station he could not remember his lawyer’s last name or telephone number.

[9]      Mr Barrie then asked to use a telephone at the police station to call his brother in Sydney.  He thought that his brother would be able to provide the lawyer’s name and telephone number.   Constable Waters refused that request, but told Mr Barrie that he could call his brother on his own cellphone.  Mr Barrie was unable to do this, because the battery of his cellphone was flat. At that point, Constable Waters advised Mr Barrie that he could use the police telephone to speak to one of the lawyers on the Police Detention Legal Assistance Scheme list.  Mr Barrie declined that  offer.    Constable  Waters  then  left  the  medical  room  and  consulted  with Constable Jason Tinsley.

[10]     When both constables returned to the medical room a short time later, Mr Barrie reiterated that he wanted to speak to his lawyer in Sydney.  The constables advised Mr Barrie that, without further details about his lawyer’s name, they were unable to assist him.  They also reminded him that he was free to call a lawyer on the police list, but he again declined to do so.

[11]     At approximately 12.30 am Constable Waters required Mr Barrie to undergo an evidential breath test.  Mr Barrie refused to blow into the evidential breath testing machine when required to do so.  This produced in an “incomplete test” result.  At

12.39 am Constable Waters advised Mr Barrie of that result, and again advised him of his NZBORA rights.  Mr Barrie acknowledged that he understood those rights.

[12]     At approximately 12.45 am Constable Waters required Mr Barrie to permit a sample of his blood to be taken.  Mr Barrie refused to comply with that requirement. On the blood specimen request form he gave the reason for his refusal as being “because I am not been [sic] afforded the right to contact my lawyer”.   Constable Waters advised Mr Barrie of the penalty for refusing to permit a specimen of blood to be taken, and reminded him again of his right to consult and instruct a lawyer without delay and in private.   He also told Mr Barrie that the call to the lawyer would be free of charge.

[13]     Constable Waters then arrested Mr Barrie for refusing to comply with the request that he supply a sample of his blood, and again reiterated his NZBORA rights.  Mr Barrie repeated that he wished to contact his own lawyer in Sydney, and again asked the constable to allow him to call his brother in Sydney so that he could obtain his lawyer’s telephone number.  Constable Waters declined that request, and repeated that Mr Barrie was free to speak to a lawyer on the list provided.  Mr Barrie again refused to call a lawyer from the list, and maintained that he wanted to speak to his own lawyer in Sydney.

[14]     At approximately 1.00 am the police transported Mr Barrie to the Tauranga Police Station for processing.  On arrival at the Tauranga Police Station, Mr Barrie again demanded to speak to his lawyer in Sydney.  Constable Waters gave evidence that at this stage Mr Barrie stated that his lawyer’s name was Theo Aitken, but was

still unable to provide any contact details for him.  Constable Waters again told Mr Barrie that he could speak to a lawyer on the police list, but Mr Barrie refused to do so.

[15]     Mr Barrie was then held in a cell at the Tauranga Police Station until 6.10 am. Neither of the constables could offer an explanation as to why Mr Barrie had been held in the police cells for that long.   They could only speculate that watchhouse staff may have been too busy to process Mr Barrie earlier.

The hearing in the District Court

[16]     At the defended hearing in the District Court, the constables confirmed that calls to Australia can be made from the telephone at the Mount Maunganui Police Station.  They said that there was no practical bar to such a call being made when they dealt with Mr Barrie.

[17]     Mr Barrie also gave evidence.  He confirmed that he is a 29- year old New Zealand resident who has been based in Sydney since 2005.  He owns a property at Mount Maunganui, and returns to New Zealand occasionally to visit relatives and for business purposes.  Mr Barrie confirmed that his lawyer’s name was Theo Tsambas, and that he practises criminal law in Sydney.  Mr Barrie explained that he had had difficulty remembering Mr Tsambas’ name when he dealt with the police on 18 June

2010 because he had only consulted Mr Tsambas on one occasion about 18 months earlier.  He said that when he was dealing with Constable Waters on 18 June 2010 he had only been able to remember Mr Tsamba’s christian name, Theo.

[18]     He was aware, however, that his brother had also consulted the same lawyer recently, and he knew his brother’s telephone number.  For that reason, he thought that his brother would be able to provide him with Mr Tsamba’s contact details.  Mr Barrie said that he only stopped co-operating with the constables when he concluded that they were unreasonably denying him access to his own lawyer.

The issue

[19]     Section 23(1)(b) of the NZBORA provides as follows:

23       Rights of persons arrested or detained

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

…

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

…

[20]     There is no dispute that Mr Barrie was detained by the police under the Land Transport Act 1998 when he sought to contact his lawyer in Sydney.  As a result, the issue for present purposes is whether the constables unreasonably refused to allow Mr Barrie to exercise his right under s 23(1)(b) to consult and instruct a solicitor without delay. The same issue formed the basis of Mr Barrie’s defence at the hearing in the District Court.

The Judge’s decision

[21]     The NZBORA does not contain any definition of what constitutes a “lawyer” for the purposes of s 23(1)(b).  The Judge noted that the Law Practitioners Act 1982 regulated the legal profession when Parliament enacted the NZBORA in 1990.  The

1982 Act did not contain any reference to the word “lawyer”.  Instead, it used the words “practitioner”, “barrister” and “solicitor”.  In order to fall within the definition of any of those terms, a person was required to be enrolled as a barrister and/or solicitor of the High Court of New Zealand.[3]    The Judge observed that s 56 of the

1982 Act made it an offence for any person to act as a barrister or solicitor unless he

or she held a current practising certificate.  Section 65 also made it an offence to act as a solicitor without holding the prescribed qualifications.

[3] Law Practitioners Act 1982, s 2.

[22]     The Judge then noted that it was “inconceivable that in enacting s 23 of the

[NZBORA] ...Parliament can have contemplated that detainees ...could conceivably

have their interests advanced by obtaining unqualified advice from lawyers who do not hold a New Zealand current practising certificate”.[4]    He observed that the only practical and responsible advice that a person who does not hold a New Zealand practising certificate could give to a detainee is that he or she should seek advice from somebody qualified to give that advice.[5]   The only person qualified to give that advice is a person who holds a current New Zealand practising certificate.   The Judge  therefore  concluded  that  the  term  “lawyer”  in  s  23  of  the  NZBORA is confined to persons holding a current New Zealand practising certificate.[6]     As a result, he found that Mr Barrie had no right under s 23(1)(b) to seek advice from his lawyer in Sydney.[7]

Analysis

[4] Fn 1 at [12].

[5] Fn 1 at [13].

[6] Fn 1 at [14].

[7] Fn 1 at [21].

[23]     Underlying the right espoused in s 23(1)(b) is the principle that persons who are detained under any enactment must be afforded the opportunity to obtain legal advice to enable them to understand and exercise their other rights.  The right to seek advice must be interpreted in a manner appropriate to the context in which a detainee seeks to exercise it.   In the present context, Parliament obviously intended that persons who are required to provide a sample of their breath or blood for evidential purposes should have an opportunity to seek advice about their rights in relation to the statutory testing process.

[24]     On its face, however, the right is absolute.   Parliament has not sought to specify or define the class of lawyer whom a detainee may consult and instruct. Moreover, the term “lawyer” is not a term that is unique to New Zealand.  It is used globally to describe a person holding legal qualifications, although not necessarily to describe  a  person  holding  a  current  practising  certificate  in  any  particular jurisdiction.

[25]     The right created by s 23(1)(b) has been interpreted as giving rise to a right by the detainee to consult a lawyer of his or her own choice, even where that

solicitor  may  practise  in  a  distant  town  or  city.[8]      It  has  also  been  held  to  be reasonable for the police to be required permit a detainee to make a telephone call to Australia in order to obtain contact details for a solicitor in New Zealand.[9]   To date, however, the issue of whether or not s 23(1)(b) gives rise to a right to consult a lawyer who practises overseas does not appear to have arisen for consideration.

[8] Barry v Police HC Whangarei CRI-2007-488-029, 3 April 2008. 

[9] Knapton v Police (1993) 10 CRNZ 515 (HC).

[26]     Importantly for present purposes, s 23(1)(b) does not purport to restrict the field of those qualified  to give advice to persons holding current New Zealand practising certificates.  Nor did Parliament seek to amend the definition of “lawyer” in s 23(1)(b) when it enacted the Lawyers and Conveyancers Act in 2003.   The absence of a prescriptive definition of that term is understandable, because any attempt to lay down rigid rules or definitions in the area of NZBORA rights can be counter-productive.

[27]     Having  regard  to  the  use  of  the  broad  term  “lawyer”  in  s  23(1)(b),  I respectfully take a different view from the Judge regarding the ambit of persons whom s 23(1)(b) permits a detainee to consult.  I consider that situations may, in fact, arise when a detainee may justifiably seek to consult a person who does not hold a practising certificate, but who nevertheless has both a law degree and knowledge of the statutory testing regime under the Land Transport Act 1998. A university lecturer who specialises in that field may be an example of such a person.  So too, is a lawyer who has practised in that field but who, for whatever reason, has not renewed his or her practising certificate.  Both would be understood to be lawyers notwithstanding the fact that they do not hold a current practising certificate.   Could Parliament seriously have intended that a detainee was not entitled to seek advice from either of those persons because of that fact?

[28]     I accept that a detainee could normally be expected to seek advice from a person who is both legally qualified and who holds a current New Zealand practising certificate.  For the reasons I have given, however, I do not consider that the right to consult  a  lawyer  should  be  interpreted  in  a  manner  that  effectively  prevents  a

detainee from seeking advice from a lawyer who does not hold a current New

Zealand practising certificate.

[29]     On the other hand, the right must be exercised in a manner that takes into account the nature and purpose of the legislation.  Persons who seek to exercise their rights under s  23(1)(b)  cannot  do  so  in  a manner that  thwarts  or obstructs  the purposes of the statutory regime.   In particular, they must exercise the right in a timely manner, because in this field the passage of time necessarily alters (either to the benefit or detriment of the person detained) the outcome of the procedure.  This was emphasised in Ministry of Transport v Noort; Police v Curran, where Cooke P

said: [10]

The  opportunity  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 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 that 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.

[10] Ministry of Transport v Noort Police v Curran [1992] 3 NZLR 260 at 274.

[30]     Richardson J agreed with these observations, and said:[11]

[11] At 284.

A motorist detained and required to accompany the enforcement officer to a testing station should be informed without delay of his or her right to consult and instruct a lawyer. That right can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation on the enforcement officer to facilitate contact with a lawyer …. The exercise of that right should be facilitated by making available a telephone - whether a cell phone in the officer's car or a telephone on arrival at the testing station will depend on the circumstances…

… since part of the purpose of the right to a lawyer is to allow the detainee to obtain advice as to how to exercise his or her rights and obligations under the law, in order for the right to a lawyer to be effective the detainee must have  access  to  the  advice  before  he  or  she  is  questioned  or  otherwise required to provide evidence …   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.

[31]     It follows that a person who has been required to give a breath or blood sample for evidential purposes is not automatically barred from seeking advice from a qualified lawyer who practises outside New Zealand.  In that event, however, the right must still be exercised reasonably.  Ordinarily one would not expect a lawyer who practises outside New Zealand to have any knowledge of the relevant New Zealand legislation.   As the Judge noted, normally the best advice that a foreign lawyer  could  give  would  be  that  the  detainee  should  consult  a  lawyer  in  New

Zealand who has experience in that field.[12]

[12] Fn 1 at [13].

[32]     That may not necessarily, however, be the case. A detainee may know that an overseas lawyer is familiar with the relevant New Zealand law notwithstanding the fact that he or she practises overseas.   In such a situation I see no reason in principle why the detainee should be prevented from seeking advice from that quarter.

[33]     This does not mean that s 23 provides a detainee with an automatic right to consult with his or her lawyer in any case where the lawyer practises overseas.  The police cannot be expected to provide access to overseas lawyers as a matter of course.  Rather, a detainee who seeks to exercise the s 23(1)(b) right in this way must justify his or her request to seek legal advice beyond New Zealand’s boundaries.  If a detainee can demonstrate that there are reasonable grounds to believe that he or she may be able to obtain relevant legal advice from such a source, the right will be exercised reasonably.   Any refusal of the request will correspondingly be unreasonable.  In the absence of such grounds, however, the police will be justified in declining the request.

[34]     The police will similarly be justified in declining the request if compliance with it will delay the testing procedure to an unacceptable degree.  Richardson J’s observation in Noort that the due carrying out of the statutory testing process cannot be unduly hindered by “hopeless or hapless requests for particular unobtainable lawyers” applies with equal, if not greater, force in the case of lawyers who practise

overseas.

The present case

[35]     In the present case Mr Barrie did not tell the constables with whom he dealt why he wished to speak to his lawyer in Sydney rather than to a lawyer from the police list.  It also appears that Mr Barrie’s familiarity with his lawyer in Sydney was reasonably limited.  This flows from the fact that he had only ever dealt with that lawyer on one previous occasion.  There is nothing in what he told the constables on

18 June 2010, or in his evidence at the defended hearing for that matter, to suggest that he had grounds to believe that he could obtain relevant advice from his lawyer in Sydney.  For that reason, I conclude that the constables were justified in refusing his request to use their telephone to call his brother so that he could obtain the lawyer’s contact details.  They complied with their NZBORA obligations by advising him that he was free to call a lawyer on the list held at the police station.

[36]     In reaching that conclusion, I do not overlook the fact that Constable Waters appears to have initially been sympathetic to Mr Barrie’s suggestion that he should be permitted to make contact with his brother in order to obtain the lawyer’s contact details.  She only withdrew her consent to that course of action when she learned that Mr  Barrie’s  cellphone  battery  was  flat.    In  effect,  however,  the  constable  was granting Mr Barrie an indulgence to which he was not entitled under s 23(1)(b).  The granting  of  an  indulgence  does  not  create  a  legal  right  where  none  previously existed.  For that reason the constable’s initial reaction to Mr Barrie’s request does not alter the conclusion I have reached.

The appeal against sentence

[37]     When Mr Barrie appeared for sentence in the District Court, he did not apply for  an  order  under  s  106  of  the  Sentencing Act  2002  discharging  him  without conviction.  Notwithstanding that omission, he now asks this Court to quash the fine and order for disqualification that the Judge imposed upon him.

[38]     Sections 106 and 107 of the Sentencing Act 2002 relevantly provide:

106    Discharge without conviction

(1)     If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

…

107      Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[39]     Normally an applicant seeking a discharge under s 106 would be expected to provide the Court with evidence to explain how the likely sentence would be disproportionate to the offending given his or her personal circumstances.  Mr Barrie has not placed any evidence before the Court regarding these matters.  As a rseult, it is not possible to say that the consequences of conviction will be disproportionate having regard to his personal circumstances.  If the section is to apply at all, it must be on the basis that the fine and order for disqualification were disproportionate to the gravity of the offending alone.

[40]     At sentencing, the Judge took into account as a mitigating factor the fact that Mr Barrie had refused to co-operate with the constables because of his erroneous belief that he was being denied his legal right to consult his lawyer in Sydney.  He observed that this amounted to a mistaken belief of the law, which does not operate as a defence but which may be a mitigating factor.

[41]     I consider that the Judge was correct to regard the offending in this way.  The Judge gave this factor concrete recognition in the end sentence that he imposed upon Mr Barrie.  I do not consider, however, that it was of sufficient weight to render that sentence disproportionate to the gravity of the offending.

Result

[42]     The appeal is dismissed.

Lang J

Solicitors:

Crown Solicitor, Tauranga

Counsel:

V T Winiata, Tauranga