(a)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?
The answer is no.
(b)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)?
This question does not arise by virtue of our answer to question (a).

(c)In the absence of such grounds will the police be justified in declining the request?
This question does not arise by virtue of our answer to question (a).

(d)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?
The answer is no.

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No
Introduction	[1]
Background	[3]
The judgments below	[9]
Questions for this Court	[11]
The right to counsel in drink/drive situations	[13]
Submissions of the parties	[16]
Appellant’s submissions	[16]
Crown’s submissions	[19]
Purpose of right to counsel	[22]
Lawyers and Conveyancers Act	[28]
Introduction	[28]
Reasoning of the courts below	[32]
Our assessment	[35]
Is there an automatic right to consult a foreign lawyer?	[39]
Does a detainee have to justify a request to consult a foreign lawyer?	[50]
Were the police obliged to explain the limitations on the s 23(1)(b) right?	[52]
Result	[55]

Introduction

This appeal concerns the question of whether a defendant has a right, under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), to contact foreign counsel in an excess breath alcohol situation.
Section 23(1)(b) of the Bill of Rights 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 to consult and instruct a lawyer without delay and to be informed of that right; …

Background

On 18 June 2010, Mr Barrie was stopped at a routine police breath testing checkpoint in Tauranga just before midnight. He denied consuming alcohol but was required to undergo a breath screening test. He failed that test. At 12.05 am Mr Barrie was told that he was required to return to the police station for an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barrie v R

Details

AGLC: Barrie v R [2012] NZCA 485
Case: [2012] NZCA 485
Decision Date: 24 October 2012

CaseChat Overview and Summary

In Barrie v R, the appellant, Mr. Barrie, was convicted of failing to permit a blood specimen to be taken under the Land Transport Act 1998 after being stopped at a routine police breath testing checkpoint in Tauranga. Mr. Barrie had requested to speak to his Sydney lawyer but was denied the opportunity by the police, leading to his refusal to provide an evidential breath test and blood test. Mr. Barrie appealed against his conviction to the Court of Appeal of New Zealand. The central issue in this case was whether the New Zealand Bill of Rights Act 1990 (Bill of Rights) provided a detainee with an automatic right to consult their lawyer if the lawyer practised overseas. The Court of Appeal dismissed the appeal and concluded that there is no automatic right for a detainee to consult a foreign lawyer under s 23(1)(b) of the Bill of Rights. The court reasoned that foreign lawyers are unlikely to be qualified to provide relevant advice on New Zealand law, and thus the right to counsel is designed to ensure that detainees may be made aware of their rights through the provision of legal advice from a lawyer familiar with the relevant law. The Court of Appeal further held that there is no obligation for detainees to justify their request to consult a foreign lawyer, and that the police are not required to explain the limitations on the s 23(1)(b) right if a request to consult a foreign lawyer is refused.

Orders