Bladon v Police

[2017] NZHC 3215

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-356 [2017] NZHC 3215

BETWEEN

ASHLEY ELIZABETH BLADON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 December 2017
Counsel:	J S Braithwaite and D M Fraundorfer for appellant S McDaid for respondent
Judgment:	19 December 2017

JUDGMENT OF KATZ J [Appeal against conviction]

This judgment was delivered by me on 19 December 2017 at 11:00 am

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:      J S Braithwaite, Holland Beckett, Tauranga

S McDaid, Meredith Connell, Auckland

BLADON v NEW ZEALAND POLICE [2017] NZHC 3215 [19 December 2017]

Introduction

[1]      On 26 April 2017 Ashley Bladon was found guilty by Judge A S Singh, in the

District Court at Tauranga, of driving with excess breath-alcohol.1

[2]      The sole issue at trial was whether the evidence of Ms Bladon’s evidential breath test should be excluded, on the basis that Ms Bladon had been deprived of her right to speak to a lawyer of her choosing.

[3]      Judge Singh found that Ms Bladon had not been prevented from speaking to a lawyer of her choice and that the breath test evidence was therefore not improperly obtained.2   A guilty finding was then inevitable, because the proportion of alcohol in Ms Bladon’s breath (684 micrograms per litre) significantly exceeded the permitted maximum of 400 micrograms.3

[4]      Ms Bladon’s subsequent application for a discharge without conviction was unsuccessful.4   On 15 September 2017 Ms Bladon was convicted, disqualified from driving for six months and ordered to pay court costs. She now appeals her conviction, on the ground that the Judge was wrong to admit the evidential breath test results.

Approach on appeal

[5]      Under s 232(2)(b) of the Criminal Procedure Act 2011, this Court can only allow an appeal from a Judge-alone trial if satisfied that the District Court Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred or that a miscarriage of justice has occurred for any reason.

[6]      Not every error or irregularity causes a miscarriage of justice. Rather, it is only those that have either created a real risk that the outcome of the trial was affected, or

resulted in an unfair trial or a trial that was a nullity.5   A “real risk” that the outcome

1      Police v Bladon [2017] NZDC 8543.

2 At [27].

3      Land Transport Act 1998, s 56(1).

4      Police v Bladon [2017] NZDC 20783.

5      Criminal Procedure Act 2011, s 232(4).  See also Matenga v R [2009] NZSC 18, [2009] 3 NZLR

145 at [30].

was affected exists when there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.6

Facts

[7]      Ms Bladon was stopped at a check point at 12.55 am on Saturday, 17 December

2016.  After failing a roadside breath screening test, Ms Bladon was required to go into the breath-testing bus for the purposes of giving an evidential breath test.  She was given her rights, including that she had the right to speak to a lawyer without delay and in private, and was told that the police had a list of lawyers she could speak to for free.  Ms Bladon indicated that she understood her rights, and provided her personal details and date of birth.

[8]      Once Ms Bladon was inside the breath-testing bus she was again given her rights, including the right to speak to a lawyer without delay and in private.  When asked whether she would like to speak to a lawyer, she said no.  She then voluntarily underwent an evidential breath test, which returned a result of 684 micrograms of alcohol per litre of breath.  Following the evidential breath test, Ms Bladon was again given her rights (for the third time) and was informed of her right to request a blood- alcohol test.

Ms Bladon’s evidence

[9]      Ms Bladon’s evidence at trial was that after she had blown “over 400” she felt overwhelmed, as she had never been in trouble before. She was “trying to just breathe” and  “the  whole  thing  was  incredibly overwhelming”.    Constable Ure,  who had administered the test, told her that because she had blown “over 400” her licence would be suspended automatically.  He then mentioned that she could undertake a blood-alcohol test.  Ms Bladon’s evidence was that:

At that point especially at that point I felt very overwhelmed and I felt like I didn’t know how to make that decision myself so I vividly remember saying, “I don’t know what to do what do I do” and he said, “I can’t tell you what to do”

6      Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

He said, “I can’t tell you what to do but at this point you can contact a lawyer if you want.”

[10]     Ms Bladon said she then pulled her cellphone out and told Constable Ure that she had some friends who were lawyers.  She asked Constable Ure, “am I allowed to contact them?”   She said that Constable Ure asked if they were drink-driving specialists and she said “no”.  He then told her, “we have this list … of lawyers that you know are specialised in this so you can call a lawyer from that”.  Ms Bladon’s evidence-in-chief continued:

Q.       How did that make you feel?

A.       Um, well I felt like I wasn’t allowed to call them and I trusted him you know I didn’t, I didn’t know anything better you know.

Q.       Who did you want to call?

A.       I wanted to call, um, Jessica Dickson and, um, Miranda, um, Braddock they both live with me, they know me really well.

Q.       Sorry you were just saying why you wanted to call them in particular? A.    Um, because it would be nice to talk to someone that actually cared

about me … I didn’t feel like I was in the point, I didn’t know what to

make of the decision, like part of me was like yeah I should do it but then I was worried that you know I didn’t really know what to do.

[11]     Ms Bladon’s evidence was that Constable Ure then got off the bus and got a copy of a list of lawyers from a second police officer, who was outside. He then started “calling through this entire list” to try and find a lawyer. She could not remember the name of the lawyer she ended up speaking to.  She said “it was someone [Constable Ure] had found on the list”.  She denied that she had found the lawyer’s name (John Holmes) herself.

Constable Ure’s evidence

[12]     Constable Ure’s evidence was that when Ms Bladon was asked, following the evidential breath test, whether she wanted to speak to a lawyer, she said “yes”. There was a list of lawyers in the breath-testing bus.  Ms Bladon identified the ones she wanted him to call off the list and he then phoned them. He called a number of lawyers off the list but none of them answered.  Ms Bladon then told him she would like to speak to John Holmes and she found a phone number for him. Constable Ure believed

she got the number from her mobile phone.   Ms Bladon spoke to Mr Holmes (in private) for 11 minutes.   Following her phone call with Mr Holmes, Ms Bladon declined the option of a blood-alcohol test.

[13]     Constable Ure did not recall encouraging Ms Bladon to speak to a specialist drink-driving lawyer from the list of lawyers on the bus. Nor did he recall Ms Bladon saying that she had some friends who were lawyers and that she would like to speak to one of them.   He could recall Ms Bladon being upset, but not overwhelmed or confused.

Judge Singh’s evaluation of the evidence

[14]     Judge Singh preferred Constable Ure’s evidence to that of Ms Bladon.   He stated as follows:

[23]      It is accepted by you that you had consumed three glasses of wine as well as soda and vodka that night.  The officer in charge was on duty.  I need to  consider  whose  evidence  is  credible  and  reliable.   A reading  of  684 micrograms of alcohol per litre of breath is significantly high relative to the legal limit of 400 micrograms of alcohol per litre of breath.

[24]     In my evaluation of the evidence, I find that your recollection of events would have been affected by the level of your alcohol consumption.  I find that the officer in charge was an officer with some experience.  He had conducted breath and blood evidential breath tests, numbering approximately between 50 to 100.   It is also significant that he did not call the first five lawyers on the list in that sequence. The sequence is one, two, 18, 11 and 30. I accept his evidence that the names of lawyers were chosen by you and he rang at your request. It is likely he would have called the first five lawyers in sequence, if he was calling lawyers at his whim. The sequence of the lawyers that he called is quite significant, indicating you chose lawyers to be called.

[25]      I accept his evidence that he got the number of John Holmes from you and that he called John Holmes, at your request. He did accept that there was some discussion by way of background.  He could not recall you telling him that you wanted to call your two lawyer friends.  Further, he could not recall asking you if your lawyer friends had expertise in drink-driving cases.

[26]      Looking at the Breath and Blood Alcohol Procedure Sheet, Constable Ure appears to have completed that form with the relevant details.  The form appears to be completed in a meticulous way. The first two times that he asked you and gave you your Bill of Rights, you chose not to call a lawyer. You did, the third time.  I accept the officer in charge’s evidence that he called John Holmes at your request and that you sought advice in private in a phone call that lasted approximately 11 minutes.

Evaluation of evidence on appeal

[15]     Both parties sought to adduce further evidence for the purposes of this appeal. That evidence is primarily directed to identifying what lists of lawyers were available on the breath-testing bus that night, and to the reliability (and possibly also the credibility) of Constable Ure’s recollection that Ms Bladon provided him with Mr Holmes’s name and telephone number.

[16]     Constable Ure’s supervisor that night, Sergeant Joseph Cairns, has sworn an affidavit annexing both of the lists of lawyers that have been affixed to the wall of the breath-testing bus for the last three years (and which he deposes are still there). They are both lists of Rotorua-based Police Detention Legal Assistance (“PDLA”) approved lawyers, albeit one of the two lists is now out of date.  Mr Holmes’s name is not on either list.

[17]     Ms  Bladon,  on  the  other  hand,  seeks  to  adduce  evidence  showing  that

Mr Holmes’s   name   was   on   the  Tauranga   PDLA  list   at   the   relevant   time.

Ms Braithwaite submitted that it can be inferred from this that the Tauranga PDLA list must be the list that Ms Bladon recalls Constable Ure getting from another officer.

[18]     Given the focus in both counsel’s appeal submissions on the lawyers list(s) referred to by Constable Ure, I am prepared to admit the new evidence filed by both parties for the purposes of the appeal, despite its lack of freshness.  Unfortunately, however, rather than providing much needed clarity as to how Mr Holmes came to be called that night, the new evidence simply muddies the waters further. Based on all of the evidence now before the Court, it is simply not possible to determine how Mr Holmes came to be called that night, with any degree of certainty.

[19]     My clear impression from reading the notes of evidence is that Ms Bladon and Constable Ure were honest and sincere when giving evidence on this issue. Nevertheless, the evidence of at least one of them (and possibly both of them) must be unreliable. They cannot both be right. The reliability of Ms Bladon’s evidence could well be undermined by her level of intoxication.  As for Constable Ure, Ms Bladon was no doubt one of many people he interacted with that evening, during the course

of a busy pre-Christmas breath testing checkpoint.  His recollection could therefore also be unreliable.

[20]     Mr Holmes’s name does not appear on either of the Rotorua PDLA lists that I accept (based on Sergeant Cairns’ evidence) were in the breath-testing bus that night. Mr Holmes’s name must therefore have come from elsewhere. It may have come from a third list that Constable Ure got from another officer.   Alternatively, Ms Bladon may have used her phone to find the name.  Or possibly Mr Holmes’s name came from somewhere else altogether, that neither witness can now recall.

[21]     Constable Ure’s notebook records the names of eight lawyers who were called that night, and the specific times that they were called.  Significantly, the only lawyer who has a phone number written next to their name is Mr Holmes.  This tends to suggest that his name came from somewhere other than a list of lawyers’ names and telephone numbers.  If his name had come from such a list there presumably would have been no need to write down his phone number in the officer’s notebook. Rather, the phone call would be made straight from the list (as it presumably was with the other seven lawyers).

[22]     On the other hand, Ms Bladon’s evidence is that she did not know Mr Holmes and had never had any dealings with him before that night, or since.  Mr Holmes has filed an affidavit confirming that to be the case.  So, unless perhaps Ms Bladon found his name on the internet (using her phone), there does not seem to be any clear reason why she would suggest that Constable Ure call him.

[23]     The evidence is not clear-cut either way.  The appropriate course, therefore, is to err in favour of the defence.  I accordingly proceed on the basis that Ms Bladon did not provide Mr Holmes’s name or phone number to Constable Ure and that his recollection that she did so is mistaken (but not dishonest).

[24]     That is not the end of the matter, however.  The issue on appeal is not who suggested calling Mr Holmes, but whether Ms Bladon was deprived of her right to speak to a lawyer of her choosing.  It is therefore necessary to consider the totality of

the evidence (including the fact that Ms Bladon did not provide Mr Holmes’s name to

Constable Ure) in order to determine whether Ms Bladon was deprived of that right.

Was Ms Bladon deprived of her right to speak to a lawyer of her choosing?

[25]     The key evidence relating to this issue is set out at [9]-[10] and [13] above. However, Ms Bladon’s evidence must be viewed through the lens that she was clearly quite intoxicated at the time of her conversation with Constable Ure which, she says, culminated in her feeling that she was unable to call one of her lawyer friends for advice.  Ms Bladon’s level of intoxication is apparent from both her evidential breath test result and Mr Holmes’s contemporaneous file note, which records:

Canadian very intoxicated. Can’t believe she is over. Does not know how much she has had, but only drinking for 5 hours.  Last drink 1 hour ago.

[26]     Accordingly, even without seeing Ms Bladon, an independent third party formed the view that she was “very intoxicated” that night. I also note that Ms Bladon was feeling “incredibly overwhelmed” at the time, which may also have impacted on her recollection of the events.

[27]     As for Constable Ure, he could not recall the relevant conversation at all. Again, I do not find this surprising given that he has no note of it in his notebook and it was presumably a fairly busy evening at the alcohol checkpoint.  Nevertheless, the overall tenor of the evidence is that Constable Ure is an experienced officer who behaved responsibly and carefully in his interactions with Ms Bladon.

[28]     I agree with Judge Singh’s assessment that Ms Bladon chose the particular lawyers on the list for Constable Ure to call, for the reasons he gave.7  The Judge also notes that the Breath and Blood Alcohol Procedure Sheet appears to have been completed by Constable Ure in a meticulous way.8

[29]     There is nothing to suggest that Constable Ure did not want Ms Bladon to speak to a lawyer.   To the contrary, he gave her her rights three times.   He repeatedly

reminded her of her right to speak to a lawyer.

7 Above n 1, at [25].

8 At [26].

[30]     Ms Bladon gave evidence that she vividly recalled saying to Constable Ure, “I don’t know what to do what do I do?”   The responsible way in which Constable Ure approached his role is evidenced by his response, namely that he could not tell her what to do.  Rather, he encouraged her to contact a lawyer.  Ms Bladon followed up on that suggestion, ultimately speaking to Mr Holmes (in private) for approximately

11 minutes.

[31]    Taking all of the matters I have outlined into account, I find it simply implausible that Constable Ure would have either directly or indirectly prevented Ms Bladon from contacting a lawyer of her choice. To the extent that Ms Bladon suggests otherwise, I reject her evidence.  In an attempt to be helpful, Constable Ure may well have suggested that Ms Bladon call someone off the list of lawyers’ names that he had available, given that it was after 1.00 am on a Saturday morning and Ms Bladon wanted urgent legal advice as to whether to request a blood-alcohol test or not.  I do not accept, however, that Constable Ure did or said anything to prevent Ms Bladon from contacting one of her friends who were lawyers, or giving her the impression that she was not allowed to do so.  The ultimate decision as to whom to call was clearly Ms Bladon’s.  She was not deprived of her right to counsel of her choice.

[32]     For  completeness,  I note  that  the  alleged  impropriety  occurred  after  the relevant evidence had been obtained, not before.   I did not hear submissions from counsel, however, as to the relevance (if any) of such timing issues. I therefore do not consider them further.

[33]     For the reasons outlined, the Judge was correct not to find that the results of the evidential breath test were improperly obtained.

If the evidence was improperly obtained, should it have been excluded?

[34]     Given my conclusion that the evidence was not improperly obtained, it is not necessary to consider whether it should have been excluded under s 30 of the Evidence Act 2006.  I note, however, that in my view the Judge was correct to conclude that if

the evidence had been improperly obtained, in the manner alleged by Ms Bladon, its exclusion would have been disproportionate to any impropriety.9

Result

[35]     The appeal is dismissed.

Katz J

9      Pursuant to s 30(4) of the Evidence Act 2006.