Brosnahan v Police - [2009] NZCA 146

For a Court ready (fee required) version please follow this link

IN THE COURT OF APPEAL OF NEW ZEALAND
CA405/2008
[2009] NZCA 146
BETWEENCHRISTEN PETER BROSNAHAN

Appellant

ANDPOLICE

Respondent

Hearing:18 March 2009

Court:O'Regan, Robertson and Arnold JJ
Counsel:P J Davison QC and R Woods for Appellant

A Markham for Crown

Judgment:24 April 2009 at 9.30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.
B We answer the questions on which leave to appeal was given as follows:
(i)Whether a suspect in the appellant’s position, having been given and exercised the right to obtain legal advice, requires a material change in circumstances or some event which plainly presents as a basis for seeking further advice before the police are required to facilitate a second or subsequent request for legal advice?
Answer: Yes.
(ii)Whether a suspect in the appellant’s position is required to articulate the reasons for seeking further legal advice before the police are required to facilitate that further request?
Answer: Yes, if the request follows the obtaining of legal advice at the same stage of the alcohol testing procedures and no event has occurred which obviously calls for further advice.
(iii)On the facts established in this case, ought the police to have been required to facilitate the further request for legal advice?
Answer: No.

REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1] Mr Brosnahan appeals to this Court, with the leave of the High Court, against his conviction for driving while the proportion of alcohol in his blood exceeded the limit prescribed in s 56(2) of the Land Transport Act 1998 (the Act). Leave was granted on the following questions of law:
(i)Whether a suspect in the appellant’s position, having been given and exercised the right to obtain legal advice, requires a material change in circumstances or some event which plainly presents as a basis for seeking further advice before the police are required to facilitate a second or subsequent request for legal advice?
(ii)Whether a suspect in the appellant’s position is required to articulate the reasons for seeking further legal advice before the police are required to facilitate that further request?
(iii)On the facts established in this case, ought the police to have been required to facilitate the further request for legal advice?

Issue
[2] In order to answer those questions, we need to consider in what circumstances police are required to facilitate the exercise by a suspect undergoing alcohol testing procedures of his or her right to consult and instruct a lawyer without delay (s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA)) on multiple occasions.
Decision under appeal
[3] The appellant was convicted by Chief Judge Johnson after a defended hearing in the District Court: Police v Brosnahan DC WANG CRN 07083000664 24 September 2007. That decision was upheld on appeal by Cooper J: Brosnahan v Police [2008] DCR 335 (HC). Cooper J subsequently gave leave to appeal to this Court on the questions set out above: Brosnahan v Police

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.

Keep reading for free

Create a free CaseChat account to read Brosnahan v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NZCA 146
Decision Date: 24 April 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Mr. Brosnahan against his conviction for driving with an alcohol level exceeding the legal limit. The central legal issues revolved around the obligations of police to facilitate multiple requests for legal advice by a suspect during alcohol testing procedures under the New Zealand Bill of Rights Act 1990. Specifically, the Court addressed whether a material change in circumstances or articulated reasons were necessary before a second request for legal advice could be facilitated.

The Court held that a suspect who has already exercised their right to legal advice does require a material change in circumstances or a clear event to justify a second request for legal advice. Furthermore, if the request for further legal advice occurs at the same stage of the alcohol testing procedures without any obvious reason, the suspect must articulate the reasons for the request. In the case at hand, the Court found no material change in circumstances and no articulated reason for the second request, thus concluding that the police were not required to facilitate the second request for legal advice.

The Court's decision was grounded in a common-sense approach, emphasizing that while the right to legal counsel is fundamental, it must be exercised reasonably and not abused to delay the testing procedures. The Court dismissed the appeal and upheld the conviction.

Orders