Brosnahan v Police
[2009] NZCA 146
•24 April 2009
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA405/2008
[2009] NZCA 146BETWEENCHRISTEN 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 HC WANG CRI 2008-483-000003 12 June 2008.
Facts
[4] There was no issue as to the facts found by the Chief District Court Judge in his decision. Our summary essentially mirrors that of Cooper J.
[5] The appellant was stopped while driving his car in the vicinity of the Kai Iwi tavern, north-west of Wanganui. He failed a breath-screening test and, at the request of the police officers at the scene, agreed to accompany the officers to the Wanganui Police Station to undergo a breath test, a blood test or both. The appellant was at this point advised of his rights under the NZBORA.
[6] The appellant arrived at the Wanganui police station at 10.10 pm. The “EBA suite” at the station, in which suspects are subject to the breath and blood testing procedures under the Act, was at that stage occupied. The appellant was then given written advice of his rights under the NZBORA. Judge Johnson referred to an assertion by the appellant that he asked for pen and paper at that time so that he was able to record the delay. The pen and paper were not supplied until after entry into the EBA suite. The Judge also observed that:
There were signs that the police believed that the well-known defence lawyer they had in their custody was acting in cunning ways to defeat the lawful process. In the end none of this impresses me as having anything to do with the decision I must make.
[7] The EBA suite became available at 10.26 pm and, on entering it, the appellant asked to speak to a New Plymouth lawyer, Mr Paul Keegan. The police facilitated the appellant’s request. Their telephone logs recorded a call made by the appellant to Mr Keegan’s New Plymouth telephone number, commencing at 10.33 pm and lasting three minutes and 38 seconds.
[8] At approximately 10.45 pm a constable (Constable Harpur) discussed with the appellant the working of the evidential breath testing machine. The appellant was uncooperative and abusive towards the constable. The constable then said to the appellant, “I instruct you to undergo an evidential breath test”. It seems, however, that before the appellant could respond a senior constable also present (Senior Constable West) made the constable deliver her statement again, this time using the word “require” instead of “instruct”. (Judge Johnson referred to a “request”, but we are satisfied that the word used was “require”, which corresponds with the term used in s 69(4) of the Act.) The appellant responded to this by asking to speak again with his lawyer. His request was declined on the ground that he had already spoken to a lawyer. The appellant in turn reiterated his request, saying that he wished to speak to a lawyer before blowing into the machine and that he was not prepared to blow into it “at that time”. The Judge found that both Senior Constable West and the appellant reiterated these positions, the former calling on the appellant to provide the breath sample and the appellant declining in the same terms.
[9] Judge Johnson noted that there was a dispute on the evidence, which he was unable to resolve, as to whether the appellant had asked the constable to record in her notebook his request to speak to a lawyer and her declining of the request. Nevertheless, the Judge plainly found that the request had been made and refused, apparently on three occasions. It had become clear that, because of his outstanding declined request, the appellant would not provide a sample of his breath.
[10] Constable Harpur then required the appellant to provide a blood sample, reading to him the first part of the blood specimen form, including the statement as to the consequences of being charged with an offence in the case of refusal. The appellant agreed, but on the condition that the constable record in her book that he was doing so under duress because of the refusal to afford him an opportunity to ring his lawyer a second time. Constable Harpur recorded the appellant’s objection. She then read to him the written NZBORA advice, referring again to his right to speak with a lawyer.
[11] The appellant at this point asked Senior Constable West whether the breath test process could be gone back to. He was advised that it could not, and that the procedure had to move forward. The appellant did not seek to speak again with his lawyer. He assented to the blood test, which produced a reading of 171 milligrams of alcohol to 100 millilitres of blood. The limit prescribed by s 56(2) of the Act is 80 milligrams.
[12] Cooper J noted that, in one respect, the appellant’s argument on appeal to the High Court relied on evidence that had been given by the appellant, but not made the subject of any specific finding by the Judge. It had been the appellant’s evidence that he had had two reasons for wanting to speak to Mr Keegan for a second time before undergoing an evidential breath test. First, he had wanted advice on the implications of Constable Harpur having initially “instructed” him to take the evidential breath test, rather than saying that she required him to do so (the Judge used the term request but, as already noted, we are satisfied this must have been an error). Secondly, it had occurred to him, after his discussion with Mr Keegan, that he had not asked him about the level of breath alcohol at which the police were empowered to suspend his licence for 28 days under s 95 of the Act. Neither of these reasons was mentioned to the police officers when the appellant made the requests to consult a lawyer for a second time. It was the appellant’s evidence in the District Court that his decision not to speak to Mr Keegan before giving a blood sample was because his question related to the evidential breath test process, something that the constable had said could not be reverted to.
Common ground
[13] It is common ground that a motorist who has failed a breath screening test and has been required to go to the police station for an evidential breath test is entitled to consult a lawyer, and that the police have an obligation to facilitate such consultation: Ministry of Transport v Noort; Police v Curran [1992] 3 NZLR 260 (CA). However, the obligation is to provide a reasonable opportunity to consult with a lawyer, and, as Cooke P noted in Noort at 274:
Ultimately it must always be a question of fact and common sense whether a reasonable opportunity has been given.
[14] Richardson J noted in the same case at 284 that:
… there are limits imposed by the operating requirements of the legislation on the manner and extent of the exercise of the right to a lawyer.
[15] It is also clear from the decision of this Court in Rae v Police [2000] 3 NZLR 452, and accepted by both counsel, that the right to consult with a lawyer continues throughout the breath and blood alcohol testing procedures. Blanchard J on behalf of the plurality expressed the position as follows at [44]:
It is settled law since Noort that a citizen is entitled to the rights conferred by s 23(1)(b) [of the NZBORA] when required to undergo evidential breath testing. Such testing is part of an integrated set of procedures. It would be astonishing if, to adopt Mr Eaton’s expression, the rights were to switch off and then switch on again during the process, particularly if they were switched off at the time when the person subject to the process might be most in need of legal counsel, namely when it appears from the result of the evidential breath test that an offence may have been committed.
[16] It is clear from these authorities that:
(a)The right provided for in s 23 of the NZBORA to consult and instruct a lawyer without delay applies in the context of the alcohol testing procedures;
(b)The right applies throughout those procedures;
(c)The police have an obligation to facilitate the exercise of the right;
(d)The requirement on the police is to provide a reasonable opportunity to exercise the right, and reasonableness will be a question of fact in each case.
Appellant’s case
[17] On behalf of the appellant, Mr Davison QC argued that, although the appellant had just completed a telephone call to his lawyer, he was entitled to invoke the right to consult and instruct his lawyer for a second time prior to undergoing the evidential breath test. He submitted that, given the fundamental importance of the right to consult a lawyer, the police should be required to facilitate a request for further advice unless there was something to indicate that it was being exercised in bad faith (to delay, for example). Thus the onus was on the police to justify refusing a request, rather than on the individual to justify making it. Mr Davison said that there were numerous legitimate reasons for a person to request further advice. In the present case, he submitted the appellant had genuine reasons for consulting his lawyer again, though he acknowledged that these reasons had not been communicated to the police officers. He said the officer’s use of the word “instruct” instead of “require” when instigating the evidential breath test was a material change of circumstances, at least in the sense that it was a “change in the routine”. Although he argued that the appellant was not obliged to justify his request, Mr Davison did accept that the right to consult a lawyer could not be used in a manner which would undermine the police function being undertaken, and that the right was subject to reasonable limitations.
District Court decision
[18] In the District Court, Chief Judge Johnson dealt with the issue in this way:
[30] A matter of note in this case is that the defendant made all the right decisions throughout the procedure to best protect his interests as a person in detention undergoing the evidence gathering processes of the EBA procedure. The police giving evidence thought that the defendant, having agitated them about delay at the beginning (the pen and paper episode), then sought to trap them into delay by slowing down the process by asking for access to his lawyer for a second time forthwith after the first but after the words spoken about giving a breath specimen. Regardless of what might be thought about that as some sort of tactic, the obligation to ensure the citizen under investigation is afforded his rights remains with the investigating authority throughout. Then the defendant did not undertake the breath screening test which avoided him being suspended from driving immediately, …and finally consented to the blood sample as he must to avoid a prosecution for failure.
[31] In the sense discussed by Richardson J in Noort the criminal process in its actual process and its consequences did not act unfairly for this defendant. He was afforded access to his own lawyer immediately before the administration of the breath test. He was offered the same opportunity immediately before the administration of the blood test. In that sense the prosecutors were compliant both with the existence of the right and its continuing nature. As a matter of common sense and proportion the denial of an immediate reprise of the opportunity already taken for advice was not erroneous.
High Court judgment
[19] Cooper J’s discussion focussed on the appellant’s two reasons for wishing to speak again to his lawyer a second time (set out at [11] above). He noted, however, that the appellant had not told the police officers of either of these reasons.
[20] In relation to the first reason, Cooper J said he did not see any particular significance in the use of the word “instruct” instead of “require” and, in any event, the immediate correction of the wording meant that nothing material had occurred when the wrong term was used. He did not consider that it could be credibly argued that the appellant’s rights were infringed by failing to afford him the opportunity for a second consultation on this point. As to the second reason, the concern about immediate disqualification if the breath test result was above the relevant limit may have been a genuine reason but it was not communicated. In any event, the choice made by the appellant not to undergo an evidential breath test meant that the risk was effectively removed.
[21] Cooper J accepted that there may be a number of different issues which arise during the alcohol testing procedures, but considered that it could not be the case that a suspect has a right repeatedly to request further consultation with his or her legal adviser during the same stage of the procedures. He accepted that there could not be hard and fast rules, but concluded at [35]:
However, where the suspect has been given and exercised the right to seek legal advice, it seems to me that unless there has been some material change in circumstances or some event which plainly presents as a basis for seeking further advice, the police will not err if they do not offer an opportunity to take further legal advice.
[22] The High Court Judge was satisfied that there had been no material change in circumstances. The police could not know, without the appellant telling them, that there was an issue on which he had omitted to seek legal advice during his first discussion.
Our assessment
[23] Our views on the case correspond closely with those of the High Court Judge and we can therefore set them out relatively briefly. We see the matter as requiring a common sense assessment of the factual position, rather than turning on a matter of legal principle.
[24] In the present case, the police officers facilitated the exercise of the right to consult with a lawyer prior to the taking of the evidential breath test. We accept that if some incident occurs that would provide a clear basis for a need to seek further advice, then police officers should facilitate a further call to a lawyer without needing to be told why this is necessary. But we reject the submission that Constable Harpur’s use of the term “instruct” rather than “require” was of such significance that a need for further legal advice could be said to have arisen. The two words are synonyms and the use of one instead of the other could have no effect on the validity of the process.
[25] In circumstances where no material change had occurred since the initial consultation with a lawyer and no reason had been given for consulting a lawyer again, the police officers were not required to facilitate a further call to a lawyer. In the present case, that is more obviously so because of the appellant’s behaviour, which included addressing the police officers by insulting names and acting uncooperatively. It follows that we do not accept Mr Davison’s submission that there is no obligation on the individual requesting a second consultation to explain the request where there is no obvious reason for it. Mr Davison accepted that the right to consult a lawyer should not be abused and was subject to reasonable limitations. That being so, where the police are confronted with a request for a further consultation where there is no obvious reason for it, the individual needs to state the reason for the request. If he or she does not do so, the police are entitled to conclude that there is no good reason for it.
[26] On the other hand, if the appellant had sought to consult his lawyer prior to taking a blood test, having already consulted a lawyer prior to taking the evidential breath test, the police officers should have facilitated access. This is because the blood test is a new stage of the alcohol testing procedures, which obviously can give rise to legal issues that may not have been dealt with earlier.
[27] It is notable that in the present case the police officers did provide an opportunity to the appellant to consult his lawyer again before the taking of a blood test, but he declined the opportunity, despite it coming only minutes after the earlier incident where access had been refused and about which he complained.
[28] We endorse the observation made by Fisher J in Frankham v Police HC AK A176/02 7 February 2003 at [15]:
Nor am I persuaded that a suspect at a police station who is faced with testing procedures for breath and blood/alcohol purposes is entitled to punctuate the procedure with a whole series of independent legal consultations at various steps of his choosing. Whether rights under the Bill of Rights Act have been breached must always be a matter of fact to be determined in each particular case on a common sense basis.
[29] A similar sentiment underpins the decision of the Alberta Court of Queen’s Bench in R v Ferstl (2008) 90 Alta LR (4th) 23, which concerned an almost identical fact situation to the present. The Judge held that the defendant had been given a reasonable opportunity to exercise his right to counsel, of which he had availed himself. However, once a person has received legal advice, he or she “is not entitled to stop an interrogation or investigation merely by asking to exercise his or her right to counsel again”: at [38]. It appears implicit in the judgment that there must be some material change in circumstances or the position of the detainee for the right to counsel to be reactivated: see R v Wood (1994) 94 CCC (3d) 193 at [113] – [115] (NSCA).
[30] It is noteworthy that the requirement to undergo an evidential breath test is one which, under s 69(4) of the Act, must be done “without delay”. That reinforces the fact that, where a suspect wishes to exercise the right to consult a lawyer almost immediately after a consultation has occurred, a police officer is entitled to have some scepticism about the genuineness of the request unless the suspect communicates a reason, or an event which obviously calls for further advice has occurred. We do not see this requirement to give a reason for a further consultation as impinging on the s 23 right, as Mr Davison suggested. Rather, it is an aspect of the common sense application of the right which is called for by the decisions of this Court referred to earlier.
[31] Mr Davison said that it would be unfair to characterise the appellant’s request for a second consultation as an attempt to delay unnecessarily the alcohol testing procedures or otherwise compromise those procedures. That may be so, and we do not base our decision on that having been the case. Rather, we conclude that when a common sense approach is taken, a single facilitation of the right at the evidential breath testing stage of the process was sufficient in the absence of some explanation for a further consultation or some obvious reason arising.
[32] We conclude that there was no breach of the NZBORA in this case and that there was therefore no basis on which to exclude the evidence on which the appellant was convicted. If we had found a breach of the NZBORA, we would have accepted counsel’s suggestion that the matter be remitted to the High Court for a decision under s 30 of the Evidence Act as to the admissibility of the blood test evidence which, on the appellant’s case, was obtained unlawfully.
Conclusion
[33] We answer the questions on which leave is 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.
[34] The appeal is dismissed. The conviction is upheld.
Solicitors:
Armstrong Barton, Wanganui for Appellant
Crown Law Office, Wellington for Respondent