Dooley v Police

[2018] NZHC 2387

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-118

[2018] NZHC 2387

BETWEEN

LEONARD DOOLEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	20 August 2018
Appearances:	P Winkler and M Mellin for the Appellant A Luck for the Respondent
Judgment:	11 September 2018

JUDGMENT OF GORDON J

This judgment was delivered by me

on 11 September 2018 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Crown Solicitor, Auckland Counsel:  P Winkler, Auckland

DOOLEY v POLICE [2018] NZHC 2387 [11 September 2018]

Introduction

[1]                  The appellant, Leonard Dooley, appeals his conviction on one charge of driving with excess breath alcohol.1 He also appeals the finding that he committed an infringement offence by breaching r 2.3(2)(a) of the Land Transport (Road User) Rule 2004, namely that he failed to keep left while operating a motor vehicle.2

[2]                  Following a one-day Judge alone trial on 9 November 2017, Judge de Ridder, in the District Court at Kaikohe, convicted Mr Dooley of the charge of driving with excess breath alcohol, and found that he committed the infringement offence by failing to keep left.3

[3]                  On 19 April 2018, Mr Dooley filed a notice of appeal. He says that the evidential blood alcohol result was inadmissible and the charge should have been dismissed. He submits that Judge de Ridder erred in fact and law both in relation to his decision on the charge of driving with excess blood alcohol and in relation to his finding that the infringement offence was committed.

[4]The Crown opposes the appeal.

Factual background

[5]                  On the evening of 24 September 2016, Mr Dooley was at the Duke of Marlborough Tavern in Russell, in the Bay of Islands. While two police officers, Constables Gorrie and Tipoki, were speaking to the manager of the Tavern, Mr Dooley approached them and started a conversation. Constable Gorrie said that Mr Dooley appeared a little bit intoxicated, while Constable Tipoki said he could smell alcohol on Mr Dooley’s breath and formed the view that he was intoxicated.

1      Land Transport Act 1998, s 56(2). As per s 56(3), the maximum penalty is imprisonment for a term not exceeding three months or a fine not exceeding $4,500. The court must also order the person be disqualified from holding or obtaining a driver’s licence for six months or more.

2      See Land Transport Act, s 40(1); Land Transport (Offences and Penalties) Regulations 1999, r 4(1). As per s 375(1)(a) of the Criminal Procedure Act 2011, the court must not convict the defendant of an infringement offence.

3      New Zealand Police v Dooley [2017] NZDC 27610.

[6]                  When the police officers walked to their vehicle, Mr Dooley walked past them and went into the RSA.

[7]                  The police officers left the Tavern and conducted a routine patrol around the wider Russell area. After about 30 minutes, they returned. They saw several vehicles leaving the area around the Tavern. They then decided to make a random stop of one of those vehicles. The vehicle happened to be driven by Mr Dooley.

[8]                  At around 10:58 pm, the police officers began following Mr Dooley’s Toyota vehicle. They say they saw him cross the centreline of the road twice while travelling along Matauwhi Road.

[9]                  The police officers then stopped Mr Dooley for a random breath test on Hope Avenue. While Constable Tipoki waited in the Police vehicle, Constable Gorrie approached Mr Dooley’s vehicle and told Mr Dooley that he had crossed the centreline. Mr Dooley denied this. Constable Gorrie then required Mr Dooley to undertake the roadside breath testing procedure. Mr Dooley cooperated. But he failed the test.

[10]              Constable Gorrie gave Mr Dooley his rights under the New Zealand Bill of Rights Act 1990 (NZBORA) at the roadside (in his evidence, Constable Gorrie did not state the actual words he used). Mr Dooley told Constable Gorrie that he understood his rights. Mr Dooley then was taken back to Russell Police Station for further testing procedures. He was given his NZBORA rights again, by way of Constable Gorrie reading from the standard pre-printed form for breath and blood alcohol procedures. Mr Dooley elected not to speak to a lawyer and signed a form acknowledging that he had been advised of his rights.

[11]              Mr Dooley undertook the evidential breath test and this returned a reading of 588 micrograms of alcohol. Mr Dooley then elected to have a blood sample taken. He immediately requested a blood sample to be taken at the start of the ten-minute period allowed for making a decision about that. Nevertheless, Constable Gorrie allowed the ten-minute period to run its course.

[12]              As Constable Gorrie was unable to contact the appropriate person to arrange for the blood sample test to be taken at the Russell Police Station, he transported    Mr Dooley to Kawakawa Hospital for this to occur. The result showed a reading of 116 milligrams of alcohol per 100 millilitres of blood in his system.

[13]              Relevantly, Mr Dooley has a cochlear implant with an associated external device which is clearly visible on the right side of his head by his right ear. He also speaks with a lisp.

District Court decision

[14]Mr Dooley challenged the admissibility of the result of the blood sample test.

[15]              Judge de Ridder first acknowledged that there was no question that Mr Dooley was driving on a road on the night in question.4 He noted that there was no challenge to the breath screening procedure, the evidential breath testing procedure, or the procedure for the taking of a blood sample.5

[16]              The Judge identified “the single narrow issue” as whether Mr Dooley was effectively denied the exercise of his right to communicate with a lawyer, which is a right conferred by s 23(1)(b) of the NZBORA.6

[17]              The Judge accepted that Mr Dooley was not able to speak on the telephone. The issue, as stated by the Judge, became whether Mr Dooley communicated that to Constable Gorrie and also whether he requested that he be given the opportunity to communicate with a lawyer by text message.7

[18]              Ultimately, the Judge was satisfied that Mr Dooley promptly and clearly exercised his right not to communicate with a lawyer.8 In those circumstances, there was no need or requirement for Constable Gorrie to modify the wording of the

4      New Zealand Police v Dooley, above n 3, at [45].

5 At [45].

6 At [46].

7 At [51].

8 At [53].

NZBORA rights given to Mr Dooley. The Judge preferred the evidence of Constable Gorrie, finding that:

[53]      … Mr Dooley had no trouble whatsoever in following the procedures at any stage throughout the various steps. At the roadside test he carried out the test without any difficulty and without hesitation, and for the rest of the testing procedure was cooperative and carried out Constable Gorrie’s instructions without question or delay. Constable Gorrie was clear that Mr Dooley was adamant that he did not wish to speak to a lawyer. He was advised of his right to do so on four separate occasions but specifically declined to do so. On Mr Dooley’s own evidence he clearly understood Constable Gorrie throughout the breath and blood testing procedures and therefore he must have clearly understood that he was being given the opportunity to consult a lawyer. He described Constable Gorrie as being clear and concise.

[54]      I am also satisfied on the evidence that Mr Dooley did not tell Constable Gorrie that he could not speak on a phone …

[55]      Mr Dooley is obviously a man of some considerable business experience given his various business activities. In the course of that it appears, on his own evidence, that he has regular dealings with lawyers. Obviously he is well able to make a judgment as to whether or not, in a particular circumstance, a lawyer might be of assistance to him. In the circumstances he faced in Russell on the evening of 24 September 2016 he clearly made a judgment call that he did not need the services of a lawyer in the situation he was in. He was advised on four separate occasions of his right to communicate with a lawyer. It makes no sense that he would not have made a protest if he had indicated a wish to consult a lawyer by texting but Constable Gorrie was taking no steps to implement that …

[56]      … On the evidence, I am satisfied that he did not communicate any wish to consult with a lawyer.

[19]              Judge de Ridder also stated that in those circumstances, Constable Gorrie was not required to take any further steps to facilitate any form of communication with a lawyer.9

[20]              Lastly, the Judge found that Mr Dooley was not arbitrarily detained in terms of s 22 of the NZBORA when he was being driven to Kawakawa Hospital.10 The Judge was not satisfied that the evidence established that Constable Gorrie was driving at excessive speed.11

9 At [58].

10 At [59].

11 At [59].

[21]              The Judge, therefore, held that the evidence of the result of the blood sample test was admissible at Mr Dooley’s trial.12 On the evidence, he found that the charge of driving with excess breath alcohol was proved.13

[22]              The Judge also preferred the evidence of Constables Gorrie and Tipoki about the manner of Mr Dooley’s driving, finding that the infringement offence of failing to keep left was proved.14

Approach on appeal

[23]              Pursuant to s 232(2) of the Criminal Procedure Act 2011, the appeal must be allowed in this case if the Court is satisfied that:

(a)The Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(b)A miscarriage of justice has occurred for any reason.

[24]              A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:15

(a)Has created a real risk that the outcome of the trial was affected; or

(b)Has resulted in an unfair trial or a trial that was a nullity.

[25]              The Supreme Court, in Sungsuwan v R, defined a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.16 That being said, the Supreme Court in Condon v R held that not every departure from good practice renders a trial unfair.17 The departure must

12 At [60].

13 At [60].

14 At [62].

15     Criminal Procedure Act, s 232(4).

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

17     Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].

be “so gross, or so persistent, or so prejudicial, or so irremediable” that the Court must quash the decision.18

[26]              An appeal against conviction proceeds by way of rehearing.19 Mr Dooley is entitled to judgment in accordance with the independent opinion of this Court. I must, however, be mindful of the limitations involved in not seeing or hearing directly from the witnesses.20 As a result, I can only interfere with the factual findings of the trial Judge if such findings were plainly not open to the Judge on the evidence before him.21

Grounds of appeal

[27]              Mr Winkler, on behalf of Mr Dooley, submits that Judge de Ridder erred in law in the following four ways:

(a)By failing to find that Mr Dooley was not afforded adequate advice of his right to consult and instruct a lawyer under s 23(1)(b) of the NZBORA;

(b)By preferring the evidence of Constable Gorrie over that of Mr Dooley in relation to whether Mr Dooley wished to communicate with a lawyer and whether he told Constable Gorrie that he could not speak over the telephone;

(c)By failing to find that Mr Dooley’s detention became an arbitrary detention contrary to s 22 of the NZBORA by reason of Constable Gorrie driving at an excessive speed; and

(d)By preferring the evidence of Constables Gorrie and Tipoki over that of Mr Dooley in relation to the infringement offence of failing to keep left.

18     At [78]; citing Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].

19     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

20     Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]-[31].

21     Kueh v R [2013] NZCA 616 at [32]; Baylis v R [2018] NZCA 271 at [43].

The right to counsel

[28]              Section 23(1)(b) of the NZBORA provides that everyone who is arrested or detained under any enactment has the right to consult and instruct a lawyer without delay and to be informed of that right.

[29]              The Chief Justice’s binding Practice Note which prescribes the caution that Police must give suspects, includes “that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme” (PDLA scheme).22

[30]              As to what is required to communicate this right, Moore J accurately summarised the position in R v Liu:23

[77] It is insufficient for the Police to merely recite these rights to a suspect who they are questioning. They must also demonstrate that the defendant understood his rights in a meaningful way. To meet this requirement it will generally be sufficient for the defendant to state that he understands what he has been told. However, where there is an evidential basis to indicate the existence of circumstances which call for obvious care and further inquiry by the Police, the onus falls on the Crown to show that the defendant understood his rights.

(Citations omitted)

[31]              This follows from the Court of Appeal’s comments in R v Mallinson which, although decided before the Chief Justice’s Practice Note was issued, are still accepted as expressing the legal position relevant to the issues raised here:24

5.        …

Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused's answers at face value. If following advice as to the right to a lawyer the accused responds affirmatively to the question whether he or she understands the position, the obvious inference is that the accused did indeed understand his or her rights. But more than a bare statement of the s 23(1)(b) right and a bare acknowledgement of understanding is likely

22     Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297, r 2(b).

23     R v Liu [2015] NZHC 746.

24    R v Mallinson [1993] 1 NZLR 528 (CA) at 531. This case was cited with approval more recently in R v Alo [2007] NZCA 172, [2008] 1 NZLR 1678 at [67]; R v Wallace [2007] NZCA 265 at [52]; B (CA46/2014) v R [2014] NZCA 85 at [32].

to be required where, for example, the person arrested is intoxicated or under drugs or appears to have a mental or physical disability which could interfere with his or her comprehension of the rights.

6. The crucial question is whether it was brought home to the arrested  person that he or she had those rights. That is not the same question as whether the police were justified in assuming that he or she did understand them. To look at it simply from the perspective of the police officer would mean that the person arrested who did not in fact understand the position would not be able to make an informed choice with respect to the exercise or waiver of the guaranteed right.

[32]              There is also the later judgment of the Court of Appeal in R v Wallace.25 The Court relevantly stated:

[52] Where a lack of understanding of the right(s) is exhibited, the police  are under a duty to “go further” and ensure that the detainee fully understands the scope of the right(s) in question. However, as Mallinson notes, the police can usually assume, in the absence of special characteristics, that the detainee’s answer to an inquiry concerning the understanding of his or her right(s) can be accepted at face value. “Special circumstances” could be seen to exist in relation to non-English speakers, a detainee with a mental or psychological disability, or where the detainee manifests an erroneous understanding of the right …

[33]              Whether there are circumstances which call for further inquiry is necessarily a matter of fact and degree.

[34]              Mr Winkler submits that Judge de Ridder erred in law by defining the issue as being the questions of whether Mr Dooley told Constable Gorrie of his inability to speak over the telephone and whether Mr Dooley requested that he be given the opportunity to communicate with a lawyer by text message.

[35]              Mr Winkler submits that prior to any triggering request by Mr Dooley of a wish to communicate with a lawyer, Constable Gorrie should have turned his mind to whether Mr Dooley would be able to converse with a lawyer by speaking over the telephone. Mr Winkler submits that given Constable Gorrie’s evidence that he had noticed Mr Dooley’s visible cochlear implant device and Mr Dooley’s speech lisp, Constable Gorrie should have modified the wording of the Bill of Rights advice by adding suitable extra information, for example that Constable Gorrie could telephone a lawyer who Mr Dooley could then communicate with by text. That would then give

25     R v Wallace, above n 24.

the advice practical meaning and utility for Mr Dooley who cannot converse over the telephone. By failing to modify the advice, Mr Dooley was effectively deprived the opportunity of making a meaningful choice as to whether to communicate with a lawyer in the PDLA scheme.

Discussion

[36]              As the test is one  of  subjective  understanding,  the  question  is  whether  Mr Dooley understood his rights.26 The onus is on the prosecution to prove, on the balance of probabilities, that Mr Dooley understood the explanation.27 Judge de Ridder accepted Constable Gorrie’s evidence that he advised Mr Dooley of his rights at the roadside and then again on two occasions at the police station. The Judge also accepted that Mr Dooley responded affirmatively that he understood his rights. In terms of Mallinson, the obvious inference is that Mr Dooley understood his rights and that answer should be taken at face value.

[37]As the Court of Appeal commented in Attorney-General v Udompun:28

[120] It is clear from Mallinson that, if there has been an objectively effective communication of rights and there are no special characteristics, then a person's answer at the time that he or she understood the rights can be taken at face value …

[38]              The issue in this case is, therefore, whether Mr Dooley possessed “special characteristics” or whether there were “circumstances calling for obvious care and further inquiry”. This would mean that Mr Dooley’s answers should not be taken at face value.

[39]              In that regard, I accept that Judge de Ridder mischaracterised the issue. However, and in any event, Judge de Ridder implicitly concluded that there were no circumstances calling for obvious care and further inquiry.

26 R v Mallinson, above n 24, at 531. See also R v Mallinson (No 2) (1992) 9 CRNZ 691 (HC) at 694-695; Attorney-General v U (1994) 1 HRNZ 286 (CA) at 290; Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [119].

27     R v Buchanan [2008] NZCA 480 at [48].

28     Attorney-General v Udompun, above n 26.

[40]              Mr Dooley is now aged 65. The uncontested evidence was he began to suffer a noticeable loss of hearing in both ears by the time he was aged 25. He experienced a total loss of hearing by the time he was in his 30s. He subsequently had a cochlear implant inserted into his right ear in October 2014.

[41]              In his evidence-in-chief, Mr Dooley said that due to the insertion of the implant, he can hear most people face-to-face. If there is not a lot of background noise, he says he is able to communicate pretty well, in an enclosed environment.

[42]              Mr Dooley says he has not talked on the telephone for at least 25 years. He can speak on the telephone but he cannot hear the other end of the conversation. He communicates by text message.

[43]              Mr Winkler submits there were clear “objective indicia” of Mr Dooley’s hearing disability. Those objective indicia were the external cochlear implant device and Mr Dooley’s lisp. Constable Gorrie failed to take the obvious care required to make the necessary further enquiries as to whether Mr Dooley was able to converse over the telephone.

[44]              Mr Luck, for the respondent, submits there is nothing in the circumstances to suggest that Mr Dooley exhibited a lack of understanding as to his rights. He says the evidence shows Mr Dooley was cooperative, followed instructions, and did not exhibit any indication that he had misunderstood the Constable’s directions.

[45]              In my view, Mr Winkler is asking the Court to consider the two “objective indicia” of a visible cochlear implant device and a lisp, in isolation and out of the necessary context of the rest of the evidence. When all the circumstances are considered as a whole, there are no circumstances “calling for obvious care and further inquiry.” I refer to the following evidence.

[46]              There are a number  of  indications  in  Constable  Gorrie’s  evidence  that  Mr Dooley’s hearing impairment did not prevent him from engaging Constable Gorrie in conversation or from following the Constable’s instructions:

(a)when Constables Gorrie and Tipoki went to the Duke of Marlborough Tavern, Mr Dooley initiated a conversation with them by introducing himself and telling them about a DeLorean motor vehicle;

(b)when Mr Dooley was stopped by the Police and Constable Gorrie spoke to him through the car window:

(i)Mr Dooley responded to Constable Gorrie’s statement that he had crossed the centreline by denying that;

(ii)Mr Dooley responded to Constable Gorrie’s direction that he state his full name and details;

(iii)when the Constable showed him the result of the test and asked Mr Dooley if he had been drinking, Mr Dooley responded “yes”;

(iv)when the Constable said to him that he was required to undergo a roadside breath test without delay, Mr Dooley asked “what’s that?”;

(v)when Constable Gorrie gave Mr Dooley his rights on the roadside and asked him if he understood his rights, Mr Dooley replied “yes”. In his evidence in relation to what was said on the roadside, Mr Dooley said he understood his rights as being very similar to those in California, namely “that I have a right to an attorney, I have a right to remain silent. I can’t recollect exactly what it was. He said an attorney could be appointed for me, I believe that”.

(vi)after getting out of his vehicle and shutting the door, and as the Constable and Mr Dooley started walking back to the Police vehicle, Constable Gorrie told him that he could not leave his

vehicle unlocked even in this relatively safe place. Mr Dooley responded by going back to the vehicle and locking it;

(vii)Mr Dooley responded to the Constable’s request asking him to produce his licence by doing so; and

(viii)after the Constable explained to Mr Dooley what he had to do, Mr Dooley followed the instructions without difficulty. The Constable said Mr Dooley was not hesitating: “it was all quite fluent”.

[47]              The circumstances at the Police station were not such that they would have triggered the requirement for the Constable to go further to ensure that Mr Dooley understood his rights. There were no circumstances that indicated Mr Dooley did not or would not understand his rights:

(a)when Mr Dooley was asked whether he would like to speak to a lawyer, he adamantly replied “no”;

(b)Constable Gorrie asked Mr Dooley if he understood what he had said, and the Constable then said generally “are you sure you don’t want a lawyer, they’re free of charge”;

(c)Mr Dooley signed a confirmation that he had understood his rights;

(d)there were no difficulties with Mr Dooley understanding the Constable’s explanation of how the evidential breath test would be conducted;

(e)Mr Dooley signed the form acknowledging the advice that he had the right to elect to undergo an evidential blood test; and

(f)Mr Dooley was asked if he had understood his right to speak to a lawyer before undergoing a blood test, and he replied “yes”.

[48]Constable Gorrie also said in his evidence:

A.Look, you know,  I’m a police officer of 14 years’ experience, I’ve   done a number of EBA’s arrests with many different sorts of people, including deaf people. I adapt, you know, what I say or how I deal with people to the circumstances. I was aware that he was deaf, he had a hearing problem, and that’s why I was saying to him, you know, confirming, “Do you understand what I’m saying?” … I did modify how I spoke to him. I had no problem with him, with his hearing. He never once said, “I can’t hear you,” … every time we go through that whole procedure, it was, actually it was quite easy doing the procedure with him considering what he was like after in the car …

[49]              Constable Gorrie maintained this view when asked the following question by Judge de Ridder:

Q.The point officer is, was  there anything that struck you as being   unusual in the sequence of comments that were being made that suggested that someone (sic) he hadn’t heard what you’d said, did something alert you to the fact that there was a problem?

A. No. The comments what he was making, he was being bullish … He wasn’t confused, he wasn’t scratching his head, he wasn’t saying I can’t hear you, I don’t understand what you are saying.

[50]              The Constable’s evidence is supported by the evidence of Jacob Howell, the owner of the Tavern, as well as Maureen Rihari, the registered nurse who took the blood sample. Both say they had no problems communicating with Mr Dooley.

[51]              Mr Dooley, while giving evidence, accepted that Constable Gorrie was very clear while giving instructions. He said that the Constable spoke fairly slowly and clearly. Although he says he told Constable Gorrie that he had a hearing problem when stopped at the roadside, which is disputed by Constable Gorrie, the subsequent interaction between the two did not call for obvious care and further inquiry when giving the NZBORA rights.

[52]              On the basis of all the above circumstances, in other words the objective indicia taken as a whole, there were no circumstances “calling for obvious care and further inquiry”.

[53]              In support of this ground of appeal, Mr Dooley takes issue with the wording in the breath and blood alcohol procedure sheet which Constable Gorrie said he followed

when advising Mr Dooley of his rights at the Police station. In various parts of that form, there is the following:

You have the right to speak with a lawyer without delay and in private before deciding to answer any questions.

If you wish to speak to a lawyer a telephone will be made available to you for that purpose as soon as practicable.

(Emphasis added)

[54]              In summary, Mr Winkler’s submission is that the references to a right to “speak” to a lawyer do not properly reflect the terms of s 23(1)(b), which refer to the right to “consult and instruct” a lawyer. He also submits that the implication is that the only way the Police would facilitate contact with a lawyer is by telephone.

[55]              Mr Winkler refers to the evidence of Ms Selvaratnam, an audiologist called by Mr Dooley. She said that a person who has had a hearing loss for quite a long time will often take a very literal approach to what they are hearing.

[56]              Finally, on this ground of appeal, Mr Winkler submits that the approach of Judge de Ridder would effectively burden Mr Dooley to take steps to protect his own NZBORA rights.

[57]              The response to these submissions is in the authorities I have referred to. There is a conditional requirement on the Police to take further steps to advise the suspect in relation to their rights in the event that there is something in the circumstances which suggests that such steps are necessary. In my view, there were no such circumstances present in this case.

[58]              I am satisfied that Mr Dooley understood his rights and that there was no breach of s 23(1)(b) of the NZBORA.

[59]This ground of appeal fails.

Preferring the evidence of Constable Gorrie over the evidence of Mr Dooley

[60]              The second ground of appeal is whether Judge de Ridder erred in preferring the evidence of Constable Gorrie over that of Mr Dooley in relation to whether     Mr Dooley wished to communicate with a lawyer and whether he told Constable Gorrie that he could not speak over the telephone.

[61]              Mr Dooley’s evidence was that when he was given his rights at the Police station, he explained immediately that he could not speak to a lawyer by telephone and that all his conversations with people like that are by text message, and that he would need to be able to text somebody. Mr Dooley further said that in the section of the procedure form where Constable Gorrie had circled “no” in  response  to  whether Mr Dooley wished to speak to a lawyer, he told Constable Gorrie “no” only because he understood the position to mean that he was only allowed to speak to a lawyer over a telephone.

[62]              In that regard, Mr Dooley relies on the evidence of Ms Selvaratnam referred to in [55] above. He also notes Mrs Dooley’s evidence that he always seeks legal advice for anything of importance. He says he was aware of the importance of the situation, shown by his decision to elect to take a blood test. He says this supports his credibility that he did ask for a lawyer.

[63]              Mr Dooley’s account of events was put to Constable Gorrie in cross- examination, but the Constable’s evidence was that Mr Dooley had not referred to his inability to use a telephone at all.

[64]              Constable Gorrie was also questioned under cross-examination on the circling of “no” on the procedure sheet:

Q. I’ll just put it to you once again, asked, he specifically told you he wouldn’t be able to speak to a lawyer, and that is in fact when you asked him to sign the form what he was saying is, “Well, of course I’ll” (sic) he had no objection to signing the form because he was asking to, he was being asked to confirm that he wanted to speak to a lawyer but what he in fact was not admitting to is that he wanted to communicate with a lawyer in another way.

A.       So he said no to a lawyer because he wanted a lawyer?

[65]              Having regard to the conflicting evidence as between Constable Gorrie and Mr Dooley, Mr Winkler submits that Judge de Ridder erred in failing to evaluate the contrasting evidence of Mr Dooley and Constable Gorrie through the “nuanced prism” of the evidence of Mrs Dooley and Ms Selvaratnam.

[66]              Mr Luck, on the other hand, submits that Mr Dooley’s evidence was plainly at odds with Constable Gorrie’s evidence. He submits that Constable Gorrie’s evidence was credible and Judge de Ridder was entitled to accept it.

[67]              Judge de Ridder dealt with the evidence of Mrs Dooley and Ms Selvaratnam as follows:29

[37]      Mrs Dooley gave evidence. Essentially her evidence was consistent with that of Mr Dooley in relation to his hearing difficulty and the assistance he now receives from his cochlea implant. She also confirmed that they regularly use attorneys for all areas of their business. Apart from that, her evidence was not of direct relevance to the issues in this case.

[38]      Ms Selvaratnam is an audiologist. Her qualifications and experience to qualify her as an expert witness were accepted by the prosecution.

[39]      She has examined Mr Dooley and did so both as to unaided hearing and wearing his cochlea implants. Without his implant she confirmed that Mr Dooley has a profound permanent hearing loss in both ears.

[40]      From her testing Ms Selvaratnam considered that there was no way that Mr Dooley could hold a conversation over a telephone.

[41]      She stated that a person who has had a hearing loss for a very long time has different communication strategies compared to the communication strategies of people who are oral. People who have had a hearing loss for a very long time take a very literal approach to what they are hearing. She has seen clients take one tack when the person communicating was meaning something a little bit different.

[42]      Ms Selvaratnam had received the raw data from Mr Dooley’s audiologist in the United States in relation to his operation. After assessing Mr Dooley herself she then compared her results to that data and found that the tests she did produced results very similar to those obtained by his America audiologist.

[43]      In summary she considered that Mr Dooley’s form of communication is very consistent with the longevity of his hearing loss. In her experience, working with people who have had hearing loss for the length of time Mr Dooley has, in communication with such a person the hearing impaired person tends to take over the conversation. They tend to be the instigator of different

29     New Zealand Police v Dooley, above n 3.

topics. If they mishear something they will often go off on a tangent and try and go round in circles until they see the look on the other person’s face confirming they are in the right place and can talk about the matter. Mr Dooley has all those different characteristics. In many cases, somebody with a substantial long term hearing loss is seen to be a great communicator because they are always talking but they are not always listening. She considered that Mr Dooley has not always demonstrated good listening strategies which is consistent with his long term hearing loss.

[68]              The Judge clearly took the evidence of both Mrs Dooley and Ms Selvaratnam into account.

[69]              I accept the submission made by Mr Luck that the gulf between Constable Gorrie’s evidence and Mr Dooley’s evidence cannot be explained merely as a failure of comprehension. Mr Dooley’s position was that he positively requested to text a lawyer, and Constable Gorrie’s evidence was that no such request was made.

[70]              Ultimately, Judge de  Ridder  believed  Constable  Gorrie’s  evidence  that  Mr Dooley did not communicate any wish to consult with a lawyer.30 That was a decision plainly open to the Judge on the evidence. I am not persuaded that the circumstances are such that I should interfere with that factual finding.

[71]This ground of appeal fails.

Arbitrary detention

[72]              Section 22 of the NZBORA provides that everyone has the right not to be arbitrarily arrested or detained.

[73]              Mr Winkler submits that Mr Dooley’s detention in the Police vehicle on the way to Kawakawa Hospital, while initially lawful under s 69(1) of the Land Transport Act 1998, subsequently became an arbitrary detention contrary to s 22 of the NZBORA. The reason for this was because Constable Gorrie was driving at an excessive speed, relative to the conditions of the road, the weather conditions and the time of night, which exposed Mr Dooley to unnecessary personal danger and caused him considerable anxiety.

30 At [56].

[74]              In his evidence, Mr Dooley claimed that Constable Gorrie was “driving like a maniac”. He says he kept telling Constable Gorrie to slow down, but he would not listen. He claims that Constable Gorrie nearly hit a cow which was on the road during the return journey from Kawakawa Hospital.

[75]              As well as Mr Dooley’s evidence, Mr Winkler relies on an inconsistency in Constable Gorrie’s  notebook, where he recorded that he left for the Hospital at  12:45 am, while Ms Rihari recorded that she took the blood sample at 1:07 am. This would have meant that it took under 22 minutes to travel from the Russell Police Station to the Hospital. Constable Gorrie, under cross-examination, explained:

A.Yeah, well, I mean that’s me writing that time in my notebook. It may not be correct, because we know it takes, in actual fact it probably takes 40, 50, 50 minutes, just, it depends, it could take an hour to get there. So, yeah, I concede that I may have written that down at 45 on the way there but I may not have left at that time, or I may even have left before, I’m not sure. But I can see that’s probably wrong.

…

A. You can’t make it from Russell to the Hospital in 15 minutes, doesn’t matter who you are as the driver on that road. If you’ve driven you’d understand what I mean.

Q.But I’m putting it to you now that whether you got that time wrong or not, that Mr Dooley asked you on a number of occasions to please slow down. What is your comment on that?

A. I wasn’t going fast. I was probably, I drive that road around about probably 50k at the most. I’ve driven that road many, many times. There’s actually a 100k speed limit. So I was actually doing half the limit but logically you wouldn’t be driving any faster than that.

[76]              The Constable accepted later in cross-examination that he likely left the Police Station just after 12 am, not at 12:45 am. Judge de Ridder clearly believed Constable Gorrie’s explanation.

[77]              Again, this was a finding plainly open to the Judge. I am not persuaded that the circumstances are such that I should interfere with that factual finding.

[78]              That is sufficient to dispose of this ground of appeal without any need for a discussion on the applicability of s 22 to this type of situation.

Failing to keep left

[79]              Mr Winkler submits that Judge de Ridder erred in accepting the evidence of the police officers over the evidence of Mr Dooley. Specifically, he erred in failing to accord any weight to the lack of contemporaneous notebook entries by the Constables regarding this issue.

[80]              Again, this was a finding that was plainly open on the evidence. The circumstances are not such that I should interfere with that factual finding. Both Constables gave evidence that they each observed the vehicle cross the centreline. They maintained that position while under cross-examination.

Fresh evidence

[81]              Mr Winkler filed an affidavit from Ms Selvaratnam in response to a submission made by the respondent in written submissions. I have not relied on that particular submission made by the respondent. It is not otherwise necessary to admit the evidence. It is accordingly not admitted.

Result

[82]I am satisfied that no miscarriage of justice has occurred.

[83]              The appeal against conviction is dismissed. The appeal against the finding that Mr Dooley committed an infringement offence is also dismissed.

Gordon J