Flanagan v Police
[2018] NZHC 1589
•29 June 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CRI-2018-485-13
[2018] NZHC 1589
BETWEEN WILLIAM JAMES TANGIIUA FLANAGAN
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 12 June 2018 Appearances:
L Caris for the Appellant
H Goodhew for the Respondent
Judgment:
29 June 2018
JUDGMENT OF CULL J
[Appeal against conviction]
[1] On 27 September 2017, Mr Flanagan was convicted of one charge of refusing a blood specimen to be taken, having been required to do so.1 Mr Flanagan was convicted following a judge-alone trial2 and was disqualified from holding a driver licence for six months as a result.3
[2] Mr Flanagan appeals his conviction on the basis that the Judge erred in his assessment of the facts and law to such an extent that a miscarriage of justice has occurred. Mr Flanagan submits a number of errors, either individually or cumulatively, have resulted in a miscarriage. Specifically, the Judge’s finding as to the reliability of various witnesses was not reasonably supported by the evidence
1 Land Transport Act 1998, s 60(1)(a). Maximum penalty for a first offence is three months’ imprisonment or a fine not exceeding $4,500, and the court must order the person be disqualified from holding or obtaining a driver licence for six months or more.
2 New Zealand Police v Flanagan [2017] NZDC 23389 [Conviction decision].
3 New Zealand Police v Flanagan [2018] NZDC 4779.
FLANAGAN v NEW ZEALAND POLICE [2018] NZHC 1589 [29 June 2018]
before the Court; the Judge erred in finding that the police took reasonable steps to facilitate Mr Flanagan’s access to a lawyer; the Judge erred in law in finding that Mr Flanagan breached the requirements imposed on him under s 72(2) of the Land Transport Act 1998; and the Judge erred in finding that Mr Flanagan was treated with humanity and dignity. Counsel for Mr Flanagan, Ms Caris, submits this conviction must be quashed.
[3] The Crown opposes this appeal and submits there has been no miscarriage of justice. The Crown submits all of the Judge’s challenged findings were reasonable and he had sufficient evidence before him to make his findings.
Factual background
[4] At the time of the incident, Mr Flanagan was a fourth-year law and commerce student at Victoria University. He suffers from ADHD and dyslexia and receives support for these disabilities at University.
[5] At approximately 12.40 am on 4 August 2016, Mr Flanagan was driving a car in central Wellington. A police car drove towards his car. Mr Flanagan stopped his car in the middle of the road and pulled into a carpark.
[6] The Constable, who was driving the police car, asked Mr Flanagan to open his window. Mr Flanagan refused. While talking through the window, Mr Flanagan confirmed he had been drinking that evening. The Constable informed him that he was required to undergo a breath screening test. Mr Flanagan got out of the car and began to walk away from the Constable. The Constable asked twice more and on the third time Mr Flanagan submitted to a breath test. After two unsuccessful attempts to blow into the device, the third attempt produced a reading in excess of 400 micrograms of alcohol per litre of breath. The Constable then informed Mr Flanagan that he was required to submit to a further breath test, blood test, or both back at Wellington Police Station.
[7] Mr Flanagan accompanied the Constable back to the Station. What happened after this point is subject to some dispute. Mr Flanagan was told he was entitled to legal advice and was given a list of available lawyers. He chose one lawyer whom he
knew. The Constable attempted to ring the chosen lawyer three times unsuccessfully. Mr Flanagan was informed and invited to choose another lawyer. He declined, because he did not want any lawyer. He wanted one that he knew.
[8] Mr Flanagan was escorted to undergo an evidential breath test. On the first attempt, he sucked on the mouthpiece of the machine instead of blowing into it as instructed. He said he wanted to see to see what would happen if he sucked instead of blowing. On the second attempt, Mr Flanagan grabbed the mouthpiece slowly but did not put it into his mouth. Mr Flanagan said that there was one attempt where he blew a big breath into the mouthpiece but the Constable disputes this. He said Mr Flanagan was disruptive the whole time and did not blow into the mouthpiece properly. Mr Flanagan was yelling and swearing at the Constable and banged his fist on the table.
[9] The Constable advised Mr Flanagan that as he had refused to undertake a breath test, he was to be detained for a blood test. Mr Flanagan was again advised of his rights and was escorted back to the cells. There was some dispute at this point as to whether Mr Flanagan assaulted one of the Police Officers. Mr Flanagan was charged with assault, which was not proved. Once Mr Flanagan was placed in the cells, he alleges all of his clothes were forcibly removed and at some point, he was given a gown. The police claim that they did not conduct a strip search at any time.
[10] The Constable later returned and advised Mr Flanagan that they needed to conduct a blood test. Mr Flanagan then said he would prefer a breath test. Another Officer present said Mr Flanagan prevaricated about the blood test, saying “I will, I won’t:”. The Constable and other officers present said Mr Flanagan refused a blood test. The Constable told Mr Flanagan he refused a blood test and would be charged with an offence of refusing to permit a blood specimen.
[11] Mr Flanagan was kept in the cell for a few more hours. Later in the morning his fingerprints and photo was taken. Mr Flanagan said he was given his clothes to put back on and then was released at around 6.45 am.
[12] Mr Flanagan was charged with refusing to permit a blood specimen and one charge of common assault. He pleaded not guilty to both charges and a judge-alone trial was conducted in the District Court.
District Court decision
[13] When examining the charge of refusing to undergo a breath test, the Judge commented that the refusal was underpinned by Mr Flanagan’s failure to have undergone a breath test when required to do so without delay. The Judge identified three key issues for this charge:4
(a)Whether or not there was a requirement to undergo the breath test or in fact a refusal.
(b)Whether there was a breach of Mr Flanagan’s rights under the [New Zealand] Bill of Rights Act 1990 [NZBORA] with respect to access to a lawyer of his choice being denied to him.
(c)There is, however, the third aspect which has just been raised by Mr Surridge in his submissions concerning s 23(5) Bill of Rights Act and a requirement that persons be treated or receive treatment with humanity and dignity in terms of that subsection.
[14] In response to the submission that Mr Flanagan’s culpability was eroded and/or his rights were breached, because of his medical issues of dyslexia and ADHD, the Judge noted Mr Flanagan’s demeanour and thoughtfulness in Court at the trial before him. He compared this with the picture of Mr Flanagan, painted by the police witnesses, of a person who was difficult with the police. The Judge saw these factors as an important background to determining the issues before him.
[15] The Judge accepted the evidence of the Police Officers and made the following findings in relation to the first issue, as to whether there was a requirement and refusal to undergo testing:
(a)Mr Flanagan understood what was occurring when he was with police on 4 August 2016 and again understood the Court process before him.
4 Conviction decision, above n 2, at [6].
(b)On the evidence of the police prosecution witnesses there was no evident flaw in the procedure.
(c)A breath test was required.
(d)The Judge accepted the evidence of the Constable that Mr Flanagan refused to blow on the breath testing machine, sucked on the mouthpiece, did not blow properly, started yelling, swearing and becoming aggressive thereafter and the Constable took this as a refusal and informed Mr Flanagan of this. This was confirmed by the Authorised Officer. Mr Flanagan also accepted he sucked instead of blowing into the device and that he had been uncooperative.
(e)There was a refusal to take a blood test. The Judge again accepted the evidence of the Constable that Mr Flanagan declined the test, or alternatively declined the blood test, wanted a breath test and was argumentative throughout the process. This was also confirmed by the Authorised Officer. The Judge preferred the evidence of the police officers with respect to the requirements and the refusal. Even if Mr Flanagan declined the blood test and preferred a breath test, in law this is still a refusal.
[16] The Judge also found Mr Flanagan was given plenty of opportunity, as lawfully required, to have access to legal advice. The Police tried to contact his chosen lawyer three times and Mr Flanagan refused to choose another lawyer from the available list. The Judge accepted the Police Officers’ evidence that another named lawyer had not been requested by Mr Flanagan.
[17] The Judge observed that the obligation of police is to facilitate access to legal advice, not to provide access.5 The Judge did not overlook that Mr Flanagan expressly requested access to a particular lawyer to be facilitated, rather than one from a list of lawyers, who were available for police or him to call. The Judge found that s 23 of
5 Referring to Bai v Police [2017] NZHC 254; and Tallentire v Police [2012] NZHC 1546.
NZBORA was not breached as the steps the Police took were more than reasonable to facilitate Mr Flanagan obtaining the requisite legal advice.
[18] The Judge found there was no evidence to suggest Mr Flanagan was not treated with humanity and dignity.
[19] The Judge held that the charge of refusing a blood specimen was proven. However, the charge of assault could not be proven on the evidence of the police officers before him and this charge was dismissed.
[20] The Judge convicted Mr Flanagan of the refusal charge and disqualified him from holding a driver’s licence for six months.
Approach to appeal
[21] An appeal against conviction from a judge-alone trial is a general appeal. This appeal is governed by s 232 of the Criminal Procedure Act 2011. Therefore the appellant must satisfy the Court that a miscarriage of justice has occurred, either because “the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or for any other reason.6 A miscarriage of justice is “any error, irregularity, or occurrence” that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity”.7 As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.8
[22] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair.”9 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or
6 Criminal Procedure Act 2011, s 232(2).
7 Section 232(4).
8 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18 at [30].
9 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.10
Discussion
[23] Mr Flanagan submits the Judge made several errors which, either individually or cumulatively, resulted in a miscarriage of justice. These errors and the parties’ positions on each are addressed below.
Are the Judge’s findings as to the reliability of various witnesses supported by evidence?
[24] Mr Flanagan submits the Judge erred in failing to adequately assess the reliability of the various witnesses who provided evidence. It is apparent the Judge preferred the evidence of the Police Officers where it was at odds with Mr Flanagan’s evidence. The Judge gave inadequate consideration to the fact that both Authorised Officers were recalled to correct incorrect evidence they had previously provided to the Court. Mr Flanagan identifies a number of inconsistencies in the evidence given:
(a)The first Authorised Officer initially gave evidence that Mr Flanagan’s clothing was not removed,11 however he later accepted when recalled that he was one of the parties involved in taking Mr Flanagan’s clothing off him.12
(b)The first Officer, once he conceded Mr Flanagan’s clothes were removed, recalled the Constable being present.13 This contrasts with the Constable’s evidence, where he stated he was not aware of Mr Flanagan’s clothes being removed.14
10 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the Supreme Court in Condon v R, above n 4, at [78].
11 Notes of Evidence at 27.
12 At 49.
13 At 50.
14 At 18.
(c)The second Authorised Officer initially testified that Mr Flanagan did not have clothing removed,15 yet, on re-examination he accepted he was present and participated in removing his clothing.16
(d)The second Officer initially gave evidence that he finished his shift at 2 am and did not bail Mr Flanagan,17 although he later accepted he finished work at 7 am and did bail him.18
[25] Mr Flanagan submits these accounts are at odds with each other and this raises serious questions as to the reliability of the Police Officers’ evidence. Further, the Judge’s reasoning is manifestly inadequate when dealing with the reliability of the evidence that forms the sole basis of the narrative supporting the charge.
[26] Mr Flanagan submits s 122(5) of the Evidence Act 2006 applies, where “the Judge must bear in mind the need for caution before convicting a defendant in reliance on evidence of a kind that may be unreliable.” There is no indication the Judge turned his mind to this requirement and that, without reliance on the Officers’ evidence, there is no other evidence to support a finding that Mr Flanagan’s rights were not infringed or that he refused to permit blood. Mr Flanagan argues that when the credibility of witnesses is involved and key evidence is accepted or rejected, the Judge needed to say so explicitly,19 and the Judge failed to give this issue careful consideration and erred in assessing the evidence.
[27] The Crown submits the Judge made several findings as to whose evidence he preferred, which were entirely reasonable and open on the basis of the evidence before him. The Judge was essentially faced with two competing accounts of Mr Flanagan’s and the Police Officers’ behaviour. Accordingly, he needed to make findings as to the reliability and credibility of the witnesses.
15 Notes of Evidence at 35.
16 At 47 and 48.
17 At 35.
18 At 43 and 48.
19 R v Connell [1985] 2 NZLR 233 (CA) at 237, as endorsed in Wenzel v R [2010] NZCA 501 at [39].
[28] Once recalled, the two Authorised Officers freely admitted that they were mistaken on some of the details given in their initial evidence. Police custody records indicated that clothing had been taken from Mr Flanagan when he was searched, at least his jacket and a t-shirt. The Crown submits the fact that the Officers could not recall what clothing was taken or the type of shift they were working, more than a year after the event, is entirely understandable, especially considering this level of detail was not in their notebook entries or formal statements. These evidential gaps, which were later corrected, did not render their entire evidence unreliable. It was open to the Judge to find their evidence was reliable and credible.
[29] In relation to the assault charge, the Judge described the second Officer’s evidence as imprecise and insufficient to prove the elements of the charge. In doing so, the Judge was able to consider the quality of the Police Officers’ evidence and decide whose evidence he preferred in the judgment. The Crown submits this is sufficient in the context of what was a relatively brief trial that did not contain complex evidence.
[30] In R v Connell, more recently endorsed in Wenzel v R, the Court of Appeal recognised that the extent of reasoning required will vary according to the circumstances of the case.20 The Court held the following was required of a Judge:21
… in general no more can be required than a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge's essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.
[31] The Judge expressly indicated that he “accepted the evidence of the police officers” on the first charge.22 This is consistent with the Court of Appeal’s guidance that more than this is unnecessary. The inaccuracies in the Officers’ evidence had been cleared up before the Judge delivered his verdict. Although it might have been helpful
20 Connell, above n 19, at 237, as endorsed in Wenzel, above n 19, at [39].
21 Connell, above n 19, at 237 (emphasis added).
22 Conviction decision, above n 2, at [43].
for the Judge to describe in detail the inconsistencies in the statements, it was nonetheless open to him to accept the Police Officers’ evidence over Mr Flanagan’s.
[32] I do not consider that there has been a miscarriage of justice or that the Judge has erred. This ground of appeal fails.
Did the Judge err in finding the Police took reasonable steps to facilitate Mr Flanagan’s access to a lawyer?
[33] Mr Flanagan submits the Judge erred in finding the Police took reasonable steps to facilitate his access to a lawyer and failed to adequately assess the evidence relating to the requests made by Mr Flanagan on this issue. The Judge held that Mr Flanagan had not made it known that he wanted to speak with another named lawyer, after his preferred lawyer could not be contacted. However, the evidence only demonstrates that the witnesses did not or could not recall such a request being made, rather than confirming that no request was made.
[34] Further, Mr Flanagan submits that a Sergeant was present and interacting with Mr Flanagan when the opportunity to contact a lawyer was first discussed, but was not called to give evidence. The Judge did not acknowledge this. Mr Flanagan submits that without evidence from the Sergeant and without any evidence that Mr Flanagan’s evidence was fabricated or unreliable, the Judge’s finding on this point is not reasonably supported by the evidence.
[35] The Crown submits it was entirely open to the Judge to find that the Police had taken reasonable steps to facilitate Mr Flanagan’s right to speak with a lawyer. Mr Flanagan indicated he wished to exercise his right to speak to a lawyer. Having done this, the Police needed to take reasonable steps to assist him in exercising this right. The Judge correctly observed that the police did not need to provide access but facilitate reasonable access to a lawyer.23 The Crown points to the fact that the Police took a number of reasonable steps to facilitate Mr Flanagan’s access to a lawyer, including:
23 Bai, above n 5; Tallentire, above n 5, at [12]; and Kerr v Police [2017] NZHC 2595.
(a)he was given the Police Detention Legal Assistance list, containing names of lawyers who would give advice for free;
(b)Mr Flanagan chose to call a lawyer he knew from that list;
(c)the Constable called the lawyer three times and left a voicemail on the third occasion, but could not get hold of him;
(d)Mr Flanagan refused to choose an alternative lawyer from the list, saying that he “didn’t just want any lawyer”;24
(e)the process of trying to find a lawyer lasted for more than 20 minutes; and
(f)Mr Flanagan was argumentative during this process and the Constable described him as confrontational and aggressive.25
[36] Further, the Judge found that Mr Flanagan did not request to see another named lawyer, as he suggested in his own evidence. In the circumstances, it was open to the Judge to find that the Police gave Mr Flanagan plenty of opportunity and took reasonable steps, as required, to facilitate his access to legal advice. Thus, the Crown submits, Mr Flanagan cannot rely on this point to argue that evidence of his refusal to permit a blood sample being taken was improperly taken under s 30 of the Evidence Act.
[37]Section 23(1)(b) of NZBORA 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;
…
24 Notes of Evidence at 64.
25 At 4.
[38] In Ministry of Transport v Noort the Court of Appeal examined this right in the context of the same charge of refusing a blood specimen.26 A majority of the Court held no definite rules can be outlined for what is expected from police:27
The opportunity [to obtain legal advice] is to be limited but reasonable. It is not necessarily restricted to one call, but there must be no unreasonable delay. A driver who cannot immediately contact his or her own lawyer should normally be allowed to try one or two others. If, despite a reasonable opportunity, no lawyer can be contacted (perhaps because of the hour of night) the test need not be delayed further. Rosters of lawyers, available to undertake this work at an appropriate fee, may be prepared by the law society, the police or the ministry, but that is outside the control of the Court. Hard-and-fast rules cannot be laid down for all circumstances. Ultimately it must always be a question of fact and common sense whether a reasonable opportunity has been given.
[39]In Tallentire v Police, Asher J held:28
[12] The Police must take reasonable action to facilitate the detainee’s exercise of the right. But the Police have no obligation to find for the detainee the detainee’s lawyer of choice. The obligation is to facilitate, not to provide, and the requirement to assist with the provision of this opportunity is not a counsel of perfection...
…
[14] All the circumstances must be considered and allowances must be made for the realities of the situation. While of course the need to facilitate the right to consult a lawyer will require the Police on occasions to take certain positive steps, this is not to be treated as imposing an obligation to take every possible step. It will always be a question of fact and degree. Did the Police take reasonable steps to facilitate the exercise of the right?
[40] The positive steps taken to facilitate access, as outlined by the Crown, demonstrated that the Officers attempted three times to contact Mr Flanagan’s chosen lawyer, asked him to consider a different lawyer when his preferred lawyer could not be contacted and gave Mr Flanagan a reasonable amount of time to consider his options. In light of the above authorities, Mr Flanagan’s decision not to contact other lawyers and communicate his reasons to the Officers did not make the Police conduct unreasonable.
26 Ministry of Transport v Noort [1992] 3 NZLR 260 (CA).
27 At 274.
28 Tallentire, above n 5.
[41] The Judge expressly considered the relevant circumstances and weighed up the competing evidence, including Mr Flanagan’s evidence that the Police should have done more than just show him a list. However, it was open to the Judge on the evidence to find that the Police took reasonable steps to facilitate Mr Flanagan’s access to a lawyer.
[42]This ground of appeal fails.
Did the Judge err in finding Mr Flanagan breached the requirements imposed on him under s 72(2) of the Land Transport Act?
[43] Mr Flanagan submits the Judge erred in law in two respects when concluding he had refused to permit a blood specimen be taken.
[44]First, Mr Flanagan challenges the Judge’s conclusion that:29
[32] Mr Flanagan proposed in brief on the blood test that he did agree to it, but in effect really by saying that he would prefer a breath test when asked to undergo the blood test but would consent to the blood test, which of course is not in law anything other than a refusal, and I have found on the evidence that I prefer the evidence of the police officers with respect to the requirements and the refusal.
[45] This conclusion stemmed from the Constable’s evidence that Mr Flanagan refused to agree to a blood specimen being taken, while indicating that he wanted to take the breath test again.30 Defence counsel points to the very short time period, only one minute, between the advice to Mr Flanagan of the requirement to give blood and any changing of his mind or refusal he made.31 Mr Flanagan’s evidence was that he did agree to give blood, but was not happy to give blood in the state he was in and would prefer a breath test.
[46] Counsel relies on various cases for the proposition that what amounts to a “refusal” is a question of fact to be determined having regard to all the circumstances.32
29 Conviction decision, above n 2 (emphasis added).
30 Notes of Evidence at 5 and 7.
31 As indicated on the Breath & Blood Alcohol Procedure Sheet.
32 McLeod v Police HC Auckland CRI-2011-404-376, 7 December 2011 at [23]; Vitullo v Ministry of Transport (1988) 3 CRNZ 227 (HC) at 230; and Davison v Ministry of Transport (1987) 2 CRNZ 426 (HC) at 431.
Mr Flanagan submits that an indication of preference for a breath test, as opposed to a blood test, does not amount to a refusal for the purposes of s 60 of the Land Transport Act. Mr Flanagan was changing his mind during this one minute period, which is part of an honest continuous decision-making process.33
[47] Second, Mr Flanagan submits that, as a matter of law, there cannot be a failure to comply with the requirements under s 72(2) of the Land Transport Act unless and until the request for blood has been made by the medical practitioner or medical officer. Counsel submits that while the enforcement officer can require the person to permit a blood specimen to be taken, the requirement to permit the taking of the specimen lies between the person and the medical practitioner or medical officer. Thus, the defence says, there cannot be a failure to comply with the section before any such request has been made and Mr Flanagan did not breach the requirements of the section, because there is no evidence that a medical practitioner or medical officer requested him to give a blood specimen. Counsel submits the Judge erred in finding there was a breach.
[48] Defence counsel cannot identify any cases that have dealt with this precise issue under the current Act, although this issue was considered under the preceding Transport Act 1962 in Dyer v Ministry of Transport.34 There, Beattie J did not accept a similar argument. The Judge identified there were two steps to be followed. First, when the enforcement officer “requires” and, second, when the defendant shall “permit” a blood specimen upon the request of a doctor.35 Counsel distinguishes this case and submits it does not apply under the current Act because of the difference in the statutory language. Similarly, the defence distinguishes recent cases under the current legislation which apply Dyer, on the basis, they concern the operation of s 77(3) and not s 72(2) of the Land Transport Act.36
[49] The Crown submits there was sufficient available evidence to conclude that Mr Flanagan refused to submit to a blood test when required by police to do so, and
33 Davison, above n 32, at 431.
34 Dyer v Ministry of Transport [1972] NZLR 937 (SC).
35 At 938.
36 McLeod, above n 32, at [20]–[21]; and McDowell v Police HC Auckland AP287/95, 4 March 1996 at 9.
that this amounted to a breach of s 72(2) of the Land Transport Act. The Crown says further that the Judge did not err in finding there was a refusal, because, given the time since Mr Flanagan was first breath-tested, it was entirely reasonable and proper for police to have taken Mr Flanagan’s refusal to permit the blood sample as the end of the matter. He did not waiver or change his mind within a continuous decision-making process.
[50] Mr Flanagan was charged under s 60(1)(a) of the Land Transport Act, with failing or refusing to permit a blood specimen to be taken after having been required to do so, under s 72 by an enforcement officer. Section 60(1) provides:
60Failure or refusal to permit blood specimen to be taken or to undergo compulsory impairment test
(1)A person commits an offence if the person—
(a)fails or refuses to permit a blood specimen to be taken after having been required to do so under section 72 by an enforcement officer; or
(b)fails or refuses to permit a blood specimen to be taken without delay after having been requested to do so under section 72 by a medical practitioner or medical officer; or
(c)is a person from whom a medical practitioner or medical officer may take a blood specimen under section 73 and refuses or fails to permit such a person to take a blood specimen; or
(d)fails or refuses to undergo a compulsory impairment test under section 71A.
[51] The Act contains two offence provisions for refusing a request from an enforcement officer (s 60(1)(a)) and for refusing a request from a medical practitioner or medical officer (s 60(1)(b)).
[52] The plain reading of s 60(1) makes it an offence for a person to refuse to “permit” a blood specimen when an enforcement officer requires one. Given there are two separate provisions in the Act, for failing to comply with a request by either an enforcement officer or a medical practitioner, Mr Flanagan’s submission cannot be upheld.
[53] Mr Flanagan has refused to permit a blood specimen to be taken, having been required to do so from the enforcement officer under s 72(1), which is an offence under s 60(1)(a). Section 72(2) was not breached because the request for blood must be made by (and refused to) a medical practitioner or medical officer, following the request from the enforcement officer. It is a two-staged process as reflected in s 60 of the Act, and Mr Flanagan refused the first-stage request from the Police Officer to permit a blood specimen. The second stage, involving the request of a medical practitioner, had not taken place because he refused the Officer’s request.
[54] In response to Mr Flanagan’s challenge to the Judge’s conclusion that he had refused a blood test, I consider it was evident to the Officers, from Mr Flanagan’s language and behaviour, that he did refuse to permit a blood specimen, having regard to his actions throughout the evening and in the period directly after being asked. His prevarication, referred to at [10], amounted to a refusal. It was open, therefore, to the Judge, to make the finding that there was a refusal and the Judge did not err in his assessment of the evidence on this point.
[55]This ground of appeal fails.
Did the Judge err in finding Mr Flanagan was treated with humanity and dignity?
[56] Mr Flanagan submits the Judge erred in finding there was no evidence to suggest Mr Flanagan was treated other than with humanity and dignity. Mr Flanagan submits the evidence shows his clothing was removed and, on his evidence, he was stripped completely naked and provided with a gown. Even if he was left with his undergarments only, Mr Flanagan submits that in either scenario it cannot be said that he was treated with humanity and dignity.
[57] Mr Flanagan says this factor is compounded by the fact that he was acquitted on the assault charge that precipitated police putting him into a cell and searching him in this manner. Mr Flanagan contends his ability to readily understand and process information provided to him at the relevant time would have been compromised by the manner in which he was dealt with. This factor, he says, is relevant when assessing his response to request for a blood specimen.
[58] The Crown submits there was sufficient available evidence to conclude Mr Flanagan was treated with humanity and dignity, having particular regard to his medical conditions. The Crown points to the following evidence:
(a)none of the Police Officers could specifically recall clothing being taken from Mr Flanagan, however, they were adamant that he was not stripped naked;
(b)subsequently provided custody records confirmed that Mr Flanagan was not strip searched;
(c)when questioned, each of the Officers confirmed that clothing would have been removed from Mr Flanagan if it was considered “unsafe”; and
(d)the Police witnesses accepted clothing was taken from Mr Flanagan when shown photographs of the clothing, however the amount that was taken was not resolved by the evidence.
[59] The Crown submits the removal of clothing when being processed was described as a standard custody procedure designed to remove unsafe items of clothing and these procedures exist to protect the safety of those in police custody. It was available to the Judge to conclude that there was no evidence of a failure to be treated with humanity and dignity. Further, there is no evidence of a causative link between the actions of police and Mr Flanagan’s subsequent refusal to comply with the blood sample requirement.
[60]Section 23(5) of NZBORA provides that:
Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
[61] It is unclear how much clothing was removed by police when Mr Flanagan was detained. Although there is evidence that he was oppositional, and perhaps even confrontational, there is no evidence that Mr Flanagan’s clothing or any items within his clothing were “unsafe”. The assault charge was not proved and there was no
evidence that his behaviour was at the level of being a risk to himself or the Officers involved, such that his clothing needed to be removed completely, or at least to his undergarments.
[62]The Judge said of this issue:37
That to no degree could it be found here that Mr Flanagan has not been treated with humanity and dignity.
[63] Section 30 of the Evidence Act governs the steps to be followed, to determine if evidence is improperly obtained. Section 30 provides:
30 Improperly obtained evidence
(1)This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—
(a)the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or
(b)the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.
(2)The Judge must—
(a)find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b)if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.
(3)For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a)the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b)the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c)the nature and quality of the improperly obtained evidence:
37 Conviction decision, above n 2, at [42].
(d)the seriousness of the offence with which the defendant is charged:
(e)whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f)whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:
(g)whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h)whether there was any urgency in obtaining the improperly obtained evidence.
(4)The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(5)For the purposes of this section, evidence is improperly obtained if it is obtained—
(a)in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or
(b)in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or
(c)unfairly.
(6)Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the Police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.
[64] The first step under s 30 is to determine whether the evidence of Mr Flanagan’s refusal was improperly obtained. The issue in this case is whether there has been a qualifying breach of s 23(5) NZBORA, namely whether Mr Flanagan was not treated with humanity and with respect for the inherent dignity of the person.
[65] The Judge considered the NZBORA issue was connected to the submission that Mr Flanagan’s medical condition, namely his dyslexia and ADHD were ignored, and as a result, his rights were breached. The Judge did not uphold this submission on the medical evidence that was produced at the hearing, finding that Mr Flanagan displayed thoughtfulness and comprehension, while giving evidence and contrasted
this evidence with the Police evidence that Mr Flanagan had been uncooperative and difficult at the time of the offence. The Judge specifically noted that Mr Flanagan accepted in cross-examination that he had been uncooperative with police. The Judge noted that the medical records establish that Mr Flanagan had been on the same medication before the incident and afterwards, with no problem arising.
[66] At this appeal hearing, the focus was on the removal of Mr Flanagan’s clothing without providing him with any substitute for warmth and privacy, which was submitted to be inhumane and undignified. On that basis, Mr Flanagan’s counsel submits that s 23(5) of NZBORA was breached.
[67] The Judge did not make any factual findings about how much clothing was removed from Mr Flanagan. It appears that none of the Police Officers could specifically recall clothing being taken from Mr Flanagan at the hearing, but were adamant that he was not stripped naked. The custody records confirmed that Mr Flanagan was not strip searched, but there is no record made of the reasons for removing his clothing that night, despite the Police evidence that clothing would have been removed from Mr Flanagan if it was considered “unsafe”. It was not until the Police Officers were shown photographs of Mr Flanagan’s clothing, that they accepted that his clothing was removed that night.
[68] The Crown submit that there is no evidence to establish Mr Flanagan was not treated with dignity and humanity, as the removal of clothing when being processed in custody is a standard custody procedure designed to remove “unsafe items of clothing”. This procedure is invoked to “protect the safety of those in police custody”.
[69] I consider it disappointing and concerning that no record is made of the reason for removing a person’s clothing, when a person is placed in the cells. I also find it disconcerting that the Officers could not remember the clothing was removed until their memories were prompted by the production of photographs of Mr Flanagan’s clothing. No issue of safety was addressed at the hearing.
[70] However, for the purposes of s 30(5)(a) of the Evidence Act, the evidence must be obtained in consequence of a breach of the New Zealand Bill of Rights Act, before
it is found to be improperly obtained. I am not satisfied there is a sufficient causal link between Mr Flanagan’s refusal to consent to a blood test, when asked by the Police Officers in the cells, and the way in which he was treated.
[71] Mr Flanagan was advised, when he had compromised the breath test after three attempts, and he had become aggressive and obstreperous, that it was considered he had refused to undertake a breath test and he would be detained for a blood test. Mr Flanagan was advised of his rights and escorted back to the cells. It is after Mr Flanagan was placed in the cells that his clothes were removed.
[72] Although Mr Flanagan refused permission for a blood test to be taken when requested by the Officers after his clothing had been removed, I am not satisfied that the evidence was obtained, in consequence of any potential breach of Mr Flanagan’s rights. Because of the absence of the causal link between any potential breach and the evidence of Mr Flanagan’s refusal, I am unable to uphold the appellant’s submission that this evidence was improperly obtained.
[73]This ground of appeal also fails.
Conclusion
[74]The appeal against conviction is dismissed.
Cull J
Solicitors:
Quay Legal Chambers, Wellington Crown Solicitor, Wellington
0
6
0