G v Police HC Auckland CRI 2008-404-184

[2008] NZHC 1681

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-184

G

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 October 2008

Counsel:         Z K Mohamed for Appellant

A R Longdill for Respondent

Judgment:      31 October 2008

JUDGMENT (No 2) OF KEANE J

This judgment was delivered by Justice Keane on 31 October 2008 at 12pm pursuant to Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Z K Mohamed, Auckland

Crown Solicitor, Auckland

G V POLICE NO 2 HC AK CRI 2008-404-184  31 October 2008

[1]      On 1 October 2008 I dismissed G  ’s appeal against his conviction for driving with an excess breath alcohol level entered on 26 May 2008.  He seeks leave to appeal my decision to the Court of Appeal.

[2]      There are five issues, he contends, worthy of a grant of leave, three of which go to whether, once detained, he was told adequately of his right to advice: whether it was made clear to him that he was entitled to free legal advice under the Police Detention Legal Assistance Scheme. The fourth, once the judge found that despite his evidence Mr G   showed no sign of interest or confusion at the time, reverts to that theme. The fifth is as to whether reasons must be given to invoke s 30(2)(b) of the Evidence Act 2006.

[3]      The application is opposed. None of the questions posed, it is contended, constitute questions of law of sufficient significance to justify a grant of leave.

Leave threshold

[4]      Section  144(1)  confers  an  ability  to  appeal  to  the  Court  of  Appeal  any question of law arising on a general appeal to this Court, but subject to leave. This Court, s 144(2) says, may grant leave if:

the question of law involved in the appeal which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[5]      In R v Slater [1997] 1 NZLR 211, CA, at 215, Thomas J, delivering the judgment, stated that s 144 does not confer a right to a second tier appeal. Finality is ordinarily to be anticipated on an appeal to this Court. He concluded:

Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

[6]      Even where a question appears to qualify on both counts, Thomas J added, this Court must still be of the opinion that the question is one worthy of a second tier appeal.

Advice issues

[7] The first three questions proposed concern the objective adequacy of the advice an officer must give a detainee insofar as that is prescribed by the Chief Justice’s Practice Note [2007] 3 NZLR 297; in particular as to the following aspect of the prescribed advice that the officer gave without elaborating:

This right may be exercised without charge under the Police Detention Legal

Assistance Scheme.

[8]      That statement, it was contended on the appeal before me, is inadequate to convey to a detainee his or her right to free advice from a scheme panel lawyer; and, to convey the right clearly and accurately, that is what the officer should have gone on to tell Mr Broad.  It is this theme that pervades the first three questions posed.

[9]       The first puts in issue whether the advice given by the officer could have been deemed objectively adequate either at first instance or on appeal, when the Judge at first instance had found that:

lay persons may not know of or understand what the Police Legal Assistance Scheme is, specifically, that there is a roster of private lawyers who are available at any time to give free legal advice.

[10]     The second is a variant of the first. It asks whether the officer complied adequately with s 23 of the Bill of Rights Act 1990, and the practice note, just by reading out the statement prescribed in the latter. The third is correlative. It poses the question whether, if the advice is on its face unintelligible, should not the officer have gone further, whether or not Mr G   asked him to.

[11]     The first difficulty with these questions is this. The practice note prescription to which the officer literally adhered may be, as the Judge at first instance said, abstract. But he did not find it is not unintelligible and neither did I on the appeal. If the officer conveyed the right in the words prescribed, both of us concluded, and unless there were some reason to go further, he adequately conveyed the right.

[12]     The second difficulty is that these questions do not raise any new issue. Whether and when an officer needs to go further, and explain a right conveyed, or a

duty imposed for that matter, is well settled; and the recent subject of topical decisions of the Court of Appeal: R v Alo [2008] 1 NZLR 168; R v Tye [2008] 1

NZLR 214.

[13]     The fourth question is consequential. The Judge found that, despite what Mr G   said, he had not at the time shown any sign of interest in this issue, or any confusion. Mr G   asks whether the Judge should not then have looked back to the objective adequacy of the advice given. The short answer is that the Judge did, as did I on the appeal. Both of us found that the advice given, though abstract, was intelligible.

[14]     The final question is again consequential.  In the last sentence of my decision dismissing the appeal I said that, even if the officer ought to have gone further, in the circumstances it would be disproportionate, in terms of s 30(2)(b) of the Evidence Act 2006, to exclude the blood test result. Mr G   wishes to ask the Court of Appeal whether that conclusion ought to have been supported by reasons.

[15]     I merely alluded in my concluding paragraph, I accept, to what those reasons might have been. But that paragraph was not essential to my decision. I had already concluded that the officer had conformed with the practice note, believing it to be prescriptive, and that he had been entitled to do so.  Any fault on his part had to be so slight, I inferred in my final paragraph, that to exclude the test result on that account would be disproportionate. No issue of law of any significance results.

Conclusion

[16]     None of the grounds Mr G   seeks to advance on his application for leave, are questions of law of sufficient general or public importance, or have such other  significance,  that  they ought  to  be  submitted  to  the  Court  of  Appeal  for decision. I decline the application.

[17]     The order of disqualification to which Mr G   is subject, presently

suspended, will resume 24 hours after the date of the issue of this decision.

P.J. Keane  J