G v Police HC Auckland CRI 2008-404-184

[2008] NZHC 1534

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000184

G

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 September 2008

Appearances: Z K Mohamed for Appellant

A R Longdill for Respondent

Judgment:      1 October 2008

JUDGMENT OF KEANE J

This judgment was delivered by Justice Keane on 2 October 2008 at 9am pursuant to Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland

G V POLICE HC AK CRI 2008-404-000184  1 October 2008

[1]      On  26  May  2008  G    was  convicted  in  the  District  Court, Auckland, of driving on 8 September 2007 at Blockhouse Bay with an excess blood alcohol level. His level was 106 milligrams of alcohol per 100 millilitres of blood. He was fined $530 and disqualified from driving for six  months; an order that presently stands suspended. On his appeal, as at the hearing, he raises a single issue.

[2]      Mr G   accepted in evidence, in abstract, that at the roadside after he had failed a breath screening test and before he was required to accompany, he was advised of his right to advice. Also that, twice afterwards, at the police station he was advised again, before he underwent an evidential breath test, the result of which was positive, 488 micrograms of alcohol per litre of breath, and immediately after he was advised of his right to elect a blood test.

[3]      Mr G   did not contest that on each occasion he confirmed to the officer that he understood his right to advice and on two occasions, those at the police station, confirmed that he elected not to exercise it. His defence was, and his ground of appeal is, that the advice he was given did not convey to him what he needed to know, that he was able to obtain advice without cost. He did not have a lawyer himself and he anticipated that any lawyer to whom he could turn would not be cost free. That dissuaded him from exercising the right.

[4]      In this Mr G   does not and cannot dispute that, albeit abstractly, the advice he was given each time was that he was entitled to consult a lawyer and to do so without cost; that it was conveyed in this way:

You have the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and this right may be exercised without charge under the Police Detention Legal Assistance Scheme.

His point is that the scheme referred to meant nothing to him and the words ‘without charge’ were equally unhelpful. They could have referred to a charge he was facing.

[5]      To have understood that the advice was free, his defence was in essence, and his sole ground of appeal is, he would need to have been told, as used to be the case in a form of advice used in the Auckland area:

If you do not have your own lawyer a list will be provided of on-call lawyers for you to choose from. These lawyers are available to give advice free of charge.

[6]      In his decision the Judge held that the advice Mr G   was given, though it could have been more helpfully expressed, did bring home to him both his right to advice and that this could be without cost. Though advised three times of this, he did not express any interest in exercising his right or explore how he might do so without cost. Consequently, the Judge held, Mr G   was bound by his election.

[7]      There was no breach of his right to advice, the Judge held, that rendered inadmissible, even potentially, the blood alcohol analysis on which his conviction now rests. Mr G    renews his challenge on this appeal.

Context

[8]      As the Judge recorded in his decision, the challenge to the advice given was the  sole  point  taken  at  the  hearing;  the  officer,  Constable  Campbell,  gave  his evidence in chief directly from his brief;  the cross-examination was correspondingly confined.

[9]      On  8  September  2007,  the  Judge  narrated,  Constable  Campbell,  at  a checkpoint on Kinross Street, Blockhouse Bay, stopped Mr G  , had him undergo  a  breath  screening  test  and  when  that  proved  positive,  required  Mr G   to accompany him to a nearby police bus for further testing. Mr G   agreed. Constable Campbell, the Judge recorded, immediately advised Mr G   of his rights in this way:

You have the right to refrain from making any statement and to remain silent. You have the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and this right may be exercised without charge under the Police Detention Legal Assistance Scheme. Anything said by you will be recorded and may be given in evidence.

[10]     The constable, the Judge recorded, asked Mr G   if he understood his rights and he said that he did. And, very soon after, at the bus, a matter of metres away,  there  was  another  such  but  more  formal  exchange.  Before  requiring  Mr

G   to undergo an evidential breath test, the constable read to him the form of advice in writing, now standard, ‘Advice pursuant to New Zealand Bill of Rights Act

1990 and the Chief Justice’s Practice Note on police questioning’. In upper case it said this:

You are advised that you have been detained for the carrying out of breath or blood test procedures. You have the right to refrain from making a statement and to remain silent. You have the right to consult and instruct a lawyer without delay and in private. This right may be exercised without charge under the Police Detention Legal Assistance Scheme. You may also exercise this right before deciding to answer any questions that may be put to you. Anything said by you will be recorded and may be given in evidence.

In lower case there followed this:

These rights will continue throughout the breath/blood alcohol procedures. If you wish to consult and instruct a lawyer a telephone will be made available for that purpose as soon as practicable and before you undergo an evidential breath test, blood test or both. You will have a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you.

[11]     Once again, the Judge recorded, the constable asked Mr G   whether he understood his rights. Mr G   said that he did and signed the form acknowledging that he had been advised of his rights. To the question ‘would you like to consult with a lawyer’ he answered ‘no’.

[12]     The evidential breath test, the Judge recorded, proved positive. The result was 448 micrograms of alcohol per litre of breath. The constable then read out to Mr G   another standard form entitled ‘advice of positive evidential breath test’, the effect of which was that Mr G   was entitled to elect a blood test. Mr G    confirmed  that  he understood  this  advice  also.  Immediately after,  the constable read out to him a second form conveying his right to advice, identical to the first. Once again he confirmed he understood this too. He elected not to consult a lawyer.

[13]     Mr G   elected, as the Judge recorded, to have a blood specimen taken and, on analysis, that revealed the blood alcohol level, 106 milligrams of alcohol per

100 millilitres of blood; that set out in the offence of which he stands convicted. No aspect of this narrative is in issue.  Under challenge is the Judge’s conclusion that the

right to advice was conveyed adequately and thus that the blood alcohol analysis was admissible.

Discretion on appeal

[14]     This general appeal under s 115 of the Summary Proceedings Act 1957 is, as s 119 confirms, by way of rehearing this Court’s powers on appeal, as set out in s 121, are equally wide; and as the Supreme Court, in Austin, Nichols & Co Inc v Stichsting Lodestar [2007] NZSC 103, recently made plain on an appeal this Court must always make its own assessment of the merits of the case: para [5].

[15] An appellant still bears the onus of satisfying this Court that it should differ from the Court appealed from. This Court is not entitled to interfere otherwise: para [4]. This Court will also recognise any advantage that the court appealed from enjoyed – its specialist expertise or its ability to assess witnesses first hand where credibility is important: para [5]. But otherwise no deference is called for: para [13]. As was said at para [16]:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the Tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.

[16]     In this present appeal the debate is not about what happened or did not happen. The issue is, finally, as to what the law required and I am as well placed to resolve that as the Judge appealed from.

Decision under appeal

[17]     In convicting Mr G   of the offence the Judge was satisfied, though he had some sympathy for Mr G  , that the officer had adequately conveyed to Mr G   his right to advice under s 23(1)(b) of the New Zealand Bill of Rights Act 1990.

[18]     In  this  the  Judge  had  regard  first  to  paragraph  (2),  subparagraph  (b)

especially, of the guidelines going to fairness, issued by the Chief Justice on 16 July

2007 for the purpose of s 30(6) of the Evidence Act 2006. The advice or caution called for, the Chief Justice directed, must include advice:

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.

[19]     In assessing the advice given, the Judge then said, relying on Keni v Police; Batistich v Ministry of Transport (1993) 10 CRNZ 623, the issue became whether the nature and extent of the right had been conveyed adequately, assessed objectively and not hypothetically. That the advice could have been better expressed than it was, was not decisive.

[20]     The Judge accepted that the form of advice used, in contrast to earlier forms, was abstract. He agreed that it could have been better expressed. Objectively, he held, however, the officer conveyed the right to free advice adequately, consistent with the practice note. He rejected Mr G  ’s evidence that he had not understood that to be so. Or rather, perhaps, he pointed to the fact that Mr G   had not articulated his lack of understanding.  The Judge said this:

In rejecting the defendant’s evidence I take into account: (1) the advice given to the defendant by Constable Campbell; (2) the defendant’s indication that he did not want to contact a lawyer; (3) the defendant’s indication that he understood his rights; and (4) that, at the time the defendant was going through the relevant procedures there was nothing said or done by the defendant to indicate he: (a) did not understand the advice that was given to him; or (b) wanted to contact a lawyer.

Grounds of appeal

[21]     On this appeal, Mr Mohamed contends, the Judge erred in holding that the advice the constable gave to Mr G   actually conveyed the right conferred. To convey the right, Mr Mohamed contends, the officer was obliged to bring home to Mr G   more than his right to advice in private and without delay. He was obliged to bring home Mr G  ’s right to advice without cost from one of the panel of lawyers available.

[22]     The form of advice the constable gave, Mr Mohamed contends, might in a literal sense have reflected the Chief Justice’s practice note. But that was not enough. The practice note is addressed to the police and to lawyers and judges. The words used  are  too  abstract  to  make  sense  to  the  average  motorist,  placed  in  the predicament that Mr G   was, unaware of the scheme referred to, let alone what its attributes were.

[23]     As it is, Mr Mohamed contends, by relying exclusively on the standard form of advice, founded on the practice note, and in not going beyond it, the officer conveyed the right so abstractly that he failed to convey it at all. The Judge was wrong to reject Mr G  ’s evidence that he was left understanding that, to exercise his right, he was going to have to incur the cost of engaging a lawyer, and was dissuaded.

Content of right conveyed

[24]     In a literal sense the constable did convey to Mr G  , in essence, his right to advice. His right was, as s 23(1)(b) says, ‘to consult and instruct a lawyer without delay’. As to that there is no issue; and before 1 August 2007 when the Evidence Act 2006 came into force, that would in most cases have been enough.

[25]     In R v Alo [2008] 1 NZLR 168, at para [72] the Court of Appeal, by a majority, held that an officer did not invariably need to tell a motorist that he or she enjoyed access to free legal advice under the scheme. That need only arose, the majority held, where:

the circumstances at the time of the interview, including the suspect’s age, experience and remarks, provide a substantial basis for believing that the suspect might not have appreciated that he or she had a practical ability to obtain legal advice.

[26]     Only then, the majority held, could there be a credible challenge to whether the right was conveyed. But even then the motorist would have to lay an evidential foundation for saying that he or she did not exercise the right because of cost. Only once that threshold was passed did the Crown have to disprove the contention on the balance of probabilities.

[27]     Common sense, the majority held, was called for. Many motorists might not know of the scheme. But unless they raised the issue of cost, more particularly in those cases where officers went beyond conveying the right to advice and proffered a list of lawyers, the only inference open was that cost might never have been in issue.

[28]     After 1 August 2007, when the Chief Justice’s practice note ([2007] 3 NZLR

297) also came into force, as the Court of Appeal acknowledged in R v Tye [2008] 1

NZLR 214, paras [17] – [19], Alo ceased to be governing as to the extent of what needed to be conveyed. Then, in fairness, as the Chief Justice directed, in paragraph

2(b), an officer was obliged to tell any person arrested or detained that their right to advice  ‘may  be  exercised  without  charge  under  the  Police  Detention  Legal Assistance Scheme.’

[29]     That, of course, word for word, was what Mr G   was told. There can be no issue then that the right in its essence, with that elaboration, was conveyed. The only issue can be whether, in complying with the practice note and not going beyond it, the constable failed to convey the right and how, sensibly, Mr G   might have set about exercising it.

Elaboration of right

[30]     The  practice  note  is,  I  accept,  abstractly  stated;  and,  I  accept  also,  is prescriptive only as to what must be conveyed, not how. The standard form of advice need not be in the exact words of the practice note. What is essential is that any standard form of advice deployed convey accurately the concepts the practice note requires. An officer conveying the right is not precluded from going beyond the words either and speaking more concretely.

[31]     That said, I am unable to accept Mr Mohamed’s submission that the words in the  practice  note,  and  thus  the  words  in  the  standard  form  of  advice,  are unintelligible. They are not.  Any officer who uses those words, and no others, will convey to anyone arrested or detained the two things essential. That he or she is entitled to call in aid the Police Detention Legal Assistance Scheme. Even that title is

itself descriptive of what the scheme offers. Further, that he or she may do so

‘without charge’.

[32]     Even if, moreover, a person arrested or detained is unaware of what the scheme offers and does not know what ‘without charge’ connotes, once told of both he or she has only to ask. That was open to Mr G   on each of the three occasions on which the right was conveyed to him. Had he done so, he would have soon learned. As it was, he elected not to and positively declined to exercise his right. That does not assist him now.

[33]     As the Court of Appeal in Alo confirmed, at para [41], the principles as to s 23(1)(b) stated by Richardson J in R v Mallinson [1993] 1 NZLR, CA, at 530 –

531, continue to be governing. And in principle 5 he said that unless there are

‘circumstances calling for obvious care and further inquiry’, an officer may take at face value what a person arrested or detained says or does not say on the issue of advice:

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 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.

[34]     Then, in principle 7, Richardson J went on to say, any duty to facilitate the exercise  of  a  right  does  not  come  into  play  until  the  one  arrested  or  detained expresses the wish to exercise it. All such issues as these, he concluded in principle

8, must be dealt with realistically. Any complaint must be invested with ‘an air of reality’.

[35]     A recent instance is Tye. There the argument was that Mr Tye should have been told that, notwithstanding the early hour of the morning, lawyers were available to give advice. At paragraph [26] the Court rejected any inference that Mr Tye may have been dissuaded from acting on his right by thinking that they might not be. He had  not  said  so  in  evidence,  the  Court  noted.  But  even  if  he  had,  he  had  not articulated it to the constable.

[36]     In this case also the same conclusion must hold.  Mr  G    did  give evidence that he was dissuaded from seeking advice because he thought that it was going to involve expense. The Judge, however, rejected that in the passage I have set out in paragraph [19]; and principally because Mr Tye elected on the three occasions he was told of his right to advice not to exercise it without ever raising any issue about the question of cost.

Conclusion

[37]     On the evidence, it was clearly open to the Judge, I consider, to conclude that Mr G   was adequately advised of his right to advice, and that no breach of s 35(a)(c) of the Evidence Act 2006 rendered the analysis on which the charge was ultimately founded inadmissible.

[38]     It was open to the Judge to conclude that Mr G   was told adequately of his right to have recourse to the scheme and that it entailed no cost; and that, even if the advice was abstractly expressed, Mr G  ’s response each time  that, understanding his right, he did not wish to exercise it, could be taken at face value. That there was no objective cause for concern.

[39]     If, however, there could be any suggestion that the constable ought to have gone further despite Mr G  ’s apparent lack of interest in taking advice, any omission on the constable’s part ought not I think to have rendered the blood test

inadmissible. In terms of s 30(2)(b) that would have been wholly disproportionate.

P.J. Keane  J