Gallichan v Police

[2009] NZCA 79

IN THE COURT OF APPEAL OF NEW ZEALAND

CA712/2008
[2009] NZCA 79

BETWEENPAUL DAVID GALLICHAN

Applicant

ANDTHE POLICE

Respondent

Hearing:24 February 2009

Court:Chambers, Gendall and Asher JJ

Counsel:Z K Mohamed for Applicant

M D Downs for Respondent

Judgment:16 March 2009 at 11 am

JUDGMENT OF THE COURT

The application for special leave to appeal is declined.

REASONS OF THE COURT

(Given by Chambers J)

Drink-driving: contacting a lawyer

[1]       Paul Gallichan, the applicant, was charged with driving with an excess blood alcohol level.  His “defence” was that the constable who had administered the standard roadside tests had not adequately brought home to him his right to a lawyer at no cost.  Mr Mohamed, Mr Gallichan’s lawyer, argued that the police had thereby breached Mr Gallichan’s rights under s 23(1)(b) of the New Zealand Bill of Rights Act 1990.  Judge O’Driscoll rejected the “defence”.  He found the constable had given Mr Gallichan his rights on three separate occasions and that Mr Gallichan had understood his rights.  The judge found Mr Gallichan was not confused by the advice the constable had given him.  At no stage did Mr Gallichan indicate he wanted to contact a lawyer.  The judge found all the elements of the offence proved beyond reasonable doubt: DC AK CRN 07004024242 26 May 2008. 

[2]       For reasons not currently material, another judge, Judge Nicola Mathers, subsequently entered the conviction and fined Mr Gallichan: DC AK CRI 2007‑004‑022983 25 June 2008. 

[3]       Mr Gallichan appealed.  Keane J dismissed the appeal: HC AK CRI 2008‑404-000184 1 October 2008.  His Honour found, as had Judge O’Driscoll, that the constable had conveyed to Mr Gallichan his rights.  Mr Gallichan had elected not to exercise his right to a lawyer.  At no stage had he raised an issue of cost. 

[4]       Mr Gallichan sought leave to appeal to this court.  Keane J refused leave on 31 October last year.  Now Mr Gallichan seeks special leave to appeal from this court. 

Application for special leave to appeal

[5]       Mr Mohamed seeks leave to argue on appeal five questions.

[6]       Four of them relate in one way or another to a change in police practice following the promulgation of the Chief Justice’s Practice Note in 2007: see Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297. We can deal with these questions together and quite shortly.

[7]       The fifth question raises a different issue, namely the applicability of s 30 of the Evidence Act 2006 to summary prosecutions.  The answer to this proposed question is clear, with the consequence that we should not and do not grant special leave with respect to it.  But the question reveals a key misunderstanding relating to evidence in drink-driving cases.  We think it important to rectify that misunderstanding, which clearly permeated the trial in this case. 

The first four questions: the change in police practice

[8]       Mr Mohamed sees this as a test case.  His fundamental concern is that the police have changed the “rights” form they give to motorists suspected of drink‑driving – and changed it for the worse.  He contends that the new form is misleading.

[9]       We comment on the change below.  There can be no doubt, however, that the new “rights” form does comply with the Practice Note.  Indeed, it follows the Practice Note word for word at the relevant part.  Further, this is a most unsuitable case to be a test case, as there are now concurrent findings of fact in the courts below that the constable did convey to Mr Gallichan his rights, that Mr Gallichan understood them, and that he elected not to contact a lawyer.  Appeals under s 144(3) of the Summary Proceedings Act 1957 are restricted to questions of law.  None of Mr Mohamed’s proposed questions stands any chance of success, as each is, in one way or another, founded on a premise that Mr Gallichan’s rights were not brought home to him.  Both judges have, however, found that in fact they were.

The fifth question: the application of s 30 in summary trials

[10] Mr Mohamed’s fifth question relates to an obiter comment made at the tail end of Keane J’s judgment. His Honour remarked that, if, contrary to his view, the constable “ought to have gone further” in explaining Mr Gallichan’s rights to a lawyer “despite Mr Gallichan’s apparent lack of interest in taking advice”, such omission on the constable’s part would not “have rendered the blood test inadmissible”: at [39]. The judge thought, in terms of s 30(2)(b) of the Evidence Act 2006, that to rule the blood test result inadmissible on that ground would have been “wholly disproportionate”. Harrison J had reached a similar conclusion in Park v New Zealand Police HC AK CRI 2008‑404‑208 22 September 2008 at [23], although Keane J does not appear to have been aware of that.  Mr Mohamed seeks to challenge Keane J’s obiter comment (and Harrison J’s like conclusion) on the basis that s 30 of the Evidence Act has no application in summary proceedings. 

[11]     We have no hesitation in declining special leave on this question as well.  First, it would be entirely inappropriate to grant leave with respect to the role of s 30 in circumstances where both courts below have found Mr Gallichan’s rights were not breached.  Section 30 did not come into play.

[12]     Secondly, in any event, the argument Mr Mohamed seeks to run under this head has no chance of success.  Mr Mohamed’s argument was essentially this.  There is no provision in the Summary Proceedings Act 1957 for a defendant to raise issues as to the admissibility of evidence; contrast the position under the Crimes Act 1961, where s 344A permits pre-trial applications.  Section 30 of the Evidence Act has been drafted only with indictable crimes in mind.  It cannot be applied in the summary context.

[13]     That submission is, with respect, wrong.  The admissibility of evidence can be challenged in a summary trial.  Casey J made this clear in Police v Grootjans [1989] 3 NZLR 587 at 589. See also, to similar effect, Police v Kidwell [1989] 3 NZLR 594 at 596 and Reille v Police [1993] 1 NZLR 587. If the prosecution is proposing to call evidence which the defence considers inadmissible, the defence should signal that objection at the hearing, with the grounds of objection. The judge should then hear submissions on the objection and, if necessary, conduct a voir dire. The judge should then give a ruling as to the admissibility of the evidence. If the ground of challenge is that the evidence has been obtained improperly, say in breach of the Bill of Rights, then the judge will have to determine whether the specified rights were breached. If they were, then the judge has to undertake the balancing exercise prescribed by s 30(2)‑(4) of the Evidence Act. Contrary to Mr Mohamed’s submission, there is no doubt s 30 does apply in summary proceedings. There is no doubt that Keane J and Harrison J were right to observe that, if police failed to advise motorists properly of their rights to a lawyer, what judges then have to do is assess whether excluding the result of the evidential breath test or the blood test, as the case may be, is proportionate to the impropriety found. (We express no view on whether Keane J was right in his indication as to how he would have determined the admissibility of the blood test result had Mr Gallichan’s rights been breached, as he, like Judge O’Driscoll, found they had not been breached, a conclusion which was inevitable given the findings of fact.)

[14]     The reference to s 344A of the Crimes Act is misplaced. That section was introduced into the indictable regime in 1980: see the Crimes Amendment Act 1980, s 3(1). It permitted for the first time admissibility questions to be determined pretrial.  It did not preclude, of course, admissibility objections continuing to be taken at trial.  It is true there is no equivalent of s 344A in the summary context.  All that means, however, is that objections have to be taken, as they always have been, during the trial itself. 

[15]     We suspect many other defence counsel share this misunderstanding of the law, especially in the drink-drive context.  For this reason, we set out what happened at the District Court hearing in this case and why it was wrong.  The police officer, Constable Robert Campbell, read a detailed brief of evidence.  It contained details about the breath screening test, what device had been used, its serial number, its calibration date, the manner of conducting that test, and the results.  Mr Gallichan, having “failed” that test, was then required to undertake an evidential breath test.  The constable then spelt out in detail the giving of “rights” to Mr Gallichan and Mr Gallichan’s response.  The constable then went on to explain in detail the evidential breath test, including the device used, its serial number, its calibration date, and the manner in which the test was conducted.  He gave the results of that test.  Then he went on to describe giving Mr Gallichan a form advising of his right to elect a blood test.  He then gave Mr Gallichan his rights again, which he described in detail.  Mr Gallichan then requested a blood test.  The constable then went on to describe in detail how the blood test had been taken, eventually producing the analyst’s certificate, which stated that the blood sample had a blood alcohol level of 106 mg of alcohol per 100 ml of blood.

[16]     Mr Mohamed then cross-examined the constable.  Following that, the prosecution closed its case.  Mr Mohamed then submitted to Judge O’Driscoll that there was no prima facie case to answer.  That was on the basis that the police had failed to bring home to Mr Gallichan his right to a lawyer without cost, in breach, so it was said, of the Bill of Rights.  Judge O’Driscoll rejected that submission.  Mr Gallichan then elected to call evidence.  At the end of that evidence, Mr Mohamed submitted again that the prosecution should fail, using the same argument as advanced on his submission of no case to answer. 

[17]     The first thing that was wrong with what happened at the trial was the evidence led from the constable.  Most of the evidence was quite irrelevant.  Many prosecutors have still not come to grips with the evidential provisions introduced by the Land Transport Act 1998, including the 2001 amendments.  This court has on a number of occasions now explained the very limited evidence required in drink‑drive cases: see, for example, R v Livingston [2001] 1 NZLR 167, R v Allen CA15/06 4 May 2006, R v Tye [2008] 1 NZLR 214, and R v Fenton [2008] NZCA 163. Indeed, in Allen, we observed that the evidence “would normally take only a few minutes, unless there is a real dispute as to whether the accused was driving the motor vehicle or whether the vehicle was on a road”: at [10]. The Supreme Court has also emphasised the limited nature of the evidence required: Aylwin v New Zealand Police [2008] NZSC 113 at [14], confirming this court’s decision, [2008] NZCA 154.

[18]     Secondly, the wrong defence tactic was adopted.  A submission of no case to answer was doomed once the analyst’s certificate had come into evidence.  Mr Gallichan did not challenge the accuracy of the certificate’s contents, with the consequence that, once it was admitted, far from there being no case to answer, there was no defence!  Mr Mohamed should have been challenging the certificate’s admissibility, although of course it would have been too late to do that after the prosecution case had closed.  As we have explained above at [13], he should have told Judge O’Driscoll at the start of the case that he objected to the admissibility of the analyst’s certificate.  He should have explained the grounds, namely that the constable had not properly brought home to Mr Gallichan his right to the services of a lawyer at no cost.  The judge could then have conducted a voir dire, at which the constable and Mr Gallichan presumably would have given evidence and been cross‑examined.  That voir dire would have been restricted to the point in issue, namely the circumstances in which the constable had given Mr Gallichan his rights and Mr Gallichan’s response on each occasion.  The judge would then have given his ruling as to the admissibility of the analyst’s certificate.  We know in this case what the ruling would have been, given the finding the judge in fact made at the end of the case that Mr Gallichan’s rights had not been breached.  Given that finding, there would have been, in this case, no need for the judge to undertake a s 30 evaluation, as he would have had to do had he found Mr Gallichan’s rights had been breached.

[19]     Once the judge had made that ruling, the trial proper would then have proceeded.  It would have been over in a matter of minutes, as Mr Gallichan had no defence once the analyst’s certificate was ruled admissible.

[20]     While the trial did not proceed as it should have, the “errors” were in the defendant’s favour, with the consequence that justice did not miscarry.  With that explanation, it will now be apparent why we are not giving leave with respect to Mr Mohamed’s fifth question.  It was based on an erroneous premise as to the way in which summary trials, and in particular drink-drive trials, are or should be conducted. 

Result

[21]     For the reasons given, we decline the application for special leave to appeal. 

Postscript: the new police “rights” form

[22]     We said above at [9] we intended to comment on the change in police practice since the introduction of the Chief Justice’s Practice Note.  For the reasons we have already given, we do not consider we can interfere with Judge O’Driscoll’s and Keane J’s concurrent findings that, in the circumstances of this case, Mr Gallichan’s rights were adequately conveyed to him.  Notwithstanding that, we do think there is some merit in Mr Mohamed’s concern about the way in which the police have recently altered their “rights” form, at the same time emphasising, however, that the new form does comply with the Practice Note. 

[23]     Prior to the Practice Note, police practice as to how s 23(1)(b) rights were conveyed to motorists varied around the country.  One form that was in use conveyed rights in the following language:

You are advised that you have the right to consult and instruct a lawyer without delay and to carry out that right in privacy.  You also have the right to refrain from making a statement.

These rights will continue throughout the breath/blood alcohol procedures.  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.  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.

[24]     The new post-Practice Note form conveys “rights” information in slightly different terms:

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.

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. 

[25]     For the purposes of discussion, we have italicised the sentence which Mr Mohamed criticises.  He submits this sentence is less clear than the corresponding sentences in the earlier form in three respects:

(a)The earlier form made it clear that “lawyers [would] give advice free of charge” ie the motorist would not have to pay.  The new form, on the other hand, talks of exercising rights “without charge under the Police Detention Legal Assistance Scheme”.  This omits the crucial word “free”.  Further, “charge” is a word of more than one meaning.  Some, particularly intoxicated motorists, might interpret this sentence as meaning that the right can be exercised prior to a charge being laid under the Police Detention Legal Assistance Scheme.  Mr Mohamed’s point was that most people would have no idea what the Police Detention Legal Assistance Scheme was; it is not immediately obvious to lay people it this is a legal aid fund administered not by the police (as the name suggests) but rather by the Legal Services Agency.  Some might not realise therefore that the advice was free.

(b)The new form omits the helpful information that the police hold a list of on call lawyers from which the motorist can choose.

(c)Reference to the Police Detention Legal Assistance Scheme is potentially misleading, as it may suggest to some motorists that the lawyers involved in the scheme are associated with the police, and are not independent lawyers.

[26]     While we are not to be taken as accepting all of Mr Mohamed’s concerns, we think nonetheless the old form was arguably clearer than the new form in conveying:

(a)That if the motorist does not have his or her own lawyer, the police hold a list of on call lawyers from which the motorist can choose; and

(b)Those lawyers are available and will give free advice. 

[27] We note Judge O’Driscoll also considered the drafting of the new form could be improved: at [18]‑[20] and [23]. He also considered that, if reference to the Police Detention Legal Assistance Scheme was to continue, the Legal Services Agency should consider seeking to have the name of the scheme changed so as to remove the third concern Mr Mohamed articulated: at [29]. We agree with all of Judge O’Driscoll’s comments. (We note, incidentally, that Judge Mathers did also at sentencing: at [1]. And so did Judge David Harvey in Police v Broad DC MAN CRI2008‑092‑002201 19 June 2008 at [36] and [45].)  Of course, the name of the scheme does not need changing if the scheme itself is not mentioned in the “rights” information.  In our view, it does not need to be mentioned.  It is simpler if the police merely advise they hold a list of lawyers available to give free advice.  We appreciate the Practice Note refers to the Police Detention Legal Assistance Scheme, but that was simply to identify which scheme the Chief Justice had in mind.  The Practice Note does not require that the scheme under which free advice is provided be specifically mentioned.  What is important is the substance and intelligibility of the advice, not any specific form of words. 

[28]     We direct the registrar to send a copy of this judgment to the Commissioner of Police for his consideration.  We do not expect any response from him.

Solicitors:
Zahir K Mohamed, Manukau, for Applicant
Crown Law Office, Wellington, for Respondent