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Gallichan v Police

Gallichan v Police

Case [2009] NZCA 79 16 March 2009

Jurisdiction

Admissibility of Evidence

Breach of Contract

Misrepresentation

Criminal Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gallichan v Police

Details

AGLC: Gallichan v Police [2009] NZCA 79
Case: [2009] NZCA 79
Decision Date: 16 March 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to decide whether the police breached the rights of Paul David Gallichan under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 during a drink-driving charge. Gallichan argued that the police officer administering the roadside tests did not adequately inform him of his right to a lawyer at no cost. The police argued that they had adequately conveyed Gallichan's rights, and the lower courts agreed. The Court of Appeal considered whether to grant special leave to appeal on several issues, including whether the police's change in practice following the Chief Justice's Practice Note in 2007 had led to a misleading rights form and whether s 30 of the Evidence Act 2006 applied to summary prosecutions. The Court found that the police's new rights form complied with the Practice Note but could be clearer in some respects. The Court also found that s 30 of the Evidence Act did apply to summary proceedings and that the appeal was unlikely to succeed. The Court of Appeal declined the application for special leave to appeal. The Court suggested that the police consider improving the clarity of their rights form.

Orders