Ge v Police

[2021] NZHC 2991

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGESTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-167

[2021] NZHC 2991

BETWEEN

JUN GE

Plaintiff

AND

NEW ZEALAND POLICE

Defendant

Hearing:	5 November 2021
Appearances:	C Mitchell for Appellant Z Trinder for Respondent
Judgment:	8 November 2021

JUDGMENT OF LANG J

[on appeal against conviction]

This judgment was delivered by me on 8 November 2021 at 11.30 am.

Registrar/Deputy Registrar Date……………

Solicitors:

Crown Solicitor, Auckland

GE v NEW ZEALAND POLICE [2021] NZHC 2991 [8 November 2021]

[1]    Mr Ge pleaded not guilty to a charge of driving with excess blood alcohol in its aggravated form.1  Following a defended hearing Judge A-M J Bouchier found  Mr Ge guilty on the charge.2

[2]    Mr Ge appeals against conviction. He contends the Judge erred in her assessment of the evidence to the extent that a miscarriage of justice has occurred.3

[3]    The appeal focuses on two issues. The first is a submission that the Judge unfairly predetermined the case against Mr Ge. The second is that the Judge erred in her assessment that Mr Ge knew he was entitled to obtain the services of a lawyer but declined to take advantage of that opportunity. As a result, his rights under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) were breached.

Background

[4]    The charge was  laid after an  incident that  occurred in  the early hours  of  29 October 2019. At approximately 2.20 am on that date the police received a report of a person asleep at the wheel of a stationary vehicle at a set of traffic lights situated on Tristram Avenue in Forrest Hill. A police patrol was despatched to the scene and on arrival the officers in the patrol vehicle found Mr Ge standing outside his vehicle. He exhibited signs of having consumed alcohol and was required to take a passive breath test. When this revealed the presence of alcohol Mr Ge was required to undertake a breath screening test. This also showed the presence of alcohol in Mr Ge’s breath. The officers then required Mr Ge to return to the Harbour Bridge police station for the purposes of an evidential breath test, blood test or both.

[5]    Constable Chan, one of the officers who dealt with Mr Ge at the scene, said he became aware from his discussions with Mr Ge that he spoke Mandarin. He was concerned Mr Ge may not have understood the NZBORA rights the constable had advised him of at the scene. These included the right to obtain legal advice without delay and in private. Constable Chan therefore arranged for a colleague who spoke

1      Land Transport Act 1998, s 56(2) and (4).

2      New Zealand Police v Ge [2021] NZDC 6150.

3      Criminal Procedure Act 2011, s 232(2)(b).

Mandarin, Constable Wang, to come to the police station to translate the breath and

blood testing procedures to Mr Ge. These included his NZBORA rights.

[6]    Constable Wang duly travelled to the police station and was present when Constable Chan read each of Mr Ge’s NZBORA rights to him. Constable Wang translated each of these into Mandarin for Mr Ge. After translating each right Constable Wang asked Mr Ge to confirm that he understood the right that had just been translated to him. In each case Mr Ge confirmed that he did. Constable Wang also translated a description of the breath and blood testing procedures to Mr Ge.

[7]    Mr Ge subsequently underwent an evidential breath test and this produced a reading of 808 micrograms of alcohol per litre of breath. He then elected to have a blood sample taken and Constable Chan summoned a nurse to undertake this procedure. Analysis of the resulting blood sample revealed the presence of 194 milligrams of alcohol per 100 millilitres of blood.

Appellate approach

[8]    There is no dispute regarding the approach an appellate court must now take to a first appeal against conviction. In Sena v Police, the Supreme Court confirmed that conventional appellate principles apply to such appeals.4 This requires the appellate court to reach its own decision regarding the correctness of the judgment subject to appeal. The onus is on the appellant, however, to demonstrate error on the part of the Court below. As always, an appellate court will exercise “customary caution” when assessing any challenge to findings based on credibility where the trial Judge has the advantage of seeing and hearing the witnesses.5

Did the Judge unfairly predetermine the case against Mr Ge?

[9]    On Mr Ge’s behalf Mr Mitchell contends the Judge demonstrated at an early stage that she considered the defences Mr Ge was advancing to have little merit. He bases this on the following exchange between himself and the Judge early in the hearing:

4      Sena v R [2019] NZSC 55, [2019] 1 NZLR 575.

5      At [38]–[40].

The Court to Mr Mitchell

MRMITCHELL – Would you like to hear from me, Ma’am – the two main issues.

THE COURT –     Yes

MR MITCHELL –     Thank you. The issue will be his understanding of the

procedure.

THE COURT –     I guessed that’d be the case. It’s always spot the …

Mr MITCHELL –     On top of that, Ma’am, we are suggesting that the

trigger in Mallinson regarding the question of lawyers

–

THE COURT –     In Mallinson.

[10]   I do not accept that this exchange indicates the Judge unfairly predetermined the case against Mr Ge. It demonstrates only that the Judge had turned her mind prior to the hearing to the issues that were likely to arise. Given the difficulty of defending this type of charge on a technical basis the Judge would have been alert to the prospect that the defence was likely to be based on an alleged breach of Mr Ge’s procedural rights.

[11]   Following the exchange set out above there is nothing in the transcript to indicate that the Judge had closed her mind to the prospect of the defences succeeding or that she was biased in some way towards the prosecution or against Mr Ge. This ground of appeal fails as a result.

Did the Judge err in her assessment that Mr Ge understood his right to consult a lawyer?

Relevant principles

[12]   This case raises issues relating to the rights contained in s 23(1)(b) of NZBORA. Section 23(1)(b) entitles every person detained under any enactment to consult and instruct a lawyer without delay and to be informed of that right. There is no dispute in the present case that Mr Ge was detained at the police station for the purpose of undergoing the evidential testing procedures prescribed in the Land Transport Act 1998. He was therefore entitled to legal advice by virtue of s 23(1)(b).

[13]   In R v Alo the Court of Appeal summarised the principles that apply in this context as follows:6

Police obligations to facilitate the right to counsel - general

[41] In R v Mallinson Richardson J set out the requirements of s 23(1)(b) in a series of steps:7

(1)Section 23(1)(b) declares that everyone who is arrested shall have (i) the right to consult and instruct a lawyer without delay; and (ii) the right to be informed of that right. Both rights arise on arrest and for the right to consult a lawyer without delay to be effective the right to be informed must be accorded immediately on arrest.

(2)The temporal expression ‘without delay’ is not synonymous with instantly or immediately. It is a negative injunction – not to delay – which in the absence of any further qualification necessarily imports as the test whether the delay is reasonable in all the circumstances having regard to the purpose of the right. The relevant interests which s 23(1)(b) protects are the ascertaining of one’s legal rights and obligations and representation by an independent adviser. If the right is to be effective it must be exercisable before the legitimate interests of the person who is arrested are jeopardised. That includes not prejudicing one’s legal position by words or conduct without the opportunity for legal advice.

(3)To be ‘informed’ of the right to a lawyer is to be made aware of it. The purpose is to provide a fair opportunity for the person arrested to consider and decide whether or not to exercise the right. The obligation on the arrester or other officer concerned is to communicate clearly to the person arrested that he or she has that right. No particular formula is required so long as the content of the right is brought home to the person arrested. To use the language of  s 23(1)(b) may save argument later. In the end, whether or not the obligation was satisfied must turn on what was said and what is to be implied from what was said in the particular context and circumstances. Even though no particular words are used the context may make it clear that the right to a lawyer is immediately exercisable, and so, in relation to any subsequent use of answers to police questioning, that the right is exercisable before any questioning begins.

(4)There are three elements of the protective right: the right to consult a lawyer, and the exercise of those rights without delay. In that regard it is important that anyone arrested be made aware that he or she can exercise the right to a lawyer without delay, that is as soon as reasonably possible in the circumstances. The requirement is not satisfied if the person arrested may reasonably be left with the

6      R v Alo [2007] NZCA 172, [2008] 1 NZLR 168.

7      R v Mallinson [1993] 1 NZLR 528 (CA).

impression that access to a lawyer is not available until any questioning is finished.

(5)Where the admissibility of a statement made to the police is challenged on the grounds of a specific breach of the Bill of Rights, the Court has to determine whether the accused was accorded the particular right claimed to have been breached. In that situation we consider that the ordinary rules as to onus of proof in relation to admission of such evidence should apply. Accordingly the burden of establishing the admissibility of the statement rests on the Crown just as it does where, as will often be the case, it is also challenged on fairness grounds. The standard of proof to be applied is a matter upon which full argument will be needed in an appropriate case.

Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused’s answers at face value. 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 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.

(6)The crucial question is whether it was brought home to the arrested person that he or she had those rights. That is not the same question as whether the police were justified in assuming that he or she did understand them. To look at it simply from the perspective of the police officer would mean that the person arrested who did not in fact understand the position would not be able to make an informed choice with respect to the exercise or waiver of the guaranteed right.

(7)Informing persons arrested of their s 23(1)(b) rights ordinarily carries with it the obvious implication that they are entitled to exercise those rights. But there is no duty on the police when informing persons arrested of their right to a lawyer to go on to give advice designed to facilitate the exercise of that right. The police officer may decide to do so in order to assist in the understanding of the right. But any duty to facilitate the manner of its exercise is not triggered until there is an indication by the person arrested of the desire to consult a lawyer. What, if anything, is then required of the police will depend in the particular circumstances.

(8)The Bill of Rights is not a technical document. It has to be applied in our society in a realistic way. The question is whether what was done gave practical effect in the particular circumstances to the rights protected by the particular guarantee, here s 23(1)(b). And anyone complaining of a breach of the Bill of Rights must, as the Canadian Courts say, invest the complaint with an air of reality.

(Emphasis added)

The Judge’s decision

[14]   The Judge determined that Mr Ge understood his entitlement to obtain legal advice for the following reasons:8

[31]      I am also of the view, even despite the defendant having had a significant amount of drink as shown by the proportion of alcohol in his blood, that he did have some understanding of those rights, because he expressed the wish to speak to his own lawyer, whom he said he tried but could not get hold of.

[32]      And I accepted the evidence of both constables that the rights were translated into Mandarin to the defendant on that night. His understanding certainly may have been hampered by the amount of alcohol he had drunk, but the fact that he said that he wanted to speak to a lawyer, his lawyer, in my view indicates to me that on the subjective analysis that he understood the rights that had been given to him. Accordingly, I reject the defence submission that those rights were not afforded to him, as I am of the clear and firm view that they were afforded to him in a fashion which he could and did understand on the night.

The argument on appeal

[15]   Mr Mitchell points out that the two police officers were reluctant to concede that Mr Ge was obviously severely intoxicated when they dealt with him. He contends, however, that the evidential breath test result and the analysis of Mr Ge’s blood sample both revealed the presence of significant quantities of alcohol in Mr Ge’s breath and blood. They demonstrate that he was significantly over the legal limit to be able to drive. The fact that Mr Ge had evidently fallen asleep in his vehicle whilst stopped at an intersection likewise suggests an advanced degree of intoxication. Mr Mitchell also points out that Mr Ge admitted when he gave evidence at trial that he had been very drunk on the evening of the incident and had little recollection of the events that had occurred.

[16]   Mr Mitchell says the level of Mr Ge’s intoxication raises a real risk that he did not understand he had the right to obtain the services of a lawyer. Mr Mitchell also submits that Mr Ge was consistent in saying that he wanted to obtain advice from a lawyer but he was never able to obtain such advice. Furthermore, Mr Mitchell contends that, once Constable Chan became aware Mr Ge was not fluent in English,

8      New Zealand Police v Ge, above n 2.

he had an obligation to find Mr Ge a lawyer who spoke Mandarin. This was the only realistic way in which he could ensure Mr Ge understood his NZBORA rights.

[17]   Mr Mitchell contends the procedure that Constable Chan adopted breached Mr Ge’s rights under s 23(1)(b) because he was never fully informed that he had a right to obtain legal advice.

Decision

[18]   Constable Chan was justifiably concerned that Mr Ge may not have understood the NZBORA rights that were explained to him at the roadside before he was required to go to the police station. This flows from the fact that, when the constable asked Mr Ge whether he understood his rights, he said “I don’t know”. This occurred on more than one occasion. Constable Chan therefore acted appropriately in asking Constable Wang to come to the police station so he could undertake translation duties.

[19]   The position was obviously different after Constable Wang arrived at the police station. Thereafter, and before Mr Ge underwent the evidential breath and blood tests, Constable Wang translated his NZBORA rights to him in Mandarin. These included his right to instruct and consult a lawyer without delay and in private.

[20]   Two aspects of the evidence persuade me the Judge was correct to conclude Mr Ge knew he was entitled to seek advice from a lawyer before proceeding with the evidential testing procedures. The first is that Mr Ge used his cellphone to try to contact his own lawyer after being given his NZBORA rights at the police station. He said his lawyer did not answer the call and he assumed his lawyer was asleep. The second is that he was shown a list of other lawyers but said he did not need them. Constable Wang’s evidence on this point is as follows:

Q.       How was his reactions to whatever you said to him that night?

A.He was nodding his head and respond to me in Chinese saying he need to speak to his lawyer.

Q.       Mmm.

A.And he, he said that his lawyer was asleep so he didn’t – pick up his phone call.

Q.       Okay.

A.       Something like that.

Q.       When he said that to you, what did you do?

A.I advise him there’s a free list of lawyers that he can choose from and he refused. He said: “No I didn’t need other lawyers.”

[21]   Mr Mitchell did not challenge the constable on these issues. Furthermore, Mr Ge said in evidence that he remembered trying to call his own lawyer but his lawyer did not answer the call. This demonstrates that Mr Ge knew he was entitled to contact his own lawyer when he was at the police station. The final sentence in the passage set out above also establishes that he also knew he could obtain advice from other lawyers but did not want to do that.

[22]   I do not accept Mr Mitchell’s submission that the extent to which Mr Ge was intoxicated meant the police had an obligation to ensure he obtained legal advice even though he said he did not need a lawyer other than his own. The evidence does not suggest Mr Ge was so intoxicated that he was incapable of understanding anything the police were telling him. Constable Chan had initially been able to converse with Mr Ge with little difficulty in English. He only became concerned when Mr Ge said he did not know whether he understood his rights. The police officers also knew that Mr Ge had tried unsuccessfully to contact his own lawyer. Once Mr Ge said he did not want to obtain advice from other lawyers the police were entitled to conclude he was prepared to undergo the testing procedure without legal advice.

[23]   Nor do I accept the police had an obligation to ensure Mr Ge was given access to a lawyer who spoke Mandarin. As I have already indicated, the evidence suggests he was able to converse with the officers in English to some degree. He should also have been able to converse in English with a lawyer on the Police list to the same degree.

[24]   The position may have been different if Mr Ge had spoken to one of the lawyers on the list and that lawyer was unable to explain Mr Ge’s rights to him without the assistance of an interpreter. Had this occurred it is likely that the police would have been required to locate either a lawyer who spoke Mandarin or an independent

interpreter who could assist the lawyer to give Mr Ge appropriate advice. However, this did not occur. Once Mr Ge was unable to contact his own lawyer he made an informed decision that he did not want to obtain advice from other lawyers. It follows that the police did not breach his rights under s 23(1)(b).

Result

[25]The appeal against conviction is dismissed.

Lang J