Harwood v The Queen
[2005] NZCA 243
•20 October 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA129/05
THE QUEEN
v
KAREN MAREE HARWOOD
Hearing:17 October 2005
Court:Hammond, William Young and Panckhurst JJ
Counsel:R A Walden for Applicant
A M Powell for Crown
Judgment:20 October 2005
JUDGMENT OF THE COURT
THE APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION IS DISMISSED.
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REASONS
(Given by Panckhurst J)
[1] This is an application for leave to appeal against conviction, which is governed by s 144(3) of the Summary Proceedings Act 1957. The intending appellant must demonstrate the existence of a question of law which, by reason of its general and public importance or for any other reason, ought to be the subject-matter of a second appeal.
[2] Ms Harwood was taken to a police station for the purpose of undergoing an evidential breath or blood test. She was informed of her rights in terms of s 23(1)(b) of the New Zealand Bill of Rights Act 1990. A private opportunity to telephone her lawyer was extended to her. In fact, she did not obtain legal advice, but that circumstance was not conveyed to the police officer who was dealing with Ms Harwood.
[3] Mr Walden contended that the case raised a question of law, being whether the police constable had a duty to ensure that the right to receive legal advice had been successfully exercised, at least where the suspect was under a disability. Here, the disability was said to arise through consumption of alcohol, being in a coercive environment and one which was unfamiliar.
[4] We do not accept that the case raises a question of law. The principles set out in Mallinson v The Queen [1993] 1 NZLR 528 (CA) guide the exercise of the right guaranteed by s 23(1)(b). This case involved a straight-forward application of those principles. We are not disposed to revisit that authority, as was suggested by Mr Walden, in this instance.
Solicitors:
A M Sceats, Gisborne for Applicant
Crown Law Office, Wellington
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