He v Police
[2022] NZHC 2618
•11 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-258
[2022] NZHC 2618
BETWEEN XIAO HE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 October 2022 Appearances:
C Mitchell for appellant
P J O’Boyle for respondent
Date of judgment:
11 October 2022
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 11 October 2022 at 2.00pm.
…………………………
Registrar/Deputy Registrar
Counsel/Solicitors:
C Mitchell, Barrister, Auckland Meredith Connell, Auckland
HE v POLICE [2022] NZHC 2618 [11 October 2022]
[1] Xiao He appeals the reserved decision of Judge S J Bonnar QC in the District Court at Auckland on 30 September 2021,1 finding Mr He guilty of driving with excess blood-alcohol,2 being 146 milligrams of alcohol per 100 millilitres of blood.
Background
[2] Mr He and two passengers were stopped in his car at a police checkpoint in Auckland’s Mercury Lane at 11.45 pm on 20 December 2019. He was alleged to have failed passive, screening and evidential breath tests, the last after a brief delay in the back of the police car caused by Mr He interrupting the constable’s administration of the last test’s procedure. A supervising sergeant interceded, initially getting into the front seat of the car to explain the constable needed to go through the procedure, before leaving the car to recover Mr He’s cellphone from him after Mr He recorded part of their interaction.
[3] In response to the constable’s subsequent explanation of his rights, Mr He then affirmed he wished to speak to a lawyer. The constable called a rostered solicitor from her own cellphone, explained Mr He was undergoing an evidential breath-alcohol procedure, handed the cellphone to Mr He and exited the car. At the conclusion of the call, Mr He opened the car door and handed the cellphone back to the constable. The constable got back into the car and concluded the procedure, asking Mr He to acknowledge he was advised of his rights, which Mr He declined to do.
[4] Mr He then accompanied the constable to the Auckland Central police station, where his blood specimen was obtained. There is no dispute with the blood testing procedure or result.
Judgment under appeal
[5] At issue was if the blood test was admissible, if obtained without prefatory breath tests;3 in breach of Mr He’s rights to legal counsel on detention;4 or under threat
1 Police v Xiao He [2021] NZDC 19292.
2 Land Transport Act 1998, s 56(2): the offence is driving while the proportion of alcohol in the person’s blood exceeds 80 milligrams of alcohol per 100 millilitres of blood.
3 Sections 69 and 72.
4 New Zealand Bill of Rights Act 1990, s 23(1)(b).
of arrest without advice of the availability of bail.5 After an extensive review of the evidence given at trial by the constable, Mr He and one of his passengers — including a 15-second video clip recorded by Mr He on his cellphone, of the sergeant’s intercession in the police car before the sergeant removed his cellphone from him — Judge Bonnar was satisfied the breath tests were conducted on and failed by Mr He;6 the right to legal counsel inherently being to consult in private,7 he was afforded opportunity to consult with a solicitor in private;8 and the blood test was not “improperly obtained”.9 By ‘improperly obtained’, the Judge was referring to the statutory test for exclusion of evidence.10
[6] For Mr He, Colin Mitchell argues, from a close examination of the notes of evidence taken before Judge Bonnar, the Judge erred in concluding a reasonable person in Mr He’s position would not have understood he was at risk of arrest.11 Relying on Ellicock v Courtney,12 Mr Mitchell contends the circumstances of the sergeant’s intercession, comprehended by Mr He as threatening his arrest, raised “a case for unfairness” only open to negation by calling the sergeant to give evidence, which was anticipated but waived by the prosecution on the morning of trial.
Approach on appeal
[7] Mr He has a first appeal right against his conviction to this Court.13 I must allow the appeal if satisfied either the Judge “erred in his … assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or “a miscarriage of justice has occurred for any reason”. Otherwise I must dismiss the appeal.14
[8] By ‘miscarriage of justice’ is meant something has occurred in relation to trial to create a real risk against a more favourable outcome for Mr He, or has resulted in
5 Police v Xiao He, above n 1, at [15].
6 At [80].
7 At [82], citing Police v Kohler [1993] 3 NZLR 129 (CA).
8 At [84].
9 At [110].
10 At [99], referring to s 30 of the Evidence Act 1990.
11 Police v Xiao He, above n 1, at [108].
12 Ellicock v Courtney (1992) 8 CRNZ 390 (HC) at 398, citing R v Noble (1986) 2 CRNZ 583 (HC).
13 Criminal Procedure Act 2011, ss 229(1) and 230(1)(b).
14 Section 232.
an unfair trial or a nullity.15 The appeal proceeds by way of rehearing, in which I am to form my own view of the facts and determine the appeal accordingly,16 while taking into account any advantages the trial judge may have had.17 Mr He must show error has been made. The threshold is high; not every error will amount to a miscarriage of justice.18
Discussion
[9]The Judge assessed the interaction between Mr He and the sergeant:19
There is no evidence here that any officer threatened Mr He with arrest for non-compliance. Constable Si’a’s evidence was that Sergeant Schoen was just telling Mr He that he needed to “listen” and that the sergeant’s voice is “firm, but that’s just him”. The constable’s evidence is consistent with my assessment of the sergeant’s demeanour and tone as seen in the brief video recording taken by Mr He.
The constable could not recall, under cross-examination, any mention being made by the sergeant of the possibility of arrest.
In his evidence, Mr He did not suggest that any officer threatened him with or mentioned arrest. Mr Mitchell asked Mr He:
Did the sergeant say anything to you as advice or whatever about your dealings with the officer on the procedures?
Mr He replied:
Not really. The sergeant only spoke to me while both the sergeant and me were in, were in the vehicle, we were disputing about the 10 minutes break.
Although Mr He described the sergeant’s conduct, in his view, as “'very aggressive”, he said, in relation to the taking away of his telephone:
A: I felt threatened and just scared because I think if l don’t follow up his advice, I will be under arrest.
Q: But that (inaudible) he never told you you were going to be arrested? A: He didn’t say that but his behaviour, I felt like that.
15 Section 232(4); Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [38]–[48], citing R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110], Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30] and Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [47].
16 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].
17 At [38]–[40].
18 Otis v Police [2019] NZCA 231 at [4], citing McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38]; Murdoch v Police [2019] NZCA 366 at [12]; and Williams v R [2020] NZCA 666 at [8].
19 Police v Xiao He, above n 1, at [101]–[107].
He went on to say that he co-operated after the argument about the 10 minute period and the taking of his phone because he “could be under arrest if l don't follow up.”
As noted previously, Mr He maintained that he was scared as a result of the sergeant’s manner, including during the period of the video recording. My assessment of the recording is set out at paragraphs [63] and [64] above. I do not consider the sergeant’s words or manner to be oppressive or overbearing. I consider his approach to be moderately firm but calm throughout. Nor did I assess Mr He as being fearful or scared. On the contrary, he appeared somewhat heated and argumentative.
[10]The Judge’s assessment of the video recording was:20
The footage is a very brief 15 second clip. It shows the sergeant seated in the driver’s seat of the vehicle. Mr He, taking the video, is obviously seated in the rear left hand passenger seat of the vehicle. The clip commences with the sergeant reaching back and saying: “Excuse me”. Mr He can be heard saying “Say again — comply to New Zealand lawyer or comply to New Zealand officer.” The sergeant responds “You do as we say right now.” Mr He replies “No, I comply to my lawyer. If you touch me or arrest me ... ”[.] The sergeant says “Can I have your phone please?” Mr He responds “No, I call my lawyer”. The sergeant says “Can I have, take your phone please?” and the clip ends.
The sergeant appears calm throughout, although possibly somewhat frustrated, and his words “You do as we say right now” are spoken in a moderately forceful tone. Mr He’s tone is also moderately forceful and, from his words and tone, he appears to be somewhat heated and argumentative. On the face of the recording, he does not appear to be acting in a fearful or submissive manner.
[11]The Judge concluded:21
In the absence of evidence of any threat or possibility of arrest by any of the Police officers involved, I consider that there was no obligation on the officers to mention the possibility of bail. Even if Mr He was indeed fearful that he may be arrested if he did not comply, a subjective and unexpressed fear on his part, in the absence of any oppressive conduct or misrepresentation on the part of the Police which would cause a person in his place to reasonably consider that he was at risk of arrest, could not, in my view, give rise to an obligation on the part of the officers to raise the possibility of bail.
[12] The relevance of “the possibility of bail” springs from the Court of Appeal’s explanation, if possibility of arrest for refusing a blood-alcohol test arises, so too should possibility of bail be explained, to avoid “a plain risk that consent to a blood specimen will be extracted by what is tantamount to misrepresentation”, being that
20 At [63]–[64].
21 At [108].
refusal would lead to custody.22 Even if the last binding word on the subject,23 that now is to be understood in the context of both entitlements on arrest or detention contained in the New Zealand Bill of Rights Act’s s 30,24 and the Evidence Act’s s 30, which provides for exclusion of evidence found, on the balance of probabilities, to be improperly obtained if:25
… proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.
[13] Ellicock, relied on by Mr Mitchell, denies “automatic vitiation” of a consensual blood-alcohol test’s admissibility in the absence of reference to the possibility of bail where the question of arrest arises. Instead:26
Where the evidence discloses a credible narrative of material capable of supporting the conclusion that consent (whether to accompany, or to take an evidential test, or to give a blood sample) was obtained unfairly, the prosecution must exclude that proposition as a reasonable possibility. Unfairness may include misrepresentation, coercion, improper pressure, or an inducement. The ultimate question is whether there is a reasonable possibility of a causative link between the words or conduct complained of and the particular evidence relied upon, usually the result of the evidential breath test, or the blood test. I have stated the proposition in terms of an onus on the prosecution to negate unfairness, once the circumstances raise a case for unfairness; …
[14] The Judge’s finding there was no ‘threat or possibility of arrest by any of the Police officers involved” necessarily means he found no ‘credible narrative’ to support a conclusion Mr He’s consent to provide a blood-alcohol test was obtained unfairly, and therefore no reasonable possibility of the requisite ‘causative link’. Although without evidence from the sergeant, the Judge had both the constable’s and Mr He’s evidence. The constable was present throughout the sergeant’s interaction with Mr He; Mr He’s evidence included the video of part of that interaction.
[15] The best that can be said for Mr He’s contention of unfairness is — 17 months after the event, cross-examined if the sergeant may have mentioned Mr He’s arrest or
22 Auckland City Council v Dixon [1985] 2 NZLR 489 (CA) at 492.
23 Langton v Police [1993] 1 NZLR 655 (CA) at 658: if bail’s availability must be mentioned on warning of arrest “remain[s] open for further consideration if the need arises”.
24 R v Goodwin [1993] 2 NZLR 153 (CA) at 166–167.
25 Evidence Act, s 30(2)(b).
26 Ellicock v Courtney, above n 12, at 398.
detention — the constable could not remember or recall what words were said. There is no evidence either police officer indicated Mr He’s arrest was in prospect; rather, given Mr He’s own use of the word “arrest” at the time, the inference is he independently comprehended arrest was a possibility. Mr Mitchell says that does not account for whatever may have been said by the sergeant outside the car to Mr He, unfairly to bring about Mr He’s subsequent compliance.
[16] Only after the fact, in giving evidence before the Judge, did Mr He attribute his comprehension of arrest to the sergeant’s “behaviour”. Mr He’s use of the word “arrest” at the time was in proactively asserting his right to counsel — “heated and argumentative[ly]”, to paraphrase the Judge — prior to the sergeant’s demand for his cellphone, rather than reflecting anything said to him by either police officer. At the point of the sergeant’s intercession, the constable had not formally specified Mr He’s right to counsel.
[17] Further, Mr He’s evidence was he and the sergeant were only “disputing” Mr He’s contribution to the test procedure’s delay, and not addressing the constable’s administration of the procedure. That confirmed the constable’s evidence the sergeant “was just saying [Mr He] needed to listen”. Anything Mr He may have taken from the sergeant’s intercession was ameliorated by the subsequent exercise of his right to consult counsel.
[18] There is therefore no reasonable basis to contend for any ‘causative link’ between the sergeant’s behaviour and Mr He’s compliance in providing a blood sample. The circumstances do not raise any case for unfairness. Rather the appeal appears a fishing expedition — looking for, rather than at, evidence27 — the sergeant nonetheless may have provided a basis for such a link.
[19] Even if so, the presence of such a link only would be effective to render the blood sample inadmissible if its exclusion achieves proportionate balance between the weight of the impropriety and “the need for an effective and credible system of justice”.28 Here, the weight of any impropriety is in raising the question if bail’s
27 Re Securitibank (No 31) (1984) 1 PRNZ 514 (HC) at 519–520.
28 Evidence Act, s 30(2)(b).
availability also ought to have been mentioned. But, as the Court of Appeal has explained:29
[t]here is a great difference between inducing consent to a blood test by the threat of arrest … , and persuading a driver to accompany by warning him of the consequences of refusal.
In Mr He’s circumstances, the sergeant’s secondary and essentially supportive role in the test procedure administration, taken together with Mr He’s subsequent access to legal counsel, makes any impropriety insubstantial.
[20] That particularly is so in terms of s 30(3)’s factors when “a refusal to take a blood test [has] the same consequences as driving with excess blood alcohol”.30 Thus any improper threat of arrest (as may be the case if bail is not mentioned) does not directly impugn the admissibility of the blood sample. And driving with excess blood-alcohol levels is serious offending under the Land Transport Act, with significant safety and social consequences. Even if there was a causative link between police conduct and Mr He’s consent to give a blood sample, his apprehension of arrest would only have relied on so slight an impropriety by police as to be unable to overcome the countervailing weight of a reliable and workable justice system.
[21] Mr He’s blood sample accordingly is admissible. No miscarriage of justice has occurred, still less on the Judge’s assessment of the evidence. The Judge did not err.
Result
[22]The appeal is dismissed.
—Jagose J
29 Langton v Police, above n 22, at 658.
30 Police v Bishop [1991] 2 NZLR 388 (CA) at 391. See Land Transport Act, ss 58–60.
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