Kaiki (aka Smith) v Police
[2020] NZHC 980
•13 May 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-000015
[2020] NZHC 980
BETWEEN LYNETTE HINE-ITE-AHANGA KAIKI (AKA SMITH)
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 12 May 2020 Appearances:
A Shaw for the Appellant
D Moore for the Respondent
Judgment:
13 May 2020
JUDGMENT OF COOKE J
[1] The appellant, Ms Smith, was convicted of one charge of driving with excess blood alcohol (third or subsequent) before Judge Mill in the District Court at Porirua.1 She was sentenced in February 2020 to nine months’ supervision, three months’ community detention and disqualified from driving for one year and one day.2
[2] Ms Smith appeals her conviction on the grounds the evidential blood test result is inadmissible pursuant to s 30 of the Evidence Act 2006 as it was obtained in breach of her rights under ss 22 and 23 of the New Zealand Bill of Rights Act 1990 (BORA).
1 New Zealand Police v Kaiki [2019] NZDC 16949; Land Transport Act 1998, ss 56(2) and 56(4), maximum penalty two years’ imprisonment or $6,000 fine.
2 New Zealand Police v Kaiki [2019] NZDC 5351.
SMITH v NEW ZEALAND POLICE [2020] NZHC 980 [13 May 2020]
Factual background
[3] The facts are largely undisputed. It is accepted that Ms Smith was involved in a car collision while driving in Titahi Bay shortly before 3.30 pm on Wednesday 31 October 2018. In the aftermath of the collision, two eye witnesses reported Ms Smith appeared to be intoxicated. She herself accepts she had been drinking. Police were called to the scene and informed one of the parties involved in the crash was believed to be under the influence of alcohol.
[4] One of the attending officers approached Ms Smith and required her to undergo a breath screening test pursuant to s 68 of the Land Transport Act 1998 (the Act). There is no challenge to the administration of the roadside test. The test showed a result of over 400. Following a standard form breath and blood alcohol procedure sheet, the officer advised her of the following:
(a)She had the right to remain silent and did not have to make a statement,
(b)Anything she did say would be recorded and could be given as evidence in Court,
(c)She had the right to speak to a lawyer without delay and in private before deciding to answer any questions and the Police had a list of lawyers she could speak to for no charge.
[5] At that time she was not, contrary to the procedure set out in a standard form used by police, advised that those rights would continue throughout the evidential testing procedures. In evidence the officer explained that he had not read out the final two bullet points on the procedure sheet corresponding to those rights as he did not have the procedure sheet before him. The officer then advised her that she was required to accompany him to the Porirua Police Station for the purpose of an evidential breath or blood test pursuant to s 69 of the Act. She agreed to do so and accompanied him to the station. The officer recorded the time of the agreement to accompany on the form as 3.57 pm.
[6] At the Porirua Police Station the officer continued with the standard form breath and blood alcohol procedure sheet. The form contains a section “Bill of Rights Act 1990 – Evidential Breath Test Advice”. In accordance with the sheet, the officer advised Ms Smith of her rights under BORA:
(a)The right to remain silent, that she was not required to make a statement and any statement will be recorded and might be given as evidence
(b)She had the right to speak with a lawyer without delay and in private before answering any questions, and Police had a list of lawyers she could speak to for free,
(c)That those rights would continue throughout the test procedure, and
(d)That if she wished to speak to a lawyer a phone would be made available.
[7] After the list of rights the form contains a section “would you like to speak to a lawyer?” and the officer circled “No”, being Ms Smith’s answer. In the section “comment” the officer recorded her response, “Sweet”. The next section of the form provides an explanation of the evidential breath test requirement and procedure. The officer read out the section, and in accordance with the form, again asked if she would like to speak to a lawyer. The officer circled “no”. Ms Smith signed the form immediately below the section in acknowledgment of her understanding. The form records she signed at 3.55 pm.
[8] The officer then initiated the evidential breath testing procedures. Ms Smith blew into the tube but the device returned a result of “insufficient sample”. Ms Smith continually attempted to give a sample but the device continually returned a result of insufficient sample. In evidence the officer explained in evidence that each sample was of insufficient volume and length to record a result. The section of the form titled “evidential breath test” records the test was first conducted at 3.57 pm. The officer then circled “incomplete test” and wrote “unable to provide sufficient sample after several attempts. Did not want to blow further”. In evidence the officer said that after
Ms Smith was unable to produce a sufficient sample, he asked her if she wanted to blow further and she said she did not. The officer then determined it was appropriate to commence the procedure for requesting a blood sample pursuant to s 70 of the Act.
[9] The officer proceeded to read the explanation and rights recorded in the section of the sheet entitled “No EBT result: rights to be read”. The officer explained that she would be detained for the purpose of a blood test due to the incomplete evidential breath test and again advised her of her rights. The officer again asked if she would like to speak to a lawyer and she declined. The officer circled “no” on the sheet. Ms Smith signed the form acknowledging she had been advised of the reason for her detention and rights. The form records she signed in acknowledgment at 4.04 pm.
[10] There is an issue about the wording of the rights as set out in Part I of the form read out to Ms Smith. The form recorded the rights in the following way:
· You have been detained for the purpose of the blood test procedure for alcohol as a result of an incomplete, failed or refused evidential breath test.
· You have the right to remain silent.
· You do not have to make any statement.
· Anything you say will be recorded and may be given in evidence in court.
· These rights will continue throughout the blood alcohol testing procedure.
· You have the right to speak with a lawyer without delay and in private before deciding to answer any questions.
· Police have a list of lawyers you may speak to for free.
· If you wish to speak to a lawyer a telephone will be made available to you for that purpose as soon as practicable. You will be allowed a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you.
[11] Mr Shaw points out that the statement that “these rights will continue throughout the blood alcohol testing procedure” at the end of the first box is either in the wrong place, or should also have been repeated after the set of rights concerning the right to consult a lawyer in the second box.
[12] The officer then turned to section M of the form and explained a blood specimen would be required and that she would be liable to pay a blood test fee. The form records that Ms Smith consented to the taking of the sample at 4.05 pm.
[13] A nurse was called to the station to take a blood sample. Evidently it took the nurse some time to arrive. The evidential blood alcohol check sheet records a sample of blood was not taken until 5.01 pm. There was no repetition of the advice of the appellant’s rights prior to the blood test being taken.
[14] The sample was later delivered to ESR for analysis. The ESR analysis produced a result of 172 milligrams of alcohol per 100 millilitres of blood.
District Court decision
[15] There were two key issues before the District Court.3 First, whether the Police had proven beyond reasonable doubt that Ms Smith failed the evidential breath test, such that it was appropriate to seek a blood sample. Second, whether the blood test result was inadmissible on the grounds it was obtained in breach of Ms Smith’s rights under BORA.
[16] Before the District Court Mr Shaw for Ms Smith submitted that she was insufficiently afforded the right to consult and instruct a lawyer without delay.4 It was argued that the officer failed to inform her of this right at the roadside, and in each of the three occasions that he advised her of her rights he failed to explain them in a manner she was able to understand.5 In addition it was argued that the form, and the advice provided, failed to explain to Ms Smith that her rights in relation to legal advice subsisted throughout.
[17] The Judge accepted that, after the breath screening test at the roadside, the Senior Constable did not advise that her rights to speak to a lawyer continued throughout the testing procedures and that a phone would be made available to her
3 New Zealand Police v Kaiki, above n 1, at [17].
4 New Zealand Bill of Rights Act 1990, s 23(1)(b).
5 New Zealand Police v Kaiki, above n 1, at [21].
should she wish to consult a lawyer.6 At that time she was, therefore, not fully informed as to how her right would be facilitated. The Judge did not accept that this omission resulted in a breach of her rights as the omission was not in bad faith and was addressed prior to any evidential steps taken at the station.7
[18] The Judge further found she was properly given her rights, including the right to consult and instruct a lawyer, upon returning to the station. She was told once shortly before 3.55 pm, and again at approximately 4 pm after being told she was required to undergo the blood test procedure. The Judge found that on each occasion, notwithstanding her intoxication, she had sufficient capacity to understand those rights. The Judge accepted that Ms Smith was not told that she could ask to consult a lawyer between the request for blood at 4.05 pm and the nurse’s arrival and taking of blood shortly after 5 pm.8 The Judge held there was no breach of her rights in those circumstances:
[48] Best practice would have been for the officer to advise her of the continuing rights to consult and instruct during the whole of the procedure when he gave her rights again at 4.04 pm. On the other hand, she had already been advised of that right and that it would continue throughout the procedure at 3.55 pm, less than 10 minutes earlier.
[49] So at 4.04 pm she was advised blood would be taken, and was again told she had the right to consult and instruct a lawyer without delay and in private.
[50] This is an example of it being brought to her attention that the right in fact was ongoing throughout the testing procedure. It was a check to see if the defendant wished to see a lawyer notwithstanding she had already said she did not.
[51] While a failure to remind her of the ongoing nature of the right may not be best practice, she had already been made aware of its ongoing nature just 10 minutes earlier…There is no breach of the rights in the officer not reminding her again in those circumstances.
[19] The Judge was satisfied that Senior Constable Graham lawfully required her to undergo an evidential breath test and there had been sufficient time allowed for her to blow into the device fully and properly as could be seen from her attempting to do
6 At [25].
7 At [31].
8 At [22].
so on seven occasions.9 The Judge was satisfied all the elements of the charge were proven beyond reasonable doubt.
Relevant law
Approach to appeal
[20] An appeal against conviction in a Judge-alone trial is governed by s 232 of the Criminal Procedure Act 2011. This appeal is brought under s 232(2)(b):
232 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a) in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.
(c) in any case, a miscarriage of justice has occurred for any reason.
…
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[21] The Supreme Court re-examined the approach to assessment of evidence for conviction appeals in Sena v New Zealand Police.10 The Court held that appeals in such cases should proceed by way of rehearing in accordance with the well-established principles canvassed in Austin, Nichols & Co Ltd v Stitchting Lodestar.11
9 At [59].
10 Sena v New Zealand Police [2019] NZSC 55.
11 At [32]; and Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
Issues on appeal
[22] The essential argument on appeal is that the evidential blood test result was improperly obtained within the meaning of s 30 of the Evidence Act 2006 and ought to have been ruled inadmissible. Mr Shaw for Ms Smith submits the result was obtained in circumstances involving breaches of Ms Smith’s right to counsel and while she was subject to arbitrary detention.
[23] Section 30 of the Evidence Act applies when an issue of improperly obtained evidence is raised. A Judge must first find, on the balance of probabilities, whether the evidence was improperly obtained. If so, the Judge must then determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process. Section 30(5) defines “improperly obtained” evidence as including evidence obtained in breach of BORA. There must be a causal connection between the breach of the right and the obtaining of the evidence.12
[24] Section 23(1)(b) of BORA provides that everyone who is arrested or detained shall have the right to consult and instruct a lawyer without delay and to be informed of that right. It is insufficient for the police to merely recite those rights to a suspect. Police must also demonstrate that the defendant understood those rights,13 and that they took reasonable steps to correct any misapprehension of those rights by a defendant.14
Continuing right to legal advice
[25] Mr Shaw submits the enforcement officer breached s 23(1)(b) of BORA by failing to advise her, including immediately prior to her blood test that her right to counsel continued throughout the blood alcohol testing procedure and this deficiency was effectively repeated at the station, citing Rae v Police.15 Rae is the lead authority on the right to legal advice during breath and blood alcohol testing procedures. The case held that a motorist has a continuing right to consult legal counsel throughout the breath and blood alcohol testing procedures and the enforcement officer is obligated
12 See for example R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 at [47].
13 R v Mallinson [1993] 1 NZLR 528 (CA).
14 R v Liu [2015] NZHC 746; R v Shriek [1997] 2 NZLR 139 (CA).
15 Rae v Police [2000] 3 NZLR 452 (CA) at [45].
to facilitate the exercise of the right throughout.16 The Court held the extent of the facilitation will depend on the circumstances. Ultimately, there must be a fair opportunity for the detained person to consider and decide whether or not to exercise the right.17
[26] I do not consider that there has been a material breach of the right leading to the potential operation of s 30. The full expression of the rights were not given at the roadside, the statements read from the form did not expressly state that the rights to receive legal advice subsisted throughout, and there was a gap of approximately an hour before the nurse arrived during which the rights were not repeated. But the question of compliance needs to be considered in a substantive rather than formalistic way. Ms Smith was informed at 3.55 pm that she had a right to speak to a lawyer and that right continued throughout the breath or blood alcohol test procedure. At 4.04 pm she was again advised of her right to speak to a lawyer and asked if she would like to speak to a lawyer. The officer was not obliged to facilitate her right by telling her of it a further time. There was ample opportunity for her to consider and decide whether she wished to consult a lawyer. As I explain below there are issues with the content of the form used to advise Ms Smith of her rights. But the essence of the rights were still outlined.
[27] It seems to me that the argument should really focus on to whether Ms Smith understood that she had those rights throughout the process given the technical issues raised by Mr Shaw, which is the issue to which I turn.
Did Ms Smith understand her rights?
[28] Mr Shaw submits the enforcement officer failed to discharge the obligation to ensure Ms Smith understood her rights. In particular Mr Shaw submits the officer ought to have directly asked her whether she understood the rights, particularly in circumstances where she had been drinking. In evidence Ms Smith said that she did not understand that she could speak to a lawyer while waiting for the nurse to take the
16 At [57].
17 At [57].
blood test. The District Court Judge did not accept her evidence on this point, however.18 In substance the appeal is a challenge to this factual finding.
[29] The Court of Appeal in R v Mallison discussed the obligation to “inform” an accused of their right to consult a lawyer.19 The Court held that, while no particular words are required, the content of the right must be “brought home”.20 The Court observed:21
(a)Generally, where the accused responds affirmatively to the question whether he or she understands the position, there is no reason for not taking the accused’s answers at face value.
(b)If the person arrested is intoxicated, or under the influence of drugs or appears to have a mental or physical disability something more than a bare statement of the s 23(1)(b) right is likely to be required.
(c)In the end whether or not the obligation was satisfied must turn on what was said and what is to be implied in the particular context and circumstances, bearing in mind the Bill of Rights must be applied in a realistic way.
[30] I accept Mr Shaw’s point that the conveying of the right must take place in a “real and practicable way”, and that that is best secured by a direct personal engagement on that question.22 I also accept that the officer here has simply gone through the procedures, that an error was made when he did so, and that there are potential issues with the form. The section at “I” does not make it clear that the rights to a lawyer continue through the blood alcohol testing procedure, and at no point does the form ask the question “do you understand your rights?” which may well be appropriate. I accordingly accept Mr Shaw’s point that there are apparent shortcomings with this material.
18 New Zealand Police v Kaiki, above n 1, at [46], [52] and [54].
19 R v Mallison, above n 13, at 531.
20 At 531.
21 At 531.
22 See Rae v Police, above n 15, at [57].
[31] Moreover if an officer merely goes through the motions, rather than actively engaging with the detained person, there is a risk that a finding will be made that the detained person has not been informed of their rights in a way that demonstrates they have been brought home. But it will depend on the circumstances, as even following a relatively routine procedure could adequately convey the rights to the affected person.
[32] Here I am of the view that there was no error by the Judge when he made the factual findings that Ms Smith understood her rights, and that the enforcement officer discharged the obligation to inform Ms Smith of her rights. Ms Smith was informed of her right to consult a lawyer three times – at the roadside, upon arrival of the station, and just after the failed evidential breath test. She was asked if she wanted to consult a lawyer three times. Ms Smith signed the breath and blood alcohol procedure sheet on two occasions to confirm the officer had advised her of her rights. I do not consider there is a basis to overturn the Judge’s factual findings on these issues. There was a proper factual foundation for them.
Arbitrary detention
[33] Finally Mr Shaw submits that Ms Smith’s right to be free from arbitrary detention under s 22 of the BORA was breached by the enforcement officer during the breath and blood alcohol testing procedures.23 Mr Shaw contends that the detention became arbitrary from the moment the officer failed to remind the appellant that she could consult a lawyer and that this would go into the mix of considerations under s 30.
[34] I accept there could be a breach of s 22 if there was a breach of s 23, and this may be relevant to the s 30 assessment. But as I have found, there was no breach of s 23. The lawful detention continued throughout the breath and blood testing procedures.24
23 New Zealand Bill of Rights Act 1990, s 22.
24 See, for example, Rae v Police, above n 15, at [44].
Conclusion
[35] In my view the evidence was lawfully obtained. There was no breach of ss 22 or 23 in obtaining the evidential blood test results. So no issue arises as to whether the evidence ought to be excluded by way of s 30.
[36]For these reasons the appeal is dismissed.
Cooke J
Solicitors:
A Shaw, Wellington for Appellant
G J Burston, Crown Solicitor, Wellington for the Respondent
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