Kelly v Police

[2014] NZHC 1521

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-485-36 [2014] NZHC 1521

BETWEEN

KIERAN CHRISTOPHER KELLY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	1 July 2014
Counsel:	I Hard for the Appellant M Ferrier for the Respondent
Judgment:	2 July 2014

JUDGMENT OF MALLON J

Introduction

[1]      Mr Kelly was convicted, following a defended hearing in the District Court (Bergseng J),1 on a charge of refusing to permit a blood specimen to be taken when required to do so,2  this being his third or subsequent such offence.3     He appeals against his conviction.  He contends that the evidence did not support the finding that he had refused that request.

The evidence

Senior Constable Simpson

[2]      Senior Constable Simpson gave evidence at the District Court hearing.  At about 6.50 pm on 26 July 2013 he was notified of a potential drunk driver in his vicinity.  He then saw a vehicle travelling towards him.  The vehicle was wandering

1      Police v Kelly DC Masterton CRI-2013-035-829, 19 February 2014.

2      Land Transport Act 1998, s 60(1)(a).

3      Section 60(3).

KELLY v NEW ZEALAND POLICE [2014] NZHC 1521 [2 July 2014]

over the centre line.  He activated the lights and siren of his police car.  The vehicle veered into the opposite lane, requiring approaching cars to take evasive action.  It then pulled over.  Mr Kelly was seated in the driver’s seat. Another person and a dog were also in the vehicle.

[3]      Mr Kelly refused to give his name to the constable.   He was slurring his words, gave off a strong smell of alcohol and was uncooperative.  The constable told Mr Kelly he was required to undergo a breath test.  Mr Kelly would not agree to this and  said  that  he  was  not  the  driver.    The  constable  requested  that  Mr  Kelly accompany him back to the police station for an evidential breath and/or blood test. He read to Mr Kelly his rights under the New Zealand Bill of Rights Act 1990.  Mr Kelly did not acknowledge this but instead expressed concern for the other passenger and the dog.   Mr Kelly agreed to accompany the constable when informed that another officer  would  come to  attend  to  them,  but  wanted to  finish  smoking a cigarette first.

[4]      By the time they reached the police station Mr Kelly had still not given his name.  The constable had to assist Mr Kelly out of the car because he was unsteady on his feet.  At the station the constable again read Mr Kelly’s rights to him.   He signed a form to acknowledge this.  He wanted to exercise his right to speak to a lawyer.  He initially could not remember the name of his lawyer.  He thought it was “Mr Hart” and agreed that it was Mr Hard when this was suggested to him.   He spoke to Mr Hard for three to four minutes.

[5]      The constable commenced the evidential breath test procedure.   Mr Kelly blew into the device but the sample was insufficient.  He was asked to blow into the device again.  Mr Kelly talked over him in an obnoxious and belligerent manner as the constable asked him several times if would blow into the machine.  This took considerable time and the constable took this as a refusal.

[6]      Mr Kelly was requested to provide a blood sample and his rights were again read to him.  Mr Kelly would not acknowledge that his rights had been given to him. The constable filled in the police blood specimen form and read that to Mr Kelly. Mr Kelly refused to sign the form.  He was asked several times if he consented to

giving a specimen of blood.  He responded by talking about his dog.  The constable told him he would be arrested for refusing the request if he continued to refuse to consent.  Mr Kelly continued to be uncooperative and to talk over the constable. The constable considered that Mr Kelly had been given ample time to comply with the procedure, that he was very drunk and that he had been given more time than the average person to comply.  He took Mr Kelly’s lack of cooperation to be a refusal. Mr Kelly was again read his rights.   He said “yes” to the constable’s question of whether he wanted to speak to a lawyer.  He again spoke with Mr Hard.

Sergeant Rix

[7]      Senior Constable Simpson’s account of what took place at the police station was supported by Sergeant Rix.   He made the decision to observe the whole procedure.  He formed the view that Mr Kelly was extremely intoxicated and was being belligerent and difficult.   He confirmed that the constable gave Mr Kelly plenty of opportunity to comply, that the whole procedure took a lot longer than usual, and that Mr Kelly would not commit to a course of action.

Mr Kelly

[8]      Mr Kelly gave evidence in his defence.   He said that he had been taking tramadol, a medicine prescribed for him for his back, and that he had also drunk around half a dozen “cans” (I infer that he meant cans of beer although this is not clear) in the course of the afternoon.  His recollection of what had happened when he was stopped by the police was “all pretty vague”.  He did not recall being asked to undertake an evidential breath test nor to provide a blood sample.  He believed his memory was affected by the combination of the alcohol and the tramadol.

The law

[9]      If an evidential breath test fails to produce a result, a police officer may require the person to permit a medical officer to take a blood specimen from them.4

A person commits an offence who “fails or refuses” to permit the blood specimen to

4      Land Transport Act 1998, ss 70(1) and 72(1).

be taken after having been required to do so.5   Whether a person has failed or refused to provide the permission is a question of fact.   It is not necessary that a person actually says “no” or “I refuse”. A refusal to give permission can be demonstrated in other ways.  The question is whether the person is deliberately refusing permission however that is demonstrated.6

The District Court decision

[10]     The Judge found the charge proven.  On the issue of whether a refusal was proven (the only issue on this appeal), the Judge said this was a question of fact and he needed to look at all the circumstances to assess whether what occurred was a failure or refusal to permit a blood specimen to be taken.  He noted that Mr Kelly was uncooperative from the outset in refusing to provide his name and denying that he was the driver.  This continued at the police station and the evidence of the two police officers was that the procedures took longer than usual because of Mr Kelly’s lack of cooperation.  He also noted that Mr Kelly was able to remember his lawyer’s phone number and consulted him twice.

[11]     The Judge accepted Senior Constable Simpson’s evidence that Mr Kelly was clearly asked to permit the sample to be taken, that he was given the opportunity to consider the situation, and that he was advised of the consequences of doing so.  The Judge  considered  that  the  constable  properly  concluded  that  Mr  Kelly  had deliberately ignored the requests made of him.   Specific words were not required. The Judge found that Mr Kelly’s conduct amounted to a refusal.

Assessment of appeal

[12]     An appeal must be allowed where a Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.7    In this case, counsel for Mr Kelly submits that there was a real question as to whether Mr Kelly  was  acting  deliberately.    He  had  taken  tramadol  and  alcohol.    He  had mentioned to the police officer that he was on painkillers for his back.   He was

obviously confused as indicated by his constant references to his dog.   In these

5      Section 60(1)(a).

6      Neve v Police (1994) 11 CRNZ 374 (HC) at 378.

7      Criminal Procedure Act 2011, s 232(2)(b). Miscarriage of justice is defined in s 232(4).

circumstances,  counsel  submits  that  the  police  officer  needed  to  be  sure  that Mr Kelly  understood  what  was  being  asked  of  him,  either  by  putting  to  him categorically whether Mr Kelly was refusing the request or by calling a doctor to directly test Mr Kelly’s willingness to provide the blood specimen.

[13]     These propositions were put to the police officers in cross examination in the District Court.  The Judge noted that Senior Constable Simpson is an experienced police officer, that he was clear that Mr Kelly was being uncooperative and that Mr Kelly was given ample opportunity to comply.  The Judge also referred to Sergeant Rix’s experience of 17 years and his assessment that Mr Kelly was being obstructive, that he would not make a clear choice, and that considerable time was spent trying to explain the process to Mr Kelly.  In my view the Judge was correct to reject these propositions in light of the officers’ evidence.

[14]     There is no medical evidence to support the contention that the quantity of alcohol Mr Kelly says he consumed, combined with the tramadol he had taken, would have rendered him incapable of understanding what was being asked of him. His own evidence is simply consistent with a hazy recollection of events because of the effects of alcohol and/or medicine, rather than an inability to understand what was being asked of him at the time.  Mr Kelly was able to understand that he could call a lawyer and he did so.  If he could understand that, it is difficult to see any basis for concluding that he could not understand that he was being asked to permit a blood specimen to be taken.

[15]     No particular expression of words needed to be used to make the request, providing the request was clearly made and an adequate opportunity was provided to comply with it.  The evidence of the officers was that it was.  Because of Mr Kelly’s intoxication, he was asked several times if he would permit the blood specimen to be taken and the consequences of not doing so were explained to him.   The police officers were entitled to conclude that Mr Kelly was refusing to permit the blood sample to be taken.  No more was required.

[16]     In particular, it was not necessary to test Mr Kelly’s refusal by having a

doctor attend the police station.  Failing or refusing the police officer’s request is an

offence.  Failing or refusing to permit a medical practitioner to take a blood sample is a separate offence.8   A police officer is not required to go to this next step, which involves cost to the State and inconvenience to the doctor, when a person has refused the police officer’s request.

[17]     For these reasons I am satisfied that the Judge did not err in his assessment of the evidence.   He was correct to find proven that Mr Kelly refused the request to permit a blood specimen to be taken.  No miscarriage of justice occurred.

Result

[18]     The appeal is dismissed.

Mallon J

8      Land Transport Act 1998, ss 72(2) and 60(1)(b).