| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA661/2017 [2020] NZCA 245 |
| BETWEEN | ZANE CHRISTOPHER KERR |
| AND | NEW ZEALAND POLICE |
| Hearing: | 31 July 2019 |
Court: | Clifford, Gilbert and Wild JJ |
Counsel: | J D Lucas and S J Jamieson for Appellant |
Judgment: | 23 June 2020 at 3 pm |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe conviction is quashed.
CA judgment of acquittal is entered.
____________________________________________________________________
REASONS OF THE COURT
Table of Contents
Introduction [1]
Facts [7]
Judgments below [15]
Arguments on appeal [18]
Mr Kerr and the New Zealand Law Society [18]
The Police [20]
The Minister of Justice [23]
The Criminal Bar Association [24]
Analysis [25]
Section 23(1)(b) and the drink-driving scheme [26]
The PDLA [35]
R v Alo [46]
The Practice Note [50]
Canadian jurisprudence [53]
The first question: Is there an obligation to facilitate the availability
of legal advisers to enable the envisaged legal consultation to occur? [58]
The second question: Was there a breach of Mr Kerr’s right under
s 23(1)(b) in the circumstances? [72]
Section 30(3) — admissibility [78]
Result [80]
Introduction
Mr Kerr was convicted in the District Court at Christchurch in October 2016 of refusing to permit a blood specimen to be taken.[1] He had defended the charge on the basis that he had not been able to exercise his right to consult and instruct a lawyer before being required to give that specimen. Accordingly, evidence of his refusal had been improperly obtained and was inadmissible. The District Court rejected that submission and convicted Mr Kerr. Mr Kerr’s subsequent appeal to the High Court was dismissed.[2] Mr Kerr brings this second appeal with leave.[3]
[1]Police v Kerr [2016] NZDC 26952 [Verdict judgment]; and Police v Kerr [2017] NZDC 6513 [Sentencing notes].
[2]Kerr v Police [2017] NZHC 2595 [High Court judgment].
[3]Kerr v Police [2018] NZCA 326 [Leave judgment].
The right to consult and instruct a lawyer is affirmed by s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) which provides:
23 Rights of persons arrested or detained
(1) Everyone who is arrested or who is detained under any enactment—
…
(b)shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
…
In the leading 1992 case Ministry of Transport v Noort, this Court held that recognition of the s 23(1)(b) right is not inconsistent with the drink-driving scheme.[4] However, the operational requirements of the scheme constrain exercise of the s 23(1)(b) right to a limited, but reasonable, opportunity to consult a lawyer by telephone.
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- AGLC
- Kerr v Police [2020] NZCA 245
- Case
- [2020] NZCA 245
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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