Legal Research
Cases
Kerr v Police

Kerr v Police

Case [2020] NZCA 245 23 June 2020

Constitutional Validity

Mens Rea & Intention

Breach of Contract

Unconscionable Conduct

Specific Performance

Constitutional Law

Criminal Law

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA661/2017
[2020] NZCA 245

BETWEEN	ZANE CHRISTOPHER KERR Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	31 July 2019
Court:	Clifford, Gilbert and Wild JJ
Counsel:	J D Lucas and S J Jamieson for Appellant A M Powell and V McCall for Respondent B M McKenna and M R G van Alphen Fyfe for Minister of Justice as Intervener R S Reed QC and H M Z Ford for New Zealand Law Society as Intervener L A Andersen and S J Zindel for Criminal Bar Association of New Zealand Incorporated as Intervener
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.
[4]Ministry of Transport v Noort

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kerr v Police

Details

AGLC: Kerr v Police [2020] NZCA 245
Case: [2020] NZCA 245
Decision Date: 23 June 2020 at 3 pm

CaseChat Overview and Summary

Zane Christopher Kerr, the appellant, appealed to the Court of Appeal of New Zealand against his conviction in the District Court of Christchurch for refusing to permit a blood specimen to be taken. 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, and thus evidence of his refusal had been improperly obtained and was inadmissible. The District Court rejected that submission and convicted Kerr, and his subsequent appeal to the High Court was dismissed. The Court of Appeal granted Kerr leave to appeal on two questions: whether the right in s 23(1)(b) of the New Zealand Bill of Rights Act 1990 implies an obligation on the state to facilitate the availability of legal advisers to enable the envisaged legal consultation to occur, and whether there was a breach of Kerr’s right under s 23(1)(b) in the circumstances where calls were placed unsuccessfully to 13 lawyers. The Court of Appeal held that there was no obligation under s 23(1)(b) to guarantee the availability of legal advisers. However, it found that there was a breach of Kerr’s right under s 23(1)(b) as the Police Detention Legal Assistance scheme operated in Canterbury at the time did not work and it was more likely than not that no lawyer on the list would be able to be reached, however many attempts were made. The Court of Appeal quashed the conviction and entered a judgment of acquittal.

Orders