Kerr v Police - [2018] NZCA 326

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA661/2017
[2018] NZCA 326

BETWEEN	ZANE CHRISTOPHER KERR Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	7 August 2018
Court:	Winkelmann, Brown and Clifford JJ
Counsel:	J D Lucas for Appellant R K Thomson for Respondent
Judgment:	27 August 2018 at 3.00 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is granted in respect of the following matters:

(a)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
(b)whether there was a breach of Mr Kerr’s right under s 23(1)(b) in the circumstances where calls were placed unsuccessfully to 13 lawyers.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Mr Kerr was convicted of one charge of failing to provide an evidential blood sample and one charge of driving while disqualified following a judge alone trial in the District Court.[1] Having unsuccessfully challenged his conviction for the failure to provide a blood sample in the High Court[2] he applies under s 253(1) of the Criminal Procedure Act 2011 for leave to bring a second appeal against that conviction. The key issue is whether there was a breach of Mr Kerr’s right under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) to consult a lawyer.
[1]Police v Kerr [2016] NZDC 26952.
[2]Kerr v Police [2017] NZHC 2595.
Section 23(1)(b) states:
Everyone who is arrested or is detained under any enactment shall have the right to consult and instruct a lawyer without delay and to be informed of that right.
The section was considered in the context of the breath alcohol regime by this Court in Ministry of Transport v Noort where Cooke P observed:[3]
The opportunity is to be limited but reasonable. It is not necessarily restricted to one call, but there must be no unreasonable delay. A driver who cannot immediately contact his or her own lawyer should normally be allowed to try one or two others. If, despite a reasonable opportunity, no lawyer can be contacted (perhaps because of the hour of night) the test need not be delayed further. Rosters of lawyers, available to undertake this work at an appropriate fee, may be prepared by the Law Society, the police or the ministry, but that is outside the control of the Court. Hard and fast rules cannot be laid down for all circumstances. Ultimately it must always be a question of fact and common sense whether a reasonable opportunity has been given.
[3]Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 274.
On the issue of facilitation Richardson J said:[4]
That right can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation on the enforcement officer to facilitate contact with a lawyer…

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.

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Details

Case: [2018] NZCA 326
Decision Date: 27 August 2018 at 3.00 pm

CaseChat Overview and Summary

Zane Christopher Kerr, the appellant, sought leave to bring a second appeal against his conviction for failing to provide an evidential blood sample and driving while disqualified, following a judge alone trial in the District Court. His initial appeal to the High Court was unsuccessful. The core issue before the Court of Appeal was whether there was a breach of Mr Kerr’s right under section 23(1)(b) of the New Zealand Bill of Rights Act 1990 to consult a lawyer. This section guarantees the right to consult and instruct a lawyer without delay for those arrested or detained under any enactment.

The Court examined whether the right to consult a lawyer implied an obligation on the State to facilitate the availability of legal advisers. This was in light of the Police Detention Legal Assistance Scheme (PDLA scheme), which provides for an initial consultation between a lawyer and a person undergoing police questioning. Mr Kerr's lawyer argued that the PDLA scheme was deficient as none of the 13 lawyers contacted by Mr Kerr or on his behalf answered their calls. The Crown contended that the PDLA scheme's administration was not the responsibility of the police. The Court found that the element of uncertainty concerning the scope of section 23(1)(b) and the adequacy of the PDLA scheme warranted further examination.

The Court of Appeal granted leave for Mr Kerr to appeal on two specific matters: (a) whether section 23(1)(b) implies an obligation on the State to facilitate the availability of legal advisers, and (b) whether there was a breach of Mr Kerr’s right under section 23(1)(b) given the unsuccessful attempts to contact lawyers. The Minister of Justice was granted leave to appear and present submissions on the appeal, and the judgment was sent to the New Zealand Law Society and the Criminal Bar Association, who may apply for leave to appear or make a written submission.

Orders