Kerr v Police

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-45 [2017] NZHC 2595

BETWEEN

ZANE CHRISTOPHER KERR

Appellant

AND

THE NEW ZEALAND POLICE Respondent

Hearing:	14 September 2017
Appearances:	J D Lucas for Appellant P A Norman for Respondent
Judgment:	24 October 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1]      This judgment is concerned with the rights of any person who is arrested or detained, to consult or instruct a lawyer.

[2]      The appellant, Mr Kerr, says his rights were breached when he could not make telephone contact with a lawyer before and after he was detained by the Police for suspected drink-driving.  On those grounds he appeals against his conviction in the District Court on a charge of refusing to supply a blood specimen upon request by an enforcement officer.  This is an offence under s 60(1)(a) and s 60(3) of the Land Transport Act 1998 for which the maximum penalty is two years imprisonment

or a fine not exceeding $6,000, and 12 months disqualification.

KERR v THE NEW ZEALAND POLICE [2017] NZHC 2595 [24 October 2017]

Background

[3]      The appellant was stopped by the Police on 8 July 2016.   He was driving while disqualified.  He was stopped as he was seen driving to the far left of the road with hazard lights on, travelling slowly because of obvious damage to the tyres, down to the rims.  The appellant admitted that he had been drinking, but refused to undergo  a  breath  screening  test.     Nevertheless,  he  agreed  to  accompany  the Police Officer to the Police station for an evidential breath test.

[4]      He was given his rights under the New Zealand Bill of Rights Act 1990 (“BORA”), but replied “I don’t understand”.  At the Police station, he was given his rights a second time, and requested to speak to Mr Allen, a lawyer.  Mr Allen did not answer the call.

[5]      The Constable tried to contact three more lawyers but with no success, then

tried to contact five other lawyers on the “duty lawyer list”, again with no success.

[6]      The  Constable  then  sought  to  conduct  a  breath  screening  test,  but  the appellant refused to undergo the test.  He was advised that as he failed to undergo an evidential breath test he would be detained for the purposes of providing a blood specimen.   He was given his rights again, and asked if he wanted to speak to a lawyer.   Mr Kerr said  that he did, so the Constable tried to contact four more lawyers, but none answered.

[7]      The appellant refused to sign the procedure sheet, and refused to supply a blood specimen.   He was warned that refusing to supply a blood specimen was a criminal offence.  He was then arrested and his rights given to him a fourth time. When asked if he understood his rights, the appellant replied, “No, because you said I could speak to a lawyer but none will answer and I have been delayed.”

[8]…