Kerr v Police

[2017] NZHC 2595

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]      On 28 October 2016, Her Honour Judge Farish delivered an oral judgment after a Judge alone trial.  Her Honour found the charge proved, concluding:1

[10]     In all of the circumstances, I go back to the fundamental question, where there has been reasonable action by the police to afford the motorist the facility for the motorist to exercise his right in a real and practicable way. Here  I  accept  that  Constable  Groucher  did  make  reasonable  efforts  to facilitate to Mr Kerr his right to speak with a lawyer. That ability and the reasonableness to Mr Kerr his right to speak with a lawyer. That ability and the reasonableness of his actions is demonstrated by the number of calls he made; two calls to Mr Allen and the fact that he proceeded through at least

13  on  the  list.  I  do  not  believe  it  would  be  reasonable  to  expect Constable Croucher to have exhausted the 20 odd names on the list and then, if unsuccessful, to have then gone to the white pages or indeed to try and get out of town counsel to assist. In my view that is unreasonable and would not be in keeping with the reasonableness of Constable Groucher’s actions in the circumstances that were presenting to him that evening. Therefore, I find the charge proved.

Jurisdiction on appeal

[9]      The appellant appeals as of right.2   The Court must allow the appeal if it finds that the Judge erred in assessing the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason.3    A miscarriage of justice is any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.4   The appeal proceeds by way of rehearing, and this Court on appeal must examine the Judge’s reasoning carefully and come to its own decision on the facts.5

[10]     If the Judge was wrong in ruling the evidential breath test admissible then a miscarriage of justice has occurred and the appeal should be allowed.

1      Police v Kerr [2016] NZDC 26952.

2      Criminal Procedure Act 2011, s 229.

3      Criminal Procedure Act 2011, s 232(2).

4      Section 232(4).

5      R v Slavich [2009] NZCA 188.

[11]     The crux of the appellant’s appeal concerns the deficiencies of the Police Detention Legal Advice Service (“PDLA”).    Mr Lucas, for the appellant, submits that BORA applies to the PDLA service and the appellant was denied his right by the service not having a lawyer rostered to answer the phone call by or for the appellant. Mr Lucas submits that PDLA breached the appellant’s right to consult a lawyer because none of the 13 lawyers called that night answered.

[12]     The Crown, through Ms Norman, submits that the issue on appeal should focus on whether the Police took reasonable steps to facilitate the appellant’s access to legal advice, and not the PDLA service. Any systemic issue about the operation of the PDLA scheme is a matter to which the Ministry of Justice should respond, and not the Police.  (This is problematical as the Ministry was not required as such, but this does not in the end affect this Judgment.)

Law and Analysis

[13]     Section 30(2) of the Evidence Act 2006 sets out a two stage process for ruling improperly obtained evidence inadmissible.   The Court must first make a finding whether evidence was improperly obtained, and if so decide whether the exclusion of that evidence is proportionate to the impropriety, giving appropriate weight to the impropriety and taking proper account of the need for an effective and credible system of justice. Section 30(3) lists, but not exhaustively, a number of matters the Court may have regard to in balancing the impropriety and the effects of exclusion.

[14]     Section  30(5)(a)  provides  that  evidence  is  improperly  obtained  if  it  is obtained as a consequence of a breach of any enactment or rule of law by a person to whom s 3 of BORA applies.

[15]     The appellant alleges that evidence of his refusal to supply a blood specimen was obtained because of failings of the PDLA service which he says breached his rights under s 23(1)(b) of BORA, which 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.

[16]     The leading case on access to legal counsel in the context of the breath alcohol regime is the Court of Appeal judgment in Ministry of Transport v Noort, where Cooke P held:6

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 this 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.

[17]     The view was endorsed in Tallentire v Police, where Asher J said:7

The obligation is to facilitate, not to provide, and the requirement to assist with the provision of this opportunity is not a counsel of perfection.

[18]     In R v Mallinson, the Court of Appeal noted that “the Bill of Rights is not a technical document” and that the Courts must engage in a realistic assessment of “whether what was done gave practical effect in the particular circumstances to the rights protected.”8     The case law consistently shows, as  a full Court of the High Court said in Brown v Police, that the correct approach is to ask “whether in the particular circumstances of the case reasonable action has been taken to facilitate the exercise of the rights.”9

Discussion

Application of BORA

[19]     Section 3 of BORA provides:

6      Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 274.

7      Tallentire v Police [2012] NZHC 1546 at [12].

8      R v Mallinson [1993] 1 NZLR 528 (CA) at 531.

9      Brown v Police HC Hamilton CRI-419-87-04, 22 October 2004 at [61].

3        Application

This Bill of Rights applies only to acts done—

(a)      by  the  legislative,  executive,  or  judicial  branches  of  the

Government of New Zealand; or

(b)       by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

[20]     For BORA to apply there must be an identifiable “act by” one of the branches of government or any person/body in the performance of a public function, power or duty.   Most of the rights conferred by BORA are negative rights, that is, they are freedoms from state interference, but the Courts have consistently held that s 23 of BORA confers positive obligations on state agencies to act in certain ways.10   In that

context  ‘acts’  have  been  interpreted  to  include  ‘omissions’.11    That  does  not,

however,  do  away with  the need  to  identify a  particular  act  or omission  by a

particular person or branch of government.

[21]     In  this  case,  one  way  to  frame  the  alleged  breach  is  to  focus  on  the obligations which s 23 of BORA imposes on the Police, and their specific acts and omissions on the facts of the case. In the case law the growing consensus appears to be that the Police, although strictly part of the executive branch, fall within s 3(b) – that is, a public body in the performance of certain powers.12    As a result, Police conduct can only be assessed within and against the powers and functions conferred on them. The Police are not responsible for high-level policy decisions of how to implement the right to consult or instruct a lawyer, and can only work with what is

available.  It is untenable to criticise the Police in this case who, in my view, acted in a co-operative and proper way within the (limited) resources and systems available. They did everything they could, facilitating the appellant’s attempt to make contact with a lawyer.

[22]     However, there is another way of framing the potential breach, that there was a breaching act or omission by the broader executive branch of government.   The

10     R v Butcher [1992] 2 NZLR 257 (CA); Ministry of Transport v Noort, above n6.

11     Mendelssohn v Attorney-General [1992] 2 NZLR 268 (CA) at 273.

12     For example Littlejohn v Ministry of Transport [1990-92] 1 NZBORA 285 (HC); Police v

Curran [1992] 3 NZLR 260 (CA); Simpson v Attorney-General [1994] 3 NZLR 667 (CA).

PDLA scheme was designed and is administered by the Ministry of Justice. Its policy  documents  are  Ministry  of  Justice  policy  documents.  The  content  and practical effect of government policy documents has been held to be ‘acts done by the executive branch’.13   The issue could be framed, then, as whether through the formation and implementation of the PDLA scheme, and its obvious omission on this occasion to provide access to a lawyer, the executive branch breached its obligations

to the appellant under s 23 of BORA.

[23]     Whether that is so will depend on the extent of the s 23 of BORA obligations on the Executive branch.  It is not enough to say that the appellant’s rights have been breached because he did not talk to a lawyer unless s 23 confers an obligation on the Executive to ensure (or to do more than they did to ensure) that he did get to talk to a lawyer and by act or omission it breached that obligation.

The right to a lawyer

[24]     Section 23(2)(b) of BORA establishes the right to consult and instruct.  Butler and Butler provide the following gloss:14

In the authors’ view the proper interpretation of this phrase is that every arrested or detained person is entitled to make contact with a lawyer, to have that  lawyer  (or  another) come  to  the  place  where the  detainee is  being detained, to have the opportunity to consult with the lawyer on the lawyer’s arrival and throughout so much of the period of detention that the detainee desires,  and  to  have  the  lawyer  represent  the  detainee’s  position  to  the detainer for all or part of the detention. These entitlements flow from the ordinary meaning of the phrase “consult and instruct”.

[25]     The right is a positive one, meaning it imposes obligations to ensure the right is realisable if the detainee wants to exercise it.   Section 23(2)(b) does more than merely forbid the state from interfering with access to a lawyer.   This raises the question of how far the state must go: must it ensure that the detainee in fact gets to consult  and  instruct  a  lawyer?    Is  it  enough  to  merely  facilitate  a  reasonable

opportunity to consult and instruct?

13     See for example Attorney-General v Atkinson [2012] 4 NZLR 456 (CA).

14     Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd  ed, LexisNexis, Wellington, 2005) at [20.7.7].

[26]   The authorities, including the leading case of Noort, hint at the latter interpretation.  However, it is striking that in those cases the question is framed in terms of the obligations on individual actors – namely the Police at the scene.  None of the cases frame the issue in terms of the obligations on the Executive branch of government to implement policies which uphold the right.   Those cases are distinguishable on that  basis: it does not appear the courts have considered the question of whether a scheme to provide effective realisation of the right is a necessary implication of s 23(b) of BORA.

Noort and the PDLA

[27]     In Noort, the Court of Appeal considered the extent of the obligations which s 23(b) impose on police in the drink-driving context.15   Three of the four judges in the majority wrote separate judgments, with Gault J dissenting.   At the time of the driving in that case there was no publicly administered scheme of legal advice for detainees.     The  question   before  the  Court   was   essentially  whether  in   the drink-driving context the Police have to take any steps at all to help the detainee

access a lawyer.

[28]     The decision of the majority was that s 23(b) of BORA applied even in the context of detained drink-driving suspects where getting a blood or breath sample is a  matter  of urgency.  However,  because  of  that  urgency  the  right  is  tempered. Telephone contact will be enough and, importantly, if the call is not answered, nor the next couple of calls, that still amounts to a reasonable opportunity.  The Judges in the majority relied to varying degrees on s 5 of BORA, which provides that the rights may be subject to reasonable limitations prescribed by law that can be demonstrably justified in a free and democratic society.

[29]     The Court in Noort did not consider the broader question of whether s 23(b)

of BORA imposes obligations on the Executive more generally, although I think there is an underlying assumption in that judgment that it does not, and that a

15     Ministry of Transport v Noort, above n6.

reasonable facilitation by the Police is the extent of what is required of the state. Cooke P seemed to be of this view when he said:16

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 this is outside the control of the Court. Hard and fast rules cannot be laid down for all circumstances.

[30]     Nevertheless, in response the PDLA scheme was implemented, which went beyond what was strictly required by the decision in Noort.  Not only did the state provide lists of lawyers, it provided their services free of charge and rostered lawyers to be, in theory, available throughout the night.

Problems with the scheme

[31]     While there have been a number of cases since the implementation of the PDLA scheme which have dealt with the s 23(b) BORA right, each have had a narrow focus of assessing the conduct of police at the scene, and asking whether there was reasonable facilitation of the attempt to make contact with a lawyer.

[32]     The Court was advised from the Bar that the scheme may not be uniform in its set up throughout New Zealand.

[33]     A case with analogous facts, where numerous attempts were made to contact a lawyer on the PDLA list with no success, is Bai v Police.17   It was common ground before Dunningham J in that case that “there was no obligation to ensure legal advice  was  obtained  if  requested”,  and  as  such  the  case  focused  solely on  the question of what the Police on the scene were obliged to do.  The central argument on appeal, and roundly rejected on the facts, was that the efforts of the Police were in

‘bad faith’ because they knew that the PDLA scheme often fails, and should have taken further steps beforehand to rectify the system.  There was anecdotal evidence of a Police officer in that case that as many as 7 out of 10 times no lawyer can be reached at night off the PDLA list.  While no such evidence is before the Court in this case and that was the estimate of a single Police Officer, there is reason to

believe that, on the facts of this case and what the Court was told from the Bar, in

16     At 274.

17     Bai v Police [2017] NZHC 254.

practice the PDLA scheme does not guarantee that those who elect to exercise their right to consult and instruct a lawyer will actually get that opportunity.  I make no such finding and work on the facts of this case.

Does the s 23(b) of BORA right impose an obligation on the executive to ensure or do more to try to ensure that detainees who elect to consult a lawyer are able to do so?

[34]     In my view, this appeal rests on the answer to this question.  If the answer is no, then the appeal should be dismissed, as there will not have been an identifiable act or omission on the part of any relevant party.  If the answer is yes, then it could be said that the PDLA scheme failed to secure the appellant’s right to a lawyer, and this  amounts  to  an  omission  on  the  part  of  the  Ministry/Executive  to  fulfil obligations, or else the creation and administration of the PDLA scheme is an act or acts which, through their inadequacies, breached the appellant’s right.

[35]     For a number of reasons, my view is that the question above should be answered in the negative, and the appeal dismissed, but I have reached this view with some misgivings, as I will explain.

[36]     First, while the case law thus far has not directly addressed the question, there has been a tacit assumption that s 23(1)(b) of BORA does not impose obligations on the state at any high policy level.  That is in accordance with BORA jurisprudence generally, which tends to focus on the acts of individuals and bodies.  At the policy level, there are myriad competing interests and considerations, and the courts are not well placed to set down absolute rules.

[37]     Secondly, I find the reasoning of Butler and Butler in New Zealand Bill of Rights Act: A Commentary persuasive.18    The authors address whether s 23(b) of BORA imposes an obligation on the state to provide free legal advice in a detention situation and express the view that, at least in that respect, the PDLA scheme in its current form goes above and beyond the state’s BORA obligations.  They discuss the Supreme Court of Canada’s finding in R v Prosper that there is no such obligation

under the Canadian rights regime, and comment that it would be inappropriate for

18     Butler and Butler, above n14, at [20.7.25]-[20.7.27].

the courts to (in effect) order such a scheme.19   In that case the Supreme Court said that on a case by case basis the courts may need to consider excluding evidence where no such scheme was available and that meant legal advice was not obtained. Butler and Butler say:20

In our view, s 23(1)(b) of BORA should be similarly interpreted. Nothing in the language of s 23(1)(b) extends its scope so as to require the provision of free legal assistance for those who cannot afford legal advice. Moreover, it cannot  be said that  when enacting s  23(1)(b) of BORA Parliament  was unaware of the need for free legal assistance. Section 24(f) of BORA guarantees free legal assistance, but only to persons who have been “charged with an offence”… This suggests that Parliament has deliberately decided to commence legal aid entitlements under BORA at the point of charging and not before; it would therefore be inappropriate for the courts to rely on s 23(1)(b) to bring forward the point at which legal aid entitlements begin. The fact through the Legal Services Act 2011 Parliament has seen fit to go beyond its BORA obligations and provide for the PDLA scheme does not mean that it is legitimate to otherwise extend the scope of s 23(1)(b).

[38]     If this is correct, BORA does not impose an obligation on the state to provide free legal advice in a police detention situation.  It would, I consider, be unprincipled to say that nevertheless the state has an obligation to guarantee that those who are able to pay will be able to access a lawyer in such a situation.  Those who are willing to pay would be afforded a strong right, while those who are not, may in effect be afforded no right at all.

[39]     Thirdly, I do not think the state should be held responsible for implementing a scheme of access to lawyers which is, it appears, needed largely to accommodate drink-driving suspects arrested at night.  That is not the limit of the scheme’s ambit. It applies to anyone arrested or detained by police, and that could be for any offence. In most conceivable cases there will not be the same urgency.  The urgency in this case only arises because of the need to take the test before the evidence of alcohol in the blood is lost, or evidentially impaired.  The PDLA scheme, as it is, is perfectly competent at providing access to a lawyer where there is no such urgency, and even where there is urgency, but the offending occurs in the daytime and more rostered lawyers  are  available.    While  it  is  unfortunate  that,  on  occasion,  drink-driving

suspects will not get to talk to a lawyer before making the decision whether to accept

19     R v Prosper [1994] 3 SCR 236 (SCC).

20     Above n18, at [20.7.27].

the blood test or be charged with refusing, it is I think a limitation of the right that is justifiable in terms of s 5 of BORA.

[40]     However, I do find that the obligations imposed by s 23(1)(b) of   BORA extend beyond the Police in a detention situation, to the Executive branch of government more broadly. As things stand, this means it extends to the Executive as manifested in the PDLA scheme.   If the frailties of that system which have been exposed in this case manifest themselves again, in my view this could well constitute a breach of the BORA right as it could no longer be said that the Executive is providing an adequate opportunity for the right to be realised.

[41]     As such, under the present scheme as it applies in the context of police detention, I would expect lawyers to be “rostered on” to improve the prospect of, but not guarantee, that contact may be made.  This is not to ask much more of PDLA, in liaison with Police.  This observation goes no further, and reflects only the factual setting of this appeal.

[42]     It follows that if the exposed frailties of the system are not fixed then if this judgment is correct as to the reach of s 23(2)(b) of BORA to the PDLA, then breach may be established in a future case.

[43]     I make what I consider an important observation to conclude.  If the appellant or anyone in his position made contact with a lawyer, their advice may have been to take the evidential breath test, conceivably with a negative result.  The inability to access legal advice may thus have adverse consequences for a person whose rights have been breached in this setting.

Disposition

[44]     The appeal is dismissed.

……………………………………………….

Nicholas Davidson J

Solicitors:

Public Defence Service, Christchurch
Raymond Donnelly & Co, Christchurch