King v Police
[2018] NZHC 1213
•28 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-000464
[2018] NZHC 1213
BETWEEN JONATHAN KING
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 April 2018 Appearances:
A Haskett for Appellant J Bull for Respondent
Judgment:
28 May 2018
JUDGMENT OF VENNING J
This judgment was delivered by me on 28 May 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland Counsel: A Haskett, Auckland
KING v NEW ZEALAND POLICE [2018] NZHC 1213 [28 May 2018]
Introduction
[1] Following a defended hearing in the District Court at Auckland Mr King was found guilty of one charge of driving with excess breath alcohol contrary to s 56(1) of the Land Transport Act 1998.1 On 13 December 2017 Judge R G Ronayne fined Mr King $800 together with Court costs and disqualified him from driving for six months. Mr King lodged an appeal against conviction. Pursuant to s 107(2) of the Land Transport Act the Judge deferred the disqualification pending the determination of the appeal.
Background
[2] Mr King was stopped at an alcohol screening point on Redmond Street, Ponsonby on 20 December 2016. He failed the initial screening test and the subsequent breath test. Constable Everson required him to accompany her to the Auckland Central Police Station. There he registered a reading of 662 micrograms of alcohol per litre of breath.
[3] Constable Everson completed a breath and blood alcohol procedure sheet when dealing with Mr King. The relevant part recorded the following advice was provided to Mr King:
·The test indicates that the proportion of alcohol in your breath exceeds 400 micrograms of alcohol per litre of breath.
·You are advised that if you elect to have a blood test you may be liable to pay the blood test fee and associated medical costs whether or not the result of that blood test establishes that an offence under the Land Transport Act has been committed.
[4] Mr King signed the form to acknowledge he had received advice of the positive result of his evidential breath test together with the above advice. He was then advised:
·You have been detained for the purpose of the breath or blood test procedures for alcohol.
·You have the right to remain silent.
1 New Zealand Police v King [2017] NZDC 16451.
·You do not have to make any statement.
·Anything you say will be recorded and may be given in evidence in court.
·You have the right to speak to a lawyer without delay and in private before deciding to answer any questions.
·Police have a list of lawyers you may speak to for free.
·These rights will continue throughout the breath or blood alcohol testing procedures.
·If you wish to speak to a lawyer a telephone will be made available to you for that purpose as soon as practicable. You will be allowed a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you.
·Would you like to speak to a lawyer?
[5] The officer circled “no” after the last question. The comments section recorded “I can’t speak to my lawyer right now”. Mr King signed that part of the procedure sheet. The officer recorded the time as being 21:15 hours.
[6] The 10 minute period provided for Mr King to elect a blood test expired. Mr King did not speak to a lawyer during that time and did not elect to undergo a blood test. The prosecution relied on his failed breath test reading of 662 micrograms of alcohol per litre of breath.
The District Court decision
[7]Judge Ronayne defined the matter in issue in the prosecution as:
The defendant says that when he had 10 minutes to decide whether to give a blood sample, he was deprived of his right to consult and instruct a solicitor of his choice. The prosecutor says that he was given every reasonable opportunity to consult and instruct a lawyer and no rights were breached. That is the issue.
[8] The Judge heard evidence from Constable Everson and also from Constable Turner. Constable Turner was processing another driver at the Auckland Central Police Station in a booth beside Constable Everson. Constable Turner had some interaction with Mr King as well. Mr King gave evidence in his defence.
[9] Mr King’s evidence was that he wanted to speak to his lawyer, Mr Haskett, but after taking some photos on his phone during the process, his phone battery went flat. He could not access Mr Haskett’s contact number from his phone and the officers refused to assist him to contact Mr Haskett. He said he specifically named Mr Haskett as his lawyer “half a dozen times”. The officers’ evidence was to the contrary. Constable Everson said Mr King had refused to tell her who his lawyer was. She said she had offered Mr King a phone book and use of a computer to look up his lawyer’s contact details online but he had refused both offers. Constable Turner confirmed that a list of lawyers on the public assistance scheme was also made available to Mr King. Mr King declined to contact a lawyer from the list.
[10] Constable Everson said that, after processing Mr King she made notebook entries relating to her interaction with Mr King regarding his access to a lawyer. Constable Everson recorded in her notebook that, when asked if he wanted to speak with a lawyer, Mr King said:
“No”, because he couldn’t speak to his lawyer right now. He would speak to him in due course. Said that his phone was flat so he couldn’t call or get his number. Advised we have a phone he could use but he refused. Asked if we could get his lawyer’s number from phone book and he said, “No”. He was offered a list of duty lawyers but also refused that. At the end of the 10 minute period when asked if he wanted a blood test he said he couldn’t answer that as he couldn’t speak to his lawyer. At no point throughout the process did he say, yes, that he wanted a blood test. When advised at the start of the 10-minute period he stated he wouldn’t be there in 10 minutes time and he was using his cell phone to take photos during the EBA process. He requested numerous documents and was advised that everything would be provided as disclosure for court to which he replied, “This won’t be going to court.”
[11]Constable Everson’s oral evidence was consistent with her notes.
[12] In finding the charge proved Judge Ronayne said he put the officer’s written notebook entries to one side but preferred the oral evidence of Constables Everson and Turner to that of Mr King. He was satisfied that the officers followed all appropriate procedures. The charge was proved beyond reasonable doubt.
Appeal grounds
[13] Mr Haskett submitted that there had been a miscarriage of justice because the Judge was wrong to rely on statements attributed to Mr King. He submitted the Constables’ evidence about their dealings with Mr King should be ruled inadmissible.
[14] Alternatively he submitted that the Judge had failed to factor relevant considerations affecting the weight of the statements and the Judge’s assessment of the evidence was erroneous.
[15] In his detailed submissions Mr Haskett argued that the comment attributed to Mr King in the procedure sheet – “I can’t speak to my lawyer right now” – supported the defence case that Mr King wanted to speak to a lawyer but was denied the opportunity to do so.
[16] Mr Haskett submitted the officer’s notes of the discussion with Mr King were in breach of cl 5 of the Chief Justice’s Practice Note on police questioning because Mr King was not given an opportunity to confirm the written record as correct. Even if, as Constable Everson said, the notes were prepared after Mr King was processed the officer could have asked Mr King to review and sign them when she delivered a replacement summons at a later date. As the notes had not been offered to Mr King to review or for signature they should be ruled inadmissible.
[17] While Judge Ronayne had said he put Constable Everson’s record of the notes to one side when considering the evidence, Mr Haskett submitted there would be little point in excluding the notes of the interview if the officer was able to orally refer to the statements attributed to Mr King to the same effect. Mr Haskett submitted that Constable Turner had also breached cl 5 by failing to record his interaction with Mr King.
[18] Mr Haskett argued that if the evidence of Constable Everson and Constable Turner was excluded that would leave Mr King’s evidence as the only admissible evidence on the point, and his evidence was that he had been denied access to his lawyer. The Judge could not be satisfied beyond reasonable doubt that Mr King had waived his right to a lawyer.
[19] Mr Haskett’s submissions run a number of issues together. It is necessary to consider them separately.
The application of cl 5 of the Practice Notice in the present case
[20]Clause 5 of the Chief Justice’s Practice Note on Police Questioning provides:
(5)Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording, unless that is impractical or unless the person declines to be recorded by video. Where the statement is not recorded by video, it must be recorded permanently on audio tape or in writing. The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.
[21]In R v Perry the majority of the Court noted the purpose of the rule:2
[53] A primary purpose of the rule is to prevent admissions being falsely attributed to a suspect and, associated with this, to prevent disputes as to what the suspect actually said. “Statement” when used in the rule refers, at least primarily, to an account given by a suspect in relation to offending. The rule plainly did not require the police to record what the respondent told Detective Carolan as to what he wanted for lunch or any small talk between Detective Carolan and the respondent while they were outside for the cigarette break. The rule should, however, not be applied literally and restrictively.
[22] The application of the Chief Justice’s Practice Note and in particular cl 5 was considered in the context of breath alcohol offending in Duffy v New Zealand Police.3 Asher J accepted cl 5 was meant to apply to material statements made by defendants in the context of questioning about alleged offending:4
My view is that cl 5 is meant to apply to material statements made by defendants in the context of questioning about alleged offending. Clause 5 is not limited to statements made in response to “investigative questioning”.5 Statements that are procedural (such as an election to consult a lawyer) are required to be recorded to the extent they are made broadly in relation to
2 R v Perry [2016] NZSC 102.
3 Duffy v New Zealand Police [2015] NZHC 1899.
4 At [41].
5 “Investigative questioning” is defined by s 4 of the Evidence Act 2006 as:
Investigative questioning means questioning in connection with the investigation of an offence or a possible offence by, or in the presence of,––
(a)a member of the Police; or
(b)a person whose functions include the investigation of offences.
alleged offending and have material consequences to the defendant in a legal or practical sense. The exclusion of procedural statements and a limitation to investigative questioning would run counter to the clear wording of cl 5 and the broad purpose of the guideline …
[23] The Judge noted that the question and answer about whether a suspect wishes to give a blood sample might broadly be described as procedural, or outside an investigative questioning context, but as the statement materially affects the person’s position in a legal and practical sense, cl 5 applies to it. The responses should be recorded.
[24] Like Asher J I consider that cl 5 applies to the breath alcohol procedure followed by the police, although I recognise there may be practical constraints on the ability of police to record every interaction with a person who has been detained for the purposes of the drink driving legislation and, for some interactions, no utility in doing so. The procedural form used by the police will satisfy this requirement in straightforward cases, but it does not address the situation that emerged in Mr King’s case where there was a more sustained interaction regarding Mr King’s access to a lawyer. During the exchange between Constable Everson and Mr King, Mr King made statements relevant to his right of access to a lawyer. The Constable’s notes contain statements or assertions attributed to Mr King about that right.6 Constable Everson’s notes of Mr King’s statements should have been recorded at the time and Mr King should have been given the opportunity to read and confirm them. Constable Everson breached cl 5 of the Chief Justice’s Practice Note by failing to make her note book record of Mr King’s statements regarding access to legal advice at the time and in sufficient time for him to review it and sign it.
[25] However, the Constable’s notes went further than just recording statements attributed to Mr King. They also recorded what she did. The Practice Note applies to statements attributed to a defendant. While it will apply to questions and answers between the police and the defendant, it does not apply to all the actions a police constable might take while processing a defendant. To that extent, there can be no
6 Evidence Act 2006, s 4: statement means— (a) a spoken or written assertion by a person of any matter; …
challenge to the Constable’s evidence that, for example, Mr King was offered a list of duty lawyers.
[26] Constable Turner’s dealing with Mr King is different again. Although Constable Turner gave evidence consistent with Constable Everson’s evidence about her discussion with Mr King, which for present purposes may raise the same issue as Constable Everson’s evidence, he also gave evidence that he offered Mr King the list of duty lawyers. In cross-examination Mr King accepted that he was offered the list. Constable Turner only sought to give very limited evidence about what Mr King said.
Should the evidence have been excluded?
[27] Under ss 30(2), (4) and (5)(c) of the Evidence Act 2006, evidence offered by the prosecution must be excluded if:
(a)it was obtained unfairly; and
(b)its exclusion would be proportionate to the unfairness, which is an assessment informed by the factors in s 30(3).
[28] Accepting for present purposes that the evidence of Mr King’s statements was obtained in breach of cl 5, the next issue is whether it can be said the evidence of the statements was obtained unfairly.
[29] A breach of cl 5 of the Chief Justice’s Practice Note does not necessarily lead to a finding the statement was obtained unfairly.7 The wording of ss 30(5) and 30(6) of the Evidence Act 2006 confirm that the guidelines are a factor to be taken into account when determining whether a statement has been obtained unfairly.
[30] In Phillips v R, Edwards J held that a breach of cl 5 meant the evidence was obtained unfairly.8 In doing so, she followed the Court of Appeal decision in Denney v R and in particular the following passage:9
7 R v Wichman [2015] NZSC 198, [2016] 1 NZLR 753 at [101]; R v Chetty [2016] NZSC 68, [2018]
1 NZLR 26 at [49]; R v Perry, above n 2; and Jones v R [2016] NZCA 185 at [24].
8 Phillips v R [2017] NZHC 1511 at [40].
9 Denney v R [2017] NZCA 80, at [31].
… we acknowledge that the Supreme Court said in R v Chetty that “there must almost always be a causative link between the unfairness and the impugned evidence”.6 But the Supreme Court conceded that cases might exist where this analysis is not appropriate.7 We consider that the usual causation analysis is not applicable in the circumstances of this case where the breach of the Practice Note occurred after Detective Ralph obtained the statement in issue from Mr Denney. In these circumstances we think it preferable to focus on the true nature of the consequences of Detective Ralph’s breach of r 5 of the Practice Note. That consequence was that Mr Denney was denied the opportunity at the time he was speaking to Detective Ralph to correct what Mr Denney says was a misunderstanding on the part of Detective Ralph, and was left to challenge the accuracy of Detective Ralph’s record within the context of the proceedings. This detrimental consequence aligns exactly with the interest r 5 of the Practice Note was designed to protect — avoiding dispute as to what was said in an interview.
[31] Mr Phillips had been arrested for fighting in public and was being transported in the back of a patrol car when he made an admission that he had been the driver of a car in another matter of interest to police. Later he sought to retract that story. An officer in the car recorded part of Mr Phillips’ statements, including the admission, but not his subsequent retraction. The officer did not ask Mr Phillips to read and sign the recorded statements. Edwards J noted that the officer’s notes were neither full nor accurate. The officer had time to prepare full notes back at the police station. There was no reasonable excuse for the breach, unlike in Graham v R.10
[32]The present case is quite different to that of Mr Phillips.
[33] A number of factors are relevant to determination of whether the evidence of Mr King’s statements was obtained unfairly. The statements were not in response to an investigative inquiry by the police. Mr King was given his rights and was given the opportunity to review and sign the procedure sheet. He signed that part of the procedure sheet which recorded “no”, he did not wish to speak to his lawyer, which was directly beside the additional comment that “I can’t speak to my lawyer right now”. Constable Everson’s notes recorded a discussion related to the process of facilitating Mr King’s access to a lawyer. It was procedural rather than investigative. The notes record the officer’s dealing with Mr King. There was no “steering” of Mr King’s responses. The breach was technical and not intentional. On Constable Everson’s evidence she made the notes after Mr King was processed, not during the
10 Graham v R [2014] NZCA 581.
10-minute period whilst waiting for Mr King to make the election so that there was no time for Mr King to sign the notes at the time. Further, there was no particular reason for her to seek to have Mr King sign them when she re-served the summons. There are no “admissions” by Mr King which the police seek to rely on. The prosecution case does not rely on Mr King’s statements.
[34] I do not consider that the evidence of Mr King’s dealings with the police officers on the issue of the provision of legal advice was obtained unfairly.
[35] Even if in the event it could be said the evidence was obtained unfairly then I consider it would be disproportionate to exclude the evidence in this case. Mr Haskett again referred to the decision of Phillips v R. Although the unfairness did not induce Mr Phillips to speak to the officer Edwards J considered there was an unfairness in recording what Mr Phillips had purportedly said. The Constable’s notes were of very poor quality and placed Mr Phillips in the position where he would lose the right of silence. Edwards J considered it proportionate to exclude the evidence of the admission.
[36] As noted, the present case is distinguishable. The nature of the “statements” in this case is quite different. The statement attributed to Mr Phillips was an admission of offending. Nothing of that nature arises here. Mr King had to give evidence to support his defence, unlike Mr Phillips, who would only have been required to give evidence to answer the Detective’s evidence. Further, if Mr King sought to challenge Constable Everson’s evidence he could have sought a pre-trial ruling. The objection was not taken prior to trial, or even when the Constable’s evidence was given.
[37] I turn to the s 30(3) considerations. I accept that the exchange concerned an important right, namely the right of access to a lawyer. But the right breached was not to deny Mr King access to a lawyer, it was a breach of cl 5. Mr King accepts he was given the opportunity to consult a lawyer from the list. The Court of Appeal has
accepted that the right to counsel of choice is not absolute and is subject to reasonable and practical limitations.11
[38] The unfairness of failing to record the exchange at the time and failing to give Mr King an opportunity to review and sign the notes is relatively minor in the circumstances of this case, given:
(a)The practical circumstances facing police processing drink drivers.
(b)The notes were a record of the procedure followed, not of an investigative interview.
(c)Mr King’s statements as recorded were not inculpatory.
(d)The police do not seek to rely on the statements apart from in answer to Mr King’s evidence which is contrary to the form he signed on the night.
(e)There is no evidence of bad faith on the part of the police.
(f)Drink driving is not the most serious of offences in terms of penalty (particularly for first offenders). However, the Supreme Court in Aylwin v Police observed that drivers who have consumed more than a small amount of alcohol should not be able to escape responsibility through technical and unmeritorious defences.12
(g)There is no alternative remedy to exclusion.
[39] Weighing the above, I consider that it would be out of all proportion to exclude the evidence of the police officers concerning the process followed in the present case regarding Mr King’s election, particularly when a procedure sheet has been completed
11 Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 274. See also Barry v New Zealand Police HC Whangarei CRI-2007-488-29, 3 April 2008; Tallentire v New Zealand Police [2012] NZHC 1546.
12 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].
and signed by Mr King. The evidence of both officers, Constable Everson and Constable Turner about the full extent of their dealing with Mr King is admissible.
Credibility/reliability of witnesses
[40] Mr Haskett also pursued an argument that the Judge was in any event, wrong to prefer the evidence of Constable Everson and Constable Turner to the evidence of Mr King. He criticised the Judge’s reasoning for preferring the officers’ evidence: “Why would they lie and risk their careers?” While such reasoning does not assist, it was unnecessary for the Judge to apply it to resolve the conflict in the present case.
[41] The Judge was satisfied on the evidence that Mr King was affected by alcohol that evening. His reading was significant at 622 milligrams per litre of blood. Constable Everson noted his eyes were glazed and bloodshot. Mr King smelt of alcohol. Those factors go to the reliability of Mr King’s subsequent evidence about the course of events on the night.
[42] Further, as the Judge noted, Mr King sought to minimise the amount he had drunk on the night, telling the officers he had only had a couple. He subsequently accepted he had had four glasses of alcohol.
[43] Importantly, the police officers were following a procedure. They had no particular reason to single Mr King out. The defence theory is that they were determined not to permit him to speak to his own lawyer, Mr Haskett. However, Mr King accepted the police were willing to allow him to speak to a lawyer and accepted they offered him the duty list. There is no rational reason advanced by the defence for the police to seek to exclude Mr King from speaking to a particular lawyer. Mr King’s evidence about that is unconvincing.
[44] Mr King’s comment “I can’t speak to my lawyer right now” is insufficient to disturb the clear acknowledgement signed by him that he did not want to speak to a lawyer.
[45] Even putting Constable Everson’s notes to one side, there was ample evidence before Judge Ronayne for the Judge to prefer the evidence of Constables Everson and Turner and to find the charge proved beyond reasonable doubt.
Result
[46] For those reasons the appeal is dismissed. The suspension of sentence is lifted. The disqualification is to apply from midnight on Wednesday, 30 May 2018.
Venning J
0
6
0