Lawrance v Police
[2025] NZHC 277
•25 February 2025
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI 2024-463-104
[2025] NZHC 277
BETWEEN ZEBULON CHARLES EVELEIGH LAWRANCE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 February 2025 Appearances:
T J Conder and J F McNally for the appellant R Jenson for the respondent
Judgment:
25 February 2025
JUDGMENT OF BLANCHARD J
[Appeal against Conviction]
This judgment was delivered by me on 25 February 2025 at 11.30 am Registrar/Deputy Registrar
Solicitors:
Holland Beckett, Tauranga Pollett Legal Ltd, Tauranga
LAWRANCE v NEW ZEALAND POLICE [2025] NZHC 277 [25 February 2025]
[1] Mr Lawrance appeals against a conviction for driving with excess breath alcohol (EBA).1 He pleaded guilty to the charge and was sentenced.2 However, he now appeals his conviction on the grounds that he had a defence available to him at the time of his plea, but he was not advised of that defence.
[2] Mr Lawrance’s defence relies on two arguments that were not explored prior to his plea:
(a)he was not provided the opportunity to consult a lawyer in private because the arresting officer sat in the back of the car with him while he spoke with a lawyer; and
(b)he was denied an effective opportunity to elect blood, because he understood he was required to travel approximately two hours to Rotorua if he wanted a blood test.
Factual overview
[3] On the evening of 22 June 2024, Mr Lawrance had drinks with friends and then made the decision to drive home to eat. On the way, he was stopped by a police officer, Constable Redman, who conducted breath procedures.
[4] Mr Lawrance failed a breath screening test and was asked to undergo an evidential breath test (EBT) in Constable Redman’s patrol car.
[5] Prior to the EBT, Mr Lawrance asked to speak to a lawyer. He wanted to speak to his own lawyer, but he was not able to. The reasons for this are unclear, but it was probably because it was Saturday night. Instead, he spoke to Mr Dutch, a lawyer listed on the PDLA (Police Detention Legal Assistance) List.
[6] This conversation took place in the back of Constable Redman’s car, with the police officer sitting next to Mr Lawrance for the duration of the call.
1 Land Transport Act 1998, s 56(1). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500.
2 Police v Lawrence [2024] NZDC 21872. Mr Berryman was fined $900 plus costs. He was also disqualified from driving for 28 days and an alcohol interlock order was made.
[7] Mr Lawrance then underwent the EBT, which returned a result of 868 micrograms per litre of breath, more than twice the legal limit.
[8] He was then told that he was able to elect a blood test instead of accepting the result. Mr Lawrance then asked to speak to Mr Dutch again, and a further call occurred. Again, Constable Redman was present in the back of the car during the call.
[9] What occurred next is in dispute. Mr Lawrance says that it was his understanding that a blood test could not be administered in Opotiki (the nearest town) and that he would instead have to travel to Rotorua to have a blood test. This is a drive of almost two hours and would have involved him leaving his father’s Jaguar on the side of the road for the duration. Weighing these options, Mr Lawrance says he felt forced to accept the EBT result.
[10] Constable Redman denies that a blood test was unavailable at Opotiki. He says that if a blood test was requested, it would have occurred in Opotiki. He denies ever suggesting to Mr Lawrance that a blood test would need to occur in Rotorua.
[11] Mr Lawrance was represented by a lawyer assigned by Legal Aid Services. He was advised that he had no defence to the charge and to plead guilty. He did so and was convicted and sentenced accordingly.
Test on appeal
[12] Under s 232 of the Criminal Procedure Act 2011, a conviction can be overturned if a miscarriage of justice has occurred for any reason.3 In Sungsuwan v R, the Supreme Court emphasised:4
… while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach.
[13] Where there is an appeal following a guilty plea, the grounds for an appeal are limited. In R v Le Page, it was held that there is no miscarriage of justice “where the
3 Criminal Procedure Act 2011, s 232(2)(c).
4 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [70].
appellant fully appreciated the merits of his position, and made an informed decision to plead guilty”. The appellant must make out a genuine misunderstanding or mistake.5
[14] In R v Merrilees, it was held that, if incorrect legal advice causes a defendant to “plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced”, then this can result in a miscarriage of justice of the kind described in Le Page.6
Right to consult a lawyer in private
[15] Constable Redman has provided an affidavit in which he accepts that he remained with Mr Lawrance during his phone calls with Mr Dutch in the manner I have described above. Mr Lawrance submits that this was inconsistent with the right to a lawyer guaranteed by s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA).
[16] The right to consult a lawyer, while stated briefly in the NZBORA, has been held to imply a number of requirements. One is that the right must be able to be exercised in private.7 The Chief Justice’s Practice Note on Police Questioning (s 30(6) Evidence Act 2006) records that the police caution must include informing a defendant of the right to consult and instruct a lawyer without delay and in private.
[17] There are exceptions to the right to consult a lawyer in private, but they are limited. In Kohler, the Court of Appeal referred to the need for “a realistic prospect of criminal conduct if the suspect is left unsupervised” before the right can be set aside.8
[18] In his affidavit evidence, Constable Redman explained the reason why he decided to remain in the vehicle with Mr Lawrance while he was using the phone. Although Mr Lawrance had his own phone and used it later to call a friend, for reasons
5 R v Le Page CA297/04, 28 April 2005 at [16]–[19].
6 R v Merrilees [2009] NZCA 59 at [33]–[34].
7 Police v Kohler [1993] 3 NZLR 129 (CA) at 133.
8 At 131–132.
which are unclear, the call was made on the constable’s phone. Constable Redman says that he was concerned about the security risk of Mr Lawrance using his phone. He was worried that Mr Lawrance might use the phone to access secure police applications on the device and he considered that he needed to be in the vehicle with Mr Lawrance to ensure that did not occur.
[19] His affidavit says that he was not able to monitor Mr Lawrance’s use of the phone from outside the car because:
(a)it was dark outside except for the patrol vehicle lights;
(b)the road is well-known for speeding and it would have been a safety risk if he had stood to the right or rear of the vehicle as he would have been exposed to traffic; and
(c)to the left of the vehicle was a grass verge with a steep decline, so if he had stood on that side of the vehicle, he would not have been able to monitor Mr Lawrance because he would have been below the patrol vehicle.
[20] Constable Redman says that iPhones have a built-in feature that cancels calls when the lockscreen button is pressed. He says it would have been possible for the call to be placed on speakerphone and the lockscreen activated without cancelling the call, but he did not know this at the time.
[21] I accept that Constable Redman genuinely believed that in the circumstances he was justified in remaining in the vehicle with Mr Lawrance. However, in my view, the situation did not justify a departure from the general position that a consultation with a lawyer should be conducted in private.
[22] Mr Lawrance had his own phone and could have used that to make the call. Constable Redman should have suggested that Mr Lawrance use his own phone to avoid any security concern.
[23] There was also no indication that Mr Lawrance might misbehave. The constable described Mr Lawrance as “very compliant”. His evidence also confirmed that “at no point [did] he [present] as aggressive or threatening toward me.” This is not a case where Mr Lawrance was belligerent and there might be concern about what he would do.9
[24] Finally, even if the option of using Mr Lawrance’s phone was not available and Constable Redman’s security concerns were justified, it must have been possible for the police officer to monitor Mr Lawrance from outside the vehicle. All he needed to do was watch to ensure that Mr Lawrance was holding the phone to his ear and speaking into it, as opposed to holding it in his hands and using it to view applications. I do not accept that the fact it was dark and the other constraints referred to by Constable Redman made this impossible.
[25] Having concluded that there was a breach of the NZBORA, I am satisfied the EBA evidence was improperly obtained. I must now decide whether it should be excluded under s 30 of the Evidence Act 2006. I have concluded that it should.
[26] The following factors support exclusion. First, the right in question is important. The right to a lawyer is foundational to a defendant’s other rights.
[27] Second, the EBA procedure sheet submitted in evidence shows that police are required to ask drivers whether they would like to speak to a lawyer on three occasions during the EBA process. This confirms that the right to a lawyer is central to the EBA process working properly, and therefore all EBA cases.
[28] Third, the offence of driving with excess breath alcohol is of course critical to road safety, but the offence is not overly serious when compared to all other possible offences.
[29] While I have found there were other reasonable options available to Constable Redman, I accept that he did not act deliberately, recklessly, or in bad faith. I treat this factor as neutral.
9 Compare Bevan v Police HC Auckland AP305/93, 7 May 1994.
[30] The Crown places particular emphasis on the fact that the breach appears not to have caused any prejudice to Mr Lawrance. It submits that Mr Lawrance and Mr Dutch spoke freely despite Constable Redman’s presence. This is not one of the matters listed in s 30(3) that the Court may have regard to, but the list is not exhaustive, and I accept it is relevant.
[31] However, I cannot be sure that the constable’s presence had no impact on the freedom with which Mr Lawrance and Mr Dutch spoke. I cannot rule out the possibility that his presence inhibited the two in some way and thereby materially altered the advice that Mr Lawrance received and his decision-making. Even if I were satisfied that the constable’s presence had no impact, I do not regard this factor as being sufficiently significant to change my overall view.
[32] Taking all these matters into account, my conclusion is that the evidence should be excluded.
[33] On this basis, I accept the submission for Mr Lawrance that he should have been advised that he had a defence to the charge. The absence of that advice undermines the integrity of his plea and leads to a miscarriage of justice. It is appropriate that his conviction be quashed. Given my conclusion that the EBA evidence should be excluded, acquittal should be substituted.
Right to a blood test
[34] As I have accepted Mr Lawrance’s first ground of appeal, I do not need to go on and consider the second ground.
Result
[35]The appeal is allowed.
[36]Mr Lawrance’s conviction is quashed. An acquittal is substituted.
Blanchard J
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