M v Police HC Auckland CRI 2006-404-425

[2007] NZHC 480

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-425

BETWEEN  M

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         14 May 2007

Counsel:        B J Hart and A J Trenwith for Appellant

S Wimsett for Respondent

Judgment:      14 May 2007

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Auckland

Counsel:

B Hart, Aucklnad

A J Trenwith, Auckland

M V NEW ZEALAND POLICE HC AK CRI 2006-404-425  14 May 2007

Introduction

[1]      On 6 August 2005, Mr M   was driving a motor vehicle on Great South Road.   He was stopped.   Breath alcohol testing took place.   Subsequently a blood test was requested and administered.

[2]      Mr M   was charged with driving a motor vehicle while the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood.  The evidence established that the reading was 127 milligrams of alcohol per

100 millilitres of blood.  Mr M   pleaded not guilty to the charge.

[3]      A  defended  hearing  took  place  in  the  District  Court  at  Papakura  on  14

November 2006 before Judge Simpson.  No issue arose as to the way in which the various tests were carried out or as to the ultimate finding in respect of the blood alcohol concentration.

[4]      The real issue at the defended hearing was whether the police officers dealing with the case had complied with the obligation to facilitate the right to consult and instruct a lawyer without delay set out in s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).  That section provides:

23    Rights of persons arrested or detained

(1)     Everyone who is arrested or who is detained under any enactment—

…

(b)     Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

The Bill of Rights issue

[5]      Argument in the District Court concentrated on a decision of John Hansen J in another case coincidentally named McMillan v Police (High Court Christchurch A176/95, 17 August 1995).  In that case the Judge had referred to dicta of Cooke P in Ministry of Transport v Noort: Police v Curran [1992] 3 NZLR 260 (CA) at 274,

in which the President had said that a driver who cannot immediately contact his or her own lawyer should normally be allowed to try one or two others.

[6]      In  this  case,  the  contest  is  over  whether  Mr  M    did  specify  a particular lawyer with whom he wished to speak.   The Crown accept, that if that request  had been  made,  there was a legal obligation  for  the Police to  facilitate contact  with that  particular  lawyer.   It is also  accepted (necessarily because the police officers did not accept that a specific request was made) that no reasonable efforts were made to enable contact with a named lawyer.

[7]      In cross-examination of the constable who had stopped Mr M  , Mr Trenwith put specifically to the constable the possibility that Mr M   did tell him that he wished to contact a particular lawyer.  The constable responded that he did not recall whether Mr M   made that specific request to him.

[8]      Subsequently Mr M   elected to give evidence.  His evidence on this point is summarised in the Notes of Evidence as follows:

So what did you have to do after [the roadside testing], if anything?…..He said to me that I was required to accompany him back to the Papakura Police Station and at that point I said to him that I requested would I be able to speak to my lawyer.

And you’ve heard the Constable say that you weren’t offered a cellphone at that point?…..Correct.

Moving to when you arrived back at the station.  Sorry, just take a step back. You said that the Constable told you that you’d be able to speak with a lawyer?…..Yes he did.

Did he advise you when you’d be able to do that?…..He said at some point I

would be given an opportunity to speak to a lawyer.

Just turning to when you get back to the station.  Now as we’ve heard you heard the officer  say  that  he  gave  you  the bill  of  rights  form and  you indicated that you wanted to speak with a lawyer?….Correct.

And that’s correct.   Was there any particular lawyer you wanted to speak to?…..Yes there was, it was my own lawyer.

Who was that?….Colin McKay.

And just for the Court’s benefit, why that particular lawyer?…..He has been my lawyer for 20 odd years with all my legal matters.

Did you have his number on you at the time?…..No I did not.

Were you able to speak with Mr McKay?….No I wasn’t.  I requested, once I got back to the station to speak to my lawyer.   When they asked me if I wanted to speak to a lawyer, I said I’d like to speak to my own lawyer.  The Sergeant that was accompanying [Constable] Green through the full course of events including being stopped on the side of the road asked me if I had his number with me.  I said no I did not.  Then the Sergeant instructed the Constable to get the lawyer duty list.

Were you given a copy of the white pages or the yellow pages?….No I

wasn’t.

[9]      In cross-examination, it was not put to Mr M   that he was either lying or mistaken on this issue.  There was, however, some question from the prosecuting Sergeant about knowledge on the part of Mr M   of the name of the lawyer and whether he knew his home address.  Ultimately, however, no headway appears to have been made in relation to Mr M  ’s evidence in chief.

[10]     In  those  circumstances,  the  District  Court  Judge  was  confronted  with plausible evidence from Mr M   which was not discredited in cross- examination.  On the other hand, she had evidence from the constable that he did not recall (in the sense of did not remember) any specific conversation to that effect.

[11]     In her oral decision, Judge Simpson recounted the evidence but, in error, suggested that there appeared to be no evidence of a specific name having been communicated to a police officer.   The authority of McMillan v Police was specifically referred to Judge Simpson by Mr Trenwith.

[12]     Her Honour then made the following findings:

[12]     In this particular case having listened to the Police Officer, I do not think that the Police Officer was intending to be obstructive.  I think he was doing his level best to make contact with a lawyer and it is apparent from the way in which he gave his evidence that a number of attempts were made over  some  minutes  to  contact  different  lawyers.     Firstly,  Mr  Bruce M   was given the opportunity to select from a list and then the Police Officer  went  through the list  name by name until  he actually  contacted somebody.   There were plenty of opportunities for Mr M   to communicate to the Police Officer that he wanted to speak to a particular lawyer.   The conversation took place at the Police Station.   I assume that telephone books would have been available, and had Mr M   been able to communicate his requirements to the Police Officer, then the Police Officer would have made the telephone book available.  That involves some

small level of speculation on my part, but given the clear efforts made by the Officer and detail by him in evidence today, I accept that he was making a genuine effort to ensure that Mr M   was given the full amplitude of his rights at the relevant time.

[13]     I find, therefore, that Mr M   was given his rights under the New Zealand Bill of Rights Act and although he did not make contact with his own lawyer, he was able to take advice from another person.

[13]     Mr Wimsett sought to persuade me that the evidence of specific request was not sufficient to justify a finding of failure to comply with the Bill of Rights obligations.   Further, he has endeavoured to submit that the Judge was entitled to conclude that rights were given for the reasons she purported to give.

[14]     On the other hand, Mr Trenwith submits that the evidence was sufficient to request a specific lawyer and Mr Hart submitted that more reasons were required if Mr M  ’s evidence was to be rejected.

[15]     I agree with submissions from counsel for the appellant that the evidence was sufficient to conclude that a specific request to contact a specific lawyer was made. In the absence of that evidence being discredited, there must have been at least a reasonable doubt as to whether the prosecution had complied with its obligations under the Bill of Rights.

[16]     There were no plausible reasons suggested by the District Court Judge to explain how she could legitimately reject Mr M  ’s evidence on this topic. The reasoning appears to have been that, because Mr M   did not press the point hard enough and the officer did his best to comply with his obligations, the rights must have been complied with.

[17]     There are difficulties in assuming the need for a suspect to press the point of contact with specific lawyers.  If the point is pressed too far and compliance with the need for a breath or blood test to be taken is not made, the suspect could be at risk of a charge of failing to comply.  It should not be necessary to put a suspect at risk of such a charge.  The obligation is on the police officer to facilitate contact with the named lawyer.

Result

[18]     In those circumstances, I find that the charge was not proved to the required standard.

[19]     The appeal is allowed.  The conviction and sentence imposed are set aside.

P R Heath J