M v Police HC Auckland CRI 2007-404-227
[2008] NZHC 606
•1 May 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-404-000227
BETWEEN M
Intending Appellant
AND POLICE
Intended Respondent
Hearing: 29 April 2008
Counsel: Z Mohamed for Intending Appellant
P Singh for Intended Respondent
Judgment: 1 May 2008 at 4:30pm
JUDGMENT OF WILLIAMS J
This judgment was delivered by
Hon. Justice Williams
On
1 May 2008 at 4:30pm
Pursuant to Rule 540(4) of the High Court Rules
……………………………………………..
Registrar/Deputy Registrar
Date:………………………
Leave is granted to appeal the points of law outlined in paragraphs [16] and [17] of this judgment, but with leave reserved to the parties to apply to amend the Court’s formulation of the points of law if they take the view the formulation does not adequately encapsulate the points of law they wish to
raise.
M V POLICE HC AK CRI 2007-404-000227 1 May 2008
Issue
[1] In a reserved judgment delivered on 9 November 2007, this Court dismissed an appeal against conviction brought by Mr M , the intending appellant.
[2] On 27 November 2007, Mr M sought leave to appeal to the Court of Appeal on what he originally claimed were four questions of law justifying a further appeal.
[3] Following minutes and conferences with counsel, the leave application was heard on 29 April 2008. At the conclusion of the hearing, counsel were advised leave would be granted for a further appeal in respect of the first two points of law (though in modified form) but leave would be declined on the third ground. During the hearing, Mr Mohamed, counsel for Mr M , withdrew the fourth ground.
Grounds on which leave to appeal sought
[4] In Mr Mohamed’s formulation, the points of law on which Mr M sought appeal were:
“1.Where a detainee has advised the constable in writing of his/her wish to consult a lawyer, the constable maintains silence for say
16 minutes taking no steps to facilitate consultation in private, is it then the detainee's’ burden and/or obligation to seek or insist upon facilitation of his rights under s.23, New Zealand Bill of Rights Act
1990? (Does the extended principle in R v Alo [2007] NZCA 172
(CA155/06, 3 May 2007) apply?)
2.Does a detainee waive his/her rights to consult and instruct a lawyer in the situation where he circles “Yes” and signs a form, which requires the taking of his blood and requires a “Yes or No” answer and specifies the serious consequences of refusal?
3. When a Trial Judge makes a finding of fact:
‘it is quite clear to me that Mr M did change his mind and did in some way convey that to the police. So that the
10 minute period started, there is no fuss about it, there is no
suggestion on any ‘well hang on I want to call a lawyer’. He
has changed his mind, he has not conveyed why and the process goes ahead and he is a man who obviously on the readings has had a great deal to drink. So he is not going to be as logical on the night as he is here in Court today.’,
is the High Court correct in substituting that finding by a different finding of fact ignoring the obvious bias of the Trial Judge in favour of the police? When the Trial Judge expresses uncertainty, is it open to the Appellate Court to provide it?”
Background
[5] For the purposes of the leave application, the following citations from the
9 November judgment adequately set out the background:
“[1] On 1 August 2007, at the conclusion of a defended hearing in the Manukau District Court the appellant, Mr M , was convicted on a count alleging that on 22 September 2006 he drove a motor vehicle on Saleyards Road, Otahuhu in South Auckland whilst the proportion of alcohol in his blood was 234 mgms of alcohol per 100 mls of blood against a statutory limit of 80 mgms per 100 mls. He was disqualified from holding a driver’s licence for eight months and fined $1,000 together with Court costs and analyst’s fees totalling $303.00.
[3] Though only indistinctly identified in the District Court and in Mr M ’s notice of appeal amongst a welter of points of lesser moment, by the time of the hearing in this Court the principal grounds of appeal were that:
a)Mr M was not properly afforded the facility to exercise his right to consult and instruct a lawyer after indicating his wish so to do; and
b)The evidence that Mr M waived his right to legal advice was insufficient to constitute a waiver at law.
Facts
[4] By the end of the District Court hearing, it appears the following had been established as the facts:
a)At 2244 hrs on 22 September 2006, Mr M was stopped by Police at a checkpoint on Saleyards Road.
b)At 2245 hrs Mr M failed a test administered by a passive breath-testing device and then a breath-screening test. He was shown the results and Constable Sleep then advised Mr M he was required to accompany him to the
colloquially named “booze bus” parked nearby for an evidential breath test, blood test or both.
c)At 2250 hrs Constable Sleep advised Mr M of his right under the New Zealand Bill of Rights Act 1990 to consult and instruct a lawyer without delay and in private, and to refrain from making a statement. The Police form signed by Mr M acknowledged the “rights will continue throughout the breath/blood alcohol procedures” and that a telephone would be made available for him to exercise his rights before he underwent the evidential breath-test, blood- test or both, with a reasonable time being made available to take legal advice. Mr M circled “Yes” on that form indicating his wish to exercise those rights.
d)In the private booth in the bus, Mr M telephoned his lawyer, though probably using his cellphone rather than the telephone installed in the booth. If so, his phone records produced at the hearing showed that call being made at 2302 hrs.
e) That what the evidential breath-test form showed was at
2301 hrs and 2302 hrs Mr M underwent the required evidential breath test, giving results of 944 and 888
micrograms of alcohol per litre of breath. It was explained
in evidence that there is sometimes a disparity between the
Seres Ethylometre device’s internal clock and the administering constable’s watch.
f) At 2305 hrs Constable Sleep notified Mr M of the evidential breath test result immediately after administering the test and at 2311 hrs read him the Police “Advice of Positive Evidential Breath Test” form which set out the reading, notified him that if he did not request a blood test within 10 minutes the “evidential breath test could be evidence of an offence” and that if he wished to undergo a blood test he must request one within 10 minutes and the result could be used to support a charge relating to his blood- alcohol concentration. Mr M endorsed acknowledgement of that advice “refused”.
g) At 2311 hrs Mr M ’s phone account showed a further call to his lawyer’s number. He said in evidence the call was made in the vicinity of the Constable from Mr M ’s cellphone and was to advise his lawyer of the result of the evidential breath test.
h)At 2317 hrs Mr M was given the second advice of his rights under the New Zealand Bill of Rights Act 1990. It was in the same printed form as the first advice. Mr M ringed “Yes” to the question “Would you like to consult with a lawyer?”.
i) According to the Police Procedure Sheet, Mr M ’s 10- minute period for opting for legal advice commenced at
2320 hrs and “Period Finished or Suspect Requested Blood”
occurred at 2333 hrs. Mr M circled “Yes” on the Police Blood Specimen Form in answer to the question whether he consented to a blood specimen being taken.
j)The blood sample was taken by a nurse at 2345 hrs and was analysed as containing 234 milligrams of alcohol per 100 millilitres of blood.
[6] After saying he advised Mr M for the second time of his rights, Constable Sleep was asked what occurred during the 10-minute period from
2320 hrs. He said:
A. The – I left the driver alone so he could – and didn’t speak to him in that 10 minute period.
Q. And at the conclusion of that 10 minute period?
A. At the conclusion of the 10 minute period the – the driver requested a blood test.
Q. So what did you do next then?
A. I then filled out the blood specimen form in which the driver gives his consent to the blood being taken.
…
Q. Did you read that to him in its entirety? A. Yes I did.
Q. And what was the response if any of the defendant?
A. He agreed to and signed the consent form.
(p 7)
[7] In cross-examination the following passage occurred
Q. Constable, what did the defendant say about the blood test? Did you tell him anything else about as to whether the time had ended or was about to end, the 10 minutes?
A. I can only say that if [he] had asked me how long to go in the
10 minutes I would have told him, but I can’t recall whether or not I
spoke to him during that time.
Q. At 11.33pm did the 10 minute period end, and refer to your brief of evidence if (interrupted)
A. At 11.33 it (interrupted)
Q. Its 11.33. And at 11.33 if you look at paragraph – page 7 of your brief of evidence to refresh your memory?
A. Yes at 11.33 I told him that the 10 minute period was up and asked him if he wanted a blood test.
Q. Yes, well what were you written down there that if he wished to undergo a blood test, is that what you wrote?
A. Yes.
Q. And he answered yes, did he? A. Yes.
(p 18)
[8] It seems the brief of evidence to which the constable was referred was prepared some time after the incident as an aid to the prosecutor, but since the brief of evidence was not produced as an exhibit, its contents did not become evidence other than to the extent they were accepted by the constable.
[9] For completeness, it should be noted that other remarks in cross- examination suggested Mr M told Constable Sleep that he “wanted to speak to a lawyer and then changed his mind”.
[10] In cross-examination, the constable was adamant Mr M made only two telephone calls despite it being put to him that in an earlier brief of evidence he had said Mr M changed his mind after circling the form at
2317 hrs that he wished to take legal advice.
[11] There was also cross-examination as to whether Mr M wished to make a third call to his lawyer but was prevented from doing so because the cubicle was occupied. The constable said that there was not “any possibility that I would have refused someone’s request to call a lawyer”.
[12] When his “no case” submission at the conclusion of the Police case was declined, Mr M gave evidence. He said the earlier of his two calls to his lawyer was made from the private booth but on his cellphone, and the second was at the constable’s desk immediately on being advised of the evidential breath test result. He circled the option “Yes” on the second Bill of Rights form at 2317 hrs but the booth was occupied and he was unable to make his third call. He said he remained at the constable’s desk during the
10 minute period with the constable “walking round the bus” during that time …
[13] A little later, Mr M said “it wasn’t my place to ask the police officer for a phone call”.”
[6] In the discussion on the issues in the appeal, the judgment held:
“[22] By 2317 hrs, testing procedures had been completed to the point where Mr M was aware of the positive evidential breath test and its reading. He selected the option then available to him of the right to consult a lawyer. It is important to remember that he had spoken to his lawyer only
six and 15 minutes beforehand so the Police could have been in no doubt that his wish to take further legal advice following being advised of the evidential breath test result was a genuine one which Mr M wished to implement.
[23] Because that was not a prime focus of the prosecution, the evidence was unclear precisely what happened between 2317 hrs and the end of the 10 minute allowance at 2333 hrs. From the evidence earlier reviewed, it seems, first, that the constable did not speak to Mr M throughout that 16-minute period and, secondly, that Mr M probably remained seated at the constable’s desk in the body of the Police facility throughout the whole of that time. He had his cellphone with him and had used it twice previously but it seems likely that he did not use it during that 16 minute period because he knew of his right to take legal advice in private and had done so on the first occasion. The second call was simply to advise his lawyer of the result and since the call lasted only for 1 minute 16 seconds, it seems unlikely he was given much legal advice. In any event, his receipt of such advice would have been private in the sense it could not be overheard.
[24] Why Mr M did not actively pursue his request for facilities to be made available to him to seek further legal advice after 2317 hrs was not examined in detail in evidence. For part at least of that period, it seems the private booth in the facility was occupied, but the evidence did not expressly cover whether the booth was occupied for the entire 16 minutes. There was no suggestion Mr M asked to be escorted outside to speak with his lawyer in view, but out of earshot, of the Police, nor that he objected when the 10-minute period expired that his request for further legal advice had not been accomplished. He was asked if he would consent to a blood specimen being taken, answered affirmatively and signed the Blood Specimen Form to that effect.”
[7] Then followed reference to R v Mallinson [1993] 1 NZLR 528, 531 and
R v Alo [2008] 1 NZLR 168, 188-189, paras [71]-[72].
[8] The judgment then turned to the question of waiver discussing R v Kohler
[1993] 3 NZLR 129, 133-134.
[9] On the first ground of appeal, the conclusions were:
“[31] Seen in that light, at 2317 hrs Mr M advised the Police in writing of his wish to exercise his right to take further legal advice concerning his position. Apart from the fact that the private booth in the facility was apparently occupied for part at least of the 16 minute interval between 2317-2333 hrs, the evidence simply did not cover why Mr M did nothing more about exercising that choice, nor, more importantly, apart from Constable Sleep’s inquiry at the end of the 10 minute period, did it disclose any inquiry by the Police about exercising his choice or assisting him to do so throughout that period. Then, at 2333 hrs, Constable Sleep read the Blood Specimen Form to Mr M and the appellant circled “Yes” to consent to the blood specimen being taken, but he did that without the
benefit of further legal advice as to whether that was the better course for someone in his position to follow and the reason for him agreeing to that course was simply not traversed in evidence.
[32] As the review of cases such as Mallinson and Alo shows, intoxication may be one of the circumstances police officers should take into account in deciding whether more is required of them to facilitate the right to counsel than mere advice of the right. The critical question is whether police officers may be aware the person being interviewed may not appreciate that right. Here, Mr M was driving with a blood-alcohol level nearly thrice the permissible level, but, even so, it is clear that he was not a person under any type of special disadvantage such as those discussed in Mallinson, Alo and the cases reviewed in those decisions. The fact he appreciated his rights is plainly demonstrated by his earlier exercise of them twice.
[33] So, on the ground of appeal relating to whether Police complied with their obligations in respect of facilitating Mr M ’s expressed wish to consult his lawyer a third time, the answer on the evidence would appear to be that he was advised of his rights on at least two occasions, understood those rights in the sense of exercising them on those two occasions and recorded his understanding of the rights and the options available to him in writing. And, apart from the possibility that the booth was occupied for part at least of the 16 minute period, Mr M had the practical ability to exercise those rights – as he had done previously – and seemingly made no inquiry or protest about his circumstances during or at the end of the 16 minute period.
[34] In light of that, there is no basis for this Court to differ from the District Court in the finding that the Police satisfied their obligations in relation to advising Mr M of his right to take legal advice.”
[10] On the question of waiver, the judgment held:
“[35] Turning to the question of waiver, the critical passage in the evidence is that earlier cited where Constable Sleep read the whole of the Blood Specimen Form to Mr M , following which Mr M agreed to the blood sample being taken from him, ringed “Yes” and signed the form of consent.
[36] In terms of Kohler, waiver must be conscious, informed and voluntary and cannot be implied from silence.
[37] Here, there appears to have been silence between Constable Sleep and Mr M for the whole of the 16 minute period in the sense there was no conversation throughout that time but at the end of that period the form was read to him, he clearly understood it, he must have known he was being asked to consent to a blood sample being taken from him, he replied affirmatively and signed the form and accordingly there is again no basis to differ from the District Court in the conclusion that Mr M ’s signed consent to the taking of the blood sample satisfied the requirements for waiver as set out in Kohler.”
[11] Counsel agreed the requirements for granting leave for a second appeal in cases such as this are that the proposing appellant should demonstrate a question of law of general or public importance such that the cost and delay of a second appeal in the Court of Appeal is justified and the High Court has a residual discretion to exercise in relation to granting leave (Skokandich v Police [1994] 3 NZLR 247, R v Slater [1997] 1 NZLR 211).
Submissions
[12] Mr Mohamed submitted that what may be called, for shorthand purposes, the facilitation question, raised issues of general or public importance affecting the many persons who are annually required to submit to the blood and breath alcohol testing regime.
[13] He also submitted that although Kohler remains the law, the facts in this case raise issues of law beyond waiver as defined in that decision.
[14] For the police, Ms Singh submitted that all three of the points on which leave was sought were essentially matters of fact or matters about which evidence had not been called in the District Court. An additional aspect of that submission on the waiver question was that the way in which Mr M ’s defence was run in the District Court did not satisfy s 92 of the Evidence Act 2006.
Discussion and decision
First ground on which leave sought
[15] As Mr Mohamed was disposed to accept during the hearing, Mr M ’s proposed first ground of appeal is infelitiously drafted and requires amendment.
“Where a detainee is undergoing prescribed breath or blood alcohol procedures and has advised a constable in writing of his/her wish to consult a lawyer, does it, in the factual circumstances of Mr M ’s case, satisfy police legal obligations under the New Zealand Bill of Rights Act 1990, the Land Transport Act 1998 and the applicable Regulations, if police take no positive action during the allowed 10 minute period to facilitate the detainee’s wish to consult a lawyer.”
[17] The nub of the second question is as follows:
“Does a detainee undergoing breath or blood alcohol testing procedures, in the factual circumstances of Mr M ’s case, waive his/her rights to consult and instruct a lawyer when, at the end of the allowed 10 minute period for opting for legal advice, he circles “Yes” on the Police Blood Specimen Form in answer to the question whether he consents to a blood specimen being taken.”
[18] As was made clear during the hearing, the proposed third ground of appeal raises no question of law, certainly not one of general or public importance. It raises only issues of fact or procedure not warranting a second appeal.
[19] As mentioned, the fourth ground of appeal was withdrawn during the hearing.
[20] It should also be noted that Mr Mohamed raised a suggested ground of appeal that the District Court Judge who dealt with the prosecution was biased. Wisely, he did not pursue that ground at the hearing.
Result
[21] Leave is granted to appeal the two points of law outlined in paragraphs [16] and [17] of this judgment, but with leave reserved to the parties to apply to amend the Court’s formulation of the points of law if they take the view the formulation
does not adequately encapsulate the points of law they wish to raise.
Solicitors:
Crown Solicitor, Auckland, for intending appellant
…………………………..
WILLIAMS J.
Zahir K Mohamed, P O Box 39 119, Howick, for intended respondent
0