M v Police HC Auckland Cri-2009-404-73

[2009] NZHC 1203

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000073

M 

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 September 2009

Appearances: C Mitchell for Appellant

P Singh for Respondent

Judgment:      8 September 2009 at 4.30 p.m.

JUDGMENT OF VENNING J

This judgment was delivered by me on 8 September 2009 at 4.30 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Auckland

Copy to:            C Mitchell, Auckland

M   V NEW ZEALAND POLICE HC AK CRI-2009-404-000073  8 September 2009

[1]      Following a defended hearing in the District Court at North Shore Judge Morris convicted the appellant on a charge of driving with excess blood alcohol. The appellant admitted a related charge of careless driving.  The appellant appeals against the conviction for driving with excess blood alcohol on the grounds of a breach of her rights under the New Zealand Bill of Rights Act 1990.

Background

[2]      On 19 September 2008 the appellant caused a car accident by carelessly driving into the rear of another car.   There was sufficient force in the accident to push that car into the rear of the car in front of it.  The airbag in the appellant’s car inflated.  The appellant was attended by neighbours and other people at the scene. She was uninjured but extremely upset.  She repeatedly said that she did not want the police to be called.  But the police were called and arrived about 20 minutes after the accident.    The  appellant  was  spoken  to  at  the  scene  by  Constable  Weir.    The constable administered a breath-screening test, then gave the appellant her Bill of Rights advice and asked her to accompany him to the North Shore Policing Centre. At the station the constable administered an evidentiary breath test and subsequently the appellant exercised her right to have a blood test taken.  While at the station the officer explained her Bill of Rights a second time.   The evidentiary breath test showed a reading of 974 micrograms of alcohol per litre of breath.  The analysis of blood showed 207 milligrams of alcohol per 100 millilitres.

[3]      At the hearing before Judge Morris, the  respondent  gave evidence.   She accepted that Constable Weir advised her of her rights but said that she had no knowledge of how to get hold of a lawyer that night and that a lawyer would have been useful to her.

[4]      Judge Morris discussed the decisions of R v Mallinson [1993] 1 NZLR 528 and R v Schriek [1997] 2 NZLR 139. The Judge then noted the appellant accepted the advice on the Bill of Rights forms had been read to her on two occasions and that, while she was intoxicated, the evidence of the officer and the civilian witness was that she was able to communicate with them. The Judge also noted that while the appellant was a Russian, she had been in New Zealand for nine years and was undertaking tertiary studies. The Judge concluded that neither the level of intoxication nor the fact the appellant was upset affected her ability to communicate. The Judge found that the police had demonstrated the appellant well knew she was able to have a lawyer and had elected not to have a lawyer. She did not consider the police were required to provide the appellant with a list of lawyers. She found the case proved.

The appellant’s submissions

[5]      Mr Mitchell submitted that, in this case, what he referred to as “the Mallinson test” was triggered in that the appellant did not fully understand her right to have access to a lawyer and that the police should have provided a list of lawyers to her to ensure that she properly understood that right.

Decision

[6]      In Mallinson the Court of Appeal confirmed that the burden of establishing the accused understood their rights under the New Zealand Bill of Rights Act rests on the Crown.   Where, following advice as to the right, the accused responds affirmatively that will lead to an inference the accused did understand their rights. But more than a bare statement of the rights and a bare acknowledgement will likely be required where, for  example, the person arrested is intoxicated or  under  the influence of drugs or appears to have a mental or physical disability which could interfere with their comprehension of the rights.  Importantly the Court confirmed:

The crucial question is whether it was brought home to the arrested person that he or she had those rights.

At p 531

[7]      In the later case of Schriek, in response to a question from the detective:  “Do you wish to have a lawyer present?” the 17-year-old had said “Don’t have a lawyer”. The Court of Appeal considered her answer indicated at least an ambiguity as to whether she understood the nature of the right of which she was informed and that it may not have occurred to her that she could obtain, without cost, the temporary services of a lawyer not previously known to her specifically to advise her about the situation she faced.  The Court was therefore not satisfied that the nature of the right to consult and instruct a solicitor before questioning was brought home to her.  As the Crown had not discharged the burden in that respect the appeal was allowed.

[8]      In the present case there are factors which engage consideration of whether the appellant understood her rights, particularly her right to a lawyer.  The question is whether, in the context of all of the evidence before the Court, the Judge was right to conclude that the police had satisfied the onus on it to bring home to the appellant her right to consult a lawyer and that if she did not have a lawyer one would be provided to her free of charge.

[9]      That is a different issue to the one posed by Mr Mitchell, which was whether, in the circumstances of this case, the police were required to provide a list of lawyers to the appellant to ensure she understood her right to legal advice.  While provision of a list of lawyers might well be helpful and could have put the matter beyond doubt in the present case (and was commented on favourably as a practice by the Court of Appeal in Schriek), there is no requirement for a list of lawyers to be provided to satisfy the obligation to advise an accused of their right to consult a lawyer.

[10]     The appellant accepts that Constable Weir read her, her rights under the New Zealand Bill of Rights Act and the further explanation provided for in the Practice Note issued under s 30(6) of the Evidence Act 2006.  But Mr Mitchell submitted that given the level of the appellant’s intoxication in this case, she was upset, and English is a second language, the fact that Constable Weir read her rights as was required was not of itself sufficient.

[11]     Mr Mitchell submitted that the District Court Judge could not be satisfied that it had been brought home to the appellant that she had the right to consult a lawyer.

[12]     Two matters can be cleared away at this stage.  During the course of dealing with the appellant Constable Weir was called away to  assist  a colleague.    The colleague had shouted out for assistance in the adjoining room because the person she was dealing with was trying to ingest a number of pills.  Mr Mitchell suggested that  had  added  to  the  stress  the  appellant  was  facing  and  would  have  further distracted her and affected her understanding of her rights.  The answer to that lies in the evidence.  The appellant did not give any evidence about the incident.  Constable Weir was cross-examined about it.  When asked what the appellant’s demeanour was when he returned back to the room with her, his answer was:

She seemed calm, so she was sitting, still sitting in the EBA suite where I

had left her.

[13]     There  is  one  other  issue  that  is  equivocal.    Ms  Singh  submitted  it  was significant that immediately after being given the option of having a blood test the appellant agreed to do so.  She submitted that supported the inference the appellant understood the process.   Mr Mitchell countered that by submitting it showed the appellant did not have a full understanding and was simply going along with the process.  In my judgment the matter is essentially neutral.  It really does not advance the matter for either party.

[14]     The evidence of those dealing with the appellant, both the civilian witness and Constable Weir, was that she was able to understand what she was involved in despite her relatively high alcohol readings.

[15]     When the appellant got out of the car she staggered and smelt of alcohol.  But Mr Clark, the civilian witness, said that when she got out of the car she apologised for the accident.  She relayed to them that she had a child, was a single mother and that she would pay for everything.  She said she was sorry and asked those at the scene  not  to  call  the  police.    It  can  be  inferred  from  that,  that  the  appellant understood the seriousness of the situation that she was facing.   When the officer arrived about 20 minutes later he spoke to her, administered the breath screening test

and gave her a Bill of Rights caution.  Constable Weir said that she didn’t appear to be stumbling or anything like that at that time.  When asked how her demeanour was at the station Constable Weir accepted she smelt of alcohol but that was really the extent of the evidence about how affected the appellant was.  The evidence of the effect the alcohol had on the appellant does not support the submission she did not understand  her  rights.     Her  behaviour  and  response  supports  a  finding  she appreciated and understood her situation.

[16]     Mr Clark and Constable Weir both gave evidence that the appellant was upset and crying, at times crying uncontrollably.  Mr Mitchell referred to the evidence of Constable Weir that “she was crying uncontrollably, sobbing and very, very upset” when he spoke to her initially at the roadside.  When asked about her demeanour at the station Constable Weir said:

She was still upset but starting to become coherent, I guess, or able to engage in conversation which she really wasn’t at the side of the road.

[17]     Mr Mitchell tried to take from that, that the appellant was so incoherent that she did not understand her rights.  But I take from the evidence that by the time she had reached the station, while still upset, the appellant was not crying uncontrollably as  she  had  been  earlier.    My reading  of  the  evidence  suggests  that  it  was  the appellant who may have been hard to understand because she was upset, rather than any ability on the part of the appellant to understand.

[18]     Mr  Mitchell  also  sought  to  place  some  emphasis  on  Constable  Weir’s evidence that at the time he explained the Bill of Rights a second time, the appellant “was coming right”.  But importantly the officer went on to say she was:

... starting to become quite upset at the fact that we were going through this process.

In cross-examination Constable Weir clarified that towards the end of the proceeding the appellant was becoming slightly abusive.

[19]   Undoubtedly the appellant was initially upset by the accident.    But approximately 20 minutes had elapsed between the accident and the police arriving at the scene.  Then a further period of time elapsed before she was spoken to at the

station.  She had calmed down at the station to the extent she was able to deal with the procedures the police  administered to her  and, as the process  went  on,  she became angry or annoyed at it.

[20]     The last issue is that of language.  English is the appellant’s second language but she gave her evidence in English at the hearing.  The transcript is clear enough. She was able to express herself and concepts well.  She has been in New Zealand for nine years and is studying for a tertiary qualification.  When asked about the issue of whether he considered bringing in an interpreter Constable Weir’s candid response was:

No, that didn’t cross my mind because her English was of a good standard.

[21]     Importantly Constable Weir confirmed that apart from reading the formal Bill of Rights advice as set out on the first and second forms (which expressly follow the requirement in the Practice Note) he also explained the right to the appellant in plain English.   He was not seriously challenged on that evidence.   The appellant also signed the form that confirmed if she wished to consult and instruct a lawyer a telephone would be made available for that purpose as soon as practicable and before she underwent an evidential breath test, blood test or both.  While the appellant said she had not read the documents she accepted the constable had read her rights to her. The constable circled the sheet to confirm that in response to the question of “Would you like to consult with a lawyer” the appellant said no.

[22]     Taken as a whole the evidence was sufficient for the Judge to be satisfied beyond reasonable doubt that the appellant understood that she had the right to consult a solicitor and that if she could not afford one, one would be provided free of charge, but that she elected not to exercise that right.

[23]     As observed by the Court in Mallinson at p 531:

... there is no duty on the police when informing persons arrested of their right to a lawyer to go on to give advice designed to facilitate the exercise of that right. The police officer may decide to do so in order to assist in the understanding of the  right.  But  any  duty  to  facilitate  the  manner  of  its exercise is not triggered until there is an indication by the person arrested of the desire to consult a lawyer. What, if anything, is then required of the police will depend on the particular circumstances.

[24]     There was no need for Constable Weir to have provided her with a list of lawyers to ensure that she understood her right.   At no stage did the appellant indicate to the officer that she wished to speak to a lawyer nor was there any confusion  or  ambiguity  arising  out  of  her  response  to  the  police  officer.    The appellant herself did not say in evidence “I don’t have a lawyer” as was the case in Schriek.  In response to a question whether she had a lawyer she said “no”.  But she was told by the officer she could have one provided free of charge so that even if she did not have one, she knew one could be made available free of charge.  There was no need to provide a list to confirm that.

[25]     My review of the evidence leads me to conclude the Judge was entitled to reject the appellant’s evidence that she did not realise she was entitled to talk to a lawyer for free and find the appellant had her rights explained to her and understood them.

Result

[26]     The appeal is dismissed.  There is no need to consider the alternative issue of whether an application of s 30 of the Evidence Act 2006 would have led to the

admission of the evidential blood test in any event.

Venning J