McGrath v Police HC Auckland CRI 2011-404-110
[2011] NZHC 2021
•20 December 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2011-404-110
BETWEEN SIMON MCGRATH Appellant
ANDTHE POLICE Respondent
Hearing: 15 November 2011
Appearances: A Haskett for appellant
Z Johnson for Police
Judgment: 20 December 2011
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 4.30 pm on Tuesday 20 December 2011
Solicitors:
A Haskett, Auckland [email protected]
Crown Solicitor Auckland [email protected]
MCGRATH V THE POLICE HC AK CRI 2011-404-110 20 December 2011
Introduction
[1] On the evening of 24 April 2009, the police had established an alcohol check point on Tamaki Drive, Auckland. The police operation was supported by what is colloquially known as a ―booze bus‖.
[2] The appellant was among the drivers stopped by the police. He failed both a breath screening test, and a subsequent evidential breath test, and then elected to give a blood specimen. On analysis that specimen was found to contain 118 mcg of alcohol per 100 mlls of blood, significantly in excess of the legal limit of 80 mcg.
[3] He was charged with driving while the proportion of alcohol in his blood exceeded the legal limit. He pleaded not guilty. His trial took place before Judge Davis in the Auckland District Court on 23 September 2010. In a reserved decision given on 22 November 2010, the Judge found the charge to have been proved. On
28 February 2011, the appellant was convicted by Judge Doogue and fined $500 with court costs of $132.89, medical expenses of $80 and analyst‘s fee of $93. He was also disqualified from holding or obtaining a motor driver‘s licence for a period of six months.
[4] He now appeals against his conviction on the following grounds:
(a) An alleged failure by the police to give the appellant accurate information in respect of his right to seek free legal advice without delay, in breach of s 23(1)(b) of the New Zealand Bill of Rights Act
1990 (NZBORA);
(b)Non-compliance with s 77(3) of the Land Transport Act 1998 (the Act) by failing to give the appellant timeous advice of the result of his evidential breath test.
(c) Non-compliance in various respects with ss 72 and 77(3) of the Act, and various breaches of ss 10, 21 and 23(5) of the NZBORA, arising
out of the circumstances in which he made his election to give a blood specimen, and of the conditions under which a blood specimen was actually taken;
(d)An alleged breach of s 25(b) of the NZBORA in respect of what is claimed to have been undue delay between the laying of the information on 14 May 2009, and the appellant‘s trial on
23 September 2010.
[5] I propose to consider first the appellant‘s argument, concerning the physical conditions under which the police took a specimen of blood from the appellant in the booze bus, following his election to do so.
Giving a blood specimen
[6] Mr Haskett advances a multi-layered argument in support of his contention that in the circumstances of this case, the appellant‘s blood specimen was obtained unlawfully, and that, accordingly, it could not be relied upon by the police. He argues that:
(a) the result of the blood test was not admissible because the specimen of blood was not taken in accordance with normal medical procedures;
(b)in the circumstances of this case, it was not practicable for the purposes of s 72(3) to take a specimen of blood on the booze bus and the police ought to have exercised their powers under that section to require the appellant to accompany a police officer to a place where the taking of a sample was practicable;
(c) there were breaches of ss 10, 21 and 23(5) of the New Zealand Bill of Rights Act arising out of the circumstances in which the blood specimen was obtained;
(d)while any deficiencies in the taking of a blood specimen might have been cured by an informed consent, no such consent was obtained from the appellant.
[7] The first of these arguments is concerned with the statutory scheme. Section 72(1) of the Act obliges a person who (as here) has failed an evidential breath test and elects to give a specimen of blood, to permit a medical practitioner or medical officer to take a blood specimen from that person when required to do so by an enforcement officer. The expression ―blood specimen‖ is defined in s 2 of the Act as meaning ―… a specimen of venous blood taken in accordance with normal medical procedures‖. It follows that a specimen of venous blood taken otherwise than in accordance with normal medical procedures will not be a ―blood specimen‖ for the purposes of the Act, and in particular ss 72 and 77.
[8] It is argued for the appellant that the circumstances attending the taking of his blood fell short of complying with normal medical procedures in two respects. First, he claims that this particular booze bus was (at least on the night in question) unstable, in that it rocked when anyone boarded or alighted from the vehicle, or when any person was moving around within it. Using a needle for that purpose was unsafe.
[9] Secondly, counsel for the appellant argues that normal medical procedures also require a degree of privacy.
Instability
[10] I deal first with the allegation of instability. The condition of the booze bus was the subject of evidence both from the police officer who attended to the appellant, and from the appellant himself. Constable Holmes was asked about the booze bus and its stability:1
Perhaps I‘ll put it this way, the bus is just a regular size heavy motor vehicle, is that right? …Yes.
So it‘s not over-wide, is it? … It would be unfair –
Perhaps if I could put it this way - … for me to say that, but, um, I mean
definitely when people step on and off the bus, the bus does move.
Sure? … And does rock back and forth. It does? … Yes.
[11] Constable Holmes had earlier confirmed that because the booze bus was unstable, the medical officer shouted out the words ―taking blood‖ when the needle was inserted (plainly to diminish the risk that there might be a mishap by reason of a sudden movement of the bus):2
With relation to the booze bus, there‘s no system set up which stops people coming in and out of the booze bus unannounced is there – they don‘t have to knock or ring or anything like that? …No there‘s front and rear steps, um, but standard procedure is that the only people allowed on the booze bus are those being dealt with directly by police.
Now you remember when the blood sample was taken from Mr McGrath,
you remember Ms Campbell yelling out the words, ‗Taking blood‘?
……Yes.
Do you remember what conversation occurred around that time? … No, um, possibly around everybody at a standstill on the bus so it didn‘t disrupt the needle going in.
[12] In evidence, the appellant confirmed Constable Holmes‘ evidence:3
Well what was the environment if you like on the booze bus itself? … It was a very unstable base, I think Constable Holmes referred to it, you know, you walk up the bus or the stairs and it rocks, um, there was(sic) quite a few people around, three or four officers, a couple of people being, um processed. There was a guy opposite me who was quite, um, aggressive in his nature towards the officer who was processing him. Um there was another woman in front of me who was fairly intoxicated. Just a lot of things happening on the bus.
[13] Mr McGrath had earlier given evidence in his examination in chief of his alarm at the procedures adopted on the booze bus:4
Now when the blood sample was taken, did Ms Campbell say anything at all? … She, um, explained taking blood which I found kind of nerve wracking at the time. I presume she‘s saying that so everyone would keep
2 Notes of evidence p 13-14, l 32-10.
3 Notes of evidence p 25 l.9-16.
still, it doesn‘t really stop everyone from coming in, up the stairs as the
needle is going into my arm.
So when you say to the effect that you were not happy about the blood being taken on the booze bus, what made you think originally that it would be taken somewhere else? … Well like I said, it was a medical procedure, Constable Holmes had said initially that we could be taken to another place, um, rightly or wrongly I would have presumed that would not have been the bus, I would have presumed possibly a hospital or somewhere more sterile and more private, um, it was basically in public as far as I was concerned, it was very embarrassing, um, everyone on the bus was looking, um, it was just an unsafe environment I though(sic).
[14] In re-examination, Mr McGrath was asked to compare his experience on the booze bus with his experience of the taking of blood samples in other places:5
And you were asked about the blood test and the privacy and safety issues. Have you had blood samples taken in other places? … …Yes.
What sort of places? … Um, the medical clinics where they do blood tests
and the like.
How do those compare to the blood sample on the night where - … Well there‘s no comparison. You‘re in there with – with the nurse in a private room, the door‘s closed. It‘s – no-one known you‘re in there. It‘s safe. There‘s no action going on, no-one‘s yelling out, ‗Taking blood‘. It‘s one on one.
[15] Mr Haskett submits that the evidence establishes that there was a risk of harm to the appellant, in that the instability of the booze bus could have resulted in the needle going into the wrong part of the appellant‘s arm, or too deeply into the arm, or through an arterial vein. There were other identified risks: the possibility of the needle breaking, or of needle stick injury to others, including the medical officer, if the needle slipped. There was also a risk, Mr Haskett submits, of others being exposed to the appellant‘s blood.
[16] Judge Davis dealt shortly with this aspect of the appellant‘s argument in the
District Court. He said:6
There is nothing in the evidence to suggest that Mr McGrath was placed in harm‘s way by the blood sample being taken from him rather it is more a situation where he was uncomfortable with the surroundings that he found himself in and thought it appropriate that blood be taken from him in a
sterile environment, or a medical lab. In my view, this ground of defence must also fail.
[17] Ms Johnston submits that the learned Judge was right, in that there was no evidence of actual harm and that any assessment of risk could only be based upon pure speculation. I disagree. I consider that the evidence discloses a somewhat alarming situation in which, as a matter of logical inference, there must have been more than a negligible risk of injury or medical mishap of some sort to the appellant or to those nearby, including the medical officer charged with taking the blood specimen.
[18] For present purposes, however, the immediate question is whether the blood specimen was taken in accordance with normal medical procedures. I do not think it was. Normal medical procedures do not involve the taking of blood in circumstances where the physical environment is unstable. Mr McGrath gave some evidence as to his expectation of what a normal medical procedure would entail, but I consider I am entitled to take judicial notice of the fact that blood specimens are normally taken in doctor‘s rooms, or diagnostic centres, or laboratories, or in some
similar environment where physical stability can be guaranteed.7
[19] In the present case, the undisputed evidence is that this particular booze bus rocked when persons moved on the bus, and particularly when a person boarded or alighted from it, to the point where it was necessary for the medical officer taking the blood sample to shout ―taking blood‖ in an effort to limit the extent of instability at the crucial moment. In my view, that procedure does not accord with normal medical procedures.
[20] I am advised that there is no decision of this court in which the present issue has been determined. There is however a judgment of Judge Paul8 in the District Court where, similarly, the bus was unstable and the medical officer likewise adopted the practice of yelling ―Taking blood‖ in order to stop people moving
around on the bus when the needle inserted and blood extracted.9
7 Evidence Act 2006, s 128.
8 Police v Eastwood DC Auckland CRI-2008-004-100593, 13 May 2009.
[21] Judge Paul dismissed the charge on the basis that it was not ―practicable‖ for the purposes of s 72 to take a blood specimen on the bus. There appears to be no other decision in which the issue of physical risk has been addressed in this context.
[22] Although I proceed below to consider Mr Haskett‘s alternative argument based upon practicability, I consider that the specimen of blood obtained by the police in the present case was not taken in accordance with normal medical procedures, and that it was not therefore admissible against the appellant.
[23] That finding is sufficient to determine the outcome of the appeal in the appellant‘s favour. However, for completeness I move to a brief discussion of an alternative argument advanced by Mr Haskett, which rests on the proposition that the taking of the blood specimen on the booze bus from the appellant was not
―practicable‖ for the purposes of s 72(3).
[24] Section 72(3) of the Act provides:
If it is not practicable for a blood specimen to be taken from a person by a medical practitioner or medical officer at a place where the person has been required under this section to permit the taking of a blood specimen, the person must accompany an enforcement officer to any other place where it is likely that a blood specimen can be taken from the person by a medical practitioner or medical officer if the officer requires the person to do so.
[25] This subsection was considered by John Hansen J in Hecker v Police.10
There, the appellant had objected to having been taken from a booze bus to a police station for the taking of a blood specimen. The defendant argued that it had been practicable for a blood specimen to have been taken on the booze bus and that the police were accordingly not entitled to invoke the subsection. John Hansen J held that it was impracticable for a blood specimen to be to be taken on the bus, for reasons which included the absence of appropriate equipment and facilities. His Honour said:
[20] In a different context the term ―not practicable‖ has been considered
in this Court by Randerson J in Tere v Police HC Auckland A209/99,
7 March 2000). Having noted that the expression was not defined in the legislation Randerson J accepted it carried its ordinary meaning of
something which is ―not capable of being carried out, or is not feasible in the
10 Hecker v Police HC Christchurch CRI-2007-409-33, 4 May 2007.
circumstances‖. In that case, applying the principles of fairness and
reasonableness identified in the Ministry of Transport v Masters [1992] 1
NZLR 645 and Duell v Ministry of Transport [1993] 1 NZLR 13, Randerson J held it was reasonable for the District Court Judge to reach the conclusion that it was ―not practicable‖ for the appellant to undergo an evidential breath test at the Otahuhu Police Station.
[21] I concur with Randerson J, and approach the term ―not practicable‖ on that basis. It seems to me there was evidence that made it reasonable for the learned District Court Judge to be satisfied on the balance of probabilities. They are not simply matters of convenience. The fact that there was a specially equipped room at the Christchurch Central Police Station, and that there was no privacy whatsoever for the taking of a blood test within the ―booze bus‖ are relevant factors to be considered, particularly when one considers the other activities being carried out there.
[22] Mr Doody accepted that he could not contend that there always had to be a police officer present within the ―booze bus‖. Essentially his contention was that the police should have called up a medical officer and had him brought to the ―booze bus‖. Again, on the evidence, that raises matters pertaining to the equipment and facilities available in the ―booze bus‖. They were simply not present, and as noted, privacy was absent.
[23] In those circumstances I am satisfied there was evidence that allowed the District Court Judge to correctly reach the conclusion he did. As noted, they were not matters of simple convenience to the police or pre- ordination. There were genuine reasons that made it ―inappropriate‖ to carry out blood tests at the ―booze bus‖. Accordingly, it follows that this appeal must fail, and it is dismissed.
[26] Mr Haskett argues that this case represents the Hecker situation in reverse. He contends that it was not practicable to take a blood specimen on this particular booze bus (for reasons including safety and privacy – as to which see below) and that the police were therefore obliged to exercise their powers under s 72(3) by taking the appellant elsewhere (presumably to a police station) where proper facilities were available.
[27] I am unable to uphold a submission couched in quite those terms. To do so would be to convert the police power conferred by s 72(3) into an obligation. There is no warrant for that. But the provisions of s 72(3) do provide the obvious answer at a practical level for a police officer who is faced with the difficulty that arose here.
[28] I accept Mr Haskett‘s submission that if it was not possible on the booze bus
to take a blood specimen in accordance with normal medical procedures, then it was
―not practicable‖ to do so. The provisions of s 72(3) would then be engaged. It is,
of course, a matter of routine for police officers to require suspects to accompany them to another place, usually a police station, in order to facilitate the taking of a blood specimen.
Privacy
[29] Mr Haskett‘s second challenge to the procedures adopted involves a complaint about the absence of sufficient privacy. That was a second ground upon which Judge Paul relied in dismissing the charge in Eastwood, and it was a factor that influenced John Hansen J in Hecker to find that it was not practicable to take a blood specimen on the bus.
[30] In a relatively early case, Scott v Ministry of Transport, the Court of Appeal, when dealing with the question of whether an appellant had failed to undergo a test
―forthwith‖, expressed the view that ―Parliament cannot have intended citizens to be exposed unnecessarily to embarrassment, or even humiliation‖.11 That view was expressed in respect of the desirability of a degree of privacy at the time of a breath screening test. It might properly be said that it carries even greater force in respect of the provision of a specimen of blood.
[31] To the same general effect, albeit in the context of a case involving the
Bodily Samples Act 1995, the Court of Appeal said in R v Hoare:12
[42] ...The obtaining of evidence by way of bodily samples, in particular blood, has been closely regulated by legislation whether for DNA analysis or in respect of road safety measures. Such regulation involves an acknowledgement of the privacy intrusion involved in the process. Even where a suspect or other person actually consents to the taking of a sample for DNA purposes, the statutory regime applies. This must be to ensure that private rights are not or do not become suborned to public interest considerations without adequate restraints on Police powers.
[32] I accept Mr Haskett‘s submission that this, and other cases such as R v R, underscore the principle that privacy interests should not be suborned to other considerations, such as mere administrative convenience or resource issues.13
11 Scott v Ministry of Transport [1983] NZLR 234 at 237 (CA).
12 R v Hoare CA310/04, 21 April 2005.
13 R v R [1999] DCR 567 (DC) upheld in R v R [1999] DCR 581 (CA).
[33] Mr Haskett cross-examined Constable Holmes about the layout of the booze bus and the available facilities. Constable Holmes said:14
And in terms of the dimensions of the bus, are you aware that the maximum
width of a motor vehicle is 2.4 metres? … No, I‘m not familiar with that.
And in the booze bus there‘s an open-plan set-out with some desks, is that
right? … Yeah, they‘re little booths, yeah. There‘s six of them I think.
And when you say booths. They‘re just – they‘re desks with chairs either
side? … Yeah, and a half petition(sic) between each one.
Right, and the petition‘s roughly the height that you‘re behind now? … Yeah,
maybe a little bit lower.
Are those petitions completely enclosing those, or are they - … No, they just
separate the booths.
So it‘s quite easy, for example, for there (sic) persons on the booze bus to see what‘s occurring at any one of these given - … Yeah.
- Seating positions? … ...Yes.
And it‘s really the same with – you mentioned the two doors to the bus, they
were both open at the time the blood sample was taken? …...Yes they were. And the booze bus had windows on it? … ...Yes it does.
And the lights were on inside the booze bus? … Yes they were.
People outside can see in the booze bus? … Ah, if somebody was standing at ground level it would be difficult for them to see more than the heads of people inside the bus.
And Tamaki Drive there, that‘s by the waterfront in Auckland or on the
waterfront? … That‘s correct.
And that‘s a place where people frequently walk or run or – etc, along the
footpath, is that right? … Yes, yeah.
Was there a reason that Mr McGrath wasn‘t taken back to a police station or another place for the blood sample to be taken? … The reason we took him back to the bus was because it was the most convenient, practical at the time, um, the machines were working appropriately on the bus. The reason I didn‘t take him back to another unit was because it wasn‘t required.
Because it wasn‘t? … Required.
Required okay.... We had all the facilities available at that place.
But you do confirm there‘s no privacy on the booze bus for the taking of blood sample is there? … That‘s correct.
14 Notes of evidence p 15 l.15
[34] For his part, Mr McGrath said:15
Well what was the environment if you like on the booze bus itself? … It was a very unstable base, I think Constable Holmes referred to it, you know, you walk up the bus or the stairs and it rocks, um, there was (sic) quite a few people around, three or four officers, a couple of people being, um processed. There was a guy opposite me who was quite, um aggressive in his nature towards the officer who was processing him, um, there was another woman in front of me who was fairly intoxicated. Just a lot of things happening on the bus.
Right and in terms of do you recall whether the – how many doors there were on the bus? … There was one that I could see, that‘s the one I came through, ah, it was open to the street, it was right by the machine I blew into, two or three steps down.
And do you recall whether the bus did or did not have any windows? … Ah, yeah, it had windows on either side, um we were illuminated inside, there was (sic) people walking past the door trying to ply (sic), looking in. Um, you could see people going through on the street as well coming past.
The dimensions of the booze bus, do you have an idea of how big the booze bus was inside? … Yeah, I guess it was about two metres wide, um, and yeah, maybe five or six metres in length.
And the layout in terms of desk and chairs, what was that like? … Um, as Constable Holmes explained, it was a table, a processing table, chair either side, a small partition and yeah, there was about four or five of them I could see. There might have been a couple behind me.
And when you say a small partition, did that in any way or did that effectively give you privacy from the rest of the booze bus? … No it was basically holding up the seats I think.
[35] On the right to privacy issues, Judge Davis referred in his judgment to both Eastwood and the decision of Judge Wilson QC in Police v O’Brien.16 In Eastwood, the defendant was seated at the rear of the bus, and could see out of the door onto an open motorway where vehicles were travelling. The defendant‘s family members were standing outside the bus; there were also other persons at the other end of the vehicle. The Judge recorded Mr Haskett‘s submission that the Legislature must have anticipated privacy for any person subjected to such an intrusion as the taking of a specimen of blood. Having cited Hecker, Judge Paul said that the taking of blood
ought to be carried out in ―circumstances of privacy‖.
[36] Judge Wilson took a different approach in O’Brien. He said:
15 Notes of evidence p 25 l.9.
[5] In realistic terms of course what is actually happening here is that a man is having a blood sample taken from his arm, and Mr O‘Brien told me that the blood was taken from his right arm. The people who are going to have to be there in any event are the authorised person taking the blood and the officer who is processing the motorist.
[6] In the realistic circumstances of a booze bus there are going to be other motorists being processed as well, and officers dealing with them and going about their business. There is no suggestion whatever in this case that any of those people were behaving improperly. Mr O‘Brien told me that one person was looking as he was having his blood sample taken. There is no suggestion that there was yahooing or yelling, or anything of that nature, and the question is, what is the reasonable expectation of privacy of an errant motorist who has been drinking and driving, when by his actions he puts himself in the police, whose duty it is to remove him from the road?
[37] Judge Davis expressed a preference for the approach in O’Brien. He said:17
…The expectation is that blood will be taken from a motorist who has failed an evidential breath test without delay and in the context of random checkpoints that is now being done by way of the booze bus and medical officers being brought to the booze bus. There is nothing in the evidence to suggest that Mr McGrath was placed in harm‘s way by the blood sample being taken from him rather it is more a situation where he was uncomfortable with the surroundings that he found himself in and thought it appropriate that blood be taken from him in a sterile environment or a medical lab. In my view this ground of defence must also fail.
[38] Mr Haskett endeavoured to support his privacy argument by invoking ss 10,
21 and 23(5) of the NZBORA. I consider that s 10 can be dismissed out of hand. The analysis of a blood specimen lawfully obtained from a person cannot properly be described as subjecting the person to ―experimentation‖. Subsequent analysis is not the same thing as experimentation for the purposes of the section.18
[39] I accept also Ms Johnston‘s submission that the concerns raised by the appellant do not come close to a breach of the right to be treated with humanity and dignity for the purposes of s 23(5).
[40] The s 21 argument is of greater substance. Under that section, any person has the right to be free of unreasonable search and seizure. A lawful search may
nevertheless be unreasonable. The best known example is that of R v Pratt, where a
17 Police v McGrath fn 6 at [40].
detainee was strip-searched in a public place in circumstances that did not suggest that a private alternative was not available.19
[41] The question of whether or not there has been a breach of s 21 will depend upon all the circumstances of the case. Although the taking of a specimen of blood amounts to a search, it could not be said that any taking of blood on a booze bus must necessarily infringe s 21 on privacy grounds. For example, if the specimen of blood was sought when the only persons in the bus were the apprehending officer and the medical officer, and there was no suggestion that those in the bus were visible from outside, then there would be no room at all for a s 21 argument.
[42] On the other hand, where the bus was full of police officers and suspected offenders who were each being processed, there were no internal partitions or other form of screening, and police operations within the bus could readily be seen from outside, then there might be room for an argument that there was a breach of s 21. It will always be a matter of degree.
[43] It is to be borne in mind, as Ms Johnston submits, that in another context Parliament has made specific provision for privacy. Section 53 of the Criminal Investigations (Bodily Samples) Act 1995 requires that a bodily sample taken from a person pursuant to the Act shall be taken in a situation affording reasonable privacy to that person. Ms Johnston submits that Parliament has deliberately chosen to limit the period of detention of the motorist rather that providing any express entitlement to privacy when a specimen of blood is taken.
[44] There is some force in that argument, but the absence of an express provision in the legislation is not decisive. I would not rule the result of the blood test to be inadmissible in this case on privacy grounds alone. But I consider the relative absence of privacy as described by both Constable Holmes and the appellant in evidence, to add weight to the appellant‘s earlier safety argument, which I have upheld. In other words, the appellant‘s proximity to other suspected offenders, and particularly one who was aggressive, the total number of people in the bus, and the fact that activities in the vehicle could be seen from outside the bus, all combined to
exacerbate the appellant‘s predicament. He says that he felt unsafe. I consider that he was in fact unsafe. The inherent instability of the bus was exaggerated by the pedestrian traffic within it, and by a complete lack of privacy.
[45] It might be thought that a degree of privacy might be afforded on booze buses without undue expenditure by the police. The addition of some curtaining or alternatively, more extensive partitions, may well be sufficient. I note that in Police v Kholer, the Court of Appeal held that the right to consult a lawyer carried with it
the right to privacy.20 That has led to the provision of private phone booths in booze
buses and other places, privacy being assured chiefly by the provision of appropriate curtains.
[46] Likewise, there would seem to be few resourcing implications in respect of the concerns I have expressed about safety. This particular booze bus was inadequate because it rocked when any person boarded or alighted from it, and when persons moved about the bus. It would seem to be a relatively simple task for stabilizers or legs of some sort to be provided, so as to ensure that the vehicle does not rock or move significantly when in use for enforcement purposes. If, on occasion, a booze bus cannot be stabilized adequately, then another alternative is the invocation of s 72(3), involving a request to a motorist to accompany the police to a police station or other place where safety can be assured, as occurred in Hecker. Having said that, there is a statutory presumption that the blood test will occur at the place where a motorist is detained unless it is not practicable to do so.
Conclusion
[47] I should emphasise the contextual scope of my conclusions about safety and privacy. This judgment is concerned with the evidence given in this case, and with this particular booze bus and the conditions prevailing in it while Mr McGrath was processed. My conclusions do not (and cannot) extend to cases beyond this one. It seems to me that relatively minor modifications would cure the problems that arose here.
[48] Having concluded that the appeal must succeed, it is strictly unnecessary for me to discuss the appellant‘s other grounds of appeal, but because I have reached a clear view on some of them, I propose to summarise my conclusions.
Roadside advice
[49] After the appellant had failed the breath screening test, but before he entered the booze bus, Constable Holmes gave him a Bill of Rights warning:21
Now constable you mentioned that you gave Mr McGrath some rights at the side of the road, what did you say to him? … I told him that he had the right to refrain making any statement and to remain silent. He had the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions. Um, and that right may be exercised without charge under the Police Detention Legal Assistance Scheme. Anything he says will be recorded and may be given in evidence in Court.
Was there anything else that you advised him at that stage? … I asked him if
he understood his rights and he said he did.
[50] Mr McGrath agreed with Constable Holmes‘ evidence.
[51] The argument for the appellant is that the constable‘s explanation was misleading because it suggested that the right to consult a lawyer without delay applied only before any questions were asked. Mr Haskett submits that the s 23(1)(b) right arises upon detention, and is exercisable in respect of any issue, including a requirement to undergo an evidential breath test. By way of example, he points to the Bill of Rights forms, later given to the appellant, which explicitly provide that the right to legal advice may be exercised ―before you undergo an evidential breath test‖.
[52] The learned District Court Judge did not expressly deal with this argument, presumably because he found that any possible deficiency in the roadside advice was cured because the appellant was provided with the first Bill of Rights form (containing detailed material about the right to legal advice), before he undertook the evidential breath test.
[53] Mr McGrath had given evidence that the evidential breath test came first. But the Judge preferred the constable‘s evidence to the contrary. The ruling on that point was important because, if the appellant was provided with the first Bill of Rights form before the evidential breath test then any deficiency in the roadside advice was thereby cured.
[54] Mr Haskett asks me to reach a different conclusion about the order in which these events occurred, and to prefer the appellant‘s evidence that he did not get the first Bill of Rights form until after the evidential breath test had been conducted. However, logically, the first question concerns the sufficiency of the roadside advice.
[55] The leading authority as to the adequacy of s 23(1)(b) advice remains R v Mallinson where Richardson J, delivering the judgment of the Court of Appeal, said:22
3. To be "informed" of the right to a lawyer is to be made aware of it. The purpose is to provide a fair opportunity for the person arrested to consider and decide whether or not to exercise the right. The obligation on the arrester or other officer concerned is to communicate clearly to the person arrested that he or she has that right. No particular formula is required so long as the content of the right is brought home to the person arrested. To use the language of s 23(1)(b) may save argument later. In the end whether or not the obligation was satisfied must turn on what was said and what is to be implied from what was said in the particular context and circumstances. Even though no particular words are used the context may make it clear that the right to a lawyer is immediately exercisable; and so, in relation to any subsequent use of answers to police questioning, that the right is exercisable before any questioning begins.
4. There are three elements of the protective right: the right to consult a lawyer; the right to instruct a lawyer; and the exercise of those rights without delay. In that regard it is important that anyone arrested be made aware that he or she can exercise the right to a lawyer without delay, that is as soon as reasonably possible in the circumstances. The requirement is not satisfied if the person arrested may reasonably be left with the impression that access to a lawyer is not available until after any questioning is finished.
5. Where the admissibility of a statement made to the police is challenged on the grounds of a specific breach of the Bill of Rights, the Court has to determine whether the accused was accorded the particular right claimed to have been breached. In that situation we consider that the ordinary rules as to onus of proof in relation to the admission of such evidence should apply. Accordingly the burden of establishing the admissibility of the statement rests on the Crown just as it does where, as will often be the case, it is also
challenged on fairness grounds. The standard of proof to be applied is a matter upon which full argument will be needed in an appropriate case.
Unless there are circumstances calling for obvious care and further enquiry there is no reason for not taking the accused's answers at face value. If following advice as to the right to a lawyer the accused responds affirmatively to the question whether he or she understands the position, the obvious inference is that the accused did indeed understand his or her rights. But more than a bare statement of the s 23(1)(b) right and a bare acknowledgment of understanding is likely to be required where, for example, the person arrested is intoxicated or under drugs or appears to have a mental or physical disability which could interfere with his or her comprehension of the rights.
6. The crucial question is whether it was brought home to the arrested person that he or she had those rights. That is not the same question as whether the police were justified in assuming that he or she did understand them. To look at it simply from the perspective of the police officer would mean that the person arrested who did not in fact understand the position would not be able to make an informed choice with respect to the exercise or waiver of the guaranteed right.
[56] Mr Haskett submits that the constable‘s advice, otherwise sufficient, was contaminated because it was accompanied by a qualification relating to the asking of questions.
[57] Here, Mr Haskett points out, the issue was not so much the right to legal advice before answering questions, as the right to advice before undertaking an evidential breath test. He says that this case falls into the class identified by Blanchard J in Keni v Police.23 However, although Mr McGrath says he was confused by what he was told, the thrust of the advice was that he was entitled to free legal advice without delay. I do not consider the reference to the asking of questions conveyed the impression that he could have access to legal advice only when he was being asked a question or questions. He did not express (to Constable
Holmes) any concern or uncertainty. Nor is there any suggestion that he was so affected by alcohol as to be unable properly to apprehend the advice he was getting. There was, in my opinion, a sufficient compliance with s 23(1)(b) of the NZBORA.
[58] At a later point in the procedure Mr McGrath did seek legal advice. But it does not follow, as Mr Haskett argues, that he must necessarily have misunderstood the earlier advice.
[59] I regard the roadside advice as adequate. The argument over the point at which the first Bill of Rights form was provided to the appellant therefore becomes irrelevant.
Breath test result
[60] The appellant argues that there was a breach of s 77(3) of the Act in that the appellant was not advised of the result of the evidential breath test ―without delay‖. Section 77(3) provides:
(3) Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—
(a) The person who underwent the test is not advised by an enforcement officer, without delay after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes,—
(i) In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be conclusive evidence to lead to that person's conviction for an offence against this Act; or
(ii) In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 150 but does not exceed 400 micrograms of alcohol per litre of breath, the test could of itself, unless the person is 20 or older, be conclusive evidence to lead to that person's conviction for an offence against this Act; or
(b) The person who underwent the test—
(i) Advises an enforcement officer, within 10 minutes of being advised of the matters specified in paragraph (a), that the person wishes to undergo a blood test; and
(ii) Complies with section 72(2).
[61] Mr Haskett argues that there was an impermissible delay exceeding 10 minutes from the time at which the evidential breath test reading was available to the time at which the constable advised the appellant of the result. He says that, in consequence, the result of the positive evidential breath test was not admissible, and that the prosecution ought to have failed.
[62] Judge Davis thought that there was a proper explanation for the delay, namely that much of the period was taken up by a discussion between Mr McGrath and a lawyer, but it appears that the Judge considered the wrong (later) period after Mr McGrath had been advised of the result of the evidential breath test.
[63] Because the Judge held the delay to have been explicable, he did not need to consider the argument Mr Haskett now advances. In short, his contention is that there was an unexplained delay exceeding 10 minutes, between the time at which the evidential breath test result became available, and the time at which Constable Holmes conveyed to Mr McGrath. The result of the test is accordingly inadmissible in evidence in proceedings for an offence against any of ss 56 to 62. Here, the appellant was charged under s 56(2). Because the blood test was undertaken in reliance on the positive evidential breath test, the blood test result is accordingly inadmissible, Mr Haskett argues: that follows from the express reference in s 77(3) to proceedings for an offence against ―any of ss 56 to 62‖.
[64] Mr Haskett‘s argument has been the subject of significant judicial authority over a substantial period. Regrettably, the cases appear to be in conflict. In Ministry of Transport v Beattie,24 McMullin J, delivering the judgment of the Court of Appeal, held that the obligation to advise a suspect of the result of a positive evidential breath test ―forthwith‖ (now ―without delay‖), applied equally to prosecutions resting upon the positive result of an evidential breath test and those brought in consequence of a subsequent blood alcohol test.25
[65] Ministry of Transport v Beattie was followed by Chisholm J in McCarthy v
Police.26 In turn, McCarthy was followed by Fogarty J in Kavanagh v Police.27
[66] On the other hand, the respondent relies upon a line of cases commencing with Falesiva v Ministry of Transport.28 There, the Court was concerned with
s 58(5) of the Transport Act 1962, which provided:
24 Ministry of Transport v Beattie CA312/82 21 February 1984.
25 At 5.
26 McCarthy v Police HC Wellington AP312/02, 19 February 2003 at [7].
27 Kavanagh v Police HC Christchurch CIV-2005-409-231, 27 February 2006.28 Falesiva v Ministry of Transport [1987] 1 NZLR 275 (CA).
It shall not be a defence to a charge of driving with excess blood alcohol:
(a) That there was or may have been an error in the result of the evidential breath test; or
(b) That the occurrence or likely occurrence of such an error did not entitle or empower any person to request or require a blood test.
[67] The Court held that the subsection entitled the prosecution to rely upon a positive blood test even where there was an error in the result of a preceding evidential breath test, provided that the enforcement officer acted in good faith.
[68] The judgment of Cooke P and Hillyer J was delivered by Cooke P who said:29
In our opinion s 58(5) should be held to apply to errors or possible errors in the result of preceding evidential breath tests, howsoever occurring. The cause of the error or possible error is immaterial. For example the officer may have made a mistake in endeavouring to follow the steps in the Notice or may even have inadvertently omitted a step. Or the device may have malfunctioned. These examples are not meant to be exhaustive. The legislature has evidently acted on the view that a blood test, taken by a registered medical practitioner with the result scientifically analysed, is the motorist's ultimate protection and a reliable basis for a conviction. If the procedure has reached that stage it does not matter that there may have been some defect in the earlier administration of the evidential breath test possibly vitiating the result of that test. One has to bear in mind also that from the outset there has been the added safeguard of a breath-screening test.
[69] Falesiva was followed in Shortland v Police,30 Police v Norman,31 Hema v
Police,32 Police v Clarke,33 O’Neill v Police,34 and in Police v Van Veen.35
[70] Mr Haskett endeavours to distinguish Norman and Clarke and says that in O‘Neill, where he appeared as counsel, there was only a limited focus on the effect of s 77(3)(a). He argues that there is a fundamental difference between evidential matters (which he says underpins Falesiva and many of the following authorities), and the need to protect liberties, and for that purpose to ensure proper compliance
with enforcement procedures.
29 Falesiva fn 27 at 279.
30 Shortland v Police HC Whangarei CRN 2088020930 9 July 2004.
31 Police v Norman HC Tauranga CRI-2004-407-47, 23 March 2005.
32 Hema v Police HC Wellington CRI-2005-485-106, 3 October 2005.
33 Police v Clarke HC Auckland CRI-2006-404-34, 12 May 2006.
34 O’Neil v Police HC Auckland CRI-2007-404-405, 9 October 2008.35 Police v Van Veen HC Auckland CRI-2010-404-461, 17 March 2011.
[71] Much of Mr Haskett‘s detailed argument came in written form by way of reply, pursuant to leave granted at the conclusion of the hearing. Ms Johnston has had no opportunity to respond to Mr Haskett‘s detailed review of the cases.
[72] In my opinion it would not be right to express a concluded view without further argument. Given that the appeal succeeds on other grounds in any event, I make no ruling on this aspect of the appellant‘s argument.
Systemic delay
[73] Section 25(b) of the NZBORA provides that everyone who is charged with an offence has the right to be tried without undue delay. The scope of this right was extensively discussed by the Supreme Court in R v Williams.36 There, Wilson J, delivering the judgment of the Court said37:
[11] …It is important, however, to emphasise that there can be undue delay and a breach of that right without there being any prejudice to a fair trial. That is one of the reasons why, as we will mention again when considering the question of remedy, a stay is neither a mandatory nor a usual remedy for undue delay.
[12] Whether there has been undue delay in a particular case is a function of time, cause and circumstance. Undue in this context is synonymous with unjustifiable. An accused may acquiesce in the delay, whether in the expectation that it will make the task of the prosecution more difficult or because it defers the day of reckoning. Notwithstanding the suggestions to the contrary of Hardie Boys and McKay JJ in Martin, there is no obligation on any accused to progress matters towards trial, or to protest about delay; the obligation is on the prosecution to ensure trial without undue delay. Whether delay is attributable to the courts or to the prosecution is irrelevant to the determination of the question of excessive delay, but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted.
[74] If undue delay is established, the Court is then required to determine whether, in all the circumstances, a stay ought to be granted. As to that, the Supreme Court said:38
[18] The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay. A stay is not a
36 R v Williams [2009] 2 NZLR 750.
37 At [11]-[12].
38 At [18].
mandatory or even a usual remedy. Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a court to do so. If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy. If the accused has been in custody, that time will count towards service of the term of imprisonment. In an extreme case, the conviction may be set aside. Upon acquittal, monetary compensation may be justified. The seriousness of the offending will usually not be relevant to the nature of the remedy. If, however, the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay.
[75] In R v Vaihu, the Court of Appeal discussed the Supreme Court judgment in Williams.39 Hammond J observed that unfairness will normally be the trigger for the granting of the remedy.40 But overall, the remedy for undue delay must provide a reasonable and proportionate response to that delay.41
[76] In this case, Mr McGrath was charged on 14 May 2009. His first appearance was on 21 July 2009. At a first status hearing on 11 August 2009 the case was adjourned pending the completion of disclosure. On 8 September 2009, at a second status hearing, the case was set down for a defended hearing on 21 December 2010. On that occasion, it was adjourned because no Judge was available.
[77] A second firm fixture on 4 March 2010 resulted in a further adjournment because there were too many cases in the list for that day. On 21 July 2010, the date of a third fixture, there was a further adjournment because the Judge was unwell. Ultimately, the case was heard on 23 September 2010. At that time Mr Haskett made an application for a stay on the grounds of undue delay. Judge Davis said he would take the delay argument into account when delivering his reserved decision.
[78] He duly did so, discussing in detail the various factors set out in the decision of the Court of Appeal in Martin v Tauranga District Court.42 Those factors
included:43
39 R v Vaihu [2010] NZCA 145.
40 At [34].
41 Williams at [18].
42 Martin v Tauranga District Court [1995] 2 NZLR 419 (CA).43 At 519.
(a) the length of the delay;
(b) the waiver of time periods;
(c) the reasons for the delay including:
(i) inherent time requirements of the case; (ii) actions of the accused;
(iii) actions of the Crown;
(iv) limits on institutional resources; (v) other reasons for the delay, and.
(d) prejudice to the accused.
[79] Judge Davis noted that, while there was no onus on a defendant to assist in the prosecution of an information: ―some of the initial delays were as a consequence of the defendant requesting a zero preparation status hearing on two occasions‖.44 I infer that the Judge thought that the prosecution was not responsible for delays occurring at that stage.
[80] Ultimately, Judge Davis considered that the delay ― …while in many respects
unfortunate, is not unreasonable or inordinate‖.45 He accepted that the case was not
―overly complex‖ but regarded it as serious, given that the appellant‘s blood alcohol level was nearly one and a half times the legal limit. Accordingly, he considered the public interest and the need for the preservation of public safety were factors to be weighed against any personal prejudice. The only element of direct personal prejudice identified by the appellant was a degree of restriction on his ability to visit
the United States during the period leading up to the hearing. This was not a case in
44 McGrath at [32].
45 At [33].
which the appellant‘s right to a fair trial was prejudiced by the unavailability of
witnesses arising from the delay.
[81] Judge Davis concluded that a period of 16 months between the laying of the information and the Judge‘s decision, was of itself insufficient to grant what he regarded as the ―extraordinary remedy‖ of a stay.
[82] I am satisfied that the Judge was right to refuse a stay on delay grounds. This is not a case in which blame for the unfortunately attenuated pre-trial period can be laid at the door of the prosecution. For the most part it appears the problem stemmed from difficulties in the allocation of judicial resources. Only very limited personal prejudice has been identified by the appellant, and none at all in respect of the conduct of the trial itself.
[83] In Vaihu, the Court of Appeal characterised the remedy of a stay for delay as reserved for ―rare and exceptional‖ cases.46 This case does not come close to meeting that standard. In my view, the Judge was right to conclude that a stay was unwarranted.
Result
[84] For the foregoing reasons the appeal is allowed and the appellant‘s conviction
is quashed.
C J Allan J
46 Vaihu at [26].
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