Naknok v Police HC Auckland CRI-2010-404-000426
[2011] NZHC 1431
•2 November 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-000426
BETWEEN APHISARA NAKNOK Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 31 October 2011
Appearances: T Darby and A Hart for Appellant
M Williams for Respondent
Judgment: 2 November 2011 at 4:00 PM
JUDGMENT OF VENNING J
This judgment was delivered by me on 2 November 2011 at 4.00 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, Auckland
Parnell Law, Auckland
Copy to: T Darby, Auckland
NAKNOK V NEW ZEALAND POLICE HC AK CRI-2010-404-000426 2 November 2011
Introduction
[1] The appellant faced two charges of assaulting a police officer acting in the execution of his duty, one of careless use of a motor vehicle and one of refusing to permit a blood specimen to be taken. She pleaded guilty to the careless driving charge. Following a defended hearing before Judge Kerr in the District Court at Auckland on the remaining charges she was convicted of the two counts of assaulting a constable acting in the course of his duty but the charge of refusing to permit a blood specimen to be taken was dismissed.
[2] On the two counts of assaulting the police constable the appellant was convicted and fined $300 together with Court costs.
[3] The appellant now appeals against those two convictions and the sentence imposed.
Background
[4] On 11 April 2010 Police Constable Darvill responded to a direction to attend a motor vehicle incident near Westfield St Lukes car park. His inquiries led him to locate a car driven by the appellant at about 7.00 p.m. By then the appellant was at her home. The constable spoke to the appellant’s husband Mr Wallace. He then went back to the car where he spoke with the appellant. There were a number of other officers present. Constable Darvill said the appellant was screaming abuse at the officers and other people and appeared to be extremely intoxicated and aggressive.
[5] In the circumstances Constable Darvill required the appellant to accompany him to the Avondale Police Station for an evidential breath or blood test to be taken. He read the appellant her Bill of Rights advice from the card contained in his note book. The appellant did not respond and continued screaming at the officer. Constable Darvill asked her if she understood but the appellant refused to answer. She was put in the rear of the police car. She continued to scream abuse at the constable and kicked out at the driver’s seat. The constable was a passenger in the
vehicle, there being another police officer driving the vehicle. In the course of the journey the appellant spat saliva at Constable Darvill. The appellant’s saliva entered the constable’s eye. That constituted the first charge of assault.
[6] At the Avondale Police Station the appellant was taken to the evidential breath/blood testing suite. While the constable was doing paper work the appellant kicked him in the crutch. That is the second assault. The appellant was then processed. She was again read her Bill of Rights. When asked how much she had drunk she said “a 100 bottles”. When asked when her last drink had been she said “a month ago”. She refused to answer other questions and failed to comply with the instructions in relation to the breath device. She made a number of obscene references and remarks to the officer during the process.
The District Court judgment
[7] After hearing the evidence Judge Kerr was left in doubt whether the appellant had understood her Bill of Rights advice, particularly when given to her at the police station before the officer embarked on the breath test procedure with the appellant. In the circumstances the Judge did not consider the charge of refusing to give blood was made out beyond reasonable doubt. For that reason that charge was dismissed.
[8] However, insofar as the charges of assaulting the officer in the execution of his duty were concerned, the Judge considered that the appellant must have known she had been detained by the police and that her actions amounted to assaults. The Judge was satisfied that at the time of the actions the officer was acting in the execution of his duty.
The appeal
[9] Mr Darby advanced the appeal on the basis that at the time of the assaults the police constable was not acting in the execution of his duty. He noted that the first Bill of Rights advice had been given at 7.29 p.m. when the appellant was required to accompany the police officer for the purpose of the evidential breath or blood test. Mr Darby submitted that as the Judge was left in doubt whether the appellant
understood her rights when given at the police station, she could not have understood them earlier either so that it followed the constable could not be said to have been acting in the course of his duty when the assaults occurred as they occurred after that first rights advice had been given.
[10] It is clear enough that when the police constable required the appellant to accompany him to the Avondale Police Station to undergo an evidential breath test she was detained and was entitled to be given her Bill of Rights advice under s 23(1)(a) and (b) of the New Zealand Bill of Rights Act 1990. While the constable gave her the advice it may be she did not fully understand it. However, even if the appellant did not fully understand that advice and her rights, it does not follow that the constable was no longer acting in the execution of his duty when requiring her to accompany him to the police station in the police car and in dealing with her there before the breath test procedure. The appellant’s submission conflates two concepts, first the authority of the constable to detain the appellant, which determined whether he was acting in the execution of his duty at the time the assaults occurred, and second, the effect of the appellant’s lack of understanding of her rights.
[11] That issue of whether a constable is acting in the course of his duty has been considered in a number of cases. In Andresen v Police1 a truck driver had been stopped by a police officer for exceeding the speed limit. The officer asked to inspect Andresen’s log book under s 70C of the Transport Act 1962. Andresen refused, was arrested and taken to the police station. The officer alleged he was struck on the arm by Andresen at the station. Andresen argued he was not obliged to
produce the log book for inspection and that he was not given his rights when first detained. The conviction appeal was allowed on the basis that, while Andresen was in breach of s 70C of the Transport Act, the Act provided a specific penalty for that offence by way of fine and disqualification. There was no power of arrest. In the circumstances the police officer had no power to arrest so that the arrest had no lawful authority. The officer was not acting in the course of his duty when the alleged assault occurred.
[12] Similarly an appeal against conviction for assaulting a police officer acting in the execution of his duty was allowed in the case of Baker v Police.2 The officer had accompanied the appellant’s wife to the appellant’s property to assist her to uplift matrimonial property following separation. The appellant had ordered the officer to leave the property. The officer refused and was assaulted. Panckhurst J concluded that, as occupier, the appellant had authority to direct the officer to leave the property
and, as the officer had no authority to be on the property at the time of the assault, the conviction of assaulting the police officer in the execution of his duty could not stand.
[13] Mr Darby also referred to the further case of Baker v Police,3 a decision of Hammond J. In that case the Judge allowed an appeal against a series of convictions for driving with excess breath alcohol, threatening behaviour and obstructing a constable in the execution of his duty. The Judge did not directly address the issue of whether the officer was acting in the course of his duty. Nor was he referred to the above decisions. Hammond J was clearly influenced by the fact the officer made no attempt at all to provide Bill of Rights advice.
[14] In the present case, Constable Darvill was entitled, by s 69(1)(d) of the Land Transport Act 1998, to require the appellant to accompany him for the purposes of undergoing an evidential breath test or blood test. Mr Darby suggested there was no evidence that the requirements of s 69(1)(d) had been complied with. That submission was not raised in the District Court. It was not a point taken in the appeal document. I infer from Constable Darvill’s evidence as to the circumstances in which he was called to the incident and the scene that he found there that a breath screening test could not be carried out at the appellant’s home. The evidence confirms that he clearly had good cause to suspect the appellant had consumed drink. Section 69(1)(d) was satisfied.
[15] Unlike the cases of Andresen and Baker, in this case Constable Darvill had statutory authority to require the appellant to accompany him and to remain at the station in preparation for the conduct of the breath testing procedures. She agreed to
do so. There is no suggestion she refused. As Constable Darvill had statutory authority to require the appellant to accompany him, he was acting in the execution of his duty at the relevant time when the assaults occurred.
[16] The principal submission advanced on behalf of the appellant must fail.
[17] I turn to consider the second issue, namely if the appellant did not understand the Bill of Rights advice the constable gave her, what effect if any, did that have on the evidence of the assaults.
[18] Mr Darby suggested that it was significant that the appellant may not have understood her right under s 23(1)(a) of the New Zealand Bill of Rights Act, namely to be informed of the reason for her detention, as opposed to her rights under s 23(1)(b) to consult and instruct a lawyer without delay.
[19] But as the Judge concluded, the appellant must have known that she was in the custody of the police when in the police car and at the station. She must have known the reason for that detention was the earlier driving incident that she had been involved in. She acknowledged her involvement in that incident when first spoken to by the officer at the time and by later pleading guilty to it. The Judge considered it more significant that the appellant may not have understood her particular rights under s 23(1)(b) to take legal advice in relation to the rather complicated breath screening and blood testing procedures at the station. However, both assaults had taken place before that issue arose.
[20] Further, the purpose of the requirement to advise the appellant of her rights was to enable her to make a decision(s) which may have affected her future actions. There must be a causal link between the failure to comply with the Bill of Rights Act and the subsequent actions of the appellant which placed her in jeopardy: Ministry of Transport v Noort, Police v Curran4.
[21] There is no causal link in this case. At the time the appellant was required to accompany the officer she was not at jeopardy of conviction for any offending. She
was simply required to accompany the officer to the Avondale Police Station, which she did. It was only later, during the course of that trip and when at the station she assaulted the officer. The assaults were separate and independent actions by the appellant.
[22] Further, it may well be the appellant had no right or option to refuse to accompany once the request had been made, whatever advice she was given: Stainton v Police.5
[23] In the present case it was open for the prosecution or the Crown to establish on the evidence there was no causal link between any breach of the Bill of Rights Act and the subsequent actions of the appellant. The Judge was satisfied as to that on the evidence in the present case. In my view he was correct to be so satisfied.
[24] Next, and in any event, s 30 of the Evidence Act 2006 now deals with improperly obtained evidence.6 It is difficult to conceive that the evidence of the assaults can be said to have been obtained improperly by having been obtained in consequence of a breach of s 23 of the New Zealand Bill of Rights Act.
[25] The position would have been different if perhaps the prosecution sought to rely on evidence of admissions the appellant may have made in the police car as to her liability for the accident, or as to the amount she had drunk. That is not, however, the case.
[26] However, even if the evidence of the assaults could, in some way, be said to have even “technically” been improperly obtained it would be admissible under s 30(2)(b). The officer gave the appellant her rights. The officer did not appreciate she did not understand them. The evidence of the assaults was direct and compelling. The evidence was properly admissible.
[27] For the above reasons the appeal against conviction must be dismissed.
Sentence
[28] The appellant submits that rather than being fined she should have been discharged without conviction. Mr Darby accepted that that was not a matter raised before the District Court Judge. He submitted generally that the consequences of a conviction for assaulting a police officer could potentially cause difficulty for the appellant in the future.
[29] There is no basis for a discharge without conviction in this case. In terms of s 107 of the Sentencing Act it cannot be said that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. There is no evidence of any specific prejudice or effect on the appellant. While the assaults were not the most serious of their kind they were assaults on a police officer acting in the course of his duty. Police officers are entitled to the protection of the Courts and should not be subjected to assaults or behaviour such as that of the appellant towards Constable Darvill in this case. The appeal against sentence is also dismissed.
Result
[30] The appeal against conviction and sentence is dismissed.
Venning J
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