Note Barrie v The Queen

[2013] NZSC 21

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1. NOTE Barrie v R

1. Supreme Court of New Zealand   SC88/2012; [2013] NZSC 21

   15 March 2013

   Elias CJ, McGrath and Chambers JJ

Criminal  practice  and  procedure  –  Prisoner’s   right  of access  to  lawyer  –

1. Drinking and driving – Whether right to counsel included foreign counsel – “Foreign lawyer” – “Lawyer” – Limitations to right – Police obligations regarding right to counsel – New Zealand Bill of Rights Act 1990, s 23(1)(b) – Lawyers and Conveyancers Act 2006, ss 6 and 21.

Human  rights  – New Zealand  Bill of Rights Act 1990 – Detainee’s  right  to

1. counsel – Drinking and driving – Whether right to counsel included foreign counsel – “Foreign lawyer” – “Lawyer” – Limitations to right – Police obligations regarding right to counsel – New Zealand Bill of Rights Act 1990, s 23(1)(b) – Lawyers and Conveyancers Act 2006, ss 6 and 21.

[1]      Daniel Barrie was convicted of failing to permit a blood specimen to be

1. taken contrary to s 16 of the Land Transport Act 1998. He asserts he should not have been convicted because he was denied his “right to consult and instruct a lawyer”  under  s 23(1)(b)  of the  New  Zealand  Bill  of Rights Act  1990.  He asserts that the section conferred on him a right to consult a foreign lawyer if that  was  his  choice.  This  argument  has  been  unsuccessful  in  three  lower

2. courts.1

   [2]      While  the issue of the meaning  of “lawyer”  in s 23(1)(b) might  be a matter of general or public importance in some circumstances,  it is not such a matter in this case for two reasons. First, the police, in addition to informing Mr Barrie  that they held a list of lawyers  he could  contact  without  charge,

3. offered to let him contact his lawyer in Sydney. It was not the police’s fault that he could not remember his lawyer’s name. So the appeal is bound to fail on the facts.

   [3]      Secondly, Judge Ingram carefully considered, should he be wrong in his ruling that Mr Barrie’s rights had not been infringed, whether the evidence of

4. Mr Barrie’s refusal to permit a blood specimen to be taken should be excluded under s 30 of the Evidence Act 2006. He concluded the evidence should not be excluded,  a  conclusion  apparently  not  challenged  in  the  High  Court  and certainly not challenged in the Court of Appeal. In the absence of a challenge to Judge Ingram’s s 30 evaluation, the proposed appeal must fail.2

1 Police v Barrie DC Tauranga CRI-2010-070-5243, 14 January 2011; Barrie v Police HC Tauranga CRI-2011-470-6, 6 October 2011; Barrie v R [2012] NZCA 485, [2013] 1 NZLR

55.

2 Gallichan v Police [2009] NZCA 79; Birchler v Police [2010] NZSC 109, [2011] 1 NZLR

The application for leave to appeal is dismissed.

Application dismissed.

169 at [19] and [21].