O v Police HC Rotorua CRI 2006-463-65

[2006] NZHC 1038

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-463-65

BETWEEN  O

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         14 September 2006

Counsel:        MP Armstrong for Appellant

T Bayley for Crown

Judgment:      14 September 2006

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Rangitauira & Co, P O Box 1693, Rotorua for Appellant

Gordon Pilditch, P O Box 740, Rotorua for Crown

O V  POLICE HC ROT CRI 2006-463-65  14 September 2006

Introduction

[1]      The appellant appeals against her conviction by Judge CJ McGuire in the District Court at Rotorua, under s 60(1)(a) of the Land Transport Act 1998, for refusing to permit a blood specimen to be taken, having been required to do so under s 72 of the Act by an enforcement officer.  The appeal is brought on the ground that the Judge was wrong to find that the appellant had the requisite intent to commit the offence.

Facts

[2]      At 11.50 p.m. on 1 October 2005 the appellant was stopped by the police in central Rotorua when she brought herself to the attention of police by reversing out of an angle park into the path of a police car.  The police officer noticed some of the usual signs that she was affected by alcohol.  She failed an evidential breath test.  At

11.55 p.m. she was required to accompany the police officer to the Rotorua Police Station.  There is no issue that she was advised of her rights and properly cautioned while in the back of the police car.  She said at that time she sent a text to her partner asking for someone to come and pick her up from the police station.  He replied to say that her aunt and uncle were on their way.  She also sent a text to her partner to say she needed a lawyer.   The response again was that her aunt and uncle would arrive soon.

[3]      At the police station the standard Bill of Rights form was completed by the police officer and read to the appellant.   They included the right to consult and instruct a lawyer without delay.   The form was not signed by the appellant, the officer noting that she had stated she could not write.  The officer confirmed that at the station the appellant told her that she wanted to speak to a lawyer and that she expected her aunt to advise her on that issue.  She was not interested in selecting a lawyer from the list available at the police station.

[4]      From  12.05  p.m.,  when  the  Bill  of  Rights  form  was  completed,  and

12.29 p.m.,  the  officer  deferred  taking  the  next  step  in  the  procedure  in  the expectation that the appellant’s aunt and uncle would soon arrive.   However, at

12.30 p.m. the officer required the appellant to take a breath test.  She described the appellant as having become argumentative and difficult.   The appellant refused to blow into the device, although she told the officer she would comply after her aunt and uncle had arrived.

[5]      Following  the  attempt  to  administer  the  breath  test,  the  officer  began procedures to require the appellant to provide a blood specimen.   She filled in the appellant’s  details  in  the  blood  specimen  form  and  read  her  the  following introductory passage:

You are advised that you are required under the Land Transport Act 1998 to permit a registered medical practitioner or medical officer to take for the purposes of analysis a specimen of your venous blood in accordance with normal medical procedures.

Do you consent to the taking of a specimen of blood?

The officer completed the form.  As the appellant again refused to consent or to sign the form, the officer recorded the answer to the question as no and endorsed this part of the form “refused to sign”.

[6]      The officer then read out the remaining passage of this section of the form which reads:

You are advised that if you refuse to permit a specimen of blood to be taken you can be charged with an offence for which you are liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding

$4,500  and,  unless  the  Court  for  special  reasons  orders  otherwise,  a

minimum disqualification from driving of 6 months.

If you have on at least 2 previous occasions committed offences relating to the use of alcohol while driving or attempting to drive you are liable on conviction to imprisonment for a term not exceeding 2 years or to a fine not exceeding $6,000 and, unless the Court for special reasons orders otherwise, a minimum disqualification from driving of 1 year.

[7]      Following completion of the form, the appellant was arrested.  She was again advised of her rights under the New Zealand Bill of Rights Act.  At that stage she availed  herself of the  opportunity to  call  a  lawyer  from  the  list  that  had  been

provided to her and spoke to a local lawyer.  It appears that while the appellant was being asked to undergo the evidential breath test, her aunt arrived at the station but this was not known to her or to the officer.

Judge’s decision

[8]      It was submitted to Judge McGuire by Mr Armstrong, who was also counsel at first instance, that there had been no refusal by the appellant to provide a specimen of her blood.  He submitted that neither the actus reus or mens rea of the offence were present.  The Judge had no difficulty in finding that the appellant had in fact refused to permit a blood specimen to be taken and that finding is not challenged on appeal.   His decision focused on whether or not the appellant had the necessary guilty mind.

[9]      It  was  submitted  to  Judge  McGuire  that  the  appellant  did  not  know  or understand that she was being asked to permit a specimen of her blood to be taken. There  was  reliance  on  Hanning  v  Ministry  of  Transport  HC  DUN  AP87/90

18 September 1990 Holland J and Thompson v Police HC DUN AP23/97 22 October

1997 Chisholm J in which, in broadly comparable circumstances, the Court had found that at the time a blood specimen was requested the appellants had not understood they were obliged to provide a blood specimen.

[10]     The critical findings  of Judge  McGuire  are  conveniently  encapsulated  at paras  [27] – [29] of his judgment, which are as follows:

[27]      I think what the cases show is that where there is recourse sought by the defendant to a lawyer, or indeed to even a family member, at very least the Police are required to demonstrate that the time for making such inquiry has  now  past  and  the  procedures  will  continue.    Indeed,  where  it  is  a question of bona fide attempts to consult with lawyers, the Police will need to be doubly careful that any precipitate conduct on their part, even by way of making it very clear to the defendant that he now must submit to further procedures, is not in fact a breach of the Bill of Rights Act.   However, it seems to me that that is not quite the case here.

[28]      This is not an instance where the defendant had accessed a lawyer in the  lawyer’s  list  and  was  having  difficulty  tracking  down  the  lawyer. Indeed, as she ably demonstrated, she very quickly was able to access a lawyer after she had been arrested, by reference to that same sheet.  This was

a case where she was wanting to consult wit her aunt and uncle before submitted to procedures.  She left it unsaid to the officer that after consulting with him, she then wished to speak to the lawyer that they recommended and would then agree to submit to the procedures.  So it seems to me that there is something of an essential difference between this case and Thompson’s case, whereas, as I say, Mr Thompson was trying to exercise his right to consult his own lawyer and where he protested against the erosion of that right by completing the form in the way he did because “no reasonable time has been given to advise my lawyer”.

[29]      My conclusion about  this  is  not  easily  reached.    Some  of  these matters are finely weighed.   For instance, had the defendant in this case made it clear to the officer that her purpose in wanting her aunt or uncle there was so that a reputable lawyer could be identified and spoken to.  That may well have changed the matter, but on the evidence I have heard, this is not a case where the Police set out to circumscribe or to deny the defendant’s right to access legal advice and I find that the reading of the portion already referred  to  from the blood  specimen  form does  make it  clear  what  the consequences of refusal to permit a blood specimen to be taken are.   The wording of the blood specimen form is a straightforward warning of the consequences of refusal to consent to the taking of a blood specimen.   In other words, when the defendant came to refusing, as she did, she knew what was at stake.

Grounds of appeal

[11]     The essential argument on behalf of the appellant before me, as before Judge McGuire, is that the responsible officer had failed to make clear to the appellant that she was no longer prepared to allow more time for her aunt and uncle to arrive before commencing the next stage of the statutory testing procedure.   To use the expression favoured in Hanning and Thompson, she had failed to bring the colloquy between the appellant and her to an end.

[12]     Relying on those decisions, Mr Armstrong submitted that the police constable was required to unequivocally convey to the appellant that the period of waiting was over.  He argued that this was necessitated by the continuing dialogue between them in which the appellant had made it clear that she was relying on her aunt and uncle to put her in touch with a lawyer.  In that sense, Mr Armstrong submitted the facts are materially indistinguishable from Thompson where the appellant had sought to postpone  testing  procedures  while  he  attempted  to  contact  his  personal  lawyer. Among the passages in the judgment on which Mr Armstrong relied was the finding of Chisholm J at p 10 that:

At   no   stage   did   the   constable   unequivocally   bring   [the   issue   of representation] to an end.   Indeed, the issue was still surrounded by uncertainty  when  there  was   a   relatively  abrupt   change   of   direction coinciding with the constable’s request for a blood specimen.  There was no reason at all why the constable could not have clarified the legal representation situation before requiring a blood specimen.   The constable was not, of course, obliged to wait indefinitely, but he was obliged to clarify the situation.

[13]     To the same effect  is the  judgment  of Holland  J  in  Hanning  where  the “colloquy” concerned hygiene issues relating to the testing procedures.   Holland J found that it should have been made clear to the appellant that there would be no further  discussion  or  questioning  and  that  he  would  be  charged  unless  he immediately consented to a blood specimen being taken.  In the absence of such an unequivocal termination of the discussion, he could not be satisfied the appellant understood his position.

[14]     Mr Armstrong also relied on the Judge’s remark in para [29] of his judgment (quoted in para [10] above) that it might have made a difference if the appellant had made it clear to the officer that her purpose in wanting her aunt and uncle present was so a reputable lawyer could be identified and spoken to.  That is contrary to the evidence.   The police officer conceded that the appellant  refused the breath test because she was waiting for her aunt and uncle to arrive to advise her which lawyer to use.

Crown response

[15]     Ms Bayley for the Crown submitted that the Judge was fully entitled on the evidence before him to find that the necessary knowledge and intent were present. She argued that at the point at which the request for a blood specimen was made, the police officer, by her conduct in reading the relevant portions of the specimen form to the appellant, brought the appellant’s decision-making process to and end.   She maintained that Hanning and Thompson are distinguishable on their facts; there was no  discussion  between  the  police  officer  and  the  appellant  of  the  kind  which occurred between the appellants and the police officers in those cases.

[16]     Whether a person has refused to give a blood specimen is a question which is to be determined having regard to all of the circumstances.  As Eichelbaum J said in Vitullo v Ministry of Transport (1988) 3 CRNZ 227 at 230:

The question whether the suspect has refused [to permit a specimen to be taken] has to be determined on a consideration of the whole of his conduct and the totality of his statements, set against the background circumstances. The issue whether the suspect refused to permit a specimen to be taken involves taking those common words in their ordinary meaning and making a factual decision.   The section envisages a practical situation where the Legislature could not have intended to surround the concepts of permission and refusal with any undue complexity.

To  similar  effect  see  the  comments  of  McGechan  J  in  Davison  v  Ministry  of

Transport (1987) 2 CRNZ 426 at 431:

First, whether or not refusal has occurred is a question of fact.  As a question of  fact,  it  falls  to  be  ascertained  objectively,  and  with  regard  to  all surrounding circumstances.

[17]     An intention to refuse must be established.   That  is the mens rea of the offence.   In order to have the intent, there must be knowledge of what  is being requested.   The test was put this way in another decision of Holland J, Tikao v Ministry of Transport (1986) CRNZ 703, at 705:

If the appellant knew and understood that he was being asked to permit a specimen of blood to be taken his refusal or failure to permit the specimen to be taken creates the offence unless it can be shown that that refusal or failure was not an act of his own volition.

[18]     The question for me is whether, on the evidence before him, the Judge was entitled to find that the appellant had the necessary knowledge and understanding.  If she did, an intent to refuse can readily be inferred.  The case for the appellant is that the appellant did not have the requisite intent because she was never told that the officer  was no  longer  prepared to  wait  for  her  aunt  and  uncle  to  arrive  before commencing the breath and blood testing procedure.  In the absence of such advice, it is said the appellant could not have appreciated that she was required to give a specimen.

with the request to undergo a breath test, the officer embarked on a course of conduct which  made  it  clear  that  she  was  no  longer  going  to  allow  the  arrival  of  the appellant’s aunt and uncle to hold up testing procedures.  It is true that the appellant said she would comply with the request for a breath test when her aunt and uncle arrived.  But the officer’s response to that must have conveyed to the appellant that she was no  longer prepared to wait for that eventuality; she proceeded with the attempt to administer the breath test and moved on to request a blood sample.

[20]     The advice in the blood specimen form quoted in para [5] above and read out to the appellant leaves no room for misunderstanding.   In my view, she could not have been left in any doubt that she was being asked to consent to the taking of a specimen of blood and that her refusal to provide it constituted an offence.  The fact that the appellant refused, so she said, because she was waiting for her aunt and uncle to arrive does not, in my view, answer the point.  It discloses her motive for refusing to comply but does not show that she did not intend to do so.   Although Judge  McGuire  wrongly,  as  it  turned  out, observed  that  it  might  have  made  a difference if the appellant had made clear that she was waiting for her aunt and uncle, I do not see that evidence as undermining his key findings.  The reality was that the police officer was prepared to allow time for the appellant’s aunt and uncle to arrive and to advise her about a lawyer but, after a reasonable time had elapsed, she would allow no more time.  By her words and conduct she made that clear.  In my view, nothing more was required.

[21]     I  appreciate  that  in  closely  analogous  circumstances  in  Hanning  and Thompson Judges were not prepared to find the requisite knowledge and understanding in the absence of some further statement from the police officer that discussions were at an end.   Mr Armstrong, in his careful and comprehensive submissions, was entitled to place great weight on those decisions.  However, each case must turn on its own facts.   My task is to decide whether, on the evidence before him,  Judge McGuire  was  right  to  find  the  necessary  intention  had  been established.  For the reasons I have discussed, I am satisfied he was right.

[22]     The appeal is accordingly dismissed.