Orlowski v Police

[2020] NZHC 2469

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2020-442-6

[2020] NZHC 2469

JOHNATHON JEDRIC ORLOWSKI

v

THE NEW ZEALAND POLICE

Hearing:	1 September 2020 (via AVL)
Appearances:	T C Lyall and P A S Morrison for Appellant J R Crawford for Respondent
Judgment:	22 September 2020

JUDGMENT OF CLARK J

[1]    Mr Orlowski faces charges of refusing to accompany a police officer,1 resisting arrest,2 and refusing to provide a blood sample.3 Following a pre-trial hearing at which two constables and Mr Orlowski gave evidence, Judge Ruth ruled that the evidence of Mr Orlowski’s refusal to supply a blood sample was admissible in relation to that charge.4

[2]    Mr Orlowski seeks leave to appeal that ruling. He had argued, and continues to argue, that the evidence was inadmissible because he was denied his right to consult and instruct a lawyer.

1      Land Transport Act 1998, s 59(1)(b) (Cat 1, maximum fine of $4,500).

2      Summary Offences Act 1981, s 23(a) (Cat 2, maximum three months’ imprisonment/$2,000 fine).

3      Land Transport Act 1998, s 60(1)(a) (Cat 2, maximum three months’ imprisonment/$4,500 fine).

4      New Zealand Police v Orlowski DC Nelson CRI-2019-042-002336, 10 June 2020 [District Court ruling].

ORLOWSKI v THE NEW ZEALAND POLICE [2020] NZHC 2469 [22 September 2020]

[3]    I have reached the view that it is expedient for the issue under appeal to be determined by way of an appeal at the conclusion of the trial and that leave to appeal should therefore be refused.

The factual background

[4]    The following account is taken from the District Court ruling and notes of evidence.

[5]    All three charges arise from an alleged incident on 8 December 2019 when Mr Orlowski was approached by Constable Tonkin and asked to undergo a breath screening test. Mr Orlowski refused. He was asked to accompany the officer to a police station. Mr Orlowski refused. The officer warned Mr Orlowski of the consequence of continuing to refuse namely, that he would be arrested. Mr Orlowski continued to refuse nevertheless.  He  claimed  he was  not  the driver  of the  car. Mr Orlowski was arrested.

[6]    Constable Tonkin and the officer who was on duty with him that night, gave evidence that Mr Orlowski was aggressive and uncooperative.

[7]    Before being placed in the police car Mr Orlowski was read his rights from a card that officers routinely carry. There is no dispute in this case that Mr Orlowski was given, and understood his rights, in particular his right to speak to a lawyer.

[8]    Although the Richmond Police Station was closer to the place of arrest, because of Mr Orlowski’s behaviour and attitude the constables decided to take him to the Nelson Police Station where there is a custody suite and therefore, some assistance should it be required. From the point when Mr Orlowski was read his rights he asked on a number of occasions to speak to a lawyer. He was not permitted to speak to a lawyer in the police car. It was considered impracticable as Mr Orlowski’s hands were handcuffed behind his back and he had no privacy.

[9]    At the police station Mr Orlowski renewed his requests to speak to a lawyer. A list of lawyers was apparently placed in front of him. Constable Tonkin’s evidence

was that Mr Orlowski wanted to speak to his own lawyer not any of the lawyers on the list. Again, it is not in dispute that Ms Lyall’s name was on the list.

[10]   Mr Orlowski’s evidence was that, at the police station, he asked if he could talk to a lawyer by the name of Ms Tagan. He was told the officers had tried but could not get hold of her. He was then asked if he would do a blood test. Mr Orlowski’s evidence was that “I told him to get fucked”.

[11]   Mr Orlowski denies being asked to undergo the breath screening test. He accepts the police officers told him it was not practicable to be able to ring a lawyer in the car. And he denies being given a list of lawyers.

The District Court decision

[12]   Judge Ruth framed the issue for determination as being whether Mr Orlowski had been “accorded his proper Bill of Rights advice and indeed the matters which flow from that advice and in particular the availability of his right to contact a lawyer either one of his choice or one from a list of available lawyers.”5

[13]   The Judge canvassed the evidence of Constable Tonkin and Constable Matthews as to what happened at the roadside and at the police station. The Judge referred to the officers’ reluctance to allow a call to be made in the police car because of a lack of privacy. In relation to Mr Orlowski’s evidence that he wanted his phone returned to him so that he could make a call the Judge observed that he could not have done so because he was handcuffed at the time.6

[14]   Addressing deficiencies in the way in which the Breath and Blood Alcohol Procedure Sheet had been completed, Judge Ruth said it was unfortunately not filled in “precisely correctly” but Constable Tonkin had been upfront about the fact that any deficiencies were mistakes on his part.7 His Honour had  “no  doubt”  that  “Constable Tonkin’s overall evidence simply amounts to going through the procedures

5 At [3].

with this man and at each point Mr Orlowski refusing to comply”.8 The Judge also considered it was apparent from the form that there was a request for an evidential breath test.9

[15]   Towards the end of his ruling the Judge returned to Mr Orlowski’s inability to “give any rational answer as to how he proposed” to telephone Ms Tagan — or anyone else — with his hands cuffed behind him. Responding to Mr Orlowski’s evidence that he had not thought that through the Judge said:

[26] The reason that has not been thought through in my estimation is that almost everything Mr Orlowski told me in the witness box was an absolute lie. I am not sure whether he was high on methamphetamine, which he says was all he was asked about by police that night. He maintained there were no questions asked of him about breath screening tests, evidential breath test or anything which I find absolutely outrageous and a total nonsense. I also observe that no such propositions were put to either of the police officer witnesses.

[16]Judge Ruth determined the issue before him in these concluding paragraphs:

[27]      I do not accept anything Mr Orlowski said to me today except to the extent that he agreed that he had been given his Bill of Rights’ advice, and I am quite satisfied that that is right. As to whether he can read or write, as I have said, I do not think that takes the matter one way or the other here.

[28]      So without further ado I conclude that I entirely reject Mr Orlowski’s account of what happened on this night. It is a lie, it is nonsense and I reject it. I accept the evidence of the two police officers.

[29]      In my view, so far as this pre-trial matter is concerned, the evidence as to Bill of Rights' matters generally is all admissible.

[17]   Ms Lyall suggested that the evidence Judge Ruth ruled admissible at [29] was the entirety of the prosecution case in relation to all three charges. The better view I think is that the evidence upon which his Honour was ruling was solely the evidence in relation to the charge of refusing to provide a blood sample.

The appeal

[18]The appellant seeks leave to appeal on the grounds that:

(a)counsel was not given an opportunity to be heard;

(b)the Judge failed to consider relevant legal principles; and

(c)the Judge erred in his assessment of the facts.

[19]   Before me counsel analysed the evidence and advanced detailed legal submissions in support of the proposition that, in breach of his rights under s 23(1)(b) of the New Zealand Bill of Rights Act 1990, Mr Orlowksi was unable to consult and instruct counsel.

[20]   The respondent does not oppose leave being granted on the grounds set out in the appellant’s submissions. Ms Crawford submitted that in the event the Court finds there was a breach of Mr Orlowski’s right to consult and instruct a lawyer, whether or not the evidence should be excluded falls for assessment under s 30 of the Evidence Act 2006. The respondent’s position is that excluding the evidence would be disproportionate to the impropriety.

Discussion

[21]   Mr Orlowski applies for leave to appeal pursuant to s 215 of the Criminal Procedure Act 2011. In R v Leonard10 the Court of Appeal set out the procedure by which leave applications under s 379A of the Crimes Act 1961 are to be assessed. More recently, the Court of Appeal in Lynn v R11 confirmed that the approach set out in R v Leonard continued to apply (in relation to appeals against pretrial rulings under s 217 of the Criminal Procedure Act).

[22]   Counsel for the appellant argued that the Judge erred in law because, in breach of s 79 of the Criminal Procedure Act, he did not allow either party an opportunity to make legal submissions.

[23]Section 79 of the Criminal Procedure Act provides:

79       Pre-trial admissibility hearing and order that evidence admissible

(1)The court at a pre-trial admissibility hearing must give each party an opportunity to be heard.

(2)The court may make an order that the evidence is admissible.

(3)The order may be made on any terms and subject to any conditions that the court thinks fit.

(4)Nothing in this section, or section 78, or in any order made under this section, affects—

(a)the right of the prosecutor or the defendant to seek to adduce evidence that he or she claims is admissible during the trial; or

(b)the discretion of the court at the trial to allow or exclude any evidence in accordance with any rule of law.

[24]   The appellant says the Court has no discretion: under s 79(1) the Court “must” give each party an opportunity to be heard. In oral submissions Mr Morrison cited Ngati Apa Ki Te Waipounamu Trust v Attorney-General as authority for the proposition that s 79 should be interpreted as requiring a party to be able to give evidence and make submissions.12

[25]   The respondent submitted that Mr Orlowski was given a right to be heard as he was able to cross-examine the Police witnesses and was able to give evidence. The respondent submits this was sufficient and the Court is not further required to “allow” oral submissions. In support of this argument, Ms Crawford cited Adams on Criminal Law which states: “Each party must be given the opportunity to be heard … there is no requirement that the court must allow oral submissions”.13

[26]   I do not regard the Court of Appeal decision in Ngati Apa as authority for the proposition the appellant advances. The Court of Appeal was concerned with particular alleged denials of natural justice arising from the procedure followed by the Māori Appellate Court. Before that Court, those affected by the proceeding were entitled to have adequate notice of the proceeding “and a reasonable opportunity to

present their own cases through evidence and submissions and to challenge the cases put up against them”.14 Importantly, the Court of Appeal stated that these principles and rights were “supported by, and operate within the context provided by, the relevant legislation”.15

[27]   Section 79 of the Criminal Procedure Act operates in a very different legislative context. First, the provision provides for a pretrial admissibility hearing. The only issue relevant in such a hearing will be whether evidence is admissible at the trial. There is no final determination of rights.

[28]   Secondly, the “opportunity to be heard” that must be given, will not necessarily be an oral hearing. Sometimes, pretrial admissibility matters are determined on the papers.

[29]   For reasons that I come to, I have not found it necessary to determine the actual content of the “opportunity to be heard” given to each party by s 79 of the Criminal Procedure Act. That said, in the context of a dispute about whether a NZBORA right to counsel had, in law, been facilitated it would be surprising if counsel were actually “not allowed” (as it was put) to advance legal submissions.

[30]   The difficulty with this appeal is that it is not at all clear what the process before Judge Ruth actually involved and what transpired.

[31]   Following the hearing of the appeal I was left in some doubt as to the nature of the hearing before Judge Ruth. I issued a Minute to the parties to the effect there was an aspect of the District Court process that I needed to better understand. Essentially, what I wished to know was what the parties understood was to be heard on 10 June 2020 and the extent to which their expectations of the hearing were, or were not, met. Regrettably, I received no clarification of the position.

[32]   The following process appears from the notes of evidence, transcriptions of legal discussions before Judge Ruth (although some are only half a page) and an “In- Chambers Discussion” (one page).

[33]   It appears that on the morning of 10 June Ms Lyall  stood to appear with     Mr Morrison for Mr Orlowski who was in the back of the courtroom. Ms Lyall said to the Judge they were ready to proceed; there were two police officer witnesses and there would likely be two defence witnesses. Ms Lyall added that she had just discussed with the Sergeant, (who did not think it required a pretrial), that she would be raising a s 30 issue in relation to Mr Orlowski not being able to speak to a lawyer and that his request was not facilitated by the Police. At that point the Judge expressed the firm view that the issue should have been dealt with pretrial. The transcription shows that the Court sought the prosecutor’s input. He confirmed the prosecution witness was flying in from Wellington, that they would be ready to proceed any time after 11 am and “it should proceed”. The matter was then stood down.

[34]   A further brief transcription records Ms Lyall advising the Court that she and the prosecutor had discussed the matter and the defence position was that the NZBORA rights issues should be dealt with that afternoon, that oral evidence would be heard — and at that point the Court interjected to say that was all there would be time for. The subsequent discussion records the prosecutor’s concern at Constable Tonkin having to travel from Wellington only to have to return on another day. It was hoped that all his evidence could be heard on 10 June. The Judge was also reluctant to have the witness fly back and forwards and added “… but I think we are just in a position where … we’re lucky in fact to get this much done today”.

[35]   It is plain from a further transcription of an in-chambers discussion that the Judge had a busy docket and was juggling different cases with different counsel. It seems that around noon the parties were advised that “the matter of Orlowski … will be at least a pre-trial argument” to proceed in the afternoon.

[36]   The   matter   proceeded.   Constable Tonkin,    Constable Matthews    and  Mr Orlowski were all called and cross-examined. The notes of evidence show that

very little was said following an objection at 4.22. Therefore, it can safely be assumed the hearing finished around 4.30 pm.

[37]   The Judge delivered his eight-page ruling following which there was a discussion with Ms Lyall about fixing a judge alone trial which was not to be before Judge Ruth. Judge Ruth then addressed Mr Orlowski:

And having said that, Mr Orlowski, if that’s the best you can do in the witness box in defence of your case, I would rather give it up now and start thinking about some guilty pleas. You clearly haven’t got the faintest idea what went on this night. What you told me was a simple pack of lies and I have no doubt that any other lawyer, any Judge hearing it may well come to the same conclusion. Thank you.

[38]   It seems reasonably clear from the transcriptions that the prosecutor and defendant understood the appearance that day  was for the purpose of  the trial of   Mr Orlowski’s charges. The trial would have proceeded in the usual way with the parties giving evidence, being cross-examined and with the opportunity for legal submissions. That is not, however, what happened. It seems the hearing proceeded  as something of  a  hybrid:  part  pre-trial  and  part  trial.  While  the  onus  is  on  Mr Orlowski to establish that he was denied his NZBORA right to speak to and instruct counsel, and it could not be plainer from the Judge’s ruling that he regarded almost all of Mr Orlowski’s evidence  as  “an  absolute  lie”,16  nevertheless,  it  is  not  clear  Mr Orlowski’s opportunity to be heard was fully available to him in light of the way the hearing proceeded.

[39]   That is not to say that in all hearings under s 79 of the Criminal Procedure Act there is an invariable right to make oral submissions. In this case, however a legal issue emerged and remained notwithstanding the Judge’s  rejection of everything   Mr Orlowski had to say in the witness box. When Constable Tonkin was asked whether he saw the defendant being handed the list of lawyers he said the list was “put in front of him on the desk where people are processed … He could have grabbed it if he wanted to”. Sergeant Tonkin’s evidence was that from his best memory the custody sergeant gave Mr Orlowski a list of lawyers and asked Constable Tonkin to leave because his presence was making the situation worse. Constable Tonkin “believed the

custody sergeant used Google to try and find a  lawyer  for  Mr Orlowski”.  Constable Tonkin was only present when the custody sergeant first started using Google. Mr Orlowski denied a list ever being placed in front of him. But even on the prosecution’s evidence, which the Judge accepted, the question remains whether provision of the list in the way the prosecution describes was an appropriate facilitation of the right to consult and instruct a lawyer. It is not apparent from the ruling that the Judge was taken to the relevant principles.17

[40]   In my view the issue will be best dealt with in the context of the Judge alone trial. Likewise, it will be best dealt with in the context of any post-conviction appeal. The issue which the Judge required to be pre-determined but is effectively being sent back to be raised in the context of trial, involves the admissibility of evidence that will not make a significant difference to the course of the trial.

Disposition

[41]   Leave to appeal is refused. The trial judge will be better placed to determine all issues in the context of the scheduled trial in relation to which all parties will have a common understanding of the purpose, nature and scope of the hearing. And, as I have mentioned, in any subsequent appeal the court will be better placed to address all issues in the context of a completed trial.

Karen Clark J

Solicitors:

Zindels, Nelson for Appellant

Crown Solicitor, Nelson for Respondent