P v Police HC Auckland CRI 2008-404-208

[2008] NZHC 1486

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-208

BETWEEN  P

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         22 September 2008

Appearances: Nicola Scott for Appellant

Anna Longdill for Respondent

Judgment:      22 September 2008

JUDGMENT OF HARRISON J

SOLICITORS

Public Defence Service (Manukau) for Appellant

Meredith Connell (Auckland) for Respondent

P V POLICE HC AK CRI 2008-404-208  22 September 2008

Introduction

[1]      Mr P   appeals against his conviction in the District Court at Auckland on 24 June 2008 on one charge of driving with excess breath alcohol. Mr P  ’s appeal raises one issue.  His counsel, Mrs Nicola Scott, submits that the District  Court  Judge  erred  in  law  in  determining  that  during  the  breath  testing process  Mr P    had  an  appreciable  understanding  of  his  rights  under  s 23

New Zealand Bill of Rights Act 1990 (NZBORA) to instruct and consult with a lawyer without delay or that the police officer did all that was required of him to preserve those rights.  As Ms Longdill points out for the Crown, this submission was the principal ground of defence at the summary hearing before Judge Stanley Thorburn.

[2]      Unfortunately the written synopsis filed on appeal by Mr P  ’s counsel did not address any argument to the District Court Judge’s findings.   It was as if his decision did not exist and this was a hearing de novo rather than an appeal by way of a rehearing.  However, in oral argument this afternoon Mrs Scott has rectified that deficiency.  She has identified various findings by the Judge which she submits were in error.

[3]      It is necessary to record that Mr P   has to show that the decision under appeal was wrong.  Mrs Scott asserts that Judge Thorburn erred in law but in reality the appeal is against findings of fact.   An appellate Court must exercise special caution when reviewing a decision based upon the trial Judge’s assessment of credibility made with the direct benefit of seeing and hearing the witnesses.   The transcript can never replicate the atmosphere of trial.

District Court

[4]      Mr P   is a Korean national.  He has lived in New Zealand for three years. He works here as a hairdresser in partnership with his wife.

[5]      Mr P   was apprehended at a police site while driving a motor vehicle in

Auckland just after 2 am on 14 December 2007.  In due course he was subjected to

an evidential breath test which disclosed a reading of 903 micrograms of alcohol per litre of breath.  The reading was more than double the legal limit.  At the hearing no issue was taken with the lawfulness or accuracy of the testing mechanisms or of the procedures adopted by the police under the Land Transport Act 1998.   The only issue was whether the prosecution had proved that when detaining Mr P   for the purpose of breath testing it complied with the requirements of s 23(1)(b) NZBORA by explaining his rights and obtaining evidence of his appreciation.

[6]      In determining this issue the Judge followed Penlington J’s formulation of the appropriate test in Browne v Police HC Hamilton AP6/95 16 June 1995 as follows: at 15-16:

…. Stated simply, the prosecution is required to establish that the suspect did in fact understand his rights.  Those cases have also made it clear that where those rights have been adequately explained, then there is a strong inference that the explanation has been understood.  In a case where there is evidence to the contrary then the prosecution is required to prove on the balance of the probabilities that the suspect did in fact  understand the  explanation.   A subjective test accords with the right centred approach required by the Bill of Rights.

[7]      Mrs Scott  accepts  that  Penlington J’s  statement  correctly  summarises  the relevant legal principles.  In my respectful view it accords with the authorities which His Honour reviewed in Browne including R v Mallinson [1993] 1 NZLR 528 (CA) and the test posited by Richardson J at 531 as follows:

Unless there are circumstances calling for obvious care and further inquiry 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 acknowledgement 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.

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.

[8]      Judge  Thorburn  focused  accordingly  on  the  adequacy  of  the  officer’s explanation of Mr P  ’s rights over a 40 minute period.  His findings were made against the background of a sustained challenge by the defence.  Counsel suggested that   the   officer   had   deliberately  embellished   his   evidence   about   Mr P  ’s understanding of the English language.

[9]      What then were the facts on which the Judge relied?   First, he found that Mr P   willingly signed at 2.17 am what is called the first Bill of Rights form.  That document included a statement in bold print as follows:

YOU ARE ADVISED THAT YOU HAVE BEEN DETAINED FOR THE CARRYING OUT OF BREATH OR BLOOD TEST PROCEDURES.

YOU HAVE THE RIGHT TO REFRAIN FROM MAKING A STATEMENT AND TO REMAIN SILENT.

YOU HAVE THE RIGHT TO CONSULT AND INSTRUCT A LAWYER WITHOUT DELAY AND IN PRIVATE. THIS RIGHT MAY BE EXERCISED WITHOUT CHARGE UNDER THE POLICE DETENTION LEGAL ASSISTANCE SCHEME. YOU MAY ALSO EXERCISE THIS RIGHT BEFORE DECIDING TO ANSWER ANY QUESTIONS THAT MAY BE PUT TO YOU.

ANYTHING SAID BY YOU WILL BE RECORDED AND MAY BE GIVEN IN EVIDENCE.

[10]     Second, and perhaps decisively, the Judge accepted the officer’s evidence that when advising Mr P   of his rights ‘he acknowledged everything I said and it was understood by him nodding ‘yes’’.   Furthermore, he accepted that the officer specifically inquired whether Mr P   wished to contact a lawyer, which he declined, and that he then took some time reading the form before signing.

[11]     In this respect the Judge accepted the accuracy of the officer’s notes made after Mr P  ’s arrest as follows: at [36]:

… ‘subject was compliant and understood the start of the process, spoke good English at the start of  the  procedure.   After  evidential  breath  test complained that he could not understand and refused to sign the second Bill of Rights, became uncompliant.’

Within this process Mr P   was able to give his name, address, date of birth and other basic details.   While this information was recorded in his  licence,  it  was

relevant that Mr P    spoke  sufficiently good  English  to  communicate  it  to  the officer.

[12]     Third,  the  officer’s  evidence  was  that  Mr P    was  able  to  follow  his instructions.   The  two  engaged  in  discussions.    The  officer  gave him  orthodox directions about blowing into the machine.    In the course of their conversation Mr P   advised that he was not drunk; but he did admit to drinking beer and later wine.

[13]     Fourth, the Judge accepted the officer’s evidence that Mr P  ’s co-operative mood and attitude changed sharply at about 2.48 am.  That was when the constable advised him of the results of the evidential breath test readout at 903 micrograms. Mr P   responded with a protestation of a lack of knowledge of English.  As the Judge found, he ‘postured non-communication, turning away and stating that he did not speak English …  [He] became unwilling to co-operate with signing or anything else’.

[14]     The  document  to  which  the  Judge  was  referring  was  the  second  form, identical  to  the  first,  conveying Mr P  ’s  rights  to  consult  a  lawyer  under  the NZBORA.  He refused to sign, although about 30 minutes earlier he willingly signed the same document containing the same advice.  It was open to the Judge to infer, as he apparently did, that Mr P   then asserted or raised for the first time an inability to comprehend English, inconsistently with his earlier conduct, because he learned of the breath test result and began to appreciate the legal consequences.

[15]     Judge Thorburn accepted the credibility of the officer’s account.  His finding was  made  after  hearing  also  from  Mr P  .    He  gave  his  evidence  through  an interpreter.  Mrs Scott submits that the Judge should have exercised special care in rejecting an account given by this means.  Her point is generally valid.   But I am satisfied that the Judge was aware of it.  He plainly did not find Mr P  ’s account credible on the essential elements.  The Judge found him guilty of the charge and convicted Mr P  .

[16]     In  essence  Judge  Thorburn  found  that  the  constable  properly  explained Mr P  ’s NZBORA rights to consult a lawyer; that there was nothing to put the officer on inquiry or notice at any stage to the effect that Mr P   did not understand his rights; and that Mr P   appeared able to communicate in and understand English until he realised the nature and extent of the adverse reading when his approach changed significantly.   The Judge was not satisfied that Mr P   had at any stage earlier communicated any deficiencies in understanding the officer’s advice.

[17]     I am unable on appeal to find any basis upon which to conclude this factual conclusion was not available to Judge Thorburn.  He had the inestimable benefit of seeing and hearing the witnesses.   As a Judge of many years experience, he was particularly well placed to evaluate the issues of credibility which lay at the heart of Mr P  ’s challenge.  The appeal must be dismissed.

Section 30 Evidence Act 2006

[18]     Even if Mrs Scott had persuaded me of the Judge’s error, I would have had no hesitation in exercising my discretion to admit the results of the breath testing procedures  under  s 30  Evidence  Act  2006.    I  make  this  observation  because Ms Longdill has referred to a statement made by the Judge as follows:

If the prosecution fails to show me that he understood his rights during this process then of course I should dismiss the charge.

[19]     I accept Ms Longdill’s submission that Judge Thorburn’s observation was wrong.  The Judge had a residual statutory discretion to admit the breath test results even if he found the evidence was improperly obtained for failure to satisfy s 23

NZBORA.  Ms Longdill advises that a decision of this Court is pending an appeal against a District Court decision to exercise the statutory discretion in a summary trial;  it  was  apparently  argued  that  s 30’s  application  is  limited  to  indictable proceedings.

[20]     While  Mrs Scott  has  not  raised  this  argument  today,  I  must  record  its apparent untenability.  There is no logical reason for distinguishing the applicability of statutory rules of evidence between criminal proceedings on the ground that one is

summary and another is indictable.  The principles of the Evidence Act must apply equally to all criminal proceedings regardless of forum or nature: see s 30(1).

[21]     In my judgment, even if the Court had found evidence from the breath test was improperly obtained, all the statutory factors favour admission: s 30(3).  While the  right  to  counsel  is  important,  any  breach  here  was  unintentional  and  not deliberate or reckless.  The nature of the evidence is, as Ms Longdill points out, of a high  quality,  reliable  and  central  to  the  prosecution  case  (indeed  it  was  not challenged at hearing).   The offence of driving with an excess breath alcohol is serious because it raises public safety concerns.

[22]     But most decisively, as Mrs Scott realistically accepts, a legal advisor would have been unable to assist Mr P   once the breath testing mechanism recorded a reading of 903 micrograms where its accuracy was not in issue.  She points out that legal advice may have been relevant if the reading was marginally above 400 micrograms (in the range of 400-600 micrograms).  But a competent lawyer would not have recommended Mr P   submit himself to a blood test where the breath test result was higher.  The message contained in a reading of more than double the legal limit was overwhelming.  Simply put, legal advice would not have assisted Mr P   in these particular circumstances.

[23]     Exclusion  of  the  breath  test  result  would  be  disproportionate  to  any impropriety in failing to properly communicate Mr P  ’s NZBORA right to consult a lawyer.  The statutory balancing exercise would lead inexorably to admission.  I would have dismissed the appeal on this alternative ground, even if the evidence was improperly obtained, and admitted the breath test result under s 30.

[24]     In  concluding  I  wish  to  thank  Mrs Scott  for  the  quality  of  her  oral submissions and Ms Longdill for her written synopsis supported ably by a brief oral

argument.

Rhys Harrison J