P v Police HC Auckland Cri-2009-404-211

[2009] NZHC 1247

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000211

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 September 2009

Appearances: T M Saseve for Appellant

P Singh for Respondent

Judgment:      14 September 2009 at 4:30 pm

RESERVED JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 14 September 2009 at 4:30 pm

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date………………………

Solicitors:           T M Saseve, P O Box 23555, Hunters Corner, Manukau 2155

Fax: [phone]
Meredith Connell, P O Box 2213, Auckland

Fax: [phone] – P Singh

P V NZ POLICE HC AK CRI-2009-404-000211  14 September 2009

Introduction

[1]      In July 2009 Mr P   was convicted in the Auckland District Court of driving with  excess  breath  alcohol  (third  and  subsequent)  following  a  defended hearing.  He appeals on the ground that his right to legal counsel under s 23(1)(b) New Zealand Bill of Rights Act 1990 was not facilitated because the attending officer did not make adequate efforts to find a Samoan-speaking lawyer for him. The Police maintain that the officer acted reasonably and did facilitate Mr P  ’s right to counsel.

[2]      There is no complaint regarding the advice to Mr P   of his rights nor as to whether he understood them.   The sole issue is whether the police failed to facilitate his rights to legal counsel.   In describing the obligation to facilitate the exercise of this right, the Court of Appeal said in Rae v Police1:

…The obligation matches the circumstances.   What is required at any particular point during the procedures will depend on the circumstances at the time, including of course the requirements of the Act…It is a question of whether the motorist has been afforded the facility “to exercise the right in a real and practicable way once there has been an indication that he or she wishes to do so”, as Neazor J put it in Steel v Police (1994) 11 CRNZ 383 at p391.

Did the police facilitate Mr P  ’s right to counsel?

[3]      Mr P   was stopped by the police on the afternoon of 20 November 2008 because his rear left brake light was not working.   He exhibited signs of alcohol consumption and failed a breath screening test.   He was required to accompany a police  constable  to  the  Ellerslie  motorway  patrol  base  for  the  purpose  of  an evidential breath and/or blood test.  He was advised of his rights on the way to the patrol base and, once at the station, provided with a Bill of Rights form, which he signed to acknowledge that he understood it.

[4]      Mr P   accepts that he was advised of his right to speak to a lawyer and that  he  understood  that  right.     There  was  some  inconsistency  between  his

1 [2000] NZLR 452 at [57]

recollection and that of Constable Petrey but no serious dispute over what happened. Constable Petrey acknowledged that his memory was unclear on some aspects and the District Court Judge accepted what Mr P   said happened.  On Mr P  ’s evidence the conversation regarding legal counsel proceeded in the following way. Mr P   told Constable Petrey that he wanted to ring his own lawyer, Mr Saseve. Constable Petrey went away to call Mr Saseve and when he came back he told Mr P   that Mr Saseve was busy in the High Court.  Constable Petrey asked if Mr P   wanted him to ring another lawyer and Mr P   said that he wanted to speak to another Samoan lawyer.   Constable Petrey showed Mr P   the list of duty solicitors available that day.  There was no Samoan-speaking lawyer on the list. Constable Petrey told Mr P   that if he wanted to speak to a lawyer he could use a lawyer from the list.  However, since there was no Samoan-speaking lawyer on the list Mr P   said to Constable Petrey “okay do your job”.

[5]      After that Constable Petrey administered an  evidential breath test,  which returned a result of 442 micrograms of alcohol per litre of breath.   At that point Constable  Petrey  completed  a  second  Bill  of  Rights  form  and  read  it  over  to Mr P  , who signed it, this time stating that he did not wish to speak to a lawyer. Constable Petrey allowed ten minutes for Mr P   to decide whether or not he wished to have a blood test Mr P   said that he did not and was charged with driving with excess breath alcohol.

[6]      Mr  Saseve  submitted  that  Mr P  ’s  right  to  counsel  had  not  been facilitated because it was clear to Constable Petrey that Mr P   wanted a lawyer to whom he could speak in his own language and that Constable Petrey should have taken further steps such as making enquiries with colleagues as to the availability of a Samoan-speaking lawyer before indicating to Mr P   that the only choice was a non-Samoan-speaking lawyer from the list.  Although it was put to Constable Petrey in cross-examination that he had not taken any other steps to locate a Samoan- speaking lawyer from any other list there was no evidence and nor was it put to Constable Petrey that there was any other list apart from the duty list that Constable Petrey had.  Nor was it put to Constable Petrey that he should have contacted other officers in  an  effort  to  locate  a  Samoan-speaking lawyer.    Mr  Saseve’s  second submission was that, in the absence of a Samoan-speaking lawyer, the constable

should have made enquiries regarding a Samoan interpreter.   However, this possibility was never put to Constable Petrey in cross-examination.  At the hearing it was not put to Constable Petrey that Mr P  ’s understanding of English was poor.

[7]      On the evidence, I consider that Constable Petrey did take reasonable steps to facilitate  Mr  P  ’s  right  to  counsel.    He  had  willingly  attempted  to  contact Mr Saseve and I am satisfied that had Mr P   given Constable Petrey another name he would have tried that lawyer as well.   However, in the absence of any specific  Samoan-speaking  lawyer  to  contact  the  constable  acted  reasonably  in offering Mr P   a lawyer from the duty list.   Of course, it is inherent in this finding that Mr P   did speak and understand good English.   And indeed, this submission  can  carry only  very slight  weight  against  the  Judge’s  finding  as  to Mr P  ’s fluency in English.   There was no issue taken during the defended hearing in the District Court as to Mr P  ’s ability to speak and understand English.  Mr P   gave evidence at the hearing.  Although he had the assistance of a Samoan interpreter, the Judge found that his evidence and the cross-examination of it was undertaken almost entirely in English in which he was “plainly quite fluent”.

[8]      Whilst I accept Mr Saseve’s submission that there would have been a degree of comfort for Mr P   in being able to speak to someone in his own language, the evidence  is  clear  that  Mr  P    did  speak  and  understand  English  to  a  good standard and could have conversed adequately with a lawyer in English.  As a result, I find that there was no breach of Mr P  ’s rights under s 21(1)(b) BoRA.

Admission of evidence under s 30 Evidence Act 2006

[9]      Given my conclusion that was no breach of Mr P  ’s BoRA rights it is, strictly, unnecessary to go on and consider the Crown’s second submission that if there were a breach, the evidence should at least have been admitted under s 30

Evidence Act 2006.  However, for the sake of completeness I indicate that, even if I am wrong in my conclusion that there was no breach, I would have not found that exclusion of the evidence was proportionate to a breach in this case.

[10]     Having regard to the matters identified in s 30(3) I note that there was never any suggestion and nor could there have been on the evidence that Constable Petrey acted deliberately, recklessly or in bad faith so as to impede Mr P  ’s right to legal counsel.  To the contrary, the evidence shows that Constable Petrey was happy to accommodate Mr P  ’s desire for particular counsel and, had another alternative name been given, would have pursued that enquiry as well.

[11]     The evidence, which was crucial to the prosecution case, is of high quality and reliable.  There has been no challenge to any aspect of the evidence itself.  The offence, driving with excess breath alcohol by a person with previous similar convictions, is a moderately serious matter.

[12]     As against those factors I note Mr Saseve’s admission that Mr P   was only slightly over the breath/alcohol limit and, had he received legal advice, may have opted for a blood test which may, in turn, have produced a different result. Whilst this is possible, it truly is speculative.  Mr P   fully understood his right to have counsel, he was advised of it again before he elected to refuse the blood test.  In these circumstances, Mr Saseve’s submission could carry little weight against the factors I have already identified.

Result

[13]     I find that the Judge did not make an error in finding that there was no breach of Mr P  ’s right undere s 23(1)(b) BoRA.  Mr P  ’s appeal is dismissed.

P Courtney J