P v Police HC Wellington CRI 2008-485-154

[2009] NZHC 334

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-485-154

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 March 2009

Counsel:         W M Johnson for Appellant

J M Webber for Respondent

Judgment:      18 March 2009

JUDGMENT OF RONALD YOUNG J (Appeal against conviction)

Introduction

[1]      Ms P    was  stopped  while  driving a  car  in  Nairn  Street,  Brooklyn  in March 2008.   She went through a breath alcohol procedure and was found to be driving with 640 micrograms of alcohol per litre of breath.  She was convicted in the

District Court.  The notice of appeal alleged two grounds:

P V NEW ZEALAND POLICE HC WN CRI 2008-485-154  18 March 2009

a)       the Police Officer failed to advise the appellant at the Police Station that she could contact a lawyer under the Police Defence Legal Assistance Scheme (“PDLA Scheme”) which was free; and

b)after the appellant completed a positive evidential breath test she was not given the necessary ten minutes within which to decide if she wished to have a blood test.

[2]      As to the latter ground that was abandoned at appeal.

District Court decision

[3]      In  the  District  Court  Judge  Davidson  found  that  when  a  Police  Officer stopped a vehicle at about 11.30 p.m. on Nairn Street the appellant was driving and had been drinking.  The Police Officer required the appellant to blow into a breath screening test.  The result was failed general.  The driver then said that she wanted to speak to her lawyer Mr Bill Johnson.  The Police Officer informed her that because it was impractical for that to occur at the roadside she would be required to accompany the Officer to the Wellington Police Station where contact with her lawyer could be arranged.    The  Police  Officer  then  issued  the  defendant  with  a  caution  which complied  with  the  Chief  Justice’s   Practice  Note  (Practice  Note  on   Police Questioning, [2007] 3 NZLR 297), including reference to the right to consult and instruct a lawyer in private without delay which could be exercised free of cost under the PDLA Scheme.

[4]      The appellant then accompanied the Officer to the station.  At the station the appellant refused to sign a Bill of Rights advice which had been read to her but acknowledged orally that she understood it.  She was assisted to call Mr Johnson but was unable to make contact with him.  She was told that the opportunity to contact another lawyer would still be available to her, and asked if she wished to contact another lawyer.  She said no.  When she was advised of her rights to contact a lawyer on the second occasion no reference was made to this being available for free, or under the PDLA Scheme.  The appellant then returned to the evidential breath test

suite, and the process was undertaken which resulted in a breath sample of 640 micrograms of alcohol per litre of breath.

[5]      The Judge in the District Court concluded that the evidence in the present case was sufficient to satisfy him that full and proper advice had been given to the appellant.  He was satisfied that the advice given the appellant at the roadside did properly and fully inform the appellant of her rights.  The Judge also concluded that back at the Police Station the appellant was given the opportunity to contact the lawyer she had nominated and when that did not succeed was told she could contact any other lawyer she might wish.

[6]      The  Judge  concluded  the  fact  that  the  initial  advice  relating  to  the PDLA Scheme and free legal advice was sufficient to satisfy him that the breath test results were admissible and nothing “inherently unfair” in the process that should give rise to the exclusion of the evidence.

First ground of appeal

[7]      The appellant in her written submission suggested there was an issue as to whether or not the appellant was read her “full rights” at the roadside.  The Judge made particular findings of fact, which are not able to be challenged on appeal.  The Judge concluded that the appellant had those rights fully explained.  In particular the appellant had been told that she was entitled to contact a lawyer, and that there was a PDLA Scheme,  which  provided  free  legal  advice.    I  note  the  appellant  in  her evidence could not dispute this advice was given.

[8]      The appellant’s case is that when she was unable to contact Mr Johnson at the Police Station she should have been expressly referred again to the PDLA Scheme and again reminded that she could contact a lawyer free of cost.  The appellant says the Police Officer’s advice to her that she could contact another lawyer simply was not sufficient in the circumstances.

[9]      In my view there was no basis to suggest, in the circumstances of this case, that the appellant had to be told of her rights again.  The Police Constable had clearly

fulfilled her obligation.   The appellant obviously, in any event, knew of her entitlement  to  legal  advice  even  before  she  received  advice  from  the  Police Constable.  She asked to contact a lawyer at the roadside before such advice.  The Police Officer told her she could do so although that was not reasonably possible at the scene but  could  happen  at  the  Police  Station.   Nor  does  it  appear that  the appellant was concerned about access to free legal advice.   Her initial request to contact Mr Johnson was not predicated on any enquiry about cost or how she might pay.

[10]     Counsel had no authority for the proposition that for some reason the full advice needed to be repeated when the appellant could not contact counsel of her choice.  The Officer appropriately reminded the appellant of her entitlement to legal advice at that stage.   The appellant chose not to exercise it that right.   In those circumstances I am satisfied that there was full compliance with the statutory obligation.

[11]     In  any  event  I  note  the  Court  of  Appeal’s  observations  in  R  v  Alo [2008] 1 NZLR 168 (CA) that a breach of s 23 of the New Zealand Bill of Rights Act 1990 by a failure to advise on the availability of the PDLA Scheme would not necessarily result in a breach (see [72]).

[12]     The circumstances identified by the Court of Appeal in Alo as relevant in deciding whether a failure to advise has resulted in a breach of s 23 in this case would not have favoured a finding of a breach.  The appellant knew of her right to contact a lawyer and was able to attempt to do so.  She had no obvious concern about the cost of consulting a lawyer.  She knew when she could not contact counsel of her choice that she could still obtain legal advice.  In those circumstances, in my view, there would have been on breach of s 23.

[13]     For the reasons given the appeal will be dismissed.

Ronald Young J

Solicitors:

W M Johnson, PO Box 962, Wellington, email: [email protected]

J M Webber, Luke Cunningham & Clere, PO Box 10357, Wellington, email: [email protected]