Paniora v Police

[2012] NZHC 830

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2011-488-077 [2012] NZHC 830

BETWEEN  BULLA PANIORA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 April 2012

Appearances: R Mulgan for appellant

T Nicholls for respondent

Judgment:      30 April 2012

JUDGMENT OF GILBERT J

This judgment was delivered by me on 30 April 2012 at      pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………….

Counsel:            P Winker/R Mulgan, Auckland: [email protected]

Solicitors:           Crown Solicitors, Whangarei:  [email protected]

PANIORA V NZ POLICE HC WHA CRI 2011-488-077 [30 April 2012]

Introduction

[1]      The appellant, Mr Paniora, pleaded not guilty to a charge of driving with excess breath alcohol on 23 July 1210 in breach of s 56 of the Land Transport Act

1998.  The defended hearing took place on 14 October 2011 in the Kaikohe District Court before Judge Davis.  In a reserved decision issued on 11 November 2011, the Judge found the charge proved and Mr Paniora was accordingly convicted.  He was sentenced on 23 November 2011 to a fine of $650 plus court costs and he was disqualified from driving for a period of six months.

[2]      In a notice of appeal dated 22 November 2011 Mr Paniora gave notice that he intended to appeal against his conviction on the grounds that the Judge erred in fact and in law.  He sought a deferment of the disqualification pending the outcome of the appeal. This was granted by Judge Davis on 23 November 2011.

Ground of appeal

[3]      Mr Mulgan, for Mr Paniora, advanced a single ground in support of the appeal.  He submitted that the learned Judge erred in finding that Mr Paniora’s right pursuant to s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) to consult a lawyer of his choice had not been breached.  He submitted that the Judge ought  to  have  excluded  the  evidence  of  the  result  of  the  evidential  breath  test pursuant to s 30 of the Evidence Act 2006.

Evidence

[4]      There were only two witnesses, Police Sergeant Dunckley and Mr Paniora. Their evidence conflicted in many material respects.

[5]      Sergeant Dunckley is stationed at Kerikeri.   At about 9.50 pm on Friday

23 July 1210, he was conducting a compulsory breath test check point on State Highway 12 near Omapere.   His evidence was that after stopping Mr Paniora he administered a passive breath screening test which Mr Paniora failed.   He then

required Mr Paniora to undertake a breath screening test which produced a “fail general” result.

[6]      At this point Sergeant Dunckley said that he advised Mr Paniora that he was required to accompany him for the purposes of an evidential breath test or blood test, or both.  Sergeant Dunckley said that he then advised Mr Paniora of his rights under the NZBORA, including his right to contact a lawyer without delay and in private. He said that Mr Paniora was hard of hearing and he had to repeat himself as he explained Mr Paniora’s rights.  However, he said that Mr Paniora acknowledged that he had heard and understood what Sergeant Dunckley had said.

[7]      On returning to the Police car, Sergeant Dunckley sat in the driver’s seat and Mr Paniora sat in the left rear passenger seat.  The Sergeant asked Mr Paniora for his details and recorded these on an “EBA checklist sheet” which he also described as a “procedure sheet” or a “check sheet”.   Sergeant Dunckley recorded Mr Paniora’s advice that he had been drinking “a lot” of beer at the Omapere Hotel just prior to being stopped.   Sergeant Dunckley noted that Mr Paniora’s eyes were glazed, he smelled of alcohol and his speech was slurred.

[8]      After  recording  these  details  on  the  procedure  sheet,  Sergeant  Dunckley advised Mr Paniora that he was being detained for the purposes of an evidential breath test or blood test, or both.  He said that he again advised Mr Paniora of his rights under the NZBORA, including the right to speak to a lawyer without delay and in private.   He told Mr Paniora that he could provide a list of lawyers that Mr Paniora could speak to free of charge and he advised him that these rights would continue throughout the breath and blood alcohol procedures.   He advised that if Mr Paniora wished  to  contact  or instruct  a lawyer,  a telephone would  be made available  for  that  purpose  as  soon  as  practicable  and  before  undergoing  any evidential breath test or blood test.  He concluded by explaining:

What  that  means  is  that  at  any  time  that  you’re  with  me  during  this procedure  that  you  can  ring  a  lawyer  and  that  a  phone  will  be  made available, and that, that lasts for the whole period that [you’re] with me [you] just need[ed] to ask me that [you] want to ring a lawyer at any time.

[9]      Sergeant  Dunckley’s  evidence  was  that  he  then  asked  Mr  Paniora  if  he wanted a lawyer and Mr Paniora said no.  Mr Paniora then signed the check sheet acknowledging that his rights had been explained.

[10]     Sergeant  Dunckley  then  administered  the  evidential  breath  test,  which produced a result of 642 micrograms of alcohol per litre of breath.

[11]     Sergeant Dunckley’s evidence was that he advised Mr Paniora that he had 10 minutes within which to request a blood test.   After giving that advice, Sergeant Dunckley said that he again advised him of his rights under the NZBORA including the right to consult and instruct a lawyer without delay and in private.   He also restated that a phone would be made available to him for that purpose together with a list of lawyers that he could contact free of charge.

[12]     According to Sergeant Dunckley, Mr Paniora made a telephone call using his own cell phone.  The call lasted only 10 to 20 seconds.  Sergeant Dunckley asked Mr Paniora if he had called “the pub” to tell them about the checkpoint.  Mr Paniora confirmed that he had called the pub and he did not deny the Sergeant’s suggestion that this was to alert them to the checkpoint.  Mr Paniora gave no indication that he was seeking to exercise his right to consult a lawyer.

[13]     Sergeant Dunckley said that Mr Paniora then attempted to make a second call.  Sergeant Dunckley asked him who he wanted to call and Mr Paniora replied that he wanted to call his girlfriend.     Once again, Mr Paniora gave no indication that this was to enable him to contact his lawyer.  Sergeant Dunckley responded that he could not call his girlfriend until the conclusion of the test.

[14]     As noted, Mr Paniora’s evidence conflicted with that of Sergeant Dunckley in a number of material respects.  Mr Paniora agreed that he told Sergeant Dunckley that  he  had  been  drinking.    However,  he  denied  that  either  of  the  two  breath screening tests had been administered.   He denied receiving any advice as to his rights until after the evidential breath test had been completed.  He denied that it was his signature on the procedure sheet confirming that he had received advice of his

rights under the NZBORA although he acknowledged that he did sign this form in two other places.

[15]     Mr Paniora gave evidence of only one attempted telephone call.  He said that he wanted to call a friend at the pub and ask him to make contact with Mr Paniora’s lawyer.   He said that Sergeant Dunckley told  him to put his phone away.   He acknowledged that he had his lawyer’s telephone contact details saved in his cell phone but he claimed it would be quicker to ring his friend at the pub and ask him to ring the lawyer than to ring the lawyer directly on his phone.  Finally, Mr Paniora disputed that he had been given a 10 minute period to decide whether he wished to provide a blood sample.

District Court decision

[16]     The Judge found, contrary to Mr Paniora’s evidence, that the breath screening tests were carried out as stated by Sergeant Dunckley.

[17]     The Judge also found, again contrary to Mr Paniora’s evidence, that he was given the right to elect to give a blood sample and was advised that he had 10 minutes within which to exercise that right.

[18]     Contrary to Mr Paniora’s evidence, the Judge found that Mr Paniora’s rights under  the  NZBORA were  explained  to  him  on  three  occasions:  initially  while walking back to the police car; prior to the evidential breath test being carried out in the police car; and after the evidential breath test had been completed.   On each occasion Mr Paniora’s right to consult a lawyer without delay and in private was explained and the offer made to facilitate the obtaining of such advice by providing a telephone and a list of lawyers who could be consulted free of charge.

[19]     The Judge considered whether, despite this advice, Mr Paniora was denied his right to consult a lawyer.  The Judge found that having been advised of his right to do so, Mr Paniora said that he did not wish to speak to a lawyer.  The Judge also found that Mr Paniora did not advise Sergeant Dunckley that he wished to use the

telephone to facilitate contact with a lawyer.   These aspects of the evidence were uncontested.

[20]     The Judge concluded on the issue as to whether Mr Paniora’s rights to consult

a lawyer had been breached at [28]:

Accordingly, in my view, I put aside the evidence of Mr Paniora on that point and again prefer the evidence of the Sergeant.  I am not satisfied that Mr Paniora was denied the opportunity to consult a lawyer.

[21]     It is implicit in this finding that the Judge rejected Mr Paniora’s evidence that there was only one attempted phone call and that this was to a male friend at the pub for the intended purpose of contacting his lawyer.  In accepting Sergeant Dunckley’s evidence on this issue and rejecting Mr Paniora’s evidence, the Judge must have accepted that Mr Paniora made a 10 to 20 second phone call to the pub to advise the patrons of the checkpoint.  The Judge must also be taken to have accepted Sergeant Dunckley’s  evidence  that  the  call  that  he  prevented  was  an  attempted  call  by Mr Paniora to his girlfriend.  Mr Paniora gave no evidence about this attempted call and did not suggest that he was attempting to contact her as a way of contacting his lawyer.

[22]     In all of the circumstances, the Judge was satisfied that the requirements of s 23 of the NZBORA had been complied with.   The Judge found as a fact that Mr Paniora’s right to consult a lawyer without delay and in private was explained on three separate occasions and that Mr Paniora told Sergeant Dunckley that he did not wish to do so.

[23]     The Judge considered that, in these circumstances, Sergeant Dunckley was not required to enquire about the purpose of the intended call by Mr Paniora to his girlfriend.   The Judge found that Mr Paniora was not denied the opportunity to consult a lawyer.

Submissions

[24]     Mr Mulgan submitted that Mr Paniora was entitled to avail himself of the right  to  consult  a  lawyer  at  any  time  during  the  10  minute  period  following

completion of the evidential breath test and after his right to a blood test had been explained. I accept that submission.

[25]     Mr Mulgan further submitted that Sergeant Dunckley should have been alert to the possibility that Mr Paniora was endeavouring to make contact with a lawyer. He submitted that it was incumbent on Sergeant Dunckley to enquire as to the purpose of the telephone calls to ensure that he did not prevent Mr Paniora from exercising his right to do so.  Mr Mulgan referred to numerous authorities although he accepted that the issue can only be resolved by a careful consideration of the facts as found by the Judge.

[26]     Mr Nicholls submitted that it was not necessary for Sergeant Dunckley to enquire as to the purpose of the calls on the facts of this case.  He submitted that there was no room for any argument that Mr Paniora’s rights had been breached.

Discussion

[27]     Sergeant Dunckley advised Mr Paniora on three separate occasions of his right to consult a lawyer.  He was also given practical advice as to how that right could be facilitated by the provision of a telephone and a list of lawyers who could be consulted free of charge.  Mr Paniora did not advise Sergeant Dunckley that he wished to avail himself of that right.  On the contrary, he advised Sergeant Dunckley that he did not wish to do so.

[28]     Mr Paniora completed his telephone call to the pub. This was not prevented by the Sergeant.  Sergeant Dunckley asked Mr Paniora if he had called the pub to advise the patrons of the checkpoint.   Mr Paniora did not deny this.   He gave no indication that he was trying to make contact with his lawyer.

[29]     Mr Paniora was stopped from calling his girlfriend but again he gave no indication to Sergeant Dunckley that the purpose of this call was to facilitate contact with his lawyer.  Mr Paniora did not say in evidence that this is why he wanted to contact  his  girlfriend.    He  said  nothing  at  all  about  this  attempted  call  in  his evidence.

[30]     There was no challenge to the Judge’s factual findings  which were well supported and fully reasoned.  Clearly, the Judge was justified in preferring Sergeant Dunckley’s evidence as to what had occurred over Mr Paniora’s.

[31]     In my view the Judge was correct to find that Mr Paniora’s rights under the NZBORA had not been breached on the facts as found.  Having been informed of his right to consult a lawyer on three separate occasions, Mr Paniora advised that he did not wish to do so.  Sergeant Dunckley did enquire as to the purpose of the call to the pub and was given the impression that this was to alert the patrons to the checkpoint. Mr Paniora did not indicate at any stage that he was trying to contact a lawyer.  I can see no basis to interfere with the Judge’s decision.

Result

[32]     The appeal against conviction is dismissed.

M A Gilbert J