Police v Buck

[2014] NZHC 3349

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-000008 [2014] NZHC 3349

BETWEEN

NEW ZEALAND POLICE

Appellant

AND

DARIN JOHN BUCK Respondent

Hearing:	2 December 2014
Appearances:	I R Murray and A R van Echten for appellant K Jefferies for respondent
Judgment:	19 December 2014

JUDGMENT OF CLIFFORD J

Introduction

[1]      This is an appeal by way of case stated pursuant to s 107 of the Summary Proceedings Act 1957 against a decision of Judge Butler dismissing a charge of driving with excess blood alcohol.

Facts

[2]      On 7 January 2013, the respondent, Darin Buck, was stopped whilst driving, administered a roadside breath screening test and subsequently required to undergo a blood test.   That test showed that Mr Buck’s blood contained 245 milligrams of alcohol per 100 millilitres of blood.  Mr Buck was subsequently charged with driving with excess blood alcohol.

[3]      On 10 February 2014 Judge Butler dismissed the charge of driving with excess blood alcohol.1   He did so on the basis that Mr Buck, due to his intoxication,

1      Police v Buck DC Hutt Valley CRI-2013-078-000102, 10 February 2014.

POLICE v BUCK [2014] NZHC 3349 [19 December 2014]

had not made an informed voluntary waiver of his right to speak to a lawyer prior to the carrying out of the blood test.

[4]      The police subsequently obtained  the consent  of the Solicitor-General  to appeal that decision.   Procedural difficulties were encountered.   Those difficulties were resolved by the judgment of Collins J in this Court on 2 September 2014 requiring Judge Butler to state a case for the High Court to hear and determine.2

[5]      Judge Butler subsequently stated the following case:

Question A:

On the facts that I found, was the blood test evidence obtained in breach of section 23(1)(b) of the NZ Bill of Rights Act?  In particular, were the facts as found capable of supporting my conclusion that Mr Buck had not validly waived his rights under section 23(1)(b) of that Act.

Question B

If the first question is answered in the affirmative, was I wrong to dismiss the information without considering section 30 of the Evidence Act 2006?

[6]      This appeal proceeds on the basis that, at the hearing before the Judge and as recorded in the case stated, it was proved that:

1.    On 7 January 2013 at around 9.00 pm the defendant Darin John Buck was driving a Subaru motor vehicle registration number ECG412 on State Highway 2.

2.    The vehicle driven by the defendant was stopped by Senior Constable

Davies near the Brown Owl intersection of State Highway 2.

3.    The defendant showed signs of having drunk alcohol and admitted to having had four or five bottles of beer.

4.    At 9.04 pm Senior Constable Davies administered a breath screening test in accordance with the requirements of the Land Transport Act

1998.

5.    The breath screening test gave a failed result.

6.    At  9.06  pm  Senior  Constable  Davies  required  the  defendant  to accompany  him  to  the  Upper  Hutt  Police  Station  for  an  evidential breath test, blood test or both.

7.    The defendant agreed to accompany the officer.

2      Police v Buck [2014] NZHC 2102.

8.    Senior  Constable Davies advised the defendant of his rights under the NZ Bill of Rights Act including the right to speak to a lawyer without delay and in private and for free.

9.    Senior Constable Davies and the defendant went to the Upper Hutt

Police Station.

10.  Senior Constable Davies repeated the rights under the NZ Bill of Rights

Act at the Police Station.

11.  At about 9.30 pm the defendant said he wanted to consult a lawyer.

12.  Attempts were made to contact a lawyer from a list provided by the

Police that is kept at the Police Station for that purpose.

13.  The defendant initially said he could not read the list without his glasses but a passenger in the vehicle brought the defendant his glasses.

14.  The defendant chose to speak to Mr Surridge.

15.  At 9.50 pm the defendant was provided with an opportunity to speak to

Mr Surridge and the conversation lasted for a few minutes.

16.  At 9.56 an evidential breath test was carried out in accordance with the requirements of the Land Transport Act 1998.

17.  No  result  was  obtained  from the  evidential  breath  test  because  the defendant did not provide sufficient breath sample for the test to be completed.

18.  At 10.11 pm the defendant was advised that the evidential breath test was incomplete.

19.  The defendant’s rights were again read to him.

20.  The defendant indicated that he wanted to speak to a lawyer.

21.  The  defendant  attempted  to  contact  three  lawyers  but  none  were available.

22.  The defendant then advised Senior Constable Davies that he wanted to get on with the procedures.

23.  At 10.32 the defendant was required to undergo a blood test and advised of the consequences of refusal.

24. A nurse arrived soon after and took blood from the defendant in accordance with the requirements of the Land Transport Act 1998.

25.  The blood sample was sent to the ESR for analysis and the analysis established that the blood contained 245 milligrams of alcohol per 100 millilitres of the defendant’s blood.

26.  The defendant was charged with driving with excess blood alcohol by way of summons that was sent to him on 25 January 2013.

[7]      In his oral judgment at the time, Judge Butler, having noted that Mr Jefferies had referred him to the decision of the Court of Appeal in Police v Kohler, and of the United States Supreme Court in Miranda v Arizona,3 concluded:4

[11]      So  I accept  that  the  defendant  said  to  Senior  Constable  Davies, “Let’s get on with it”, because I prefer the evidence of the senior constable to the defendant himself.  But the difficulty I have is his blood alcohol level at the time that he made that statement.  The Court of Appeal has said that a valid waiver has to be made, “voluntarily, knowingly, and intelligently” and in my view a man with three times the blood alcohol level for legal driving is not capable of an intelligent assessment as to what a waiver is or that what he is waiving in the circumstances and, in my view, that renders a fatal blow to the prosecution case.

[8]      On that basis, the Judge dismissed the information laid against Mr Buck.

Case on appeal

[9]      For the police, Mr Murray argued that, given the Judge’s finding of fact that Mr Buck had advised Senior Constable Davies that he wanted to get on with the procedure,   the  Judge   should   have  found   that   –   notwithstanding   Mr Buck’s intoxication – the police were entitled to act on that statement, proceed to administer the blood testing and to rely on the evidential results of that testing in prosecuting Mr Buck.

[10]     In excluding the evidence of the results of Mr Buck’s blood test, the Judge

had made two errors of law.

[11]     First, and in terms of R v Mallinson, the Judge should have found that the police were entitled to take Mr Buck’s comment “let’s get on with it” at face value.5

This was particularly so as Mr Buck had earlier contacted a lawyer and spoken with him, and so could be taken to have understood his rights and have previously exercised them.   It would impose an unfair and unreasonable obligation on the police, when undertaking alcohol testing procedures that inevitably involve intoxicated people, if such statements cannot be taken at face value regarding the exercise of rights.   Moreover, Canadian courts have held that, for obvious policy

reasons, the inability to comprehend due to intoxication should not vitiate breath or

3      Police v Kohler [1993] 3 NZLR 129 (CA); Miranda v Arizona 384 US 436 (1966) at 444.

4      Police v Buck, above n 1.

5      R v Mallinson [1993] 1 NZLR 528 (CA).

blood tests.   Mr Murray’s submission was that the same approach should apply equally here.  To do so would be consistent with the approach taken by the Supreme Court  in  a  case  of  this  kind,  Aylwin  v  Police,  where  the  Court  commented  as follows:6

[17]      Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable.  The great majority of drivers comply with their obligations in this respect.  A small minority do not.   Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences.   The Courts must give full effect to that clear Parliamentary indication.

[12]     The second error the Judge had made is that, having determined that this evidence had been improperly obtained, he failed to undertake the balancing exercise called for by s 30 of the Evidence Act 2006 to determine whether, notwithstanding that impropriety, the evidence should be admitted.

[13]     Mr Murray  submitted  that,  when  that  test  was  undertaken,  the  correct outcome would be a decision to admit the evidence.  Any impropriety in continuing with the testing process based on Mr Buck’s statement “let’s get on with it” was one made in good faith and was a minor and technical breach.  To exclude that evidence would be disproportionate to that breach.

[14]     In his written submissions, Mr Murray argued that if this appeal was to be upheld, it would be appropriate for me to impose a conviction.  During the course of oral argument, Mr Murray suggested that the appropriate course would appear to be to uphold the appeal, and remit the matter to the District Court for rehearing.

[15]     For Mr Buck, Mr Jefferies submitted that the Judge was correct to find that Mr Buck’s waiver could not be regarded as being one which was “informed and voluntary” or, in the words from Miranda v Arizona adopted by the Court of Appeal in Kohler, one which was made “voluntarily, knowingly, and intelligently”.7

[16]     In making that submission Mr Jefferies emphasised that part of the Court of

Appeal’s decision in Mallinson which noted that the presence of factors such as

6      Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.

7      Police v Kohler, above n 3, at 133.

intoxication could raise questions as to whether the police had adequately communicated to an arrested person their right to consult a lawyer.8    In such circumstances,   the   effectiveness   of   the   communication   had   to   be   assessed subjectively.  Judge Butler had as a matter of fact found that Mr Buck, who had a blood alcohol level three times the legal limit for driving, was not capable of such an assessment and accordingly had never waived that right.   That finding should be

upheld.

[17]     Mr Jefferies  accepted  however  that  the  Judge,  having  decided  that  the evidence  had  been  unfairly  obtained,  was  required  to  undertake  the  balancing exercise  called  for  by  s 30  of  the  Evidence  Act.     Undertaking  that  exercise Mr Jefferies submitted, would have resulted in exclusion of the evidence.  However, and given the terms of the case stated, Mr Jefferies said that if I was with him on the first point, the appropriate step would be to remit the matter to the District Court for a consideration of the s 30 admissibility test.

Analysis

[18]     The proposition underpinning Mr Jefferies’ submissions for Mr Buck is, in effect, that the more intoxicated a drinking driver is, the less likely it will be that the police will be able to lawfully carry out blood testing procedures so as to produce admissible evidence.  After all, if as the Judge concluded a person who has three times the blood alcohol level for legal driving is not capable of making an intelligent assessment so as to give a valid waiver of his right to speak to a lawyer, it could be said that such a person would not be able to understand advice a lawyer gave him, so as to render the right to legal advice empty as well.

[19]     That proposition is inherently unattractive, and is an affront to commonsense. On that basis, it seems an unlikely proposition to have found favour with the District Court Judge.

[20]     The Canadian courts have confronted the same unattractive proposition, and have responded in a robust way.

8      R v Mallinson, above n 5, at 531.

[21]     In R v Mohl Sirois J held that where, due to intoxication, an accused had not understood he had a right to retain and instruct counsel, evidence of his intoxication was nevertheless admissible on the logic that:9

Where an accused has by his own actions placed himself in a position of being unable to understand his rights under the Charter, it is not appropriate or just to provide a remedy to the accused.   To avoid a conviction by an order for exclusion of evidence in such circumstances would bring the administration of justice into disrepute.

[22]     The Saskatchewan Court of Appeal overturned that decision,10  but it was reinstated in a unanimous decision of the Canadian Supreme Court, holding that:11

Assuming, without deciding, that there has been a violation of the accused’s rights, we agree with Sirois J that the admission of evidence in this case would not bring the administration of justice into disrepute.

[23]     In Litten v Police, an appeal against a conviction for refusing to supply blood where the ground of appeal was the police’s failure to repeat the s 23 information prior to the request for the blood test, Elias J, as she then was, acknowledged that a person’s state of intoxication may have a bearing upon whether that person understood or heard the information required by s 23 to be conveyed.12    The Judge thought that consideration was relevant to whether or not the advice needed to be repeated.    In  the  course of  her  decision,  she  made the  following  more  general comments:13

I do not suggest that the understanding of an inebriated, shocked or agitated driver should in all cases be determinative of whether there has been compliance with s 23.  The scheme of the legislation which requires testing without delay, the public policy in deterring driving by those affected by alcohol, and the realities of the police task in implementing that policy all suggest that what is reasonable compliance with s 23 of the New Zealand Bill of Rights Act 1990 in the context of the blood alcohol legislation may not simply turn on the comprehension of the driver.   A driver who is too intoxicated to understand the opportunity being offered may not be entitled to have the request for a blood sample deferred until he is sober enough to appreciate that he can, if he so wishes, consult a solicitor before responding to the request.   If a driver is so badly affected by alcohol, or is “fighting drunk” (as was the case in Roger v Police unreported, Temm J, 5 November

1992,  HC Auckland AP192.92),  it  may  be  that  inability  to  comprehend should not delay the conduct of the tests: R v Mohi (1989) 69 CR (3d) 399.

9      R v Mohl SKQB, 9 January 1985.

10     R v Mohl [1987] 4 WWR 31 (SKCA).

11     R v Mohl [1989] 1 SCR 1389.

12     Litten v Police (1996) 13 CRNZ 604 (HC) at 613-614.

13     At 614.

That point does not fall to be decided here, because of the view I take as to further opportunity to provide the advice.

[24]     In my view, the general question does not fall to be decided in this appeal either, essentially because of the facts as found by the Judge and the impact of those facts on the conclusion he drew.

[25]     The Judge reached his conclusion as to the effect of Mr Buck’s intoxication on his ability to understand his rights and waive them, in effect without evidence. The Judge simply stated that “in my view” a man with three times the blood alcohol level for driving is not capable of an intelligent assessment.  With respect, the Judge was not in a position to reach that conclusion without appropriate expert evidence.

[26]     Moreover, the facts the Judge found indicate that, contrary to that conclusion, Mr Buck did in fact understand the s 23 advice he had received.  After all, he had already chosen a lawyer from the list provided to him by the police, and had spoken to his lawyer of choice.

[27]     In those circumstances, and as the police argue, there is no reason in my view to question that, when Mr Buck said “let’s get on with it”, that is what he meant.

[28]     It clearly had been brought home to Mr Buck what his rights were, and he had exercised those rights.  Therefore, when the police advised him of those rights again, there is in my view no rational basis to question that answer.

[29]     I  note  that  there  is  a  continuing  right  to  counsel  during  the  process  of obtaining a blood sample and a duty on the police to facilitate that right.14   However, as the Court of Appeal held in  Rae v Police, speaking in that context of a person exercising their right  to  provide a blood  sample following  a positive evidential breath test:15

The extent  of  the  facilitation  which  may be  necessary at  this  time  will depend upon the circumstances in each case, including what has already occurred by way of exercise of the right and whether the motorist indicates a wish to take legal advice again before making an election in relation to a blood test.   The police would at this stage of the process be justified in

14     Rae v Police [2003] 3 NZLR 452 (CA).

15 At [59].

simply reacting appropriately without actively telling the motorist what he or she can be assumed already to understand, such as the existence of the list of lawyers where that has previously been pointed out.

[30]     Here, there was no breach of facilitation, and the police emphasised the continuing nature of the right to counsel.

[31]     Therefore, in my view the Judge was wrong to dismiss the charge against Mr Buck.  On the basis of that reasoning it is not necessary, given the view taken by the police and Mr Jefferies at the hearing of this appeal, to consider matters further. Clearly however, and as Mr Jefferies accepted, once the Judge found there had been a breach of Mr Buck’s rights, the Judge was in error not to undertake the s 30 balancing exercise.

[32]     I therefore remit the matter to the District Court.  I would normally enter a conviction, and leave it for the District Court to decide upon sentence.   However, given that both Mr Murray and Mr Jefferies agreed that I should simply allow the appeal, and remit the matter to the District Court for further consideration, that is what I will do.

[33]     Accordingly, the police’s appeal is allowed.

[34]     I answer the case stated as follows: Question A:  No and No,

and remit the matter to the District Court for further consideration.

“Clifford J”

Solicitors:

Crown Solicitor, Wellington for appellant

Jefferies Law, Wellington for respondent