Police v Buck

[2014] NZHC 2102

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-000008

CRI-2014-485-000067 [2014] NZHC 2102

BETWEEN

NEW ZEALAND POLICE

Applicant

AND

DARIN JOHN BUCK Respondent

Hearing:	2 September 2014
Counsel:	I R Murray for Applicant K I Jefferies for Respondent
Judgment:	2 September 2014

JUDGMENT OF COLLINS J

Introduction

[1]      This judgment explains why I am allowing the appeal by the police and remitting this case back to the District Court so that a case can be stated for the High Court to consider and determine.

[2]      The police application is not opposed by Mr Buck.

[3]      The proposed question is whether Judge Butler ought to have concluded that Mr Buck had made a valid waiver of his right to counsel as guaranteed under s 23 of the New Zealand Bill of Rights Act 1990 (NZBORA).

Background

[4]      On 7 January 2013 Mr Buck was charged with driving with an excess blood alcohol level of 245 milligrams of alcohol per 100 millilitres of blood.

NEW ZEALAND POLICE v BUCK [2014] NZHC 2102 [2 September 2014]

[5]      On 10 February 2014, Judge Butler, sitting in the Hutt Valley District Court, dismissed a charge of driving with excess blood alcohol following a finding that Mr Buck had not made an informed and voluntary waiver which led to the exclusion of the blood test results. The police sought to appeal by way of case stated.

Judge Butler’s decision

[6]      The sole prosecution witness was Senior Constable Davies, who stopped Mr Buck’s car and conducted a roadside breath screening test.  Afterward, Senior Constable Davies required Mr Buck to accompany him to the Upper Hutt Police Station for an evidential breath test, blood test or both.  Mr Buck agreed and Senior Constable Davies advised him of his rights under the NZBORA.

[7]      At the police station Senior Constable Davies again advised Mr Buck of his NZBORA rights.  Mr Buck told Senior Constable Davies that he wanted to consult a lawyer.  Attempts were then made to contact a lawyer from a list provided by the police.  Mr Buck said he could not read the list without his reading glasses.  He was unwilling for the list to be read to him by Senior Constable Davies, but the male passenger who had been in Mr Buck’s car with him located his glasses for him. When Mr Buck had his glasses, he said that he wished to speak to a lawyer on the list.  He was given the opportunity to telephone the lawyer and had a conversation.

[8]      After this, Mr Buck attempted to provide breath samples.  Senior Constable Davies thought Mr Buck’s attempts were inept and advised him of this.   He read Mr Buck his NZBORA rights again.  Mr Buck refused to sign an acknowledgment form and indicated that at that point he wanted to speak to a lawyer.   He tried to contact three lawyers but was unable to reach anyone.

[9]      At this point Senior Constable Davies said that Mr Buck advised him that he wanted to get on with the procedure.  Mr Buck disputed this, saying he wanted to exercise his right to speak to a lawyer and that Senior Constable Davies threatened him  with  arrest  if  he  maintained  his  attempt  to  contact  a  lawyer  and  avoid undergoing the breath testing procedures.

[10]     Judge Butler accepted Senior Constable Davies’ evidence.   He noted that Mr Buck was heavily intoxicated at the time he was at the police station.   His reading was three times the legal limit for driving.

[11]     Judge Butler then went on to rely upon Police v Kohler, where the Court of

Appeal held:1

... a valid waiver requires a conscious choice that is both informed and voluntary, and that a valid waiver cannot be implied from silence ... with its insistence   that   any   waiver   be   made   “voluntarily,   knowingly,   and intelligently”, remains a sound guide in this matter.

[12]     Judge Butler held that in his view, a man with three times the blood alcohol level for driving was not capable of an intelligent assessment as to what a waiver was or that what he was waiving in the circumstances.  He dismissed the charge.

Procedural difficulties

[13]     On 21 February 2014, Mr Dawson, on behalf of police prosecution, filed a notice of appeal by way of case stated.

[14]     On 10 March 2014 Mr Dawson was contacted by the Wellington High Court Registry.   The Registrar advised that the court file had been transferred from the District Court to the Wellington High Court without a case stated.  The file was then returned to the District Court.

[15]     On 10 April 2014 the Hutt Valley District Court Registry advised the police that the appeal was a general appeal to be filed under s 115 of the Summary Proceedings Act 1957 (the Act) and not a case stated appeal.

[16]     On 28 May 2014 Judge Butler refused to state the case for the following reasons:

This was not a case stated, but a general appeal.   It was not decided on a question of law, but on the facts.

1      Police v Kohler [1993] 3 NZLR 129 (CA) at 133.

[17]     The Crown now brings an application pursuant to s 109(3) of the Act seeking an order from the High Court requiring the District Court to state a case.

Legal principles governing this appeal

[18]     This application has been filed under the Act because the prosecution was commenced by information prior to 1 July 2013 when the Criminal Procedure Act

2011 came into force. The governing provisions are ss 107, 108, 109, 111 and 123 of the Act.

[19]     Under s 109(1) of the Act the District Court can refuse to state a case where the appeal is merely frivolous, but not in any other circumstances.   The term “frivolous” has been considered in various cases.2   Where the District Court refuses to state a case the High Court can intervene and order that a case be stated.

[20]     Section 108 of the Act  provides that no determination shall be appealed against by reason only of the improper admission or rejection of evidence.   The Courts have held that this provision should be interpreted with the words “unless the admission or rejection was determinative of guilt”.3    The Supreme Court has confirmed that the erroneous admission or rejection of evidence could be an error of law.4

Analysis

[21]     It is obvious that there has been miscommunication between counsel and the District Court Registry regarding the proper procedure for an appeal by way of case stated.  In light of these circumstances, I consider that the appellant largely complied

with the procedure as set out in Hyde v Direen.5

2      Norman v Mathews [1916] WN 78, (1916) 85 LJKB 857 and R v Taylor [1979] Crim LR 649.

3      Davies v Mingins HC Rotorua AP48/91, 30 October 1991; citing Police v Gray (1991) 6 CRNZ

701 (HC).

4      R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734.

5      Hyde v Direen (1988) 3 CRNZ 370 (HC).

[22]     R v Mallinson was a successful appeal on questions of law by way of case stated.6   The questions before the Court were questions of determinations of fact by the Judge.  Richardson J considered:7

To be “informed” of the right to a lawyer is to be made aware of it.   The purpose is to provide a fair opportunity for the person arrested to consider and decide whether or not to exercise the right.   The obligation on the arrester or other officer concerned is to communicate clearly to the person arrested that he or she has that right.  No particular formula is required so long as the content of the right is brought home to the person arrested.  … In the end whether or not the obligation was satisfied must turn on what was said and what is to be implied from what was said in the particular context and circumstances.   Even though no particular words are used the context may make it clear that the right to a lawyer is immediately exercisable …

[23]     In my assessment, there is a question of law to be determined on whether on the facts as found, Judge Butler ought to have concluded that the respondent Mr Buck had made a valid waiver of his right to counsel.  However, I will not expand on this issue as it is ultimately not for my consideration on the present appeal.

[24]     Because there is a question of law to be determined in this case, Judge Butler erred when he refused to state a case for the High Court to consider.  It is most likely he based this conclusion on the erroneous opinion of the District Court Registrar that the appeal was a general appeal instead of an appeal by way of case stated, as he made no reference to the frivolity of the appeal.  In the absence of finding that the appeal was merely frivolous, there should not have been a refusal to state the case.

Conclusion

[25]     Accordingly, I make an order under s 109(3) requiring Judge Butler to state a case for the High Court to hear and determine.

[26]     The  police  shall  immediately  file  a  draft  case  stated  in  the  Lower  Hutt

District Court for Judge Butler’s consideration.

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

7      At 530-531.

D B Collins J

Solicitors:

Crown Solicitor, Wellington for Applicant

Jefferies & Raizis, Wellington for Respondent