R v Police HC Whangarei CRI-2008-488-23

[2008] NZHC 2458

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2008-488-23

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 July 2008

Appearances: Appellant in person

Mr M B Smith for Crown

Judgment:      31 July 2008

JUDGMENT OF LANG J

[on appeals against conviction and sentence]

This judgment was delivered by me on 31 July 2008 at 3.30 pm, pursuant to Rule

540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Crown Solicitor, Whangarei
Copy to:

Ms J R 

R V NZ POLICE HC WHA CRI-2008-488-23  31 July 2008

[1]      On 19 March 2008 His Honour Chief Judge Johnson convicted Ms R   on three charges following a defended hearing in the District Court at Kaitaia.   They were charges of refusing to accompany a police officer, refusing to provide a blood specimen and common assault.   On the same date he sentenced Ms R   to 150 hours of community work and disqualified her from holding her obtaining a driver’s licence for one year and one day from midnight on 19 March.

[2]      Ms R   now appeals to this Court against her convictions and also against the sentences that the Judge imposed.

The prosecution case

[3]      The charges followed an incident that occurred on the evening of 1 June

2007.   At about 8.20 pm on that date Ms R   was driving her motor vehicle in Kaitaia when she was stopped by Constable Rachel Blackmore.     Constable Blackmore had  been  on  mobile  patrol  in  Kaitaia  with  Constable  Ryan  Cooper. Constable  Blackmore  said  that  she  told  Ms  R    that  she  was  conducting random breath testing and she asked her if she had been drinking alcohol.     Ms R   told her that she had had two glasses of wine.   Constable Blackmore also detected the presence of alcohol on Ms R  ’s breath on a Dragar device that she held up to Ms R  ’s mouth.

[4]      Constable  Blackmore  then  required  Ms  R    to  undergo  a  breath- screening test.    She applied a plastic tube to the screening device and asked Ms R   to blow into the tube.    At that point Ms R   said that she “didn’t have time for this”, and that she needed to get back to her children who were at home alone.   Constable Blackmore said that Ms R   repeatedly refused to undergo the breath-screening test.     Constable Blackmore then  required Ms R   to accompany her back to the police station for the purpose of an evidential breath test, a blood test or both.   She also warned Ms R   that she might be arrested if she refused to comply with this request.   Ms R   said, however, that she wanted to go home and she went to insert the key in the ignition.   When Constable Blackmore told her to stop and to hand the keys to her, she refused to do so.

[5]      Constable Blackmore says that she then arrested Ms R   for refusing to accompany her.   She cautioned her at that time and advised her of her rights under the New Zealand Bill of Rights Act 1990.   Ms R   again said something to the effect that her children were at home alone and that she wanted to go home.    Ms R   was still sitting in the vehicle at that time.

[6]      Constable Blackmore then asked Ms R   to hand over the keys to the vehicle and to get out of the vehicle.   She says that Ms R   took the keys out of the ignition and got out of the vehicle.

[7]      Constable Blackmore said that Ms R   had parked her vehicle in such a position that it was obstructing a residential driveway.     For that reason she endeavoured to obtain Ms R  ’s keys from her so that she could move the vehicle away from the driveway.    Ms R   refused to hand over the keys and Constable Blackmore then endeavoured to take them off her.    She said that at this stage Ms R   had the hand in which she was holding the keys firmly behind her back.   This led to the Constable and Ms R   “having a bit of a struggle”. She said that during this struggle Ms R   punched her to the face in the area of her lips.    Constable Blackmore said that the punch was of medium force, and Ms R   administered it using her right fist.    Constable Blackmore responded by immediately punching Ms R   in the face.

[8]     Constable Blackmore said that when the exchange of punches occurred Constable  Cooper  immediately  got  out  of  the  patrol  car  and  handcuffed  Ms R  .    They then walked her back to the police car, at which point Constable Blackmore noticed that Ms R   was bleeding from her nose.    She was then able to remove the car keys from Ms R   and to move her vehicle away from the entrance to the driveway.

[9]      Constable Blackmore said that when they went back to the police car she again advised Ms R   of her rights under the New Zealand Bill of Rights Act. She said that at that point Ms R   wanted to speak to her MP, Hone Harawira.

[10]    Constable Blackmore said that she and Constable Cooper then took Ms R   back to the Kaitaia police station.   A short time thereafter she attempted to continue with the breath testing procedure.   She advised Ms R   again of her rights and asked her to sign a form setting out those rights.   Ms R   refused to sign the form and said again that she wanted to speak to Mr Harawira.    Constable Blackmore then required her to undergo an evidential breath test using an approved device.   Ms R   put the device in her lips, but did not blow sufficient air into it to enable the device to register a result.

[11]     Once  the  evidential  breath-testing  device  returned  an  incomplete  test Constable Blackmore said that she advised Ms R   of her rights again.    Ms R   again said that she wanted to speak to Mr Harawira.   Ms R   had the cellphone number of Mr Harawira’s wife, but attempts to contact Mr Harawira on this number were not successful.

[12]     Constable  Blackmore  then  required  Ms  R    to  provide  a  blood specimen.   She refused to do so and was arrested for refusing the request to provide a specimen of her blood.

[13]     The evidence of Constable Cooper was broadly to the same effect.     He confirmed that he was in the patrol vehicle with Constable Blackmore and that they stopped Ms R  ’s vehicle using their red and blue flashing lights.   Constable Cooper  said  that  he  remained  in  the  patrol  vehicle  and  observed  Constable Blackmore dealing with Ms R  .   He could hear Ms R   using offensive language towards Constable Blackmore and refusing to undergo the breath test.   He saw Ms R   refuse to blow into the breath testing device  and  then  heard Constable Blackmore require Ms R   to accompany her to the Kaitaia police station.   He also heard Ms R   refuse to accompany Constable Blackmore.

[14]     He then saw Constable Blackmore trying to get the keys off Ms R  . He saw a struggle and then saw Ms R   strike Constable Blackmore in the face.     He also saw Constable Blackmore  retaliate by striking Ms  R    in defence.   He then got out of the patrol vehicle, placed Ms R   up against her own  vehicle  and  handcuffed  her.      He  said  that  he  accompanied  Constable

Blackmore  and  Ms  R    back  to  the  Kaitaia  police  station.      He  did  not, however, participate in the subsequent attempts to have Ms R   comply with the breath and blood testing procedures.

Ms R  ’s defence

[15]     Ms R   gave evidence in her own defence.     She said that on the evening in question she had been to an art exhibition in Awanui.   There she had had three glasses of wine to drink before driving back to Kaitaia.   Once she had dropped her children off at home she went to a friend’s house.   Whilst en route she noticed two police patrol cars in front of her and she followed them for some distance.   She then observed a group of about a dozen children aged between the ages of 10 and 12 gathered on a street corner.   She stopped to tell them to get off the road and go home because they were “just lingering and hanging around”.   She then noticed one of the patrol cars nearby, and carried on in the belief that the police would be able to sort the children out.    When she came back from her friend’s house a short time later, she noticed that the two patrol cars were still in the vicinity of the street where she had seen them earlier.   Soon thereafter she saw flashing lights behind her and pulled off to the side of the road.

[16]     Ms R   said that she told Constable Blackmore that she had had three, and not two, glasses of wine.   She also accepted that she refused to provide an initial test using the breath test device.   She further accepted that, when she refused to take the test, the Constable required her to accompany her to the police station to undergo the tests.   She maintained, however, that she agreed to go to the police station and got out of her vehicle in order to do so.

[17]     Ms R   said that after locking her vehicle she was ready to accompany Constable Blackmore to the police station.     At that point Constable Blackmore asked her for her keys and she refused to give them to her.   She said that she felt that the keys were her property unless she was under arrest, and that she was not under arrest at that time.    She accepts that she continued to refuse to give the keys to Constable Blackmore and that Constable Blackmore then went to grab her hand with the keys in it.   She says that Constable Blackmore forcibly squeezed her hand, and

that the Constable ignored repeated requests by Ms R   to let her hand go.   Ms

R   then grabbed the Constable’s left hand with her right hand.

[18]     A struggle then ensued during which Ms R   again asked the Constable to let her hand go.     She said that at that point she closed her fist to strike the Constable but that Constable Cooper, who was at that stage standing on her right hand side, came up and hit her in the mouth.    Constable Cooper then grabbed her and forced her on to the ground where he handcuffed her.   He then threw her across to her vehicle with sufficient force to slam her face against the window.     This caused significant injury to her nose and lips.

[19]     Ms R   accepted that by this stage she was irate and out of control. She also accepted that she abused the police officers in the vehicle going back to the police station and also at the police station.    She was adamant, however, that she never touched Constable Blackmore and that the only punch that was thrown during the entire incident was the punch that Constable Cooper administered to her.    She said that this caused significant bleeding to her nose and lips.

[20]     Ms  R    said  that  she  was  unable  to  complete  the  breath  testing procedure at the police station because her lips were so sore that she could not blow into the device properly.   She said that she refused to give a specimen of her blood for cultural reasons.   She described these in the following terms:

… Now because I failed the test I was then required to take the blood test.   I refused on the grounds that there had been enough blood shed and that my tradition and my culture teaches me about the harm that would come if we are not careful of how our blood is disposed of.   This is harming to me, it is harming to what we call our Mäori or our life force.     Your blood Your Honour is mind and I own it.   This is a culturally and sensitive issue and my genes, my DNA belongs to me.

I have a few questions that I wanted to ask in regards to this blood thing because it is an issue for our people.    Where does the blood go and what happens to it, and how come it doesn’t come back or it’s not returned with the results?   That is something that is a concern to our people because it is so sacred, such a sacred issue.

The essential issues

[21]     The essential issues that the Judge was required to determine were as follows: (i)     Did Ms R   refuse to accompany Constable Blackmore to the

police station?

(ii)    Did Ms R   strike Constable Blackmore?

(iii)Was Ms R   entitled to refuse to provide a specimen of her blood on the basis of her cultural beliefs?

The Judge’s decision

[22]     The evidence given by Ms R   and that given by the police differed in critical respects in relation to the assault charge and that of refusing to accompany the police officer.     Ms R   denied that she had refused to accompany the officer and said that she was in the process of accompanying Constable Blackmore when the Constable attempted to get the keys out of her hand.   She also denied that she ever struck Constable Blackmore.

[23]     In order to determine those issues the Judge was required to make findings of credibility.    He had to decide whether he accepted the evidence of the two police officers or whether it was reasonably possible that Ms R  ’s evidence was correct.

[24]     The Judge expressed his conclusion in the following way:

[8]       I am a Judge, I am not God.   I do not have bird’s eye view.   What I am confronted with are two policemen who would have no purpose other than to enforce the law.   One can understand that when refusals start taking place and police then turn to force to require people to comply, things can happen which people least expect.  There is heat, there is anger and there are reactions which ordinary people ordinarily, including policemen, would not get involved in.    I have heard the protestations of the defendant but I can detect no evidence which would indicate to me that the police officers may have been telling lies.   There is the strong evidence of the defendant who as I said is very fluent but she would acknowledge that she got pretty angry that

day and I think that it is consistent with events that she probably got angry earlier than she is prepared to acknowledge at this time.

[9]       This is my conclusion.     I conclude that there was an assault on Rachel Blackmore with that one punch.    That the defendant did refuse to accompany “without delay” being the words I emphasise and that there was a refusal to permit blood.   …

[25]     In determining the charge of refusing to provide a blood specimen the Judge was required to decide whether Ms R  ’s cultural beliefs provided sufficient justification for her refusal.   His decision in relation to that matter is as follows:

[4]       One of the matters raised before me was whether a cultural belief for refusing  to  comply  with  a  request  to  provide  blood  could  prevail  as  a defence.    I am not sure that it was put quite as highly as that.     It was described as the explanation for a refusal.   I am required in my judgments to apply the law and I do not have any personal ability to disregard the law, I must follow precedents from higher Courts and I am to rive proper regard to Mana turi.    There is a decision which I am bound by, Rapana v Police decided in 1994 in the High Court in Hamilton by Justice Hammond.   Its reference is AP63/94, which held that a refusal to permit a specimen of blood to be taken is not justified because it [is] based on a cultural belief that blood is tapu or sacred, even though that belief is genuinely held.   So that is the law and whether that  is  personally satisfying to  anybody is  another question.

[5]       Indeed  in  respect  of  the  refusal  to  supply  the  blood  sample  the defendant has acknowledged that this is what she did and she explained it had to do with her beliefs around the fact that much of her blood had been shed  in  any  event  in  earlier  incidents.      So  supposing  that  the  earlier processes were valid, the refusal to supply the blood specimen is not a difficult charge to decide.

The approach to be taken on appeal

[26]     When the hearing commenced before me, Ms R   told me that she believed  that  the  appeal  was  to  be  by  way  of  complete  rehearing.      She  had understood that the witnesses who gave evidence in the District Court would be present and that they would give evidence again before me.    I would then make a fresh determination as to whether the prosecution had proved the charges beyond reasonable doubt.

[27]     As I explained to Ms R   during the hearing, an appellate court in this situation conducts an appeal by way of rehearing.    That does not mean, however, that it rehears the evidence that was given in the Court below.    Instead, the court

determines the correctness of the decision in the Court below based on the evidence that was given in that Court.    I explained to her that when issues of credibility are involved the Judge at first instance will often have an advantage because he or she has seen and heard the witnesses and is generally in the best position to decide who is telling the truth.

Decision

Refusal to accompany and assault

[28]     As I have already indicted, determination of these charges required the Judge to make an assessment of the credibility of the witnesses who gave evidence before him.   I consider that the Judge was uniquely placed to assess issues of credibility in the present case.   He heard the evidence of all the witnesses.  I, on the other hand have only heard Ms R   give her version of events.   I have not seen or heard the officers give their evidence.   Without doing so I cannot say that the Judge was required to accept that it was reasonably possible that Ms R  ’s evidence was correct.   I am therefore unable to say that the Judge reached an incorrect conclusion.

[29]   Moreover, the incident that gave rise to the charges clearly involved a developing situation in which Ms R   became more and more angry as time went on.   She also accepts that she had had three glasses of wine during the evening. In those circumstances it is not difficult to see how matters escalated in the way that the police officers describe.   Ms R  ’s recall of events may also be clouded to some extent by the alcohol that she had consumed and by the speed with which events developed.   Logic therefore suggests that the version of events given by the police officers is more likely to be correct.   Notwithstanding Ms R  ’s spirited plea in relation to these issues, I do not consider that it is open to me to disturb the conclusions that the Judge reached.

Failure to provide blood specimen

[30]     In rejecting Ms R  ’s defence to the charge of refusing to give a blood specimen the Judge relied upon the decision of Hammond J in Rapana v Police

AP63/94 11 July 1994.   In that case the appellant had advanced a similar ground of appeal to that which Ms R   advances in the present case.     Hammond J described the argument in the following terms:

There is no dispute that Mr Rapana refused to give blood.   What this case is about is whether he was justified in refusing to give blood to the officer when requested.   His reasons are clearly set out in the letter that he sent to this Court dated the 27th June 1994, which I reproduce hereafter in full:

MY   POINTS   ON   THIS   APPEAL   ARE,   THAT   IN MAORI TANGA MY TOTO/BLOOD IS VERY TAPU/SCARED (sic), AND TO ASK FOR MY BLOOD IS TO ASK ME FOR MY LIFE.    THIS MAORI LAW HAS BEEN HERE LONG BEFORE THE TAUIWI/PAKEHA LAW, ACCORDING TO MY GENEOLOGY (sic) PAST (sic) DOWN TO ME BY MY ANCESTORS.     SO THEREFORE I FEEL I HAVE BROKEN NO LAW, AND FURTHERMORE SIR/MADAM WITH THE AIDS VIRUS AROUND THERE  IS  A  REAL  HEALTH  HAZARD,  PEOPLE HAVE COUGHT (sic) AIDS IN BLOOD TRANSFUSIONS (sic) WHEN DOCTORS HAVE BEEN PRESENT SO FOR THOSE REASONS NOBODY GETS MY TOTO/BLOOD, NOT EVEN THE CROWN.

…

[31]     In rejecting Mr Rapana’s submissions Hammond J said:

The position, Mr Rapana, put at its simplest, is this.    I am bound by Acts passed by our Parliament.   I am also bound, as a Judge, by decisions of our Court of Appeal, which is the superior Court to this Court.   It is the law of this country at the present time that, regardless of our personal beliefs which we may entertain on any given subject, we are all alike – both Pakeha and Mäori – required to bring our behaviour into conformity with a law validly passed by our Parliament.     In this particular case,  under  s 58E  of  the Transport Act, it is an offence, having been required by an enforcement officer under that statute, to fail or refuse to supply blood when we are requested to do so.   That applies to me just as much as it applies to you, and whether you agree with it or whether I agree with it, for the purposes of this appeal is irrelevant.   It is simply the law of this country.

That being so, the grounds which you have sought to advance on this appeal simply cannot void the lawful obligation.   In saying that, I entirely respect what you have said to me today, and it is appropriate that you may hold the beliefs which you obviously do hold strongly.   But I am required by the terms of my judicial oath to administer the law of this country as it presently stands, in an even-handed manner, and in my view the grounds advanced on the  appeal  cannot  possibly  amount  to  a  reason  to  set  this  particular conviction aside.   It must therefore stand and the appeal is dismissed.

[32]     I am satisfied that the same result must follow in the present case.   The laws of New Zealand, including those contained in the Land Transport Act 1998, apply with equal force to every citizen in this country regardless of their cultural beliefs. It is not open to any citizen to refuse to provide a blood specimen based on beliefs of the type that Ms R   describes.   The Judge was therefore undoubtedly correct to reject Ms R  ’s defence in relation to this charge.

Other issues

[33]     During  the  hearing  Ms  R    made  an  impassioned  plea  that  the principles contained in the Treaty of Waitangi and the New Zealand Bill of Rights Act 1990 should operate to vitiate her convictions.   I agree that the Treaty and the Act are both important documents, and that the courts must pay due regard to them. To the extent, however, that Ms R   sought to argue that she is a sovereign individual and that the laws of New Zealand do not apply to her, the argument must be rejected.    The courts have consistently applied the principle that Parliament is empowered to enact legislation and that all persons in this country are bound by the legislation that it enacts.

[34]     I accept that the requirements set out in the New Zealand Bill of Rights Act

1990 applied to the actions of the police officers in the circumstances of the present case.   I am satisfied, however, that they fulfilled their obligations under the Act by advising Ms R   of her rights on numerous occasions.    Notwithstanding the force with which Ms R   delivered her submissions I am unable to accept that the other issues that she raised have any application in the circumstances of the present case.

Result

[35]     The appeal against conviction is dismissed.

[36]     Ms  Rarahara  did  not  advance  any  submissions  in  relation  to  the  appeal against sentence.   I am satisfied, however, that the sentence that the Judge imposed was within the appropriate range for offending of this type.    The appeal against sentence is also dismissed.

Lang J