R v Tye
[2007] NZCA 330
•3 August 2007
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA86/07
[2007] NZCA 330THE QUEEN
v
MURRAY KENNETH TYE
Hearing:25 July 2007
Court:Chambers, Keane and MacKenzie JJ
Counsel:B J Hart and A J Trenwith for Appellant
K Raftery for Crown
Judgment:3 August 2007 at 11.30 am
JUDGMENT OF THE COURT
A Leave to appeal is granted, but the appeal is dismissed.
BFor the avoidance of doubt, the order is made under s 344A of the Crimes Act 1961 that the result of the appellant’s positive evidential breath test (753 micrograms of alcohol per litre of breath) is admissible at his trial.
REASONS OF THE COURT
(Given by Chambers J)
Table of Contents
Para No
Drink-driving charge [1]
District Court ruling on disputed evidence [4]
Issues on this appeal [8]
Should Alo be overruled? [17]
Does this case come within the criteria of Alo as to when suspects
must be advised of the existence of the PDLA scheme? [22]
Is it unfair for the evidence to be admitted when existing policepractice in other parts of the country involves telling
drink-drive suspects of the existence of the PDLA scheme? [30]
Result[34]
Postscript: evidence of preliminary hearings in drink-drive cases [36]
Drink-driving charge
[1] At 4.05 am on 19 November 2005, the police stopped Murray Tye, the applicant, at a roadside checkpoint. Constable Shannon Miles administered the standard initial breath-screening test, which Mr Tye failed. Constable Miles then asked Mr Tye to get out of the car he was driving and to accompany him to the “booze bus” nearby. Mr Tye did that. Subsequently Constable Miles administered an evidential breath test. It was positive: a result of 753 micrograms of alcohol per litre of breath was obtained. (The legal limit is 400 micrograms of alcohol per litre of breath.)
[2] Later, the constable asked Mr Tye whether he wished to take a blood test. Mr Tye declined.
[3] Mr Tye was then charged under s 56(1) of the Land Transport Act 1998 with driving a motor vehicle in contravention of the specified breath-alcohol limit. Because Mr Tye already has, the Crown says, at least two convictions for drink-driving, he is potentially subject, if convicted on this occasion, to the special penalty imposed under s 56(4), namely imprisonment for up to two years. Mr Tye has elected trial by jury.
District Court ruling on disputed evidence
[4] Mr Tye’s lawyers, by letter dated 16 November 2006, advised the Crown that Mr Tye challenged the admissibility of the result of the breath test. One of the grounds of challenge related to whether the police had properly and adequately given Mr Tye his rights under the New Zealand Bill of Rights Act 1990. This prompted the Crown to apply under s 344A of the Crimes Act 1961 for an order that “the result of [Mr Tye’s] positive evidential breath test (753 micrograms of alcohol per litre of breath) be admitted at [Mr Tye’s] trial”.
[5] Judge Hubble heard that application on 7 February this year. Mr Tye challenged the admissibility of the test result on a number of grounds. Judge Hubble rejected them all: DC AK CRI 2005-004-023811 23 February 2007. In particular, the judge found that Constable Miles had on three occasions given Mr Tye his rights under the Bill of Rights, including advising him of his right to consult and instruct a lawyer without delay and to carry out that right in privacy. The judge also found that on each occasion Mr Tye had not asked to speak to a lawyer.
[6] It was common ground that the constable had not gone on to say that there was a Police Detention Legal Assistance scheme (the PDLA scheme) under which Mr Tye could have access to free legal advice. Judge Hubble held that the constable’s failure to advise of that scheme did not constitute a breach of the Bill of Rights on the judge’s understanding of the then applicable appellate authorities.
[7] We do not specify the other grounds of challenge as they have not been pursued on the appeal before us.
Issues on this appeal
[8] On this appeal, Mr Trenwith, for Mr Tye, did not seek to dispute Judge Hubble’s findings of fact as set out in [4] above. He submitted, however, that, even on that factual premise, the ruling was wrong. Mr Trenwith submitted that Mr Tye’s rights under s 23(1) of the Bill of Rights had been infringed by the constable’s failure to inform Mr Tye of the existence of the PDLA scheme and his entitlement to free legal advice under it.
[9] Since Judge Hubble’s decision, this court has delivered an important judgment on whether the police have a duty to advise suspects of their right to free legal advice under the PDLA scheme: R v Alo [2007] NZCA 172, decided on 3 May. In that case, this court undertook a fundamental review of appellate authorities on the topic, both here and overseas.
[10] The court split. The majority’s conclusion is summed up in [72] of its reasons:
We conclude that there is no absolute requirement for the police to advise suspects of the existence of the PDLA scheme. But a failure to give such advice will result in a breach of s 23 if:
(a)The circumstances at the time of the interview, including the suspect’s age, experience and remarks, provide a substantial basis for believing that the suspect might not have appreciated that he or she had a practical ability to obtain legal advice.
(b)The defendant provides an evidential basis for the contention that he or she chose not to take legal advice because of cost considerations; and
(c)The Crown cannot disprove that contention on the balance of probabilities.
We emphasise that commonsense is called for. While we accept that it is likely that many, perhaps most, suspects who are interviewed may not know of the details of the PDLA scheme, a suspect who has been given his or her rights under s 23(1)(b) (particularly one who has also been given a list of lawyers and offered assistance to make contact with a lawyer) might be expected to raise the issue of cost if it is a concern.
[11] The minority judge would have required the police in all cases “to inform suspects of the free nature of the current PDLA scheme”: at [79].
[12] Clearly Judge Hubble’s decision needs to be re-evaluated in the light of Alo. In addition, the trial in this case will take place after the Evidence Act 2006 has come into force. We have accordingly evaluated the admissibility of the evidence in terms of the new statute.
[13] Mr Trenwith raised three issues on this appeal. His primary argument was that Alo should be overruled in favour of the minority opinion.
[14] If that bold submission failed, then his fallback submission was that the present case came within the criteria expressed in Alo as to when suspects must be advised of the existence of the PDLA scheme.
[15] His third submission was effectively that it was unfair for the evidence to be admitted when existing police practice in other parts of New Zealand involved telling drink-drive suspects of the existence of the PDLA scheme.
[16] We shall consider the three submissions in that order.
Should Alo be overruled?
[17] Mr Trenwith’s primary submission was that Alo should be overruled. This was, to say the least, a bold submission. It may be Mr Trenwith’s courage stemmed from the fact that a member of the present panel was the minority judge in Alo.
[18] This argument must fail. The majority’s judgment represents the law, at least with respect to police questioning undertaken prior to 1 August this year. As it happens, the minority view in Alo will, in effect, become “the law” so far as police questioning on or after 1 August is concerned. That is because of the practice note on police questioning issued by the Chief Justice under s 30(6) of the Evidence Act. Rule 2 of that practice note reads as follows:
Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:
(a)That the person has the right to refrain from making any statement and to remain silent
(b)That the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme
(c)That anything said by the person will be recorded and may be given in evidence. [Emphasis added.]
[19] It is clear, however, from the preamble to the practice note that the new rules take effect only with respect to questioning on or after 1 August. Rule 2(b) will, therefore, not assist Mr Tye.
[20] The circumstances in which this court will review earlier decisions are set out in R v Chilton [2006] 2 NZLR 341 (CA). The present case does not fall within those circumstances. Indeed, Mr Trenwith made no attempt to argue they did. In essence, he simply relied on a submission that the minority judge had “delivered a powerful dissent, setting out clear answers to the majority’s approach”. That does not meet the test. Nothing in the Evidence Act compels a revisiting of Alo with respect to questioning prior to 1 August.
[21] We decline to overrule Alo.
Does this case come within the criteria of Alo as to when suspects must be advised of the existence of the PDLA scheme?
[22] Mr Trenwith submitted, in terms of criterion (a) of Alo, that “the circumstances at the time of the interview” provided a substantial basis for believing Mr Tye might not have appreciated he had a practical ability to obtain legal advice. The circumstances Mr Trenwith relied on were:
(a)Mr Tye’s intoxication;
(b)The time of night (being a time at which people would think all lawyers were asleep); and
(c)A drink-drive situation, where the statutory procedure has a tight timeframe.
[23] Under questioning from the bench, Mr Trenwith accepted that, if he was right on this submission, then drink-drive suspects, at least if stopped at night, would always have to be told of the existence of the PDLA scheme. We do not accept that that was the law as at 19 November 2005. That would be a very significant qualification to this court’s decision in Alo. We see no reason in principle why drink-drive suspects should be in a separate category. Arguably, other suspects have much greater need for a lawyer than drink-drive suspects. The advice a lawyer can give to drink-drive suspects is, after all, extremely limited, as the choices facing a drink-drive suspect are very circumscribed.
[24] In the circumstances of this case, Constable Miles reasonably believed that Mr Tye had decided he did not want or need legal advice. At the time of the questioning Mr Tye was 25 years old. He was given his rights on three occasions. On one of those occasions, the rights were given in writing. The written form contained the following information:
YOU ARE ADVISED THAT YOU HAVE THE RIGHT TO CONSULT AND INSTRUCT A LAWYER WITHOUT DELAY AND TO CARRY OUT THAT RIGHT IN PRIVACY. YOU ALSO HAVE THE RIGHT TO REFRAIN FROM MAKING A STATEMENT.
These rights will continue throughout the breath/blood alcohol procedures. A telephone will be made available for that purpose as soon as practicable and before you undergo an evidential breath test, blood test or both.
You will have a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you.
[25] Further down that form, Mr Tye signed the following acknowledgement:
I have been advised of my right to consult and instruct a lawyer without delay and in private and my right to refrain from making a statement. I understand that my rights will continue throughout these procedures.
[26] Mr Tye knew therefore that, if he wanted a lawyer, he would be given a telephone. He was clearly told that, before he was required to undergo an evidential breath test or blood test, he was able to make contact with any lawyer of his choosing. Mr Trenwith submitted that, notwithstanding that, Mr Tye might reasonably have inferred, given the stopping had occurred “outside business hours [and] there was no [specific] mention that lawyers could be contacted at that hour”, that legal advice was not practically available. We do not accept that Mr Tye drew that inference. He did not say in his evidence he had drawn such an inference. On the contrary, he gave evidence of a conversation between himself and the constable which was to different effect, but the judge did not believe his account. (Mr Trenwith did not challenge that credibility finding.)
[27] Even if, contrary to our view, Mr Tye did draw the suggested inference, he certainly did not articulate it at the time, on the judge’s findings. Had he articulated such a concern, Constable Miles said he would have told Mr Tye about the list of lawyers they held and he would have made “every endeavour [to help him] contact one”. Given Judge Hubble’s acceptance of the constable’s evidence and his assessment of him as “a fair and careful witness” (at [7]), we too accept that that is what the constable would have done if he had sensed Mr Tye’s decision not to seek legal advice was based on an assumed inability to contact a lawyer at that time of the morning.
[28] Further, it seems that Mr Tye is not a newcomer to police procedures. The Crown contend he has three previous drink-drive convictions, one in 2002 and two in 2003.
[29] We reject the submission that this case comes within the circumstances where the right to be told of the existence of the PDLA scheme was triggered. There was no breach of s 23(1) of the Bill of Rights, as enunciated by this court in Alo. We find, in terms of s 30 of the Evidence Act, that there was no breach of any enactment in the way in which the disputed evidence was obtained. Accordingly, subject to the argument that follows, we find, on the balance of probabilities, that the evidence was properly obtained: see s 30(2) and (5)(a).
Is it unfair for the evidence to be admitted when existing police practice in other parts of the country involves telling drink-drive suspects of the existence of the PDLA scheme?
[30] Mr Trenwith’s final argument was based on a concept of fairness. Evidence obtained unfairly is improperly obtained evidence for the purpose of the Evidence Act: see s 30 (5)(c). The old Judges’ Rules, which, together with the Bill of Rights, govern police questioning prior to 1 August, did not require police to advise suspects of the PDLA scheme and its free nature. So any argument that the evidence had been obtained unfairly on the basis of the old Judges’ Rules would have to fail.
[31] Of course, neither the old Judges’ Rules nor the new rules in the Chief Justice’s practice note are definitive as to what is fair or unfair. Subsection (6) expressly says that. Mr Trenwith’s submission as to unfairness was really based on the current inconsistent police practice. He referred us to other police advice forms used in other parts of the country. Those forms specifically advised suspects of the fact that a list of lawyers is available and that a lawyer on that list would give advice free of charge.
[32] There is no doubt there has been divergent police practice on this topic. Indeed, the court in Alo was told about this. (The minority judge indeed referred to the divergence when noting there was a “current sporadic practice of advising that legal advice is free”: at [90].) The majority in Alo did not consider the fact that some police did advise suspects of the free nature of the PDLA scheme made the practice of those who did not so advise unlawful or unfair. Those police officers who chose to tell suspects of their right to free advice, even without a trigger, were simply giving those suspects, on the majority’s reasoning, additional consideration, over and above their rights under the Bill of Rights. That other suspects may not have received such additional consideration does not mean they were treated unfairly.
[33] Constable Miles’s practice in this case was not unfair to Mr Tye. Mr Tye was accorded his legal rights. The evidence cannot be excluded under s 30 on the basis of unfairness.
Result
[34] We have rejected all Mr Trenwith’s arguments. We are satisfied that Mr Tye was accorded his rights in accordance with the law as it stood at the time of questioning.
[35] The evidence of the breath test result is admissible. We make a formal order to that effect in case there is any doubt as to exactly what Judge Hubble ordered.
Postscript: evidence of preliminary hearings in drink-drive cases
[36] By way of postscript, we mention a topic about which there seems to be some confusion in legal and police circles. We note that, at the preliminary hearing of this case, the police sergeant adducing evidence from Constable Miles went into considerable detail as to every aspect of the procedure undertaken. We do not set out the details here: suffice to say that the evidence-in-chief occupied five pages of transcript.
[37] Nearly all that evidence was unnecessary – and indeed inadmissible. The evidence is inadmissible because it is not relevant to any matter in issue in the proceeding. (That was the case under the common law; the relevant provisions to the same effect from 1 August are s 7(2) and (3) of the Evidence Act.) In R v Allen CA15/06 4 May 2006, this court commented on the very limited scope of the evidence in breath test cases:
[10] Given this context there will normally be virtually no issue for the jury to decide other than that the accused was driving a motor vehicle on a road, the test was carried out using a device to which the certificate of compliance produced under s 75A [of the Land Transport Act] refers and the result card indicated a result higher than 400 micrograms of alcohol per litre of breath. Once all legal issues have been resolved by the Judge, the evidence which the jury will need to hear would normally take only a few minutes, unless there is a real dispute as to whether the accused was driving a motor vehicle or whether the vehicle was on a road.
[38] Of course, in addition to that, if the accused disputes his prior convictions, they too will have to be proved. For the procedure for proving those previous convictions, see the Crimes Act, s 341.
[39] If that is the admissible evidence for trial, then that is all that is required for the preliminary hearing as well. Of course, there is nothing to stop defence counsel at a preliminary hearing probing how procedures were undertaken, perhaps with a view to providing an evidential platform for a subsequent application under s 344A of the Crimes Act. But police sergeants and other prosecutors should not think they have an obligation to adduce evidence as to procedure. The preliminary hearing, after all, is not the stage at which admissibility questions are determined.
If, following the preliminary hearing, the defence wishes to challenge the admissibility of the test result on the basis of some procedural flaw, it is for the defence to specify what that flaw is and provide some sort of evidential basis for the assertion. It will then be for the Crown to have the matter tested on a s 344A application. If the judge then rules the test result admissible, then that is the end of any procedural challenge, for the reasons given in Allen at [8] and [9]. If the judge rules the test result inadmissible, then, of course, that will be the end of the case.
Solicitors:
Crown Law Office, Wellington
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