S v Police HC Auckland CRI 2008-404-152

[2008] NZHC 1685

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-152

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 October 2008

Counsel:         Z K Mohamed for Appellant

A R Longdill for Respondent

Judgment:      31 October 2008

JUDGMENT (No 2) OF KEANE J

This judgment was delivered by Justice Keane on 31 October 2008 at 12pm pursuant to Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Z K Mohamed, P.O. Box 39119, Howick, Auckland

Crown Solicitor, Auckland

S V POLICE NO 2 HC AK CRI 2008-404-152  31 October 2008

[1]      On 2 October 2008  I dismissed the appeal of S   against his conviction on 14 May 2008 for refusing a specimen of blood. He seeks leave to appeal my decision to the Court of Appeal.

[2]      There are six questions, he contends, warranting the grant of leave. Three go to whether he was denied his right to advice, after being detained. The fourth goes to whether his arrest, before he was detained, was lawful. The fifth goes to whether the evidence was consistent with my own findings on the appeal, as does the sixth.

[3]      The application is opposed. None of the questions posed, it is contended, are of sufficient significance to justify the grant of leave.

Leave threshold

[4]      Section  144(1)  confers  an  ability  to  appeal  to  the  Court  of  Appeal  any question of law arising on a general appeal to this Court, but subject to leave. This Court, s 144(2) says, may grant leave if:

the question of law involved in the appeal which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[5]      In R v Slater [1997] 1 NZLR 211, at 215, Thomas J, delivering the judgment of the Court of Appeal, stated that s 144 does not confer a right to a second tier appeal. Finality is ordinarily to be anticipated on an appeal to this Court. He concluded:

Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

[6]      Even where a question appears to qualify on both counts, Thomas J added, this Court must still be of the opinion that the question is one worthy of a second tier appeal.

Six questions posed

[7]      The first question, posed as a question of law, is whether if, once detained, Mr S   was denied his right to advice for 39 minutes he suffered a breach of his right with fundamental consequences. The second, posed alternatively, is whether if he was denied his right for 25 minutes that too might constitute a fundamental breach of his right.

[8]      Each of these questions faces this difficulty. Each assumes that Mr S  ’s rights were indeed denied, and for the periods spoken of, in the face of the finding of the Judge at first instance that there was no such denial; a finding that on the appeal I held to be open to her. For some part of that time at least, the Judge held, and I agreed, Mr S   elected not to exercise his right and had to be as accountable for any delay.

[9]      Indeed these questions are not, I consider, questions of law at all. They are questions inviting the Court of Appeal to revisit the facts for whatever significance in law that might have. They do not qualify as questions for appeal under s 144(1). And even if they could be restated as issues of law, assuming the facts contended for, they would be questions at variance with the facts found. That would be equally objectionable.

[10]     Both  those difficulties  aside  neither  of  these  questions,  however  framed, seems to to give rise to any question of law of sufficient significance to qualify for leave under s 144(2).

Denial writing materials

[11]     The third question posed stands distinctly. It is whether there was a breach of Mr S  ’s rights, once detained, when, on the basis that a pen might be used as a weapon, he was declined a pen and paper. In this, it is contended, he was denied equality of arms with the officers who had detained him, each of whom was able to keep a contemporary note.

[12]     As to this question there is however this difficulty. No such right is accorded by s 23 of the New Zealand Bill of Rights Act 1990, expressly or by necessary implication, on a person arrested or detained. In the absence of such a right I cannot see that this question poses an issue of law, let alone any of the significance called for.

Unlawful arrest

[13]     The fourth question posed is one of law. It goes to whether I was right to affirm the Judge at first instance in her finding that Mr S   had been arrested lawfully for failure to  accompany,  when  she dismissed  the charge laid  for  that offence.

[14]     The reference to s 129 was,  I accept, wrong.  That  section  confers  quite unrelated powers. I should have spoken of s 120(1)(a), which confers the power of arrest where a number of offences are suspected, amongst them that in s 59, failure to accompany. But that is not of course the question posed.  It is as to the state of belief the officer needed to have, objectively, before he could arrest and how the Judge’s finding as to that could be reconciled with her dismissal of the offence suspected.

[15]     The short answer, as I said in my decision, is that these are unrelated issues. To find a failure to accompany the Judge needed to be satisfied beyond reasonable doubt. To invoke the power of arrest accorded by s 120(1)(a), the officer needed only

‘good cause to suspect’ that offence; or as North P said in Police v Anderson [1972] NZLR 233, CA, at 243, ‘reasonable grounds for suspecting’ such an offence. That suspicion had to be objectively sustainable. On the evidence, as the Judge found, it clearly was.

[16]     The point that Mr S   wishes to take is not then on the evidence a point of any apparent strength. More pertinently it does not raise a new issue of law; nor, within the context of this case, does it begin to have the significance called for.

Remaining questions

[17]     The remaining questions posed, again as questions of law, questions five and six, go to whether my conclusions on the appeal accord with the evidence. Counsel for the Crown contends that they do. But whether or not they are contestable I cannot see that either question raises any issue of law. My findings, affirming the findings of the Judge at first instance, had at the least an arguable foundation in the evidence.

Conclusion

[18]     None of the questions that Mr S   wishes leave to take to the Court of Appeal qualify. All but one are issues of fact, not law, and even if they were able to recast as questions of law none are of general or public importance, or ought for any other reason to be submitted to the Court of Appeal for decision. The application is declined. The order deferring Mr S  ’s disqualification will cease 24 hours after

the date of the issue of this decision.

P.J. Keane  J