S v Police HC Auckland CRI 2008-404-152

[2008] NZHC 1554

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:         8 September 2008

Appearances: Z K Mohamed for Appellant

A R Longdill for Respondent

Judgment:      2 October 2008

JUDGMENT OF KEANE J

This judgment was delivered by Justice Keane on 2 October 2008 at 9am 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 HC AK CRI 2008-404-152  2 October 2008

[1]      On  14  May  2008,  at  the  District  Court  Manukau,    S    was convicted of refusing to permit the taking of a specimen of blood on 10 January

2008. He was fined $2,000 and disqualified for two years and also indefinitely. A

related charge of refusing to accompany was dismissed.

[2]      Mr S   appeals his conviction, firstly, on the basis that he was arrested unlawfully for refusing to accompany and that, once that happened, that rendered invalid anything that followed. That disentitled the officer who arrested him, he contends, to require him to undergo any further test. He has also two other grounds of appeal, which figured more largely at the hearing, particularly the former.

[3]      That point was that the officer, who arrested him, and the officer who was with her, did not convey to him at the roadside his right to advice under s 23(1)(b) of the New Zealand Bill of Rights Act 1990, and did not afterwards assist him to exercise his right as and when he sought to invoke it. The remaining point is that he was not validly required to permit a specimen of his blood to be taken. He also takes issue with a number of the Judge’s related findings of fact.

[4]      To set these issues in their sequence I will rely on the times given directly in evidence, supplemented by times not given directly, but set out in the check sheet kept by the officer responsible for testing Mr S  , allowed in by the Judge against a protest. With one exception, on which I do not myself rely, I do not understand any of these times to be contested. They have at least indicative value.

Context

[5]      At 11.45 pm on 10 January 2008 Constables Brookbanks and Bhatt were on patrol in Otahuhu and Manurewa. They were in plain clothes and their patrol car may have been unmarked; neither of which gives rise to any issue.

[6]      Near Great South Road they saw a car ahead of them weaving. Constable Brookbanks activated the patrol car’s red and blue flashing lights and siren. The car ahead, Mr S  ’s car as it turned out, continued for 100 – 200 metres, turned into a shopping complex and stopped in a parking area. Both officers approached Mr

S  ’s  car  and  identified  themselves.  Constable  Brookbanks  spoke  to  Mr

S  , Constable Bhatt spoke to the two passengers.

[7]      Constable Brookbanks asked Mr S   for his name and address. As he did so he noted that Mr S  ’s speech was slurred and his eyes bloodshot. He asked Mr S   whether he had been drinking alcohol. Mr S  , Constable Bhatt confirmed, replied that he had and asked whether that was a crime.

[8]      Constable Bhatt, the more senior of the two officers, whose responsibility it became to test Mr S  , also concluded that he had been consuming alcohol. His eyes were red and his speech slurred. He smelt of alcohol. He was unsteady on his feet. She also had difficulty talking to him. He talked over her, she said, and did not listen to what she was saying.

[9]      At 12.05 am, according to her check sheet, Constable Bhatt required Mr S   to undergo a breath screening test. After first protesting, Mr S   did so. The result was ‘fail general’. Constable Bhatt immediately required him to accompany her to the nearest police station for a breath or blood test, or both. Mr S   was at first unwilling. He was argumentative. He shouted. Constable Bhatt told him that if he continued to refuse he would be arrested. He finally entered the patrol car under protest.

[10]     At 12.06 am, at the roadside, according to Constable Bhatt’s check sheet, she advised Mr S   of his right to advice. She did not confirm that plainly in her evidence.  Nor  did  Constable  Brookbanks  or  Mr  S    refer  to  it.  The  first occasion on which Constable Bhatt plainly said she advised Mr S   of his right to advice was shortly afterwards at the Manurewa Police Station.

[11]     In the patrol car, Constable Bhatt said, Mr S   continued to be resistant. He protested that the officers were unjustified in requiring him to accompany them. He was concerned about his car. At the Manurewa Police Station he was first unwilling to get out. When he did, he continued to protest. He became even more vehement. At 12.13 am, Constable Bhatt said, she told Mr S   he had enjoyed

his last chance. She was obliged to arrest him. In effect, she said, he invited her to. That is what she did.

[12]     At 12.20 am Constable Bhatt cautioned Mr S   and advised him of his right to advice. To do that she read out to him from her notebook the standard caution and advice now set out in written forms found in police stations, to which she herself later had recourse:

You have been arrested or detained for the purposes of evidential breath test blood test or both. You have the right to refrain from making any statement and to remain silent. You have the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions. This right may be exercised without charge under the Police Detention Legal Assistance Scheme. Anything said by you will be recorded and may be given in evidence. Do you understand?

[13]     Mr S   said that he did wish to speak to a lawyer. He was told that he would be able to do so within the police station. He was taken to what is described as the EBA suite. He was placed initially in a holding cell.

[14]     Mr  S    remained  there  for  as  much  as  25  minutes.  That  is  partly accounted for by the time Constable Brookbanks took to make a computer check on Mr S  . Constable Bhatt, in the holding cell next door, was preoccupied with completing the EBA check sheet. It is also accounted for by a deepening impasse between  Mr  S    and  Constable  Brookbanks  as  to  the  terms  on  which  Mr S   wished to exercise his right to advice.

[15]     Mr S  , according to Constable Brookbanks, wanted a pen and paper. The constable was unwilling to allow him a pen. A pen is able to be used as a weapon.  That  apart,  Mr  S    wished  to  speak  to  his  own  lawyer  but  was unwilling to tell Constable Brookbanks who that was; a fact that Constable Bhatt, sitting in the cell next door, confirmed.

[16]     At 12.45 am, shortly before Constable Bhatt required Mr S   to undergo an evidential breath test. She once again cautioned him and advised him of his right to advice, this time using the standard form titled ‘Evidence Act 2006/Bill of Rights

1990 1st Form’. She asked him to sign it. He declined to do so. She did not then note whether he wished to speak to a lawyer. She accepts that he did.

[17]     At  12.50  am  the  constable  attempted  to  have  Mr  S    undergo  an evidential breath test. She set the device up but, she said, Mr S   elected not to blow into it. He remained at a distance. The result was, naturally, an incomplete test. Constable Bhatt offered Mr S   a further opportunity, perhaps more than one. Each time he declined. She told him that he would then have to supply a specimen of his blood. He said that he would not.

[18]     At 1.01 am Constable Bhatt once again advised Mr S   of his right to advice, using a standard form identical to that she had used shortly before. She told him also, she said, that if he did not know how to contact his lawyer, or was unwilling to disclose who his lawyer was, he could speak to a lawyer on the roster. Only then did Mr S   actually elect to exercise his right to advice. He went with Constable Brookbanks to a room nearby where there was a telephone and a list of lawyers who offer advice under the Police Detention Legal Assistance Scheme.

[19]     Once in that room Mr S   did nominate a lawyer, whom he said was his brother in law. Constable Brookbanks found that lawyer’s telephone number and telephoned it. There was no reply. There is an issue whether Mr S   asked the constable to telephone this lawyer’s home number. As to that the evidence is incomplete. The possibility only emerged when Mr S   gave his evidence.

[20]     Mr  S    did  ask  Constable  Brookbanks  to  ring  a  second  lawyer. Constable Brookbanks found that lawyer’s telephone number and rang him. He got no reply. Mr S   nominated a third lawyer, as he says, even a fourth. Constable Brookbanks  was  unwilling  to  persist.  Mr  S    had  been  difficult  and  the constable considered that, if he knew ten lawyers, he would ask for each in turn. At that hour of the morning, he thought, that was unacceptable. He urged Mr S   to take advice from a rostered lawyer.

[21]     Quite how long all this took is unclear. Constable Bhatt’s evidence is that at

1.06 am she formally required Mr S   to supply a specimen of his blood, using

the standard ‘blood specimen form’, the first part of which she read out to Mr S  . As Constable Brookbanks confirmed, Mr S   continued to talk over her. He refused to answer when she asked him if he consented to a blood sample. She read it to him again. She, or Constable Brookbanks, told Mr S   he had to answer. A lack of response would be deemed a refusal.

[22]     Mr S   declined to supply a specimen of blood. He declined also to sign the form. He would have signed the form, he said, if he could have recorded that he objected to the treatment he had received.  But then, it seems, Mr S   was given a second opportunity to take advice, this time from a lawyer on the list. He elected to take it.

[23]     According to Constable Brookbanks’ note Mr S   spoke to a lawyer on the list between 1.12 – 1.17 am.  Mr S   denies that he and the lawyer spoke for five minutes. The lawyer, he said, was unwilling to assist him. Be that as it may, he remained adamant that he would not supply a specimen of his blood. He was arrested and charged.

Decision under appeal

[24]     In her decision the Judge first found that, though Mr S   had been resistant throughout, and more, the charge of refusing to accompany could not be sustained. Mr S  , she found, complied with the requirement to accompany, albeit at the eleventh hour; or, if not that, she was left with a reasonable doubt about whether he had refused.

[25]     In then considering whether Mr S   had refused a specimen of his blood, the Judge went to an anterior issue: whether Mr S   had been accorded his right to consult and instruct a lawyer. That issue as the Judge understood it was whether, if Mr S   had said that he would only provide a blood specimen once he had spoken to a lawyer, he had consented conditionally, or had not refused. In deciding that the Judge had regard to Ministry of Transport v Noort; Police v Curran [1992] 3

NZLR 260; McMillan v Police (No 2) (1996) 2 HRNC 445, John Hansen J; Rae v

Police [2000] 3 NZLR 452, para [57].

[26]     Whether Mr S   had been accorded his right, the Judge held, could not be answered by any hard and fast rule. The issue was one of fact and degree. His right was not unlimited. It had to be exercised reasonably. He should not have been restricted to one call. But there could not be any unreasonable delay. Once he proved unable to contact his own lawyer, he should have been allowed an opportunity to try one or two others.  That could not continue indefinitely.

[27]     The Judge rejected Mr S  ’s evidence that the officers made no attempt to contact the lawyers whom he had named; and that the only opportunity they were ever intent on allowing him was to speak to a rostered lawyer. They had, she held, turned only to the roster after attempts had been made to contact two lawyers whom Mr S   first named. They might not have contacted others named and might not have left messages. At the hour of the morning, the Judge held, that was not unreasonable.

[28]     It was on that basis that the Judge concluded that the officers had complied with their duty; and that when Mr S   was required to supply a blood sample that was validly expressed and, indeed, he did refuse.

Discretion on appeal

[29]     This general appeal under s 115 of the Summary Proceedings Act 1957 is, as s 119 confirms, by way of rehearing; this Court’s powers on appeal, as set out in s

121, are equally wide; and as the Supreme Court, in Austin, Nichols & Co Inc v Stichsting Lodestar [2007] NZSC 103, recently made plain on an appeal this Court must always make its own assessment: para [5].

[30] An appellant still bears the onus of satisfying this Court that it should differ from the Court appealed from. This Court is not entitled to interfere otherwise: para [4]. This Court will recognise any advantage that the court appealed from enjoyed – its specialist expertise or its ability to assess witnesses first hand where credibility is important: para [5]. But otherwise no deference is called for: para [13]. As was said at para [16]:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the Tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.

[31]     To resolve this case the Judge had to make findings of credibility. They are as alive on this appeal. I must bear in mind, then, in reviewing the facts for myself, the advantage that the Judge had in seeing and hearing the witnesses first hand.

Unlawful arrest

[32]     On this appeal the first issue, though not the first in point of time, is whether Mr  S    was  arrested  unlawfully for  failing  to  accompany,  just  outside  the Manurewa Police Station; and whether  any unlawfulness tainted everything that followed. The Judge, it is contended, was inconsistent in finding that Mr S   had not refused to accompany but that, as against that, the officers were entitled to arrest  him  for  refusal  to  accompany.  That,  however,  is  to  misapprehend  the distinction between the two.

[33]     Mr S   had failed a breath screening test. He had  been  required  to accompany. He had been advised he would be arrested if he did not. He had been resistant and warned again. He had said ‘okay arrest me’. The officer had, when she arrested him, under s 129(1)(a) of the Land Transport Act 1998, ‘good cause to suspect’ he had committed an offence against s 59(1)(b).   That the Judge did not sustain the charge, against the criminal standard, is irrelevant. The arrest was lawful.

Right to advice

[34]     Mr S  ’s main attack rests on the proposition, however, to which the Judge devoted most of her attention, that from the outset the officers were in breach of their duty under s 23(1)(b) of the Bill of Rights Act 1990.  At the roadside they failed to advise him of his right to advice.  Once they told him of that right, at the police station, they were again derelict in their duty.   They did not assist him to

exercise it.  In finding otherwise, Mr S   contends, the Judge departed from the evidence and the law.

Roadside advice

[35]    At the roadside, certainly after Constable Bhatt required Mr S   to accompany her, she detained him and came under a duty, as is undisputed, to accord to him his right to advice. In the check sheet she recorded, as I have noted earlier, that at 12.06 am that is what she did. However, as I have also noted, she did not confirm that in evidence. Nor is there any other evidence to support it. I must assume that at the roadside the constable was in breach of her duty.

[36]     As to the consequence the authorities in this Court are in tension. In one a failure to give advice at the roadside proved fatal: Hoopersmith v New Zealand Police (HC WANG AP No 1/00, 28 August 2000), Neazor J. In another it did not and Hoopersmith was held at variance with the general state of the cases: Cook v New Zealand Police (HC TAU, AP 9/02, 17 October 2002), Morris J. The short answer is that Hoopersmith was decided before R v Shaheed [2002] 2 NZLR 377. There was then no room for the balancing exercise after a breach now to be made under s 30 of the Evidence Act 2006.

[37]     The first issue under s 30 has to be how serious any breach was and material to that is that within 14 minutes after Mr S   should have been advised of his right to advice he was advised of that right, as he needed to be, at the Manurewa Police Station; and, when he immediately elected to speak to a lawyer, he was told he could do so within the police station. This particular breach was a short lived omission.

[38]     As against that, Mr S   contends, by 12.20 am it was too late. Had he been accorded his right to advice at 11.45 pm, when first stopped, he could readily have spoken to one of the lawyers whom he later nominated. He maintains that his wish to speak to a lawyer was clear from the outset and from the first he was frustrated. That assumes, however, that Mr S   was detained at 11.45 pm, when

the officers first spoke to him. That is not so. He cannot have been detained earlier than 12.05 am when Constable Bhatt required him to undergo a breath screening test.

[39]     Also, the officers’ evidence was, Mr S   did not elect to speak to a lawyer until after he had been accorded his right to advice at 12.20 am, outside the Manurewa Police Station; and, consistently as it happens with the Judge’s finding of credibility, that seems to me plausible. Until that time their evidence, which the Judge accepted, was that Mr S   was very angry and unreasoning. He may well only have begun to understand his predicament when he was arrested.

[40]     It  is  also  not  immaterial  to  that  conclusion  that  once  Mr  S    was accorded his right to advice, he did not actually elect to exercise it until after 1 am; but that in itself involves a distinct issue of credibility.

Facilitating the right

[41]     Mr S  ’s next point is that the Judge was wrong to accept the evidence of the two officers that once he was told of his right outside the police station he was also assured that he could exercise the right, once inside; and that the only reason he did not immediately do so was that he chose not to. In accepting their evidence, and rejecting his, Mr S   contends, the Judge ignored the fact that they contradicted each other.

[42]     Mr S   fastens on this difference. Constable Bhatt recalled Constable Brookbanks  asking  Mr  S    what  the  name  of  his  lawyer  was,  only  to  be rebuffed, and then urged him to resort to the list of lawyers on call. Yet Constable Brookbanks did recall that Mr S   wished to speak to lawyers whom he named. He made a notebook entry as to at least two.

[43]     I find no such discrepancy. In the holding cell, each said, after Mr S   was refused a pen, he chose not to exercise his right to speak to a lawyer. Or if he did, he elected not to name his lawyer. Mr S  , their evidence was, only named a lawyer after being required to supply a specimen of his blood. That was when he

and Constable Brookbanks went to the room where the telephone was. Constable

Bhatt was not privy to what happened there.

Lawyer of choice

[44]     Mr S   next contends that when at 1 am he did name his brother in law as the lawyer to whom he wished to speak Constable Brookbanks was only prepared to ring his brother in law’s business number. He refused to ring his home number. Then, Mr  S    says,  when  he  named  a  second  lawyer  and  that  too  proved unhelpful, the constable refused to telephone two others.

[45]     Constable Brookbanks, Mr S   contends, denied him his right to advice out of  embarrassment  because  of  the  hour  of  the morning.  But  that  was  not  a sufficient reason to preclude him from speaking to a lawyer of his own choice. If anyone had reason to be embarrassed it was he. Constable Brookbanks’ intent from the first, he says, was to have him ring a lawyer on the roster.

[46]     In assessing this issue, I agree with Stevens J, in Barry v New Zealand Police

(HC WHA, CRI 2007-488-0029, 3 April 2008) at paragraph [44]:

… The fundamental right in s 23(1)(b) is to consult and instruct a lawyer without delay and to be informed of that right. Where a motorist is informed of the right and makes a request to consult his own lawyer, the extent of the facilitation obligations on the police will turn on a range of factors including time, place and circumstances. Questions of reasonableness and practicality will obviously apply so that a motorist is not entitled to reframe or redefine the s 23(1)(b) right by insisting unreasonably on only dealing with his own lawyer.

[47]     Numerous examples were referred to in argument: King v Police (HC AK,

78/94, 19 May 1994), Blanchard J, MacMillan v Police (1995) 2 HRNZ 445, Hammond J, Davis v Police (HK AK, A118/99, 6 August 1999), Anderson J, Brown v Police (HC HAM, CRI 419-87-02, 22 October 2004), Priestley J and Winkelmann J, Brosnahan v Police (HC WANG, CRI 2007-483-000025), 14 February 2008), Cooper J. Each  illustrates that every case turns on its own singular facts.

[48]     The evidence does not establish that, when Constable Brookbanks telephoned Mr S  ’s brother in law, he telephoned his business number only and refused to telephone his home telephone number. Mr S   may say that but that point was never squarely put to Constable Brookbanks. The evidence as to the nature of the attempt  that  Constable  Brookbanks  made  to  contact  the  second  lawyer  was  as general.

[49]     In the absence of any reply, I consider, Constable Brookbanks had no reason to leave messages on the answerphone. He had no way of knowing when, if ever, they might evoke a reply. His concern that Mr S  , to continue to be difficult, would name lawyers as they occurred to him might not have been unreal. He and Constable Bhatt had to complete the testing process without undue delay.

[50]     I see then no reason to differ from the Judge’s conclusion that at the hour of the morning, and indeed on the date, 10 January 2007, during the vacation, the two officers, Constable Brookbanks in particular, acted practically and reasonably. They did not deny Mr S   his right to advice. To the contrary. The Judge was fully entitled to conclude that, in encouraging Mr S   to speak to a lawyer on the panel, the constable was constant to his duty.

[51]     I do not see that it matters that the Judge made no explicit finding as to whether, in speaking to the lawyer on the roster, Mr S   relinquished his preference for his own lawyer; and whether that constituted waiver: R v Kohler [1993] 3 NZLR 129, 133, Cooke P; King v Police (HC AK, AP 78/94, 19 May

1994), Blanchard J. He never waived his right to advice. He had no absolute right to a lawyer of his own choice. How apt the notion of a waiver began to be is less than clear. The Judge’s conclusion stands unaffected.

Blood specimen requirement

[52]     Mr S   contends finally that Constable Bhatt did not require him to supply a blood specimen. She merely requested him to do so. She did not convey to him that it was compulsory. His second point is that the blood specimen form which

she used in this phase of the process was itself defective. Neither point, I consider, avails him.

Require or request

[53]     As to the first point Mr S   relies on a concession Constable Bhatt seemingly made when cross-examined. She was asked whether she had ‘requested’ from him a specimen of his blood. She agreed that she had. Then, when asked ‘Well when you make a request he doesn’t have to comply with it does he?’, she replied

‘No he doesn’t’. Moreover, Mr S   contends, the constable, when she made that concession, was alive to the distinction between the two.

[54]     The constable had required him to accompany her from the roadside. She had required him to undergo an evidential breath test. In her shift of language she failed to convey any notion of compulsion. Mr S   does not, as I understand it, go so far as to say that the constable deliberately left him free to choose. He does say that she left him understanding that he had a choice.

[55]   The words the constable used, however deliberately, are not necessarily decisive. As early as Chesham v Wright [1970] NZLR 247, 250, Beattie J held that what an officer must convey to a motorist is that the giving of a blood specimen is compulsory. The precise words do not matter. But on the evidence, I am satisfied, as was the Judge, the constable did make that plain to Mr S .

[56]     When first speaking of this in evidence, Constable Bhatt confirmed, what she said to Mr S   was ‘now I require you to undergo a blood test without delay’. It was the prosecutor who used the word ‘request’  and that was  taken  up  by Mr S  ’s counsel when he cross-examined her. She responded to his use of the word. Her apparent concession that she had used it is not to be taken at face value.

[57]     Moreover, the constable read out to Mr S  , and apparently more than once, the full requirement in the blood specimen form, which begins in this way:

You are advised that you are required under the Land Transport Act 1998 to permit a registered medical practitioner or medical officer to take for the

purposes of analysis a specimen of your venous blood in accordance with normal medical procedures.

Do you consent to the taking of a specimen of blood? Please answer ‘yes’ or ‘no’ …

If you do not consent please state your reason …

[58]   That requirement is  unambiguous  and  emphatic,  especially when accompanied as it was by the consequences of refusal, to which I will come in a moment. For that reason alone, but also the others I have just outlined, the Judge was fully entitled to conclude that Mr S   was required to supply a specimen of his blood and that, if he chose not to, a range of sanctions could follow.

Form defective

[59]     Then, Mr S   contends, and as a last resort, the form itself was defective. It purported underneath to state comprehensively what the consequences of refusing were, but that statement was not comprehensive. Indeed it was misleading. It was this:

You are advised that if you refuse to permit a specimen of blood to be taken you can be charged with an offence for which you are liable on conviction to imprisonment  for  a  term  not  exceeding  three  months  or  to  a  fine  not exceeding $4,500 and, unless the Court for special reasons orders otherwise, a minimum disqualification from driving of six months.

If you have on at least two previous occasions committed offences relating to the use of alcohol or drugs while driving or attempting to drive you are liable on conviction to imprisonment for a term not exceeding two years or to a fine not exceeding $6,000 and, unless the court for special reasons orders otherwise, a minimum disqualification from driving of more than one year.

[60]     What this statement does not specify, Mr S   contends, is that in the case of refusal the result can be arrest and that, as in his case, where the one refusing has a previous drink driving conviction within five years, indefinite disqualification can result.  But that is misapprehend the duty resting on the constable and the function of the form, the two of which converge.

[61]     The  form  is  unambiguous  as  to  what  is  essential,  as  I  have  said:  the requirement  to  supply  a  specimen  of  blood.  It  did  not  need  to  set  out  the consequences of refusing: R v Quilter (CA 175/03, 3 July 2003). Nor was it incumbent on Constable Bhatt, having read out the form, to speak of those consequences:  Police  v  Taylor  (HC  NWP,  AP  4/03,  12  August  2003),  Rodney Hansen J.

Conclusion

[62]     For these reasons Mr S  ’s appeal will be dismissed. His conviction and the   sentence   imposed   will   stand.   The   orders   for   disqualification,   presently

suspended, will resume 48 hours after the issue of this decision.

P.J. Keane  J