Song v Police
[2023] NZHC 3498
•4 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2023-404-289
[2023] NZHC 3498
BETWEEN TIANQI SONG
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 October 2023 Appearances:
C Mitchell for the appellant R Va’ai for the respondent
Judgment:
4 December 2023
JUDGMENT OF CAMPBELL J
[Appeal against Conviction]
This judgment was delivered by me on 4 December 2023 at 3.00 pm
Registrar/Deputy Registrar
SONG v NEW ZEALAND POLICE [2023] NZHC 3498 [4 December 2023]
Introduction
[1] On 26 April 2023, Mr Song was convicted by Judge E M Thomas in the North Shore District Court of driving with excess breath alcohol.1 Mr Song appeals.
Background facts
[2] In the early hours of 25 August 2021, Mr Song was driving in Albany. Constable Wakely saw Mr Song swerving within his lane. At 12.24 am, upon stopping Mr Song’s car, Constable Wakely detected a strong smell of alcohol.
[3] Constable Wakely administered a breath screening test on Mr Song. This returned a result over 400. Constable Wakely showed Mr Song the positive result and required Mr Song to accompany him to the North Shore Policing Centre to undertake an evidential breath test, blood test, or both. During this interaction Mr Song was spoken to and responded in English.
[4] After Constable Wakely required Mr Song to accompany him to the Policing Centre, Constable Wakely advised Mr Song of his rights under the New Zealand Bill of Rights Act 1990 (Bill of Rights) in full. When asked if he understood, Mr Song said yes. This happened at 12.32 am.
[5] After Mr Song realised that he was required to accompany Constable Wakely to the Policing Centre, Mr Song’s language skills appeared to deteriorate. Constable Wakely arranged for another officer, Constable [Redacted], to be available to assist once they were back at the Policing Centre.
[6] Constable Wakely arrived with Mr Song at the Policing Centre at 12.40 am. Constable Wakely called Constable [Redacted], who read Mr Song his rights again in Mandarin over the phone. When asked if he would like to speak to a lawyer, Mr Song replied “yes”.
1 Song v New Zealand Police [2023] NZDC 17009.
[7] The first lawyer who was contacted spoke to Mr Song in English. She said she thought Mr Song’s English was fine but referred Constable Wakely to a Mandarin‑speaking lawyer. Mr Song spoke to that lawyer from 1.16 am to 1.22 am.
[8] At 1.26 am, Mr Song began evidential breath test procedures. Mr Song’s test returned a result of 1,063 micrograms of alcohol per litre of breath.
District Court decision
[9] At trial in the District Court, Mr Song argued that he had been very intoxicated and had only a rudimentary understanding of English, and so did not understand his rights as read to him. Mr Song said this was clear to Constable Wakely before he administered the roadside breath screening test, and that the Constable had not adequately explained his rights to him before requiring him to accompany the Constable to the Policing Centre.
[10] In his decision, Judge Thomas described the alleged offending. He recorded Mr Song’s evidence that he was unable to remember much about the evening, that he could not recall what he had been told about the process in general, and that he could not understand everything Constable [Redacted] told him in Mandarin.
[11] The Judge said the Police were obliged to advise Mr Song of his rights. The Judge said this was done in both English and Mandarin. He also noted their obligation to ask if Mr Song understood those rights, which they did in both English and Mandarin, with Mr Song confirming he understood on each occasion.
[12] The Judge said that Constable Wakely first spoke to Mr Song in English. The requirement to undertake a breath screening test, the requirement that Mr Song accompany Police to the Policing Centre and the first advice to Mr Song of his rights were all conveyed in English. The Judge said that Constable Wakely did not have to do any more unless put on notice that he needed to do more. He found that Constable Wakely was given no notice at that point that he needed to do more. Mr Song’s intoxication did not mean he could not understand, and Mr Song appeared to respond sensibly to Constable Wakely’s conversation, requests and commands. The
Judge said there was no evidence that Mr Song said anything consistent with not understanding anything in that initial exchange or during the breath screening test.
[13] The Judge said that, in any event, Constable Wakely involved Constable [Redacted] prior to Mr Song’s evidential breath test. His Honour noted that, in Mandarin: Mr Song acknowledged he understood his rights as provided in Mandarin; spoke to a lawyer; and declined to speak to a lawyer again before the evidential breath test.
[14] The Judge concluded that there were no signs to Police that Mr Song did not understand or that they needed to do more. He considered that Police did all they were required to do. The Judge found the charge proved and convicted Mr Song.
Ground of appeal
[15] Mr Song appeals his conviction on the ground that, owing to his serious intoxication and his limited understanding of English, he did not understand the advice that Constable Wakely gave him, after being required to accompany the Constable to the Policing Centre, of his rights under the Bill of Rights. Mr Song says that his right under s 23(1)(b) of the Bill of Rights (to consult and instruct a lawyer without delay and to be informed of that right) was therefore breached.
[16] Mr Mitchell, counsel for Mr Song, confirmed at the hearing that the focus of the appeal was on the interactions between Constable Wakely and Mr Song at the roadside. It was not contended that Constable [Redacted]’s advice of Mr Song’s rights, once Mr Song had arrived at the Policing Centre, was inadequate.
Principles on conviction appeal
[17] To succeed on this appeal, Mr Song must, under s 232(2)(b) and (c) of the Criminal Procedure Act 2011, establish that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason.
Was Mr Song’s right under s 23(1)(b) breached?
[18] Section 23(1)(b) of the Bill of Rights provides that persons who are detained have the right to be “informed” of their right to consult and instruct a lawyer without delay. In R v Mallinson, the Court of Appeal said:2
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.
…
Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused’s answers at face value. If following advice as to the right to a lawyer the accused responds affirmatively to the question whether he or she understands the position, the obvious inference is that the accused did indeed understand his or her rights. But more than a bare statement of the s 23(1)(b) right and a bare acknowledgement of understanding is likely to be required where, for example, the person arrested is intoxicated or under drugs or appears to have a mental or physical disability which could interfere with his or her comprehension of the rights.
[19] In Attorney-General v Udompun,3 the Court of Appeal said that the test set out in Mallinson:4
… requires effective communication to a detainee so that the detainee (subjectively) understands that he or she has a right to consult a lawyer without delay. It is, however, made clear that, where a person at the relevant time acknowledged an understanding of the right, there has to be an evidential basis (other than mere assertion of not understanding) put forward for an argument that a detainee did not in fact understand the right. If there is such an evidential basis, it is then for the Crown to prove understanding. To provide an evidential basis a detainee must point either to there not having been an objectively effective communication of the right, or to some special circumstance or characteristic (whether known to the police or not) that could have hindered understanding.
…
It is clear from Mallinson that, if there has been an objectively effective communication of rights and there are no special characteristics, then a person’s answer at the time that he or she understood the rights can be taken at face value. If there is an evidential basis for asserting that there are triggering circumstances calling for obvious care and further inquiry, however,
2 R v Mallinson [1993] 1 NZLR 528 (CA) at 530–531.
3 Attorney-General v Udompun [2005] 3 NZLR 204 (CA).
4 At [119]–[120].
more than a bare statement of the s 23(1)(b) rights and a bare acknowledgment of understanding is likely to be required and the onus is on the Crown to prove understanding in such a case.
[20] In R v Buchanan,5 the Court of Appeal emphasised that special circumstances hindering the detainee’s understanding need not (in order to shift the onus to the Crown) be obvious to the police officer or be raised at the time. In that case the Court confirmed that, where an onus arises on the Crown, it is an onus to prove on the balance of probabilities that the detainee understood his or her rights.6
[21] Here there was objectively effective communication of Mr Song’s rights at the roadside. Mr Song responded that he understood those rights. I am prepared to assume, without deciding,7 that the combination of Mr Song’s intoxication and English not being his first language formed an evidential basis for an argument that Mr Song did not, in fact, understand his rights. On that assumption, the issue is whether the Crown proved on the balance of probabilities that Mr Song understood, at the roadside, his right to consult a lawyer without delay.
[22] Constable Wakely gave evidence of his initial interactions with Mr Song. The procedure sheet completed during the course of the breath screening test and then the evidential breath test was in evidence. The inference from this evidence is that Mr Song understood what the Constable was saying to him at the roadside. After stopping Mr Song’s car, Mr Song was able to tell the Constable that he had been drinking beer and that he had had one beer. Constable Wakely’s evidence was that at that stage his communication with Mr Song was fine:
I felt like we could understand each other reasonably well, it was, obviously it wasn’t his first language but we could still communicate.
[23] The Constable then required Mr Song to accompany him to the Policing Centre and read his rights to him. He asked Mr Song, in English, whether he understood, and Mr Song replied, in English, “Yes”. Mallinson and Udompun make it clear that, where an evidential basis has been raised of a lack of understanding, such an
5 R v Buchanan [2008] NZCA 480 at [48].
6 At [48].
7 The hesitation is because, as will become apparent from my review of the evidence, at no point in his evidence did Mr Song say that he did not understand the rights that were read to him by Constable Wakely.
acknowledgement of understanding is unlikely to be sufficient, in itself, to prove that the detainee understood their rights. But those cases do not mean that a court puts such an acknowledgement to one side altogether. The acknowledgement is still evidence that Mr Song understood the rights that had been read to him.
[24] Constable Wakely’s evidence, clarified in cross-examination, was that after Mr Song realised he was required to accompany the Constable to the Policing Centre, Mr Song’s language skills appeared to deteriorate. Constable Wakely said that it seemed as if Mr Song was making it difficult for him.
[25] Once back at the Policing Centre, and after having his rights read to him in Mandarin, the first lawyer contacted by Mr Song was an English-speaking lawyer. After she spoke with Mr Song, she told Constable Wakely that she thought Mr Song’s English was fine, but said another lawyer (who could speak Mandarin) “will be able to help”.
[26] Constable Wakely’s evidence was that he had subsequently visited Mr Song and asked him who his lawyer was and how he would like disclosure. Mr Song gave the Constable his lawyer’s details and told him to give disclosure to his lawyer. Again, this is consistent with Mr Song having a more than reasonable understanding of English.
[27] Mr Song gave evidence at the trial through an interpreter. He said that he remembered that at the roadside Constable Wakely “asked me to do that other breath test” and that “he asked me to go with him back to the police station”. These were requests that Constable Wakely had given Mr Song in English. It is clear from Mr Song’s evidence that he understood those requests.
[28] Mr Song was asked whether he remembered what Constable Wakely said to him regarding his rights. His answer was “I can’t remember.” His explanation for his lack of memory was that he had been drunk. Mr Song’s evidence was also that he could not remember what Constable [Redacted] said to him back at the Policing Centre. Indeed, he was able to remember very few things from that night.
[29] At no point in his evidence did Mr Song say anything to suggest he had not understood the rights that had been read to him by Constable Wakely. His evidence was merely that he could not recall what the Constable said to him.
[30] In cross-examination, it was put to Mr Song that he understood enough to do the breath screening procedure. His answer was:
I was not so sure, I just did whatever the police officer asked me to do.
[31] In order to have done what Constable Wakely asked him to do, Mr Song must have been able to understand what the Constable was saying to him (in English).
[32] The evidence all points towards Mr Song having understood what Constable Wakely told him, notwithstanding that the Constable was speaking in English. The Police comfortably discharged any burden that may have arisen of proving, on the balance of probabilities, that Mr Song understood his rights.
Result
[33]The appeal is dismissed.
Campbell J
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