Stott v Police
[2013] NZHC 2396
•13 September 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-176 [2013] NZHC 2396
BETWEEN MARISSA JACQUELINE STOTT
Appellant
AND
NEW ZEALAND POLICE
Respondent
| Hearing: | 9 September 2013 |
Counsel: | MW Ryan for Appellant RE Savage for Respondent |
Judgment: | 13 September 2013 |
JUDGMENT OF RODNEY HANSEN J
This judgment was delivered by me on 13 September 2013 at 3.00 p.m., pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Meredith Connell, Auckland
STOTT v POLICE [2013] NZHC 2396 [13 September 2013]
Introduction
[1] Ms Stott pleaded guilty to one charge of driving with excess breath alcohol, contrary to s 56(1) of the Land Transport Act 1998 (the Act). She was disqualified from driving for six months and ordered to pay a fine of $500.
[2] Ms Stott appeals against conviction on the ground that she pleaded guilty only after Judge Callander ruled that the evidence of the police officer who apprehended her was admissible. She says he wrongly rejected her argument that the police officer’s evidence was inadmissible because she had been unlawfully detained. An appeal against conviction following a guilty plea may be entertained in such circumstances.1
Factual background
[3] Ms Stott was stopped by police on Bond Street, Grey Lynn at 11.15 p.m. on 3 March 2011. The following timeline of events is taken from Judge Callander’s decision:2
2315: Vehicle stopped;
2319:Breath screening test conducted. Produced a “failed general” result. Defendant required to accompany the officer to the Avondale Police station for the purpose of an evidential breath test, blood test, or both;
2321:Defendant given her Bill of Rights. She exercises her legal right to speak to a lawyer by the roadside and commences a telephone call;
2332:The defendant finishes her phone call to her lawyer and accompanies the Constable in the patrol car;
2345:Arrived at Avondale police station. Constable assembles paperwork;
2350: Defendant requested the toilet;
2355: Constable continues commencing paperwork;
0015:Defendant again given her Bill of Rights. She says she does not understand the procedure. The Constable explains;
1 R v Merrilees [2009] NZCA 59, R v Stretch [1982] 1 NZLR 225 (CA) and R v Le Page [2005] 2 NZLR 845 (CA).
2 Police v Stott DC Auckland CRN: 11004003743, 6 July 2012 at [5].
0030: Defendant again elects to speak to a lawyer; 0050: Phone call to lawyer completed;
0051: Defendant requested toilet;
0055: Defendant again requested toilet;
0056: Evidential breath test carried out;
0104: Advised of breath test result;
0106:Advice of positive evidential breath test provided to defendant. She says that she does not understand what the Constable is saying. Advice of positive evidential breath test form read to her again. Defendant reads form;
0115:Defendant again given her Bill of Rights. She again speaks to a lawyer;
0125:Telephone call to lawyer ends. 10 minute period commences; and
0137: 10 minute period ends.
District Court decision
[4] Before Judge Callander it was argued that the evidence of Constable Craig Derwyn-Roberts, who had apprehended her and had overall charge of the breath testing process, was inadmissible because of extreme and unexplained delay carrying out the procedure. As a result, it was contended that Ms Stott had been unlawfully detained, contrary to s 22 of the New Zealand Bill of Rights Act 1990 (NZBORA). Defence counsel complained of three specific instances of excessive delay:
(a)The 17 minutes that elapsed from the time Ms Stott’s vehicle was stopped to when she was required to accompany Constable Derwyn- Roberts to the police station.
(b)The 43 minutes which elapsed from the time Ms Stott was required to accompany the constable to the time she was given her rights at the police station.
(c)The 41 minutes that elapsed from the time Ms Stott was given her rights at the police station to the time the evidential breath test was undertaken.
[5] Having heard the evidence of Constable Derwyn-Roberts, Judge Callander rejected the claim that there had been a delay of 17 minutes from the time the vehicle was stopped to the time Ms Stott was required to accompany the police to the police station. As his factual findings as recorded in the timeline show, the time that elapsed was only four minutes. The balance of the time taken before the pair left for the police station was occupied by the phone call made by Ms Stott to her lawyer.
[6] The Judge found that the time that elapsed from the time Ms Stott was required to accompany the constable to the police station and the second time she was advised of her rights under NZBORA was in fact 53 minutes, of which 13 minutes was taken by the conversation with her lawyer. The Judge said that the 13 minutes taken to transport Ms Stott to the police station could have been shortened. She was taken to the Avondale Police Station instead of the closer Auckland Central Police Station. However, Judge Callander found no error in that. Citing Prasad v
Police,3 he found that the police were not under an obligation to take Ms Stott to a
particular police station or to do so “without delay”.
[7] Judge Callander found that the 41 minute delay between the second NZBORA reading and the evidential breath test was not excessive. He referred to the constable’s evidence that Ms Stott was difficult, challenging and argumentative and the constable had difficulty getting her answers for the procedure sheet. He noted that for twenty minutes – from 00:30 to 00:50 – she was talking to her lawyer on the telephone and between 00:51 and 00:55 she made two visits to the toilet.
[8] Judge Callander also rejected a defence submission that there had been an 18 minute delay between the evidential breath test and advice of the results of the test. He found the test was carried out at 00:56. Ms Stott was orally advised of the result at 01:04. Written advice was provided two minutes later. It took longer than usual to obtain the test results because the machine was slow in printing.
3 Prasad v Police HC Auckland CRI-2011-404-000106, 14 July 2011, Venning J.
[9] Judge Callander concluded that there had not been extreme or unexplained delay. It was accordingly unnecessary for him to undertake a review of the evidence under s 30 of the Evidence Act 2006.
Grounds of appeal
[10] Mr Ryan submitted:
(a)The total amount of time (2 hours and 18 minutes) that Ms Stott was detained was an unlawful restraint upon her liberty.
(b)The police were under a positive obligation to take Ms Stott to the nearest police station by the shortest and quickest route for the purpose of undergoing a breath test.
(c)The delay of four to five minutes from the time she failed the breath screening test to when she was required to accompany the police was not “without delay”.
[11] In oral submissions Mr Ryan focused on the time taken for Ms Stott to be transported to the police station and the time that elapsed between the police constable commencing paperwork at 23:55 and Ms Stott’s decision to speak to her lawyer at 12:30. He argued that the constable’s decision to take the additional time required to travel to the Avondale Police Station constituted an unreasonable interference with Ms Stott’s liberty and that the time taken by the constable to complete paperwork was excessive.
Discussion
[12] The question of when an arrest or detention is arbitrary in breach of s 22 of NZBORA was discussed in Neilsen v Attorney-General.4 The Court of Appeal said:5
[34] Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned,
4 Neilsen v Attorney-General [2001] 3 NZLR 433 (CA).
without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures. ...
[13] In the context of alcohol testing procedures under the Act, the question of whether there has been an unacceptable departure from procedural and substantive standards will be a matter of fact and degree. While supporting reasonable actions to enforce the policy of the legislation, the courts must be equally ready not to allow convictions to be obtained by abuses of power.6
[14] In arguing that the decision to go to the more distant Avondale Police Station gave rise to an arbitrary detention, Mr Ryan relied on Auckland City Council v Larsen7 where, in the course of taking the appellant to the police station for an evidential breath test or blood test, the police officer undertook a detour of some two kilometres in response to a call for assistance from other police officers. Smellie J said8 that, had he been free to approach the case unfettered by higher authority, he would have held that the police officer was obliged to travel by the shortest and quickest route to the police station where the person is to undergo testing procedures. However, he was bound by the decision of the Court of Appeal in Lawrence v Ministry of Transport9 where it was held that a detour of 1.5 kilometres, made for the purpose of picking up a departmental motorcycle on the way to the police station, did not involve injustice or improper restraint.
[15] Of more direct application to the facts of this case is Prasad v Police10 cited by Judge Callander in his judgment. In that case the police officer took the appellant to the Ellerslie Police Station rather than the closer Auckland Central Police Station. He did so because he anticipated delays at Auckland Central Police Station where he would have to wait for someone to let him in and, because he did not have access to the code for the door of the testing room, further delay would ensue. Venning J held that, in the circumstances, the fact that the officer chose to go to the more distant
6 Po v Ministry of Transport [1987] 2 NZLR 756 (CA) at 785.
7 Auckland City Council v Larsen [1987] 2 NZLR 583 (HC).
8 At 8.
9 Lawrence v Ministry of Transport [1982] 1 NZLR 219 (CA).
10 Prasad v Police, above n 3.
Ellerslie Police Station did not make the appellant’s detention arbitrary or unlawful.
The officer’s explanation for acting in the way he did was entirely reasonable.11
[16] Constable Derwyn-Roberts’ decision to go to the Avondale Police Station undoubtedly added to the time taken in transit, probably by up to ten minutes. It does not follow that the testing procedure itself was prolonged to that extent. As in Prasad, it seems likely the police constable would have been able to process Ms Stott more quickly in the familiar surroundings of the Avondale Police Station.
[17] In my view, the constable’s actions could not be characterised as capricious, unreasoned or without reasonable cause. It appears that he did not turn his mind to the possibility that he could have shortened the process overall by taking Ms Stott to Auckland Central. Had he done so, he may well have come to the view, as did the officer in Prasad, that there was nothing to be gained by going there. The shortest way round can often be the longest way home. There was no breach of statutory or procedural requirements. Apart from the additional time taken, there were no adverse effects for Ms Stott. In the circumstances, any further delay did not by its nature or duration give rise to an arbitrary detention.
[18] Judge Callander was not asked to consider the precise segment of time between 23:55 and 00:30 but in the course of examining the 41-minute period that elapsed between the advice given of NZBORA rights and the undertaking of the evidential breath test, he made findings that Ms Stott was difficult, challenging and argumentative and the constable had difficulty getting her answers in order to complete the necessary paperwork. Those findings are fully supported by the evidence.
[19] The document Constable Derwyn-Roberts was required to complete is the Breath and Blood Alcohol Procedure Sheet. It was produced in evidence. Much of the information required to complete the document has to be provided by the driver. Constable Derwyn-Roberts said he spent the time between 11:55 and 00:15 completing the form. As Judge Callander said, he described Ms Stott as argumentative and difficult throughout. He said she was not cooperative and it was
very difficult to get answers from her. In the circumstances, it comes as no surprise that it took him 20 minutes to complete the form.
[20] The constable said that after giving Ms Stott her rights for the second time at 00:15, she told him that she did not have the cognitive ability to understand the procedure. He said he again made the effort to read through the Breath and Blood Alcohol Procedure Sheet. Again, I have no difficulty accepting that this could have taken the greater part of the next 15 minutes.
[21] Having found that there had not been an unlawful detention and that it was not necessary for him to consider s 30 of the Evidence Act 2006, Judge Callander went on to say that there had, in any event, been reasonable compliance with procedural requirements in terms of s 64(2) of the Act. Counsel were agreed that the issue of reasonable compliance did not arise as the question of delay had been put squarely as a breach of NZBORA.12
Result
[22] Judge Callander’s pre-trial ruling that the police officer’s evidence was admissible was correct. The appeal is accordingly dismissed.
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