T v Police HC Napier CRI 2007-441-21

[2007] NZHC 755

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2007-441-21

BETWEEN  T

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         6 August 2007

Counsel:         D H Quilliam for Appellant

J E Rielly for Respondent

Judgment:      6 August 2007

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Napier
Counsel:

D H Quilliam, Napier

T V NEW ZEALAND POLICE HC NAP CRI 2007-441-21 6 August 2007

The appeal

[1]      Following a defended hearing in the District Court at Napier on 5 June 2007, Judge Watson found Mr T   guilty on a charge of refusing to permit a blood sample to be taken, having been required to do so by an enforcement officer acting under s 72 of the Land Transport Act 1998.

[2]      The Judge’s decision turned primarily on an assessment of the credibility and reliability of two primary witnesses, the constable who processed Mr T   and Mr T   himself.

[3]      The  critical  issue  is  whether  Mr  T    had  an  adequate  opportunity to exercise his right to consult and instruct a lawyer, in private and without delay under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).  There is no dispute that the constable provided advice to Mr T   that he was entitled to exercise that right.

The facts

[4]      At 11.40pm on Wednesday 18 April 2007, Constable Sewell was directed to attend a motor accident on Riverbend Road in Napier.

[5]      As a result of information received, Constable Sewell went to an address at

72 Waverley Road, Napier.  On arriving at the address he spoke to a female who was standing outside the house.   Subsequently, he spoke to Mr T   who had been inside.

[6]      A conversation took place in which Mr T   told Constable Sewell that he had been home “over an hour”.   He said that he got home in his car but had had “heaps of beers since” he had been home.  The constable said that he thought he had been told Mr T   was asleep.  Mr T   responded that he had been, but that he had had beers before that.

[7]      A passive breath test was then taken from Mr T  .  The result was “fail”. The breath test was taken because, at the time, the officer considered he had reasonable grounds to suspect that Mr T   was the driver of a motor vehicle involved in the accident.

[8]      Mr T   was requested to undergo a breath screening test.   Constable Sewell said he then became argumentative and unco-operative.  Ultimately, a breath screening test was taken using an approved device.  Again, the result was a failure.

[9]      Constable Sewell required Mr T   to accompany him to the police station at Napier for the purpose of taking an evidential breath test, blood test or both.  At that stage Mr T   was given his rights, both under the Bill of Rights and his right to silence.

[10]     At 12.08am they arrived at the police station at Napier.  Mr T   asked to speak to a lawyer.  The sequence of events from this point is important.

[11]     At 12.10am, Mr T   tried to contact Mr Snell, a lawyer who practices in

Hastings.  There was no answer from Mr Snell’s telephone.

[12]     At 12.11am, Mr T   telephoned Mr Petherick, another lawyer.   In the room that was being used by Constable Sewell and Mr T   there was a telephone which could not dial directly outside the police station.  So, the constable took the course of obtaining an outside line and then handed the telephone to Mr T  .  He heard Mr T   begin to speak to someone and then left the room, so that any consultation could take place in private.

[13]     Constable Sewell gave evidence about the time that passed between the time he left the room and the time he realised that no further conversation was taking place and he re-entered the room.

[14]     The critical difference at this time is this.  Constable Sewell says that upon returning to the room, having assumed that Mr T   had received advice from Mr

Petherick, he proceeded to require Mr T   to take an evidential breath test at

12.15am.  Mr T   refused.

[15]     Mr T  ’s evidence was that he told Constable Sewell that he had not been able to speak to Mr Petherick.   As it transpires that was in fact the position.   Mr Petherick was not home and the telephone had been answered by his son.

[16]     That is the background to the refusal of the request to take an evidential breath test.

[17]     At 12.20am, Mr T   having refused to take an evidential breath test, the constable requested that he give a blood specimen.  At that stage Mr T   again asked to take legal advice.  The rights to do so having been repeated.

[18]     Mr T   then  telephoned  Mr  Petherick’s  number  again.    Mr  T  ’s evidence was that he did that in order to demonstrate to Constable Sewell that Mr Petherick was not home.   That is consistent with his earlier evidence that he told Constable Sewell that he had not been able to speak to Mr Petherick.

[19]     When it became clear that Mr Petherick was not available, Mr T   spoke to a solicitor by the name of Mr Forster.  Mr Forster apparently gave advice to Mr T  .

[20]     At 12.29am, after Mr T   had spoken to Mr Forester, Constable Sewell requested a blood sample, again which was refused by Mr T  .

Resolution of credibility issue

[21]   Judge Watson resolved the credibility issue in favour of the constable. Alternatively, the Judge considered that any deficiency in Constable Sewell’s approach was cured by Mr Forester’s involvement.

[22]     Judge Watson said:

[26]  So insofar as this matter is concerned, if there is any particular conflict in the evidence as between Mr T   and Constable Sewell, then I believe, given the experience of the Constable, given the steps that he undertook, given his quite assiduous approach to allowing Mr T   to seek legal advice, that his evidence would be preferable to that of Mr T  .  And that would be normal enough because the Constable is used to and experienced in these procedures.  To Mr T   it may well be confusing and somewhat difficult, or indeed confusing given the amount of alcohol that clearly he had consumed.

[27]  But as I have said, the backstop of course was the fact that he was able to speak with a solicitor in relation to his rights before any final step was undertaken, but if he did not understand exactly his position, that in my view, does not detract from the fact that he was given his rights, he had the opportunity to discuss the matter with a lawyer and the procedures must flow from that point.

[23]     The reasons for preferring the evidence of Constable Sewell to that of Mr T   involved a preference for the experience of the constable in dealing with matters of this type,  coupled with Constable Sewell’s  endeavours  to  enable  Mr T   to seek legal advice.   On the other hand, the Judge considered that Mr T   could have been confused.  I take it that the Judge reached that conclusion having regard to what he regarded as a “difficult” demeanour or possibly the amount of  alcohol  that  Mr  T    had  consumed,  even  on  the  statement  he  gave  to Constable Sewell at the Waverley Road address.

[24]     I test the Judge’s conclusions objectively against the evidence given at the hearing.  There are two aspects of the evidence which take on significance.  Both are derived from the evidence of Mr T  .

[25]     First, in evidence in chief, Mr T   was asked whether he had asked Mr Forster that he had been required to undergo a breath test.  The recorded answer is “I dunno”.   Second, in cross-examination, the Police prosecutor put a number of questions to Mr T  .  The relevant part of the exchange follows:

Cross-examination: Mr Singh

Q.        You’ve given evidence of Mr Forster telling you to undergo the breath test and the reason you didn’t tell him about the breath test is because you’d actually gone through that phase hadn’t you, you knew that you’d gone through that phase?

A.        It was the first lawyer I spoke to.

Q.       No this is the one at the end, Mr Forster? A.        Yeah.

Q.       Yes, you knew that you’d gone through that phase but you didn’t tell him?

A.       No he said I’m allowed to speak to a lawyer.

Q.       Yes I’m talking about when you were speaking to the lawyer, Mr

Forster, he tells you to do the breath test? A.        Yes.

Q.       And you just gave evidence before that you hadn’t tld him that you’d already undergone the test?

A.       I didn’t have the test.

Q.       Well now you’re being requested to give blood, right? A.  Yeah.

Q.       That comes after the breath test? A.        Yes.

Q.       Right, so you know that that phase is over, you’re going to the blood test, you’ve read the Bill of Rights forms given to you?

A.       Yes.

Q.       You took the time to absorb what was in them? A. Most of it.

Q.       yes, so you know that the officer says to you “I now require you to give blood”?

A.       Yes.

Q.       Right and you want to speak to a lawyer, yes? A.  Yep.

Q.       You speak to Mr Forster? A.       Yep.

Q.       So you know at that point what’s been requested of you is blood? A.        Yes.

Q.       Now you say that Mr Forster said to you “Give a breath test”? A.   Yes.

Q.       So you hadn’t told him that you had actually passed through that phase and were now required to give blood?

A.       No.

[26]     It seems to me that the very firm way in which Mr T   purported to recall what had been said, in some respects tends to support Mr Quilliam’s submission that Mr T   was conscious of what was going on and was likely to tell the constable of his inability to contact Mr Petherick.  However, his evidence also demonstrates that, at the time Mr T   spoke to Mr Forster, he had an appreciation of the position that had been reached through the process undertaken by Constable Sewell and was in a position to tell Mr Forster the stage of the process that had been reached to obtain proper advice.

[27]     My preference is to leave to one side the Judge’s finding of fact as it seems to me that may have aspects to it which are properly criticised.   However, it seems almost incontrovertible that, by speaking to Mr Forster, Mr T   was exercising his right to consult and instruct a lawyer.   At the time he spoke to Mr Forster no offence had been committed and he was in a position to obtain advice as to the steps he should take in dealing with outstanding issues.

Result

[28]     For those reasons, which support the second ground for decision given by the

District Court Judge, the appeal against conviction is dismissed.

[29]     I thank counsel for their assistance.

P R Heath J