Tallentire v Police

[2012] NZHC 1546

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-019-000112 [2012] NZHC 1546

BRETT JASON TALLENTIRE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         25 June 2012

Counsel:         RD Mulgan and AL Simpson for Appellant

W Fotherby for Respondent

Judgment:      2 July 2012

JUDGMENT OF ASHER J

This judgment was delivered by me on Monday, 2 July 2012 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/counsel:

RD Mulgan, 51 Pembroke Crescent, Glendowie, Auckland 1071. Email:  [email protected]
AL Simpson, 1/11 Freeman Way, Manukau 2104. Email:  [email protected]

Crown Solicitor, DX CP24063, Auckland 1140. Email:  [email protected]

TALLENTIRE V NZ POLICE HC AK CRI-2011-019-000112 [2 July 2012]

[1]      On 19 October 2011, the appellant, Brett Tallentire, was convicted of refusing to provide a blood specimen after having been required to do so under s 72 of the Land Transport Act 1998.  He appeals that conviction and the sentence imposed.

[2]      Mr Tallentire had been observed driving a vehicle erratically after leaving a hotel.  He crossed over the centreline and drove down the middle of the road for a period.  When he was stopped, his vehicle was positioned half on the road and half on the grass verge.  The policeman involved, Sergeant Pabst, described him as being grossly intoxicated.  Mr Tallentire admitted having drunk about three jugs of beer.

[3]      Mr Tallentire failed a breath screening test.  He was asked by Sergeant Pabst to accompany him to the Rangiora Police Station to undertake an evidential breath test, blood test or both.

[4]      The Sergeant set out for Mr Tallentire his rights under the New Zealand Bill of Rights Act 1990 (NZBORA).  There was an exchange, which will be dealt with in greater detail later in this judgment, that led to Sergeant Pabst taking the view that Mr Tallentire had refused to undertake a blood test.

[5]      Mr Mulgan for Mr Tallentire stated on appeal that the Judge erred in finding that:

(a)       The Police adequately facilitated Mr Tallentire’s right to contact a

lawyer of his choice; and

(b)      Mr Tallentire by his actions had refused to provide a blood sample.

The District Court decision

[6]      The Judge set out Sergeant Pabst’s evidence in detail and defence counsel’s criticism of that evidence.  He summarised the relevant case law.  He concluded that Mr Tallentire had been provided with a reasonable opportunity to contact a lawyer.

In any event, the Judge stated that he would not have excluded the evidence under s

30 of the Evidence Act 2006 as this would be disproportionate to the breach of the right. He then went on to consider the submission that there was no refusal to give a blood  sample.    He  determined  that,  in  the  circumstances,  the  requirement  by Mr Tallentire to be provided with the name of the doctor was not reasonable and there had been a refusal.

[7]      It is now necessary to consider the points raised on appeal in detail.

Failure to provide access to lawyer of choice – relevant facts

[8]      When Sergeant Pabst and Mr Tallentire arrived at the Police Station, Sergeant Pabst asked Mr Tallentire if he wished to consult a lawyer.  Mr Tallentire said that he wished to contact Mary Shanahan, a lawyer in Auckland.   Sergeant Pabst did not have Ms Shanahan’s number.  Sergeant Pabst was in the excess blood alcohol room at the Police Station.  He did not have a telephone book or computer available to him in that room.   The Sergeant telephoned through the switchboard to the Auckland Central Watchhouse and  requested  the number of a Mary Shanahan.    He spent approximately 12 minutes trying to get the telephone number through the Auckland Watchhouse.   However, in the end he was told that the person at the Watchhouse could not find any number for Mary Shanahan.

[9]      Sergeant Pabst asked Mr Tallentire if he wished to speak to a local lawyer.

Mr Tallentire’s response was that he wanted to speak to Mary Shanahan.

[10]     It was Mr Mulgan’s submission that Sergeant Pabst had not done enough to satisfy  the  appellant’s  right  under  s  23(1)(b)  of  the  NZBORA.    This  gives  to everyone who is arrested or detained under an enactment “… the right to consult and instruct a lawyer without delay and to be informed of that right”.  It is not argued that there  was  any  error  in  informing  Mr Tallentire  of  his  right,  but  rather  that  no sufficient opportunity to make the contact was given to Mr Tallentire.

[11]     The right to a lawyer is set out in s 23(1)(b) of the NZBORA which provides:

23   Rights of persons arrested or detained

(1)   Everyone who is arrested or who is detained under any enactment—

…

(b)   Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

[12]     The Police must take reasonable action to facilitate the detainee’s exercise of the right.  But the Police have no obligation to find for the detainee the detainee’s lawyer of choice.  The obligation is to facilitate, not to provide, and the requirement to assist with the provision of this opportunity is not a counsel of perfection.  It was stated by the full Court of the High Court in Brown v Police:[1]

It will often be possible, with the benefit of hindsight, to suggest other actions that might have been taken to better facilitate the exercise of s23 rights, or to find fault with those actions that were taken.  However, as was said by Neazor J in Steel v Police (1994) 11 CRNZ 383 the question for the Court is  whether in  the particular  circumstances  of  the  case  reasonable action has been taken to facilitate the exercise of the rights.  The issue for the Court is not whether the action taken was, with the benefit of hindsight, the best possible course of action available.

(emphasis added.)

[1] Brown v Police HC Hamilton CRI-419-87-04, 22 October 2004 at [61].

[13]     No definite rules can be set out for what is expected of the Police.  Cooke P

in Ministry of Transport v Noort stated:[2]

The  opportunity  is  to  be  limited  but  reasonable.    It  is  not  necessarily restricted to one call, but there must be no unreasonable delay.  A driver who cannot  immediately  contact  his  or  her  own  lawyer  should  normally  be allowed to try one or two others.   If, despite a reasonable opportunity, no lawyer can be contacted (perhaps because of the hour of night) the test need not be delayed further.  Rosters of lawyers, available to undertake this work at an appropriate fee, may be prepared by the law society, the police or the ministry, but that is outside the control of the Court.   Hard-and-fast rules cannot be laid down for all circumstances.  Ultimately it must always be a question of fact and common sense whether a reasonable opportunity has been given.

[2] Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 274.

[14]     All the circumstances must be considered and allowances must be made for the realities of the situation.   While of course the need to facilitate the right to consult a lawyer will require the Police on occasions to take certain positive steps, this is not to be treated as imposing an obligation to take every possible step.  It will always be a question of fact and degree.   Did the Police take reasonable steps to facilitate the exercise of the right?

The arguments

[15]     Mr Mulgan argued before me that the Sergeant should have done more.  An affidavit had been filed in this Court by Mary Shanahan stating that she is indeed a lawyer and, although she did not specialise in blood alcohol work, she has acted for Mr Tallentire in the past.   Her home telephone number was in the phone book or could have been obtained online.  Mr Mulgan submitted that the Police collectively should have been able to find her number in the phone book through the 12 minute period  when  inquiries  were  being  made  in  Auckland.    He  also  submitted  that directory could have been called through the 018 number, or that a computer could have been accessed.

[16]     Judge Walsh had rejected similar arguments in the District Court for the following reasons:

(a)      While  Sergeant  Pabst  could  have  located  Ms  Shanahan’s  contact details through a computer at the station or through Telecom’s 018 service, the defendant was grossly intoxicated, verbally aggressive and had a hostile demeanour.[3]

[3] Police v Tallentire DC Rangiora CRI-2010-061-292, 13 June 2011 at [65].

(b)There was only one other police officer present at the Rangiora Police Station and the computer was not in the same room as the officer.  It was reasonable for Sergeant Pabst to infer the risk that the defendant

would  act  violently  towards  persons  or  property.     It  was  thus

reasonable for him to be reluctant to leave the defendant in the care of a single officer.[4]

(c)      The defendant was provided with a reasonable opportunity because Sergeant Pabst  attempted to obtain the number of the  defendant’s lawyer of choice (for around 12 minutes) and, when this was unsuccessful, offered to contact a local lawyer.  The defendant refused this offer.[5]

[4] Ibid, at [66].

[5] Ibid, at [67].

[17]     Mr Mulgan was critical of this reasoning.  He suggested that the defendant only became grossly intoxicated, verbally aggressive and hostile after he was unable to get access to Ms Shanahan.   He suggested that the other police officer present could have stayed with Mr Tallentire while Sergeant Pabst went to the computer.  He suggested that there was a telephone in the room which could have been used by calling 018 to obtain the right number.

Did the Police take reasonable steps to facilitate the exercise of the right?

[18]     I  do  not  accept  Mr  Mulgan’s  argument  that  the  defendant  only  became grossly intoxicated,  verbally  aggressive  and  hostile  after  Ms  Shanahan  was  not contacted.  In fact Sergeant Pabst’s evidence was that he was aggressive at the time of the initial request that he go to the Police Station.   An overall reading of the evidence shows him to be extremely aggressive and abusive throughout his time at the Police Station.  His aggression had a nasty overtone of violence.  He at one stage stated that “cunts like you make people kill Police, you’re an arsehole”.  He pointed his finger and poked the Sergeant. There were indications that Mr Tallentire wanted to have a fight, and to punch the Sergeant (although he did not do so).

[19]     Given the nasty and threatening aggression being shown by Mr Tallentire, it was quite reasonable for Sergeant Pabst to be cautious about leaving the other officer alone in the room with Mr Tallentire.  While he could have used the telephone in the room to dial 018, I consider that to be a counsel of perfection with the benefit of

hindsight.  A competent and undistracted person who set out to find Ms Shanahan’s Auckland phone number could  have found  that  number.    However,  there is  no obligation on an officer is to do all things possible to enable a detainee to exercise the right as that particular detainee might wish.

[20]     Equally it was open to Mr Tallentire to make some effort himself to contact her if he was not prepared to accept a local lawyer.  It was understandable that the Sergeant would not necessarily be focussing on taking all available steps to find Ms Shanahan’s phone number, given Mr Tallentire’s aggression and indications of violence.

[21]     I accept that the efforts made by the Police must be viewed as a whole, and not just from the perspective of Sergeant Pabst.  If it could be shown for instance that the persons in the Watchhouse at Auckland had been deliberately obstructive that could be highly relevant.  However, there is no evidence that this is the case.  The evidence was that the Watchhouse spent some 12 minutes trying to find the right phone number.  It was perfectly possible that they were not able to do so by going to the phone book.  It is not suggested that a Mary Shanahan, barrister and solicitor, is shown in the business section of the phone book.  While Ms Shanahan says that her home number is listed, she does not suggest that she is the only M Shanahan.  I do not consider that the Police should have to ring various speculative home numbers on behalf of a detainee to try and contact a named lawyer.  And it is relevant that the detainee was not making an effort himself to call his lawyer and was rejecting the offer of local lawyers.

[22]     The case has similarities to two decisions where similar arguments to those put forward on Mr Tallentire’s behalf have failed.  In Brown v Police the Constable had checked the TESSA system which contained listings of all yellow and white pages and made several futile telephone calls but was not able to get the defendant’s chosen lawyer.  He was spelling that lawyer’s name incorrectly.  He did not use the

018 directory.  It was held that there was no breach of s 23.

[23]     In Barry v Police[6]  there was again a failure to call the directory service.  In that case there was also a failure to call the nearest major Police Station to obtain the telephone number of the lawyer. The Judge concluded that at worst in that case there was “marginally, an unintended breach”.  He had no difficulty in concluding that on the balancing test the evidence would have been admitted.

[6] Barry v Police HC Whangarei CRI-2007-488-29, 3 April 2008.

[24]     I consider that taking into account the efforts that were in fact made by the Police to find a phone number for M Shanahan and the offer of local lawyers, reasonable action was taken by the Police to facilitate the exercise of the appellant’s right under s 23(1)(b) of the NZBORA.

[25]     I therefore agree with the conclusion of the Judge.   This ground of appeal fails.

Section 30

[26]     Given the conclusion just reached I will only deal with this issue briefly.  I record that if I had found there had been a breach, I would considered it to have been a marginal and unintended breach.  I agree with Judge Walsh for the reasons that he gave that to exclude the evidence of the Sergeant, which would be fatal to the prosecution, would be a disproportionate consequence.

Was there a refusal to provide a blood sample?

[27]     Sergeant  Pabst  gave  evidence  and  was  cross-examined  at  length  while Mr Tallentire exercised his right not to give evidence.  The consequence of this was there was only Sergeant Pabst’s evidence before the Court.   Having set out the details of the arrest and referred to Mr Tallentire’s aggressiveness, he gave evidence of this exchange with Mr Tallentire:

A.        …Do you consent to the taking of a specimen of blood?   Please answer “yes” or “no”.   The defendant answered “No”, until told which doctor may be.  He then called me an arsehole, a cock sucker, he said “Cunts like you make people kill police, you’re an arsehole”. I then completed reading the rest of the form advising him of the

results  or  advising  him of  the  consequences  of  a  conviction  for refusing to supply blood and of the previous convictions also the likely consequences.

Q.       How did you do that?

A.       I read it straight from the form, I can read those if you wish.   I

advised Mr Tallentire … [then reads the contents of the form].

Q.       What was his response to that?

A.       I asked the driver to sign, sign this form and he replied, “Shove it up

your arse”, I then signed it myself and noted “declined”.

[28]     Thus he was indicating that he might give blood if he was told the name of the doctor, although he was keeping his options open.  This remained the tenor of his evidence despite extensive cross-examination.  The Sergeant stated that because of Mr Tallentire’s aggression he could see little sense in remonstrating with him. As far as the Sergeant was concerned, Mr Tallentire had refused the request.

[29]     Mr  Mulgan  submitted  that  there  was  no  evidence  that  the  officer  had indicated that Mr Tallentire had to supply blood.  He submitted, relying on earlier decisions,[7] that an officer was obligated to clarify a situation and bring a discussion to an end.  It does appear that this issue was specifically put in this way to the trial Judge, but there has been no objection to the submission.   But in my view this submission cannot succeed. The reading of the evidence I have just set out shows a

very clear statement to Mr Tallentire that he was obliged to supply blood.   It also shows a refusal to do so.

[7] Hanning v Ministry of Transport HC Dunedin AP87/90, 18 September 1990, and Thomson v

Police HC Dunedin AP23/97, 22 October 1997.

[30]     Mr Mulgan went on to submit that the request for the name of the doctor made the refusal conditional.  It could not therefore give rise to criminal liability as a refusal to supply blood under s 60(1) of the Land Transport Act.  He submitted that Mr Tallentire’s response was in essence that he would not give blood unless he was told which doctor would be taking the blood sample.  He also submitted, relying on

Atherton v Police,[8] that where there is a reasonable qualification to the consent given

by the detained person, then that is not a refusal.

[8] Atherton v Police HC Auckland AP98/95, 2 August 1995.

[31]     In Atherton, the detainee had stated that he would supply blood to a doctor, but not to anyone else, and Thorp J held that not to be a refusal.  Mr Mulgan relied on the statement by Thorp J:[9]

… a qualification which does not create any practical difficulty or barrier to the  obtaining of  a  blood sample  should  not  create  criminal  liability  for refusing to permit a sample of blood to be taken.

[9] Ibid, at 7.

[32]     I would not wish to be seen as accepting that any qualification given in response to a request by a driver that created no practical difficulty, could not be seen as a refusal.   Obviously, a qualification which created no practical difficulty, but which was unreasonable, for instance a requirement that the officer take off his shoes, would still be construed as a refusal.  In Mr Tallentire’s situation, although it might have been possible for the police officer without inconvenience to have given the doctor’s name, the demand for this information was unreasonable, in the absence of any evidence showing a legitimate interest in the doctor’s identity.  It amounted to a refusal.

[33]     I make no comment on the correctness of Atherton, which is a decision that does not appear to have been followed in other cases.  The position here is different from Atherton.  Here it was not a request for a doctor (as distinct from a nurse), but a request only for the doctor’s name.  If Mr Tallentire’s words could be construed as a condition that he be told the name of the doctor before he gave blood, then I agree with Judge Walsh that that was not a reasonable condition for him to impose.

[34]     Section 60(1)(a) of the Land Transport Act provides:

60   Failure  or  refusal  to  permit  blood  specimen  to  be  taken  or  to undergo compulsory impairment test

(1)   A person commits an offence if the person—

(a)   Fails or refuses to permit a blood specimen to be taken after having been required to do so under section 72 by an enforcement officer;

...

[35]     The charge here was refusing rather than failing to permit blood to be taken. Section 72 sets out who must give a blood specimen and states that a person must permit a medical practitioner or medical officer.

[36]     There will be occasions when consent to a  blood test on the basis of a reasonable condition will mean that there has not been a refusal.  For instance, if the detainee communicated the existence of a medical condition that impacted on the taking of a blood sample and which required special steps to be taken by the person taking the blood sample to protect the health of the detainee, then a request on the part of the detainee that those steps be taken as part of the sampling process might not be unreasonable.  However, nothing like that arose with Mr Tallentire.  He did not suggest that there was any particular medical procedure that was required.

[37]     In  the  end  the Judge has  to  stand  back  and  decide whether,  taking into account  ordinary  concepts  of  reasonableness  and  viewing  the  actions  said  to constitute the failure or refusal objectively, there has been a refusal.   All the appellant’s conduct and statements must be considered.  Words will be given their ordinary meaning.  On occasions the refusal can be inferred from conduct, even in the absence of the use of the word “no” (although that does not arise here).

[38]     Here the refusal to supply a sample coupled with the question as to the doctor’s name could not be seen as a conditional consent.   It was a refusal by imposing an unreasonable condition, the fulfilment of which might or might not have persuaded the appellant to give the blood sample.  As such it was a refusal in terms of s 60(1)(a) of the Land Transport Act.  Therefore, this ground of appeal has not been made out.

Sentence appeal

[39]     This was not pursued in oral submissions.   Given the minimum period of disqualification that was imposed on sentence and the modest fine of $500, the sentence was entirely within the range of sentences imposed for this type of offence.

Result

[40]     The appeals against conviction and sentence are dismissed.

……………………………..

Asher J