The Queen v Clark

[2006] NZCA 123

IN THE COURT OF APPEAL OF NEW ZEALAND

CA479/05

THE QUEEN

v

RONALD GERALD CLARK

Hearing:31 May 2006

Court:O'Regan, John Hansen and Gendall JJ

Counsel:C Mitchell for Appellant

A M Powell and M G Coleman for Crown

Judgment:12 June 2006 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by John Hansen J)

[1]       Pursuant to leave granted by Keane J on 28 September 2005 the appellant appeals his conviction for driving with excess breath alcohol.

[2]       The appellant was convicted of the offence on 16 December 2004, fined $500 and disqualified for six months.

Background

[3]       Just shortly before midnight on 19 May 2004 the appellant was the driver of a motor vehicle travelling west on Northcote Road, Northcote, Auckland.  The police stopped him because of his excessive speed.  He exhibited signs of recent alcohol intake.  The breath screening procedure confirmed this.  The constable cautioned the appellant and he was advised of his rights pursuant to the New Zealand Bill of Rights Act 1990.  The appellant indicated he understood those rights.  The constable requested the appellant to accompany her to the police station.

[4]       At this stage the appellant became agitated and kept returning to his vehicle.  The constable asked him a number of times to accompany her to the station.  A number of the appellant’s friends were present.  These friends were apparently Naval Ratings, who had also been drinking.  It appears that at least one of this group was swearing, angry and demonstrative.

[5]       The appellant ultimately complied with the request, but, because of the concerns the police had at what was occurring at the scene, a decision was made to handcuff him for transportation to the station.  The constable said she explained to the appellant that this was done for safety reasons and because the appellant kept returning to his own vehicle and to his friends when being called upon to accompany the officers to the station.  The officer said that the appellant was much larger than her and was quite intoxicated.  She said she told the appellant he would only be handcuffed for the duration of the trip to the station.  At the station the handcuffs were immediately removed and the requisite New Zealand Bill of Rights Act warning was repeated.  The appellant, rather than call a lawyer, apparently phoned his wife.  He then undertook the evidential breath test.  This resulted in a reading of 701 micrograms of alcohol per litre of breath.

District Court decision

[6]       On 16 December 2004, in the course of the defended hearing of the charge of driving with excess breath alcohol, his counsel submitted there was no case to answer because of the circumstances in which the appellant had been handcuffed before and during the short journey in the patrol car to the police station.  It was argued that there was a breach of s 23(5) of the New Zealand Bill of Rights Act and the evidence should be excluded.  Section 23(5) provides that everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

[7]       The Judge did not accept that the handcuffing was outrageous or extravagant police behaviour.  He held the use of the handcuffs was for a genuine reason experienced at the time, and the decision to handcuff the appellant was made on the basis of a realistic appraisal of risk by the police constables at the scene.  He found there was no arrest.  The Judge went on and assumed, for the sake of argument, that the handcuffing of the appellant was in breach of the New Zealand Bill of Rights Act and was illegal and unreasonable.  The Judge then referred to R v Shaheed [2002] 2 NZLR 377. The Judge distinguished the decision of Police v Chadwick [2002] DCR 880 and held that there was a short term, not overtly coercive, breach.  He found the appellant was aware of the reasons and the short term nature of the breach, and that he was released promptly on arrival at the police station.  He found that the breach was not causative of the appellant’s decision to undergo the evidential breath test.  The Judge concluded there was a case to answer.  After hearing evidence from the appellant and his witnesses he reached the same conclusion and convicted the appellant. 

High Court decision

[8]       On appeal Keane J accepted the constable had handcuffed the appellant to protect herself and the other officer.  However, he held that handcuffing is an incident of arrest and, even where there is no intent to arrest, an arrest can in fact result.  He found in this case the appellant was in a state of arrest when he was taken in handcuffs to the station.  The fact the officers did not themselves arrest the appellant put in issue the lawfulness of the restraint by way of handcuffing.  Keane J found that in handcuffing the appellant the constables acted beyond their authority and unlawfully as there was no need to arrest the appellant.  The Judge found the handcuffing may have occasioned two breaches of the New Zealand Bill of Rights Act, either s 23(5) or s 22 (which guarantees the right to be free of arbitrary arrest).  However, he concluded at [44]:

[44]     Even though, then, on the evidence, I consider, in contrast to the Judge, that the handcuffing was unlawful and in breach of Mr Clark’s rights, I consider that the Judge was entitled to conclude there was no link between that and the evidential breath test Mr Clark underwent.  Absent that link, to have excluded the evidential breath test result on which the informant’s case rested, and as to which there was no independent challenge, would have been disproportionate.  The appeal will be dismissed. 

[9]       On the granting of leave on 28 September 2005 the Judge posed the following questions of law: 

·the significance of the handcuffing of the appellant;

·the consequences of that handcuffing on the appellant’s subsequent actions; and

·the exercise of judicial discretion by the Judge.

Submissions

[10]     Mr Mitchell submitted, on behalf of the appellant, that he had been co-operative throughout the drink driving procedure.  Notwithstanding that co-operation, the appellant was handcuffed out of concern for the officers’ safety.  The police had conceded that the appellant had agreed to accompany the plaintiff for the purpose of an evidential breath test, blood test, or both.

[11]     Mr Mitchell submitted that the act of handcuffing, without cause, altered the status of the appellant and vitiated his consent.  Mr Mitchell further submitted that, notwithstanding the findings in both the District and High Courts, that any breaches were not causative of the appellant’s decision to undertake the evidential breath test, the evidence should be excluded.  He submitted the activities of the police were so outrageous that this Court, effectively exercising a disciplinary jurisdiction over the police, should punish them by excluding the evidence.

[12]     Furthermore, Mr Mitchell submitted that at 26 of the notes of evidence in the District Court the appellant stated:

At this point I thought I was under arrest and I was just going along with whatever they said, sign this, do this, do you want this, and I was just being, you know, compliant I guess.  You know it was in my interest to get this thing over and done with quickly so I was being as co-operative as I could.

He was not cross-examined on the point.  Mr Mitchell said in light of that unchallenged evidence, the Judge was incorrect to determine the breach of the appellant’s rights played no part in his decision to give the breath test. 

[13]     Counsel for the Crown, Ms Coleman, submitted that, in the circumstances of this case, the application of the handcuffs did not amount to arrest or detention.  She supported the Judge’s finding that there was a proper basis for handcuffing the appellant, that being the protection of the officers, both from the appellant, and his companions.

[14]     Ms Coleman submitted that in this case the Judge has made a specific finding that there was no link between the handcuffing and the evidential breath test that the appellant ultimately underwent.  That finding had been upheld by Keane J.  She said that is a question of fact, so that applying either the test in Ellicock v Courtney (1992) 8 CRNZ 390 or in Shaheed the evidence is admissible.

[15]     Ms Coleman referred to the factors relied on by the District Court Judge and Keane J in reaching their respective conclusions that the handcuffing of the appellant did not cause him to agree to undergo an evidential breath test.  These included:  the fact he had already agreed to accompany the officers to the station for the purpose of an evidential breath test; he knew the handcuffs were to remain only for the short duration of the journey to the police station; the handcuffs were removed upon arrival; at this point the appellant was again given his rights pursuant to the New Zealand Bill of Rights Act and given the opportunity to call a lawyer; and that the appellant understood the information regarding his rights.

[16]     Ms Coleman submitted that before a Shaheed balancing test was required it needed to be established on the evidence that the breach was instrumental in the prosecution obtaining the evidence that was sought to be excluded.  She said in the present case the factual findings precluded that. 

[17]     Ms Coleman further submitted that even if the matter was approached in terms of Ellicock v Courtney, the decision would be the same.  In that case Eichelbaum CJ held that it was necessary to establish a causative link between the breach of rights and the evidence before it should be excluded.  He found that if that causal link was established the evidence should be excluded.

[18]     Ms Coleman submitted that decision goes further than Shaheed and the appropriate approach for District Court Judges to take is that set out in Shaheed.

[19]     In any event, she submitted that in this case, whatever approach is taken, the same result is reached because of the finding that any breach was not causative of the decision to undergo the evidential breath test.

[20]     Finally, she submitted that no authorities extend as far as the submission on behalf of the appellant.  She said there is no authority for the Court to exclude evidence, in circumstances such as this, simply to discipline police officers.

Discussion

[21]     We agree with the Crown that the correct approach to questions of admissibility where breaches of rights have been established is that set out in Shaheed. 

[22]     Based on the evidential findings of the District Court Judge we query whether, in fact, the appellant was arrested.  However, it is clear, at the very least, he was detained.  For present purposes we are prepared to assume a breach of s 23(5) of the New Zealand Bill of Rights Act 1990. 

[23]     In Shaheed Blanchard J, in delivering the decision of the majority stated, stated at [140]:

[140]    In New Zealand there has been an attempt to articulate a solution which would give primacy to the vindication of guaranteed rights but with some flexibility to recognise other societal interests; but in practice the exclusion of evidence has followed almost automatically once it has been established that there has been a breach which is more than trivial and that there is a sufficient connection between that breach and the availability of the challenged evidence.  ….

(emphasis added)

[24] In this case it is clear that the necessary causal connection between the breach and the giving of the evidential breath test is not established. Notwithstanding Mr Mitchell’s reference to the evidence of the appellant cited above at [12] being unchallenged, the inference drawn by the Judge and his finding that the breach was not causally connected to the giving of the evidential breath test was clearly open to him. It is the same conclusion that Keane J reached in [44].

[25]     Essentially this matter was determined on the facts, and no question of law arises in this appeal.

[26]     Furthermore, even applying the decision in Ellicock the same result would arise because of the finding of no causal link between the breach and the challenged evidence.

[27]     However, to reiterate, the appropriate approach is that set out in Shaheed.  The first inquiry is whether or not there is a causal link between the breach and the challenged evidence.  If there is not the evidence is clearly admissible.  However, if the causal link is established the trial Judge must then carry out the necessary balancing act in terms of Shaheed. 

[28]     For the sake of completeness we should mention a reference in submissions from the appellant of the need for the police to advise of the right to bail.  In that regard this case is on all fours with Ellicock given the short time that elapsed on the way to the police station.  There was no need to give such advice.

[29]     Finally, there is no authority to mandate the exclusion of evidence, in circumstances where there is no causative link between the breach and the obtaining of the evidence, for the purpose of disciplining the police for misconduct.  Such a finding would significantly alter the law as laid down by a Full Court in Shaheed.  In any event, the actions of the police officers in this case were not such that discipline would be called for.

[30]     It follows that the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington