The Queen v Martin

[2008] NZCA 490

IN THE COURT OF APPEAL OF NEW ZEALAND

CA250/2008
[2008] NZCA 490

THE QUEEN

v

WARREN JAMES MARTIN

Hearing:11 November 2008

Court:Glazebrook, Wild and Simon France JJ

Counsel:Z Mohamed for Appellant

M D Downs for Respondent

Judgment:19 November 2008 at 11.30 am

JUDGMENT OF THE COURT

A        The answer to the first question of law as set out at paragraph [21] is yes.

B        We do not answer the second question of law.

C        The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Simon France J)

Introduction

[1]       This question of law appeal arises in the context of a drink driving prosecution.  The two questions on which leave to appeal has been given concern the obligation to facilitate access to a lawyer when a person has indicated a desire to speak to his lawyer, and the issue of what constitutes waiver of that right.

Facts

[2]       Mr Martin was stopped when driving.  An evidential breath-screening test was positive.  He was advised of his right to consult with a lawyer and did so.  Mr Martin rang his lawyer from a privacy booth in the “bus” to which he had been taken.  He used his own cell‑phone on which the lawyer’s number was stored.

[3]       Two evidential breath tests were conducted.  They produced two different results, but both of these were more than twice the legal limit.

[4]       The sequence of events then appears to be that following these results, Mr Martin again called his lawyer.  At the time of that call he was sitting at a desk with the constable on the other side.  The call was brief and notified the lawyer of the result. 

[5]       Next the officer advised Mr Martin of his right to have a blood test, and again of his New Zealand Bill of Rights Act 1990 rights, including the right to consult a lawyer in private.  There is a specific form that sets out these rights.  Mr Martin circled the “yes” option indicating he wished to talk to his lawyer.

[6]       The evidence is unclear but it appears that following this decision a period of about 16 minutes elapsed.  During this time the statutory ten minute reflection period for deciding whether to elect a blood test came and went.  There was no discussion at any point during this period between Mr Martin and the constable.  Mr Martin’s evidence was that the constable moved around the bus but remained within it.

[7]       At the end of this 16 minute period, Mr Martin was asked if he wished to have a blood test.  He indicated he did.  The standard “Blood Specimen Form” was then read out to him and Mr Martin circled the “accept” option on that form.  Blood was then taken.

[8]       It is apparent from this narrative that after indicating he wished to speak to a lawyer (for what would be the third occasion), Mr Martin did not in fact do so.  He took no steps to call the lawyer on his cell‑phone.  The officer took no steps to provide him with any other phone or otherwise facilitate matters.  Mr Martin says he did not make the call because the privacy booth was in use by someone else, and so he did not feel able to.  He cannot recall if it was occupied for the whole 16 minutes.  He also could not recall if he indicated to the officer that he wanted to make the call but was feeling constrained in his ability to do so.  It appears to be one of those situations where no‑one says anything.

[9]       The election by Mr Martin of a blood test was held in the High Court judgment under appeal to constitute a waiver of Mr Martin’s right to a lawyer.  From an evidence viewpoint we note that at trial no questions were directed to this topic.  Mr Martin was not asked why he made the choice without speaking first to his lawyer as he had requested.  Nor was he asked what effect he understood the signing of the form to have on his right to a lawyer.

The District Court

[10]     Moore DCJ addressed various issues that had been raised.  The only one of relevance at this stage is the claim that the officer had breached Mr Martin’s rights by not facilitating a call to the lawyer following Mr Martin’s written request for such a call.

[11]     The Judge described Mr Martin as being “very coy” in his evidence about what he had and had not told the officer.  The Judge’s conclusion of coyness is supported by the transcript.  Mr Martin responds that he cannot understand the question each time this topic arises, such confusion not being apparent elsewhere in his evidence. 

[12]     On the complaint of non‑facilitation the Judge observed (at [32]):

… It is not for the officer to tell him what to do or when to do it in the context of making a call.  The obligation on the Police is to facilitate the right.  Mr Martin can change his mind at any time without being criticised.  He has got a right to do something; he does not have to do it; he does not have to explain why he exercises or does not exercise the right.

[13]     Moore DCJ made a finding of fact that Mr Martin did not tell the officer that he was feeling constrained in making a call because of a lack of privacy or because the booth was occupied.  The Judge concluded that “essentially Mr Martin changed his mind” about making a call, “and in some way conveyed that to the Police”.

[14]     Facilitation was achieved by waiting, and during that time Mr Martin changed his mind and so there was no breach.

The High Court decision

[15]     Mr Martin appealed.  Williams J identified two points as being in issue:

(i)        the facilitation issue; and

(ii)the question of whether electing a blood test amounted to a waiver.

[16]     Prior to giving judgment, and following the hearing of the appeal, Williams J had invited counsel to indicate whether either party wished to call further evidence in relation to the 16 minute period of silence already described.  The Police indicated a desire for such evidence; counsel for Mr Martin indicated he did not want to call any and objected to any being called.  The Court decided the appeal should be determined on the existing trial evidence.

[17]     The Judge’s summary of facts is the same as the facts earlier described, except that His Honour explains why there was a period of 16 minutes (HC AK CRI 2007-404-227 9 November 2007):

·     the second Bill of Rights advice was given at 2317;

·     the form indicates the ten minute period was started at 2320;

·     the form indicates the period was concluded at 2333.

[18]     Williams J noted that the evidence showed the privacy booth was occupied for some of the 16 minutes, but not whether it was occupied for all of it.  He also noted there was no suggestion Mr Martin raised the issue or asked to be taken elsewhere.  His Honour reviewed passages from R v Mallinson [1993] 1 NZLR 528 at 531 (CA), and then considered R v Alo [2008] 1 NZLR 168 (CA). In Alo this Court considered the issue of whether the standard rights advice should include advice that free legal advice could be provided. In that context, cases where the person had not said that they were concerned about cost were discussed. Williams J (at [27]) said of the Court’s conclusion in Alo:

The Court concluded (at [66]) that “the drift of the NZ cases is generally against a requirement on the Police, as part of their facilitation obligations to volunteer information about free legal advice schemes” and therefore…

[19]     Williams J then moved on to considering the waiver point, and in pursuance of that task reviewed this Court’s decision in R v Kohler [1993] 3 NZLR 129. Following that, His Honour observed that Mr Martin had twice been told his rights, he understood those rights, and had already exercised them twice. He had the practical ability to again exercise them, and he had made no protest during the 16 minutes. There was, therefore, no basis to differ from Moore DCJ’s finding of compliance with the facilitation duty.

[20]     Second, Mr Martin must have appreciated what he was being asked to sign when he elected a blood test.  There was no reason to differ from the District Court conclusion that the signed consent was a waiver in terms of the requirements identified in Kohler.

A further appeal

[21]     Williams J gave leave to appeal under s 144 of the Summary Proceedings Act 1957 on two questions:

1.Where a detainee is undergoing prescribed breath or blood alcohol procedures and has advised a constable in writing of his/her wish to consult a lawyer, does it, in the factual circumstances of Mr Martin’s case, satisfy police legal obligations under the New Zealand Bill of Rights Act 1990, the Land Transport Act 1998 and the applicable Regulations, if police take no positive action during the allowed 10 minute period to facilitate the detainee’s wish to consult a lawyer?

2.Does a detainee undergoing breath or blood alcohol testing procedures, in the factual circumstances of Mr Martin’s case, waive his/her rights to consult and instruct a lawyer when, at the end of the allowed 10 minute period for opting for [a blood test], he circles “Yes” on the Police Blood Specimen Form in answer to the question whether he consents to a blood specimen being taken?

Question one : facilitation

[22]     Mr Mohamed submits the officer should have noticed the booth was full and of his own initiative offered options, such as taking Mr Martin outside.  Alternatively he should have freed up the booth, or the police should not organise matters so that there are too many people for the bus facility.

[23]     Before commenting on this we note some factual points.  Mr Martin was unable to say that the booth was full the whole time.  This is surprising if indeed he did wish to call his lawyer and failed to do so only because the privacy booth was full.  Second, it is also surprising that if Mr Martin remained firm in his desire to contact his lawyer, he did not say something when the officer indicated the ten minutes was up.  Third, Mr Martin had happily made his second call to his lawyer in the officer’s presence.  There was no reason at all for the officer to realise Mr Martin now felt constrained for privacy reasons from making a third call.  Finally there is no evidence that at the time the officer inquired as to Mr Martin’s blood specimen election, the officer even knew if the third call had been made or not.  His evidence was that he had not remained with Mr Martin but had left him alone.  Mr Martin said the officer moved around in the bus.

[24]     The primary obligation is to advise a suspect of his or her rights.  If a suspect indicates a wish to exercise one of those rights, such as to contact a lawyer, the cases are well settled that the extent of any obligation to facilitate that exercise of the right will turn on the particular circumstances of the case.  In Rae v Police [2000] 3 NZLR 452 at [59] this Court observed:

… The extent of the facilitation which may be necessary at this time [after a second administration of rights] will depend upon the circumstances in each case, including what has already occurred by way of exercise of the right and whether the motorist indicates a wish to take legal advice again before making an election in relation to a blood test.

[25]     In our view whether there was a breach of a facilitation obligation in a particular case will rarely involve a question of law of general importance.  In this case Mr Martin knew his rights, had twice exercised them, had the apparent and actual capacity to exercise them again, and gave no indication of any inability to do so.  The conclusion of both lower Courts that there was no breach by the officer is plainly right.  We accordingly answer the question “yes”.

Question two : waiver

[26]     When the officer asked Mr Martin, at the end of the ten minutes, if he wished to have a blood test, Mr Martin said yes.  He did not say he had been unable to call his lawyer, and he did not indicate he still wished to talk to his lawyer.  Rather he confirmed he wanted a blood specimen taken, and then co‑operated in that process.

[27]     Moore DCJ viewed all the circumstances as indicating Mr Martin had changed his mind about wanting a lawyer.  Williams J saw the signing of the blood specimen form, following upon all that had happened to that point, as meeting the requirements of a “waiver”.  Williams J was not intending to say the signing of the form is in itself a waiver.  Rather in the circumstances of this case, it was instructive in indicating Mr Martin’s state of mind.

[28]     We agree with both Courts.  No general issue arises and, given the facts, we do not see it as helpful to engage in a discussion of the concept of waiver.  It is plain that Mr Martin by that point no longer wished to speak to his lawyer.  No more need be said and we decline to answer the question.

Conclusion

[29]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington