Tule v Police

[2012] NZHC 2565

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-000104 [2012] NZHC 2565

BETWEEN  ARANUI JENNIFER TULE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         18 September 2012

Appearances: J A Hope for Appellant

S N Cameron for Respondent

Judgment:      4 October 2012

JUDGMENT OF VENNING J

This judgment was delivered by me on 4 October 2012 at 11.00 am, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Hamilton

Copy to:            J A Hope, Hamilton

TULE V NZ POLICE HC HAM CRI-2011-419-000104 [4 October 2012]

Introduction

[1]      Following a defended hearing in the District Court at Thames the appellant was convicted on one count of refusing to provide a blood sample and one count of, with intent to intimidate, threatening.1

[2]      On 31 October 2011 Judge Connell sentenced the appellant to a total of 40 hours community work and disqualified her from holding or obtaining a driver’s licence for a period of six months.2    The appellant has served her sentence and the period of disqualification but maintains her appeal against conviction.

Background

[3]      I take the background from the Judge’s decision and the notes of evidence I have reviewed.  On 7 August 2010 Constable Clark was on duty in the Whitianga area in a marked patrol car.  At about 9.50 pm he saw a Subaru station wagon turn right from Kupe Drive into South Highway towards him. As he watched, the vehicle crossed both lanes and mounted the concrete kerb up onto the grass verge before turning into the road.  Constable Clark was immediately concerned the driver was intoxicated.  He made a u-turn to follow the Subaru and activated his blue and red lights.   As he followed the Subaru he observed it had damage to the rear right bumper and the bumper was covered in mud.  After carrying on for approximately

200 metres the Subaru stopped outside a party that was going on at 141 Robinson

Road.

[4]      Constable Clark stopped immediately behind the Subaru.  The appellant was the driver.  She got out of the driver’s door, moved around the front of the vehicle and went on to the property towards the house at 141 Robinson Road.  The officer got out of his patrol car, called to the appellant (whom he recognised) and asked her to stop.  The appellant ignored him and went to run up the driveway.  The officer ran to catch her.  He took hold of her by her left arm and advised her that he required her

to undergo a breath screening test.   The appellant immediately became aggressive

1      Police v Tule DC Thames CRI-2010-75-836, 28 October 2011.

2      Police v Tule DC Thames CRI-2010-75-836, 31 October 2011.

and verbally abusive.  She turned and punched the officer in the face with her right fist.  She threw her arms around and attempted to kick him.  The officer took her to the ground, applied handcuffs and then, with some difficulty, returned her to his patrol car and placed her in the rear seat.   He arrested her for assaulting a police officer.  En route to the police station he advised the appellant of her rights under both the New Zealand Bill of Rights Act 1990 (NZBORA) and Evidence Act 2006. He also told her breath and blood alcohol procedures would follow there.   Upon arrival at the Whitianga Police Station the constable carried out evidential breath test procedures on the appellant.  At 10.18 pm he read the appellant her NZBORA rights and Evidence Act 2006 advice again, as per the breath and blood procedure sheet. The appellant refused to acknowledge her rights but stated she wished to speak to a lawyer.  When shown a list of lawyers she refused to choose one.  She then screwed up the breath and blood procedure sheet and threw it on the floor.

[5]      Constable Clark then required the appellant to undergo an evidential breath test without delay.  She refused to provide a breath sample.  The officer followed the breath testing procedure in accordance with the Land Transport Breath Test Notice No. 2009 but the appellant refused to provide a specimen.   Constable Clark duly recorded that on the check sheet.  He then provided the appellant with her NZBORA rights again, having removed her to a police cell because of her behaviour.   The appellant then said she wished to consult a lawyer.   At just  after 10:30 pm the appellant spoke with one of the lawyers from the on-call list.

[6]      Constable  Clark  then  required  the  appellant  to  give  her  consent  to  the provision of a blood sample.   The appellant repeatedly refused to sign the blood specimen form.  Just before 11.00 o’clock a nurse, Jennifer Southen, attended to take the blood sample.  The nurse tried three times to take the blood sample but each time she attempted to do so the appellant reacted during the process.   The appellant’s actions meant it was unsafe for the nurse to take a sample.  After the third occasion Constable  Clark  advised  the  appellant  that  she  had  refused  to  provide  a  blood sample.

[7]      The appellant was then charged and processed.  When she was being escorted from the police station by Constable Clark she threatened the officer’s son stating:

F... you, you can’t protect your little white 8 month old, he’s gonna get smashed, you can’t protect him.

[8]      The appellant gave evidence.  She also called evidence from two people at the party at Robinson Road.  The appellant’s and her witnesses’ version of events differed markedly from that of the officer.  However, the Judge largely accepted the officer’s evidence.  To the extent there is a variance, on my review of the evidence before the District Court, I prefer the officer’s evidence. The officer was on duty and unaffected  by  alcohol.    The  appellant’s  behaviour  strongly  suggested  she  was affected by alcohol.  She was observed by a number of other officers at the station to be affected by alcohol and to be acting aggressively and in an unreasonable manner, consistent with Constable Clark’s evidence.   Significantly, neighbours across the road from the party observed the difficulties the officer had with the appellant when he first stopped her.  Their independent evidence, particularly the wife’s evidence, was consistent with the officer’s evidence as to what took place after he stopped his patrol car, pursued the appellant, arrested her and returned her (with some difficulty) to the patrol car.  Further, the evidence of Nurse Southen is largely consistent with Constable Clark’s evidence about what occurred when the appellant was required to give blood.

[9]      The  issues  on  appeal  fall  to  be  determined  against  the  above  factual background.

Other charges

[10]     In  addition  to  the  charges  she  was  convicted  of,  the  appellant  was  also charged with assault with a weapon (her car keys) and resisting a police officer in the course of his duty.  Judge Connell found those charges not proved.  The police case in relation to the assault with a weapon was that the appellant deliberately used the keys she had in her hand when punching Constable Clark.  His face was cut.  The Judge found that the appellant had put up a fight to stop Constable Clark arresting her but could not say, beyond reasonable doubt, that she had deliberately used the keys as a weapon on Constable Clark. Although the offence of assault was made out on the evidence, that charge was not substituted.

[11]     On the charge of resisting arrest the Judge considered that, technically, the appellant could be guilty.  However, as the constable had said in his evidence that when he approached the appellant he did not consider he could arrest her, the Judge took the view that it did not seem fair or just to convict her of resisting a constable. He dismissed that charge as well.

The appeal

[12]     Mr Hope’s wide-ranging submissions can be summarised into the following points:

(a)       the appellant was unlawfully detained and, related to that;

(b)the evidence of the appellant’s refusal to supply blood samples was obtained as a result of a breach of s 22 of the NZBOR so that the evidence should not be admitted;

(c)      the constable did not follow the correct processes leading up to the request for blood from the appellant;

(d)in relation to the threatening charge, the appellant had not made the threat attributed to her.   In the alternative, if she did make such a threat, there was no evidence of an intention to intimidate for a particular purpose.

Decision

Was the appellant unlawfully detained?

[13]     It  is  convenient  to  first  consider  whether  the  appellant  was  unlawfully detained as the subsequent events and issues flow from that.

[14]     Given the appellant’s erratic driving, Constable Clark had good cause to

suspect the appellant had been drinking and was entitled, under s 68(1)(a) of the

Land Transport Act 1998 (the Act), to require the appellant to undergo a breath screening test without delay.  The officer was entitled to require the appellant to stop and remain stopped for that purpose while he carried out such a breath screening test pursuant to s 114(2A). The ability to require a breath screening test was:

the exercise of [a] power[s] conferred, ... on an enforcement officer by this

Act.

[15]     Section 114(2A) is subject to the provisions of s 114(4) and (5).   Neither apply.   The officer stopped behind the appellant.   The appellant did not remain stopped for any period of time, let alone 15 minutes.

[16]     The appellant failed to comply with s 114 when she got out of her car and went to run into the house where the party was taking place.  At that time Constable Clark would have been within his rights to arrest her under s 114(6).   I note that, pursuant to s 119 Constable Clark was also entitled to enter any premises which the appellant had entered for the purposes of determining whether he should exercise a power conferred on him by ss 68 or 69 or the Act.   Further, the officer had an implied licence to enter private property for any reasonable or legitimate purpose:

Transport Ministry v Payn.3

[17]     It is incorrect to suggest, as Mr Hope does, that s 114 was not engaged as the officer had not required the appellant to remain stopped.  The appellant was required to stop when the officer displayed blue and red flashing lights:  s 114(2).  It was then her duty to remain stopped under s 114(2A).  She failed to do so.

[18]     At no time was  the appellant unlawfully detained or subject to arbitrary detention in breach of s 22 of the NZBOR.   To the extent that this aspect of the appellant’s case is based on categorising the officer’s grabbing the appellant’s left arm when she was trying to evade him as an unlawful act justifying her response it is misconceived.

[19]     The officer briefly took hold of the appellant’s left arm and advised her that

he required  her to  undergo  a breath  screening  test.    The fleeting  nature of the

3      Transport Ministry v Payn [1977] 2 NZLR 50 (CA).

officer’s detention of her in that way could not be an unlawful act or unlawful detention even if, contrary to the actual position, he did not have a power of arrest at the time.  In Police v Smith;  Police v Herewini4 the majority of a full Court of the Court of Appeal confirmed that detention for the purposes of the NZBOR requires something more than a temporary restraint of liberty.  There must be a substantial, as opposed to a trivial deprivation of liberty.  As Richardson J in the majority stated:5

A  commonsense  and  practical  approach  is  called  for.  Thus  it  will  be important to consider the nature, purpose, extent, and duration of the constraint.   For   example,  the   assumption   of   control   over   a   citizen's movements is very different from a pause while particulars are provided. As in many areas of the Bill of Rights the answer may involve considerations of fact and degree. At the very least something more than a temporary check, hindrance, or intrusion on the citizen's liberty is required. ...

Constable Clark’s actions in the  present case were no more than an  attempt to temporarily  check  the  appellant  in  order  to  have  her  stop  so  the  officer  could progress the breath alcohol procedures he was entitled to require the appellant to undergo.  The officer was trying to pursue a lawful request, namely that the appellant undergo a breath screening test.

[20]     The appellant’s reaction to the officer’s action was not justified.  She turned and immediately assaulted the officer.  She struck him in the face and lashed out at him.  Her actions cannot be justified on the ground of self defence.  Apart from the fact she was breaking the law, she could not have believed that her response of hitting the constable in the face was a reasonable response in the circumstances. While the Judge found the charge of assaulting the officer with a weapon was not made out, that finding was apparently based on his conclusion that the appellant may have lacked the necessary intent to use the car keys as a weapon.  It is apparent the Judge nevertheless accepted that the appellant had struck the officer.

[21]     Mr Hope sought to rely on the case of Clarke v Police.6    In that case, the Court set aside a conviction for behaving in a disorderly manner as the appellant’s behaviour was justified because he was attempting to escape from what was held to

be an unlawful and arbitrary detention.   The facts of that case are quite different.

4      Police v Smith; Police v Herewini (1993) 11 CRNZ 78 (CA).

5      At 88.

6      Clarke v Police HC Wellington AP109/02, 4 July 2002.

Clarke was unlawfully locked inside a restaurant by the manager as there was a dispute about payment.   He then attempted to break out.   In the present case, the officer acted within his authority and in response to the appellant’s actions.

[22]     The officer took the appellant to the ground following her assault on him.  He then handcuffed her and arrested her for assaulting a police officer.   She was not unlawfully detained at this time.7   Mr Hope referred to the case of Caie v Attorney-

General,8  and submitted the failure to give reasons for arrest could invalidate the

arrest.   Both s 316(1) of the Crimes Act 1961 and s 23(1)(a) of the NZBORA confirm that everyone arrested must be informed of the reason for it.  Section 316(1) provides exceptions where it is impracticable to do so or the reason is obvious in the circumstances.  Given that the appellant had just assaulted the officer, it should have been obvious to her why she had been arrested.  However, in any event, I accept the officer’s evidence that the appellant was told she was arrested for assaulting a police officer.  Once in the police car, the officer also complied with the obligation to give the appellant her rights.  The appellant was not arbitrarily arrested and detained. The officer was acting in the course of his duties and was entitled to arrest and restrain her in the circumstances that unfolded that night.   The fact that subsequently the charge  of  assault  with  a  weapon  was  dismissed  does  not  invalidate  the  arrest. Neither of the first two grounds of appeal can succeed.

The process leading up to the refusal

[23]     Mr Hope’s principal submission under this head was that the officer had not followed  the  proper  process  by  requiring  the  appellant  to  undertake  a  breath screening test and, importantly, had not required the appellant to accompany him to the police station for the purpose of an evidential breath test.  He submitted that each step in the process was a necessary prerequisite and the failure to follow each step was fatal to the conviction on the ultimate step of refusing to provide a blood

sample.

7      Land Transport Act 1998, s 120 also provides a further power of arrest in these circumstances:

s 120(1)(b).

8      Caie v Attorney-General HC Auckland CP334-SD99, 6 April 2001.

[24]     Mr Hope referred to the Supreme Court decision of Birchler v Police9  and submitted that this case was on all fours with that decision.  However, the facts, and the issue in Birchler are quite different to the facts and issue in the present case.  Mr Birchler was involved in a car accident.  The police officer who attended the scene observed that he smelt of alcohol and was unsteady on his feet.  Unfortunately the officer had forgotten to bring any breath screening device to the accident.  Instead of calling for a device to be brought to the scene (which was close to the police station), she took Mr Birchler to the police station where he successively failed a passive breath screening test, a breath screening test, an evidential breath test and a blood test.  The constable did not require Mr Birchler to accompany her to the station, at

least not before he arrived at the station. As the Court noted:10

Curiously, after the breath-screening test the constable formally required Mr Birchler  to  accompany  her  to  the  police  station  at  which  they  were already present.

[25]     The Supreme Court reaffirmed that:11

a failure to comply with s 69(1) means that a prescribed precondition for requiring a person to accompany an officer in order to undergo an evidential breath test has not been met. There has not been compliance with s 69. Such non-compliance will provide a defence to a breath or blood-alcohol charge under  s 56  unless,  in  terms  of  s 64(2),  there  has  been  “reasonable compliance”.  There can be reasonable compliance where there has not been “strict compliance” and even, in some circumstances, where the section in question (here s 69) “has not been complied with at all”. The short point is that, if what has occurred does not pass muster as strict or reasonable compliance with s 69, there was no lawful basis for the breath-screening test and what followed thereafter. The statutory scheme provides in s 64(2) for its own limited dispensation from the very specific requirements of Part 6 and it would be quite inconsistent with s 64(2) if, notwithstanding a finding of a lack of reasonable compliance, and therefore of the existence of a defence, the Court could nevertheless proceed as if there had been simply a question of admissibility of the breath or blood test evidence obtained following the breath-screening test, and have resort to s 30 of the Evidence Act.

[26]     At [19] of its decision, the Supreme Court made the point that there is a difference between proof of compliance  with a necessary step in the  statutorily prescribed process for obtaining an evidential test, where s 64(2) may be invoked to

dispense with the need for strict compliance, and admissibility of evidence under

9      Birchler v Police [2011] 1 NZLR 169 (SC).

10 At [7].

11 At [17].

s 30 of the Evidence Act 2006.   The Supreme Court confirmed s 30 cannot apply where there has not been compliance (reasonable or otherwise) with a necessary step in the statutorily prescribed process.

[27]     In  the  present  case,  Constable  Clark  did  not  carry  out  an  initial  breath screening test and did not expressly require the appellant to accompany him to the police station for the purposes of an evidential breath or blood test.  Is his failure to do so fatal to the prosecution?

[28]     In the present case s 69(1)(d) of the Act applies to the failure to carry out a breath screening test:

(1)      An enforcement officer may require a person to accompany an enforcement officer to a place where it is likely that the person can undergo an evidential breath test or a blood test (or both) when required to do so by the officer, [if,]—

...

(d)       The person could be required to undergo a breath screening test  without  delay under  section  68  but  cannot  be tested because either a breath screening device is not readily available or for any reason a breath screening test cannot then be carried out, and there is good cause to suspect that the person has consumed drink.

(emphasis added)

[29]     There was a very good reason why a breath screening test could not be carried out at the scene.  The appellant did not stop to enable the officer to carry out such a test, despite his request.   Further, when asked to stop to enable that to be carried out, she assaulted the officer, which led to her arrest.  From that point in time she was in the officer’s custody and was being taken back to the police station to be processed on that charge.

[30]     There are a number of cases that confirm s 69(1)(d) may be applied where the appellant is required to proceed straight to an evidential breath test without the pre- cursor breath screening test:  Glynn v Auckland City Council;12    Morris v Police;13

Sloane v Haerewa.14   I note that in Glynn the appellant had run off when approached by a traffic officer.  The appellant had then been caught and arrested for failure to accompany.  The officer did not ask the appellant to undergo a breath screening test as the appellant was already arrested.  It was held that the test could not be carried out as the appellant was running off.   The requirement that “or for any reason a breath screening test cannot then be carried out” under s 69(1)(d)’s predecessor, s 58A(3)(c) of the Transport Act 1962 was made out.  In Morris the Court of Appeal approved the reasoning in Glynn.

[31]     Mr Hope is correct that at no time did the officer expressly formally require the appellant to accompany him to the police station for the purposes of an evidential breath or blood test.  However, as Constable Clark confirmed, he gave the appellant her rights, including the right to legal advice shortly after her arrest.  Further, while she was being taken back to the police station, he told her that further drink driving procedures would be followed.

[32]     The purpose of being able to formally require a suspect to accompany under s 69(1) is to provide the officer with authority to compel a suspect to return to the police station.  The significance of the requirement is that it marks the beginning of the period of detention and places an obligation on the police to provide access to legal advice.  In the present case, the appellant had been given her NZBORA rights and Evidence Act 2006 advice in the car and was again given her rights to obtain legal advice at the station.

[33]     I accept Ms Cameron’s submission that the failure to utter the words “I require you to accompany me” when the appellant was already in police custody (having been arrested) and was being taken back to the police station is a minor procedural oversight on the part of the officer and capable of being saved under

s 64(2) of the Act.   In Police v Tolich15  the Court of Appeal confirmed that the

section must be given a liberal approach.   In the present case, there can be no suggestion of prejudice to the appellant by the failure of the officer to utter the words “I require you to accompany me”. She was already being taken back to the station in

police custody and furthermore, was informed that breath and blood procedures would follow at the station.

[34]     As discussed above, the Supreme Court confirmed in Birchler that there can be reasonable compliance where there has not been strict compliance and even, in some circumstances, where the relevant section has not been complied with at all.

[35]     I also accept Ms Cameron’s submission that, unlike Birchler, this is not a case where a person was unlawfully brought into detention at the police station solely for the purpose of undertaking a breath screening test.   The appellant was already in custody, as in the cases of Quintal v Police16 and Townsend v Police.17

[36]     Once at the station, the officer followed the correct procedure by requiring the appellant to undergo an evidential breath test. She refused to do so.  The officer then  required  her  to  provide  a  blood  sample.    Although  it  was  argued  for  the appellant that she did not do so because of the officer’s actions, the evidence of the nurse supports the officer’s evidence on this issue.   While the appellant initially appeared to give consent and even allowed the nurse to put a tourniquet on her arm in preparation for the blood test, once the nurse readied the needle the appellant stood up, and acted in a manner which made it unsafe for the nurse to carry out the test.  This occurred on three occasions.  On one of those occasions the officer had to move to restrain her.  The appellant fell over a chair and onto the floor.  Mr Hope suggested there was some significance in the fact the appellant did not face any further charge arising out of that incident.  I fail to see that it has any significance at all.  It is a matter of police prosecutorial discretion.

[37]     While Mr Hope has characterised the appellant as being distressed, upset and traumatised, on the evidence of Constable Clark, supported by other witnesses, she was aggressive and uncooperative.

[38]     The appeal against conviction on the refusing to supply a blood sample must be dismissed.

The threatening charge

[39]     The  appellant  denies  making  the  threat  the  officer  complained  of.    The appellant says it is incredible to suggest that she would know the age of the officer’s child.  However, Whitianga is a small community.  The officer knew the appellant. The appellant knew Constable Clark and his wife, and knew that his wife was also a police officer.  It is reasonable to expect the appellant would know the officer had a young child.  Even if the officer was wrong, and the appellant did not go so far as to refer to his child’s age, that aspect of the threat is not a material detail.   There is evidence from other witnesses that during the course of the evening the appellant directed similar abuse and threats to the officer.  Mr Weber, a friend of the constable, said that from the time Constable Clark attempted to restrain her outside the party, the appellant changed from directing abuse at Constable Clark, to abusing his wife, and subsequently threatening his son.  Sergeant Housten gave evidence that while at the police station the appellant made threats towards the constable’s child, such as, “I’ll f’n do your kid” or words to that effect.  I find that threat complained of was made by the appellant.

[40]     Mr Hope then submitted that, even if the words were uttered, the requirement of the charge is that the threats be made with the intention to intimidate the officer and that, in this case, they were not capable of intimidating him. Section 21(1)(a) of the Summary Offences Act 1981 provides:

21       Intimidation

(1)       Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated,—

(a)      Threatens to injure that other person or any member of his or her family, or to damage any of that person's property; or

...

[41]      The Brookers commentary to the section suggests that:18

18     Sir Bruce Robertson (ed) Summary Proceedings (online looseleaf ed, Brookers) at [SO21.04].

To “intimidate” would seem to be narrower than to “frighten” suggesting an intent to cause or instil fear in order to influence conduct, or to deter the victim from some relevant action by threat or violence: R v Patrascu [[2005]

1 WLR 3344; [2004] 4 All ER 1066 (CA)]. In Huljich v Hill [[1973] 2

NZLR 279 (CA), at p 288], Turner P noted that to intimidate required the coercion of a person by means of a threat to act in a desired manner. ...

Mr Hope submitted that, given the threat was made at the time the appellant was released after being charged it cannot have been intended to influence the constable’s conduct.   However, I consider that to be too narrow an approach.   The appellant would have been aware that the officer would be involved in the prosecution of the charges against her.  It is reasonable to infer that, as well as threatening retribution for his actions, the appellant also intended to affect the constable’s state of mind in the future and to influence his future dealing with her.  Whether it had that effect or

not is irrelevant, the focus is on the intention of the appellant:  Farquhar v Police.19

[42]     In any event, if necessary, the charge could be amended20  to refer to the alternative of “frighten”, under s 21(1)(a) of the Summary Offences Act 1981, which does not require the element of intent to influence conduct.  The intent to frighten, to cause apprehension about the safety of self or another, is sufficient.

Result

[43]     The appeals against conviction on both charges are dismissed.

Venning J

19     Farquhar v Police HC Dunedin CRI-2011-412-1, 8 April 2011.

20     Summary Proceedings Act 1957, s 121(2)(c).