Urlich v Police

[2019] NZHC 457

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2017-470-000035

[2019] NZHC 457

IN THE MATTER OF

an appeal against District Court decision

BETWEEN

CORY ALEXANDER URLICH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

5 February 2019

[Further submissions received 19 and 21 February 2019]

Counsel:

T D Clee for the Appellant

A J Pollett for the Respondent

Judgment:

15 March 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 15 March 2019 at 11.30 am, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Counsel:     T D Clee, Auckland

Solicitors:    Pollett Legal (Office of the Crown Solicitor), Tauranga

URLICH v POLICE [2019] NZHC 457 [15 March 2019]

Introduction

[1]    In late 2016, Mr Urlich pleaded guilty to one charge of driving while under the influence of a controlled substance.1 Subsequently, Mr Urlich applied to set aside his guilty plea. That application was declined by the Community Magistrate,2 and the appeal from that decision was also dismissed by the District Court.3 Mr Urlich seeks leave to file a second appeal.

[2]    Mr Urlich claims that an ambulance officer breached the Health Information Privacy Code 1994 (the Code) by passing on to police her suspicion that Mr Urlich was under the influence of drugs. Mr Urlich had earlier admitted to the ambulance officer that he had consumed cannabis that day. He argues that this breach by the ambulance officer would have led to the exclusion of the evidence underpinning the charge. Mr Urlich says that his lawyer failed to advise him of this possible defence, and had he known of it, he would not have pleaded guilty.

[3]    The respondent opposes leave on the grounds that there is no question of general or public importance, and no risk of a miscarriage of justice. The respondent says that there was no breach of the Code because any disclosure fell within one of two exceptions to the general prohibition on disclosure of health information. In the absence of a breach, the respondent says there was no tenable defence available that the evidence underpinning the charge would be excluded, and no miscarriage of justice would result if the guilty plea was not set aside.

Key events

[4]    The charge arose out of a car crash on 5 April 2016. Mr Urlich was driving his car just after noon that day when he crashed into another vehicle. Police and ambulance officers were called to the scene.

[5]    The other driver involved in the crash was unhurt. Mr Urlich received attention from ambulance officers for minor injuries. One of the ambulance officers questioned

1      Land Transport Act 1988, s 57A (1).

2      Police v Urlich DC Tauranga CRI-2016-070-002921, 6 March 2017.

3      Urlich v Police [2017] NZDC 18762

Mr Urlich about his drug and alcohol use that day. He initially denied using drugs, but eventually admitted he had consumed a “bong” that morning. Mr Urlich did not want his parents to find out about his drug use.

[6]    The ambulance officer subsequently spoke to the attending police constable. She told the constable that she suspected that Mr Urlich was under the influence of drugs. The constable then carried out some roadside assessments which Mr Urlich failed. Mr Urlich was read his rights, and was required to accompany the officer to the Tauranga police station, where he failed the compulsory impairment test. A blood sample subsequently taken was found to contain evidence of a qualifying drug.

[7]    Mr Urlich was charged with driving whilst under the influence of a controlled substance, and careless use of a vehicle. At this stage, Mr Urlich was represented by Mr Whitehead, a Tauranga lawyer. Mr Whitehead formed the opinion that there was no real defence to the charge, and he advised Mr Urlich to plead guilty. Police agreed to withdraw the careless use charge, and Mr Urlich entered a plea of guilty to the driving under the influence of a controlled substance charge on 14 October 2016.

Community Magistrate’s decision

[8]    Prior to conviction being entered, Mr Urlich applied to set aside the guilty plea. By this time, he was represented by Mr Clee who argued on his behalf that the ambulance officer should not have passed on her concerns to police, and that Mr Urlich had a head injury which made his thinking clouded and misguided.

[9]    Those arguments were rejected by the Community Magistrate. She held that the ambulance officer was entitled to disclose the information to the police because it needed to be ascertained whether or not Mr Urlich was safe to drive. She also considered that what the ambulance officer said was unlikely to have had any impact on what the police would have done because it was normal for impairment tests to be carried out after a driving accident. Finally, the Magistrate referred to the evidence of the ambulance driver at the time who had assessed Mr Urlich as not having a head injury. The application to vacate the plea was declined.

District Court decision

[10]   Mr Urlich then appealed to the District Court. Judge Cameron addressed numerous appeal points advanced on behalf of Mr Urlich. On the key issue, he found that Mr Urlich did not have a tenable defence to the charge based on a breach of the Code. That was because, in the Judge’s view, it was reasonable for the ambulance officer to be concerned about Mr Urlich driving again after he left the scene. The ambulance officer’s disclosure fell within one of the exceptions in the Code and there was no breach.4

[11]   The Judge went on to consider, in the alternative, whether any breach would have resulted in the exclusion of evidence.  He undertook the balancing exercise in   s 30(2) of the Evidence Act 2006 and concluded that exclusion would not be proportionate to the extent of any impropriety (if proved).5

[12]   Accordingly, the Judge was not satisfied that Mr Urlich had a tenable defence, and there was no miscarriage of justice. The appeal was dismissed.

Approach to the leave application

[13]   The appeal from the refusal to set aside the guilty plea is advanced as an appeal on a question of law. Those appeals are governed by sub-part 8 of part 6 of the Criminal Procedure Act 2011.

[14]   As this is a second appeal, Mr Urlich requires the leave of this Court. This Court must not grant leave unless satisfied that the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.6

[15]   In McAllister v R, the Court of Appeal said that to meet the first limb of the leave requirement, it will be necessary to show that the proposed appeal raises an important question of law that has broad application beyond the circumstances of a

4      At [11]–[14].

5      At [15]–[26].

6      Criminal Procedure Act 2011, s 303(2).

particular case.7 As to the “miscarriage of justice” limb, the Court of Appeal said that there are various ways of characterising the approach to be taken. For example, if there is a reasonably available argument that the court below is in error, that might be sufficient to meet the threshold. However, not every error will give rise to a miscarriage.8

[16]   The principles applicable to appeals against conviction following the entry of a guilty plea are relevant. There are four broad categories of case where a miscarriage of justice may arise notwithstanding a guilty plea. Mr Urlich relies on the fourth category, that of trial counsel error. That category applies where there has been trial counsel error inducing a decision by a defendant to enter a plea of guilty on the mistaken belief or assumption that no tenable defence existed or could be advanced.9

[17]   Mr Urlich says he had a tenable defence that there was a breach of the Code rendering the evidence “improperly obtained” under s 30(5) of the Evidence Act.   Mr Urlich says that it is arguable that this “improperly obtained” evidence would be excluded following the balancing exercise required by s 30(2) of that Act.

The Code

[18]   Mr Urlich’s application for leave turns on establishing that there was breach of the Code.

[19]   The Code is promulgated under s 46 of the Privacy Act 1993. It applies to health agencies and aims to ensure that private health information about individuals is protected and only used for lawful purposes.

[20]   The Code sets out 12 rules relating to the collection, retention and disclosure of health information. Those rules replace, and are deemed to have the same force as, the information privacy principles set out in s 6 of the Privacy Act.10 The Code mirrors

7      McAllister v R [2014] NZCA 175 at [36].

8      At [37]–[38].

9      R v Merrilees [2009] NZCA 59 at [34].

10     Privacy Act 1993, s 53.

those Privacy Act principles. This means that decisions on the statutory principles will be relevant to the interpretation of those under the Code.

[21]   Rule 11 of the Code is at issue in this case. That rule sets out limits on the disclosure of health information. Disclosure of health information by a health agency is prohibited except where the agency believes on reasonable grounds that certain listed circumstances exist.11 Those circumstances include a belief that disclosure has been authorised by or on behalf of the individual concerned as set out in r 11(1)(b).

[22]   Rule 11(2) exempts the health agency from obtaining authorisation from the individual concerned in certain circumstances. There are two circumstances in that sub-rule relevant to this case. They provide as follows:

(2)        Compliance with paragraph 1(b) is not necessary if the health agency believes on reasonable grounds that it is either not desirable or not practicable to obtain authorisation from the individual concerned and:

…

(d)that the disclosure of the information is necessary to prevent or lessen a serious threat to:

(i)public health or public safety; or

(ii)the life or health of the individual concerned or another individual:

…

(i)that non-compliance is necessary:

(i)to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution and punishment of offences;

[23]   The requirement in r 11(2) for belief on reasonable grounds imports both subjective and objective elements – an actual belief (subjective), and reasonable grounds (objective) for that belief.

[24]   The exception in r 11(2)(d) refers to a belief that disclosure is necessary to prevent or lessen a “serious threat” to public health or safety, or the life or health of

11     Health Information Privacy Code, r 11(1).

the individual concerned or another individual. This exception mirrors principle 11(f) of the Privacy Act except that the latter refers specifically to a “serious threat” as defined under the Act. That definition requires regard to be had to the following three factors:

(a)the likelihood of the threat being realised;

(b)the severity of the consequences if the threat is realised; and

(c)the time at which the threat may be realised.

[25]   An earlier version of this sub-rule required there to be a serious and “imminent” threat. However, the imminence requirement was removed from the rule by an amendment which came into force on 30 April 2013. That change followed an amendment to the equivalent principle in the Privacy Act made in the same year. The Law Commission considered the word “imminent” to be too strong and that a threat to health and safety could still justify disclosing information, even though the threat might not be likely to eventuate instantly.12

[26]   Accordingly, the Code in force at the time of the disclosure in Mr Urlich’s case only required belief in a serious threat, and not an imminent one.

[27]   The exception in r 11(2)(i)(i) requires a belief that non-compliance is necessary to avoid prejudice to the maintenance of the law by any “public sector agency”, including the prevention, detection, investigation, prosecution and punishment of offences. A “public sector agency” is defined to include police.

[28]   Rule 11(2)(i)(i) mirrors principle 11(e)(i) of the Privacy Act. The scope of the exemption in principle 11(e)(i) was considered by the Supreme Court in R v Alsford.13 One of the issues in that case was whether the provision of power consumption data by electricity supply companies to police was in breach of the Privacy Act.

12     Law Commission Review of the Privacy Act 1993 Stage 4 (Wellington: Law Commission Report, 2011) at 12.

13     R v Alsford [2017] NZSC 42.

[29]   A majority of the Supreme Court observed that the authorised purposes in principle 11(e)(i) were broadly stated, and that was relevant to the nature of the reasonable grounds test that the holder of the information was required to meet to justify disclosure. It held that the threshold to establish belief on reasonable grounds that non-compliance is necessary under this exception is a relatively low one.14

[30]   Elias CJ dissented on that issue, finding that there was no occasion to read down the requirements of the exception in (e)(i). The Chief Justice held that what is “necessary” to avoid prejudice to the maintenance of the law is a contextual assessment, with the Privacy Act, and other legislation, forming part of the general context.15

[31]   The final point to note about the scheme of r 11 is that where disclosure is found to be necessary under r 11(2), then such disclosure is only permitted to the extent necessary for the particular purpose.16

A matter of general or public importance?

[32]   Mr Urlich says the proposed appeal meets the first threshold question for leave as disclosure of drug use by an ambulance officer, without a legal basis, impacts on the expectations of trust that the public has under the Code.

[33]   For reasons which I expand on below, I am not persuaded that the proposed appeal raises a matter of general or public importance. Rather, it consists of an assessment of the disclosure made in Mr Urlich’s case to ascertain whether there was a breach of the Code. Although the Code is undoubtedly important, the question in this case does not have broader application beyond Mr Urlich’s particular circumstances.

[34]   The first limb of the threshold for leave to appeal is not met in those circumstances.

14 At [34].

15 At [141].

16     Health Information Privacy Code, r 11(3).

A miscarriage of justice?

[35]   Mr Urlich submits that a miscarriage of justice may have occurred or may occur unless the appeal is heard. That relies on him showing that there was a tenable defence based on a breach of the Code leading to the exclusion of evidence underpinning the charge.

An evidential error?

[36]   The starting point is the evidence of the ambulance officer regarding her belief of the circumstances that existed at the time. There are three statements in writing by the ambulance officer before the Court:

(a)The first is contained in a letter dated 14 September 2016. That letter responded to a complaint made by Mr Urlich regarding the treatment he received from the ambulance officers that night.

(b)The  second  is  contained  in  a  formal  statement  to  police  dated  17 January 2017.

(c)The third is contained in an affidavit by the ambulance officer sworn on 17 March 2017.

[37]   Mr Clee, for Mr Urlich, challenged the Judge’s acceptance of the ambulance officer’s evidence. He says there are reliability issues arising out of the late disclosure of the police statement, the fact that the statement was taken by the constable who attended the scene, and differences between the statement and the affidavit. In light of those issues, Mr Clee says that the Judge should have granted the appeal so that the issues could be dealt with at trial in the District Court.

[38]   I am satisfied that the Judge did not err in relying on the statements of the ambulance officer for the following reasons:

(a)First, although it appears that there were miscommunications and misunderstandings relating to the disclosure process, none of those raise tenable reliability issues with the ambulance officer’s account.

(b)Second, although it is less than ideal, in the particular circumstances of this case, there is nothing to suggest that the ambulance officer’s statement was “tainted” because it was taken by the constable who attended the scene.

(c)Third, any differences between the officer’s formal statement to police and her affidavit are immaterial to the assessment of a tenable defence based on breach of the Code.

[39]   Accordingly, I am not persuaded that the Judge erred in relying on the ambulance officer’s statements in dismissing the appeal.

Breach of the Code?

[40]   The substance of Mr Urlich’s proposed appeal turns on an alleged breach of the Code. The pertinent parts of the ambulance officer’s evidence provide as follows:

I found the patient to be vague and orientated speaking full sentences and began to recall what happened regarding the accident and prior events. Corey said “I just didn’t see him, I’m hungry.’ Tests for concussion were completed by all three of us. He was clear. The patient did not complain of any neck pain, dizziness or headache. He was fine.

The student and I noticed that Corey was uncomfortable and anxious about being away from his bag. The patient became more nervous and then jittery in his seat when questioned about drug and alcohol use that day.

The patient did say he had, but not that day. He was concerned about his parents knowing and then became emotionally upset, quietly tearful.

Corey stated to me that he did not want his parents to find out about his drug use. I asked him had he used that day, and he said ‘a bong.’

Corey also said earlier that he’d had a bad day at uni and just wanted to go home.

So he was in a rush, hungry, anxious, but not sweaty or clammy, nervous, flustered, just wanted to go home. His eyes were glazed. None being related to concussion. He was continuously asking for his bag and didn’t settle down

until we got his bag outside the ambulance. He was then over-protective of his bag. Also he admitted taking drugs.

His father had come into the ambulance and our interview with Corey was pretty much over.

As a result of all these things we had an issue with public safety and this happening again and this being the cause or contributory factor to the crash.

So that’s when I wanted to make you aware so I told you that we suspected he could be under the influence of drugs.

I couldn’t not tell you as things could have been a lot worse, i.e., the result of the crash and the risk of him driving again. But I couldn’t tell you why we suspected he was under the influence of drugs, because it would breach the privacy act.

[41]   It was common ground that the ambulance officer’s disclosure amounted to disclosure of “health information” (as that term is defined in the Code) without     Mr Urlich’s consent. I proceed on that basis.

[42]   Judge Cameron considered the officer’s statement sufficient to disclose the existence of such a belief that it was neither desirable nor practicable to obtain      Mr Urlich’s consent to disclose the information. That particular finding was not challenged by Mr Urlich. In any event, I agree with the Judge’s conclusion.

[43]   More relevantly, the officer’s statement shows that she had a belief that disclosure was necessary to prevent or lessen the risk that an accident might happen again. There was a risk to public safety, to Mr Urlich, and to other individuals if disclosure was not made and police did not take steps to lessen that threat. That is sufficient to show a subjective belief in terms of r 11(d) in my view.

[44]   Mr Clee challenges the reasonableness of the grounds for such a belief. He submits that there was no risk that Mr Urlich would drive under the influence of drugs that afternoon because Mr Urlich was being taken home by his parents and was to remain in their care. That, he suggests, relieves any suggestion of a “serious threat” to public safety necessitating disclosure.

[45]   It is certainly true that there was no immediate threat that Mr Urlich would get back in his car and drive away while still under the influence of cannabis. It appears that the car was being towed from the scene, and Mr Urlich was being taken home by

his parents. But, as noted above, the requirement that the risk be “imminent” was removed in 2013, and it was not in the Code at the time of the disclosure in this case.

[46]   The fact that the ambulance officer knew that Mr Urlich was going to be taken home by his parents did not, in and of itself, relieve the risk that he might drive again later that day while still under the influence of a controlled substance. Mr Urlich had just been involved in a car crash. He had admitted to consuming drugs and driving that day. He had also admitted taking drugs on previous occasions. In the absence of any other explanation, there were strong grounds to suggest that Mr Urlich’s drug- taking was the cause of, or at least a contributing factor to, the crash. There was a real prospect that Mr Urlich may drive again while under the influence of drugs, with severe consequences to either himself or other members of the public if he did so. Disclosure to the police was necessary in those circumstances to prevent another incident which jeopardised public safety.

[47]   Finally, I record for completeness that it cannot be seriously argued that the ambulance officer’s disclosure was more than was necessary to prevent the serious threat from eventuating. The  officer  framed  her  disclosure  as  a  suspicion  that Mr Urlich was under the influence of a controlled substance. She did not disclose why she had formed that suspicion. In particular, she did not reveal what he had told her about consuming cannabis that day. The disclosure she made to police was the minimum required to enable the police to take appropriate action to lessen or prevent the risk of future harm.

[48]   It follows that I do not consider Mr Urlich had a tenable defence that the disclosure did not fall within r 11(2)(d) and was therefore a breach of the Code. Those conclusions make it unnecessary to deal with the (i)(i) exception. In any event, that exception was not advanced in the District Court, and so was not addressed in the Judge’s decision. I address it no further.

[49]   In summary, I do not consider the Judge erred in finding that Mr Urlich did not have a tenable defence based on the Code being breached. There is no risk of a miscarriage of justice in those circumstances.

Exclusion of evidence?

[50]   Even if Mr Urlich could show that there was an arguable defence based on breach of the Code, it does not follow that such a breach would result in evidence being excluded.

[51]   Mr Urlich would have to show that breach of the Code rendered the evidence “improperly obtained” within the meaning of s 30(5) of the Evidence Act. In R v Alsford, the Supreme Court expressed some doubt that breach of the information privacy principles under the Act (and, by extension, the rules in the Code) would constitute breach of an enactment for the purposes of s 30(5)(a).17 Further, the majority found that whether breach would render the evidence “unfairly obtained” for the purposes of s 30(5)(c) would also depend on the particular circumstances of the breach.18

[52]   Even if Mr Urlich could show a tenable defence that the evidence was improperly obtained under s 30(5), he would still need to persuade a Judge that, after conducting the s 30(2) balancing exercise, exclusion of evidence was proportionate to any impropriety. Judge Cameron undertook the balancing test by reference to s 30(3) of the Act. Although I would assess some of the individual factors differently to the Judge, I concur with his conclusion that excluding the evidence underpinning the charge would be disproportionate to the extent of any impropriety (if proved).

[53]   Accordingly, even if Mr Urlich could show an arguable defence based on breach of the Code, it is not tenable to suggest that this would lead to exclusion of evidence.

[54]   It follows that Mr Urlich has failed to establish the miscarriage of justice limb of the threshold for leave to appeal. Neither limb having been established, the application must be dismissed.

17 At [39]–[40]. The Chief Justice dissented on this point, stating her view that evidence obtained by police through breach of the privacy principles is obtained in breach of an enactment at [171].

18 At [39].

Result

[55]The application for leave to appeal is dismissed.

Edwards J