W v Police HC Auckland Cri-2008-404-247

[2008] NZHC 1876

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-404-000247

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 November 2008

Appearances: Z Mohamed for Appellant

P Singh for Respondent

Judgment:      28 November 2008

RESERVED JUDGMENT OF RANDERSON J

This judgment was delivered by me on 28 November 2008

At 3.30 pm, pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Solicitors:           Z Mohamed, PO Box 39119, Manukau 2145, Auckland

Meredith Connell, PO Box 2213, Shortland Street, Auckland 1140

W V  POLICE HC AK CRI-2008-404-000247  28 November 2008

Introduction

[1]      On 15 August 2008 the appellant was convicted in the District Court before Judge Aitken on one charge of driving with excess blood alcohol contrary to s 56(2) Land Transport Act 1988.  He was subsequently fined $475.00 and ordered to pay fees and costs.  He was disqualified from driving for a period of six months.

[2]      He now appeals against conviction on the sole ground that his rights under s 23(1)(b) New Zealand Bill of Rights Act 1990 were breached in that the police did not adequately facilitate his right to consult and instruct a lawyer.

The Facts

[3]      The facts may be briefly stated.   On 2 November 2007 at approximately

10.20 pm, the appellant was stopped for speeding and admitted the recent consumption of alcohol.  He failed a breath screening test and agreed to accompany the arresting officer to the police station for an evidential breath test.   He was advised of his rights under s 23(1)(b) at that point and those rights were repeated to him upon arrival at the police station at 10.25 pm.   At that stage, the appellant declined the opportunity to consult a lawyer.

[4]      He then underwent an evidential breath test which showed a level of 490 micrograms of alcohol per litre of breath.  Shortly afterwards he was advised once more of his rights under s 23(1)(b) but again declined the opportunity to consult a lawyer.

[5]      At 10.54 pm, the appellant was formally advised of the positive evidential breath test and of his right to request a blood sample within a period of ten minutes. That period concluded at 11.06 pm.

[6]      It is common ground that, at the conclusion of the ten minute period, the appellant was undecided as to whether to request a blood sample.   A further opportunity was then given to the appellant to speak to a lawyer if he wished to do so.

[7]      According to the evidence of the police officer, the appellant spoke to a lawyer, a Ms M Kennedy, at 11.15 pm.  After speaking to her in private for a few minutes the appellant came out of the room where he had been speaking to Ms Kennedy and stated that the telephone had “gone dead”.   The police officer then went back into the room.  His evidence was that he “recalled” Ms Kennedy on the telephone and spoke to her.  She told him that the telephone had not “gone dead”.  In fact, she had given advice to the appellant but she had put the phone down because he had been “whinging on” or “waffling on”.  He added that she had told him she could not give him any more advice than she had already given.

[8]      The police officer’s evidence was given in his evidence in chief (without any apparent objection).   The police officer was asked in cross-examination about the contents of a checklist which he had made at the time.   In re-examination, the checklist was produced as an exhibit.  It contained a record of the events relating to the obtaining of legal advice.  The content of that record was read into the evidence.

[9]      The appellant gave evidence on this topic.  In answer to a question as to what had happened after the 10 minute period had expired, the following is recorded in the notes of evidence:

A.    I spoke to Mary Kennedy, the lawyer that I chose from a list of lawyers.

She only advised me one thing, and that was to go back to the police officer and request to take the evidential breath test again, and she said

that the result of 490 was very marginally –

Q.    No, hold on.  I don’t think you are allowed to go into the conversation between you and the lawyer.

A.    Right.  Okay.

Q.    As a result of the discussion between you and the lawyer, did you speak to the constable?

A.    Yes I did.  I asked to take the breath test again. Q.     And did the constable agree to that?

A.    No.  And I also said that she had hung up on me as well, on the phone.

THE COURT:

Sorry, you asked to take the breath test again.  What was the next question, Mr Mohamed?   Was there any response from that?   Was that what your question was?

EXAMINATION CONTINUES: MR MOHAMED

Q.    My question was, did the constable agree to the second test, the second time?

A    No.

Q.   And how did your conversation end with Mary Kennedy, the lawyer?

A.    I asked her whether there was anything else I should be asking or doing and she basically hung up on me.

Q.    And after that, did you speak with the constable again, after you came out of your phone call?

A.    Yeah, that was when I asked to take the breath test again. Q.  And what happened after that, when he said no?

A.   He went and spoke to Mary Kennedy, the lawyer, himself.

Q.    Were you in the booth to be able to hear the conversation between you and Mary Kennedy?

A.   Sorry, could you repeat the question?

Q.    Were you in the booth to be able to listen to what the constable was saying?

A.   No, no, I wasn’t.

Q.    So when the constable came out of the booth, did he speak with you? A.        Yes.

Q.   So what did he say?

A.   Yes.    He  said  that  Mary  wouldn’t  speak  to  me,  because  I’d  been

“waffling” I think was the word used.

Q.   And what happened after that?

A.    I asked to speak to another lawyer at that point? Q.    What did the constable say?

A.   No.

[10]     It appears from the transcript of evidence, and Mr Mohamed on behalf of the appellant confirms, that he did not anticipate the appellant giving evidence about his conversation with Ms Kennedy.  It does not appear that any objection to the evidence was taken on behalf of the prosecutor.

[11]     To complete the narrative, the appellant requested a blood test at 11.29 pm after the discussions about legal advice and the specimen was taken at 11.57 pm. Upon analysis, this showed a level of 95 milligrams of alcohol per 100 millilitres of blood.

The Judge’s findings

[12]     After reciting the relevant evidence and submissions the Judge concluded:

[50]   The obligation on the police officer was to facilitate the defendant’s right to consult a lawyer.  I am in no doubt that this was done: not only by the provision of the list of duty lawyers and a private telephone, but by making specific inquiry when told by the defendant that the line had “gone dead” – evidence not challenged by the defendant.  It is relevant, in my view, that that was the defendant’s immediate response – not a complaint of no or inadequate  advice,  but  of,  at  best,  advice  cut  short.    The  officer  quite properly inquired into this and satisfied himself that that was not the case.

[51]  Again, the facts here are distinguishable from the case upon which the defendant  relies  –  King  v  Police  (High  Court  Auckland,  AP  78/94, Blanchard J, 19 May 1994) – where the defendant had clearly not completed his telephone call when requested to elect.   In the matter before me, the officer satisfied himself that the defendant had been appraised of his rights. It is difficult to see what more the police could have done.

[52]  I am satisfied that the defendant was given the opportunity to take legal advice and that the officer, having satisfied himself of this, quite properly then required the defendant to elect whether to request a blood specimen.

[13]     The Judge then added:

[55]  Finally, for the reasons given earlier (particularly para [29]) I accept and prefer the evidence of Constable Langley and find that the defendant did not specifically request to speak to another lawyer.  But even if he did, given the steps taken by the officer by that point, he would have been quite proper to decline. The defendant had exercised the right available to him.

[14]     It  was  suggested  on  behalf  of  the  appellant  in  the  court  below  that

Ms Kennedy had erroneously advised the appellant to request a second breath test

(which  was  refused  since  it  is  accepted  there  is  no  right  to  request  a  second evidential breath test).  This issue was not pursued on appeal but the finding of the Judge on the issue suggests that she may have taken into account the constable’s evidence as to what he was told by Ms Kennedy.  The Judge said:

[54]  Accordingly, I have considered the defendant’s claim that he was given erroneous advice.   This is effectively at odds with what the constable has [sic]  told,  and  the  lawyer  was  not  called  to  give  evidence.    I  am  not persuaded that this is in fact what happened – the advice may have included some erroneous information but the request to consult on the issue of a blood specimen  is  a  fairly  routine  request  of  a  duty  lawyer.     Neither  the defendant’s circumstances, nor the hour the advice was sought, suggest that the advice was likely to have been so woefully inadequate to negate the right guaranteed to this defendant.

The Appellant’s Submissions

[15]     Mr Mohamed’s submission was that, in the circumstances of this case, the facilitation of the right under s 23(1)(b) NZBORA (to consult and instruct a lawyer) required the police officer to arrange a call to another lawyer.  The refusal to do so in the circumstances, where there was evidence that the telephone call had been cut short, amounted to a breach of the right under s 23(1)(b).   It followed that the evidence of the subsequent blood test should not be admitted.

[16]     Mr Mohamed also submitted that it was improper for the police officer to inquire of Ms Kennedy as to the nature of the advice given.  In his submission, his inquiry (at the most) should have been limited to establishing whether the line had “gone dead”.

[17]     Mr Mohamed relied upon an oral judgment of Blanchard J in King v Police HC AK AP 78/94 19 May 1994 but I am satisfied that the decision is distinguishable on the facts.  In King, there was uncontested evidence from the appellant that he was unsuccessful in obtaining any coherent or proper legal advice.  His attempts to do so were interrupted by the police constable when he still had the telephone in his hand. The appellant’s evidence was that he felt obliged to discontinue his efforts to get legal advice and to undergo the breath test immediately.

Respondent’s Submissions

[18]     Ms Singh for the respondent referred me to the relevant authorities on the facilitation  of  s  23(1)(b)  rights  including  Ministry  of  Transport  v  Noort  [1992]

3 NZLR 260 (CA) at 274; R  v  Mallinson  [1993] 1 NZLR 528 (CA) at 530; Steel v Police (1994) 11 CRNZ 38 at 391; Rae v Police [2000] 3 NZLR 452 at [57] to [59]; and R v Alo [2008] 1 NZLR 168 (SC).

[19]     The key points arising from these authorities are:

•   The  right  to  counsel  enures  throughout  the  breath  and/or  blood  testing procedures.

•   So too the obligation of the enforcement officer to facilitate the exercise of the right.

•   What is required at any particular point will depend upon the circumstances at the time including the requirements of the legislation.  No hard and fast rules can be made.

•   A fair opportunity is required for the detained person to consider and decide whether or not to exercise the right to request a blood test.

•   The detained person is to be afforded the facility to exercise the right to legal advice in a real and practical way once he or she indicates a wish to do so. Facilitation  includes  supplying  a  telephone  in  circumstances  of  reasonable privacy and making available a list of lawyers willing to give advice.

•   In accordance with the Practice Note issued by the Chief Justice on 16 July 2007, any person should also be advised that the right to legal advice may be exercised without charge under the Police Detention Legal Assistance Scheme.

[20]     Counsel also referred me to the decision of Cooper J in Brosnahan v Police

[2008] DCR 335 in which it was concluded at [35]:

... there cannot be a hard and fast rule that the suspect has only one right to seek advice during the evidential breath testing phase of the process. However, where the suspect has been given and exercised the right to seek legal advice, it seems to me that unless there has been some material change in circumstances or some event which plainly presents as a basis for seeking further advice, the police will not err if they do not offer an opportunity to take further legal advice.

[21]     I was informed that Cooper J granted leave to appeal this decision on 12 June

2008 in relation to the conclusion in the passage identified.  The appeal has not yet been heard.

[22]     Ms Singh submitted first that the appellant was not detained at the material time so that s 23(1)(d) was not applicable.   It was submitted that the ten minute period had come to an end at 11.06 pm and that, thereafter, the appellant was free to leave.  It was submitted that he had chosen not to do so.  All that remained was for the police to provide him in due course with a summons under s 69 Land Transport Act.

[23]     I do not accept this submission.  The issue of detention was not raised in the lower Court and there was no specific evidence on the point.  I am satisfied that the proper inference to draw in the circumstances is that the police officer had, by his conduct, led the appellant to believe that the opportunity was still open to him to request a blood sample should he see fit to do so after obtaining legal advice.  It is reasonable to infer that the appellant reasonably believed that the process of breath and/or blood testing was not complete.   There  is  no  evidence  that  he  regarded himself as free to leave or that the police led him to believe that was the case.

[24]     Ms Singh submitted alternatively that if s 23(1)(b) applied, there was no breach of the section and the evidence of the blood test results was not “improperly obtained” for the purposes of s 30 Evidence Act 2006.  Ms Singh submitted that, in the absence of evidence from Ms Kennedy (who was not called by either side) it was incumbent on the appellant to establish an evidential foundation for the proposition that he had not been afforded the ability to exercise his right to legal advice.  On the facts, he had received legal advice.   On the basis of the police officer’s evidence, there was no further advice that Ms Kennedy could have given.

[25]     Ms Singh also submitted that, even if the evidence were improperly obtained it was admissible as a matter of discretion under s 30(2) Evidence Act.

Assessment

[26]     For a number of reasons, the evidence on the point at issue in this appeal is in an unsatisfactory state.  First, there is the issue of hearsay.  The prosecution should not have led the evidence of the police officer’s conversation with Ms Kennedy without complying with s 22 Evidence Act.  The evidence given was clearly hearsay to the extent that it was offered in proof of the truth of the contents of the conversation.  As such, the prosecution ought to have given a hearsay notice under s 22(3).   That was not done.   It would have been open for the appellant to have waived the requirement for a notice or the Judge could have dispensed with the requirement under s 22(5).   No attention was given to the issue of waiver or dispensation by counsel or the Judge.

[27]     Then,  when  it  came  to  the  appellant’s  evidence  he  also  offered  hearsay evidence in the form of his discussion with Ms Kennedy.  Again, the issue of waiver or dispensation was not dealt with.

[28]     Secondly, potential issues of legal professional privilege arose under s 54

Evidence Act.    The privilege belonged  to  the  appellant  and  it  was  not  for  the prosecution to offer evidence which, in the absence of waiver, may have infringed legal professional privilege without raising the issue with the Judge.   Again, this issue does not appear to have been dealt with.

[29]     When the appellant gave evidence, it is likely that he waived privilege under s 65 Evidence Act by disclosing the nature of the legal advice he had received. Having done so, it was open for the prosecution to cross-examine on that subject but, again, the issue was not dealt with.

[30]     It may be that if each side had given a hearsay notice in relation to the issue of legal advice, Ms Kennedy could have been called by the prosecution either as part

of its case or in rebuttal under s 98 Evidence Act, subject of course to any issue of legal professional privilege.

[31]     The Judge’s conclusions on the key issue of whether a proper opportunity was given to obtain legal advice depended (at least in part) upon the Judge’s acceptance of the hearsay evidence from the police officer that Ms Kennedy said she had sufficient time to give the appellant all necessary advice and the reasons she gave for “putting the phone down”.

[32]     The Judge noted that this evidence was not challenged but, in the end, it is the Judge’s responsibility to ensure that evidence is properly admissible even if not challenged.

[33]     As well, the Judge appears to have relied on evidence of the content of the conversation the police officer had with Ms Kennedy.  This included material which was  at  least  arguably the  subject  of  legal  professional  privilege  unless  waived. Again no ruling was made on the admissibility of this evidence.

[34]     This Court is left in the position where a determination on the matter at issue cannot be made until these evidential issues are clarified.

[35]     In the very unusual circumstances of this case, I intend to allow the appeal. However, given that both the prosecution and the appellant have been at fault in relation to the evidence issues, I intend to order a rehearing limited to the issue of whether the police reasonably facilitated the appellant’s right to legal advice under s 23(1)(b) NZBORA after the expiry of the ten minute waiting period following advice of the positive evidential breath test.

[36]     Despite Mr Mohamed’s submission  to  the contrary,  the hearing must  be before Judge Aitken since the rehearing will be limited to a specific issue.  Leaving aside the issue identified, the hearing is otherwise to proceed on the basis of the notes  of  evidence  and  exhibits  already  produced  which  may  not  be  further challenged.

[37]     Subject to the direction of the Judge, the issues the parties will need to consider include:

a)        Whether legal professional privilege is or has been waived in relation to evidence of Ms Kennedy’s advice.

b)Whether and, if so, at what point and by whom, Ms Kennedy may be called to give evidence.

c)        Whether,  if  evidence  from  Ms  Kennedy  is  available,  it  may  be introduced by consent in the form of a brief or affidavit.

d)       If hearsay evidence is to be given, whether a hearsay notice under s 22

Evidence Act is to be given by either or both sides or whether the giving of the notice may be waived or dispensed with.

e)        Subject to s 22, whether any hearsay evidence is admissible under s 18 Evidence Act.

[38]     I also record my finding that the conclusion reached by the Judge that the appellant  did  not  request  the  opportunity to  speak  to  a  second  lawyer  was  not reasonably open on the evidence  despite the  Judge’s  general  preference  for  the evidence of the police officer.  The appellant gave evidence of the request and the police officer fairly accepted that he may have made such a request.  He accepted he was not in a position to challenge the appellant’s evidence on this point.  The officer also fairly accepted that if such a request had been made, he would have declined it.

[39]     Nothing  in  this  judgment  should  be  read  as  giving  encouragement  to defendants in breath or blood alcohol cases to raise issues about the nature, adequacy or correctness of legal advice received.  There may be unusual cases where the right to consult and instruct a lawyer is effectively negated or so limited as not to amount to a real opportunity to obtain such advice.  However, as a general rule, where there is a right to legal advice and the defendant has availed himself or herself of the opportunity to take that advice, it will not be incumbent upon or appropriate for the

Court to inquire into the nature, adequacy and correctness of the advice.  Issues of legal professional privilege will arise as well as privacy issues: Police v Kohler [1993] 3 NZLR 129 (CA).

[40]     Nor is it appropriate for a police officer to inquire about the nature of legal advice given.  On the other hand, there could be no criticism of an officer satisfying himself or herself that a connection to the lawyer by telephone has in fact been made if an issue arises in that respect.  That may be necessary as a part of the duty on the police to ensure a fair opportunity to obtain legal advice is given when it is sought.

Result

[41]     The appeal is allowed.  A rehearing is directed limited to the issue identified in this judgment.   I also direct that the exhibits and relevant parts of the District

Court file be returned to that Court.

A P Randerson, J Chief High Court Judge