W v Police HC Nelson Cri-2010-442-14
[2010] NZHC 1474
•20 August 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2010-442-000014
W
v
NEW ZEALAND POLICE
Hearing: 19 August 2010
Appearances: Mr Holloway for the appellant
Ms Bonifant for the Respondent
Judgment: 20 August 2010
JUDGMENT OF MALLON J
[1] Ms W is 17 years old. In the early hours of the morning she was driving her friend and herself home from a party they had attended at another friend’s house. Ms W had drunk two and a half cans of a pre-mix Vodka drink at the party. She did not think that she would be over the legal alcohol limit and so was not concerned when she saw a check point ahead and drove into it. At the check point she was asked by a police officer to undergo a breath screening test, which she did. The device recorded her breath as “fail youth”.
[2] At this point Ms W became upset and wanted to call her mother. Thereafter, as the officer went about the ensuing procedures, which included advising Ms W of her right to speak to a lawyer free of charge, Ms W was “teary” and she repeated her desire to speak to her mother. Ms W had never been in this situation. The reason she wanted to speak to her mother was so
that she could ask her mother what she should do because she did not know what a
W V NEW ZEALAND POLICE HC NEL CRI-2010-442-000014 20 August 2010
lawyer could do for her. Without being given the opportunity to speak to her mother, Ms W declined the opportunity to speak to a lawyer, gave an evidential breath test which gave a result above the legal limit for a driver of her age, and declined a blood test.
[3] The issue on this appeal from her conviction on driving with excess breath alcohol is whether Ms W ’s “right to consult and instruct a lawyer without delay” and to “be informed of that right” (s 23(1)(b) of the Bill of Rights Act 1993) was breached. The submission for Ms W is not that she should have been permitted to call her mother. Rather it is that she did not understand her right to speak to a lawyer and that the police officer ought to have done more to ensure that she understood the right, especially if she was not to be permitted to call her mother, before deciding whether to exercise her right to speak to a lawyer.
[4] Ms W ’s evidence was as follows:
a) After the breath screening at the road-side, she asked if she could get her cell phone in her car so that she could call her mother. The officer said she could. She could not find the cell phone quickly and the officer said that she would be able to call her mother from the police station.
b)While travelling with her friend in the officer’s car to the police station, Ms W was informed of her right to consult and instruct a lawyer without delay and in private and that the right could be exercised free of charge. Ms W said that she replied that she did not know what to do and that she wanted to call her mother so that she could tell her what to do. She said that she was very upset and the officer told her not to cry, to relax, that she would be alright and that it would not take very long.
c) At the police station the officer read out to her the Police “Advice pursuant to the New Zealand Bill of Rights 1990” form, which sets out in writing the right under s 23(1)(b). He put the form in front of
her and said that she could read it. She said that she was upset and was not paying full attention when he read the form to her and that she did not read it properly. Nevertheless she signed the form.
d)Ms W accepted that the officer was quite clear that she could speak to a lawyer but at this stage she was thinking “I didn’t know whether a lawyer would help me and I wanted someone to tell me, I wanted someone, I wanted someone just to say, ‘You should get a lawyer,’ I needed some advice” and she knew her parents would be able to help her with this.
e) Ms W underwent the evidential breath test which gave a reading above the legal limit and after that she asked to call her mother. The officer told her about her right to request a blood test and that she had
10 minutes to decide (and she signed a form acknowledging this advice). Ms W alleges that the officer said that she could call her mother after they had finished or he could drop her home.
f) Ms W went to the bathroom with a woman officer who told her that she would be all right and not to be upset. After that she waited out the 10 minutes in a police cell.
g) After she declined the blood test the officer asked her if she wanted to call her parents to pick her up or whether she would like him to drop her off. Ms W said that there was no point in her parents coming at that stage and the officer could drop her home.
[5] Counsel for Ms W submits that taking into account Ms W ’s age, her inexperience, her upset, her understanding at the roadside that she was going to be permitted to call her mother, her multiple requests to call her mother, and her statements that she did not know what a lawyer could do for her, the District Court Judge was in error in finding that the Police had proven that she had understood her right. He says that the situation was similar to that which arose in Ryan v Ministry of Transport (1993) 10 CRNZ 318 (HC) where an appeal against conviction was
successful because it had not been proven that the appellant understood his right. He also relies on the dicta in Litten v Police (1996) 13 CRNZ 604 at p 614 that s 23 “is not to be reduced to an empty ritual by being recited in circumstances in which there is realistically little prospect of a driver understanding the offer that is being made if there is a reasonable opportunity for it to be given or repeated in circumstances where it has a better chance of being appreciated”.
[6] Ryan v Ministry of Transport involved a 17 year who was apprehended while driving with an excess breath alcohol level. He had tried to escape and had been injured when the officer tackled him. Because he was upset and crying the officer had difficulty explaining to him the positive breath test form. Even if I were to accept that Ms W was in a state comparable to Mr Ryan, the decision is distinguishable because Mr Ryan had received only oral advice of his right to speak with a lawyer and no enquiry was made as to whether he understood that right. Given his state, the High Court considered it could not be inferred from the fact that he had been told of his rights that he understood those rights. This was so even though he had been permitted to call a friend.
[7] In the present case, Ms W had the advice read to her and she had the opportunity to read the form. This was not a situation where the officer had merely gone through the ritual of advising her of her rights. Ms W knew from what the officer had said and done that she could call a lawyer. She just did not know whether it would help her to do that. It is not part of the right to be informed that a lawyer can be consulted (free of charge and without delay) that Ms W be advised as to whether she should exercise her right to call a lawyer. Nor is it part of the right, that Ms W understand what sort of advice a lawyer might give. Her mother may have helped her to decide whether to exercise her right, but that did not mean that she did not understand what her rights were.
[8] This may seem harsh to Ms W when all she wanted to do was to speak to her mother. It is not entirely clear whether the officer knew she wanted to speak to her mother to help her decide whether to consult a lawyer, but if he did and there was no difficulty with arranging that, then it would not have hurt to let her do so. But this is not part of the right under s 23 of the Bill of Rights Act (which is drafted
on the assumption that a person has at least a basic understanding of what a lawyer does: R v Z [2008] 3 NZLR 342 at [37]. Ms W was in no different situation to many who wonder whether it will do any good to call a lawyer or whether they should just get on with the process. At the end of the day Ms W knew she could call a lawyer and that it would not cost her anything to do so and she made the decision not to.
[9] The appeal is dismissed.
Mallon J
Solicitors:
T Bamford, Bamford Law, Nelson, ph: 03 548 4867, [email protected]
J Bonifant, Pitt & Moore, Nelson, ph: 03 548 8349, [email protected]
0
0
0