Z v Police HC Wellington CRI-2007-485-82

[2007] NZHC 1567

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-82

BZ

Appellant

v

NEW ZEALAND POLICE

Defendant

Hearing:         4 December 2007

Appearances: Mr K I Jefferies for the Appellant

Mr M Snape for the Respondent

Judgment:      25 January 2007

JUDGMENT OF CLIFFORD J

Introduction

[1]      Mr Z   , the appellant in this case, is a Chinese national.  In May 2007 he was tried and convicted in the District Court on a charge of driving with excess breath alcohol.  He now appeals that conviction.  He argues that he was not afforded his right of consular notification under Article 36 of the Vienna Convention on Consular Relations (‘the Convention’).   He says the evidential breath test result obtained in violation of that right is therefore rendered inadmissible so that the

charge against him should have been dismissed.

B Z V NEW ZEALAND POLICE HC WN CRI-2007-485-82 25 January 2007

[2]      The  Convention  is  partially  incorporated  into  the  domestic  law  of  New Zealand by s 4 of the Consular Privileges and Immunities Act 1971, which affords the force of law to enumerated Articles.  Article 36 is not included in that list.  This appeal therefore concerns the extent, if any, of the domestic enforceability of Article

36 of the Convention.

[3]      Both  China  and  New  Zealand  are  States  party  to  the  Convention  and therefore New Zealand owes international legal obligations to China in accordance with the provisions of the Convention. In this judgment I will refer to international materials and cases that discuss the international legal obligations of States party to the Convention.   I emphasise, however, that New Zealand’s obligations at international law are not at issue in this appeal.  What is at issue is the state of New Zealand’s domestic law as regards the consular rights of foreign nationals detained under criminal proceedings.

Background

[4]      On 31 October 2004, Mr Z    was stopped at an alcohol checkpoint.  The constable operating the checkpoint required Mr Z    to undergo a passive breath test, followed by a breath screening test, both of which Mr Z    failed.  Mr Z    was then advised of his rights to a lawyer pursuant to the Bill of Rights Act and asked  for  his  keys  and  drivers  licence.    He  surrendered  his  keys  and  told  the constable he only had a Chinese licence and had been in New Zealand for over a year.

[5]      Mr Z    was taken to a mobile breath testing station where he gave his details.  The constable filled in a written form of advice pursuant to the Bill of Rights Act, read it to Mr Z   , asked if he understood it, gave it to him to read for himself and asked him to sign it.   Mr Z    said he understood the form and signed it. When asked whether he wished to speak to a lawyer he said no.  Mr Z    was then taken through the evidential breath test procedure, which he failed.  The constable read  to  Mr  Z     the  Advice  of  Positive  Evidential  Breath  Test  form  (which contains the advice regarding the suspect’s right to a blood test) and, again, Mr Z    indicated he understood and signed the form.  He did not request a blood test.

He was then told that he would charged with driving with excess breath alcohol and advised of his rights again.

[6]      The constable stated in evidence at the defended hearing that he had no difficulty dealing with Mr Z    or with obtaining information from him.  Mr Z    gave no indication that he had any trouble understanding the constable, nor was he hesitant with his answers.  The constable described his exchanges with Mr Z    as “a free flowing conversation”.  Under cross-examination the constable accepted he did not tell Mr Z    he had a right to contact the Chinese Embassy pursuant to the Convention.  He did not ask to see his passport and did not ask about his citizenship status.  The constable did notice that Mr Z    signed the forms in Chinese but said it was not unusual for people to sign their names in another language.  He denied that Mr Z    spoke in broken English or indicated he was unsure of what was being said to him or his rights.

[7]      Mr Z    gave evidence with the help of an interpreter.   He was born in China and came to New Zealand to study in 2003.  By the date of his arrest he had been in New Zealand for a year.  Although the courses he took were in English, Mr Z    said his understanding of English in October 2004 was poor.

[8]      Having heard submissions, the District Court Judge found that Mr Z    had understood his Bill of Rights advice and had knowingly waived his right to counsel. She then addressed counsel’s submissions regarding the Convention.

[9]      The Judge noted that Article 36, which confers rights of consular notification and access on foreign nationals who have been detained, is not amongst the list of Articles incorporated in the Consular Privileges and Immunities Act.   Mr Z   ’s counsel argued that the entire Convention should be given the force of law in New Zealand by interpreting the Land Transport Act 1998 consistently with the Convention’s provisions.  The Judge rejected that argument, holding that the terms of s 4 of the Consular Privileges and Immunities Act clearly evinced Parliament’s intention to exclude Article 36 from application in New Zealand.  Accordingly, the Judge held that Mr Z   ’s rights had not been violated and therefore convicted him.

The appeal

[10]     Article 36 of the Convention provides in full:

Communication and contact with nationals of the sending state

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a)  consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c)  consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.  They  shall  also  have  the  right  to  visit  any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2.The  rights  referred  to  in  paragraph  1  of  this  Article  shall  be exercised  in  conformity  with  the  laws  and  regulations  of  the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

[11]     The provision chiefly relied on in this case is paragraph (1)(b), which confers on a foreign national the right to have his consular post notified of his arrest or detention.  The provision consists of three interrelated rights: the right, if the national requests, to have his consular post notified without delay of his arrest and detention; the right to be informed without delay of his right to consular notification; and the right to have any communication addressed to his consular post forwarded without

delay.   Paragraphs (1)(a) and (c) then also provide for additional rights of communication and access between consular officials and their nationals.

[12]     This case turns on the right of the foreign national to be informed of his right of consular notification, without which the remaining rights are unlikely to be of any practical significance in the majority of cases.  The constable in this case admitted in the course of cross-examination that he did not inform Mr Z    that he had a right to have his consular post notified of his detention.  The argument for the Crown is that he was not informed because he does not, at New Zealand law, have such a right.

[13]     The Convention is also supplemented, as between China and New Zealand, by a bilateral agreement addressing many of the same issues: the Agreement on Consular Relations Between New Zealand and The People’s Republic of China, which entered into force on 23 April 2006 (‘the New Zealand/China Agreement’). Article 11 of that agreement covers substantially the same ground as Article 36 of the Convention and provides in part:

Notification of Detention and Arrest and the Right to Visit

1     If a national of the sending State is detained, arrested or deprived of freedom by any other means in the consular district by the competent authorities of the receiving State, then, unless it is contrary to the law of the receiving State, the said authorities shall, without delay and in any event within three days, notify the consular post of the  fact  of the detention or arrest and the reasons for which the national has been arrested, detained or deprived of freedom by any means.   If it is not possible to notify without delay the consular post of the sending State because of communication problems, the competent authorities of the receiving State shall provide notification as soon as possible.

…

6.    The competent authorities of the receiving State shall without delay inform a national of the sending State who is detained, arrested, imprisoned or deprived of freedom by any other means of his or her rights under this Article.

[14]     The key differences between the two texts are the addition, in Article 11, of the phrase “unless it is contrary to the law of the receiving State” and the phrase “without delay and in any event within three days”.  I will consider the significance of those phrases in more detail later in this judgment.  I note at the outset, however,

that the bilateral agreement relied upon here entered into force after the date of Mr

Z   ’s detention, and therefore is not directly relevant to the present case.

[15]     On appeal, Mr Jefferies submitted that, notwithstanding it is not incorporated through s 4 of the Consular Privileges and Immunities Act, Article 36 is enforceable in New Zealand.  He referred to paragraphs 65 to 71 of the Law Commission’s report A New Zealand Guide to International Law and its Sources (NZLC R34 1996) in which the Commission outlined a number of ways in which treaties can be given domestic legal force notwithstanding a lack of statutory incorporation.  Mr Jefferies submitted that an unincorporated treaty may serve as a constitutional foundation, a declaratory statement of customary international law, a basis for interpreting existing legislation or developing the common law.   He referred to the Court of Appeal’s decisions in Tavita v Minister of Immigration [1994] 2 NZLR 257 and Ministry of Transport v Noort [1992] 3 NZLR 260 as demonstrating the courts’ willingness to give effect, wherever possible, to New Zealand’s international treaty obligations and to read the transport legislation in a manner consistent with human rights standards. Mr Jefferies submitted that, by ratifying the Convention without reservation, New Zealand acquired international legal obligations which the Court should give effect to by reading the Land Transport Act consistently with the right to consular notification and access.

[16]     Finally, Mr Jefferies referred to the order of the International Court of Justice (‘the ICJ’) in Vienna Convention on Consular Relations (Paraguay v United States of America), Provisional Measures, Order of 9 April 1998, ICJ Reports 1998, p248, where the ICJ considered (albeit in the context of an application for the indication of provisional measures) the obligations of the United States under the Convention.

[17]     Having regard to all of these indications, Mr Jefferies submitted that Article

36 confers domestically enforceable rights on foreign nationals detained in New Zealand.   He argued that, by analogy with Noort, the appropriate remedy for a breach of those rights would be a ruling that the evidential breath test result was inadmissible and therefore the conviction is quashed.  Under the current regime, that remedy would be subject to s 30 of the Evidence Act 2006, which establishes a balancing test for evidence allegedly improperly obtained in breach of any enactment

or rule of law by a person (such as a member of the police) to whom s 3 of the Bill of Rights Act applies.  Therefore, even if I find the Article 36 rights to be domestically enforceable in New Zealand, and to have been breached in this case, it is still necessary to determine whether the exclusion of the evidential breath test result is an appropriate response.

[18]     In reply, Mr Snape points out that it is a fundamental constitutional principle that the Executive cannot change the law in New Zealand by entering into treaties at the international level.  The treaty must be incorporated into domestic law in some way to have legal force.  Here, not only has Article 36 not been incorporated, but s 4 of the Consular Privileges and Immunities Act evinces a clear intention to exclude, by legislation, the application of Article 36.   Accordingly, notwithstanding New Zealand may have breached its international legal obligations to China in a manner enforceable by the ICJ, there has been no breach of New Zealand’s domestic law.

[19]     Further, Mr Snape submits that a right of consular notification and access would be practically unworkable.  A number of States do not keep consular posts in New Zealand, or base their consular services for New Zealand in Canberra.  In those circumstances, it would be unreasonable to expect police to halt breath testing procedures while an attempt was made to notify a suspect’s consular post.

Domestic incorporation of Article 36

[20]     Mr Snape is correct that international treaties are not directly enforceable domestically.  The relevant provisions must be incorporated into domestic law: see Ashby v Minister of Immigration [1981] 1 NZLR 222 at 224. That may occur in a number of ways. The most obvious is by means of direct legislative incorporation, which is not applicable here. There are two further means by which treaty obligations may be given the force of law domestically which I consider relevant in the present case. First, where the treaty obligation represents a rule of customary international law it is incorporated as part of the law of the land. Second, the courts may have regard to international treaty obligations when interpreting domestic legislation, and will attempt to achieve an interpretation consonant with international obligations.

Customary international law?

[21]    It is generally accepted amongst academic commentators that customary international law is considered to be part of the domestic law of the land: see, for instance, Laws of New Zealand, International Law: Principles Reissue 1, para 112; New Zealand Law Commission A New Zealand Guide to International Law and its Sources (NZLC R34 1996), para 69; Shaw International Law (5th ed. 2003) at 129 to

135 and Treasa Dunworth “Customary International Law in New Zealand” (2004) 2

NZJPIL 67 at 68 (noting, however, Ms Dunworth’s reservations on the point).   In England, a number of cases have affirmed this principle: e.g. Trendtex Corporation v Central Bank of Nigeria [1977] 2 WLR 356; Maclaine Watson v Department of Trade and Industry [1988] 3 WLR 1033; R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3) [2000] 1 AC 147.

[22]     In New Zealand, there is a scarcity of discussion regarding the domestic status of customary international law.   It is clear, nonetheless, that New Zealand courts  have  directly  applied  rules  of  customary  international  law  on  various occasions.   An obvious example,  referred  to  by Treasa  Dunworth  in  the  above article, is the law of sovereign immunity, which has its basis in customary international law.  The law of sovereign immunity has been applied in a number of cases, including Controller and Auditor-General v Davison [1996] 2 NZLR 278, Governor of Pitcairn and Associated Islands v Sutton [1995] 1 NZLR 426 and, more recently Fang & Ors v Jiang & Ors HC AK CIV 2004-404-5843 21 December 2006. Another case that is frequently cited as an example of the domestic incorporation of customary international law is Sellers v Maritime Safety Inspector [1999] 2 NZLR

44, where the Court relied heavily on the customary international law of the sea in applying Maritime Transport Act 1994.

[23]     At the very least, it can be said that the status of a given norm as customary international law will be very influential in persuading the courts to adopt an interpretive approach consistent with that norm.   Conversely, however, where legislation clearly precludes the application of customary international law, the legislation must prevail: see Worth v Worth [1931] NZLR 1109 at 1121 to 1122.

[24]     Although they were not canvassed expressly at the hearing, two preconditions must be demonstrated to establish the existence of a rule of customary international law: State practice and opinio juris: North Sea Continental Shelf (Federal Republic of Germany v Denmark, Federal Republic v Germany v Netherlands), Judgment, ICJ Reports 1969, p 3.   The State practice criterion requires that the alleged rule be generally applied by States in a reasonably uniform manner.  The ICJ in the North Sea Continental Shelf Cases referred to State practice that is “both extensive and virtually uniform in the sense of the provision invoked” (p 43).  The rule must also have been applied for a sufficient duration that it can be said to have acquired a customary status.  State practice may be evidenced by the law applicable in States, but also by practices in fact applied by public agencies, whether or not formally required by law.  In addition, a treaty may be declaratory of customary international law, but only where it has been widely subscribed to and ratified by incorporation into domestic legal systems.   Having established State practice of sufficient extensiveness and uniformity, it is then necessary to demonstrate opinio juris – the belief amongst States that the practice is necessary by rule of law.  In other words, it is  not  sufficient  that  the  practice  be  regarded  as  merely  morally  or  politically binding; it must be regarded as legally obligatory.

[25]     The conclusion that a given norm is a rule of customary international law is not  lightly reached.    The  preceding  discussion  demonstrates  that  the  inquiry  is complex and wide-ranging.  That is why customary international law has generally only been applied at the domestic level in cases where the provenance of the rule is so well recognised as to be beyond reproach, for example the rule of sovereign immunity or the prohibition on torture.   In the present case, I was presented with limited evidence of State practice or opinio juris, doubtless because of the restricted opportunity for research associated with a criminal list appeal.  The combination of those factors makes me particularly cautious about concluding that Article 36 comprises a rule of customary international law.

[26]     I was, however, referred to the Vienna Convention case (supra) and I have also had regard to two other decisions of the ICJ: La Grand (Germany v United States of America), Judgment, ICJ Reports 2001, p. 466 and Avena and Other Mexican Nationals (Mexico v United States of America), Judgment  ICJ  Reports

2004, p. 12.   All of these cases concerned the application of Article 36 of the Convention to foreign nationals who had been tried for murder, convicted and sentenced to death in the United States.  These cases confirm my view that Article 36 has not yet acquired customary status.

[27]     Mr Jefferies relied on the Vienna Convention case to support the domestic enforceability of the Article 36 rights.  However that case, as well as Avena and La Grand, addressed not the domestic enforceability of the Article 36 rights but rather the international legal obligations of the US towards the applicant States as States party to the Convention.  The US, as a State party to the Convention, accepted that it owed international legal obligations to the applicant States to afford to their nationals the rights enumerated in the Convention.  The cases also held that those rights were rights owed to the individuals concerned, and were therefore enforceable by the applicant State in the exercise of its rights of diplomatic protection; however the case turned solely on the existence of those rights at international law, not domestic law. That was clearly reflected in the discussion of appropriate remedies in Avena at para

123,  where  the  Court  held  that  it  could  not  be  presumed  that  annulment  of convictions and sentences was the appropriate remedy as “it is not the convictions and sentences of the Mexican nationals which are to be regarded as a violation of international law, but solely certain breaches of treaty obligations which preceded them”.

[28]     Importantly,  no  party to  any of  the  cases  suggested  that  Article  36  had customary international law status.  Nor did the Court rule in those terms.  The cases turned entirely on the proper interpretation of the provisions of the Convention and the extent to which the US had fallen short in its discharge of those obligations.  The jurisprudence of the ICJ does not therefore support the conclusion that Article 36 of the Convention has risen to the status of customary international law.

[29]     A brief review of the status of Article 36 in the US, England, Canada and Australia also does not support a conclusion that Article 36 has customary status.  In the US, Article 36 is domestically enforceable by virtue of the Supremacy Clause in Article VI of the US Constitution, pursuant to which all treaties made under the authority of the US are part of “the supreme law of the land” and all state and federal

authorities are bound to apply their provisions.   However, England, Canada and Australia all have statutory provisions which, like our own s 4 of the Consular Privileges and Immunities Act, omit Article 36 from the list of provisions afforded the force of law domestically.  The relevant provisions are: s 1 Consular Relations Act 1968 (Eng), s 3 Foreign Missions and International Organisations Act 1991 (Can) and s 5 Consular Privileges and Immunities Act 1972 (Aus).  Thus, it does not appear that State practice supports the enforceability of Article 36 at the domestic level.  A further implication is that, notwithstanding the Convention is very broadly subscribed to, its only partial incorporation at the domestic level suggests it is not declaratory of customary international law.

[30]     I am accordingly not satisfied that Article 36 constitutes a rule of customary international law such that it is directly enforceable as part of the domestic law of New Zealand.  Furthermore, even if I was satisfied that Article 36 constitutes a rule of customary international law, I would nonetheless hold that it was precluded by s 4 of the Consular Privileges and Immunities Act from applying in New Zealand, as contemplated in Worth at 1122. I will expand further on that interpretive point in the next section.

Incorporation by interpretation?

[31]     New Zealand courts have long made use of treaties and other international instruments  to  which  New  Zealand  is  a  party  in  order  to  interpret  domestic legislation.   The interpretive principle has been restated in a number of cases; however there is a degree of ongoing confusion about the extent of ambiguity (if any) necessary in a statutory provision before the courts will look to international instruments.

[32]     The starting point is Worth v Worth (supra) at 1121, where the Court of Appeal held that “if the enactment is ambiguous and is capable of two constructions, one of which would, and the other would not, conflict with the rules of international law, the latter construction should prevail”. There, the Court was only prepared to have recourse to international legal obligations to resolve clear ambiguities in the legislation. Subsequent courts have, however, taken a more expansive approach to

the interpretive exercise.  In Sellers (supra), for example, the Court in interpreting the Maritime Transport Act noted that “national law in this area has been essentially governed by and derived from international law with the consequence that national law is to be read, if at all possible, consistently with the related international law. That will sometimes mean that they day-to-day (or at least year-to-year) meaning of national law may vary without formal change.”  Similarly, in New Zealand Airline Pilots Association v Attorney-General [1997] 3 NZLR 269 the Court referred, at

289, to “the presumption of statutory interpretation that so far as its wording allows legislation should be read in a way which is consistent with New Zealand’s international obligations.  That presumption may apply whether or not the legislation was enacted with the purpose of implementing the relevant text.”

[33]     Where the exercise of a statutory discretion is at issue, the Courts may read in international obligations as relevant considerations for the exercise of the discretion. That possibility was adverted to in Ashby (supra) at 224 to 226 and in Tavita (supra) at 265 to 266, though neither case was decided expressly on that point. In Tavita, the Court of  Appeal  expressed  reservations  at  the  Minister’s  argument  that  he  was entitled  to  ignore international  instruments  bearing on  the subject  matter  of  his decision, saying this was an “unattractive argument, apparently implying that New Zealand’s adherence to the international instruments has been at least partly window- dressing” (at 266).

[34]     However, notwithstanding the courts’ willingness to have regard to  New Zealand’s international obligations in interpreting legislation, if the terms of the domestic legislation are clear and unambiguous they must be given effect in our Courts whether or not they carry out New Zealand’s international obligations: Ashby at 229.

[35]     In my view the legislative indications in the Land Transport Act 1998 and the Consular Privileges and Immunities Act 1971 are sufficiently clear and unambiguous that there is no room to read into the breath testing scheme a right of consular notification or an obligation on the part of the police to advise foreign nationals that they can require their consular post to be notified.  I reach that conclusion for two reasons.

[36]     First, I agree with the District Court Judge that s 4 of the Consular Privileges and Immunities Act evinces a clear intention on the part of the legislature to exclude Article from domestic application.   Section 4 reflects the legislature’s intention to only partially incorporate  the  Convention  into  domestic  law.    The  exclusion  of Article 36 is in my view quite deliberate, and moreover, in accordance with the practice of many of the overseas jurisdictions to which New Zealand has regard.

[37]     Second, there is no ambiguity in the terms of Part 6 of the Land Transport Act, which establishes a detailed code for evidential breath and blood testing, and therefore no room to read in additional rights of consular notification and access. When I put that to him in the course of the hearing, Mr Jefferies responded by pointing out that  Noort  (supra)  was  a  case  in  which  the  Court  of  Appeal  read additional rights and obligations into the breath testing scheme notwithstanding its status as a statutory code. Noort, however, is clearly distinguishable.  In that case, the Court was concerned with reconciling the breath testing scheme of the Land Transport Act with the right to counsel contained in the Bill of Rights Act.  Thus, the interpretive exercise was one of reconciling two apparently conflicting statutory indications.  In doing so, the Court of Appeal was able to have regard to s 6 of the Bill of Rights Act, which directs the Court to read legislation consistently with the rights contained in the Bill of Rights wherever possible.  Here the right to consular notification has no statutory pedigree – quite the opposite in fact.  Reading consular rights into the Land Transport Act would therefore constitute legislation rather than interpretation.

[38]     I conclude overall that there is no basis to incorporate Article 36 of the Convention into the domestic law of New Zealand.  The appeal must therefore be dismissed.

The terms of Article 36

[39]     I recognise that rights of consular notification and access are likely to be of real utility to a foreign national detained in New Zealand, just as they would for a New Zealander detained under a foreign legal system.   Although no evidence was presented to me on the matter, I surmise that in practice consular notification does

often take place in criminal proceedings, though if it does occur it may be as an administrative  practice  rather  than  a  legal  requirement.     Acknowledging  that detained foreign nationals may have a substantial interest in consular notification in certain cases, I therefore think it is appropriate to record my view that even were Article 36 enforceable at domestic law, consular notification would nevertheless have no application to the evidential breath testing regime.

[40]     Unlike arrest or detention for more serious criminal matters, the detention that occurs under Part 6 of the Land Transport Act is brief – the whole process is completed in a matter of minutes or at the most a few hours.  This is particularly the case where, as in the present case, the evidential breath testing takes place at a mobile breath testing station situated at the roadside rather than at a police station.

[41]     Two aspects of Article 36 of the Convention, as supplemented by Article 11 of the New Zealand/China Agreement, suggest to me that consular notification rights not intended to be applied in cases of brief or transitory detention.

[42]     The first is the interpretation given to the phrase “without delay”.   That phrase was the subject of detailed examination in the Avena case.  The ICJ examined the object and purpose of Article 36 in light of the travaux préparatoires and concluded that “without delay” did not necessarily mean immediately upon arrest: paras 86 to 88.  During the debate on the Article, the shortest specific time period discussed was “no later than 48 hours” after arrest (para 86).  However, in the event it was thought best to simply omit a specific timeframe.

[43]     That  the  right  of  consular  notification  is  not  intended  to  be  afforded immediately upon arrest, or even on the same day, is supported by the text of the New Zealand/China Agreement, where the phrase used is “without delay and in any event within three days”.  That also suggests that the right of consular notification was   not   intended   to   apply   to   foreign   nationals   detained   only   briefly   for comparatively minor criminal procedures such as evidential breath testing.

[44]     I acknowledge that, notwithstanding the text of both treaties contemplates consular notification at some remove from the point of arrest, both treaties also

provide that the foreign national must be informed of his rights without delay.   In Avena the ICJ concluded that the obligation to inform arose as soon as the authorities realised  they were  dealing  with  foreign  nationals.    However,  in  the  context  of evidential  breath  testing  it  would  be  pointless  to  require  police  to  immediately inform foreign nationals of their consular  rights when actual notification of  the consular post would not be required until after the national had been released from detention.

[45]     The second aspect of the treaties that suggests to me that Articles 36 and 11 were not intended to apply to evidential breath testing detentions is the nature of the assistance that the consular post is expected to be able to provide.  The text of both Articles 36 and 11 contemplate ongoing support of the foreign national in the prosecution of criminal charges, however they do not contemplate on the spot legal advice from the consular post.   This was confirmed in the Avena case, where the Court held (at para 85):

It is not envisaged, either in Article 36, paragraph 1, or elsewhere in the Convention,  that  consular  functions  entail  a  consular  officer  himself  or herself acting as the legal representative or more directly engaging in the criminal justice process.

[46]     The fact that the Convention does not envisage on the spot legal advice strongly suggests that it is not intended to apply to a detention for evidential breath testing.    Even  in  such  a  transitory detention,  the  right  to  counsel  still  has  real significance, as counsel will be able to immediately advise the suspect on his or her rights and the appropriate course of action.  Consular notification, on the other hand, has much less utility in the context of a brief detention as the foreign national cannot expect to obtain legal advice from the consular post during the currency of the detention.

[47]     For  those  two  reasons,  I  conclude  that,  even  if  the  right  to  consular notification is enforceable domestically in New Zealand, it would not apply in the case of detention for evidential breath testing, and therefore would not have been breached in this case.

Conclusion

[48]     The appeal is dismissed.

Clifford J

Solicitors: Jefferies & Raizis for the Appellant

Luke Cunningham & Clere for the Respondent