[1] Mr Sullivan was convicted of refusing to permit a blood specimen to be taken after having been required to do so: s 72 of the Land Transport Act 1998. The conviction followed a defended hearing before Judge Clarkson in the District Court at Manukau on 14 May 2008.
[2] Keane J dismissed an appeal against conviction on 2 October 2008. Mr Sullivan then sought leave to appeal to this Court. Keane J dismissed that application on 31 October 2008. Mr Sullivan now seeks special leave under s 144(3) of the Summary Proceedings Act 1957 to appeal to this Court.

Factual background

[3] The charge on which Mr Sullivan was convicted followed an incident late on the night of 10 January and in the early hours of 11 January 2008.
[4] Two police constables, Brookbanks and Bhatt, stopped a car driven by Mr Sullivan. They formed the view he had been drinking. At 12.05 am Constable Bhatt required Mr Sullivan to undergo a breath screening test. The result was ‘failed general’. Constable Bhatt immediately required him to accompany her to the nearest police station for a breath or blood test or both. Mr Sullivan was at first unwilling but finally got into the patrol car under protest.
[5] When they arrived at the Manurewa Police Station, Mr Sullivan was first unwilling to get out. When he did get out he continued to protest. Constable Bhatt said at 12.13 am she told Mr Sullivan he had enjoyed his last chance. She was obliged to arrest him. She said he effectively invited her to arrest him. That is what she did. At 12.20 am Constable Bhatt cautioned Mr Sullivan and advised him of his rights under the New Zealand Bill of Rights Act 1990 (the Bill of Rights), including his right to legal advice. She read out to him the standard caution and advice that is now set out in written forms found in police stations. Mr Sullivan said he did wish to speak to a lawyer. He was told he would be able to do so within the police station.
[6] Mr Sullivan was taken initially to a holding cell. He remained there for as long as 25 minutes. That was partly accounted for by the time Constable Brookbanks took to make a computer check on Mr Sullivan. Constable Bhatt was herself preoccupied with completing the EBA check sheet. Constable Brookbanks then took over dealing with Mr Sullivan about the right to advice. Mr Sullivan wanted a pen and paper. Constable Bhatt was unwilling to provide the paper and pen because she did not want to leave her partner with Mr Sullivan. Constable Brookbanks said he was not willing to provide the pen because he considered it might be used as a weapon.
[7] Mr Sullivan said he wanted to speak to his own lawyer but the constable was not able to contact the lawyer because Mr Sullivan was unwilling to tell Constable Brookbanks who his lawyer was. At 12.45 am, shortly before Constable Bhatt required Mr Sullivan to undergo an evidential breath test she once again cautioned him and advised him of his right to advice. She asked him to sign the particular form confirming that advice. He declined to do so. Mr Sullivan repeated that he wished to speak to a lawyer but again failed to disclose the name of his lawyer. At 12.50 a.m., Constable Bhatt attempted to have Mr Sullivan undergo an evidential breath test. She set the device up but Mr Sullivan elected not to blow in it. He remained at a distance. Constable Bhatt offered Mr Sullivan further opportunities. Each time he declined. She told him he would then have to supply a specimen of blood. He said he would not.
[8] At 1.01 am Constable Bhatt once again advised Mr Sullivan of his right to advice using a standard form identical to that she had used shortly before. She again told him that if he did not know how to contact his lawyer, or was unwilling to disclose who his lawyer was, he could speak to a lawyer on the roster. Only then did Mr Sullivan actually elect to exercise his right to advice. He went with Constable Brookbanks to a room nearby in which there was a telephone and a list of lawyers who offered advice under the Police Detention Legal Assistance Scheme.
[9] Once in that room Mr Sullivan did nominate a lawyer, who he said was his brother-in-law. Constable Brookbanks found the lawyer’s telephone number and telephoned him. There was no reply. Mr Sullivan then asked Constable Brookbanks to ring a second lawyer. Again, there was no reply. Mr Sullivan nominated a third lawyer and possibly a fourth. Constable Brookbanks was not willing to ring them. Mr Sullivan had been difficult. The constable considered that if he knew ten lawyers he would ask for each in turn. Constable Brookbanks thought that at that hour of the morning that was unacceptable. He urged Mr Sullivan to take advice from a rostered lawyer. The evidence is not clear on how long this process took. Constable Bhatt said that at 1.06 she formally required Mr Sullivan to supply a specimen of blood. He talked over Constable Bhatt and refused to answer her when she asked him if he consented to a blood sample. Either Constable Bhatt or Constable Brookbanks told Mr Sullivan he had to answer and that a lack of response would be deemed a refusal. Mr Sullivan declined to supply a specimen of blood. Mr Sullivan was then given a second opportunity to take advice, this time from a lawyer on the list. He spoke to a lawyer on the list for five minutes between 1.12 and 1.17 am. He remained adamant that he would not supply a specimen of blood. He was arrested and charged.

District Court decision

[10] Before Judge Clarkson, Mr Sullivan faced the additional charge of refusing to accompany an enforcement officer when required to do so: s 69 of the Land Transport Act. The Judge dismissed that charge because she was left with a reasonable doubt as to whether he did refuse or whether, just in sufficient time, he complied with the requirement to accompany the officers. In finding the charge under s 72 of the Land Transport Act of refusing to permit a blood specimen to be taken proved, the Judge was satisfied the police officers had followed the proper procedure in attempting to obtain a blood sample process and that the Bill of Rights was complied with in a manner that was proper in all of the circumstances, having regard to the time of day and availability (or rather non-availability) of particular counsel.

Appeal decision

[11] In dismissing the appeal Keane J made the following findings:

While Judge Clarkson did not sustain the charge of failing to accompany the officers, Mr Sullivan’s arrest was lawful;

To the extent there was any breach by the constables in failing to give advice at the scene any such breach was short-lived. The advice was repeated by 12.20 am and Mr Sullivan had only been detained at 12.05 am when Constable Bhatt required him to undergo a breath-screening test. Further, even when given the advice Mr Sullivan did not elect to exercise it until after 1.00 am;

After being refused a pen Mr Sullivan chose not to exercise his right to speak to a lawyer or, if he did wish to exercise it, he elected not to name a lawyer;

Given the early hour of the morning and the date of 10 January 2007, during the vacation, the two officers, Constable Brookbanks in particular, acted practically and reasonably in trying to assist Mr Sullivan’s request for access to a lawyer;

The Judge was entitled to conclude that in encouraging Mr Sullivan to speak to a lawyer on the panel the constable was constant to his duty. Mr Sullivan had no absolute right to a lawyer of his own choice; and

The Judge was entitled to conclude that Mr Sullivan was properly required to supply a specimen of blood and was advised of the sanctions if he did not do so.

Application for leave - High Court

[12] The applicant then sought leave to appeal to this Court from the High Court. He sought leave on the following questions:

(1) Whether a suspect in the applicant’s position where a constable detains him at 12.06 am requiring to accompany for the purposes of carrying out the breath/blood alcohol procedures without giving the Bill of Rights advice until his arrest at 12.20 am and the detainee immediately indicates his wish to speak with a lawyer the constable’s partner places the detainee in a police cell for 25 minutes instead of providing appropriate facility without delay for reasons of their own, the detainee’s rights have been breached as a result of the delay of some 39 minutes.

(2) Alternatively, whether a detainee in the applicant’s position where a constable arrests him and orally advises him of the rights to a lawyer at 12.20 am the detainee immediately indicates his wish to speak with a lawyer, the constable’s partner places the detainee in a cell for 25 minutes instead of providing appropriate facility without delay for reasons of their own; the detainee’s rights have been breached as a result of the delay of 25 minutes.

(3) Whether a detainee’s rights in the applicant’s position under the Bill of Rights are breached when his request for a pen and paper is declined in circumstances where according to the officer in charge of the case, “I had no reason why I should leave my partner just leaving everything here and to find a piece of paper for him” but according to the junior constable the request was declined because a pen is able to be used as a weapon.

(4) Whether a detainee’s arrest is lawful as the High Court found in the appellant’s case because inter alia the officer had, when she arrested him under s 129(1)(a) of the Land Transport Act 1998 good cause to suspect he had committed an offence against s 59(1)(b).

(5) Whether a High Court decision on appeal in a summary proceedings appeal based on findings not supported by evidence, a finding factually incorrect and a finding inconsistent with the evidence as in the appellant’s case as specified hereunder could be sustained. Particulars were provided.

(6) Whether the High Court’s finding as in the appellant’s case at [40] that “he did not actually elect to exercise it until after 1.00 am; but that involves a distinct issue of credibility” can be sustained when the Court ..... found that the appellant when advised of the rights at the time of his arrest at 12.20 informed the constable that he wished to speak to a lawyer.

[13] In refusing leave to appeal Keane J noted that the first two questions posed were not questions of law at all.
[14] Keene J next confirmed that s 23 of the New Zealand Bill of Rights Act 1990 does not provide for access to a pen when detained. No question of law arose, let alone one of significance.
[15] In relation to the fourth question, Keane J accepted that in the course of his decision he had referred to an incorrect section in the Land Transport Act but nevertheless confirmed the power of arrest required good cause to suspect or reasonable grounds for suspecting an offence and on the evidence such grounds were made out. No question of law arose.
[16] The final two questions essentially challenged the High Court’s finding on the evidence. Keane J concluded they were issues of fact, not law.

Special leave to appeal

[17] In advancing the application for special leave to appeal Mr Sullivan faces the threshold requirement of identifying a question of law which, by reason of its general and public importance or for any other reason, ought to be submitted to this Court: R v Slater [1997] 1 NZLR 211.
[18] The questions that Mr Sullivan seeks leave in relation to are, subject to some minor amendments, the same questions considered by Keane J. The applicant faces the difficulties identified by Keane J. A number of the questions posed by him do not raise questions of law, let alone questions of law of general and public importance.
[19] Mr Mohamed, counsel for Mr Sullivan, was right to accept the applicant had some difficulty with questions 1 and 2. They are essentially questions of fact. Further they are premised on an assumption that Mr Sullivan’s rights were denied by the police officers refusing to provide access to a lawyer in the face of the finding of the District Court Judge there was no such denial of rights. The District Court Judge held that Mr Sullivan elected not to exercise his right and so was responsible for the delay. The finding was confirmed by Keane J. The first two questions cannot support an appeal to this Court.
[20] Given Keane J’s rejection of the third question on the basis that s 23 of the Bill of Rights did not apply, Mr Mohamed sought to submit that there was instead a breach of s 24(d) of the Bill of Rights pursuant to the officers’ refusal to provide the applicant with pen and paper. He relied on an earlier decision of this Court in R v Donaldson [1995] 3 NZLR 641. The facts of that case were unusual. The appellant was found asleep in the driver’s seat of a car, stopped with its lights on at a stop sign. A breath-screening test was administered and proved negative. The appellant’s gait and speech caused the constable to conclude she was under the influence of some substance. She was arrested for driving under the influence. When at the police station she asked that a sample of her blood be taken. The appellant was told one would not be taken. She was examined by a police doctor who formed the opinion she was clinically under the influence of drugs and alcohol and unfit to drive a motor vehicle safely.
[21] The appellant was convicted and ultimately granted leave to appeal to this Court on certain points of law. One point was, if an enforcement officer does not comply with an obligation to ensure a blood sample is taken, or at least give proper consideration to such request, does this deprive the person making a request of the right to adequate facilities to prepare a defence and the right to present a defence at trial: s 24(d) and (e) of the Bill of Rights?
[22] After reviewing overseas authority, this Court concluded that failure to ensure a blood sample was taken, or at least to give proper consideration to such a request, may or may not amount to a breach of the right given by s 24(d). This Court noted, at 649:

The likely materiality of a blood test which has not been carried out can seldom be assessed with accuracy, and cannot be assessed otherwise than in a broad way on the evidence presented to the Court in this case. But the totally negative breath-screening test must take this case beyond the common situation where there has been a positive screening test and any subsequent blood test offers more of a last chance than a likely benefit to the defence.

And later:

It is likely that there will in practice be a fine line between:

(a) Requiring the police not to obstruct the preparation of a defence, which must be implied in the right recognised in s 24(d); and

(b) Imposing on the police a new and affirmative duty to assist in the collection of evidence useful for the defence.

Omissions to obtain or preserve evidence likely to be material to the defence will fall on one or other side of the line according to a wide variety of factors. Clearly bad faith on the part of the police would point towards obstruction. In other cases the degree and foreseeability of materiality of the lost evidence, and the existence and extent of any practical difficulties in obtaining or preserving that evidence, will often be relevant.

[23] In Donaldson, this Court emphasised the need to consider the facts of each case when considering the issue and noted the particular facts of the case before it. The case of Donaldson has no application on the facts of this case. It cannot seriously be argued that the failure of the police officers to provide a pen and paper to the applicant impeded his right to access a lawyer or to prepare a defence. It was not the lack of pen and paper that prevented Mr Sullivan having access to a lawyer, it was his refusal to disclose the name of the lawyer to the police officers, with the result they were unable to contact the lawyer. Nor could the refusal seriously have impeded his ability to instruct the lawyer. All that was required was for Mr Sullivan to identify which the lawyer so the police could arrange the call. It must also be noted that s 24(d) of the Bill of Rights is only engaged once the person is charged. On the evidence in this case the applicant Mr Sullivan was not charged until after he had refused to undergo the blood test which was some time after the refusal by the officers to provide him pen and pencil. Question 3 does not raise a question of law which ought to be submitted to this Court.
[24] The applicant sought leave to add the following introductory words to question 4:

If an arrest is unlawful, is the evidence of the procedures thereafter admissible?

The proposed additional first sentence calls for consideration of factors under s 30 of the Evidence Act 2006. This Court has previously held that it is inappropriate to grant leave on a question relating to the applicability of s 30 when the lower Courts have found that the applicant’s rights were not breached and therefore that s 30 was not applicable: Gallichan v Police [2009] NZCA 79 at [7] and [10] – [20]. This proposed amendment does not advance the applicant’s case. The question also adds a concluding paragraph to the question 4, which does not affect the substance of the question. The fourth question is based on the premise that the arrest was unlawful. For the reasons set out by Keane J, while the charge of refusing to accompany was not made out, the applicant’s arrest was lawful.

[25] Questions 5 and 6 are again essentially challenges to the findings of fact by the lower Courts. They seek to challenge the findings on the basis that the findings are not supported by the evidence or are factually incorrect. But this is not a case where it can be argued there was no evidence to support the findings (which may be an error of law) rather, in this case, the applicant effectively says the Judge placed too much weight on certain aspects of the evidence. That does not raise a question of law.
[26] In summary, the questions fail to raise any question of law, let alone one of general or public importance.

Result

[27] For those reasons the application for special leave to appeal is refused.

Solicitors:
Crown Law Office, Wellington

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