[1] The applicant’s trial in the District Court at Wellington on an indictable charge of driving with excess blood alcohol on a third or subsequent occasion is scheduled for early 2011. He applies for an extension of time and leave to appeal against a pre-trial ruling of Judge Tuohy in the District Court at Wellington on 17 August 2010.[1] That decision ruled admissible as evidence at the trial a blood specimen medical certificate and the certificate of analysis of a blood sample taken from the applicant. The argument advanced by counsel is that the advice given to the applicant by the police officers as to his rights of access to a lawyer was not adequately or properly explained to him by the police officer. Accordingly, it is argued there was a breach of s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) so that the medical certificate and the certificate of analysis of the blood sample were inadmissible.
[2] The notice of leave to appeal was filed six weeks out of time. The Court has heard the application for an extension of time in conjunction with the application for leave to appeal.

As to the application to extend time

[3] A delay of six weeks after expiry of the period for appealing a pre-trial issue is undue and unacceptable. The appeal period is fixed at ten days, which is understandable because in all circumstances a trial is pending and in most casesimminent. The explanation advanced is that counsel was ill, and the applicant was absent on a commercial fishing boat and suffered a family crisis. This meant that contact between counsel and the applicant was impeded. Those explanations are somewhat tenuous and no affidavit evidence was advanced to support those contentions.
[4] Trial is to take place early next year. It is hard to escape the view that the application for leave to appeal has arisen somewhat as a second thought. But consideration of the merits of a proposed appeal is always relevant in an application for extension of time. Naturally, if there is likely to be a miscarriage of justice because a ruling that evidence is admissible at trial is clearly wrong, then it is proper that time will be extended. So, for the purpose of this leave application we are prepared formally to extend time so as to deal with it on its merits.

Background facts

[5] On two previous occasions the applicant had been convicted of excess blood or breath alcohol offences. It is a possible inference that he was aware of procedures adopted in such cases. At about 1.20am in the early hours of the morning of 4 July 2009 he was stopped by a police officer, legitimately, whilst driving a motor vehicle in suburban Upper Hutt. The officer smelt alcohol on his breath and the applicant said that he had been at a local “Cosmopolitan Club”. He was told by the officer that he was required to undergo a breath screening test. The applicant said “don’t bother”, and said “it’s gonna be a failed general”. His confident prediction was accurate. He failed the test, so he was required to accompany the officer to the Upper Hutt Police Station for an evidential breath test. Before he was required to do this, the evidence in the District Court was, that the officer then read to him, from a card in the back of the constable’s notebook, what was said to be his rights under the NZBORA, stating:

You have the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and this right may be exercised without charge under the Police Detention Legal Assistance Scheme.

[6] After the applicant and the constable arrived at the police station, the officer filled out an “advice notice” form, which in part read:

AS PREVIOUSLY ADVISED YOU HAVE THE RIGHT TO CONSULT AND INSTRUCT A LAWYER IN PRIVATE AND WITHOUT DELAY.

A telephone and a list of lawyers will be made available for this purpose as soon as practicable and before you undergo an evidential breath test and / or blood test.

You will have a reasonable time to consult and instruct a lawyer in private and free of cost under the Police Detention Legal Assistance Scheme from the time a telephone is made available to you.

...

I have been advised of my right to consult and instruct a lawyer in private and without delay.

I do/do not wish to speak to a lawyer.

[7] Having read to the applicant the contents of that form the constable asked him to sign it to show that he understood it. The applicant did so. He was then asked whether he wished to speak to a lawyer, to which he replied “No”. The evidential breath test was then carried out, which the applicant failed. He then requested that an evidential blood test be taken. This was carried out by a nurse who had been summonsed. An appropriate blood sample certificate was completed and eventually the certificate of analysis of that sample recorded a reading of 278 milligrams of alcohol per 100 millilitres of blood.

Discussion

[8] On behalf of the applicant, Mr Johnson challenged the admissibility at trial of the blood specimen form and certificate of analysis of the blood sample. As a consequence the hearing pursuant to s 344A of the Crimes Act 1961 was undertaken by Judge Tuohy. Counsel then raised multiple issues. But the only one that is relevant for the purposes of this application for leave to appeal relates to the adequacy of the advice given to the applicant pursuant to the NZBORA prior to him undergoing the evidential breath test and his request that a blood sample be taken. At the pre-trial hearing evidence was given by the police officer, but there was no evidence adduced on behalf of the applicant.
[9] The initial advice given to the applicant at the roadside, after he was stopped, included a verbatim recitation following the Practice Note of the Chief Justice.[2] This Court has earlier commented in Gallichan v Police[3] that that particular form of roadside advice as it is set out, is not as clear as it might have been and Judge Tuohy agreed. But the Judge was satisfied the advice given at the roadside conveyed to the applicant that he had the right to consult a lawyer in private and without delay, and at no cost.[4] That was advice given to the applicant before he was transported to the police station to embark upon the drink driving procedures.
[10] Mr Johnson contended that that advice, at the roadside, together with the advice given (in not identical terms) at the police station prior to the undertaking of the testing procedures, was insufficient. He relied upon a decision of Judge Broadmore in the District Court at Wellington in Police v Aveyard.[5] There, the Judge ruled that the defendant in that case, who had been given the same roadside advice as the applicant, would have been unsure that she could exercise her right to a lawyer free of charge because of ambiguity in the word “may” in the phrase “may be exercised free of charge”. Mr Johnson submitted, further, the advice given did not make it clear to the suspect that he could avail himself of the right to a lawyer, free of charge, at any time during the procedures to be undertaken.
[11] We comment that Aveyard was a case where the defendant gave evidence, not in a pre-trial situation but at a defended hearing. She said that she had understood that she had a right to consult a lawyer which might be exercised without cost, but that might not be the case. In other words the wording read to her “this right may be exercised without cost ... ” was ambiguous and she took it to mean that there might or might not be a cost and she did not want to take the risk of incurring expense. Therefore, she said, she would not consult a lawyer but if she had been advised that she could do so unconditionally without cost then she would have done so. The Judge accepted that evidence. He said the use of the word “may” in advising that defendant of her rights was the giving of incorrect advice and her consent to undertake any evidential breath test was unfairly and improperly obtained because she was entitled to be offered free legal advice as a matter of law.
[12] That case was specific to its own facts which included that the advice given to the offender, not only at the roadside but at the police station before the applicant chose to consent to breath and blood testing procedures, was the same. The rights read to her were the same, namely that she had the right to consult a lawyer which “may be exercised free of charge”. The significant distinction here is the evidence was that that was not the advice given to this applicant at the police station. Before he consented to undergoing the necessary procedures he was told that he could call and instruct a lawyer “free of cost”.
[13] Further, in this case no evidence was given by the applicant in the pre-trial hearing to suggest that he was confused as to the meaning of the words that were used when the officer advised him of his rights, either at the roadside or police station. We consider that the advice, given at the police station before the evidential breath test and other procedures were carried out, was abundantly clear. It was of the right to consult and instruct a lawyer in private “free of cost”.
[14] In his decision Judge Tuohy referred to the right contained in s 23 of the NZBORA and the Court of Appeal decision in R v Mallinson.[6] The Judge observed that the Practice Note incorporated in the card read at the roadside was a general advice to persons arrested or detained by police in whatever circumstances. The Judge said:[7]

... I consider that the roadside advice did convey to the accused that he had the right to consult and instruct a lawyer without delay and in private if he wanted to. I consider that it also conveyed to him that there would be no charge if he availed himself of the Police Detention Legal Assistance Scheme. I think, with respect, that the interpretation suggested in Gallichan, of “without charge” has meaning “before being charged” is strained and unlikely. Nevertheless I agree that “under the Police Detention Legal Assistance Scheme” is likely to be unhelpful and potentially confusing to many drink/drive suspects. I also agree that “may” is potentially ambiguous. Here, though, in stark contrast to the situation in Aveyard, there is no evidence or even indication that the accused was confused by that word or even had any thought of contacting a lawyer.

In any event, he received the advice in the form before he embarked on the drink/driving procedure at the police station. That plainly told him that he had the right to consult a lawyer in private before undergoing an evidential breath test and/or a blood test, that a telephone and list of lawyers would be made available to him for that purpose and that it would be free of cost. He acknowledged understanding that and specifically indicated that he did not want a lawyer.

Given the terms of that advice italicised above, it was probably an excess of caution to inform him again of his right to a lawyer after the evidential breath test. Nevertheless he was once more informed of it by the reading of the card. In the context of the advice given shortly before prior to the test, I consider the accused will have heard it as simply a reiteration of that advice.

[15] The Judge’s conclusions that the evidence satisfied him that at all stages of the procedure, whether at the roadside or at the police station, the applicant was adequately informed of his right to consult and instruct a lawyer in private without delay and free of cost and that the applicant understood that right, was clearly open to him.
[16] We reject Mr Johnson’s argument that, as he put it, forms read to the applicant were inadequate because they did not disclose or define what a “Police Detention Legal Assistance Scheme” was, what the list of lawyers involved, or that the rights available to a suspect were “continuing” rights. Nor do we accept that it avails the applicant that there may be differences (if such exist) between the various precise words contained in the forms that police officers might use on other occasions and that were presented to the District Court. The test is whether in any particular case the substance of the advice that is conveyed to a suspect is correct and that it is understood by the suspect as defining his or her existing and continuing rights. That will always be a question of fact to be derived from the evidence and depending on the circumstances existing at the time. This Court observed as much in Gallichan where commenting that the drafting of the form of advice given could be improved, reference to the Police Detention Legal Assistance Scheme did not itself need to be mentioned, and it was simpler if police merely advised that they had a list of lawyers available to give free advice.[8] If that was conveyed to the suspect, along with the other necessary advice, then that would suffice. But in the end what matters is whether the advice given adequately and intelligibly informed the applicant of the substance of his rights, not the specific words used. That was the essence of Judge Tuohy’s decision. As the Supreme Court observed in Aylwin v Police:[9]

Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable. The great majority of drivers comply with their obligations in this respect. A small minority do not. Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences. The courts must give full effect to that clear parliamentary indication.

[17] In our view the Judge was correct. His conclusion was that the applicant had been adequately informed of his rights and that he understood them. It was a matter of fact based upon the evidence he heard and was a finding open to the Judge on that evidence. There was no evidence before the Judge of any confusion or misunderstanding by the applicant. That may not be surprising given that the applicant had, in all probability, undergone the same procedures and received the same advice on at least two previous occasions. In the absence of any evidence it was simply not open for the applicant to contend (as he did not) that any confusion existed.
[18] It was open to the Judge on the evidence to find as he did that no confusion existed and that the applicant was properly advised of his rights at the police station (in a way slightly different to that advised in different circumstances at the roadside) As a consequence the breath and blood testing procedures at the police station which followed could not be impugned. The evidence was admissible.
[19] Naturally, the applicant retains the right to pursue at trial an objection to admissibility of the evidence if an evidential foundation might be established, either during trial or as a result of a voir dire. For the moment, however, the Judge’s ruling was entirely correct.
[20] Despite Mr Johnson’s invitation, this is not a case when dealing with leave to appeal on a pre-trial application where this Court should enter into any discussion about conflicting forms that the police in various parts of New Zealand might use at different times. Each occasion is fact specific, depending upon what is done and said and understood, at the time. Intricate semantic arguments, in a vacuum as to the implications of written words in formal documents, are inappropriate.
[21] We regard the District Court decision in Aveyard as a case that turned on its own facts and we do not endorse it on any other basis.

Result

[22] We grant an extension of time for the purpose of dealing with the application for leave to appeal on its merits, but leave to appeal is declined. The substance of the appeal has no merit.[10]

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Bath DC Wellington CRI-2009-078-1365, 17 August 2010.
[2] Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.
[3] Gallichan v Police [2009] NZCA 79 at [26].
[4] At [23].
[5] Police v Aveyard DC Wellington CRI-2008-085-6302, 27 April 2009.
[6] R v Mallinson [1993] 1 NZLR 528 (CA).
[7] At [23]–[25].
[8] At [27].
[9] Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].
[10] R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [14](g).

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/527.html