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Barrie v R [2012] NZCA 485; [2013] 1 NZLR 55; (2012) 26 CRNZ 326 (24 October 2012)

Last Updated: 26 January 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA849/2011
[2012] NZCA 485

BETWEEN DANIEL BRIAN THOMAS BARRIE
Appellant

AND THE QUEEN
Respondent

Hearing: 30 July 2012

Court: Glazebrook, Winkelmann and Rodney Hansen JJ

Counsel: V T Winiata and M Dorset for Appellant
M D Downs for Respondent

Judgment: 24 October 2012 at 12 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The questions are answered as follows:

(a) Does s 23(1)(b) of the New Zealand Bill of Rights Act 1990 provide a detainee with an automatic right to consult his or her lawyer in any case where the lawyer practises overseas?

The answer is no.

(b) If so, is a detainee who seeks to exercise the s 23(1)(b) right in this way required to justify his or her request to seek legal advice beyond New Zealand boundaries (by demonstrating that there are reasonable grounds to believe that he or she may be able to obtain relevant legal advice from such a source)?

This question does not arise by virtue of our answer to question (a).

(c) In the absence of such grounds will the police be justified in declining the request?

This question does not arise by virtue of our answer to question (a).

(d) By implication, having regard to the facts of this case, were the police obliged to advise or explain to the detainee those limitations on the s 23(1)(b) right?

The answer is no.

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

	Para No
Introduction	[1]
Background	[3]
The judgments below	[9]
Questions for this Court	[11]
The right to counsel in drink/drive situations	[13]
Submissions of the parties	[16]
Appellant’s submissions	[16]
Crown’s submissions	[19]
Purpose of right to counsel	[22]
Lawyers and Conveyancers Act	[28]
Introduction	[28]
Reasoning of the courts below	[32]
Our assessment	[35]
Is there an automatic right to consult a foreign lawyer?	[39]
Does a detainee have to justify a request to consult a foreign lawyer?	[50]
Were the police obliged to explain the limitations on the s 23(1)(b) right?	[52]
Result	[55]

Introduction

[1] This appeal concerns the question of whether a defendant has a right, under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), to contact foreign counsel in an excess breath alcohol situation.
[2] Section 23(1)(b) of the Bill of Rights provides:

23 Rights of persons arrested or detained

(1) Everyone who is arrested or who is detained under any enactment—

...

(b) shall have the right to consult and instruct a lawyer without delay and to be informed of that right; ...

Background

[3] On 18 June 2010, Mr Barrie was stopped at a routine police breath testing checkpoint in Tauranga just before midnight. He denied consuming alcohol but was required to undergo a breath screening test. He failed that test. At 12.05 am Mr Barrie was told that he was required to return to the police station for an evidential breath test, blood test or both.
[4] Shortly thereafter Mr Barrie was told of his right to counsel in terms of s 23(1)(b) of the Bill of Rights and that the police held a list of lawyers he could contact without charge. Mr Barrie said he understood his rights.
[5] The advice was repeated at the police station where Mr Barrie said that he wanted to speak to his lawyer in Sydney. The police officer told Mr Barrie that he could contact that lawyer but Mr Barrie could not recall the lawyer’s name. He asked if he could call his brother in Australia in the hope of identifying the lawyer.
[6] The police officer said that he could call his brother on his own cell phone but Mr Barrie said that the battery was flat. He was not given the option of using a police telephone to contact his brother. The police officer reiterated that Mr Barrie could use a police telephone to contact a local lawyer from the provided list.
[7] Mr Barrie subsequently refused to provide an evidential breath test and blood test, citing a lack of opportunity to contact his Sydney counsel. It is common ground that Mr Barrie had been repeatedly told that he could contact a local lawyer from the list but that he did not do so.
[8] On 14 January 2011 Mr Barrie was convicted of failing to permit a blood specimen to be taken under s 60 of the Land Transport Act 1998. He was sentenced to a six month disqualification from driving and fined $750 and ordered to pay costs of $132.89.

The judgments below

[9] In the District Court,^[1] Judge Ingram held that s 23(1)(b) of the Bill of Rights did not extend to a right to consult and instruct foreign counsel. The Judge considered that the protections afforded by s 23(1)(b) of the Bill of Rights and the provisions of the Lawyers and Conveyancers Act 2006, including the Act’s definition of “lawyer” as limited to persons holding a current practising certificate, accorded to exclude that interpretation, as did considerations of public policy.^[2]
[10] In the High Court,^[3] Lang J took the view that the term “lawyer” in s 23(1)(b) was sufficiently broad to extend to those without a practising certificate and, by implication, to lawyers practising outside of New Zealand.^[4] However, the Judge rejected the position that a detainee had an automatic right to foreign counsel. He held that a detainee who sought to exercise s 23(1)(b) in this manner must first demonstrate that there are reasonable grounds to believe that he or she may be able to obtain relevant legal advice from such a source. Only then would the police be obliged to facilitate such a request.^[5]

Questions for this Court

[11] Mr Barrie applied for leave to appeal against Lang J’s judgment to this Court. Lang J considered that leave should be granted for clarification of this area by way of the following questions:^[6]

(a) Does s 23(1)(b) of the New Zealand Bill of Rights Act 1990 provide a detainee with an automatic right to consult his or her lawyer in any case where the lawyer practises overseas?

(d) By implication, having regard to the facts of this case, were the police obliged to advise or explain to the detainee those limitations on the s 23(1)(b) right?

[12] Before addressing these questions we first summarise the case law on the right to counsel in a drink/drive situation and the parties’ submissions. We then make some general comments on the purpose of the right to counsel and, as this was relied on by Judge Ingram, discuss the significance of the Lawyers and Conveyancers Act.

The right to counsel in drink/drive situations

[13] In drink/drive cases the s 23(1)(b) right to counsel is more circumscribed than in other cases because of the need to reconcile the promotion of road safety with the provisions of the Bill of Rights.^[7] The leading case is Ministry of Transport v Noort; Police v Curran.^[8]
[14] In that case it was contended that s 23(1)(b) of the Bill of Rights conferred a right to telephone access to a lawyer in private at police expense. A Full Court of this Court^[9] upheld that argument on the basis that the right to counsel was qualified, as permitted under s 5 of the Bill of Rights, so that the public interest in the effective operation of the Land Transport Act would not be unduly compromised. This means that telephone consultation suffices.^[10] Further, there is no right to counsel of choice if that would cause undue delay. Ultimately it must always be a question of fact and common sense whether a reasonable opportunity to consult counsel has been given.^[11]
[15] Following this case, Parliament amended the Legal Services Act 1991 and established the Police Detention Legal Assistance Scheme. Under the scheme the police are provided with lists of lawyers capable of and willing to provide legal advice to detained persons.^[12]

Submissions of the parties

Appellant’s submissions

[16] Mr Winiata submits, on behalf of Mr Barrie, that the right under s 23(1)(b) to consult a lawyer is a right to contact a lawyer of one’s own choice. Parliament has not expressly restricted that right to lawyers practising in New Zealand. Prohibiting calls to foreign lawyers would undervalue the importance of the relationship of trust and confidence that may exist in a pre-existing lawyer-client relationship. It is submitted further that there is no real difference in time and cost between a telephone call to Sydney and one within New Zealand.
[17] In this case, the police initially said that they would permit a call to a foreign lawyer and then did not reasonably facilitate that contact. Mr Winiata referred us to the decision in Knapton v Police^[13] where the defendant wanted to call his wife in Australia so that she could identify a lawyer in New Zealand for him to consult. Temm J held that being prevented from telephoning his wife to get the information was an obstruction, without reasonable justification, of his rights.^[14]
[18] Finally, if, as Lang J held, there is a positive obligation to justify a call to a foreign lawyer then it is submitted Mr Barrie should have been informed of this.^[15]

Crown’s submissions

[19] Mr Downs, on behalf of the Crown, submits that the interpretation of the s 23(1)(b) right must be coloured by the fact that, in most cases, personal attendance by a lawyer is envisaged. This suggests that the right is restricted to consulting a lawyer practising in New Zealand. The fact that telephone consultation suffices in a drink/drive context cannot change the nature of the right afforded. Indeed, if anything, it suggests a more limited right taking account of practical issues, such as different time zones, increased cost and wasted time (as the likely advice of any foreign lawyer would be to seek the advice of a local lawyer).
[20] The Crown also submits that it is unlikely that Parliament intended a right to consult a foreign lawyer given the reason for the right: the provision of advice touching upon a detainee’s rights in circumstances of their detention and possible criminal jeopardy and ultimate representation in court.
[21] The Crown submits that the right to counsel assumes that the lawyer to be consulted will be able to provide relevant legal advice. Foreign lawyers are unlikely to be able to provide meaningful advice. The Crown submits that the long standing regulation of the legal profession in New Zealand and its latest manifestation, the Lawyers and Conveyancers Act, also supports its position. Further, the restriction to those who are duly qualified to practise law in New Zealand is a justified limitation on the right, which the Crown submits in any event is not absolute.^[16]

Purpose of right to counsel

[22] The right to consult and instruct a lawyer is one of a number of rights that guarantee the protection of detained and charged persons under the law. These rights are aimed at ensuring the proper administration of justice,^[17] and must be practical and effective rather than theoretical or illusory.^[18] In the context of a person charged, the right to counsel under s 24(c) is derived from the right to a fair trial.^[19] In the context of a detained person, the right under s 23(1)(b) assists in giving substance to the other rights in s 23, including the right to not be arbitrarily detained^[20] and the right to silence.^[21]
[23] Richardson J in Noort discussed the purpose of the right to counsel.^[22] In brief, he characterised the right to a lawyer as providing both access to advice (to enable informed decisions) and to representation by an independent intermediary.
[24] With regard to the first role, the Judge stated that knowledge of one’s rights and obligations under the law is crucial to their proper exercise. It is often the first step towards the effective enjoyment of relevant human rights such as rights to question the validity of continued detention, to bail, to silence, or to complain about any oppression and abuse of power on the part of officials of the State.^[23]
[25] With regard to the second aspect, the Judge said that few citizens have the knowledge, training and skill effectively to represent their own interests in any contest with the State. Whether acting as counsel in relation to charges which have been brought, or at an earlier stage as intermediary or as speaking for the detainee, the lawyer may serve a vital role.^[24]
[26] In R v Condon, the Supreme Court noted that legal representation will nearly always be necessary in order for a trial concerning a serious offence to be fair.^[25]
[27] The courts have also acknowledged a presumptive right to counsel of choice. This is based on the social value of freedom of choice and the view that the State should not intervene in the private and professional relationship between lawyer and client.^[26] This right is not absolute and is subject to reasonable and practical limitations.^[27]

Lawyers and Conveyancers Act

Introduction

[28] The Lawyers and Conveyancers Act, like its antecedents, regulates the legal profession as well as the provision of services by the profession to members of the public in such a way so that only those who are duly qualified to practise law in New Zealand may do so.^[28]
[29] The Lawyers and Conveyancers Act replaced the Law Practitioners Act 1982 and included the first statutory definition of “lawyer”. Under s 6, “lawyer” means “a person who holds a current practising certificate as a barrister or as a barrister and solicitor”. In relation to a lawyer, “practising certificate” means “a practising certificate issued under section 39(1) by the New Zealand Law Society”.^[29]
[30] Section 21 makes it an offence for any person who is not a lawyer to provide legal services in New Zealand while holding himself or herself out to be a lawyer. Section 25 sets out an exception to s 21. It permits foreign lawyers to provide legal services in New Zealand in any area that is not a reserved area of work, or in relation to any proceeding that requires knowledge of foreign law.^[30]
[31] The reserved areas of work referred to in s 25 are defined in s 6. These include the giving of advice in relation to court or tribunal proceedings and appearing before any court or tribunal.

Reasoning of the courts below

[32] Judge Ingram placed weight on the Lawyers and Conveyancers Act in concluding that s 23(1)(b) of the Bill of Rights conferred no right to foreign counsel. In his view, like the Bill of Rights, the Lawyers and Conveyancers Act is aimed at protecting the public. Its focus is on protection from the “ill-effects of incompetent and unqualified advisers”. In the Judge’s view, it was inconceivable that in enacting s 23 Parliament would have considered that potentially vulnerable detainees would have their interests advanced by receiving legal advice from unqualified and uncertified lawyers.^[31]
[33] The Bill of Rights pre-dates the Lawyers and Conveyancers Act. In Judge Ingram’s view, if Parliament had intended “lawyer” in s 23(1)(b) to include lawyers not holding current practising certificates, it would have made a consequential amendment to the Bill of Rights to reflect this.^[32] The term “lawyer” in s 23(1)(b) was therefore limited to persons holding a current practising certificate.
[34] On appeal, Lang J disagreed with this assessment. He said that the term “lawyer” is not unique to New Zealand and is used globally to describe persons holding legal qualifications, although not necessarily limited to those holding current practising certificates. The Judge considered that situations could arise where a detainee could justifiably request a lawyer not holding a current practising certificate. A detainee could for example request to consult a specialist academic or a lawyer who had practised in the field but, for whatever reason, had not renewed their practising certificate. In Lang J’s view, neither of these persons should be automatically excluded from giving advice under s 23(1)(b).^[33] It followed that consultation with a foreign lawyer was not automatically excluded from the s 23(1)(b) right. However, the right needed to be exercised reasonably. The Judge said that there was no automatic right to consult a foreign lawyer. If the detainee could demonstrate that there were reasonable grounds to believe that he or she may be able to obtain relevant legal advice from a foreign lawyer then exercising the right in this manner would be reasonable. Any refusal of a reasonable request would correspondingly be unreasonable.^[34]

Our assessment

[35] We do not accept Judge Ingram’s reasoning regarding the relationship between the definition of “lawyer” in the Lawyers and Conveyancers Act and s 23(1)(b) of the Bill of Rights.
[36] The enactment of a statutory definition of “lawyer” in the Lawyers and Conveyancers Act does not have any bearing on the meaning of “lawyer” in the Bill of Rights. Unless expressly adopted, the meaning given to a word in one piece of legislation is not affected by the meaning given to that same word in a different enactment.^[35] The courts have warned against the dangers of reasoning by analogy in statutory interpretation, especially between statutes dealing with different subject-matter.^[36] The definition in the Lawyers and Conveyancers Act defines the scope of the Act’s regulatory regime. There is no indication that it was intended to have wider application.
[37] This does not mean, however, that the regulatory regime in the Act has no significance to the practical application of the right.
[38] For example, limitations on the areas in which lawyers can work will affect the ability of lawyers who do not hold a current practising certificate to represent detainees in court.

Is there an automatic right to consult a foreign lawyer?

[39] We use the term “foreign lawyer” to denote a person who is not in New Zealand at the time a person wishes to exercise the s 23(1)(b) right and who does not hold a New Zealand practising certificate.
[40] For the avoidance of doubt, the term “foreign lawyer” is not intended to refer to a person holding a New Zealand practising certificate who happens to be overseas, although issues of practicality, particularly in the drink/drive context, may limit any right to consult counsel who are not in New Zealand.^[37] Our conclusions are therefore not to be taken as overruling the Court’s decision in Knapton v Police.^[38]
[41] While the question of whether there is a right to consult a foreign lawyer is posed in the context of drink/drive matters, the issue is also obviously of significance in other cases. However, we are asked to decide this issue in the drink/drive context and our conclusions are limited to this context.
[42] We accept the submission made on behalf of Mr Barrie that a detainee may have an existing relationship of trust and confidence with a foreign lawyer. We also recognise that some aspects of the lawyer’s role could be undertaken by a foreign lawyer. Even if not able to provide relevant legal advice, a foreign lawyer may be able to recommend a competent specialist local lawyer on the basis of his or her knowledge of the profession, which a layperson is unlikely to have. There may also be some aspects of the representation role that could be undertaken by a foreign lawyer: for example liaising with the police over conditions of detention.
[43] However, most foreign lawyers will not be qualified to provide relevant advice as to New Zealand law. Even if they have previously practised in New Zealand, their knowledge of New Zealand law may not be current. The most likely response of a foreign lawyer, if consulted, would be that the detainee should contact a lawyer practising in New Zealand. Indeed, that would usually be the only responsible response.
[44] We accept the Crown’s submission that the improbability of a foreign lawyer being able to offer meaningful assistance is not just a practical point that may cause delay. As is clear from Noort, the right to a lawyer on detention is designed to ensure that the detainee may be made aware of his or her rights through the provision of legal advice. The right can only be given practical effect by advice from a lawyer familiar with the relevant law.^[39]
[45] Further, as we have mentioned, foreign lawyers who do not hold a current New Zealand practising certificate are not allowed to appear before, or give advice in relation to court or tribunal proceedings.^[40] This points away from the use of foreign counsel to give effect to the right under s 23(1)(b). Foreign counsel would be unable to perform any part of the representation role if charges ensued.^[41]
[46] Practical issues may also arise in relation to the regulation of foreign counsel. The ethical and disciplinary code established under the Lawyers and Conveyancers Act only applies to lawyers who hold a current practising certificate or those who have previously held one.^[42] It does not extend to foreign lawyers who have never held a practising certificate. Most foreign lawyers, however, will be subject to equivalent codes in their home country. Issues with enforcement and extraterritoriality may nevertheless arise.
[47] We also accept the Crown’s submission that there are particular practical issues in the drink/drive context, suggesting that the s 23(1)(b) right does not extend to foreign counsel. A wasted call to a foreign lawyer would take time, in circumstances in which the Land Transport Act favours prompt enforcement of the drink/drive roadside procedures. Time zone differences could exacerbate the delay in a detainee making contact with an appropriate lawyer.
[48] For all of the above reasons, the police will be justified in declining any request to consult a foreign lawyer in the drink/drive context. It follows that the answer to the first question must be “No”.
[49] The question of whether and in what circumstances the s 23(1)(b) right may extend to consulting a foreign lawyer in other situations is not before us and we make no comment on this issue.

Does a detainee have to justify a request to consult a foreign lawyer?

[50] Lang J held that a detainee must demonstrate on reasonable grounds that a foreign lawyer may be able to provide relevant legal advice to that detainee before the s 23(1)(b) right extended to foreign lawyers.^[43] As we noted above, we consider that the only responsible advice a foreign lawyer could usually provide would be to consult a local lawyer, even where the foreign lawyer has previously practised in New Zealand. It is difficult to see therefore that Lang J’s test would ever be met. Further, we consider that it injects too much uncertainty. The test is too open ended and hard for the police to administer.
[51] We have in any event held that there is no right to consult a foreign lawyer in the drink/drive context and thus the question does not arise.

Were the police obliged to explain the limitations on the s 23(1)(b) right?

[52] If a request to consult a foreign lawyer is made in the drink/drive context and is refused,^[44] the police should explain that there is no automatic right to consult a foreign lawyer but that the right to consult a New Zealand lawyer will be facilitated.
[53] However, any failure of the police to explain that there is no right to consult a foreign lawyer will not constitute a failure to facilitate the right to counsel under s 23(1)(b) (given that foreign lawyers do not come within that paragraph), provided the opportunity to consult and instruct a New Zealand lawyer has been afforded.
[54] In this case, Mr Barrie was given every opportunity to consult a local lawyer. The evidence of his refusal to provide a blood specimen was therefore not improperly obtained for the purposes of s 30 of the Evidence Act 2006 and was correctly admitted. The conviction for failing to permit a blood specimen to be taken under s 60 of the Land Transport Act is upheld.

Result

[55] The appeal is dismissed.
[56] The questions are answered as follows:

(a) Does s 23(1)(b) of the New Zealand Bill of Rights Act 1990 provide a detainee with an automatic right to consult his or her lawyer in any case where the lawyer practises overseas?

The answer is no.

This question does not arise by virtue of our answer to question (a).

(d) By implication, having regard to the facts of this case, were the police obliged to advise or explain to the detainee those limitations on the s 23(1)(b) right?

The answer is no.

Solicitors:
Jackson Reeves, Tauranga for Appellant
Crown Law Office, Wellington for Respondent

^[1] Police v Barrie DC Tauranga CRI-2010-070-5243, 14 January 2011.

^[2] At [7]–[20].

^[3] Barrie v Police HC Tauranga CRI-2011-470-6, 6 October 2011.

^[4] At [26]–[28].
^[5] At [31]–[33].
^[6] Barrie v Police HC Tauranga CRI-2011-470-6, 22 November 2011.

^[7] For restrictions on the right to counsel of choice in other cases see R v Heemi (1998) 16 CRNZ 221 (CA), Clee v Attorney-General HC Auckland CIV-2010-404-7101, 12 November 2010, Clark v Registrar of the Manukau District Court [2012] NZCA 193, Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington, 2005) at [22.4.11] and fn 136. And more generally see R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [34]–[73] and R v Hill [2003] NZCA 18; [2004] 2 NZLR 145 (CA).
^[8] Ministry of Transport v Noort; Police v Curran [1992] NZCA 51; [1992] 3 NZLR 260 (CA).
^[9] With Gault J dissenting.
^[10] At 267 and 270 per Cooke P; at 284 per Richardson J; at 287 per Hardie Boys J.
^[11] At 274 per Cooke P; at 285 per Richardson J.

^[12] Legal Services Amendment Act 1994, s 12. This was repealed by s 126(1) of the Legal Services Act 2000, which was later repealed by s 145 of the current Legal Services Act 2011.
^[13] Knapton v Police (1993) 10 CRNZ 515 (HC).
^[14] At 517.
^[15] Mr Barrie does not accept that there is such an obligation.
^[16] Discussed at [13]–[14] above.

^[17] Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law UNHRC General Comment No 13 (1984) at [1].

^[18] Artico v Italy [1980] ECHR 4; (1981) 3 EHRR 1 (ECHR) at [33]; Airey v Ireland [1979] ECHR 3; (1979) 2 EHRR 305 (ECHR) at [25].
^[19] R v Condon, above n 7, at [73] and [76].
^[20] See for example s 23(1)(c).
^[21] Section 23(4).

^[22] At 279–280. See also Clark, above n 7, at [79].
^[23] At 279.
^[24] At 280.
^[25] R v Condon, above n 7, at [73].

^[26] Clark, above n 7, at [92].

^[27] Noort, above n 8, at 128 per Cooke P; Clark at [93]; Barry v Police HC Whangarei CRI-2007-488-29, 3 April 2008.

^[28] Lawyers and Conveyancers Act 2006, ss 21, 22, 24 and 26. See s 6 of that Act for the interpretation of various terms.
^[29] Section 6.
^[30] Section 25(1)(a) and (c).

^[31] At [12].

^[32] At [19].

^[33] At [27].
^[34] At [31]–[33].

^[35] J F Burrows and R I Carter Statute Law in New Zealand (LexisNexis, Wellington, 2009) at 423.

^[36] Credit Services Investments Ltd v Carroll [1973] 1 NZLR 246 (CA) at 259 per McCarthy J and at 262 per Turner P.
^[37] These limitations are discussed at [13]–[14] above.
^[38] Discussed at [17] above.

^[39] Familiarity with the law would normally presuppose a New Zealand law degree and/or the ability to practise in New Zealand. Whether it would also presuppose a current practising certificate is not a matter before us.

^[40] See [30]–[31] above. This is unless the high threshold set by s 25(1)(c) of the Act is met. See PIB v GA FC Hamilton FAM-2011-019-1331, 10 November 2011 at [29].

^[41] However, we accept that this factor is not definitive as it is not unusual for fresh counsel to be appointed to conduct a trial. The court also retains a residual discretion to allow a non-lawyer to appear under s 27(1)(b). This section reflects the inherent jurisdiction of the court to determine who may appear before it as advocates: Black v Taylor [1993] 3 NZLR 403 (CA) at 408–409.
^[42] Lawyers and Conveyancers Act 2006, s 107.
^[43] See at [10] above.

^[44] Although there is no automatic right to consult a foreign lawyer, the police may of course choose to allow such consultation.

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