Kerr v Police [2018] NZCA 326 (27 August 2018)

Last Updated: 10 October 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA661/2017 [2018] NZCA 326

	BETWEEN	ZANE CHRISTOPHER KERR Appellant
	AND	NEW ZEALAND POLICE Respondent

Hearing:	7 August 2018
Court:	Winkelmann, Brown and Clifford JJ
Counsel:	J D Lucas for Appellant R K Thomson for Respondent
Judgment:	27 August 2018 at 3.00 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is granted in respect of the following matters:

(a) whether the right in s 23(1)(b) of the New Zealand Bill of Rights Act 1990 implies an obligation on the State to facilitate the availability of legal advisers to enable the envisaged legal consultation to occur; and
(b) whether there was a breach of Mr Kerr’s right under s 23(1)(b) in the circumstances where calls were placed unsuccessfully to 13 lawyers.

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REASONS OF THE COURT

(Given by Brown J)

[1] Mr Kerr was convicted of one charge of failing to provide an evidential blood sample and one charge of driving while disqualified following a judge alone trial in the District Court.^[1] Having unsuccessfully challenged his conviction for the failure to provide a blood sample in the High Court^[2] he applies under s 253(1) of the Criminal Procedure Act 2011 for leave to bring a second appeal against that conviction. The key issue is whether there was a breach of Mr Kerr’s right under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) to consult a lawyer.
[2] Section 23(1)(b) states:

Everyone who is arrested or is detained under any enactment shall have the right to consult and instruct a lawyer without delay and to be informed of that right.

[3] The section was considered in the context of the breath alcohol regime by this Court in Ministry of Transport v Noort where Cooke P observed:^[3]

The opportunity is to be limited but reasonable. It is not necessarily restricted to one call, but there must be no unreasonable delay. A driver who cannot immediately contact his or her own lawyer should normally be allowed to try one or two others. If, despite a reasonable opportunity, no lawyer can be contacted (perhaps because of the hour of night) the test need not be delayed further. Rosters of lawyers, available to undertake this work at an appropriate fee, may be prepared by the Law Society, the police or the ministry, but that is outside the control of the Court. Hard and fast rules cannot be laid down for all circumstances. Ultimately it must always be a question of fact and common sense whether a reasonable opportunity has been given.

[4] On the issue of facilitation Richardson J said:^[4]

That right can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation on the enforcement officer to facilitate contact with a lawyer ... The exercise of that right should be facilitated by making available a telephone — whether a cell phone in the officer’s car or a telephone on arrival at the testing station will depend on the circumstances. And for the effective enjoyment of the right motorists to whom the breath/blood-alcohol regime applies will have to be afforded access to lists of lawyers, including outside ordinary office hours to lists of lawyers’ home telephone numbers.

The level of facilitation required has been addressed in several authorities since.^[5]

[5] In response to Noort, Parliament introduced a scheme of legal aid, the Police Detention Legal Assistance Scheme (“PDLA scheme”), to facilitate an initial consultation between a lawyer and a person undergoing police questioning (whether arrested or not) or in police detention, regardless of the detainee’s financial means.^[6] The Chief Justice’s Practice Note on Police Questioning ensures that those questioned by the Police are both aware of the PDLA scheme and the fact that it is free of charge.^[7]
[6] The crux of Mr Kerr’s proposed appeal concerns alleged deficiencies in the PDLA scheme. Mr Lucas submitted that the NZBORA applies to the PDLA scheme and that Mr Kerr’s right was breached in the circumstances where none of the 13 lawyers who were telephoned by him or on his behalf on the evening of his detention answered the calls. Mr Lucas contends that it is important to determine whether s 23(1)(b) applies to the PDLA scheme as it will potentially affect all persons who are detained by the police and need access to free legal advice. In his judgment deciding Mr Kerr’s first appeal Davidson J referred to anecdotal evidence of a police officer in another case that as many as seven out of ten times no lawyer can be reached at night off the PDLA list.^[8]
[7] In opposing leave Ms Thomson submitted that there is no obligation on the State to provide legal advice to a detained person and that the proposition that the State could take no action until Mr Kerr had obtained such advice was contrary to authority and inconsistent with the statutory provisions.
[8] The Crown contends that while the issues identified by Davidson J regarding the operation of the PDLA scheme may be a matter of general importance, it is not a matter involved in the appeal, the short point being that the police are not responsible for the scheme’s administration. Mr Lucas counters that a detained person’s fundamental right to consult with a lawyer is undermined to the point where it has no utility if none of the lawyers on the PDLA scheme are available to be consulted.
[9] In Barrie v R this Court observed that 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.^[9] The Court said that these rights are aimed at ensuring the proper administration of justice and must be practical and effective rather than theoretical or illusory.^[10]
[10] However Butler and Butler make the point that because Parliament enacted a particular scheme for the provision of legal advice no consideration has been given in the case law to the prior question of whether such a scheme (or a similar one) is necessary to fulfil the requirements of s 23(1)(b).^[11] They suggest that because Parliament has seen fit to go beyond its NZBORA obligations and provide the PDLA scheme does not mean that it is legitimate to otherwise extend the scope of s 23(1)(b).^[12]
[11] In view of the element of uncertainty concerning the s 23(1)(b) right and the claimed inadequacy of the PDLA scheme it is appropriate in our view that leave be granted to Mr Kerr to appeal to this Court on the following matters:

• (a) whether the right in s 23(1)(b) of the New Zealand Bill of Rights Act 1990 implies an obligation on the State to facilitate the availability of legal advisers to enable the envisaged legal consultation to occur; and
• (b) whether there was a breach of Mr Kerr’s right under s 23(1)(b) in the circumstances where calls were placed unsuccessfully to 13 lawyers.

[12] Leave is granted to the Minister of Justice as the responsible Minister to appear and present submissions on the appeal. This judgment will also be sent to the New Zealand Law Society (who was originally required to be consulted on the PDLA scheme) and to the Criminal Bar Association who may apply for leave to appear or make a written submission on the appeal.

Solicitors:
Public Defence Service, Christchurch for Appellant
Crown Law Office, Wellington for Respondent

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^[1] Police v Kerr [2016] NZDC 26952.

^[2] Kerr v Police [2017] NZHC 2595.

^[3] Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA) at 274.

^[4] At 284.

^[5] R v Mallinson [1992] NZCA 163; [1993] 1 NZLR 528 (CA); and Rae v Police [2000] NZCA 156; [2000] 3 NZLR 452 (CA).

^[6] Legal Services Act 1991 (repealed), s 158C; now Legal Services Act 2011, s 68. Discussed in Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [20.7.25].

^[7] Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.

^[8] Kerr v Police, above n 2, at [33].

^[9] Barrie v R [2012] NZCA 485, [2013] 1 NZLR 55 at [22].

^[10] At [22].

^[11] Butler and Butler, above n 6, at [20.7.25].

^[12] At [20.7.27].