Police v MJF DC North Shore CRI-2010-044-5675 [2012] NZDC 453 (20 March 2012)

Last Updated: 2 January 2020

IN THE DISTRICT COURT AT NORTH SHORE

CRI-2010-044-005675

NEW ZEALAND POLICE

Informant

v

[M J F]

Defendant

Hearing: 20 March 2012

Appearances: Sergeant M Hayden for the Informant A L Simpson for the Defendant

Judgment: 20 March 2012

NOTES OF JUDGE F J EIVERS ON SENTENCING

[1] [M J F], you appear before me today on one charge of driving a motor vehicle on Taharoto Road while the proportion of alcohol in your blood exceeded 80 milligrams of alcohol per 100 millilitres of blood in that it was 111 milligrams of alcohol per 100 millilitres of blood, you, having been convicted at least twice previously, of an offence against of sections 56(1) or 56(2) or 58(1) or 61 Land Transport Act 1998 or the corresponding provisions of the Act.

[2] It is alleged that on 22 July 2010 you were driving along Taharoto Road. The police officer on duty in the area was Constable De Souza. You were stopped because you were speeding, doing 78 kilometres in a restricted area. At that stage the constable noticed signs that you had been drinking alcohol and administered the

POLICE V [M J F] DC NSD CRI-2010-044-005675 [20 March 2012]

various tests under the Land Transport Act relevant to excess breath or blood alcohol.

[3] He noted that your speech was slurred and your eyes were glazed. The passive breath test was administered; alcohol was displayed on the machine. The breath screening test was then administered and that was a fail general. You were asked to accompany the constable back to the police station which you did. The evidential breath test was then conducted and eventually a blood test was taken.

[4] Your defence at the defended hearing today centres around three issues. Firstly, it is your defence that you were not given your Bill of Rights at the roadside by the constable before being asked to accompany him to the police station. Secondly, that s 23 NZ Bill of Rights Act 1990 has not been complied with as you were not able to telephone your own lawyer and your choice of lawyer was restricted because of availability of lawyers that evening. Thirdly, that pursuant to s 77(3) Land Transport Act 1998, you were not advised without delay of the result of the blood test.

[5] In terms of the administration of the passive breath screening test, the blood test, the blood specimen form and the obtaining of blood, the sending off of the blood and the obtaining of certificates from the ESR, there is no issue.

[6] The police, of course, have a responsibility to prove the elements of the offence beyond reasonable doubt. They must show therefore that you were the driver, that the blood alcohol level exceeded the legal limit and that you have been convicted at least twice previously of the offence. There is no issue that you were the driver and no issue has been taken with the certificates as to previous convictions that have been presented to me today. The issue really does boil down to admissibility of the evidence and whether or not therefore the evidence should be admitted for the purposes of proof in this case.

[7] Dealing firstly with the issue of not being given your Bill of Rights at the roadside. Constable De Souza gave oral evidence. He says that he gave you the passive breath test first, then the breath screening test: that was a fail general. He

notes that he gave you the passive breath test at 10.52 pm, the breath screening test at 10.53 pm and then asked you to accompany him to the police station. At that stage, his evidence is that he gave you the Bill of Rights and that he did not read from his notebook or any script, that he gave you the Bill of Rights from his memory. In Court today he recited that as you “having the right to remain silent, you do not have to say anything, that anything you do say will be recorded and used against you in a Court of law and that you have the right to speak to a lawyer in private without delay”. He did not record in his notebook that he gave you the Bill of Rights until he returned to the North Shore Police Station.

[8] His evidence is that on arrival at the North Shore Police Station, you asked to speak to a lawyer; he gave you a printout of the list of duty solicitors. You said that you wanted to use your own lawyer. He asked if you had the details of that lawyer but you did not know and you asked if you could call a friend to find those details out. The constable’s evidence is that he informed you that they did not usually allow people to call private individuals and that you eventually agreed to speak to someone from the public defence service.

[9] In fact, there is a note made on the breath and alcohol procedure sheet pol515 on the back page, saying that you refused to speak to a duty solicitor, wanted to phone a friend to ask about lawyers, eventually consented to select a duty solicitor.

[10] He said that you called the lawyer, and you spoke with the lawyer, he believes, for about 10 minutes. He then filled out the form the pol515 that I have previously referred to. At that time when filling out that form, he advised you of your right to speak to a lawyer as it is set out in that form, and his evidence is that you did again speak to the lawyer.

[11] In cross-examination, it was put to the constable that he did not offer you the Yellow Pages and in fact that you asked to use the Yellow Pages. The constable did not agree with that and his evidence was simply that the only denial was the fact that you were not allowed to call a friend.

[12] In submissions your counsel has referred me to a number of authorities on this point, the main ones being Knapton v Police which is a decision of the late Temm J (HC Auckland, 28 June 1993). There is also the decision of R v McMillan Heath J (HC Auckland, 14 May 2007).

[13] I refer to s 23 NZ Bill of Rights Act 1990 which sets out the rights of persons who are arrested or detained. Section 23(1) (b) NZBOR says that everyone who is arrested or detained under any enactment shall have the right to consult and instruct a lawyer without delay and to be informed on that right. It is submitted on your behalf that you did not have a choice of lawyer because you were unable to phone a friend to find out details about a lawyer you could ring. Secondly, that when you were presented with the list, two of the lawyers were unavailable or uncontactable and so in effect you had to ring the third lawyer and therefore did not have a choice.

[14] The section does not state that you shall have a choice of lawyer rather that you have the right to consult and instruct a lawyer without delay and be informed of that right. I have looked at each of the authorities presented to me to see whether they state specifically that you are entitled to a choice of lawyer and I cannot find that there is specific authority in that regard. Rather, it seems that it is really a matter of circumstances as to whether s 23 has been complied with in any particular case.

[15] Referring to Brookers at paragraphs 23 and 22(2), there is commentary that a list should be provided for people in situations of detention so that they can ring a lawyer. Paragraph 23(23) talks about obstruction of the ability to contact a lawyer. The commentary refers to Knapton. In the case of Knapton an Australian citizen was travelling in New Zealand. He wanted to use his cellphone to contact his wife in Australia to find a lawyer to contact in New Zealand. He was denied that right because he was told that his cellphone would interfere with equipment at the police station. The Court did find in that case that such a refusal was an obstruction to the exercise of the right of the defendant.

[16] I have read through that case and in my view it is useful in that it does state the principles which need to be applied in this sort of situation and I quote from that case at page 3 as follows:

“One has to start from principles in these matters and the right to obtain legal advice will vary from circumstance to circumstance, at least in the way it is exercised or prevented.”

[17] Referring then to the case of MOT and Noort and speaking of the opportunity to get legal advice:

“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 the 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 of 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 commonsense whether a reasonable opportunity has been given.

[18] Justice Temm then goes on to quote Richardson J from the same case which says that:

“... the due carrying out of the statutory process cannot be unduly hindered by hopeless or hapless quests for particular, unobtainable lawyers, or by an insistence on a part of the motorist not to comply unless his or her lawyer attends there in person...”

[19] In the case of Knapton the defendant did not go on to ring any other lawyer, despite being provided with Yellow Pages and did not therefore obtain any legal advice at all. In your case Mr Finlay, you had the opportunity to ring a lawyer. The constable’s evidence is, although I note that you dispute it, that you rang the lawyer on two occasions and that opportunity was afforded to you without delay. I consider that the requirements of s 23 NZBOR have been complied with and that you did have the opportunity to consult a lawyer in accordance with that Act.

[20] I refer to McMillan and Heath J’s discussion about the Bill of Rights issue. In that case, Mr McMillan did specify a particular lawyer with whom he wished to speak. That request was denied and hence Justice Heath found that the provisions had not been complied with.

[21] Going back therefore to the principles that are set out in Knapton, it is a question of fact and commonsense, and I consider that a reasonable opportunity was given to you to contact a lawyer and accordingly that submission fails.

[22] The second point made in your defence was that of delay in being given advice of the evidential breath screening test. I have looked carefully at the evidence on this and although I hear what your counsel has to say in that regard, I cannot agree that that is what the facts actually show. The constable’s evidence is that he recorded the times of the breath and blood alcohol procedure sheet according to his watch. That states that the requirement to undergo evidential breath test without delay was given at 23:43. The following was then recorded, “Advised person of evidential breath test, result immediately, time 23:46.” So that is a gap of three minutes. The result from the machine has a test time of 23:38 and that the test time was 23:31. The constable’s evidence is that this watch time was not the same as the machine time. Looking at each of the times there is a difference of three minutes recorded, whether by the constables watch or by the machine. I do not agree with Mr Simpson’s submission that there is a delay of 11 minutes on the evidence presented to me. I find that it is a three minute delay and that is not unreasonable. There is therefore compliance with s 77(3) of the Act.

[23] Finally, there is the issue of whether or not you were given your rights at the roadside. That is perhaps the most important of all of these matters before me because it is a trite legal requirement that the Bill of Rights is given before a person is required to accompany a police officer. This issue has come down to a matter of credibility. I note your oral evidence that you were not given those rights however you did immediately, upon going to the police station, ask to speak to a lawyer. The police officer was firm in his evidence that the rights were given. I also take account of the context which is that you had been drinking: that was noted by the constable, and it is part of the constable’s job to make such observation. He did note it in his notebook, although I accept that that was done once he got back to the police station, however it was noted. I prefer therefore, the evidence of the constable and I find that you were given your rights at the roadside.

[24] I therefore find in respect of each and every element of the offence and the charge is proved beyond reasonable doubt.

F J Eivers

District Court Judge