Police v Lewis [2020] NZDC 25765 (11 December 2020)

Last Updated: 27 April 2021

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT WELLINGTON I TE KŌTI-Ā-ROHE KI TE WHANGANUI-A-TARA

CRI-2019-085-002250 [2020] NZDC 25765

NEW ZEALAND POLICE Prosecutor

v

JANINE MARGARET LEWIS Defendant

Hearing: Submissions:	1 December 2020 7 December 20201
Appearances:	Ms J Snelson for the Prosecutor Ms C Sheat for the Defendant
Judgment:	11 December 2020

RESERVED JUDGMENT OF JUDGE S M HARROP AS TO VERDICT

Introduction

[1] Ms Lewis is charged with driving with excess breath alcohol on 10 September 2019 on John Sims Drive, Broadmeadows. The breath alcohol level was 1311 micrograms of alcohol per litre of breath.

1. Ms Sheat, who made oral submissions at the end of the hearing, was given the opportunity (without obligation) to file submissions in reply to the written submissions from Ms Snelson by 15 December but advised the court on 10 December that she did not wish to do so.
   

NEW ZEALAND POLICE v JANINE MARGARET LEWIS [2020] NZDC 25765 [11 December 2020]

[2] Ms Lewis pleaded not guilty and the matter came before me for trial on 1 December 2020. She challenges the admissibility of the prosecution evidence solely on the basis that her fundamental right to consult and instruct a lawyer without delay and in private was breached, with the result, she submits, that the evidence on which the prosecution case depends was improperly obtained in terms of s 30 of the Evidence Act 2006 and that the exclusion of the evidence would be proportionate to the impropriety.

[3] The police submit Ms Lewis’ fundamental right to private consultation with her lawyer was not breached, so the evidence was not improperly obtained and is not liable to exclusion.

The facts in more detail

[4] Although Ms Lewis elected to give evidence and raised some dispute with the evidence given by the sole prosecution witness [the first Constable]2, most of the prosecution evidence is not disputed by Ms Lewis.

[5] On 10 September 2019 at 7:33pm [the first Constable] was directed to try to apprehend a car being driven erratically through Ngauranga Gorge onto Burma Road. Another motorist had called the police with concerns about the driver and was following the vehicle, whose registration he had noted. The address in John Sims Drive in Broadmeadows where the owner lived was conveyed to [the first Constable] and the fact that the car had pulled into the driveway.

[6] At approximately 8pm [the first Constable] arrived at that address and saw the vehicle in question parked in the driveway unoccupied. A NIA check on the vehicle showed it was registered to Janine Margaret Lewis. Her photograph was on the NIA database. [The first Constable], and [the second Constable], who accompanied [the first Constable], knocked on the door which was opened by a woman in a dressing gown. [The first Constable] recognised Ms Lewis from the photograph. He asked if she was Janine Lewis and she replied that she was.

2. [The first Constable] has retired from the Police since the incident but since he was a constable at the time I shall refer to him in that way.

[7] [The first Constable] informed her that the police had received a complaint from a motorist about the manner in which the car had been driven less than 30 minutes earlier and asked her if she was the only driver of the car. She said she was. Her speech was slightly slurred. [The first Constable] required her to undergo a breath screening test. She agreed to the test which returned a result of “over 400”. [The first Constable] then required her to accompany him to his patrol car for the purposes of an evidential breath test, blood test, or both and he orally advised her of her rights.

[8] [The first Constable] explained in evidence that the police now have evidential breath testing devices carried out in their cars which obviates the earlier requirement to bring a suspected drink driver back to the station.

[9] Ms Lewis stated that she had been home for more than an hour and had consumed alcohol after getting home, as well as cooking dinner, feeding her cats and getting changed. [The first Constable] told her that this was contrary to the information he had been given, which was that she had been driving her car less than 30 minutes ago. He informed her that she was lawfully required to accompany him to the patrol car, which she did.

[10] Ms Lewis explained that she had been told that day that she would be losing her job and had gone out with friends after work to commiserate. She said she had consumed two glasses of champagne, followed by two glasses of whisky and coke after arriving home. She said she may have been driving erratically because she was crying while driving home.

[11] Ms Lewis was directed to sit in the front passenger seat of the patrol car. [The first Constable] sat in the driver’s seat and [the second Constable] in the rear passenger seat, behind Ms Lewis. [The first Constable] read out the Bill of Rights advice on the EBA procedure sheet. Ms Lewis said she wanted to speak to a solicitor. She did not name a specific solicitor, so [the first Constable] called Ms Barbara Hunt on her behalf. After speaking to her and confirming her availability to give advice, he handed his phone to Ms Lewis. Both officers got out of the car. While seated in the patrol car, Ms Lewis spoke to Ms Hunt for four to five minutes; both police officers remained outside the car.

[12] After she had finished speaking with Ms Hunt, she undertook an evidential breath test which gave a result of 1311 micrograms of alcohol per litre of breath. [The first Constable] told her the result then gave her the further appropriate Bill of Rights advice. She said she wished to speak to a solicitor and said it would be fine to speak to Ms Hunt again. She spoke to her for four to five minutes in the patrol car while the officers again remained outside. She declined her right to supply a blood sample after the 10-minute period expired. While she considered that option both officers were seated inside the car.

Factual disputes

[13] [The first Constable’s] evidence was that on both occasions when Ms Lewis was on the phone to Ms Hunt, he and [the second Constable] were standing together about three metres away from the car talking about unrelated matters and, as he put it, “killing time”. He said the windows and doors were all closed and he could not hear anything that Ms Lewis was saying, despite it being a crisp, cool evening and

very still. There was no other traffic so he and [the second Constable] stood roughly in the middle of the road, but forward of and to the side of the vehicle. It was parked on the far side of the road from Ms Lewis’s house. On both occasions he was standing with [the second Constable] beyond the centreline i.e. on the half of the road closest to Ms Lewis’s house. There was nobody else around throughout the processing.

[14] [The first Constable] said that he maintained visual contact with Ms Lewis because she not only had his phone but was the sole occupant of his patrol car. He said he has had suspects run off or release the handbrake on a slope in these

circumstances. He added it is helpful to be able to be seen by a suspect so that when the phone call is completed the suspect can give a hand signal to indicate that to him. That indeed is what happened with Ms Lewis. He said he always stands in a position where he cannot hear what the suspect is saying as to do that “would be contrary to

the purpose of her having privacy with the solicitor”. He also confirmed in cross- examination that he is unable to lip read but accepted he had not told Ms Lewis that he could not lip read.

[15] Ms Lewis elected to give evidence and said that [the first Constable] was, during at least one of the calls, not standing with [the second Constable], who was at the rear of the vehicle leaning on the boot. She also said that [the first Constable] was within about a metre of the car and that on at least one of the occasions he was on the left-hand side of the car at the front, on either the footpath or grass verge. She thought, although she was not sure, that the back passenger door may have been left slightly ajar on one of the occasions when [the second Constable] got out.

[16] Where there are discrepancies between the evidence of [the first Constable] and that of Ms Lewis, I reject Ms Lewis’s evidence as being unreliable, genuinely given though it was. She was, as the breath alcohol reading shows, significantly

intoxicated. [The first Constable] was sober. She was also, understandably,

emotionally upset both about her employment news and about being required to leave her home in her dressing gown to sit in the patrol car.

[17] Ms Lewis said that she “would have thought” [the first Constable] was close enough to hear what she was saying. She said for this reason she tried to keep her voice down until Ms Hunt asked her to speak up because she could not hear her very well. However, she is in no position to dispute [the first Constable’s] clear evidence that he could not hear her.

[18] At no stage did Ms Lewis complain to either of the officers that she was not adequately being afforded privacy during her consultations with Ms Hunt.

[19] I am satisfied that neither officer could hear what Ms Lewis was saying to Ms Hunt (let alone what Ms Hunt may have been saying). I am also satisfied that while Ms Lewis may genuinely have (subjectively) thought it was possible that she could be heard, there was no objective reason to think that in these particular circumstances the officers could or did hear her.

[20] There is no reason not to accept [the first Constable’s] evidence that he could not hear her during the calls to Ms Hunt, nor any reason to think [the second Constable] was in any better position to do so. I accept [the first Constable’s]

evidence that during both calls they were standing about three meters away from the car, talking together.

The Law

[21] Last year in the Porirua District Court Judge Hastings dealt with a case in which the same issue arose, which has been reported as Police v Duncan3. I respectfully adopt His Honour’s survey of the applicable legal principles:

• [14] Section 23(1)(b) of the New Zealand Bill of Rights Act 1990 provides that everyone who is arrested or detained “shall have the right to consult and instruct a lawyer without delay”. Clause 2(b) of the Chief Justice’s Practice Note on Police Questioning (referred to as the “Practice Note” or “Guidelines”) supplements this protection by stating that “the person has the right to consult and instruct a lawyer without delay and in private”. Breach of the Practice Note does not necessarily mean that evidence has been improperly obtained. The breach, if one exists, must be taken into account by the judge, but a finding of unfairness is not mandatory. Nevertheless, the Court of Appeal said in R v Hennessey that the Guidelines “promote the affording and protection of rights articulated in ... the New Zealand Bill of Rights Act 1990. ... There is then considerable public interest in maintaining compliance with the standard of conduct set out in the Guidelines.”4
  
• [15] In Police v Kohler, the Court of Appeal said:5
  

... a right to consult and instruct a lawyer without delay carried with it the right to consult and instruct in privacy. The traditional and necessary confidentiality of the lawyer/client relationship is an implicit requirement.

In that case, unlike this case, the officer was in the same room throughout the defendant’s conversation with his lawyer and was able to hear the defendant’s end of the conversation.

[16] When, as here, an evidential basis has been established for a challenge to the admissibility of evidence, Henry J said in Robertson v Police that the onus lies on the prosecution to satisfy the Court that there has in fact been no breach.6 In that case, the defendant underwent a breath screening test which produced a positive result. He then accompanied the officer to the police station where he was advised of his right to consult and instruct a lawyer. He rang the lawyer after which he underwent an evidential breath test. During the ten-minute period relevant to the giving of a blood sample, he again asked to speak to

3 Police v Duncan [2019] DCR 852.

4 R v Hennessey [2009] NZCA 363 at [30].

5 Police v Kohler [1993] 3 NZLR 129 at 132.

6 Robertson v Police, AP 366/92, High Court Auckland, 22 February 1993 at 3, citing R v Mallinson

[1992] NZCA 163; (1992) 8 CRNZ 707 at 709.

his lawyer. After speaking with his lawyer, a second time, he declined the blood test.

[17] In Robertson, the telephone used by the defendant was in a passageway just outside the office in which the officer was seated at a desk. The defendant was about ten feet, or three metres, away from the seated officer. Each had his back to the other. It would have been possible for the officer to overhear the defendant’s conversation with his lawyer, but he said he did not hear any part of it. The defendant said that he felt inhibited by the officer’s proximity in discussing matters fully with the lawyer. The District Court judge held that the defendant was not justified in his stated belief that the officer could overhear his conversation with the lawyer and that the evidence of the evidential breath test was therefore admissible.

[18] On appeal, Henry J said the District Court judge did not accurately state the test. He held that “a purely subjective test is not appropriate.” He said:7

The inquiry therefore is whether in this particular set of circumstances a reasonable person would have concluded that a right of privacy to discuss his or her case without fear of being overheard had been afforded.

[19] Henry J said that notwithstanding the evidence that the parties were not in the same room, and that the distance between them was ten feet, “[I]t is significant that the officer was in a position to hear the appellant speaking, whether or not he wished or intended to listen.”8 Henry J held that a reasonable person would not conclude that privacy had been afforded in those circumstances. Henry J found a breach of the right of privacy required by s 23(1)(b), excluded the resulting evidence and dismissed the charge.

[20] In Tamatea v Police, one of the grounds of appeal was whether the defendant was afforded the right to consult a lawyer in private. The defendant phoned his lawyer from a booth. The booth had a light which was on when the phone was in use, and which went off when the call was ended. The defendant said when he was in the booth he could hear persons talking and walking around, as well as the noise of generators. He said all of this ambient noise required him to talk loudly to be heard. This in turn led him to be concerned about being overheard. A police sergeant said that the walls of the booth were sandwich construction polystyrene laminated with aluminium and clad with sound deadening carpet matting on the inside, including the door. He said in his experience he had never been able to hear conversations inside the booth, particularly when there were others in the breath testing unit, and having regard to the sound of the generators. Williams J looked at the matter in “a realistic way” and found, on the basis that the defendant did not suggest that he could hear what was being said outside the booth, and on the basis that having to speak loudly over the ambient noise “does not suggest he was unable to discuss his position with Ms Dyhrberg nor that he was

7 At 4.

8 At 5.

unable to receive the advice which she gave him,”9 that the defendant’s right to consult a lawyer in private was not breached.

[21] Kohler and Tamatea are at opposite ends of the spectrum. In Kohler, the defendant’s right to consult a lawyer in private was breached when the officer was in the same room as the defendant when he consulted his lawyer. In Tamatea, the defendant’s right to consult a lawyer in private was not breached when the defendant was in a sound-proofed booth with a light over the door to indicate when the call was finished, notwithstanding the ambient noise that caused him to have to speak loudly.

Discussion

[22] I accept that through her evidence Ms Lewis has provided an evidential basis, albeit a tentative and tenuous one, for the possibility that her right of privacy was breached. That means that the prosecutor must prove beyond reasonable doubt that it was not. I am satisfied to that standard that it has done so.

[23] The circumstances of this case are materially different from those in Police v Kohler, Police v Duncan and Robertson v Police. The closest case is Tamatea v Police where Williams J was satisfied that Mr Tamatea’s right to privacy was not breached.

[24] It is not a question, as Henry J said in the Robertson case of applying a purely subjective test i.e. it is not to be determined by what either Ms Lewis of [the first Constable] thought about whether she could be overheard by either or both of the officers. Rather the question is whether in the particular circumstances a reasonable person would have concluded that Ms Lewis’s right of privacy to discuss her case with Ms Hunt without fear of being overheard had been afforded. I am sure that a reasonable person would have so concluded in the particular circumstances of this case. Ms Lewis was undoubtedly entitled to the fundamental right to discuss her situation with Ms Hunt on those two occasions privately and confidentially and without any impairment of that right. There is nothing about the facts of this case, as I have found them to be, which suggests that that important right was impaired in any way. The officers were, objectively, not in a position to overhear and there was nobody else around who might have.

9 Tamatea v Police A 135/00, High Court Auckland, 9 November 2000, at [35].

[25] Ms Sheat submitted that it was an aspect of the alleged breach of the right that [the first Constable] maintained visual contact which made Ms Lewis feel uncomfortable (not that Ms Lewis actually gave evidence to that effect, as I read the notes of evidence). There is no evidence that [the first Constable] could lipread. Indeed he clearly indicated through his evidence a keen appreciation of the importance of the privacy right. He also gave reasons why visual contact was appropriate yet still consistent with the privacy right being fully afforded. Again, it is not a question of whether Ms Lewis subjectively felt her privacy right was being impaired by her observation by [the first Constable] but of whether objectively a reasonable person would have concluded that her right of privacy was fully afforded.

[26] I would add that in my view the general observation, of a “keeping an eye on” nature, of a suspect by an officer, provided it is without being in a position to overhear, would in principle be very unlikely to amount to a breach of the privacy right. The purpose of the right is for confidential private advice to be given and received between the solicitor and the suspect. Being watched at a safe distance while that occurs does not in any way impinge on this fundamental right, except perhaps in the very unusual case where an officer can lipread from a distance at which he cannot overhear.

[27] Being satisfied beyond reasonable doubt that there was no breach of the privacy right, I find that the excess breath alcohol evidence was not improperly obtained and there is therefore no basis for it to be excluded.

[28] As the rest of the prosecution evidence supporting the charge was not challenged, I find the charge proved beyond reasonable doubt, a verdict of guilty is entered, and Ms Lewis will be convicted.

Sentencing

[29] Since reaching my decision I have checked Ms Lewis’s previous convictions and am told she has none. Accordingly sentencing should be able to proceed without a pre-sentence report. An alcohol interlock declaration will be needed if Ms Lewis is not in a position to have that order made. If Ms Sheat considers that either a pre- sentence report or an alcohol or other drug report would assist the court with

sentencing she should contact the Registrar who in that event should ensure these are prepared in time for sentencing.

[30] The sentencing could be dealt with by me on 16 February. The Registrar is to discuss this with Ms Sheat and make the necessary arrangements.

Judge S M Harrop

District Court Judge

Date of authentication: 11/12/2020

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.