Harvey v New Zealand Police HC Wellington AP 104/01 [2001] NZHC 779 (23 August 2001)

Last Updated: 6 November 2013

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY AP 104/01

BETWEEN FREDERICK JAMES HARVEY
Appellant

AND NEW ZEALAND POLICE
Respondent

Hearing: 12 June 2001

Counsel: D S G Deacon for the Appellant
A M McClintock for the Respondent

Judgment: 23 August 2001

JUDGMENT OF GODDARD J

Solicitors:
Luke Cunningham & Clere, Wellington, for the Respondent

[1] The appellant was convicted of driving with an excess breath alcohol level of 453 micrograms of alcohol per litre of breath, fined $750, ordered to pay court costs and disqualified from holding or obtaining a drivers licence for the mandatory period of 12 months.

[2] He has appealed against his conviction on two grounds. First, that his decision not to elect a blood test was the result of unfair influence on his mind, wrought by comments made by the constable prior to commencement of the 10 minute period during which he had to consider whether to elect to undergo a blood test. Second, and compounding the first, that he was not readvised of his right to counsel at the beginning of the 10 minute period.

Background

[3] The bulk of the facts are not in dispute. After failing a roadside breath screening test, the appellant accompanied the constable to Wellington Central Police Station, where he underwent an evidential breath test, the result of which showed 453 micrograms per litre of breath. Prior to undergoing that evidential breath test, the appellant was advised of his right to counsel and cautioned about his right to silence. He declined to avail himself of the opportunity to consult counsel and a standard bill of rights form was completed, indicating the time at which the advice was given. The appellant signed the form. Following his positive evidential breath test result, the constable advised the appellant of his right to elect to undergo a blood test and his right to a 10 minute period in which to decide whether to remain with the evidential breath test result or to undergo a blood test. The form containing the formal advice of this was read out to the appellant and signed by him. The constable then told the appellant that he should ask any questions he wished before the 10 minute period commenced and if he chose to ask questions during the 10 minute period the timing of the period would have to be stopped and recommenced after the questions. On the constable’s evidence, the appellant did not ask him any questions prior to the period commencing and after 13 minutes had elapsed without conversation the 10 minute period was concluded. At the end of the period the appellant said he “wished to remain with the result of the evidential breath test”.

[4] In contrast, the appellant’s evidence was that he asked the constable “what do you think” when advised of his right to elect a blood test and the constable replied “that if I had a blood test it would probably give a higher result than the evidential breath test”. On the basis of that comment the appellant said he “naturally thought that I was probably better just to stick with the breath test rather than go for the blood test and then he got me to wait the full 10 minutes”. For that reason he had elected not to undergo a blood test.

Grounds of Appeal

[5] The appeal centres on the alleged conversation between the constable and the appellant prior to the commencement of the 10 minute period and which the appellant contends influenced his decision not to undergo a blood test.

[6] Also at issue is an alleged failure by the constable to readvise the appellant of the right to counsel following his over-limit positive breath test result and prior to the 10 minute period commencing.

Improper Influence by the Constable?

The Evidence and the District Court Judge’s Findings

[7] The issue was summarised by the District Court Judge as follows:

“[4] The point at issue is this. Mr Harvey says that as it happened, he and the constable knew each other. They had had dealings some three years before and, in fact, Mr Harvey had been arrested by the constable on a quite unrelated matter. They remembered each other and they had a conversation about that unrelated matter and [sic] quite casual and even friendly tones. As part of that general conversation and before, as I understand his evidence, the ten minute period began to run, Mr Harvey said something to Constable Vining along the lines of, “Well, what do you think?” or something of that kind as to whether or not he should have a blood sample and the constable told him that if he had a blood test, it would probably give a higher result than the evidential breath test.

[5] As I have already mentioned, Mr Harvey then acknowledged that notwithstanding anything that might have been said to that affect [sic], the constable insisted that the full ten minutes be occupied. In fact, as it turned out, it was 13 minutes before accepting any formal decision on that point. Whether or not that comment was made by the constable was put to him in cross-examination. He said that he had no recollection of it and he said that he made, as was his custom, a notebook entry of events and statements as things go along, although he acknowledged that casual comments may not be recorded but he certainly had no record of making that sort of comment.”

[8] The Judge then went on to make the following findings on the evidence and to address the appellant’s concerns:

“[6] Given the relationship that Mr Harvey described and on which he was not challenged, I think I have to give him the benefit of the doubt that some comment to that effect may well have been made. The issue is what affect [sic] does that have on the balance of the procedure. As Mr Deacon said in the course of submissions, there seems to be something of a doubt of authority on the point but there is a judgment of Justice Tompkins reported as Wilson v Ministry of Transport HC Whangarei AP 58/88 Judgement 16 February 1989 where, at least as noted in Butterworths Transport Law, a learned judge was prepared to accept obiter that if there was evidence that a suspect was being unfairly pressed by an enforcement officer to elect blood during the ten minute period that that could result in a conclusion that procedure has not been properly followed. Here, as I say, there is no suggestion that the ten minute period was intruded into. This conversation took place before that began. Mr Deacon accepted that he would not attempt to categorise what was said as being, “Unfair pressure”, or amounting to the subject being unfairly pressed. He did, however, submit that it had an influence on the mind of Mr Harvey and that that may well have been to his disadvantage.

[7] Mr Harvey said that he really was inclined to accept that advice and he was influenced by it. He suggested that had he known what he says he knows now that his decision may well have been otherwise and that he believes the blood result could well have been lower. We simply do not know that. His physiology and the rate of absorption and so on might or might not have brought that result about. We simply do not know, nor is it particularly relevant to know. The issue is whether in some way the Court would regard as unfair or improper his freedom to make an untrammelled decision was intruded upon.

[8] Mr Harvey knew perfectly well that he had the right to consult a solicitor if he was in doubt about his issues. He had been told that and he knew it and elected not to. There is some suggestion that he had some reasonable familiarity with breath and blood testing procedures generally. As mentioned previously, he has two qualifying offences and there was suggestions of other similar experiences as well but, given the time lapse, I do not think I place too much weight on that.

[9] Overall I think that I should not hold that what was said should be categorised as being unfair or oppressive or anything of that kind . . . given Mr Harvey’s quite clear recollection of what was going on, he seems to me to have been thinking quite clearly, he knew that he could get advice if he had any doubts about it. He may have taken aboard what the constable said but I do not think in any sense that it could be said to have influenced his decision that the result not be admitted . . .”

Case Law

[9] In the Wilson decision referred to by the trial Judge in para [6] of the judgment quoted above, Tompkins J said (at p8):

“I am prepared to accept that if there is evidence that a suspect is being pressed unfairly by a traffic officer to consent to a blood test being taken, that that could well result in a conclusion that the procedure has not been fairly followed, so that the result of the test should be excluded. This is in accordance with the conclusion expressed by Thorp J in Gallaugher v Ministry of Transport (M909/85, Auckland Registry), where Thorp J referred to the relevant authorities on page 4.”

[10] The relevant authorities referred to by Thorp J in Gallaugher include McCafferty v Ministry of Transport (HC Auckland M347/84, 18 June 1984, Vautier J). In McCafferty, Vautier J gave a more detailed summary (at p4) of situations in which unfair pressure blood alcohol testing procedures has been found:

“. . . a number of unreported decisions in which evidence as to the results of a blood alcohol test taken in pursuance of the statutory provisions here under consideration was rejected on the grounds that the suspect had been subjected to duress or unfair treatment. The decisions referred to are: Fifield v. Ministry of Transport, M.421/81 Auckland Registry, judgment 29 July, 1981; Arthur v. Ministry of Transport, M.608/83 Auckland Registry, judgment 7 July, 1983 and Dixon v. Auckland City Council, M.39/84 Auckland Registry, judgment 23 May, 1984. It is made clear by what is said in these decisions that they all proceed upon the underlying basis of what was said by Mahon, J. in an earlier decision, Stowers v. Auckland City Council delivered on 21 December, 1977. Thus, in the first case mentioned, Fifield’s case, Moller, J. quotes the following passage from the judgment of Mahon, J. in the earlier case:

“In New Zealand, however, as in the United Kingdom, the courts have taken the position that the statutory requirement of self-incrimination, no matter how justified on social grounds, must carry with it a corresponding requirement that the authorised mode of extracting the incriminating evidence is to be strictly performed.”

In Fifield’s case the factual situation upon which the judgment proceeded is that the traffic officer made an unsolicited statement to the appellant that in addition to being arrested he would be “taken to the Takapuna cells for the night”.

In the later case of Arthur the Judge proceeded upon the basis that the evidence clearly showed that there was a possibility of the appellant in that case having had mentioned to him that a night in the cells might follow if he did not furnish the specimen.

Likewise, in the third case, Dixon, is was accepted that there had been a statement made by the enforcement officer that if the appellant did not submit to the test he would be then and there arrested.”

[11] Later in McCafferty (at p6), Vautier J further commented that, whilst suspects may sometimes form their own views as to what might happen to them if they do or do not furnish a blood test, such views should not invalidate the blood test unless been formed as the result of improper actions by the enforcement officer. He said:

“It would not be surprising, of course, if in some cases and indeed in many of these cases, persons asked to undergo a blood test are in something of a confusion as to what their position is and they may very easily form ideas . . . that they might face some imprisonment of some kind forthwith if the specimen is not furnished. There is no indication on the facts as found by the Judge, however, that any coercion was exercised in this way against him in any respect by the traffic officer or that any such impressions that the appellant formed in his mind were attributable even to any actions of the traffic officer.”

[12] The provision under consideration in McCafferty was s 58 Transport Act 1962, which related to requests by enforcement officers to undergo blood tests, rather than the provision at issue in this appeal, which concerns the right of a suspect to choose, during a 10-minute period, whether or not to give a blood test following an over-limit evidential breath test.

[13] In Gallaugher Thorp J sounded an appropriately cautionary note (at p4) about the proper limitations to be placed on drawing from other cases as authorities in this somewhat difficult area of law. He said:

“As in the Hawkins case I should record my view that this is a difficult area of the law, in which nothing stated on a hearing of this nature should be regarded as authoritative beyond the matter before the Court at the time.”

[14] What is certain however is that the preponderance of cases concerning alleged pressure on a suspect subject to the 10-minute decision making period under s 77 Land Transport Act 1998 (or its predecessor, s 58 Transport Act 1962) have involved intrusions by an enforcement officer into the 10-minute period. In contrast, the discussion in the present case occurred before the 10-minute period commenced.

[15] In Driscoll v Police (HC Wellington AP 108/88, 13 July 1988, Ellis J), (an appeal allowed on other grounds), Ellis J found that notwithstanding a comment by the officer to the effect that “not many people bother with blood tests these days because they cost too much” followed by a discussion about how long it would take for a doctor to come and administer the test, it was nevertheless open to the District Court Judge to find that the appellant was not improperly influenced. On that basis Ellis J declined to interfere with the District Court Judge’s finding on the issue. He said (at p11):

“The Judge below held as follows:

“The essential issue before the Court is to examine the nature of that discussion and to determine whether the choice was fettered, and I conclude that it was not in any way. I accept Constable Porter’s evidence that the election as to the giving of the blood sample was entirely up to him, that is the defendant. I accept that there was very probably some discussion about the procedures and the cost of calling out a doctor, but in the context of this discussion I am of the clear view that those responses were not put in any way so as to influence the defendant, who at the end of the day had that free choice available to him.”

In my view it was open to the Judge to reach the conclusion that he did on the evidence. His conclusions involve to some extent an assessment of the way the evidence was given, and bearing that in mind, I am not prepared to come to a different conclusion.”

Discussion

[16] Examination of the facts in this case does not give rise to any disquiet that the preliminary conversation between the constable and the appellant was unfair or oppressive in any sense. That conversation was initiated by the appellant and whilst a counsel of perfection would have seen the constable refrain from responding to the appellant’s question and simply telling him that he was not there to give advice, the conversation cannot be categorised as an attempt on the part of the constable to influence the appellant. Nor is there any evidence that the appellant was in fact influenced by the conversation. I therefore agree with the District Court Judge’s analysis that although the appellant may have taken aboard what the constable said, it cannot be construed as having influenced his decision not to remain with the evidential breath test result. Furthermore, the result of the breath test itself does not imply inability on the part of the appellant to think the situation through clearly. In this regard I note the District Court Judge commented on the appellant’s clear recollection of events and found lthat he seemed to have been thinking clearly at the time. In addition, the Judge commented on the appellant’s knowledge of his right to consult counsel and his earlier election not to do so: also his familiarity with breath and blood testing procedures generally.

[17] The case is clear on the facts and it is therefore unnecessary to have recourse to facts in similar cases. Suffice to say that that appellant’s situation did not involve threats such as those described in the line of cases discussed in McCafferty. On the contrary, the situation is more akin to that in Driscoll. I therefore have no hesitation in upholding the District Court Judge’s findings on the evidence and conclude that the decision made by the appellant was entirely voluntarily and untrammelled by any influence, undue or otherwise.

Failure to Readvise Right To Counsel Prior to Commencement of 10 Minute Period

[18] This issue was not raised at the defended hearing as Mr Deacon conceded. For that reason there is no direct evidence as to any failure to readvise the appellant of his rights, nor any cross-examination of the constable on the subject. Nor was the issue raised in submissions before the District Court Judge. It has only emerged as a line of argument on appeal.

[19] In support of this ground of appeal, Mr Deacon referred to and relied on the decision in Rae v Police [2000] 3 NZLR 452. The relevant passages are at p462:

“[57] It follows from the availability of the right to counsel during the entire process that the obligation of the enforcement officer to facilitate the exercise of the right, which this Court recognised in R v Mallinson [1993] 1 NZLR 528, also continues throughout. The obligation matches the circumstances. What is required at any particular point during the procedures will depend upon the circumstances at that time, including of course the requirements of the Act. It is not to be overlooked that it may only be when the evidential breath test result is ascertained that the motorist appreciates that an offence may have been committed. What has to be provided in that circumstance is a fair opportunity for the detained person to consider and decide whether or not to exercise the right (Mallinson at p 530). It is a question of whether the motorist has been afforded the facility “to exercise the right in a real and practicable way once there has been an indication that he or she wishes to do so”, as Neazor J put it in Steel v Police (1994) 11 CRNZ 383 at p 391

[58] Prior to the taking of an evidential breath test a full advice of rights and active facilitation of contact with a lawyer, where the motorist evinces a wish to do so, is necessary. As a matter of now standard practice, this includes supplying a telephone in circumstances of reasonable privacy and making available and calling attention to a telephone book or a list of lawyers willing to give advice to detained motorists.

[59] It appears from material made available to the Court that, at least in some parts of the country, the police have also wisely adopted the general practice of repeating full Bill of Rights advice at the beginning of the 10-minute period regardless of whether the motorist has already exercised the s 23(1)(b) right and spoken to a lawyer. This was done in the present case. The extent of the facilitation which may be necessary at this time will depend upon the circumstances in each case, including what has already occurred by way of exercise of the right and whether the motorist indicates a wish to take legal advice again before making an election in relation to a blood test. The police would at this stage of the process be justified in simply reacting appropriately to what appears to be the wish of the motorist in regard to the s 23(1)(b) right without actively telling the motorist what he or she can be assumed already to understand, such as the existence of the list of lawyers where that has previously been pointed out.”

[20] As noted in the above passage, the appellant in Rae was readvised of her rights prior to the 10 minute decision period.

[21] In Nye v Police (HC Wellington AP 106/01, 30 May 2001), Ellis J considered the situation of a constable not readvising the right to counsel prior to requiring a suspect to undergo an evidential blood test, following an attempted evidential breath test being deemed incomplete due to the suspect’s failure to co-operate. Ellis J referred to the following passages in Litten v Police [1996] 13 CRNZ 604 at 615 as instructive:

“There will be circumstances in which the s 23 information will have to be repeated. The most obvious example is the case where the nature of an investigation changes significantly: R v Tawhiti [1993] 3 NZLR 594, R v Jones unreported, 16 July 1993, CA312/92. Beyond that, whether there is a need to repeat the information seems to me to turn very much on all the facts, applying the policy of s 23. Even accepting Mr Francois’s submission that the lapse of time between the roadside arrest and the request for a blood sample at the police station was considerably longer than the one or 2 minutes referred to by the Judge, it was clearly a short time: certainly on the evidence less than 30 minutes. Such an interval would not of itself in my view necessitate repetition of the information to a driver who had heard and understood the initial information. Although the arrest was for refusing to accompany the officer, the request to accompany was explicitly for the purposes of obtaining an evidential breath test or blood test or both. In those circumstances, a driver who had received and understood such information would know that in the process to which he was subject the opportunity to consult a lawyer remained.”

[22] Ellis J found it clear on the facts that the appellant in Nye had understood his rights, that the constable had warned him of the consequences of not providing a blood specimen, and that consequently no further warning was necessary.

Discussion

[23] As Mr Deacon accepted in the present case, the District Court Judge had no opportunity for making a finding on the facts as to whether any further warning or advice was appropriate in the appellant’s case, because the issue was never raised at trial, Nor is it now possible for this Court on appeal to make such a finding, given the dearth of evidence. No evidence in chief was given on the point and no cross-examination mounted. However, what can be said with confidence is that there was no substantial change in circumstances or in the nature of the investigation against the appellant between the time he was first advised of his rights and the over-limit evidential breath test result was obtained, and the time at which he was given the option of considering whether to elect to undergo a blood test. What is clear from the conversation between the appellant and the constable is that he was fully alive to his situation and conscious of the choices with which he was presented. He had, only a short period of time prior, unequivocally declined his right to consult counsel. He also had some previous experience of the system, although this is not a factor that should count against him nor excuse any denial of his rights. However, I do not regard the appellant’s situation as one involving denial of rights: rather it was a situation where his rights had been clearly given only a short time prior and where no substantial change in the nature of the investigation or any time lapse had occurred.

[24] The decision in Rae does not go as far as to impose an absolute obligation to readvise the right to counsel prior to commencement of the 10 minute period, although the decision does highlight the fact that it may not be until an evidential breath test result is ascertained that a suspect fully appreciates that an offence may have been committed. However, what the Court of Appeal emphasised in Rae was the provision of fair opportunity for a detained person to consider and decide whether or not to exercise their right to counsel.

[25] In the present case I am satisfied the appellant was under no illusions about his rights and his ability to exercise them and nor was he prejudiced by any failure to readvise those rights.

Judgment

[26] The appeal is dismissed.