M v Police HC Wellington CRI-2009-485-35 [2009] NZHC 1870 (26 June 2009)

Last Updated: 18 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI-2009-485-35}

M

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 23 June 2009

Appearances: J Tannahill for the appellant

M Snape for the respondent

Judgment: 26 June 2009

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] Ms M , the appellant, was convicted after a summary trial in the District Court on a charge of refusing to permit a blood specimen to be taken after having been required to do so by an enforcement officer. She was fined $550.

[2] Ms M now appeals against her conviction. She does so on the ground that the Police did not accord her her right under s 23(1)(b) of the New Zealand Bill of

M V POLICE HC WN CRI-2009-485-35 26 June 2009

Rights Act 1990 (NZBORA) – that is, the right of a person charged with an offence to consult and instruct a lawyer.

Background

[3] On 25 July 2008 Ms M was involved in a motor vehicle crash on Waterloo Quay in Wellington. Ms M underwent a passive breath test, which test detected alcohol in her breath. Ms M then attempted a breath screening test. She was, however, unable to provide a sufficient sample of her breath to complete the test.

[4] The Police then required Ms M to accompany them to the Wellington Central Police Station for the purposes of carrying out an evidential breath test, blood test or both. There is no dispute that Ms M refused to undergo an evidential breath test and an evidential blood test. Nor is there any dispute that she was properly advised by the Police of her NZBORA rights. What Ms M says, however, is that she gave the names of two lawyers to the Police, a Mr John Langford and a Mr Kevin Smith, as the lawyers she wished to consult. Whilst Ms M accepts the Police attempted to contact Mr Langford, she says they cannot establish to the necessary standard that they attempted to contact Mr Smith. Therefore, and although she was offered the opportunity to contact other lawyers, she was not properly afforded her s 23(1)(b) right. In support of that proposition Ms M also relied on the fact that, although the Police had endeavoured to contact lawyers on her behalf, she herself had not been given an opportunity to make such a phone call.

[5] At her summary trial Judge Broadmore found that the Police had properly afforded her her s 23(1)(b) right.

[6] The Judge recorded his understanding that the right was observed if the defendant is facilitated in an effort to contact a lawyer, and that a defendant is not entitled to insist that their own personal lawyer be the one who they take advice from and no other.

[7] The Judge said he was satisfied “to a standard exceeding that of the bare balance of probabilities” that the officers made a number of attempts to get hold of at least one of the lawyers (Mr Langford) mentioned by Ms M and that Constable Spence, the officer in charge of Ms M at the time, gave Ms M the opportunity on several occasions to consult another lawyer, which offers she declined. He noted, however, that it was less clear whether an attempt was made to contact Mr Smith.

[8] The Judge further held that it is not necessary that a defendant be given the telephone so that they can contact a lawyer. It suffices if the Police get a lawyer on the phone and then give the phone to the defendant.

Discussion

[9] Under s 30 of the Evidence Act 2006, once a defendant raises on the basis of an evidential foundation the issue of whether evidence was improperly obtained – such as in breach of a person’s s 23(1)(b) right – the Judge must find on the balance of probabilities whether or not the evidence was improperly obtained. If satisfied the evidence was improperly obtained, the Judge must then determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of the balancing process prescribed by s 30. The Court of Appeal has recently confirmed that s 30 applies to summary proceedings: Gallichan v Police [2009] NZCA 79 at [13] and [14].

[10] Seen in the context of s 30, the issue at Ms M ’ summary trial, and here on appeal, is therefore whether the very clear and uncontradicted evidence of her refusal to permit a blood specimen to be taken after being required to do so was improperly obtained because of the alleged breach of her s 23(1)(b) right. If it was improperly obtained, should it be excluded or not?

[11] In considering that question, it is clear that the relevant standard as to whether or not the evidence was improperly obtained is, as the statute now provides, on the balance of probabilities. It is not, as Mr Tannahill initially contended on Ms M ’ behalf, beyond reasonable doubt. Mr Tannahill was quick to accept that in the hearing before me.

[12] It is now well established that the fundamental right under s 23(1)(b) is, in the first instance, the right to consult one’s own lawyer, and that the Police consequently have a duty to act reasonably to facilitate that right. However, where the Police have made reasonable efforts to contact a defendant’s requested lawyer, and he or she is not available, it will suffice if the Police then offer the defendant access to another lawyer, for example off the Police lawyers list.

[13] Stevens J, in the very helpful recent decision of Barry v Police HC WHA CRI 2007–488–0029 3 April 2008, considered the relevant authorities and summarised the position thus:

[44] A synthesis of the above principles would suggest that the fundamental right in s 23(1)(b) is to consult and instruct a lawyer without delay and to be informed of that right. Where a motorist is informed of the right and makes a request to consult his own lawyer, the extent of the facilitation obligations on the police will turn on a range of factors including time, place and circumstances. Questions of reasonableness and practicality will obviously apply so that a motorist is not entitled to reframe or redefine the s 23(1)(b) right by insisting unreasonably on only dealing with his own lawyer. Whether the police have adequately facilitated the exercise of the right to consult a lawyer will be a question of fact and common sense and will depend on all the circumstances of the particular case.

[14] In Brown v Police HC HAM CRI-419-87-02 22 October 2004, a full High

Court (Priestley J and Winkelmann J) earlier expressed a similar view:

[61] It will often be possible, with the benefit of hindsight, to suggest other actions that might have been taken to better facilitate the exercise of s 23 rights, or to find fault with those actions that were taken. However, as was said by Neazor J in Steel v Police (1994) 11 CRNZ 282 the question for the Court is whether in the particular circumstances of the case reasonable action has been taken to facilitate the exercise of the rights. The issue for the Court is not whether the action taken was, with the benefit of hindsight, the best possible course of action available.

[62] Having reviewed the notes of evidence in this case, the Court is satisfied that in all the circumstances a reasonable opportunity was afforded to the appellant to exercise his rights under s23 of the Bill of Rights Act and that the Constable did adequately facilitate the appellant’s attempts to contact Mr Mohamed.

[15] Thus, the extent of the facilitation obligations on the Police to contact a requested lawyer will turn on a range of factors including time, place and circumstances. Questions of reasonableness and practicality will apply, so that a

person in custody is not entitled to insist unreasonably on only dealing with his or her own nominated lawyer.

[16] Here, Ms M gave the Police two lawyers’ names, not one. Were the Police required to attempt to contact both? In my view, reasonable facilitation of a detained person’s right to a lawyer of their own choice, at first instance, does require the Police to attempt to contact a second named lawyer when a first named lawyer cannot be contacted. It is clear that the “statutory testing process cannot be unduly hindered by hopeless or hapless quests for particular, unobtainable lawyers” (Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260, 284). In my judgment, however, it is not unreasonable for a detained person to request a second known lawyer if for some reason a first choice is unavailable.

[17] That said, the question here becomes an evidential one – namely, whether I am satisfied on the balance of probabilities that Constable Spence took reasonable steps to attempt to contact Ms M ’ second requested lawyer, Mr Smith.

[18] As the Judge observed, there was a lack of clarity in the Police evidence as to whether or not reasonable efforts were in fact made to contact Mr Smith when Mr Langford was not available. As the Judge understood the right not to entitle a defendant to consult any specific, or his or her own, lawyer, he would appear not to have considered it necessary to resolve that question. Given, however, that the right is one in the first instance to contact a lawyer of one’s choice, that is the question I must resolve. I therefore turn to the evidence on that question.

[19] In her evidence-in-chief Constable Spence said that, having advised Ms M of her rights again at the Police Station at 7.13pm, Ms M said she would like to speak with her lawyer. Constable Spence attempted to locate her lawyer’s details in the White Pages. Constable Spence went on to say that she could not recall the lawyer’s name, and that she had not written it down, but that she had made numerous efforts to contact “the name” Ms M had given her. As was accepted by Mr Tannahill, Ms M was at this point becoming loud and abusive. When she had been unable to contact that lawyer, Constable Spence provided Ms M the

opportunity to choose a lawyer from the Police lawyers list. Ms M refused, saying she did not want another lawyer.

[20] At approximately 7.20pm Constable Spence then required Ms M to undergo an evidential breath test. Ms M refused. Constable Spence then advised Ms M that she was required to permit a medical practitioner to take a blood sample. Ms M said no.

[21] Constable Spence then arrested Ms M for failing to provide a blood sample, and again advised her of her NZBORA rights. According to Constable Spence, the appellant continued with her loud and abusive behaviour throughout this process.

[22] Constable Spence explained in her evidence-in-chief that she had told Ms M at least half a dozen times throughout the whole procedure that the Police had tried to contact her lawyer and he was unavailable, and that they would make a lawyer available to her. According to Constable Spence, the appellant “repetitively refused to talk to any other lawyer”. She said she had tried many times to contact Ms M ’ lawyer of choice, had been unsuccessful in doing so and had showed Ms M the lawyers list many many times and Ms M had refused to select another lawyer.

[23] In cross-examination, Constable Spence initially denied that Ms M had given her two lawyers’ names. She said she could only remember being given one name by Ms M , that of Mr John Langford. Mr Tannahill then asked her whether Constable Spence remembered Kevin Smith. The Constable at that point said yes, that name rang a bell with her. Mr Tannahill then put to Constable Spence a handwritten note she had made on the EBA record then being used by the Police. That note read, under the heading “Notes of interest”, as follows:

M was showing signs of being highly intoxicated. She was unco- operative throughout the EBA procedures.

Numerous attempts were made to contact her requested lawyer John Langford & Kevin Smith. She sat silently when asked to select another lawyer.

[24] Mr Tannahill then challenged Constable Spence’s evidence that she had attempted to contact Mr Kevin Smith. He asked her if she would be surprised if Mr Smith was to give evidence that, during the span of time involved in Ms M being processed, he had been at his office and had not received a phone call from the Police. Constable Spence said she would be surprised at that. In answer to a question from Mr Tannahill as to whether she thought it important to make a note of the time of her attempts to ring Mr Smith and of the numbers rung, which she had not done, she responded:

I guess, um, because I’d written down in my notes of interest and I know that I would have definitely called him after giving those rights and asking her to speak to a lawyer, I know it would have been about that time perhaps it was something that I could have written down with a time next to it. But I do know when I would have rung him and I did make note that I did obviously attempt to make those calls.

[25] Mr Tannahill further cross-examined Constable Spence on the fact that she had not, except as noted above, made a reference in her own notebook to having tried to ring either of Mr Langford or Mr Smith.

[26] The following exchange occurred at the end of Tannahill’s cross-examination of Constable Spence:

Q. So just by way of conclusion you can't tell the Court, and you have no record of it, as to when you rang Kevin Smith and you don’t know what number you rang?

A. I didn’t write down his phone number, no. I know at what point throughout the procedures I did try calling them both but not the exact time. But I know the point throughout the whole procedure.

Q. Well just as a matter of, just finally as a matter of interest. Over the period of the – that you and her were in the EBA suite, how many times do you think you might of rung Kevin Smith?

A. Probably about three times. Q. And –

A. It would have been at least two.

Q. Are you able to tell the Court whether, in respect of Kevin Smith, whether you got no answer or an answerphone or aren't you sure?

A. I don’t remember.

[27] Sergeant Cousins, who was present for at least some of the time, gave a different version of events. He said that Constable Spence first attempted to contact

the lawyer whose name had been given to her by Ms M . When the Constable was unable to contact that lawyer, she gave Ms M the list of duty lawyers, and asked her to choose another lawyer from that list. Ms M eventually pointed to the lawyer at the top of the list. Constable Spence made attempts to contact that lawyer, but was not able to do so. Constable Spence then gave Ms M the option of choosing another lawyer off the list, but Ms M replied she only wanted to speak to her lawyer. Sergeant Cousins could not remember the names of the lawyers involved, but thought that if he was not present when Constable Spence actually made the calls he was nearby anyway, and would have heard the conversation if Constable Spence had made contact with anyone.

[28] A passenger in the vehicle at the time of the crash gave evidence that he had told Ms M to contact his lawyers, Mr Langford and Mr Smith.

[29] Mr Smith’s evidence – accepted by the Judge – was that he did not receive a phone call. He stated that on Fridays in July 2008 he would have been in his home office until at least “7, 7.30 odd”. He said that he would “generally then not go out” and later, in response to a question as to when he left, that “I often don’t. I don’t go out nowadays”. He stated that he always has his cellphone on him. He does not have an answerphone on his landline, but he has a number of lines.

[30] On the basis of that evidence, am I satisfied on the balance of probabilities that Constable Spence made reasonable efforts to contact Mr Kevin Smith?

[31] Constable Spence’s contemporaneous note is clear that she attempted to contact both lawyers numerous times. Indeed, Mr Tannahill relied on the accuracy of that note to establish in cross-examination that Ms M had provided both those lawyers’ names to Constable Spence. On the face of it, it would seem more likely than not that that note was an accurate record of what occurred, supported by Constable Spence’s evidence at trial, including as referred to at [26].

[32] Against that is Constable Spence’s apparent inability to independently recall having attempted to contact Mr Smith – her evidence being that she “would have” or “must have” attempted to contact him.

[33] Moreover, it is not easy to reconcile Sergeant Cousins’ evidence with the evidence given by the Constable. According to Sergeant Cousins’ evidence, Ms M did not mention a second lawyer and only chose the second lawyer called, unsuccessfully, from the top of the Police list.

[34] Further, there is Mr Smith’s evidence that he did not receive a phone call from the Police and that, if such a call had been made, he would likely have received it. I note, of course, that the fact that Mr Smith did not receive a phone call is not conclusive that a call was not made. It is, however, a factor to be weighed in assessing the likelihood of reasonable efforts having been made to contact him.

[35] I also recognise the relatively short time frame in which any attempts to contact Ms M ’ requested lawyers must have been made (7.13pm to 7.20pm).

[36] Having regard to the evidence as a whole, therefore, and notwithstanding the apparent clarity of Constable Spence’s note, I am not satisfied, on the balance of probabilities, that Constable Spence did in fact make reasonable efforts to contact Mr Smith.

[37] It is therefore necessary to determine whether or not the exclusion of the evidence is proportionate to the impropriety involved in the manner stipulated by s 30(2) of the Evidence Act. In my view, exclusion is not proportionate to the impropriety. The right to a lawyer is of course a fundamental right. However, it is accepted that Constable Spence did attempt to contact Ms M ’ first choice of lawyer, and there is no indication that any failure to attempt to contact Mr Smith was done recklessly or in bad faith. Moreover, although the breach was more than technical, it was a relatively minor intrusion on Ms M ’ right to consult and instruct a lawyer in light of the clear and repeated opportunity for her to consult another lawyer. The evidence – Ms M ’ refusal to undertake the test – is conclusive proof of the offence, and, of course, is of vital importance to the Police case. Weighing the s 30(3) factors, I am satisfied that the exclusion of the evidence would be a disproportionate response.

[38] Ms M also argued on appeal that the Police were required to physically give her access to the telephone, so that she could make the phone call herself.

[39] In evidence before the District Court, Constable Spence advised that the usual procedure was to make the call to the lawyer, get them on line, and then get the defendant to come through and speak with their lawyer in a private room. The defendant is not simply left in a room with a phone because in the past they have abused the privilege and phoned other people. Sergeant Cousins confirmed that this was the usual procedure.

[40] In my view, the Judge was correct in stating that the s 23(1)(b) right does not require that the person detained be physically given the telephone to contact a lawyer. It suffices if the Police get the lawyer on the phone and then give the phone to the detained person (with privacy). The practical reasons for taking this approach, as stated by Constable Spence, are apparent, and it does not interfere with the person’s right to consult and instruct a lawyer without delay.

[41] I also agree with the Judge that this process was consistent with the Police advice form given to Ms M , which stated that if she wished to consult and instruct a lawyer “a telephone will be made available for that purpose” and later that a “telephone is made available to you”. This does not impose any requirement on the Police to allow the detained person to actually dial the number, and there is no policy reason to read in that requirement.

Result

[42] For the reasons given, Ms M ’ appeal is dismissed.

“Clifford J”

Solicitors: Langford Law, Wellington (counsel: J A Tannahill: [e-mail]) The Crown Solicitor, Wellington for the respondent ([e-mail])