Waretini v Police [2014] NZHC 2669 (29 October 2014)

Last Updated: 3 December 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-42 [2014] NZHC 2669

BETWEEN	ALEXANDRA ARAHI WARETINI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	24 October 2014
Counsel: Appearance:	TA Needham for respondent AA Waretini, appellant in person
Judgment:	29 October 2014

_{JUDGMENT OF FAIRE J}

Solicitors: Almao Douch, Hamilton

_{To: AA Waretini, Thames}

Waretini v New Zealand Police [2014] NZHC 2669 [29 October 2014]

Table of Contents

The appeal ..............................................................................................................[1] Background facts....................................................................................................[2]

District Court decision. ..........................................................................................[9] Grounds of Appeal ...............................................................................................[13] Timeliness of the appeal.......................................................................................[14] Approach to appeal ..............................................................................................[18] Approach to appeal against sentence ...................................................................[24] Appellant’s submissions .......................................................................................[27] Respondent’s submissions....................................................................................[32] Relevant legislation ..............................................................................................[37] Analysis ................................................................................................................[43] The appeal against sentence .................................................................................[58] Result....................................................................................................................[60]

The appeal

[1] Ms Alexandra Arahi Waretini appeals against her conviction and sentence for refusing to permit a blood sample to be taken.

Background facts

[2] Judge Marshall summarised the background facts to this matter in his judgment. What I set out is a short summary of the matters that he recorded in his judgment. That is because there is, in essence, no criticism of Constable Malloy who was the police officer involved. He followed the correct procedures as far as the Land Transport legislation is concerned. As the Judge said, the matter comes back to the issue of whether Ms Waretini was entitled to have a constable present who was a Maori Liaison Officer or a Maori Warden.

[3] The events commenced at approximately 12:56 am on 26 January 2014 in Pollen Street, Thames. Constable Malloy observed a car being driven by Ms Waretini pull into a park outside the Imperial Hotel. He spoke with her. He observed her speech was slurred and so he then required her to undergo a roadside or passive test that was positive. He then asked her to undergo a breath screening test pursuant to s 68(1)(a) of the Land Transport Act 1998. Initially, that was unsuccessful. On the third occasion it gave a positive reading, indicating a level over 400. He asked Ms Waretini to accompany him to the Thames Police Station for the purpose of undergoing an evidential breath test or blood test or both. That was pursuant to s 69(1)(ab). She reluctantly agreed. She was advised of her Bill of Rights Act rights, her right to remain silent, and the fact that she did not have to give a statement or answer any questions, and the right to consult a lawyer for free.

[4] Right from the outset she referred to wanting Constable Chase, the Maori Liaison Officer or a Maori Warden to be present. At the Thames Police Station she was again advised of her Bill of Rights Act rights and read from a form which was produced regarding her Bill of Rights Act rights. She declined to sign the form. Constable Malloy then required her to undergo an evidential breath test with an approved device. Ms Waretini said she did not want to undertake the test without the presence of Constable Chase or a Maori Warden. There was some discussion. The constable deemed Ms Waretini’s position to be a refusal and a clear position that she would not undergo the test unless Constable Chase or a Maori Warden was present. He said that he warned her that that would be the case.

[5] He then asked her to undergo a blood test on the basis that she had refused to undergo an evidential breath test. This was pursuant to s 72(1)(a) of the Act. Once again, Ms Waretini would not undergo the blood test unless the Maori Liaison Constable was present, or a Maori Warden. She was then arrested, processed and interviewed. The charge was pursuant to s 60(1)(a) of the Act. During her interview, her Bill of Rights Act rights were covered. It was clear during the interview that she regarded that her rights as tangata whenua had not been listened to. She said that she had only not undergone the test due to the fact that Constable Chase or a Maori Warden was not present. Judge Marshall found as a fact that the

defendant felt passionate about the position that she had adopted. Her interview ended without any resolution or agreement.

[6] Ms Waretini made it clear that she could not understand why Constable Chase or a Maori Warden could not be present. Constable Malloy explained that that was not part of the process that he was required to undertake when dealing with this legislation. The Judge records that there was some criticism made by Ms Waretini as to the explanation given to her about the process followed when blood was to be taken and, further, that it had not been raised in the DVD interview. It appears, however, that nothing really turns on that aspect for the purposes of this appeal. The steps which were taken disclose compliance with the provisions of the Land Transport Act by Constable Malloy.

[7] The Judge then recorded the result of cross-examination. He records that Ms Waretini confirmed that she was read her Bill of Rights Act rights and emphasised that from the outset she had requested Constable Chase or a Maori Warden to be present. The Judge further records that Ms Waretini indicated that her status as tangata whenua was very important to her. That was illustrated when the bail form was placed before her. It was in English. She requested it to be in Te Reo. That was not possible and she declined to sign the bail form. It was then explained to her that if she did not sign the bail form, she would be retained in custody at the Hamilton Police Station to appear the next day. Eventually, she signed the form at the police station.

District Court decision

[8] The Judge held that the case involved a single issue and that is whether Ms Waretini’s request to have Constable Chase, a Maori Liaison Officer, or a Maori Warden present during the administration of the various tests under this legislation invalidated those tests. He said:

Whilst I can see Ms Waretini’s point of view on that, it is not required by the legislation and there is no requirement in the legislation that Ms Waretini be entitled to access to a Maori Liaison Officer or Maori Warden when undergoing the Land Transport procedures.

[9] He expressly records that there is no criticism of Constable Malloy following the correct procedure as far as the Land Transport legislation is concerned.

[10] The appellant was convicted of refusing to permit a blood specimen to be taken, having been required to do by an enforcement officer pursuant to s 72 of the Land Transport Act. The charge was laid under s 60(1)(a) of the Land Transport Act.

[11] The appellant was sentenced to six months’ disqualification from driving.

Grounds of Appeal

[12] Ms Waretini’s notice of appeal, dated 18 September 2014 contains the following grounds of appeal:

(a) Denied, refused and ignored my rights as a Maori person as defined under Section 4 of the Te Ture Whenua Maori Act 1993 and my rights confirmed by the Crown under article 2 of the Te Tiriti o Waitangi

1840;

(b) Denied, refused and ignored my Human Rights under “the Human Rights Act 1993” via The Bill of Rights Act 1990. (The Bill of Rights and the Human Rights Act 1993 both prohibit discrimination on unlawful grounds.)

(c) Denied, refused and ignored my Consumer Rights.

Timeliness of the appeal

[13] Section 220 of the Criminal Procedure Act 2011 provides that the notice of application for leave to appeal must be filed within 20 working days from the date of the District Court decision. The District Court decision was made on 21 July 2014.

[14] The court file records that the appellant filed her notice of appeal on

19 September 2014. On the face of it, her appeal is out of time. Section 220(3) of

the Criminal Procedure Act provides that the first appeal court may at any time extend the time allowed for filing a notice of application for leave to appeal.

[15] In her notice of appeal, the appellant says that she received, by email, from

the Registrar of the District Court at Thames a copy of the Court’s decision of

21 July 2014 on 19 August 2014. She therefore believed that the filing of her appeal is within time, but in any event requests an extension of time if that is required.

[16] The above analysis discloses that her appeal was not filed in time. I have decided to hear the appeal on the merits in view of the points raised in the grounds of appeal.

Approach to appeal

[17] Section 229 of the Criminal Procedure Act sets out a person’s right to appeal against conviction. Under s 232(2)(b) and (c), the High Court can only allow an appeal if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any reason.”

[18] “Miscarriage of justice” is defined in s 232(4) as:

any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

[19] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.¹ The error or irregularity must lead to either of the consequences listed in s 232(4)(a) or (b).

[20] A “real risk” that the outcome was affected exists when “there is a reasonable

_{possibility that a not guilty (or more favourable) verdict might have been delivered if}

1. “A miscarriage is more than an inconsequential or immaterial mistake or irregularity.”: Matenga v R [2009] NZSC 18 at [30].

nothing had gone wrong”.² This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.³

[21] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.⁴ Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.⁵ Courts have held that an unfair trial can also exist when a defect in the trial causes an unacceptable appearance of unfairness without actual prejudice to the defendant.⁶ In relation to a judge-alone trial, this can occur where the trial judge’s conduct could create a belief in the mind of a reasonable observer that it has deprived the defendant of a fair trial.⁷

[22] Unfairness does not necessarily give rise to a nullity;⁸ there has to be some fundamental procedural error. Examples of such a fundamental error include: a conviction where a court lacks jurisdiction,⁹ or the charge fails to disclose a criminal offence.¹⁰

Approach to appeal against sentence

[23] Section 250 of the Criminal Procedure Act provides that the Court must allow the appeal if satisfied that:

_{(a) for any reason, there is an error in the sentence imposed on conviction; and}

² _{R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730 (SC) at [110] per Tipping J.}

³ _{R v Sungsuwan at [110].}

⁴ _{Condon v R [2006] NZSC 62 at [78].}

⁵ Randall v R [2002] UKPC 19; [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the

_{Supreme Court in Condon v R, above n 4, at [28].}

⁶ See James v R [2011] NZCA 219 at [29], where the failure to address the juror’s capacity meant that there was a risk of a miscarriage of justice even though the verdict would have stood if the juror had been discharged.

⁷ EH Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (CA); R v Fotu [1995] 3 NZLR

_{129 (CA)}

⁸ Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 (HCA) at 57 per Deane J, cited by the Supreme Court in Condon v R, above n 4, at [77].

⁹ _{R v O (No 2) [1999] 1 NZLR 326 (CA).}

¹⁰ R v Fonotia [2007] NZCA 188.

(b) a different sentence should be imposed.

[24] In any other case, the Court must dismiss the appeal.¹¹

[25] Section 250 confirms the approach taken by the courts under the former

Summary Proceedings Act 1957.¹² This approach was set out in R v Shipton:¹³

a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

c) It is only if an error of that character is involved that the appeal

Court should re-exercise the sentencing discretion.

Appellant’s submissions

[26] Ms Waretini represented herself. She submitted that she was denied her rights as a Maori person as defined in s 4 of the Te Ture Whenua Maori Act 1990 and under Article 2 of the Treaty of Waitangi. She claims she was denied her rights under the Human Rights Act and the Bill of Rights Act. She referred to both provisions as prohibiting discrimination on unlawful grounds. She alleges she was denied her consumer rights. She submitted that her appeal was not out of time as she received a copy of the District Court decision on 18 August 2014 and filed her appeal on 18 September 2014.

[27] Ms Waretini requests that her conviction be overturned and her case be referred to the “Maori Appellate Court”. My powers on appeal are limited. The Maori Appellate Court is a court of record whose existence and jurisdiction is confirmed by s 58 of Te Ture Whenua Maori Act. Its purpose is to deal with appeals from the Maori Land Court. It does not have jurisdiction to deal with an appeal such

_{as the one I am dealing with.}

¹¹ _{Criminal Procedure Act 2011, s 250(3).}

¹² _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].}

¹³ R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

[28] Ms Waretini submits that had she been granted her right to consult with a tangata whenua or Maori representative, she would have exercised her rights under the Maori Community Development Act 1962 where she can only be detained by a Maori warden. Ms Waretini has misunderstood the position here. A Maori Warden has the powers conferred on him or her by the Maori Community Development Act pursuant to s 7(5) of that Act. A Maori Warden does not have the powers which are engaged in this case pursuant to the Land Transport Act.

[29] She submits that she has been convicted of an offence of refusing to permit a blood specimen to be taken, but she never had an evidential breath test so there was never a refusal of such a test. She also references s 11 of the New Zealand Bill of Rights Act 1990 and her right to refuse to undergo medical treatment. She submits that she did not have to give a blood sample as there was no court order requiring her to give one. I will deal with these submissions later in this judgment.

[30] She submits that her s 9 right not to be subjected to torture or cruel treatment was breached because she was detained in a police cell for two hours with no seating and a dirty toilet. Section 9 of the New Zealand Bill of Rights Act is not relevant to the issue raised in this case. It does not apply to the question of whether the charge is proven or not. Her detainment in the cell happened after the relevant events and the laying of the charge against her.

Respondent’s submissions

[31] Counsel submits that Ms Waretini’s rights as a Maori person are the same rights afforded to all New Zealanders. The Land Transport Act 1998 applies to all New Zealanders and the first appeal ground that her rights as a Maori person were denied, must fail.

[32] With regard to the second appeal ground, counsel submits that there is no evidence of discrimination by Police in conducting the procedure in the way that it occurred and therefore s 19 of the New Zealand Bill of Rights Act is not engaged.

[33] There is no right to request anyone other than a lawyer under the New

Zealand Bill of Rights Act. The purpose of a right to a lawyer is to allow the

detained person to make informed decisions. It provides access to advice and to representation. A right to someone other than a lawyer is not principled as that person would be unqualified and unable to offer the advice that a defendant in that situation requires. Judge Marshall correctly decided that there is no right to a Maori warden or Maori liaison to be present.

[34] The New Zealand Police are not a “provider” as defined by the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 and so the ground of appeal that Ms Waretini’s consumer rights were denied must fail.

[35] In all circumstances the sentence was not manifestly excessive and the appeal should be dismissed.

Relevant legislation

[36] I set out the provisions of the Land Transport Act that apply and in the order that I have referred to them under the heading background facts.

[37] Section 68(1)(a) provides:

68 Who must undergo breath screening test

(1) An enforcement officer may require any of the following persons to undergo a breath screening test without delay:

(a) a driver of, or a person attempting to drive, a motor vehicle on a road:

[38] Section 69(1)(ab) provides:

69 Who must undergo evidential breath test

(1) An enforcement officer may require a person to accompany an enforcement officer to a place where it is likely that the person can undergo an evidential breath test or a blood test (or both) when required to do so by the officer, if,—

...

(ab) in the case of any other person, the person has undergone a breath screening test under section 68 and it appears to the officer that the proportion of alcohol in the breath of the

person who underwent the test exceeds 400 micrograms of alcohol per litre of breath; or

[39] Section 72(1)(a) provides:

72. Who must give blood specimen at places other than hospital or surgery

(1) A person must permit a medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—

(a) the person fails or refuses to undergo without delay an evidential breath test after having been required to do so by an enforcement officer under section 69; or

[40] Section 60(1)(a) provides:

60 Failure or refusal to permit blood specimen to be taken or to undergo compulsory impairment test

(1) A person commits an offence if the person—

(a) fails or refuses to permit a blood specimen to be taken after having been required to do so under section 72 by an enforcement officer; or

...

[41] When the facts, as found by the Judge, are applied to the provisions just mentioned it is readily apparent that the correct procedures were followed in terms of the requirements of the Land Transport Act in this case.

Analysis

[42] I deal with the appellant’s first ground of appeal. The rights claimed by the appellant are not enshrined in the Land Transport Act. The appellant’s rights in that legislation are the same as those afforded to all New Zealanders. This Court must apply the legislation as enacted by Parliament.

[43] The position is well explained by the Court of Appeal in Phillips v R where the Court said:¹⁴

¹⁴ Phillips v R [2013] NZCA 580 at [3].

The leading decisions affirm that Parliament is sovereign and its legislation applies to all New Zealanders irrespective of race. Thus New Zealand Courts are bound to accept the validity of all statutory enactments including the Land Transport Act, which ... applies without limitation based on ownership, title or status of land and to all “roads” as defined by s 2.

[44] Accordingly, I reject the first ground of appeal because there is no foundation for the submissions made in support of it in the Land Transport Act.

[45] In paragraph 3 of the appellant’s written submissions in support of this appeal, the appellant questions the statutory basis upon which her case was dealt with. This arises from the fact that paragraph 1 of Judge Marshall’s judgment contains an error in that it refers to the charge being a charge pursuant to s 61(a) of the Land Transport Act. In fact, the charge was laid under s 60(1)(a) of the Land Transport Act. The Judge’s reference to s 61(a) in paragraph 1 of the judgment is in error. It is an accidental error, which can be corrected under the slip rule. No matter of substance turns on this issue. The result, however, is that the appellant’s submissions in paragraph 3 are irrelevant because they do not address the charge that was laid against her.

[46] The same comment is appropriate in terms of paragraph 4 of the written submissions. The position that is addressed by the appellant arises from a misunderstanding as to the correct section of the Land Transport Act under which the charge laid against her was in fact laid. What Judge Marshall said in paragraph 4 and following is an analysis of the position which applies in relation to a charge under s 60(1)(a) of the Land Transport Act.

[47] With respect to the appellant’s paragraph 5, likewise, it does not apply. Section 11 of the New Zealand Bill of Rights Act dealing with medical treatment is not engaged. What applies is the procedural steps that are necessary and are set by the Land Transport Act. That is the legislation which governs the steps which are required to be taken.

[48] Likewise, s 13 of the Criminal Investigations (Blood Samples) Act 1995 does not apply.

[49] I deal with the appellant’s second ground of appeal. The appellant has submitted that her New Zealand Bill of Rights Act rights were denied, or refused, or ignored by the refusal of a request for a Maori Warden or a Maori Liaison Officer to be present when undergoing the breath testing process. She submitted that this evidenced discrimination.

[50] The New Zealand Bill of Rights Act provides a right to freedom from discrimination on the grounds of discrimination in the Human Rights Act. There is, in this case, no evidence of discrimination by the police in conducting the procedure in the way it occurred. Section 19 of the New Zealand Bill of Rights Act is not engaged.

[51] There is no right to request anyone other than a lawyer to be present under the provisions of the New Zealand Bill of Rights Act. The appellant, according to the evidence, was advised of her right to a lawyer by the police officer concerned. That was confirmed as a finding of fact by the Judge in his judgment. Section 23 of the New Zealand Bill of Rights Act gives the right to a lawyer to a person who is arrested or detained under any enactment. The right is described in s 23(1)(b) as “the right to consult and instruct a lawyer without delay and to be informed of that right”. The same applies with respect of a person charged pursuant to s 24 of the New Zealand Bill of Rights Act.

[52] In the case of R v Alo the Court of Appeal stated:¹⁵

The right to legal advice conferred by s 23(1)(b) allows the detainee to make informed decisions from the moment he or she is in jeopardy and enables the effective enjoyment of relevant human rights, such as rights to question the validity of continued detention, to bail, to silence, and to complain about any oppression and abuse of power by officials of the State: Noort at 279. In R v Barlow (1995) 14 CRNZ 9 at 29-30 (CA) Richardson J commented on the importance of the s 23(1)(b) right:

A person arrested or detained and not yet charged is in a particularly vulnerable position. Of its nature arrest is coercive. It involves subordination of the individual to the authority of the State. At a time when the individual cannot know whether or not any charge or what charge will be brought, it is particularly important that he or she be informed of the right to consult a lawyer without delay and the right to refrain from any comment... A purposive approach to the

¹⁵ R v Alo [2007] NZCA 172, [2008] 1 NZLR 168 at [40].

identification and evaluation of Bill of Rights protections requires focusing on the particular right and so on the nature and incidence of any right of silence expressed or inherent in that particular right.

[53] In the Court of Appeal case of Barrie v R again referencing the decision of

Noort, the Court stated:¹⁶

[23] Richardson J in Noort discussed the purpose of the right to counsel.

In brief, he characterised the right to a lawyer as providing both access to advice (to enable informed decisions) and to representation by an independent intermediary.

[24] With regard to the first role, the Judge stated that knowledge of one’s rights and obligations under the law is crucial to their proper exercise. It is often the first step towards the effective enjoyment of relevant human rights such as rights to question the validity of continued detention, to bail, to silence, or to complain about any oppression and abuse of power on the part of officials of the State.

[25] With regard to the second aspect, the Judge said that few citizens have the knowledge, training and skill effectively to represent their own interests in any contest with the State. Whether acting as counsel in relation to charges which have been brought, or at an earlier stage as intermediary or as speaking for the detainee, the lawyer may serve a vital role.

[54] The legislation gives a right to consult a lawyer. There is no right to consult anyone else. As the courts have said, there is a very good reason for this, namely, the lawyer is the person that can offer practical and correct legal advice. The Court of Appeal defined the extent of the right in Ministry of Transport v Noort; Police v Curran.¹⁷ It was stated that:

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.

¹⁶ _{Barrie v R [2012] NZCA 485, [2013] 1 NZLR 55.}

¹⁷ Ministry of Transport v Noort; Police v Curran [1992] NZCA 51; [1992] 3 NZLR 260 (CA).

[55] I conclude that the Judge was correct to conclude that there was no right to a Maori Warden or to a Maori Liaison Officer to be present. Accordingly, I must reject this ground of appeal.

[56] I deal with the appellant’s third ground of appeal. This can be answered quite shortly. As counsel for the respondent submitted, the New Zealand Police are not a “provider” as defined by the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996.¹⁸ Accordingly, I reject this ground of appeal.

The appeal against sentence

[57] Section 60 of the Land Transport Act, which was the section of the Act under which the charge was laid, by subs (2) provides:

60. Failure or refusal to permit blood specimen to be taken or to undergo compulsory impairment test

...

(2) If a person is convicted of a first or second offence against subsection (1),—

(a) the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and

(b) the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.

[58] It is accepted that the appellant has had no previous convictions. There is no question of giving the appellant any credit for a guilty plea in accordance with Hessell v R as the appellant defended the charge.¹⁹ The Judge imposed what is the most lenient sentence provided by s 60(2). Accordingly, I do not consider there is any basis for the proposition that the sentence imposed was manifestly excessive. It

_{was a sentence which the sentencing Judge was entitled to impose.}

¹⁸ Health and Disability Commissioner (Code of Health and Disability Services Consumers’

_{Rights) Regulations 1996, regulation 4.}

¹⁹ Hessell v R [2010] NZSC 135, [2011] NZLR 607.

Result

[59] Accordingly, I rule that the appeals against conviction and sentence are both dismissed.

JA Faire J