Paniora v Police [2014] NZHC 3363 (19 December 2014)

Last Updated: 12 February 2015

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2014-488-000051 [2014] NZHC 3363

BETWEEN	BULLA PANIORA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 December 2014
Appearances:	M A Littlefair for Appellant M Jarman-Taylor for Respondent
Judgment:	19 December 2014

(RESERVED) JUDGMENT OF ANDREWS J [Appeal against conviction]

This judgment is delivered by me on 19 December 2014 at 3 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

PANIORA v NEW ZEALAND POLICE [2014] NZHC 3363 [19 December 2014]

Introduction

[1] In a judgment delivered on 20 November 2014, Mr Bulla Paniora was found guilty by Judge Duncan Harvey in the District Court at Kaikohe on a charge of driving with excess blood alcohol (“the judgment”).¹ Following that conviction he was fined $1600 and disqualified from driving for 10 months.

[2] Mr Paniora has appealed against his conviction, on the grounds that the Judge was wrong to find that there was no undue or unreasonable delay and/or non compliance under s 72(3) of the Land Transport Act 1998 (“the LTA”); was wrong to find that there was no unreasonable, unlawful or arbitrary detention in breach of s 22 of the New Zealand Bill of Rights Act 1990 (“the BORA”), or if there was, the evidence was still admissible under s 30 of the Evidence Act; and was wrong to find that there was no breach of his rights under s 23(5) BORA to be treated with respect and dignity and avoid humiliation and shame.

Facts

[3] At 10.40 pm on 2 January 2014, Mr Paniora was stopped at a Police

checkpoint on state highway 12, at Omapere. A breath screening test indicated “over

400” (that is, a fail). Having been given his rights, Mr Paniora was at 10.55 pm

required to undergo an evidential breath test. That test gave a breath alcohol level of

571 micrograms of alcohol per litre of breath. Mr Paniora was advised that this was a positive result. He was given his rights for a second time. At 11.11 pm, Mr Paniora requested a blood test.

[4] A police officer, Constable Tracey Stainburn, and another police officer then took Mr Paniora for a blood test. Initially they were heading for Kawakawa Hospital, but en route they were advised by radio that the hospital at Rawene would be more convenient. They arrived at Rawene Hospital at 11.44 pm. They remained

_{at Rawene Hospital for 36 minutes, but a blood specimen was not taken there.}

¹ NZ Police v Paniora DC Kaikohe CRI 2014-027-653, 20 November 2014.

[5] At 12.20 am, the police officers and Mr Paniora left for Kawakawa Hospital. They arrived there at 1.10 am. The blood specimen was taken at 1.19 am. Mr Paniora was subsequently dropped off in the centre of Kawakawa. Analysis of the specimen disclosed a blood alcohol level of 109 milligrams of alcohol (plus or minus five milligrams) per 100 millilitres of blood.

District Court judgment

[6] Judge Harvey recorded the issues as being:²

(a) Whether there was undue or unreasonable delay in taking

Mr Paniora’s blood specimens;

(b) Whether the police officers had complied, or reasonably complied, with the procedures under s 72 of the LTA;

(c) Whether there was an arbitrary detention resulting in a breach of

Mr Paniora’s rights under s 22 of the BORA; and

(d) Whether there was a breach of Mr Paniora’s right to be treated with

dignity and respect pursuant to s 23(5) of the BORA.

[7] The Judge recorded that after Mr Paniora had undergone a positive evidential breath test, he requested a blood test. However, the checkpoint was in an isolated area of Northland, so the police had to transport him to a place where blood could be taken. The police were taking him to Kawakawa hospital, but en route were advised that Rawene Hospital was closer, and it would be more convenient for Mr Paniora. At Rawene Hospital, Mr Paniora’s blood specimen was not taken. The Judge found that this was “despite the best efforts of the staff”. Mr Paniora was then taken to Kawakawa hospital as originally planned and his blood specimen was taken.

[8] The Judge first rejected the submission made for Mr Paniora that the delay

between Mr Paniora’s election to give a blood specimen and the specimen being

_{taken was significant, and brought about by recklessness on the part of the police}

² At [4].

officers. His Honour said there was no evidence before him that would justify that finding.³ His Honour held that the decision to go to Rawene (rather than Kawakawa, where they were originally headed) was reasonable compliance with s 72(3) of the LTA.⁴ In reaching this conclusion, the Judge referred to the judgments of Hugh Williams J in Marra v Police,⁵ and the Court of Appeal in Police v Tolich.⁶

[9] The next question the Judge considered was whether the events at Rawene were sufficient for the officers to consider that it was not practicable for a blood specimen to be taken there. The Judge found that at Rawene, two nurses were unable to find a vein suitable for taking blood. His Honour held that it was not

reasonably practicable to have the blood specimen taken at Rawene.⁷ In his

consideration of this issue, his Honour referred to the judgments of the Court of

Appeal in R v Beck,⁸ and Woodhouse J in Collier v Police.⁹

[10] The Judge recorded that the “real issue” was that there were effectively three “nominations” or three places where Mr Paniora was “required” to accompany the officers: Kawakawa, then Rawene, then Kawakawa again. However, his Honour considered it important that Mr Paniora had in fact only been taken to Rawene and then Kawakawa. In considering this issue his Honour referred to the judgments of

Anderson J in Johnston v Police,¹⁰ Hugh Williams J in Marra,¹¹ and Judge Zohrab in

Police v Whalley.¹²

[11] The Judge found that Mr Paniora was not required to travel any further than if he had gone straight to Rawene and then Kawakawa. Had the officers taken him to Kawakawa, then Rawene, then back to Kawakawa, the situation would be different, as the legislation would not allow that sort of transportation. However,

_{that was not what had occurred. The Judge found that Mr Paniora had only been}

³ _{At [14].}

⁴ _{At [18].}

⁵ _{Marra v Police HC Auckland CRI-2009-404-309, 18 November 2009.}

⁶ _{Police v Tolich [2003] NZCA 134; (2003) 20 CRNZ 150 (CA).}

⁷ _{NZ Police v Paniora, above n 1 at [24].}

⁸ _{R v Beck [2008] NZCA 283,}

⁹ _{Collier v Police [2013] NZHC 2273.}

¹⁰ Johnston v Police HC Auckland AP 239/95, 8 December 1995. (Harvey DCJ referred to “Johnson v Police” but it is evident from his Honour’s narration of the facts that the reference was intended to be to Johnston v Police.)

¹¹ _{Marra v Police, above n 5.}

¹² Police v Whalley [2012] DCR 597.

taken to two locations. With reference to the judgment of the Supreme Court in Aylwin v Police,¹³ his Honour was satisfied that there was reasonable compliance with s 72(3) of the LTA.¹⁴

[12] On the issue as to whether Mr Paniora had been arbitrarily detained, the Judge noted there was considerable delay before the blood specimen was taken. However, when considering whether the delay was unreasonable, his Honour observed that the Court had to take notice of the remoteness of the area and the distances that needed to be travelled once Mr Paniora elected to give blood.¹⁵ His Honour found that when Mr Paniora elected to give blood, he must have known there would be some delay due to location. His Honour observed that “driving

distances and a lack of resources in nearby or convenient locations is the reality of rural New Zealand”. He concluded that Mr Paniora was not prejudiced by the passage of time, and the detention of two hours and 39 minutes (from the time he was breathy-tested to the time his blood specimen was taken) was not arbitrary.¹⁶

[13] His Honour considered if the detention was found to be arbitrary, then the evidence would be admissible under s 30 of the Evidence Act. The breach was minor, and brought on by the defendant’s own action in driving a motor vehicle after consuming alcohol and his election to give a blood specimen “in the sure knowledge that some distance would be involved”.¹⁷ The impropriety was not deliberate or reckless. The evidence was crucial to the prosecution. The offending was serious to the community. There were no other investigatory techniques open to the Police. Judge Harvey concluded that to exclude the evidence would not be a proportionate response to the impropriety.¹⁸

[14] Finally, the Judge turned to Mr Paniora’s submission that there was a breach of his right under s 23(5) of the BORA. This was based on the fact that during the course of his travel, he needed to relieve himself on at least two, possibly three

_{occasions. On each occasion he was made to stand close to the car while he relieved}

¹³ _{Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].}

¹⁴ _{NZ Police v Paniora, above n 1at [30]–[31].}

¹⁵ _{At [33].}

¹⁶ _{At [34]–[36].}

¹⁷ _{At [37].}

¹⁸ At [38]–[45].

himself. Mr Paniora said that he felt embarrassed and humiliated. Further, he said that when the blood test procedure was completed, he was “dumped” by the police in the centre of Kawakawa.

[15] The Judge rejected both submissions. He rejected the submission of a breach in relation to Mr Paniora relieving himself, finding that the police had to balance his right to privacy against any possibility the he might decamp. Mr Paniora was allowed to stand with his back to the police officers. One of the police officers remained in the car, which gave Mr Paniora some privacy.¹⁹ Further, the Judge did not accept that there was any breach in regard to Mr Paniora being left in the centre of Kawakawa. The Judge accepted the evidence of Constable Stainburn, that Mr Paniora was left in the centre of Kawakawa at his own request.²⁰

Approach on appeal

[16] Section 229 of the Criminal Procedure Act 2011 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.”

[17] “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.

As s 232 makes clear, not every “error or irregularity” causes a miscarriage of

justice.²¹ The error or irregularity must lead to either of the consequences listed in paras (a) or (b)

¹⁹ _{At [49].}

²⁰ _{At [48].}

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

Was there unreasonable delay/non compliance with s 72(3) of the Land

Transport Act?

[18] Issues (a) and (b) are appropriately considered together. Section 72 of the LTA sets out the requirements for the giving of a blood specimen. The provisions include that a person required to permit a blood specimen must “without delay” permit a blood specimen to be taken (s 72(2)); and that if it is not practicable for a blood specimen to be taken at the place to which the person has been taken, the person must accompany an enforcement officer to another place where it is likely that a blood specimen can be taken (s 72(3)).

[19] Mr Littlefair submitted that Marra establishes that the original advice to Mr Paniora that he would be taken to Kawakawa was a nomination of the place where the blood specimen would be taken, and that the subsequent nomination of Rawene was a breach of s 72(3). However, he submitted that that breach would be saved by the “reasonable compliance” provisions of s 64(2) of the LTA. He then submitted that the effect of Johnston is that a person can be required to go to two places, but never three. He submitted that the present case was indistinguishable from the facts in Whalley, in which it was held that the defendant had been wrongfully required to accompany police officers, first to a police “booze bus”, then to the Nelson Hospital, then to the “booze bus”. Accordingly, he submitted that as there were three nominations is this case too, there was a breach of s 72(3) which could not be saved by “reasonable compliance”.

[20] Mr Littlefair further submitted that the Judge was wrong in fact and law to find that it was not practicable for a blood specimen to be taken from Mr Paniora at Rawene. He submitted that such a conclusion was not available on the evidence, as there was no evidence as to other options being explored.

[21] Ms Jarman-Taylor submitted that the Judge had not erred in finding that there was no unreasonable delay in taking the blood specimen, and that there was reasonable compliance with s 72(3). She submitted that each case depends on its particular facts: here, Mr Paniora was initially tested in a remote part of rural Northland; the Judge properly observed that what may have been unreasonable in central Auckland does not determine what is reasonable elsewhere. Mr Paniora was

taken to two places, only, and there was no alternative testing procedure available. The total time involved was 2 hours 39 minutes from the time Mr Paniora was breath-tested until the blood specimen was taken. She submitted that in the particular circumstances, this was not unreasonable.

[22] I turn first to Mr Littlefair’s submissions as to the nominations. In Johnston, Mr Johnston was required to accompany a police constable to the Auckland Central Police Station for an evidential breath test. The evidential breath testing device there was found to be out of order. The constable then required Mr Johnston to accompany him to the Greenlane Police Station. On arrival at Greenlane, the constable discovered there was no evidential breath testing device available at all. The constable then required Mr Johnston to accompany him to the Mt Wellington Police Station, where Mr Johnston was required to undergo an evidential breath

test.²² In allowing Mr Johnston’s appeal against conviction, Anderson J referred to

Parliament’s intention to “prohibit a third or later attempt” to take the test.

[23] The circumstances of the present case are different. While I accept that there were three nominations of a place where a blood specimen would be taken, Mr Paniora was not in fact taken to Kawakawa before going to Rawene. There was no “attempt” to take a blood specimen until they arrived at Rawene. The present case is factually different from that in Johnston.

[24] In Marra, the police officer required Ms Marra to accompany him to the Manukau Police Station for an evidential breath test. While en route, Ms Marra said she lived in Howick, so the police officer went to the Howick Police Station and the test was administered there. Hugh Williams J rejected a submission for Ms Marra (citing Johnston in support) that, having nominated the Manakau Police Station, the police officer could not subsequently nominate Howick. His Honour held that there was nothing in the relevant provisions of the LTA that debarred the police officer

from nominating Howick.²³ In the present case, the Judge correctly observed that

the facts of the case (up to the point of the decision to travel to Rawene) were

_{“essentially identical” to those in Marra.}

²² _{See Johnston v Police, above n 10 at p 2–3.}

²³ See Marra v Police, above n 5 at [66]–[69].

[25] I conclude that the Judge did not err in concluding that the police officers did not contravene s 72(3) by deciding to take Mr Paniora to Rawene rather than Kawakawa.

[26] Whether there was unreasonable delay then depends on whether it was “not practicable” to take the blood specimen at Rawene. If it was not practicable to take blood at Rawene, then there was no unreasonable delay caused by taking Mr Paniora to Kawakawa.

[27] Section 72(3) of the LTA relevantly provides:

If it is not practicable for a blood specimen to be taken from a person by a

... medical practitioner or medical officer at a place where the person has

been required under this section to permit the taking of a blood specimen, the person must accompany an enforcement officer to any other place where it is likely that a blood specimen can be taken from the person by a

... medical practitioner or medical officer if the officer requires the

person to do so.

[28] Whether it is not practicable is to be established on the balance of probabilities. It requires a factual determination by a Judge.²⁴ In R v Beck, the Court of Appeal defined “not practicable” as follows:²⁵

The term “not practicable” in s 72(3) has been interpreted as carrying its ordinary meaning of something that is not capable of being carried out or is not feasible in the circumstances: Tere v Police HC AK A209-99 7

March 2000 at [11]. It involves something more than inconvenience:

Hecker v Police HC CHCH CRI-2007-409-33 4 May 2007 at [21]. It is for the police to establish on the balance of probabilities that it is not practicable to take the test at the place to which the motorist has been taken: Police v Anderson [1972] NZLR 233 (CA).

[29] A factually analogous case is Collier v Police.²⁶ In that case, the appellant had failed a roadside breath test. He elected to give a blood specimen and was taken to another location for that purpose as there was no medical practitioner at the roadside. A nurse had been contacted and she told the officer she was coming into Auckland City. It was decided that it would involve less time for completion of the blood test if the nurse went from Auckland to Manukau and the appellant was taken

_{from Papakura to Manukau.}

²⁴ _{Hecker v Police HC Christchurch CRI-2007-409-33, 4 May 2007.}

²⁵ _{R v Beck, above n 8 at [20].}

²⁶ Collier v Police, above n 9.

[30] As to the practicability test, Woodhouse J said:

[12] I do not consider that proof of impracticability requires the informant to produce a range of direct, admissible evidence of objective facts capable of being independently assessed as reliable. Section 72(3) has to be given sensible effect. An enforcement officer has to make a decision, at the time, as to whether or not it is practicable for the blood specimen to be taken at the first location. The decision cannot be an arbitrary one. It must be based on information available to the enforcement officer at the time. It is likely, often enough, that the enforcement officer will base the decision, at least in part, on information provided by others. The relevant enquiry consists of two stages: what the enforcement officer genuinely believed and whether that belief objectively establishes that it was not practicable to take a blood specimen. The point may be illustrated by reference to the evidence about the nurse. That evidence did not have to be admitted to prove that the nurse was in fact still in Auckland. If it did it would be hearsay if it did not come from the nurse. However, the evidence was admissible to establish what information the officer relied on. There was no suggestion that the enforcement officer in this case did not have the information that he said he relied on, or that he did not rely on that information, or that the information, with the other considerations, was insufficient on an objective appraisal to justify the move to Manukau.

[31] Woodhouse J found in Collier that it was not practicable for a blood specimen to be taken at the roadside. The test articulated by his Honour has two elements:

(a) What did the enforcement officer genuinely believe?

(b) Does that belief objectively establish that that it was not practicable to take a blood specimen?

[32] In the present case, the evidence was that the police officer believed that two nurses had failed to find a vein, from observing them trying to do so, including wrapping a heated towel around his arm to bring up a vein. She said that the nurses did not say anything, she asked if they were going to take the blood and they just “looked at me blankly” so she decided they needed to go to Kawakawa. She did not ask if there were any other nurses at Rawene. I conclude that the Judge did not err in finding that it was not reasonably practicable to take blood at Rawene.

[33] However, if I am wrong in that conclusion, I consider that taking Mr Paniora from Rawene to Kawakawa was “reasonable compliance” for the purposes of s 64(2) of the LTA.

[34] The standard of proof of compliance for the purposes of s 64(2) is the balance of probabilities.²⁷ In the Court of Appeal judgment in R v Aylwin, reasonable compliance was seen as involving a consideration of whether the extent of the non- compliance gives rise to a reasonable doubt about the correctness of the result; and whether there is a risk to the defendant of injustice or unfairness.²⁸ The Supreme Court dismissed an appeal against the judgment of the Court of Appeal and held:²⁹

Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable. The great majority of drivers comply with their obligations in this respect. A small minority do not. Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences. The Courts must give full effect to that clear parliamentary indication.

[35] I consider reasonable compliance has been established in this case. The transfer from Rawene to Kawakawa does not give rise to a reasonable doubt about the correctness of the result, and I do not believe that there is a risk to Mr Paniora of injustice or unfairness.

[36] I conclude that the Judge did not err in finding that while there was considerable delay, it was not reasonably practicable to take blood at Rawene and the officer was entitled to take Mr Paniora to Kawakawa under s 72(3) of the LTA. There was therefore no unreasonable delay.

Was there a breach of Mr Paniora’s rights under s 22 of the New Zealand Bill of

Rights Act 1990?

[37] Mr Littlefair submitted that the Judge erred in finding there was no breach of Mr Paniora’s right under s 22 of the BORA not to be arbitrarily detained. In support of this submission he referred to the period of detention from breath test to blood test, and submitted that options were available to the police to obtain a blood specimen. He also submitted that the Judge had erred in making no finding of fact as

_{to how much delay was caused by the officers’ heading towards Rawene, then}

²⁷ _{Becroft and Hall’s Transport Law (online looseleaf ed, LexisNexis) at LTA77.4(b).}

²⁸ _{R v Aylwin [2008] NZCA 154; [2008] 24 CRNZ 87(CA) at [40].}

²⁹ Aylwin v Police, above n 13 at [17].

changing to travel to Kawakawa. He submitted that this had caused an avoidable delay of one hour.

[38] Mr Littlefair further submitted that the police officers had acted recklessly in not turning their minds to consider what was available to them for taking a blood specimen before starting the journey, after Mr Paniora’s evidential breath test. It was, he submitted, reckless to head for Rawene without first checking whether a nurse experienced in taking blood samples was available there.

[39] Ms Jarman-Taylor submitted that there is a degree of overlap between Mr Paniora’s submissions of unreasonable delay under s 72(3) of the LTA, and his submission that he was “arbitrarily detained” so as to be in breach of s 22 of the BORA. She noted that the Judge had referred to the recent Court of Appeal

judgment in Chadderton v R,³⁰ and submitted that in the light of the principles set

out in Chadderton the Judge had not erred in taking into account the rural location of the checkpoint and the distance from the checkpoint to the nearest hospital. She further submitted that the Judge did not err in concluding that even if there were a breach of s 22, excluding the evidence of the blood specimen would be a disproportionate response under s 30 of the Evidence Act.

[40] The central issue in Chadderton was whether reasonable compliance under s 64(2) of the LTA applied to breaches of the BORA. While counsel agreed that the answer to the question was “no”, the Court of Appeal considered the interaction between the provisions of the Land Transport Act and the BORA. Regarding a

challenge under the BORA, the Court said:³¹

Conversely, in cases such as the present one where a defendant alleges a breach of the [BORA] rather than a failure to comply with a procedural step in the [LTA], s 64(2) [of the LTA] does not apply at all. The court is required to assess the police conduct against the standard set by the relevant provision of the [BORA]. If proven, the alleged breach will not operate as a substantive defence, but may render the blood or breath test evidence improperly obtained and required the judge to carry out the s 30 [Evidence Act] balancing exercise to determine its admissibility.

[41] The Court of Appeal set out principles for assessing whether a detention was arbitrary:³²

(a) Detention for the purposes of breath/blood alcohol testing under s 69(1) is not subject to any express time limit.

(b) Despite the absence of an express time limit, detention should not last for longer than is reasonable in light of the statutory purpose.

(c) Whether a person has been detained for an unreasonable period “can only be a matter of fact and degree in each case”.

(d) There is some scope for delay in the process without giving rise to a breach of s 22. That is, there is no strict requirement that the defendant be transported to the appropriate site and tested immediately.

(e) There is no absolute rule preventing an officer from prolonging the defendant’s detention in order to effect a secondary purpose of his own. Again, the issue will likely be one of reasonableness.

(f) The time reasonably required may vary considerably depending on the locations involved and other pressing demands on the enforcement officer’s time, such as arriving at the scene of any accident.

(g) Delay is less likely to render detention arbitrary where there is no evidence the defendant was prejudiced by the passage of time.

(references omitted)

[42] It is also relevant to note (as did the Judge in his judgment in the present case) the comments of a Full Court of the Court of Appeal in Neilson v Attorney- General:³³

Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures. ...

[43] In the present case, the Judge said that “location plays a very important role in my consideration of delay”. I am not persuaded that he was in error in doing so. The isolated rural location of the checkpoint where Mr Paniora was stopped, and the distances involved in travelling to a place where a blood specimen could be taken must, in this case, be crucial in determining whether there was an arbitrary detention.

Nor was the Judge in error in referring to the observation of Brewer J in Rhind v Police,³⁴ then finding that the police officers were under no statutory requirement to establish, before setting off, where the blood specimen could be taken. Further, as the Judge observed, there was no evidence that Mr Paniora was in any way prejudiced by the passage of time.

[44] Also relevant to the question whether Mr Paniora was arbitrarily detained was the Judge’s finding that the police officers at all times acted professionally, and were doing what they could to minimise the inconvenience to Mr Paniora. That finding was open to the Judge on the evidence, and it is inconsistent with an arbitrary detention.

[45] I conclude that the Judge did not err in finding that there was no breach of s 22 of the BORA. His detention was not arbitrary.

Was there a breach of Mr Paniora’s rights under s 23(5) of the New Zealand Bill

of Rights Act 1990?

[46] Mr Littlefair submitted that Mr Paniora’s right under s 23(5) of the BORA to be treated with humanity and with respect for his inherent dignity was breached by the police officers’ actions in respect of the occasions when, in the course of travelling, the police car was stopped for him to relieve himself. Mr Littlefair submitted that both of the two police officers involved were female, and the fact that Mr Paniora was required to stand close to the police car deprived him of any privacy. He submitted there was a further breach when the police officers left Mr Paniora in Kawakawa.

[47] Ms Jarman-Taylor again submitted that the Judge did not err in finding there was no breach of Mr Paniora’s rights. She submitted that the facts did not come close to a breach. It may have been a breach to deny Mr Paniora the opportunity to relieve himself (particularly as he had been allowed to drink water after being stopped, and he had told the police he had a weak bladder), but it could not be a breach to require Mr Paniora to stand close to the Police car. She also submitted that

_{there was no breach in leaving Mr Paniora in Kawakawa, at his request.}

³⁴ Rhind v Police HC Auckland CRI 2011-404-324, 21 October 2011 at [20].

[48] I note, first, that I have not been able to find any record in the notes of evidence of any evidence that both of the police officers were female. However, for present purposes I accept that they were both female.

[49] I have concluded that the Judge did not err in finding that there was no breach of Mr Paniora’s right to be treated with dignity and respect under s 23(5) of the BORA, in either of the respects claimed. The Judge accepted the police evidence that while Mr Paniora was in sight, he was allowed to stand with his back to the police car. There was no suggestion in the evidence that on any of the occasions, Mr Paniora was in sight of any other person. I conclude that the Judge was entitled to find that Mr Paniora was treated with dignity and respect on the occasions when he needed to relieve himself. There was no breach of his rights under s 23(5).

[50] As to the circumstances in which Mr Paniora was left in Kawakawa, the Judge rejected Mr Paniora’s evidence that he was “dumped” in Kawakawa, and accepted the Constable Stainburn’s evidence that, at the outset, Mr Paniora was told that he would need to find his own way home, and that he was left in Kawakawa at his request. The finding that Mr Paniora asked to be left in Kawakawa was clearly open to the Judge, on the evidence. Again, there was no breach of Mr Paniora’s rights under s 23(5).

Result

[51] I have found that none of the arguments on appeal have been made out.

Accordingly, Mr Paniora’s appeal against conviction is dismissed.

[52] At the end of the appeal hearing, Mr Littlefair advised that Mr Paniora had applied for a suspension of his disqualification pending appeal. As I understand the position, that application has not been dealt with by the District Court. In the event that a suspension has been granted, the period of disqualification imposed by the Judge on 20 November 2014 will resume 24 hours after the time that this judgment

_{is delivered by the Registrar.}

Andrews J