KING v POLICE [2018] NZCA 412

KING v POLICE [2018] NZCA 412 [8 October 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA357/2018[2018] NZCA 412BETWEEN JONATHAN KINGApplicantAND NEW ZEALAND POLICERespondentCourt: Gilbert, Mallon and Dunningham JJCounsel: A J Haskett for ApplicantK Peirse-O'Byrne for RespondentJudgment:(On the papers)8 October 2018 at 3 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr King was convicted in the District Court at Auckland of driving with excessbreath alcohol, an offence under s 56(1) of the Land Transport Act 1998 (the Act).1Mr King's appeal against conviction was dismissed by Venning J in a judgmentdelivered on 28 May 2018.21 Police v King [2017] NZDC 16451 [District Court judgment].2 King v Police [2018] NZHC 1213 [High Court judgment].[2] Mr King now applies for leave to bring a second appeal. This Court must notgrant leave for a second appeal unless it is satisfied that the proposed appeal involvesa matter of general or public importance or a miscarriage of justice has occurred.3 TheCourt will be slow to grant leave where the proposed appeal cannot succeed unlessconcurrent factual findings are disturbed.[3] Having failed a breath screening test under s 68 of the Act, Mr King wasrequired to accompany an enforcement officer to the Auckland Central Police Stationto undergo an evidential breath test or a blood test or both. An evidential breath testproduced a result of 662 micrograms of alcohol per litre of breath. Under s 70A ofthe Act, Mr King had the right to elect to have a blood test. This right must beexercised within 10 minutes of being advised by the enforcement officer of the mattersspecified in s 77(3)(a), namely that the evidential breath test was positive and could ofitself be conclusive evidence to lead to a conviction if a blood test is not requestedwithin 10 minutes.[4] The enforcement officer used a standard form breath and blood alcoholprocedure sheet when advising Mr King of these matters and of his rights underthe New Zealand Bill of Rights Act 1990. This form contains a section headed"Advice prior to 10 minute period." The last question in this section reads:"Would you like to speak to a lawyer?" The officer circled "no" as being Mr King'sresponse to this question. Alongside this answer, the form makes provision for a"comment". Here, the words "I can't speak to my lawyer right now" were added.Mr King signed the form immediately below this response and the time "21:15" wasrecorded. It is common ground that Mr King did not elect to have a blood test withinthe ensuing 10-minute period, or indeed at any time.[5] The officer made notes in her notebook of her exchange with Mr Kingconcerning his right to consult a lawyer. The discussion on this topic went beyond thebrief comment recorded on the form. The officer did not show her notes to Mr Kingat the time or give him the opportunity to confirm their accuracy by signing.3 Criminal Procedure Act 2011, s 237(2).[6] Mr Haskett contended at the hearing in the District Court that Mr King wasdeprived of his right to consult and instruct a lawyer of his choice.4 Mr King stated inevidence that he told the officer at least "half a dozen" times that he wished to speakto his lawyer, Mr Haskett. He claimed his cell phone battery was flat and he said heasked for a computer or phone book to look up Mr Haskett's contact details.Judge Ronayne rejected Mr King's evidence. He preferred the evidence of the officerwho firmly denied Mr King's claims that he had named Mr Haskett or that he hadasked for a computer or a phone book. The officer's evidence was partly confirmedby the evidence of another police officer who was also present. The Judge put thenotebook entries to one side in reaching his factual findings.5[7] On appeal to the High Court, Mr Haskett contended that the officers' evidenceabout their dealings with Mr King was inadmissible.6 This was said to be because theofficer breached cl 5 of the Chief Justice's Practice Note on Police Questioning byfailing to ask Mr King whether he wished to confirm the written record in the notebookas correct by signing it. Justice Venning accepted Mr Haskett's submission that theprocedure set out in cl 5 of the Practice Note ought to have been followed.7However, the Judge found that the evidence of Mr King's dealings withthe police officers on the issue of the provision of legal advice was not obtainedunfairly.8 Further, the Judge found that the evidence would have been admissible inany event applying the balancing test in s 30 of the Evidence Act 2006.9 The Judgerejected Mr Haskett's submission that Judge Ronayne was wrong to preferthe evidence of the two police officers over that of Mr King.10[8] The proposed appeal, seeking to re-traverse these same issues, does not raiseany matter of general or public importance. The issues are fact specific and there areconcurrent factual findings in the Courts below that were plainly available onthe evidence. There is no indication of any risk that a miscarriage of justice hasoccurred. In these circumstances, the Court must not give leave for a second appeal.4 District Court judgment, above n 1, at [5].5 At [53].6 High Court judgment, above n 2, at [13].7 At [24].8 At [34].9 At [35]–[39].10 At [45].Result[9] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent