DOOLEY v POLICE [2018] NZHC 2387

DOOLEY v POLICE [2018] NZHC 2387 [11 September 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2018-404-118[2018] NZHC 2387BETWEEN LEONARD DOOLEYAppellantAND NEW ZEALAND POLICERespondentHearing: 20 August 2018Appearances: P Winkler and M Mellin for the AppellantA Luck for the RespondentJudgment: 11 September 2018JUDGMENT OF GORDON JThis judgment was delivered by meon 11 September 2018 at 2.30 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, AucklandCounsel: P Winkler, AucklandIntroduction[1] The appellant, Leonard Dooley, appeals his conviction on one charge of drivingwith excess breath alcohol.1 He also appeals the finding that he committed aninfringement offence by breaching r 2.3(2)(a) of the Land Transport (Road User) Rule2004, namely that he failed to keep left while operating a motor vehicle.2[2] Following a one-day Judge alone trial on 9 November 2017, Judge de Ridder,in the District Court at Kaikohe, convicted Mr Dooley of the charge of driving withexcess breath alcohol, and found that he committed the infringement offence by failingto keep left.3[3] On 19 April 2018, Mr Dooley filed a notice of appeal. He says that theevidential blood alcohol result was inadmissible and the charge should have beendismissed. He submits that Judge de Ridder erred in fact and law both in relation tohis decision on the charge of driving with excess blood alcohol and in relation to hisfinding that the infringement offence was committed.[4] The Crown opposes the appeal.Factual background[5] On the evening of 24 September 2016, Mr Dooley was at the Duke ofMarlborough Tavern in Russell, in the Bay of Islands. While two police officers,Constables Gorrie and Tipoki, were speaking to the manager of the Tavern, Mr Dooleyapproached them and started a conversation. Constable Gorrie said that Mr Dooleyappeared a little bit intoxicated, while Constable Tipoki said he could smell alcoholon Mr Dooley's breath and formed the view that he was intoxicated.1 Land Transport Act 1998, s 56(2). As per s 56(3), the maximum penalty is imprisonment for aterm not exceeding three months or a fine not exceeding $4,500. The court must also order theperson be disqualified from holding or obtaining a driver's licence for six months or more.2 See Land Transport Act, s 40(1); Land Transport (Offences and Penalties) Regulations 1999, r4(1). As per s 375(1)(a) of the Criminal Procedure Act 2011, the court must not convict thedefendant of an infringement offence.3 New Zealand Police v Dooley [2017] NZDC 27610.[6] When the police officers walked to their vehicle, Mr Dooley walked past themand went into the RSA.[7] The police officers left the Tavern and conducted a routine patrol around thewider Russell area. After about 30 minutes, they returned. They saw several vehiclesleaving the area around the Tavern. They then decided to make a random stop of oneof those vehicles. The vehicle happened to be driven by Mr Dooley.[8] At around 10:58 pm, the police officers began following Mr Dooley's Toyotavehicle. They say they saw him cross the centreline of the road twice while travellingalong Matauwhi Road.[9] The police officers then stopped Mr Dooley for a random breath test on HopeAvenue. While Constable Tipoki waited in the Police vehicle, Constable Gorrieapproached Mr Dooley's vehicle and told Mr Dooley that he had crossed thecentreline. Mr Dooley denied this. Constable Gorrie then required Mr Dooley toundertake the roadside breath testing procedure. Mr Dooley cooperated. But he failedthe test.[10] Constable Gorrie gave Mr Dooley his rights under the New Zealand Bill ofRights Act 1990 (NZBORA) at the roadside (in his evidence, Constable Gorrie did notstate the actual words he used). Mr Dooley told Constable Gorrie that he understoodhis rights. Mr Dooley then was taken back to Russell Police Station for further testingprocedures. He was given his NZBORA rights again, by way of Constable Gorriereading from the standard pre-printed form for breath and blood alcohol procedures.Mr Dooley elected not to speak to a lawyer and signed a form acknowledging that hehad been advised of his rights.[11] Mr Dooley undertook the evidential breath test and this returned a reading of588 micrograms of alcohol. Mr Dooley then elected to have a blood sample taken.He immediately requested a blood sample to be taken at the start of the ten-minuteperiod allowed for making a decision about that. Nevertheless, Constable Gorrieallowed the ten-minute period to run its course.[12] As Constable Gorrie was unable to contact the appropriate person to arrangefor the blood sample test to be taken at the Russell Police Station, he transportedMr Dooley to Kawakawa Hospital for this to occur. The result showed a reading of116 milligrams of alcohol per 100 millilitres of blood in his system.[13] Relevantly, Mr Dooley has a cochlear implant with an associated externaldevice which is clearly visible on the right side of his head by his right ear. He alsospeaks with a lisp.District Court decision[14] Mr Dooley challenged the admissibility of the result of the blood sample test.[15] Judge de Ridder first acknowledged that there was no question that Mr Dooleywas driving on a road on the night in question.4 He noted that there was no challengeto the breath screening procedure, the evidential breath testing procedure, or theprocedure for the taking of a blood sample.5[16] The Judge identified "the single narrow issue" as whether Mr Dooley waseffectively denied the exercise of his right to communicate with a lawyer, which is aright conferred by s 23(1)(b) of the NZBORA.6[17] The Judge accepted that Mr Dooley was not able to speak on the telephone.The issue, as stated by the Judge, became whether Mr Dooley communicated that toConstable Gorrie and also whether he requested that he be given the opportunity tocommunicate with a lawyer by text message.7[18] Ultimately, the Judge was satisfied that Mr Dooley promptly and clearlyexercised his right not to communicate with a lawyer.8 In those circumstances, therewas no need or requirement for Constable Gorrie to modify the wording of the4 New Zealand Police v Dooley, above n 3, at [45].5 At [45].6 At [46].7 At [51].8 At [53].NZBORA rights given to Mr Dooley. The Judge preferred the evidence of ConstableGorrie, finding that:[53] Mr Dooley had no trouble whatsoever in following the proceduresat any stage throughout the various steps. At the roadside test he carried outthe test without any difficulty and without hesitation, and for the rest of thetesting procedure was cooperative and carried out Constable Gorrie'sinstructions without question or delay. Constable Gorrie was clear that MrDooley was adamant that he did not wish to speak to a lawyer. He was advisedof his right to do so on four separate occasions but specifically declined to doso. On Mr Dooley's own evidence he clearly understood Constable Gorriethroughout the breath and blood testing procedures and therefore he must haveclearly understood that he was being given the opportunity to consult a lawyer.He described Constable Gorrie as being clear and concise.[54] I am also satisfied on the evidence that Mr Dooley did not tellConstable Gorrie that he could not speak on a phone [55] Mr Dooley is obviously a man of some considerable businessexperience given his various business activities. In the course of that itappears, on his own evidence, that he has regular dealings with lawyers.Obviously he is well able to make a judgment as to whether or not, in aparticular circumstance, a lawyer might be of assistance to him. In thecircumstances he faced in Russell on the evening of 24 September 2016 heclearly made a judgment call that he did not need the services of a lawyer inthe situation he was in. He was advised on four separate occasions of his rightto communicate with a lawyer. It makes no sense that he would not have madea protest if he had indicated a wish to consult a lawyer by texting but ConstableGorrie was taking no steps to implement that [56] On the evidence, I am satisfied that he did not communicate anywish to consult with a lawyer.[19] Judge de Ridder also stated that in those circumstances, Constable Gorrie wasnot required to take any further steps to facilitate any form of communication with alawyer.9[20] Lastly, the Judge found that Mr Dooley was not arbitrarily detained in terms ofs 22 of the NZBORA when he was being driven to Kawakawa Hospital.10 The Judgewas not satisfied that the evidence established that Constable Gorrie was driving atexcessive speed.119 At [58].10 At [59].11 At [59].[21] The Judge, therefore, held that the evidence of the result of the blood sampletest was admissible at Mr Dooley's trial.12 On the evidence, he found that the chargeof driving with excess breath alcohol was proved.13[22] The Judge also preferred the evidence of Constables Gorrie and Tipoki aboutthe manner of Mr Dooley's driving, finding that the infringement offence of failing tokeep left was proved.14Approach on appeal[23] Pursuant to s 232(2) of the Criminal Procedure Act 2011, the appeal must beallowed in this case if the Court is satisfied that:(a) The Judge erred in his assessment of the evidence to such an extent thata miscarriage of justice has occurred; or(b) A miscarriage of justice has occurred for any reason.[24] A miscarriage of justice means any error, irregularity, or occurrence in or inrelation to or affecting the trial that:15(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.[25] The Supreme Court, in Sungsuwan v R, defined a "real risk" as "a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".16 That being said, the Supreme Court in Condon v R heldthat not every departure from good practice renders a trial unfair.17 The departure must12 At [60].13 At [60].14 At [62].15 Criminal Procedure Act, s 232(4).16 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].17 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].be "so gross, or so persistent, or so prejudicial, or so irremediable" that the Court mustquash the decision.18[26] An appeal against conviction proceeds by way of rehearing.19 Mr Dooley isentitled to judgment in accordance with the independent opinion of this Court. I must,however, be mindful of the limitations involved in not seeing or hearing directly fromthe witnesses.20 As a result, I can only interfere with the factual findings of the trialJudge if such findings were plainly not open to the Judge on the evidence before him.21Grounds of appeal[27] Mr Winkler, on behalf of Mr Dooley, submits that Judge de Ridder erred in lawin the following four ways:(a) By failing to find that Mr Dooley was not afforded adequate advice ofhis right to consult and instruct a lawyer under s 23(1)(b) of theNZBORA;(b) By preferring the evidence of Constable Gorrie over that of Mr Dooleyin relation to whether Mr Dooley wished to communicate with a lawyerand whether he told Constable Gorrie that he could not speak over thetelephone;(c) By failing to find that Mr Dooley's detention became an arbitrarydetention contrary to s 22 of the NZBORA by reason of ConstableGorrie driving at an excessive speed; and(d) By preferring the evidence of Constables Gorrie and Tipoki over thatof Mr Dooley in relation to the infringement offence of failing to keepleft.18 At [78]; citing Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].19 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].20 Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]-[31].21 Kueh v R [2013] NZCA 616 at [32]; Baylis v R [2018] NZCA 271 at [43].The right to counsel[28] Section 23(1)(b) of the NZBORA provides that everyone who is arrested ordetained under any enactment has the right to consult and instruct a lawyer withoutdelay and to be informed of that right.[29] The Chief Justice's binding Practice Note which prescribes the caution thatPolice must give suspects, includes "that the person has the right to consult and instructa lawyer without delay and in private before deciding whether to answer questions andthat such right may be exercised without charge under the Police Detention LegalAssistance Scheme" (PDLA scheme).22[30] As to what is required to communicate this right, Moore J accuratelysummarised the position in R v Liu:23[77] It is insufficient for the Police to merely recite these rights to a suspectwho they are questioning. They must also demonstrate that the defendantunderstood his rights in a meaningful way. To meet this requirement it willgenerally be sufficient for the defendant to state that he understands what hehas been told. However, where there is an evidential basis to indicate theexistence of circumstances which call for obvious care and further inquiry bythe Police, the onus falls on the Crown to show that the defendant understoodhis rights.(Citations omitted)[31] This follows from the Court of Appeal's comments in R v Mallinson which,although decided before the Chief Justice's Practice Note was issued, are still acceptedas expressing the legal position relevant to the issues raised here:245. Unless there are circumstances calling for obvious care and furtherinquiry there is no reason for not taking the accused's answers at facevalue. If following advice as to the right to a lawyer the accusedresponds affirmatively to the question whether he or she understandsthe position, the obvious inference is that the accused did indeedunderstand his or her rights. But more than a bare statement of the s23(1)(b) right and a bare acknowledgement of understanding is likely22 Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297, r 2(b).23 R v Liu [2015] NZHC 746.24 R v Mallinson [1993] 1 NZLR 528 (CA) at 531. This case was cited with approval more recentlyin R v Alo [2007] NZCA 172, [2008] 1 NZLR 1678 at [67]; R v Wallace [2007] NZCA 265 at [52];B (CA46/2014) v R [2014] NZCA 85 at [32].to be required where, for example, the person arrested is intoxicatedor under drugs or appears to have a mental or physical disability whichcould interfere with his or her comprehension of the rights.6. The crucial question is whether it was brought home to the arrestedperson that he or she had those rights. That is not the same questionas whether the police were justified in assuming that he or she didunderstand them. To look at it simply from the perspective of thepolice officer would mean that the person arrested who did not in factunderstand the position would not be able to make an informed choicewith respect to the exercise or waiver of the guaranteed right.[32] There is also the later judgment of the Court of Appeal in R v Wallace.25 TheCourt relevantly stated:[52] Where a lack of understanding of the right(s) is exhibited, the policeare under a duty to "go further" and ensure that the detainee fully understandsthe scope of the right(s) in question. However, as Mallinson notes, the policecan usually assume, in the absence of special characteristics, that thedetainee's answer to an inquiry concerning the understanding of his or herright(s) can be accepted at face value. "Special circumstances" could be seento exist in relation to non-English speakers, a detainee with a mental orpsychological disability, or where the detainee manifests an erroneousunderstanding of the right [33] Whether there are circumstances which call for further inquiry is necessarily amatter of fact and degree.[34] Mr Winkler submits that Judge de Ridder erred in law by defining the issue asbeing the questions of whether Mr Dooley told Constable Gorrie of his inability tospeak over the telephone and whether Mr Dooley requested that he be given theopportunity to communicate with a lawyer by text message.[35] Mr Winkler submits that prior to any triggering request by Mr Dooley of a wishto communicate with a lawyer, Constable Gorrie should have turned his mind towhether Mr Dooley would be able to converse with a lawyer by speaking over thetelephone. Mr Winkler submits that given Constable Gorrie's evidence that he hadnoticed Mr Dooley's visible cochlear implant device and Mr Dooley's speech lisp,Constable Gorrie should have modified the wording of the Bill of Rights advice byadding suitable extra information, for example that Constable Gorrie could telephonea lawyer who Mr Dooley could then communicate with by text. That would then give25 R v Wallace, above n 24.the advice practical meaning and utility for Mr Dooley who cannot converse over thetelephone. By failing to modify the advice, Mr Dooley was effectively deprived theopportunity of making a meaningful choice as to whether to communicate with alawyer in the PDLA scheme.Discussion[36] As the test is one of subjective understanding, the question is whetherMr Dooley understood his rights.26 The onus is on the prosecution to prove, on thebalance of probabilities, that Mr Dooley understood the explanation.27 Judge deRidder accepted Constable Gorrie's evidence that he advised Mr Dooley of his rightsat the roadside and then again on two occasions at the police station. The Judge alsoaccepted that Mr Dooley responded affirmatively that he understood his rights. Interms of Mallinson, the obvious inference is that Mr Dooley understood his rights andthat answer should be taken at face value.[37] As the Court of Appeal commented in Attorney-General v Udompun:28[120] It is clear from Mallinson that, if there has been an objectivelyeffective communication of rights and there are no special characteristics, thena person's answer at the time that he or she understood the rights can be takenat face value [38] The issue in this case is, therefore, whether Mr Dooley possessed "specialcharacteristics" or whether there were "circumstances calling for obvious care andfurther inquiry". This would mean that Mr Dooley's answers should not be taken atface value.[39] In that regard, I accept that Judge de Ridder mischaracterised the issue.However, and in any event, Judge de Ridder implicitly concluded that there were nocircumstances calling for obvious care and further inquiry.26 R v Mallinson, above n 24, at 531. See also R v Mallinson (No 2) (1992) 9 CRNZ 691 (HC) at694-695; Attorney-General v U (1994) 1 HRNZ 286 (CA) at 290; Attorney-General v Udompun[2005] 3 NZLR 204 (CA) at [119].27 R v Buchanan [2008] NZCA 480 at [48].28 Attorney-General v Udompun, above n 26.[40] Mr Dooley is now aged 65. The uncontested evidence was he began to suffera noticeable loss of hearing in both ears by the time he was aged 25. He experienceda total loss of hearing by the time he was in his 30s. He subsequently had a cochlearimplant inserted into his right ear in October 2014.[41] In his evidence-in-chief, Mr Dooley said that due to the insertion of theimplant, he can hear most people face-to-face. If there is not a lot of background noise,he says he is able to communicate pretty well, in an enclosed environment.[42] Mr Dooley says he has not talked on the telephone for at least 25 years. Hecan speak on the telephone but he cannot hear the other end of the conversation. Hecommunicates by text message.[43] Mr Winkler submits there were clear "objective indicia" of Mr Dooley'shearing disability. Those objective indicia were the external cochlear implant deviceand Mr Dooley's lisp. Constable Gorrie failed to take the obvious care required tomake the necessary further enquiries as to whether Mr Dooley was able to converseover the telephone.[44] Mr Luck, for the respondent, submits there is nothing in the circumstances tosuggest that Mr Dooley exhibited a lack of understanding as to his rights. He says theevidence shows Mr Dooley was cooperative, followed instructions, and did not exhibitany indication that he had misunderstood the Constable's directions.[45] In my view, Mr Winkler is asking the Court to consider the two "objectiveindicia" of a visible cochlear implant device and a lisp, in isolation and out of thenecessary context of the rest of the evidence. When all the circumstances areconsidered as a whole, there are no circumstances "calling for obvious care and furtherinquiry." I refer to the following evidence.[46] There are a number of indications in Constable Gorrie's evidence thatMr Dooley's hearing impairment did not prevent him from engaging Constable Gorriein conversation or from following the Constable's instructions:(a) when Constables Gorrie and Tipoki went to the Duke of MarlboroughTavern, Mr Dooley initiated a conversation with them by introducinghimself and telling them about a DeLorean motor vehicle;(b) when Mr Dooley was stopped by the Police and Constable Gorriespoke to him through the car window:(i) Mr Dooley responded to Constable Gorrie's statement that hehad crossed the centreline by denying that;(ii) Mr Dooley responded to Constable Gorrie's direction that hestate his full name and details;(iii) when the Constable showed him the result of the test and askedMr Dooley if he had been drinking, Mr Dooley responded"yes";(iv) when the Constable said to him that he was required to undergoa roadside breath test without delay, Mr Dooley asked "what'sthat?";(v) when Constable Gorrie gave Mr Dooley his rights on theroadside and asked him if he understood his rights, Mr Dooleyreplied "yes". In his evidence in relation to what was said onthe roadside, Mr Dooley said he understood his rights as beingvery similar to those in California, namely "that I have a rightto an attorney, I have a right to remain silent. I can't recollectexactly what it was. He said an attorney could be appointed forme, I believe that".(vi) after getting out of his vehicle and shutting the door, and as theConstable and Mr Dooley started walking back to the Policevehicle, Constable Gorrie told him that he could not leave hisvehicle unlocked even in this relatively safe place. Mr Dooleyresponded by going back to the vehicle and locking it;(vii) Mr Dooley responded to the Constable's request asking him toproduce his licence by doing so; and(viii) after the Constable explained to Mr Dooley what he had to do,Mr Dooley followed the instructions without difficulty. TheConstable said Mr Dooley was not hesitating: "it was all quitefluent".[47] The circumstances at the Police station were not such that they would havetriggered the requirement for the Constable to go further to ensure that Mr Dooleyunderstood his rights. There were no circumstances that indicated Mr Dooley did notor would not understand his rights:(a) when Mr Dooley was asked whether he would like to speak to a lawyer,he adamantly replied "no";(b) Constable Gorrie asked Mr Dooley if he understood what he had said,and the Constable then said generally "are you sure you don't want alawyer, they're free of charge";(c) Mr Dooley signed a confirmation that he had understood his rights;(d) there were no difficulties with Mr Dooley understanding theConstable's explanation of how the evidential breath test would beconducted;(e) Mr Dooley signed the form acknowledging the advice that he had theright to elect to undergo an evidential blood test; and(f) Mr Dooley was asked if he had understood his right to speak to a lawyerbefore undergoing a blood test, and he replied "yes".[48] Constable Gorrie also said in his evidence:A. Look, you know, I'm a police officer of 14 years' experience, I'vedone a number of EBA's arrests with many different sorts of people,including deaf people. I adapt, you know, what I say or how I dealwith people to the circumstances. I was aware that he was deaf, he hada hearing problem, and that's why I was saying to him, you know,confirming, "Do you understand what I'm saying?" I did modifyhow I spoke to him. I had no problem with him, with his hearing. Henever once said, "I can't hear you," every time we go through thatwhole procedure, it was, actually it was quite easy doing the procedurewith him considering what he was like after in the car [49] Constable Gorrie maintained this view when asked the following question byJudge de Ridder:Q. The point officer is, was there anything that struck you as beingunusual in the sequence of comments that were being made thatsuggested that someone (sic) he hadn't heard what you'd said, didsomething alert you to the fact that there was a problem?A. No. The comments what he was making, he was being bullish Hewasn't confused, he wasn't scratching his head, he wasn't saying Ican't hear you, I don't understand what you are saying.[50] The Constable's evidence is supported by the evidence of Jacob Howell, theowner of the Tavern, as well as Maureen Rihari, the registered nurse who took theblood sample. Both say they had no problems communicating with Mr Dooley.[51] Mr Dooley, while giving evidence, accepted that Constable Gorrie was veryclear while giving instructions. He said that the Constable spoke fairly slowly andclearly. Although he says he told Constable Gorrie that he had a hearing problem whenstopped at the roadside, which is disputed by Constable Gorrie, the subsequentinteraction between the two did not call for obvious care and further inquiry whengiving the NZBORA rights.[52] On the basis of all the above circumstances, in other words the objective indiciataken as a whole, there were no circumstances "calling for obvious care and furtherinquiry".[53] In support of this ground of appeal, Mr Dooley takes issue with the wording inthe breath and blood alcohol procedure sheet which Constable Gorrie said he followedwhen advising Mr Dooley of his rights at the Police station. In various parts of thatform, there is the following:You have the right to speak with a lawyer without delay and in private beforedeciding to answer any questions.If you wish to speak to a lawyer a telephone will be made available to you forthat purpose as soon as practicable.(Emphasis added)[54] In summary, Mr Winkler's submission is that the references to a right to"speak" to a lawyer do not properly reflect the terms of s 23(1)(b), which refer to theright to "consult and instruct" a lawyer. He also submits that the implication is thatthe only way the Police would facilitate contact with a lawyer is by telephone.[55] Mr Winkler refers to the evidence of Ms Selvaratnam, an audiologist called byMr Dooley. She said that a person who has had a hearing loss for quite a long timewill often take a very literal approach to what they are hearing.[56] Finally, on this ground of appeal, Mr Winkler submits that the approach ofJudge de Ridder would effectively burden Mr Dooley to take steps to protect his ownNZBORA rights.[57] The response to these submissions is in the authorities I have referred to. Thereis a conditional requirement on the Police to take further steps to advise the suspect inrelation to their rights in the event that there is something in the circumstances whichsuggests that such steps are necessary. In my view, there were no such circumstancespresent in this case.[58] I am satisfied that Mr Dooley understood his rights and that there was nobreach of s 23(1)(b) of the NZBORA.[59] This ground of appeal fails.Preferring the evidence of Constable Gorrie over the evidence of Mr Dooley[60] The second ground of appeal is whether Judge de Ridder erred in preferringthe evidence of Constable Gorrie over that of Mr Dooley in relation to whetherMr Dooley wished to communicate with a lawyer and whether he told ConstableGorrie that he could not speak over the telephone.[61] Mr Dooley's evidence was that when he was given his rights at the Policestation, he explained immediately that he could not speak to a lawyer by telephone andthat all his conversations with people like that are by text message, and that he wouldneed to be able to text somebody. Mr Dooley further said that in the section of theprocedure form where Constable Gorrie had circled "no" in response to whetherMr Dooley wished to speak to a lawyer, he told Constable Gorrie "no" only becausehe understood the position to mean that he was only allowed to speak to a lawyer overa telephone.[62] In that regard, Mr Dooley relies on the evidence of Ms Selvaratnam referred toin [55] above. He also notes Mrs Dooley's evidence that he always seeks legal advicefor anything of importance. He says he was aware of the importance of the situation,shown by his decision to elect to take a blood test. He says this supports his credibilitythat he did ask for a lawyer.[63] Mr Dooley's account of events was put to Constable Gorrie in cross-examination, but the Constable's evidence was that Mr Dooley had not referred to hisinability to use a telephone at all.[64] Constable Gorrie was also questioned under cross-examination on the circlingof "no" on the procedure sheet:Q. I'll just put it to you once again, asked, he specifically told you hewouldn't be able to speak to a lawyer, and that is in fact when youasked him to sign the form what he was saying is, "Well, of courseI'll" (sic) he had no objection to signing the form because he wasasking to, he was being asked to confirm that he wanted to speak to alawyer but what he in fact was not admitting to is that he wanted tocommunicate with a lawyer in another way.A. So he said no to a lawyer because he wanted a lawyer?[65] Having regard to the conflicting evidence as between Constable Gorrie andMr Dooley, Mr Winkler submits that Judge de Ridder erred in failing to evaluate thecontrasting evidence of Mr Dooley and Constable Gorrie through the "nuanced prism"of the evidence of Mrs Dooley and Ms Selvaratnam.[66] Mr Luck, on the other hand, submits that Mr Dooley's evidence was plainly atodds with Constable Gorrie's evidence. He submits that Constable Gorrie's evidencewas credible and Judge de Ridder was entitled to accept it.[67] Judge de Ridder dealt with the evidence of Mrs Dooley and Ms Selvaratnamas follows:29[37] Mrs Dooley gave evidence. Essentially her evidence was consistentwith that of Mr Dooley in relation to his hearing difficulty and the assistancehe now receives from his cochlea implant. She also confirmed that theyregularly use attorneys for all areas of their business. Apart from that, herevidence was not of direct relevance to the issues in this case.[38] Ms Selvaratnam is an audiologist. Her qualifications and experienceto qualify her as an expert witness were accepted by the prosecution.[39] She has examined Mr Dooley and did so both as to unaided hearingand wearing his cochlea implants. Without his implant she confirmed that MrDooley has a profound permanent hearing loss in both ears.[40] From her testing Ms Selvaratnam considered that there was no waythat Mr Dooley could hold a conversation over a telephone.[41] She stated that a person who has had a hearing loss for a very longtime has different communication strategies compared to the communicationstrategies of people who are oral. People who have had a hearing loss for avery long time take a very literal approach to what they are hearing. She hasseen clients take one tack when the person communicating was meaningsomething a little bit different.[42] Ms Selvaratnam had received the raw data from Mr Dooley'saudiologist in the United States in relation to his operation. After assessingMr Dooley herself she then compared her results to that data and found thatthe tests she did produced results very similar to those obtained by his Americaaudiologist.[43] In summary she considered that Mr Dooley's form of communicationis very consistent with the longevity of his hearing loss. In her experience,working with people who have had hearing loss for the length of time MrDooley has, in communication with such a person the hearing impaired persontends to take over the conversation. They tend to be the instigator of different29 New Zealand Police v Dooley, above n 3.topics. If they mishear something they will often go off on a tangent and tryand go round in circles until they see the look on the other person's faceconfirming they are in the right place and can talk about the matter. Mr Dooleyhas all those different characteristics. In many cases, somebody with asubstantial long term hearing loss is seen to be a great communicator becausethey are always talking but they are not always listening. She considered thatMr Dooley has not always demonstrated good listening strategies which isconsistent with his long term hearing loss.[68] The Judge clearly took the evidence of both Mrs Dooley and Ms Selvaratnaminto account.[69] I accept the submission made by Mr Luck that the gulf between ConstableGorrie's evidence and Mr Dooley's evidence cannot be explained merely as a failureof comprehension. Mr Dooley's position was that he positively requested to text alawyer, and Constable Gorrie's evidence was that no such request was made.[70] Ultimately, Judge de Ridder believed Constable Gorrie's evidence thatMr Dooley did not communicate any wish to consult with a lawyer.30 That was adecision plainly open to the Judge on the evidence. I am not persuaded that thecircumstances are such that I should interfere with that factual finding.[71] This ground of appeal fails.Arbitrary detention[72] Section 22 of the NZBORA provides that everyone has the right not to bearbitrarily arrested or detained.[73] Mr Winkler submits that Mr Dooley's detention in the Police vehicle on theway to Kawakawa Hospital, while initially lawful under s 69(1) of the Land TransportAct 1998, subsequently became an arbitrary detention contrary to s 22 of theNZBORA. The reason for this was because Constable Gorrie was driving at anexcessive speed, relative to the conditions of the road, the weather conditions and thetime of night, which exposed Mr Dooley to unnecessary personal danger and causedhim considerable anxiety.30 At [56].[74] In his evidence, Mr Dooley claimed that Constable Gorrie was "driving like amaniac". He says he kept telling Constable Gorrie to slow down, but he would notlisten. He claims that Constable Gorrie nearly hit a cow which was on the road duringthe return journey from Kawakawa Hospital.[75] As well as Mr Dooley's evidence, Mr Winkler relies on an inconsistency inConstable Gorrie's notebook, where he recorded that he left for the Hospital at12:45 am, while Ms Rihari recorded that she took the blood sample at 1:07 am. Thiswould have meant that it took under 22 minutes to travel from the Russell PoliceStation to the Hospital. Constable Gorrie, under cross-examination, explained:A. Yeah, well, I mean that's me writing that time in my notebook. It maynot be correct, because we know it takes, in actual fact it probablytakes 40, 50, 50 minutes, just, it depends, it could take an hour to getthere. So, yeah, I concede that I may have written that down at 45 onthe way there but I may not have left at that time, or I may even haveleft before, I'm not sure. But I can see that's probably wrong.A. You can't make it from Russell to the Hospital in 15 minutes, doesn'tmatter who you are as the driver on that road. If you've driven you'dunderstand what I mean.Q. But I'm putting it to you now that whether you got that time wrong ornot, that Mr Dooley asked you on a number of occasions to pleaseslow down. What is your comment on that?A. I wasn't going fast. I was probably, I drive that road around aboutprobably 50k at the most. I've driven that road many, many times.There's actually a 100k speed limit. So I was actually doing half thelimit but logically you wouldn't be driving any faster than that.[76] The Constable accepted later in cross-examination that he likely left the PoliceStation just after 12 am, not at 12:45 am. Judge de Ridder clearly believed ConstableGorrie's explanation.[77] Again, this was a finding plainly open to the Judge. I am not persuaded thatthe circumstances are such that I should interfere with that factual finding.[78] That is sufficient to dispose of this ground of appeal without any need for adiscussion on the applicability of s 22 to this type of situation.Failing to keep left[79] Mr Winkler submits that Judge de Ridder erred in accepting the evidence ofthe police officers over the evidence of Mr Dooley. Specifically, he erred in failing toaccord any weight to the lack of contemporaneous notebook entries by the Constablesregarding this issue.[80] Again, this was a finding that was plainly open on the evidence. Thecircumstances are not such that I should interfere with that factual finding. BothConstables gave evidence that they each observed the vehicle cross the centreline.They maintained that position while under cross-examination.Fresh evidence[81] Mr Winkler filed an affidavit from Ms Selvaratnam in response to a submissionmade by the respondent in written submissions. I have not relied on that particularsubmission made by the respondent. It is not otherwise necessary to admit theevidence. It is accordingly not admitted.Result[82] I am satisfied that no miscarriage of justice has occurred.[83] The appeal against conviction is dismissed. The appeal against the finding thatMr Dooley committed an infringement offence is also dismissed.___________________________________Gordon J