SMITH v NEW ZEALAND POLICE [2020] NZHC 980

SMITH v NEW ZEALAND POLICE [2020] NZHC 980 [13 May 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-000015[2020] NZHC 980BETWEEN LYNETTE HINE-ITE-AHANGA KAIKI(AKA SMITH)AppellantAND NEW ZEALAND POLICERespondentHearing: 12 May 2020Appearances: A Shaw for the AppellantD Moore for the RespondentJudgment: 13 May 2020JUDGMENT OF COOKE J[1] The appellant, Ms Smith, was convicted of one charge of driving with excessblood alcohol (third or subsequent) before Judge Mill in the District Court at Porirua.1She was sentenced in February 2020 to nine months' supervision, three months'community detention and disqualified from driving for one year and one day.2[2] Ms Smith appeals her conviction on the grounds the evidential blood test resultis inadmissible pursuant to s 30 of the Evidence Act 2006 as it was obtained in breachof her rights under ss 22 and 23 of the New Zealand Bill of Rights Act 1990 (BORA).1 New Zealand Police v Kaiki [2019] NZDC 16949; Land Transport Act 1998, ss 56(2) and 56(4),maximum penalty two years' imprisonment or $6,000 fine.2 New Zealand Police v Kaiki [2019] NZDC 5351.Factual background[3] The facts are largely undisputed. It is accepted that Ms Smith was involved ina car collision while driving in Titahi Bay shortly before 3.30 pm on Wednesday31 October 2018. In the aftermath of the collision, two eye witnesses reportedMs Smith appeared to be intoxicated. She herself accepts she had been drinking.Police were called to the scene and informed one of the parties involved in the crashwas believed to be under the influence of alcohol.[4] One of the attending officers approached Ms Smith and required her to undergoa breath screening test pursuant to s 68 of the Land Transport Act 1998 (the Act).There is no challenge to the administration of the roadside test. The test showed aresult of over 400. Following a standard form breath and blood alcohol proceduresheet, the officer advised her of the following:(a) She had the right to remain silent and did not have to make a statement,(b) Anything she did say would be recorded and could be given as evidencein Court,(c) She had the right to speak to a lawyer without delay and in privatebefore deciding to answer any questions and the Police had a list oflawyers she could speak to for no charge.[5] At that time she was not, contrary to the procedure set out in a standard formused by police, advised that those rights would continue throughout the evidentialtesting procedures. In evidence the officer explained that he had not read out the finaltwo bullet points on the procedure sheet corresponding to those rights as he did nothave the procedure sheet before him. The officer then advised her that she wasrequired to accompany him to the Porirua Police Station for the purpose of anevidential breath or blood test pursuant to s 69 of the Act. She agreed to do so andaccompanied him to the station. The officer recorded the time of the agreement toaccompany on the form as 3.57 pm.[6] At the Porirua Police Station the officer continued with the standard formbreath and blood alcohol procedure sheet. The form contains a section "Bill of RightsAct 1990 – Evidential Breath Test Advice". In accordance with the sheet, the officeradvised Ms Smith of her rights under BORA:(a) The right to remain silent, that she was not required to make a statementand any statement will be recorded and might be given as evidence(b) She had the right to speak with a lawyer without delay and in privatebefore answering any questions, and Police had a list of lawyers shecould speak to for free,(c) That those rights would continue throughout the test procedure, and(d) That if she wished to speak to a lawyer a phone would be madeavailable.[7] After the list of rights the form contains a section "would you like to speak toa lawyer?" and the officer circled "No", being Ms Smith's answer. In the section"comment" the officer recorded her response, "Sweet". The next section of the formprovides an explanation of the evidential breath test requirement and procedure. Theofficer read out the section, and in accordance with the form, again asked if she wouldlike to speak to a lawyer. The officer circled "no". Ms Smith signed the formimmediately below the section in acknowledgment of her understanding. The formrecords she signed at 3.55 pm.[8] The officer then initiated the evidential breath testing procedures. Ms Smithblew into the tube but the device returned a result of "insufficient sample". Ms Smithcontinually attempted to give a sample but the device continually returned a result ofinsufficient sample. In evidence the officer explained in evidence that each samplewas of insufficient volume and length to record a result. The section of the form titled"evidential breath test" records the test was first conducted at 3.57 pm. The officerthen circled "incomplete test" and wrote "unable to provide sufficient sample afterseveral attempts. Did not want to blow further". In evidence the officer said that afterMs Smith was unable to produce a sufficient sample, he asked her if she wanted toblow further and she said she did not. The officer then determined it was appropriateto commence the procedure for requesting a blood sample pursuant to s 70 of the Act.[9] The officer proceeded to read the explanation and rights recorded in the sectionof the sheet entitled "No EBT result: rights to be read". The officer explained that shewould be detained for the purpose of a blood test due to the incomplete evidentialbreath test and again advised her of her rights. The officer again asked if she wouldlike to speak to a lawyer and she declined. The officer circled "no" on the sheet.Ms Smith signed the form acknowledging she had been advised of the reason for herdetention and rights. The form records she signed in acknowledgment at 4.04 pm.[10] There is an issue about the wording of the rights as set out in Part I of the formread out to Ms Smith. The form recorded the rights in the following way:• You have been detained for the purpose of the blood test procedure foralcohol as a result of an incomplete, failed or refused evidential breathtest.• You have the right to remain silent.• You do not have to make any statement.• Anything you say will be recorded and may be given in evidence incourt.• These rights will continue throughout the blood alcohol testingprocedure.• You have the right to speak with a lawyer without delay and in privatebefore deciding to answer any questions.• Police have a list of lawyers you may speak to for free.• If you wish to speak to a lawyer a telephone will be made available toyou for that purpose as soon as practicable. You will be allowed areasonable time to consult and instruct a lawyer from the time atelephone is made available to you.[11] Mr Shaw points out that the statement that "these rights will continuethroughout the blood alcohol testing procedure" at the end of the first box is either inthe wrong place, or should also have been repeated after the set of rights concerningthe right to consult a lawyer in the second box.[12] The officer then turned to section M of the form and explained a bloodspecimen would be required and that she would be liable to pay a blood test fee. Theform records that Ms Smith consented to the taking of the sample at 4.05 pm.[13] A nurse was called to the station to take a blood sample. Evidently it took thenurse some time to arrive. The evidential blood alcohol check sheet records a sampleof blood was not taken until 5.01 pm. There was no repetition of the advice of theappellant's rights prior to the blood test being taken.[14] The sample was later delivered to ESR for analysis. The ESR analysisproduced a result of 172 milligrams of alcohol per 100 millilitres of blood.District Court decision[15] There were two key issues before the District Court.3 First, whether the Policehad proven beyond reasonable doubt that Ms Smith failed the evidential breath test,such that it was appropriate to seek a blood sample. Second, whether the blood testresult was inadmissible on the grounds it was obtained in breach of Ms Smith's rightsunder BORA.[16] Before the District Court Mr Shaw for Ms Smith submitted that she wasinsufficiently afforded the right to consult and instruct a lawyer without delay.4 It wasargued that the officer failed to inform her of this right at the roadside, and in each ofthe three occasions that he advised her of her rights he failed to explain them in amanner she was able to understand.5 In addition it was argued that the form, and theadvice provided, failed to explain to Ms Smith that her rights in relation to legal advicesubsisted throughout.[17] The Judge accepted that, after the breath screening test at the roadside, theSenior Constable did not advise that her rights to speak to a lawyer continuedthroughout the testing procedures and that a phone would be made available to her3 New Zealand Police v Kaiki, above n 1, at [17].4 New Zealand Bill of Rights Act 1990, s 23(1)(b).5 New Zealand Police v Kaiki, above n 1, at [21].should she wish to consult a lawyer.6 At that time she was, therefore, not fullyinformed as to how her right would be facilitated. The Judge did not accept that thisomission resulted in a breach of her rights as the omission was not in bad faith andwas addressed prior to any evidential steps taken at the station.7[18] The Judge further found she was properly given her rights, including the rightto consult and instruct a lawyer, upon returning to the station. She was told onceshortly before 3.55 pm, and again at approximately 4 pm after being told she wasrequired to undergo the blood test procedure. The Judge found that on each occasion,notwithstanding her intoxication, she had sufficient capacity to understand thoserights. The Judge accepted that Ms Smith was not told that she could ask to consult alawyer between the request for blood at 4.05 pm and the nurse's arrival and taking ofblood shortly after 5 pm.8 The Judge held there was no breach of her rights in thosecircumstances:[48] Best practice would have been for the officer to advise her of thecontinuing rights to consult and instruct during the whole of the procedurewhen he gave her rights again at 4.04 pm. On the other hand, she had alreadybeen advised of that right and that it would continue throughout the procedureat 3.55 pm, less than 10 minutes earlier.[49] So at 4.04 pm she was advised blood would be taken, and was againtold she had the right to consult and instruct a lawyer without delay and inprivate.[50] This is an example of it being brought to her attention that the right infact was ongoing throughout the testing procedure. It was a check to see ifthe defendant wished to see a lawyer notwithstanding she had already said shedid not.[51] While a failure to remind her of the ongoing nature of the right maynot be best practice, she had already been made aware of its ongoing naturejust 10 minutes earlierThere is no breach of the rights in the officer notreminding her again in those circumstances.[19] The Judge was satisfied that Senior Constable Graham lawfully required herto undergo an evidential breath test and there had been sufficient time allowed for herto blow into the device fully and properly as could be seen from her attempting to do6 At [25].7 At [31].8 At [22].so on seven occasions.9 The Judge was satisfied all the elements of the charge wereproven beyond reasonable doubt.Relevant lawApproach to appeal[20] An appeal against conviction in a Judge-alone trial is governed by s 232 of theCriminal Procedure Act 2011. This appeal is brought under s 232(2)(b):232 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, the jury'sverdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that a miscarriage ofjustice has occurred.(c) in any case, a miscarriage of justice has occurred for any reason.(4) In subsection (2), miscarriage of justice means 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.[21] The Supreme Court re-examined the approach to assessment of evidence forconviction appeals in Sena v New Zealand Police.10 The Court held that appeals insuch cases should proceed by way of rehearing in accordance with the well-establishedprinciples canvassed in Austin, Nichols & Co Ltd v Stitchting Lodestar.119 At [59].10 Sena v New Zealand Police [2019] NZSC 55.11 At [32]; and Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR141.Issues on appeal[22] The essential argument on appeal is that the evidential blood test result wasimproperly obtained within the meaning of s 30 of the Evidence Act 2006 and oughtto have been ruled inadmissible. Mr Shaw for Ms Smith submits the result wasobtained in circumstances involving breaches of Ms Smith's right to counsel and whileshe was subject to arbitrary detention.[23] Section 30 of the Evidence Act applies when an issue of improperly obtainedevidence is raised. A Judge must first find, on the balance of probabilities, whetherthe evidence was improperly obtained. If so, the Judge must then determine whetheror not the exclusion of the evidence is proportionate to the impropriety by means of abalancing process. Section 30(5) defines "improperly obtained" evidence as includingevidence obtained in breach of BORA. There must be a causal connection betweenthe breach of the right and the obtaining of the evidence.12[24] Section 23(1)(b) of BORA provides that everyone who is arrested or detainedshall have the right to consult and instruct a lawyer without delay and to be informedof that right. It is insufficient for the police to merely recite those rights to a suspect.Police must also demonstrate that the defendant understood those rights,13 and thatthey took reasonable steps to correct any misapprehension of those rights by adefendant.14Continuing right to legal advice[25] Mr Shaw submits the enforcement officer breached s 23(1)(b) of BORA byfailing to advise her, including immediately prior to her blood test that her right tocounsel continued throughout the blood alcohol testing procedure and this deficiencywas effectively repeated at the station, citing Rae v Police.15 Rae is the lead authorityon the right to legal advice during breath and blood alcohol testing procedures. Thecase held that a motorist has a continuing right to consult legal counsel throughout thebreath and blood alcohol testing procedures and the enforcement officer is obligated12 See for example R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 at [47].13 R v Mallinson [1993] 1 NZLR 528 (CA).14 R v Liu [2015] NZHC 746; R v Shriek [1997] 2 NZLR 139 (CA).15 Rae v Police [2000] 3 NZLR 452 (CA) at [45].to facilitate the exercise of the right throughout.16 The Court held the extent of thefacilitation will depend on the circumstances. Ultimately, there must be a fairopportunity for the detained person to consider and decide whether or not to exercisethe right.17[26] I do not consider that there has been a material breach of the right leading tothe potential operation of s 30. The full expression of the rights were not given at theroadside, the statements read from the form did not expressly state that the rights toreceive legal advice subsisted throughout, and there was a gap of approximately anhour before the nurse arrived during which the rights were not repeated. But thequestion of compliance needs to be considered in a substantive rather than formalisticway. Ms Smith was informed at 3.55 pm that she had a right to speak to a lawyer andthat right continued throughout the breath or blood alcohol test procedure. At 4.04 pmshe was again advised of her right to speak to a lawyer and asked if she would like tospeak to a lawyer. The officer was not obliged to facilitate her right by telling her ofit a further time. There was ample opportunity for her to consider and decide whethershe wished to consult a lawyer. As I explain below there are issues with the contentof the form used to advise Ms Smith of her rights. But the essence of the rights werestill outlined.[27] It seems to me that the argument should really focus on to whether Ms Smithunderstood that she had those rights throughout the process given the technical issuesraised by Mr Shaw, which is the issue to which I turn.Did Ms Smith understand her rights?[28] Mr Shaw submits the enforcement officer failed to discharge the obligation toensure Ms Smith understood her rights. In particular Mr Shaw submits the officerought to have directly asked her whether she understood the rights, particularly incircumstances where she had been drinking. In evidence Ms Smith said that she didnot understand that she could speak to a lawyer while waiting for the nurse to take the16 At [57].17 At [57].blood test. The District Court Judge did not accept her evidence on this point,however.18 In substance the appeal is a challenge to this factual finding.[29] The Court of Appeal in R v Mallison discussed the obligation to "inform" anaccused of their right to consult a lawyer.19 The Court held that, while no particularwords are required, the content of the right must be "brought home".20 The Courtobserved:21(a) Generally, where the accused responds affirmatively to the questionwhether he or she understands the position, there is no reason for nottaking the accused's answers at face value.(b) If the person arrested is intoxicated, or under the influence of drugs orappears to have a mental or physical disability something more than abare statement of the s 23(1)(b) right is likely to be required.(c) In the end whether or not the obligation was satisfied must turn on whatwas said and what is to be implied in the particular context andcircumstances, bearing in mind the Bill of Rights must be applied in arealistic way.[30] I accept Mr Shaw's point that the conveying of the right must take place in a"real and practicable way", and that that is best secured by a direct personalengagement on that question.22 I also accept that the officer here has simply gonethrough the procedures, that an error was made when he did so, and that there arepotential issues with the form. The section at "I" does not make it clear that the rightsto a lawyer continue through the blood alcohol testing procedure, and at no point doesthe form ask the question "do you understand your rights?" which may well beappropriate. I accordingly accept Mr Shaw's point that there are apparentshortcomings with this material.18 New Zealand Police v Kaiki, above n 1, at [46], [52] and [54].19 R v Mallison, above n 13, at 531.20 At 531.21 At 531.22 See Rae v Police, above n 15, at [57].[31] Moreover if an officer merely goes through the motions, rather than activelyengaging with the detained person, there is a risk that a finding will be made that thedetained person has not been informed of their rights in a way that demonstrates theyhave been brought home. But it will depend on the circumstances, as even followinga relatively routine procedure could adequately convey the rights to the affectedperson.[32] Here I am of the view that there was no error by the Judge when he made thefactual findings that Ms Smith understood her rights, and that the enforcement officerdischarged the obligation to inform Ms Smith of her rights. Ms Smith was informedof her right to consult a lawyer three times – at the roadside, upon arrival of the station,and just after the failed evidential breath test. She was asked if she wanted to consulta lawyer three times. Ms Smith signed the breath and blood alcohol procedure sheeton two occasions to confirm the officer had advised her of her rights. I do not considerthere is a basis to overturn the Judge's factual findings on these issues. There was aproper factual foundation for them.Arbitrary detention[33] Finally Mr Shaw submits that Ms Smith's right to be free from arbitrarydetention under s 22 of the BORA was breached by the enforcement officer during thebreath and blood alcohol testing procedures.23 Mr Shaw contends that the detentionbecame arbitrary from the moment the officer failed to remind the appellant that shecould consult a lawyer and that this would go into the mix of considerations unders 30.[34] I accept there could be a breach of s 22 if there was a breach of s 23, and thismay be relevant to the s 30 assessment. But as I have found, there was no breach ofs 23. The lawful detention continued throughout the breath and blood testingprocedures.2423 New Zealand Bill of Rights Act 1990, s 22.24 See, for example, Rae v Police, above n 15, at [44].Conclusion[35] In my view the evidence was lawfully obtained. There was no breach of ss 22or 23 in obtaining the evidential blood test results. So no issue arises as to whetherthe evidence ought to be excluded by way of s 30.[36] For these reasons the appeal is dismissed.Cooke JSolicitors:A Shaw, Wellington for AppellantG J Burston, Crown Solicitor, Wellington for the Respondent