LANGLANDS v POLICE [2019] NZHC 214

LANGLANDS v POLICE [2019] NZHC 214 [20 February 2019]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2018-463-000082[2019] NZHC 214IN THE MATTER OF an appeal against convictionBETWEEN RICHARD WILLIAM LANGLANDSAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2019Counsel: T J Conder for the AppellantS J P Davison for the RespondentJudgment: 20 February 2019JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 20 February 2019 at 10.00 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Holland Beckett, TaurangaPollett Legal (Office of the Crown Solicitor), Tauranga[1] Mr Langlands pleaded guilty to one charge of refusing to give a bloodspecimen1 and was convicted in the District Court at Tauranga on 10 July 2018.Mr Langlands appeals that conviction. He says he had a tenable defence based on theexclusion of improperly obtained evidence due to the failure of police to facilitate hisright to a lawyer, and that he was not properly advised about that defence prior toentering his plea.Events giving rise to the charge[2] On the evening of 24 January 2018, Mr Langlands was driving towards themarina, towing his boat. Police pulled him over and administered a roadside screeningtest that indicated he was over the legal breath alcohol limit.[3] The police breath and blood alcohol procedure sheet records that Mr Langlandswas told that he was required to accompany police to the police station, and he wasthen advised of his rights under the New Zealand Bill of Rights Act 1990 (NZBORA).Those rights included the following:• You have the right to speak with a lawyer without delay and in privatebefore answering any questions.• Police have a list of lawyers you may speak to for free• These rights will continue throughout the breath or blood alcoholtesting procedures• 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.[4] The procedure sheet records this advice as being given at 20.00 hrs.Mr Langlands subsequently agreed to accompany police to the Taurangapolice station.[5] At the police station, Mr Langlands was advised that he had been detained forthe purpose of breath or blood test procedures for alcohol. The procedure sheet recordsthat he was given his NZBORA rights again, including those rights set out above. It1 Land Transport Act 1998, s 60.also records that he responded "no" when asked if he would like to speak to a lawyer.Mr Langlands was then advised that he was required to undergo an evidential breathtest without delay, and advised of the consequences of failing or refusing to undergothat test. He was again asked whether he would like to speak to a lawyer. Again, theform records his answer as "no". Mr Langlands signed this part of the procedure sheetat 20.11 hrs.[6] An evidential breath test was then administered at the station. That test showedMr Langlands had 1,274 micrograms of alcohol per litre of breath. Mr Langlands wasadvised of this result at 20.20 hrs. The procedure sheet records that he refused to signthis part of the form.[7] Mr Langlands was then advised again that he had been detained for thepurposes of breath or blood test procedures for alcohol. He was given his rights underNZBORA again, and was asked whether he would like to speak to a lawyer. The word"no" is circled on the procedure sheet. Mr Langlands refused to sign this part of theprocedure sheet at 20.21 hrs.[8] The ten-minute period within which Mr Langlands could decide whether toelect a blood test then commenced. Within the first minute, Mr Langlands elected togive blood, and a nurse was called. When the nurse arrived, Mr Langlands refused togive blood. The procedure sheet records this as occurring at 20.43 hrs. A bloodspecimen medical certificate completed by the attending nurse also records the timethat Mr Langlands refused to give a blood specimen as 20.43 hrs.[9] Mr Langlands was subsequently charged with failing to provide a bloodspecimen under s 60 of the Land Transport Act 1998 (LTA).[10] Mr Langlands does not dispute that he was advised of his rights underNZBORA, and he does not dispute the times recorded on the procedure sheet up untilthe point that he was advised of his evidential breath test results. Nevertheless,Mr Langlands says that he was denied his right to speak to a lawyer on two occasions.[11] First, he says that prior to the evidential breath test being administered, whenhe was asked whether he wanted to speak to a lawyer, he replied that he couldn'tbecause he had left his phone and wallet in the car. Mr Langlands says that this shouldhave put the police on notice that he didn't understand his right to speak to a lawyer,and more should have been done to facilitate his access to legal advice at the time.[12] Second, he says that at around the same time he refused to give blood, he askedto speak to his lawyer and requested assistance from police to find his lawyer's mobilenumber. Police made a call to Mr Langlands' lawyer anticipating that the answermachine may have had a cellphone number for him – but it did not. Mr Langlandssays that the police officer then told Mr Langlands that he was "screwed".[13] There is no dispute that police made a call to the lawyer's office. However,the timing of that call is disputed. Records from police, and the lawyer's office, putthe time of that call at around 21.50 hrs, nearly one hour after Mr Langlands refusedto give blood.[14] A Tauranga barrister, Mr Balme, represented Mr Langlands in theDistrict Court. At that time, Mr Langlands' concern was to establish the time that aphone call to his lawyer had been made. The lawyer's telephone records, the nurse'smedical certificate, and the invoice for her attendances, were obtained. Mr Langlandssays that he instructed Mr Balme to seek a copy of the police telephone records toshow the time that the telephone call had been made, but those records were notobtained prior to Mr Langlands entering a guilty plea.[15] Mr Balme swore an affidavit and gave oral evidence at the appeal hearing. Hesays that he formed the view that Mr Langlands had no real defence to the charge, andhe advised him to plead guilty. Mr Langlands says that, in the absence of the policetelephone records, he felt that he had no other choice but to enter a plea of guilty. Hewas convicted and sentenced to a fine of $1,500, court costs of $130, and disqualifiedfrom driving for six months.[16] A copy of the police custody sheet from the night in question was subsequentlyobtained. That sheet records Mr Langlands' movements in and out of police cells onthe night in question. It records that Mr Langlands was taken from his cell, and anattempt to contact Mr Langlands' lawyer was made at 21.54 hrs, after whichMr Langlands was returned to his cell.Approach on appeal[17] An appeal against conviction is governed by ss 229–236 of the CriminalProcedure Act 2011. A court must allow the appeal if it is satisfied that a miscarriageof justice has occurred for any reason.2 A miscarriage of justice is defined in s 232(4)as: any error, irregularity, or occurrence in or in relation to or affecting thetrial 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.[18] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable verdict) might have been delivered ifnothing had gone wrong".3 An appellant challenging their conviction must onlyestablish that there is a reasonable possibility that the verdict is unsafe.[19] It is only in exceptional circumstances that an appeal against conviction willbe entertained following the entry of a guilty plea. An appellant must show that amiscarriage of justice will result if the conviction is not overturned.4 Further, wherean appellant has fully appreciated the merits of his or her position, and made aninformed decision to plead guilty, the conviction is unlikely to be impugned.5[20] There are four broad categories of cases where a miscarriage of justice mayarise notwithstanding a guilty plea.6 The first is where the appellant did not appreciatethe nature of, or did not intend to plead guilty to, a particular charge. The second and2 Criminal Procedure Act 2011, s 232(2).3 Wiley v R [2016] NZCA 28 at [27]; Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730, (2005)21 CRNZ 977 at [110].4 R v Merrilees [2009] NZCA 59 at [33]; R v Proctor [2007] NZCA 289 at [4]; and R v Le Page[2005] NZLR 845 (CA) at [16].5 Nixon v R [2016] NZCA 589 at [8].6 R v Le Page [2005] NZLR 845; R v Merrilees [2009] NZCA 59.third categories are not relevant to this appeal. The fourth category concerns trialcounsel error. The Court of Appeal described this category in Merrilees v R asfollows:7There will be a further situation where trial counsel errs in his or her advice toan accused as to the non-availability of certain defences, or outcomes, or ifcounsel acts so as to wrongly, and perhaps negligently induce a decision onthe part of a client to plead guilty on the mistaken belief or assumption that notenable defence existed or could be advanced.[21] Mere assertions of a possible defence are not enough to show a miscarriage ofjustice.8 On the other hand, it is not necessary for an applicant to prove that the defencewould be inevitable or be even highly likely to succeed.9 What is required is a defencethat has a realistic prospect of success, variously described as a "tenable", "arguable","credible" or "discernible" defence.10Was there a tenable defence?[22] Mr Langlands submits that he had a tenable defence available to him based onthe police's failure to facilitate his right to access a lawyer on the two occasionsmentioned above. Based on that failure, Mr Langlands argues that he could havesought to have evidence of the steps taken after the alleged breach (leading to andincluding the refusal to give a blood specimen) excluded under s 30 of theEvidence Act 2006.[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.[24] Section 30(5) defines "improperly obtained" evidence as including evidenceobtained in breach of the NZBORA, and evidence obtained "unfairly". Mr Langlandsrelies on the former in support of his appeal.7 R v Merrilees [2009] NZCA 59 at [34].8 Nixon v R [2016] NZCA 589 at [9] and [11].9 Joshi v R [2015] NZHC 2022 at [22]–[23].10 Cooper v R [2013] NZCA 551 at [20].[25] Section 23(1)(b) of the NZBORA provides that everyone who is arrested ordetained shall have the right to consult and instruct a lawyer without delay and to beinformed of that right. Clause 2 of the Chief Justice's Practice Note onPolice Questioning provides that the police caution must include the right to consultand instruct a lawyer without delay and in private before deciding whether to answerquestions, and that such right may be exercised without charge under thePolice Detention Legal Assistance Scheme.11[26] Mr Condor, for Mr Langlands, took me to several cases in which it wasestablished that it is not sufficient for police to merely recite these rights to a suspect.They must also demonstrate that the defendant understood those rights, and that theytook reasonable steps to correct any misapprehension of those rights by a defendant.12[27] These principles are not disputed by the Crown. It is the application of themto Mr Langlands' case which is contested. The issues are:(a) whether it is reasonably arguable that Mr Langlands did not understandhis rights on the first occasion; and(b) whether the police failed to take all reasonable steps to facilitate hisright to a lawyer on the second occasion.[28] Each occasion is considered below.First occasion[29] Mr Langlands says that the first alleged breach occurred at the police station,prior to the evidential breath test being administered. He says that when he was askedwhether he wished to speak to a lawyer, he said he couldn't as he didn't have a phonewith him. This, he says, should have indicated to police that he did not fullyunderstand his rights and they should have done more to ensure he understood his rightto a lawyer.11 Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.12 R v Liu [2015] NZHC 746; R v Shriek [1997] 2 NZLR 139 (CA).[30] Mr Langlands was cross-examined about this first occasion at the appealhearing. He was asked when he told police he could not ring a lawyer because he didnot have his phone. Although he said he was certain that he told the police officer this"many many times", he was not sure he had said it when his NZBORA rights wereread to him at 20.11 hrs, and when he told police he did not want to speak to a lawyer.13[31] Other evidence of events that night cast significant doubt on Mr Langlands'account. The police procedure sheet records that Mr Langlands had already been toldon at least two occasions that the police had a list of lawyers he could speak to for free,and that if he wanted to speak to a lawyer, then a telephone would be made availablefor that purpose as soon as practicable. Mr Langlands does not dispute having receivedthat advice. It does not make sense for Mr Langlands to respond to that advice bytelling police that he could not call a lawyer because he had left his phone in the car.[32] Furthermore, police notes taken at the time of his processing make no referenceto Mr Langlands saying anything about his phone or wallet. There are also reliabilityissues with his evidence given he had been drinking that evening.[33] But even if Mr Langlands could show he had told police he did not have hisphone on him, it does not automatically follow that the police failed to ensure heunderstood his rights. Mr Langlands was clearly given his rights on multipleoccasions. The fact that Mr Langlands was told about the list of lawyers and theavailability of a telephone distinguishes Mr Langlands' case from those in which thedefendant was not told of those rights.14[34] Furthermore, and unlike other cases in which a breach has been found, there isno reason to suggest that Mr Langlands did not fully understand and appreciate hisrights at the time. Mr Langlands is an accountant who has been in practice for over40 years. His first language is English, and, while he had drunk a fair amount on theevening in question, it is not disputed that he was able to follow and understandinstructions. In those circumstances, it is difficult to envisage what else the police13 NOE, p 13, line 13, line 24 – p 14, line 4.14 Ministry of Transport v Noort [1992] 2 NZLR 260 (CA); R v Liu [2015] NZHC 746.could have said to Mr Langlands to disabuse him of any misapprehension that heneeded to use his own phone to call his own lawyer.[35] In the circumstances, I am not persuaded Mr Langlands had a tenable argumentthat there was a breach of the NZBORA on this first occasion.[36] But even if I am wrong about that, Mr Langlands would still need to show thatthere was a real prospect that the evidence would have been excluded as a result of thes 30(2) balancing test. Mr Langlands would not be able to discharge that burden inmy view. There is no dispute that the right to a lawyer is very important.15 But, thefact that Mr Langlands was advised of his rights, and the availability of a list of lawyersto speak to for free on multiple occasions, renders any impropriety at the lowest endof the scale.16 Similarly, the lack of a direct causal link between the allegedimpropriety, and the refusal to give a blood specimen which forms the basis of thecharge, would also weigh against exclusion. It is unlikely that exclusion of evidencewould be considered a proportionate response in those circumstances.[37] In summary, I do not consider Mr Langlands had a tenable defence based onan alleged breach of his right to a lawyer on the first occasion.Second occasion[38] The second occasion relates to Mr Langlands' request to speak to his familylawyer. Mr Langlands says that while police assisted him to locate the lawyer'snumber, they failed to facilitate access after it became known that he was unavailable.Mr Langlands says that police should have explained the Police Detention LegalAssistance Scheme and identified another lawyer for Mr Langlands to speak to at thatstage. Further, the police officer's statement that Mr Langlands was "screwed" is saidto have tainted evidence of subsequent steps.[39] The key issue in dispute concerning this second occasion is the timing of thepolice call to Mr Langlands' lawyer. Mr Langlands contends that he asked to speak to15 Evidence Act, s 30(2)(a), Ministry of Transport v Noort [1992] 2 NZLR 260 (CA).16 Evidence Act, s 30(2)(b).his lawyer at about the time he was requested to give a blood sample. But that timingis contradicted by the documentary evidence:(a) The police procedure sheet records that Mr Langlands refused to giveblood, having consented, at 20.43 hrs. The blood specimen medicalcertificate also records this as the time that Mr Langlands subsequentlyrefused to give a blood specimen.(b) The phone records obtained from Mr Langlands' lawyer suggest thatthe police tried to call him at 21.51 hrs. That time is broadly consistentwith the police custody records subsequently obtained which show aphone call having been made at 21.54 pm.[40] In other words, rather than a phone call being made contemporaneously withthe refusal to give blood, the objective documentary evidence suggests thatMr Langlands' request was more than an hour after he refused to give the bloodspecimen.[41] Mr Langlands accepts the times recorded in his lawyer's phone records and thepolice custody sheet. However, he challenges the times recorded in the policeprocedure sheet and the nurse's certificate that he refused to give a blood specimen.But there is no reason to suggest that those times are incorrect. Mr Langlands simplyasserts that the times do not accord with his recollection of events that evening.However, as already noted, his recollection must be treated with a significant degreeof caution given the amount of alcohol he had drunk that evening, and the self-servingnature of his evidence. I consider the police procedure sheet is a more reliable recordof the sequence of events that night.[42] The upshot of all this is that Mr Langlands cannot tenably show that there wasa breach of his NZBORA rights, or any unfairness, which would lead a Judge toconclude that evidence of his refusal to give a blood specimen was improperlyobtained. Mr Langlands cannot get past the first stage of the s 30 analysis, and so it isunnecessary to go on and consider the balancing process at the second stage.[43] In summary, I am not persuaded that Mr Langlands had a tenable defence basedon the exclusion of evidence under s 30 of the Evidence Act in relation to the secondoccasion.Was there counsel error?[44] Even if Mr Langlands could show that he had a tenable defence, that wouldnot be sufficient to succeed on appeal. He must also show that his trial counsel failedto properly advise him of this tenable defence, and it was on that erroneous basis thathe entered a guilty plea. Because this formed a key plank of Mr Langlands' appeal, Iaddress it for the sake of completeness, albeit in relatively brief terms.[45] Mr Condor, for Mr Langlands, submits that Mr Balme erred in failing to obtainpolice telephone records to confirm the time the telephone call was made toMr Langlands' lawyer. He submits that Mr Langlands was clearly fixated onestablishing the timing of the telephone call to his lawyer, and in the absence of thosetelephone records, he considered he had no other option but to plead guilty.[46] Mr Langlands' apparent fixation with obtaining the police telephone recordsneeds to be considered in context. The documentary records disclosed prior toMr Langlands' plea did not support his contention that he had asked to speak to alawyer during processing. To the contrary, they were completely at odds with hisaccount. And, as noted above, there was no reason to doubt the accuracy of thoserecords. Mr Balme was alive to this issue, and discussed it on several occasions withMr Langlands. He formed the view that there was no credible basis upon which thepolice records could be properly challenged. It was on that basis that he advisedMr Langlands to plead guilty.[47] Significantly, there is nothing in the police custody sheet which would havealtered that assessment or that advice. That police custody sheet confirms the timingof the phone call made at 21.54 hrs. That is consistent with the other documentaryrecords. It does not raise any new issue regarding the timing of Mr Langlands' refusalto give a blood specimen, or his request to speak to a lawyer.[48] In the circumstances, Mr Balme acted properly and professionally. He advisedMr Langlands that a defence based on an alleged failure to facilitate a right to a lawyerwas unlikely to succeed. There is no evidence to suggest that this advice was in error.Having received advice from Mr Balme, Mr Langlands elected to plead guilty. Thereis no basis to suggest that this plea should now be set aside.Result[49] The appeal is dismissed.[50] Mr Langlands must resume serving his disqualification from driving sentence.I record that the parties were given advance notice of the delivery time for thisjudgment so as to allow Mr Langlands to make any necessary arrangements inanticipation of the appeal being dismissed.___________________Edwards J