TONGA v NEW ZEALAND POLICE [2020] NZHC 1106

TONGA v NEW ZEALAND POLICE [2020] NZHC 1106 [26 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-66[2020] NZHC 1106BETWEEN SEFITA TONGAAppellantAND NEW ZEALAND POLICERespondentHearing: 19 May 2020Appearances: A Shaw for the AppellantJ C for the RespondentJudgment: 26 May 2020JUDGMENT OF POWELL JThis judgment was delivered by me on 26 May 2020 at 11 a.m.Registrar/Deputy RegistrarDate:[1] Following a Judge alone trial in the District Court at Manukau the appellant,Sefita Tonga, was convicted by Judge T V Clark on charges of driving with excessbreath alcohol1 and careless driving2 relating to an incident that occurred on5 November 2017.3[2] On the charge of driving with excess blood alcohol, Judge Clark sentencedMr Tonga to a fine of $900, and a six-month disqualification from driving.4 On thecharge of careless driving, Mr Tonga was convicted and discharged by Judge Clark.5[3] Mr Tonga appeals against his conviction on the charge of driving with excessbreath alcohol and against the sentence imposed.[4] The crux of the appeal is whether the District Court Judge should haveexcluded the breath specimen evidence under s 30 of the Evidence Act 2006.Mr Shaw, on behalf of Mr Tonga, submits this evidence was improperly obtainedbecause Mr Tonga did not fully understand the nature of his right to counsel nor didthe Police properly facilitate Mr Tonga's exercise of that right. Mr Shaw accepts thatif the conviction appeal does not succeed, then the sentence appeal will also fall away.Approach on appeal[5] Section 229(1) of the Criminal Procedure Act 2011 (CPA) allows a person toappeal against their conviction to the High Court.6 Section 232 of the CPA sets outthat an appeal against conviction must be allowed if, in the case of a Judge alone trial,the Judge erred in her or his assessment of the evidence to such an extent that amiscarriage of justice has occurred, or a miscarriage of justice has occurred for anyreason. In any other case the appeal will be dismissed.1 Land Transport Act 1998, s 56(1) and (3). Maximum penalty of three months' imprisonment or afine not exceeding $4,500 and the Court must order the person to be disqualified from holding orobtaining a driver licence for six months or more.2 Land Transport Act 1998, s 37(1). Maximum penalty of a fine not exceeding $3,000, and theCourt may order the person to be disqualified from holding or obtaining a driver license for suchperiod as the Court thinks fit.3 Police v Tonga DC Manukau CRI-2017-092-013352, 23 May 2019.4 Police v Tonga [2020] NZDC 3869 at [7] and [8].5 At [2].6 Criminal Procedure Act 2011, s 230(b).[6] The Supreme Court in Sena v Police confirmed that:7in assessing whether there has been an error, an appellate court must takeinto account any advantages a trial judge may have had. Because of this,where the challenge is to credibility findings based on contested oral evidence,an appellate court will exercise "customary caution".8[7] An appeal against sentence is also governed by the CPA, and s 250(2) providesthat the Court must allow an appeal against sentence if satisfied that for any reason,there is an error in the sentence imposed on conviction, and a different sentence shouldbe imposed. In any other case, the Court must dismiss the appeal.9[8] The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was notintended to change the previous approach taken by the courts under the SummaryProceedings Act 1957.10 As such, the measure of error that must be shown, is that thesentence is "manifestly excessive".11 The High Court will not intervene where thesentence is within the range that can properly be justified by accepted sentencingprinciples.12 Whether a sentence is manifestly excessive is to be examined in terms ofthe sentence given, rather than the process by which the sentence was reached.13The events of 5 November 2017 and the District Court judgment[9] There is no dispute that having been observed driving erratically, the basis forthe careless use charge which is not challenged on appeal, Mr Tonga's vehicle wasstopped by the arresting officer, Constable Poi. Constable Poi administered a breathscreening test to Mr Tonga and when this came back positive gave Mr Tonga hisBill of Rights advice in English and in Tongan (using his mobile device) and requestedMr Tonga accompany him back to the Police station.[10] Once at the station Constable Poi took Mr Tonga through the Breath & BloodAlcohol Procedure Sheet ("the Procedure Sheet") for the purpose of administering an7 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].9 Criminal Procedure Act 2011, s 250(3).10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] – [27].11 At [26] – [27].12 At [36].13 At [36].evidential breath test. Constable Poi gave the following evidence as to what happenednext:I then, on my [mobile] device, found the legal roster for the free lawyers thatthe defendant would be able to speak to. Once I brought that up and said tothe defendant to choose one of the names on the list he requested a Tongan-speaking lawyer. I said to the defendant that I'm not sure if any of the lawyersspeak Tongan but if he has one we can contact that one. The defendant saidhe didn't have a lawyer and so I asked him to choose one on the list if hewanted to continue to speak to a lawyer. I explained to the defendant to chooseout of the lawyers a numbering system, 1, 2 then 3 as not all lawyers answertheir phones. He repeated again he wanted to speak to a Tongan lawyer.Again, I said, "I can't confirm any of these lawyers speak Tongan." So, thedefendant said, "Don't worry about it." I confirmed with him if he wanted tospeak to a lawyer or not and he said, "No". Then I proceeded on with thesecondary part of section (h).[11] Mr Tonga accepted that he was advised of the right to speak with a lawyerwithout delay and in private, and that he was advised of the list of lawyers he couldspeak to for free (the Police Detention Legal Assistance ("PDLA") list).14 Mr Tongaalso accepted that he had understood that he had the right to speak with a lawyer,15and that although he did have a Tongan lawyer in mind, Mr Nalesoni Tupou, he didnot provide his name to Constable Poi.16[12] Constable Poi's evidence was that he then told Mr Tonga that he was requiredto undergo an evidential breath test without delay, otherwise he would be required topermit the taking of a blood sample. He then inquired again as to whether Mr Tongawanted to speak to a lawyer – Mr Tonga replied "No". Mr Tonga then refused to signsection H of the Procedure Sheet to confirm that he had been advised of the reason forhis detention and his rights.[13] At 5.24 am Constable Poi administered the evidential breath test whichrecorded a result of 770 micrograms of alcohol per litre of breath.[14] Constable Poi proceeded to inform Mr Tonga that the reading was over 400micrograms and therefore, if he did not request a blood test within 10 minutes theevidential breath test could be conclusive evidence in a prosecution against him. He14 Police v Tonga, above n 3, at [44].15 At [46].16 At [79].also explained what consequences might flow from the blood test and that he had beendetained and the reason for the detention. Mr Tonga was again told he had a right tospeak to a lawyer but again confirmed he did not want to speak to a lawyer. Mr Tongadid not elect to have a blood test and refused to sign sections J and K of the ProcedureSheet to affirm that he understood this advice.[15] In her judgment Judge Clark preferred the evidence of Constable Poi on everyissue where there was a conflict between Constable Poi and Mr Tonga, noting inparticular:17Where the defendant's evidence was opposed to that of Constable Poi, I preferthe evidence of Constable Poi. I found Constable Poi to be credible andreliable. I am satisfied that his account of events was correct notwithstandingthe passage of time. He made what I consider to be an accurate assessment ofthe defendant's ability to understand English and dealt with him accordingly.Importantly, Constable Poi had no motive to ignore the defendant's requestsor to prevent him from contacting his lawyer of choice. He gave his evidencein a calm and ordered fashion and did not overstate any aspect of whatoccurred. He made appropriate concessions and accepted that he had not takennotes and that he could not recall "exact word for word". He was howeversure about what he did and told the defendant and what the defendant did andtold him.In stark contrast, I do not consider the defendant to be a reliable witness. Icannot ignore the fact that the defendant was intoxicated after drinking for aperiod of 5 hours. I consider his ability to accurately recall events in detailwas impaired as a result. He gave inconsistent evidence with regard to anumber of matters to the extent that at one point, I felt it necessary tointervene to clarify his answers. In addition, I consider that he adopted anunreasonable position when he was unwilling to accept the Breath Alcoholreading although there was no defence challenge to the accuracy of theequipment or the result.[16] Her Honour concluded that Mr Tonga was given, and did understand, his s 23New Zealand Bill of Rights Act 1990 (BORA) rights as a person detained by Police,and that18 Mr Tonga's command of English did not warrant the assistance of aninterpreter.1917 At [81] – [82].18 At [88].19 At [89].[17] Further, in relation to the s 23(1)(b) right to counsel, Judge Clark found that:(a) Constable Poi made reasonable efforts to inform Mr Tonga of, andfacilitate Mr Tonga's exercise of this right, by providing him with acopy of the PDLA list and recommending that Mr Tonga select threelawyers to contact.20 Her Honour relied upon Asher J's observations inTallentire v Police that:21The obligation is to facilitate, not to provide, and therequirement to assist with the provision of this opportunity isnot a counsel of perfection.Equally it was open to Mr Tallentire to make some effort tocontact her (the lawyer of his choice) if he was not preparedto accept a local lawyer.(b) Mr Tonga made an informed waiver of his right to consult and instructa lawyer without delay.22[18] Her Honour concluded that even if there had been a breach of the defendant'srights, the impropriety would have been so marginal and unintended that exclusion ofthe evidence under s 30 of the Evidence Act 2006 would be a disproportionateconsequence.23 Her Honour noted in particular:24it was the defendant himself whopossessedthe necessary informationto allow for him to contact Mr Tupou, a lawyer of his choice who is a Tonganspeaking lawyer. Instead, he did nothing to contact Mr Tupou and nor did heprovide details to allow for Constable Poi to contact Mr Tupou.[19] Finding that the Evidential Breath and Alcohol Procedure had been properlyconducted at both the roadside and Ormiston Police Station, Judge Clark found that itwas proven beyond reasonable doubt that the defendant had driven a motor vehicle ona road while the proportion of alcohol in his breath exceeded 400 micrograms ofalcohol per litre of breath, being 770 micrograms of alcohol per litre of breath.2520 At [90].21 Tallentire v Police [2012] NZHC 1546 at [12] and [20].22 Police v Tonga, above n 17, at [88].23 At [99].24 At [99].25 At [103].The case for Mr Tonga[20] In summary Mr Shaw submitted:(a) Mr Tonga did not understand the nature and extent of his right tocounsel of choice so as to enable him to exercise those rights in a realand practical way;(b) the Police breached its obligation to facilitate Mr Tonga's right to legaladvice by failing to facilitate Mr Tonga's right to consult and instruct aTongan-speaking lawyer; and that as a result(c) the evidential breath test result should be excluded pursuant to s 30 ofthe Evidence Act 2006 on the basis it was improperly obtained.[21] In particular, Mr Shaw submitted that it had not been established by theprosecution that Mr Tonga understood the nature and extent of his right to counsel ofchoice at any stage so as to enable him to exercise that right in a real and practicalway, and as he was not adequately informed of the nature and extent of his right tocounsel he therefore could not have waived that right as found by Judge Clark.[22] Mr Shaw also pointed to section H of the Procedure Sheet in which thearresting officer, Constable Poi, had circled "yes" to the question "would you like tospeak to a lawyer?", and recorded Mr Tonga as commenting "I want to". In Mr Shaw'ssubmission, relying on in particular Ahuja v Police26 and McMillan v Police,27 thisgave rise to a positive obligation on Constable Poi to facilitate the exercise of MrTonga's right to counsel of choice, with the reference to Tongan-speaking lawyerbeing "equivalent to a request by [Mr Tonga] to consult and instruct a counsel of hischoice". Mr Shaw submitted that Constable Poi "could, and should, have takenpractical and meaningful steps to assist Mr Tonga to facilitate that request" includingasking other officers at the Police Station about Tongan-speaking lawyers who wereon the PDLA list, or otherwise known, and then conveyed that information back to MrTonga.26 Ahuja v Police [2019] NZCA 643.27 McMillan v Police (1995) 2 HRNZ 445 (HC).Discussion[23] Section 23 of NZBORA provides that:(a) Everyone who is arrested or detained under any enactment –(b) shall have the right to consult and instruct a lawyer without delayand to be informed of that right.[24] There are two key limbs to this right, imposing two correlating obligations onPolice:(a) To inform a person arrested or detained of their right to counsel.(b) To facilitate the exercise of their right to consult and instruct a lawyerwithout delay.[25] As Mr Shaw emphasised, R v Mallinson is the leading authority on the scopeof the obligation to inform:28To be "informed" of the right to a lawyer is to be made aware of it. Thepurpose is to provide a fair opportunity for the person arrested to consider anddecide whether or not to exercise the right. The obligation on the arrester orother officer concerned is to communicate clearly to the person arrested thathe or she has that right. No particular formula is required so long as the contentof the right is brought home to the person arrested In the end whether or notthe obligation was satisfied must turn on what was said and what is to beimplied from the circumstances[M]ore than a bare statement of the s 23(1)(b) right and a bareacknowledgement of understanding is likely to be required where, forexample, the person arrested is intoxicated or under drugs or appears to havea mental or physical disability which could interfere with his or hercomprehension of the rights.The crucial question is whether it was brought home to the arrested personthat he or she had those rights. That is not the same question as whether thepolice were justified in assuming that he or she did understand them.28 R v Mallinson [1993] 1 NZLR 528, (1992) 8 CRNZ 707 (CA) at 530 – 531.[26] As Mr Shaw does not challenge Judge Clark's conclusions with regard toMr Tonga's knowledge of English, it is difficult to see how he can advance theproposition that Mr Tonga did not understand the extent of his rights. There is simplyno factual foundation for Mr Shaw's submission. On the contrary the submission fliesin the face of the specific factual findings made by Judge Clark about the level ofMr Tonga's understanding,29 and which, as Mr Toebes noted, are not challenged onappeal.[27] The submission is also contrary to Mr Tonga's own evidence that he didunderstand that he was entitled to a lawyer.30[28] Likewise, while the comment of Mr Tonga recorded by Constable Poi that hewanted to consult with a lawyer and specifically relied on by Mr Shaw is clearlyimportant, it ignores the remainder of the interaction between Mr Tonga andConstable Poi described in Constable Poi's evidence which was accepted byJudge Clark. This makes it clear that notwithstanding his earlier indication that hewanted to speak with a lawyer it was Mr Tonga who ultimately told Constable Poi notto "worry about it", and thereafter repeatedly confirmed that he did not wish to consultwith a lawyer, albeit declining to sign the appropriate section in the Procedure Sheet.In the circumstances and given Judge Clark's clear findings on credibility it is difficultto see how Mr Tonga's conduct could be viewed as anything but a waiver of his rightto counsel in terms of the principles set out in Police v Kohler,31 relied on by Mr Shaw.Specifically, on the facts as found by Judge Clark Mr Tonga's ultimate decision thathe did not wish to speak with a lawyer was voluntary, informed and unequivocal, andnot implied from his silence. As a result the first ground relied upon by Mr Shawcannot succeed.[29] I turn then to the question of whether Constable Poi facilitated the exercise ofMr Tonga's right to counsel. The submission goes to Mr Tonga's right to speak withcounsel of his choice, rather than his right to speak with a Tongan-speaking lawyer or29 At [17] herein. See also Police v Tonga, above n 3, at [88] – [89].30 At [11] herein. See also Police v Tonga, above n 3, at [46].31 Police v Kohler [1993] 3 NZLR 129 (CA) at 133.Tongan lawyer per se. Given the lack of challenge to Mr Tonga's level of Englishcomprehension, I agree that this is the appropriate way to frame the question.[30] The Court of Appeal recently summarised the nature and extent of thisobligation in Ahuja v Police:32It is well-settled that drivers must be afforded their fundamental right toconsult a lawyer when detained for the purposes of carrying out the statutorybreath and blood testing procedures under the Land Transport Act. Theopportunity may be limited but it must be reasonable in all the circumstances.In Ministry of Transport v Noort, Hardie Boys J emphasised the importanceof the right to legal advice in maintaining the freedom and dignity of theindividual against the power and authority of the State. He pointed out that itwas wrong to perceive the lawyer as impeding law enforcement or hinderingthe administration of justice. On the contrary, responsible lawyers are part ofthe process and facilitate it.Subject to reasonable and practical limitations consistent with the statutoryscheme, drivers are entitled to consult a lawyer of their choice. This is basedon the social value of freedom of choice and the importance of there being nointerference by the State in the private and professional relationship that existsbetween a lawyer and client.Reasonable steps must be taken to facilitate the exercise of the right in a realand practicable way. In Rae v Police, decided in 2000, this Court held thatwhere a motorist communicates a wish to consult a lawyer, this should befacilitated by supplying a telephone, providing a telephone book or list oflawyers willing to give advice to detained motorists and providing reasonableprivacy. The practical equivalent today might be access to online sources suchas the Register of Lawyers maintained by the New Zealand Law Society.(footnotes omitted).[31] In Ahuja the Court found that in circumstances where the appellant had nameda lawyer, reasonable steps to facilitate would have included "obtaining the namedlawyers telephone number from the Internet or the register of lawyers on theNew Zealand Law Society website".33 That was not the case here, where it is notdisputed Mr Tonga did not advise Constable Poi of the identity of the Tongan lawyerhe had in his mind. As a result, and as Judge Clark noted, the fact situation was muchcloser to that in Tallentire v Police34 rather than Ahuja.35 In any event any furtherdiscussion about lawyers, Tongan speaking or otherwise, was brought to an end when32 Ahuja v Police [2019] NZCA 643 at [18]-[20].33 At [21].34 Tallentire v Police [2012] NZHC 1546.35 Police v Tonga DC Manukau CRI-2017-092-013352, 23 May 2019 at [92].Mr Tonga told Constable Poi not to worry about contacting a lawyer. In thosecircumstances I agree with Judge Clark that Constable Poi had discharged hisobligation to facilitate counsel for Mr Tonga.[32] As the Court in Mallinson noted that "anyone complaining of a breach of theBill of Rights Act must, as the Canadian Courts say, invest the complaint with an airof reality".36 I do not consider Mr Tonga to have done so here and the second limb ofthe appeal must also fail.[33] Even if I am wrong, as Mr Toebes noted, the Court in Ahuja was clear that ifthe failure to facilitate had been the only breach of the Bill of Rights the evidenceresulting from the evidential breath test would not have been excluded.37 GivenMr Tonga did not advise Constable Poi of the name of any lawyer, any failure tofacilitate in this case could not be any more serious than the initial breach in Ahuja,and as a result the exclusion of the evidence would have been disproportionate to anyimpropriety.Decision[34] The appeals against conviction and sentence are dismissed._______________________________Powell J36 R v Mallinson [1993] 1 NZLR 528, (1992) 8 CRNZ 707 at 531.37 Ahuja v Police [2019] NZCA 643 at [35].