KELLY v NEW ZEALAND POLICE [2017] NZHC 1611

KELLY v NEW ZEALAND POLICE [2017] NZHC 1611 [12 July 2017]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYCRI-2017-406-000007[2017] NZHC 1611BETWEEN SVEN GORDON TROY KELLYAppellantAND NEW ZEALAND POLICERespondentHearing: 10 July 2017 (at Nelson)Counsel: R A Harrison for AppellantK B Bell for RespondentJudgment: 12 July 2017JUDGMENT OF COLLINS JIntroduction[1] After crashing his motor vehicle and fleeing the scene Mr Kelly was tracked down by a police dog and police officers and eventually arrested. He was informed of his rights under the New Zealand Bill of Rights Act 1990 (the NZBORA), including his right to consult and instruct a lawyer without delay, and was then assisted to a patrol car. At about this point Mr Kelly complained of pain in his lower left leg.[2] A passive breath test was administered which showed Mr Kelly had been drinking alcohol. He refused to undergo a breath screening test and was therefore required to go to the Nelson Police Station. On the way to the Police Station Mr Kelly repeatedly complained of pain in his left leg and asked to be taken to hospital. He repeated this request at the Police Station but later asked to be taken tohis mother's home.[3] At the Police Station Mr Kelly was limping on occasions and he grimaced. He was assisted by police to the charge room and then the evidential breath testing room. He was again informed of his rights and this time he signed a form acknowledging he did not wish to consult a lawyer. He then completed an evidential breath test which produced a reading of 766 micrograms of alcohol per litre of breath. He was given the opportunity to submit to a blood test but elected not to doso. Mr Kelly was then taken to his mother's home, very near Nelson Hospital. Shetook him to the Hospital, where he was found to have a fracture in a bone in his left ankle. Mr Kelly was discharged from hospital after medical staff applied a partial cast to his left foot.[4] Mr Kelly was charged with dangerous driving1 and driving with excess breath alcohol on a third or subsequent occasion.2 He pleaded guilty to the dangerous driving charge and was convicted of driving with excess breath alcohol on a third or subsequent occasion by Judge A A Couch on 18 January 2017.3 Mr Kellywas subsequently sentenced to three months' home detention and disqualified for one year and one day in relation to the driving offences.[5] Mr Kelly now appeals his conviction in relation to the driving with excess breath alcohol charge, on the basis that Judge Couch erred when he admitted into evidence the result of the breath screening test.[6] The gravamen of the argument on appeal is that the breath screening test result was improperly obtained within the meaning of s 30(5) of the Evidence Act 2006 and was otherwise not admissible having regard to s 30(2)(b), the factors set out in s 30(3), and s 30(4) of the Evidence Act. I set out the key provisions of s 30 of the Evidence Act in paragraphs [8] to [11] below.[7] I have concluded, albeit for different reasons from those favoured by Judge Couch, that the result of the breath screening test was admissible in evidence against Mr Kelly. Accordingly, I am dismissing his appeal.1 Land Transport Act 1998, s 35(1)(b). Maximum sentence three months' imprisonment or a finenot exceeding $4,500.2 Sections 56(1) and 56(4). Maximum sentence two years' imprisonment or a fine not exceeding $6,000.3 New Zealand Police v Kelly [2017] NZDC 651.Evidence Act 2006[8] Section 30(5) of the Evidence Act states evidence is "improperly obtained" ifit is obtained:(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or(c) unfairly.[9] If evidence has been improperly obtained, s 30(2)(b) of the Evidence Act requires the Judge to: determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.[10] When undertaking the balancing exercise prescribed in s 30(2)(b) of the Evidence Act, the Judge may have regard to the following matters set out in s 30(3) of that Act:(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:(c) the nature and quality of the improperly obtained evidence:(d) the seriousness of the offence with which the defendant is charged:(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:(f) whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:(h) whether there was any urgency in obtaining the improperly obtained evidence.[11] Pursuant to s 30(4) of the Evidence Act, the Judge must exclude any improperly obtained evidence if, in accordance with s 30(2)(b), the Judge determines that its exclusion is proportionate to the impropriety.District Court hearing and decision[12] Mr Kelly gave evidence in the District Court and said that his ankle was injured by a police officer standing on his lower leg when he was being arrested. Judge Couch could not determine exactly how Mr Kelly's leg was injured. Heultimately decided that the police officers who arrested Mr Kelly acted in good faith. Mr Kelly said he decided not to exercise his right to a lawyer because doing so would delay him accessing medical treatment.[13] The Judge decided Mr Kelly's right to consult a lawyer under s 23(1)(b) ofthe NZBORA was breached. That section confers upon persons who have been arrested or detained " the right to consult and instruct a lawyer without delay and to be informed of that right ". The Judge said the breach of s 23(1)(b) was "minor" and occurred because Mr Kelly was "inhibited" from conferring with alawyer in order not to delay getting medical help.4[14] Judge Couch also concluded Mr Kelly:5 was prevented from obtaining medical treatment as soon as reasonablypossible and that this constituted a breach of the obligation to treat him with humanity [and respect, as set out in s 23(5) of the NZBORA].[15] Section 23(5) of the NZBORA provides:Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.[16] Judge Couch reasoned Mr Kelly had been denied access to medical treatmentfor "a little over an hour" but that the delay did not adversely affect his injury or the4 New Zealand Police v Kelly, above n 3, at [28] and [32].5 At [40].treatment he received.6 The Judge was satisfied the breach of s 23(5) of theNZBORA was "minor".7[17] The Judge concluded that the breath screening test result was not obtained "inconsequence" of the breaches of s 23(1)(b) and (5) of the NZBORA8 because if Mr Kelly had been taken directly to Nelson Hospital "he would still have been subject to the obligation to complete an evidential breath test after being discharged" or "Alternatively, and more likely, [Mr Kelly] would have been required to provide ablood sample for evidential analysis while at the hospital".9[18] The Judge decided the breath screening test result was not obtained"unfairly" within the meaning of s 30(5)(c) of the Evidence Act as the officers hadacted "in accordance with all applicable rules and using an approved device".10[19] Judge Couch observed that even if he had found that the breath screening test result had been improperly obtained he would have found it nevertheless admissible by applying the balancing test prescribed in s 30(2)(b) of the Evidence Act.Grounds of appeal[20] Mr Harrison, counsel for Mr Kelly, submitted the Judge erred in his assessment that the breaches of the NZBORA were minor. Mr Harrison acknowledged that Mr Kelly's right to consult with a lawyer without delay was not the principal focus of the appeal. Mr Harrison submitted, however, that Mr Kelly'sright to be treated with humanity and respect was compromised in a significant way. Mr Harrison contended that the consequence of the breaches of Mr Kelly's rights andin particular, his right to be treated with humanity and respect, was that the breath screening test result was improperly obtained because the police would not have obtained the breath screening test result that was ultimately produced in evidence had Mr Kelly been taken directly to hospital.6 New Zealand Police v Kelly, above n 3, at [38].7 At [40].8 Evidence Act 2006, s 30(5)(a).9 New Zealand Police v Kelly, above n 3, at [47].10 At [48].[21] Mr Kelly's appeal must be allowed if I am satisfied Judge Couch erred in his "assessment of the evidence to such an extent that a miscarriage of justice hasoccurred" or if "a miscarriage of justice has occurred for any reason".11 A"miscarriage of justice means any error, irregularity, or occurrence affecting the trial that has created a real risk that the outcome of the trial was affected; or hasresulted in an unfair trial ".12 If the Judge was wrong to have found the breath screening test result was admissible then it would follow that a miscarriage of justice occurred.AnalysisRight to consult and instruct a lawyer without delay[22] In R v Mallinson, Richardson J for the Court of Appeal explained:13(1) For the right in s 23(1)(b) to be effective it must be able to be exercised before the defendant jeopardises his or her right.(2) In order to be informed of his or her right under s 23(1)(b) a defendant must be made aware of it. The key question is whether itwas "brought home to the person arrested" that they had the rightconferred by s 23(1)(b) and that they could exercise that right without delay.[23] In the present case, Mr Kelly was twice informed of his right under s 23(1)(b) of the NZBORA. The first occasion was at the scene of his arrest. The second occasion was at the Nelson Police Station, where Mr Kelly signed a form acknowledging that he declined to speak to a lawyer. It was only when Mr Kelly gave evidence before Judge Couch that he explained he declined to speak to a lawyer in order to avoid delays in getting medical treatment.[24] In my assessment, the police did discharge their responsibilities when they twice informed Mr Kelly that he had the right to consult and instruct a lawyer11 Criminal Procedure Act 2011, s 232(2)(b) and (c).12 Section 232(4).13 R v Mallinson [1993] 1 NZLR 528 (CA) at 530 – 531.without delay. There was no evidence to suggest that the injury suffered by Mr Kelly adversely affected his ability to understand and comprehend his rights under s 23(1)(b) of the NZBORA. That right could have been exercised in a matter of minutes by Mr Kelly telephoning a lawyer from a list that could have been provided by the police.[25] Unlike Judge Couch, I am satisfied Mr Kelly made a fully informed and conscious decision not to exercise his right to consult or instruct a lawyer without delay. Accordingly, s 23(1)(b) of the NZBORA does not provide a basis to exclude the breath screening test result.Right to be treated with humanity and respect[26] Mr Kelly's fractured ankle undoubtedly caused him pain and significant discomfort. The police were not responsive to his plight because they suspected he was feigning his injury, even though he repeatedly complained of the pain he was suffering and needed to be assisted to walk. On the other hand, the injury suffered by Mr Kelly, while serious, was far from life threatening and the delay in gettingtreatment was found to be "a little over an hour".14[27] The requirement that those who are arrested or detained be treated with humanity and respect, which owes its origins to art 10(1) of the International Covenant on Civil and Political Rights,15 was examined by the Supreme Court inTaunoa v Attorney-General in the context of a claim that the disciplinary regime to which prisoners were subject constituted breaches of both ss 9 and 25 of the NZBORA.16 Doctors Andrew and Petra Butler have explained the effect of Taunoais that "[s]ection 23(5) captures conduct that lacks humanity, but falls short ofcruelty, conduct that is demeaning, and/or conduct that is clearly excessive in thecircumstances but not grossly so".17 The learned authors cite the following as14 New Zealand Police v Kelly, above n 3, at [38].15 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 19 December 1966, entered into force 23 March 1976).16 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.17 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [20.12.5].examples of cases which have been found to constitute breaches of s 23(5) of the NZBORA:18(1) Unlawfully arresting a person for allegedly refusing to undergo a breath screening test (he had not refused); effecting the arrest in a high-handed and rough manner (including handcuffing, pushing ontothe road injuring the defendant's nose; frogmarching the defendantinto police station).19(2) Use of excess force by a police officer in dealing with an arrested person,20 including the inappropriate use of pepper spray,21 or other interventions,22 to subdue a detainee.(3) Failure (albeit inadvertent) to provide a female immigration detainee with sanitary products and with the opportunity to change her clothes and have a shower (she had arrived on a flight from Thailand and had been questioned for some time).23[28] From these authorities I deduce that the right to be treated with humanity and respect in s 23(5) of the NZBORA is engaged where agents of the state treat persons who are arrested or detained in ways that are excessive and/or demeaning but which fall short of the high threshold required to establish a breach of s 9 of the NZBORA.24 On the basis of Attorney-General v Udompun, referred to in paragraph [27(3)] above, inadvertent conduct by a detaining or arresting officer may lead to a breach of s 23(5) of the NZBORA. In the present case, Ms Bell for the Crown acknowledged there had probably been a breach of s 23(5) of the NZBORA.18 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary, above n 17, at [20.12.8].19 Ministry of Transport v Entwisle [1990-92] 1 NZBORR 374 (DC).20 Archbold v Attorney-General [2003] NZAR 563 (HC); and Beagle v Attorney-General [2007] DCR 596 (DC) (thrown into cell roughly; left without mattress and blanket for some hours; subject to taunts and jibes).21 Falwasser v Attorney-General [2010] NZAR 445 (HC).22 Reekie v Attorney-General [2012] NZHC 1867.23 Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [141]-[147].24 New Zealand Bill of Rights Act 1990, s 9: "Everyone has the right not to be subjected to tortureor cruel, degrading, or disproportionately severe treatment or punishment."[29] The failure of the officers responsible for Mr Kelly's arrest and detention totreat his complaints of injury seriously and take him for a medical examination was excessive and demeaning and therefore constituted a failure to treat him with humanity and respect. I therefore agree with Judge Couch's finding that there was abreach of s 23(5) of the NZBORA.Evidence Act 2006 – s 30(5)[30] It is therefore necessary to examine whether or not the breath screening testresult was obtained "in consequence" of the breach of s 23(5) or otherwise obtained unfairly.25[31] Recently, the Court of Appeal has canvassed different judicial views aboutwhat "in consequence" entails within the meaning of s 30(5)(a) of the Evidence Act.In Nicol v R, it was said:26There is a difference of view among the coram about the standard to be applied. Miller and Mallon JJ consider that a real and substantial connection is required between the breach and the evidence obtained. Peters J considers that the authorities require only that there be "a causative link" between thebreach and the evidence.[32] I do not need to add to the debate because regardless of what test is applied, had the police taken Mr Kelly from the scene of his arrest to Nelson Hospital then they would not have obtained the breath screening result that was in fact obtained at the Nelson Police Station. Applying the higher threshold advocated by Miller and Mallon JJ in Nicol, there was a real and substantial connection between the police obtaining the breath screening test result at the Police Station and their failure to treat Mr Kelly with humanity and respect by taking him directly to hospital.[33] Thus, I find myself disagreeing with Judge Couch's conclusion that the obtaining of the evidence in question was not "in consequence" of the breach of s 23(5) of the NZBORA. It is therefore necessary for me to undertake the balancing exercise required by s 30(2)(b) to determine if the breath screening test result was admissible.25 Evidence Act 2006, s 30(5). Refer [8] of this judgment.26 Nicol v R [2017] NZCA 140 at [25], footnotes omitted.[34] Before doing so, I record that my finding the evidence was improperly obtained under s 30(5)(a) of the Evidence Act obviates the need to consider whether or not the evidence in question was obtained unfairly under s 30(5)(c). Suffice to record that in my assessment the decision by the arresting officers to refuse to take Mr Kelly to hospital until he had submitted to the breath screening procedures was unfair and, in the circumstances of this case, led to the breath screening test result being obtained unfairly. The following analysis applies if the evidence was obtained unfairly as well as in breach of s 30(5)(a) of the Evidence Act.Evidence Act 2006 – s 30(2)(b)[35] All eight factors listed in s 30(3) of the Evidence Act are, to varying degrees, relevant to the determination of whether or not excluding the breath screening test result is proportionate to the impropriety, after giving appropriate weight to the impropriety and also after taking proper account of the need for an effective and credible system of justice.Importance of the right breached – s 30(3)(a)[36] The right to be treated with humanity and respect is an important right derived from the International Covenant on Civil and Political Rights.27 It is a hallmark of civilised societies that those who are arrested or detained are not treated inhumanely or disrespectfully.Nature of the impropriety – s 30(3)(b)[37] Judge Couch specifically found the police officers involved in Mr Kelly'sarrest and detention acted in good faith when they declined to take him to Nelson Hospital until after he had completed the breath alcohol procedures. It is clear thatthe officers did not intend to breach Mr Kelly's rights under s 23(5) of the NZBORAand that they did so inadvertently. The clearest evidence of this came from Constable Green, one of the arresting officers, who said he would have taken Mr Kelly directly to hospital if he had appreciated Mr Kelly was injured.27 International Covenant, above n 15, art 10(1).Nature and quality of the improperly obtained evidence – s 30(3)(c)[38] The Crown correctly submits that there can be no doubt the breath screening test result was accurate and reliable.Seriousness of the offence – s 30(3)(d)[39] The offences with which Mr Kelly was charged were moderately serious. The charge of driving with an excess breath alcohol level on a third or subsequent occasion carries a maximum penalty of two years' imprisonment. In the circumstances of this case, Mr Kelly's offending was serious because it involvedsignificant issues of road and public safety as well as being his third offence of this kindOther investigatory techniques – s 30(3)(e)[40] It would have been entirely feasible for the police to have taken Mr Kelly directly to Nelson Hospital and whilst there requested a medical practitioner to take a specimen of his blood pursuant to s 75 of the Land Transport Act 1998. He would have committed an offence if he had refused to permit a blood specimen to be taken.In light of the fact Mr Kelly's breath alcohol level was almost twice the legal limit, itis highly likely a blood alcohol test would have resulted in a finding that he had been driving with excess blood alcohol.Alternative remedies – s 30(3)(f)[41] There is no realistic alternative to excluding the evidence. The evidence is either admitted or it is rejected. This is not a case where there is any other practical remedy.Necessity – s 30(3)(g)[42] The impropriety was not necessary in order to avoid any risk of physical danger to the police or others.Urgency – s 30(3)(h)[43] There was no real urgency to obtaining a breath screening test result as the police had the option of taking Mr Kelly to Nelson Hospital and requesting a blood specimen under s 75 of the Land Transport Act.Overall assessment[44] In balancing these factors I conclude that the seriousness of Mr Kelly'soffending and the inadvertent nature of the police impropriety outweigh the factors that favour the exclusion of the breath screening test result. This was a case of serious offending that put the safety of other road users at risk. The police acted in good faith, albeit wrongly. The overall interests of maintaining an effective and credible system of justice are best served by allowing the breath screening test result to be admissible in the prosecution of Mr Kelly.Conclusion[45] Judge Couch reached the correct conclusion when he admitted the evidence of the breath screening test result in the prosecution of Mr Kelly. The evidence in question was highly relevant and there was no basis for it to be excluded under either ss 8 or 30 of the Evidence Act. As Mr Kelly was properly convicted his appeal must be dismissed.____________________D B Collins JSolicitors:Crown Solicitor, Nelson for Respondent