ORLOWSKI v THE NEW ZEALAND POLICE [2020] NZHC 2469

ORLOWSKI v THE NEW ZEALAND POLICE [2020] NZHC 2469 [22 September 2020]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI-2020-442-6[2020] NZHC 2469JOHNATHON JEDRIC ORLOWSKIvTHE NEW ZEALAND POLICEHearing: 1 September 2020 (via AVL)Appearances: T C Lyall and P A S Morrison for AppellantJ R Crawford for RespondentJudgment: 22 September 2020JUDGMENT OF CLARK J[1] Mr Orlowski faces charges of refusing to accompany a police officer,1 resistingarrest,2 and refusing to provide a blood sample.3 Following a pre-trial hearing at whichtwo constables and Mr Orlowski gave evidence, Judge Ruth ruled that the evidence ofMr Orlowski's refusal to supply a blood sample was admissible in relation to thatcharge.4[2] Mr Orlowski seeks leave to appeal that ruling. He had argued, and continuesto argue, that the evidence was inadmissible because he was denied his right to consultand instruct a lawyer.1 Land Transport Act 1998, s 59(1)(b) (Cat 1, maximum fine of $4,500).2 Summary Offences Act 1981, s 23(a) (Cat 2, maximum three months' imprisonment/$2,000 fine).3 Land Transport Act 1998, s 60(1)(a) (Cat 2, maximum three months' imprisonment/$4,500 fine).4 New Zealand Police v Orlowski DC Nelson CRI-2019-042-002336, 10 June 2020 [District Courtruling].[3] I have reached the view that it is expedient for the issue under appeal to bedetermined by way of an appeal at the conclusion of the trial and that leave to appealshould therefore be refused.The factual background[4] The following account is taken from the District Court ruling and notes ofevidence.[5] All three charges arise from an alleged incident on 8 December 2019 whenMr Orlowski was approached by Constable Tonkin and asked to undergo a breathscreening test. Mr Orlowski refused. He was asked to accompany the officer to apolice station. Mr Orlowski refused. The officer warned Mr Orlowski of theconsequence of continuing to refuse namely, that he would be arrested. Mr Orlowskicontinued to refuse nevertheless. He claimed he was not the driver of the car.Mr Orlowski was arrested.[6] Constable Tonkin and the officer who was on duty with him that night, gaveevidence that Mr Orlowski was aggressive and uncooperative.[7] Before being placed in the police car Mr Orlowski was read his rights from acard that officers routinely carry. There is no dispute in this case that Mr Orlowskiwas given, and understood his rights, in particular his right to speak to a lawyer.[8] Although the Richmond Police Station was closer to the place of arrest,because of Mr Orlowski's behaviour and attitude the constables decided to take himto the Nelson Police Station where there is a custody suite and therefore, someassistance should it be required. From the point when Mr Orlowski was read his rightshe asked on a number of occasions to speak to a lawyer. He was not permitted to speakto a lawyer in the police car. It was considered impracticable as Mr Orlowski's handswere handcuffed behind his back and he had no privacy.[9] At the police station Mr Orlowski renewed his requests to speak to a lawyer.A list of lawyers was apparently placed in front of him. Constable Tonkin's evidencewas that Mr Orlowski wanted to speak to his own lawyer not any of the lawyers onthe list. Again, it is not in dispute that Ms Lyall's name was on the list.[10] Mr Orlowski's evidence was that, at the police station, he asked if he could talkto a lawyer by the name of Ms Tagan. He was told the officers had tried but could notget hold of her. He was then asked if he would do a blood test. Mr Orlowski'sevidence was that "I told him to get fucked".[11] Mr Orlowski denies being asked to undergo the breath screening test. Heaccepts the police officers told him it was not practicable to be able to ring a lawyer inthe car. And he denies being given a list of lawyers.The District Court decision[12] Judge Ruth framed the issue for determination as being whether Mr Orlowskihad been "accorded his proper Bill of Rights advice and indeed the matters which flowfrom that advice and in particular the availability of his right to contact a lawyer eitherone of his choice or one from a list of available lawyers."5[13] The Judge canvassed the evidence of Constable Tonkin and ConstableMatthews as to what happened at the roadside and at the police station. The Judgereferred to the officers' reluctance to allow a call to be made in the police car becauseof a lack of privacy. In relation to Mr Orlowski's evidence that he wanted his phonereturned to him so that he could make a call the Judge observed that he could not havedone so because he was handcuffed at the time.6[14] Addressing deficiencies in the way in which the Breath and Blood AlcoholProcedure Sheet had been completed, Judge Ruth said it was unfortunately not filledin "precisely correctly" but Constable Tonkin had been upfront about the fact that anydeficiencies were mistakes on his part.7 His Honour had "no doubt" that"Constable Tonkin's overall evidence simply amounts to going through the procedures5 At [3].6 At [13].7 At [14].with this man and at each point Mr Orlowski refusing to comply".8 The Judge alsoconsidered it was apparent from the form that there was a request for an evidentialbreath test.9[15] Towards the end of his ruling the Judge returned to Mr Orlowski's inability to"give any rational answer as to how he proposed" to telephone Ms Tagan — or anyoneelse — with his hands cuffed behind him. Responding to Mr Orlowski's evidence thathe had not thought that through the Judge said:[26] The reason that has not been thought through in my estimation is thatalmost everything Mr Orlowski told me in the witness box was an absolutelie. I am not sure whether he was high on methamphetamine, which he sayswas all he was asked about by police that night. He maintained there were noquestions asked of him about breath screening tests, evidential breath test oranything which I find absolutely outrageous and a total nonsense. I alsoobserve that no such propositions were put to either of the police officerwitnesses.[16] Judge Ruth determined the issue before him in these concluding paragraphs:[27] I do not accept anything Mr Orlowski said to me today except to theextent that he agreed that he had been given his Bill of Rights' advice, and Iam quite satisfied that that is right. As to whether he can read or write, as Ihave said, I do not think that takes the matter one way or the other here.[28] So without further ado I conclude that I entirely reject Mr Orlowski'saccount of what happened on this night. It is a lie, it is nonsense and I rejectit. I accept the evidence of the two police officers.[29] In my view, so far as this pre-trial matter is concerned, the evidenceas to Bill of Rights' matters generally is all admissible.[17] Ms Lyall suggested that the evidence Judge Ruth ruled admissible at [29] wasthe entirety of the prosecution case in relation to all three charges. The better view Ithink is that the evidence upon which his Honour was ruling was solely the evidencein relation to the charge of refusing to provide a blood sample.The appeal[18] The appellant seeks leave to appeal on the grounds that:8 At [14].9 At [14].(a) counsel was not given an opportunity to be heard;(b) the Judge failed to consider relevant legal principles; and(c) the Judge erred in his assessment of the facts.[19] Before me counsel analysed the evidence and advanced detailed legalsubmissions in support of the proposition that, in breach of his rights under s 23(1)(b)of the New Zealand Bill of Rights Act 1990, Mr Orlowksi was unable to consult andinstruct counsel.[20] The respondent does not oppose leave being granted on the grounds set out inthe appellant's submissions. Ms Crawford submitted that in the event the Court findsthere was a breach of Mr Orlowski's right to consult and instruct a lawyer, whether ornot the evidence should be excluded falls for assessment under s 30 of the EvidenceAct 2006. The respondent's position is that excluding the evidence would bedisproportionate to the impropriety.Discussion[21] Mr Orlowski applies for leave to appeal pursuant to s 215 of the CriminalProcedure Act 2011. In R v Leonard10 the Court of Appeal set out the procedure bywhich leave applications under s 379A of the Crimes Act 1961 are to be assessed.More recently, the Court of Appeal in Lynn v R11 confirmed that the approach set outin R v Leonard continued to apply (in relation to appeals against pretrial rulings unders 217 of the Criminal Procedure Act).[22] Counsel for the appellant argued that the Judge erred in law because, in breachof s 79 of the Criminal Procedure Act, he did not allow either party an opportunity tomake legal submissions.10 R v Leonard [2017] NZCA 452, [2008] 2 NZLR 218.11 Lynn v R [2019] NZCA 656.[23] Section 79 of the Criminal Procedure Act provides:79 Pre-trial admissibility hearing and order that evidence admissible(1) The court at a pre-trial admissibility hearing must give each party anopportunity to be heard.(2) The court may make an order that the evidence is admissible.(3) The order may be made on any terms and subject to any conditionsthat the court thinks fit.(4) Nothing in this section, or section 78, or in any order made under thissection, affects—(a) the right of the prosecutor or the defendant to seek to adduceevidence that he or she claims is admissible during the trial; or(b) the discretion of the court at the trial to allow or exclude anyevidence in accordance with any rule of law.[24] The appellant says the Court has no discretion: under s 79(1) the Court "must"give each party an opportunity to be heard. In oral submissions Mr Morrison citedNgati Apa Ki Te Waipounamu Trust v Attorney-General as authority for theproposition that s 79 should be interpreted as requiring a party to be able to giveevidence and make submissions.12[25] The respondent submitted that Mr Orlowski was given a right to be heard ashe was able to cross-examine the Police witnesses and was able to give evidence. Therespondent submits this was sufficient and the Court is not further required to "allow"oral submissions. In support of this argument, Ms Crawford cited Adams on CriminalLaw which states: "Each party must be given the opportunity to be heard there isno requirement that the court must allow oral submissions".13[26] I do not regard the Court of Appeal decision in Ngati Apa as authority for theproposition the appellant advances. The Court of Appeal was concerned withparticular alleged denials of natural justice arising from the procedure followed by theMāori Appellate Court. Before that Court, those affected by the proceeding wereentitled to have adequate notice of the proceeding "and a reasonable opportunity to12 Ngati Apa Ki Te Waipounamu Trust v Attorney-General [2004] 1 NZLR 462 (CA) at [18].13 Simon France (ed) Adams on Criminal Law (online ed, Thomsen Reuters) at CPA 70.01.present their own cases through evidence and submissions and to challenge the casesput up against them".14 Importantly, the Court of Appeal stated that these principlesand rights were "supported by, and operate within the context provided by, the relevantlegislation".15[27] Section 79 of the Criminal Procedure Act operates in a very differentlegislative context. First, the provision provides for a pretrial admissibility hearing.The only issue relevant in such a hearing will be whether evidence is admissible at thetrial. There is no final determination of rights.[28] Secondly, the "opportunity to be heard" that must be given, will not necessarilybe an oral hearing. Sometimes, pretrial admissibility matters are determined on thepapers.[29] For reasons that I come to, I have not found it necessary to determine the actualcontent of the "opportunity to be heard" given to each party by s 79 of the CriminalProcedure Act. That said, in the context of a dispute about whether a NZBORA rightto counsel had, in law, been facilitated it would be surprising if counsel were actually"not allowed" (as it was put) to advance legal submissions.[30] The difficulty with this appeal is that it is not at all clear what the process beforeJudge Ruth actually involved and what transpired.[31] Following the hearing of the appeal I was left in some doubt as to the nature ofthe hearing before Judge Ruth. I issued a Minute to the parties to the effect there wasan aspect of the District Court process that I needed to better understand. Essentially,what I wished to know was what the parties understood was to be heard on 10 June2020 and the extent to which their expectations of the hearing were, or were not, met.Regrettably, I received no clarification of the position.14 At [18].15 At [19].[32] The following process appears from the notes of evidence, transcriptions oflegal discussions before Judge Ruth (although some are only half a page) and an "In-Chambers Discussion" (one page).[33] It appears that on the morning of 10 June Ms Lyall stood to appear withMr Morrison for Mr Orlowski who was in the back of the courtroom. Ms Lyall saidto the Judge they were ready to proceed; there were two police officer witnesses andthere would likely be two defence witnesses. Ms Lyall added that she had justdiscussed with the Sergeant, (who did not think it required a pretrial), that she wouldbe raising a s 30 issue in relation to Mr Orlowski not being able to speak to a lawyerand that his request was not facilitated by the Police. At that point the Judge expressedthe firm view that the issue should have been dealt with pretrial. The transcriptionshows that the Court sought the prosecutor's input. He confirmed the prosecutionwitness was flying in from Wellington, that they would be ready to proceed any timeafter 11 am and "it should proceed". The matter was then stood down.[34] A further brief transcription records Ms Lyall advising the Court that she andthe prosecutor had discussed the matter and the defence position was that theNZBORA rights issues should be dealt with that afternoon, that oral evidence wouldbe heard — and at that point the Court interjected to say that was all there would betime for. The subsequent discussion records the prosecutor's concern atConstable Tonkin having to travel from Wellington only to have to return on anotherday. It was hoped that all his evidence could be heard on 10 June. The Judge was alsoreluctant to have the witness fly back and forwards and added " but I think we arejust in a position where we're lucky in fact to get this much done today".[35] It is plain from a further transcription of an in-chambers discussion that theJudge had a busy docket and was juggling different cases with different counsel. Itseems that around noon the parties were advised that "the matter of Orlowski willbe at least a pre-trial argument" to proceed in the afternoon.[36] The matter proceeded. Constable Tonkin, Constable Matthews andMr Orlowski were all called and cross-examined. The notes of evidence show thatvery little was said following an objection at 4.22. Therefore, it can safely be assumedthe hearing finished around 4.30 pm.[37] The Judge delivered his eight-page ruling following which there was adiscussion with Ms Lyall about fixing a judge alone trial which was not to be beforeJudge Ruth. Judge Ruth then addressed Mr Orlowski:And having said that, Mr Orlowski, if that's the best you can do in the witnessbox in defence of your case, I would rather give it up now and start thinkingabout some guilty pleas. You clearly haven't got the faintest idea what wenton this night. What you told me was a simple pack of lies and I have no doubtthat any other lawyer, any Judge hearing it may well come to the sameconclusion. Thank you.[38] It seems reasonably clear from the transcriptions that the prosecutor anddefendant understood the appearance that day was for the purpose of the trial ofMr Orlowski's charges. The trial would have proceeded in the usual way with theparties giving evidence, being cross-examined and with the opportunity for legalsubmissions. That is not, however, what happened. It seems the hearing proceededas something of a hybrid: part pre-trial and part trial. While the onus is onMr Orlowski to establish that he was denied his NZBORA right to speak to and instructcounsel, and it could not be plainer from the Judge's ruling that he regarded almost allof Mr Orlowski's evidence as "an absolute lie",16 nevertheless, it is not clearMr Orlowski's opportunity to be heard was fully available to him in light of the waythe hearing proceeded.[39] That is not to say that in all hearings under s 79 of the Criminal Procedure Actthere is an invariable right to make oral submissions. In this case, however a legalissue emerged and remained notwithstanding the Judge's rejection of everythingMr Orlowski had to say in the witness box. When Constable Tonkin was askedwhether he saw the defendant being handed the list of lawyers he said the list was "putin front of him on the desk where people are processed He could have grabbed it ifhe wanted to". Sergeant Tonkin's evidence was that from his best memory the custodysergeant gave Mr Orlowski a list of lawyers and asked Constable Tonkin to leavebecause his presence was making the situation worse. Constable Tonkin "believed the16 District Court Ruling, above n 4.custody sergeant used Google to try and find a lawyer for Mr Orlowski".Constable Tonkin was only present when the custody sergeant first started usingGoogle. Mr Orlowski denied a list ever being placed in front of him. But even on theprosecution's evidence, which the Judge accepted, the question remains whetherprovision of the list in the way the prosecution describes was an appropriate facilitationof the right to consult and instruct a lawyer. It is not apparent from the ruling that theJudge was taken to the relevant principles.17[40] In my view the issue will be best dealt with in the context of the Judge alonetrial. Likewise, it will be best dealt with in the context of any post-conviction appeal.The issue which the Judge required to be pre-determined but is effectively being sentback to be raised in the context of trial, involves the admissibility of evidence that willnot make a significant difference to the course of the trial.Disposition[41] Leave to appeal is refused. The trial judge will be better placed to determineall issues in the context of the scheduled trial in relation to which all parties will havea common understanding of the purpose, nature and scope of the hearing. And, as Ihave mentioned, in any subsequent appeal the court will be better placed to address allissues in the context of a completed trial._____________________________Karen Clark JSolicitors:Zindels, Nelson for AppellantCrown Solicitor, Nelson for Respondent17 Recently reviewed in Kerr v New Zealand Police [2020] NZCA 245.