SONG v NEW ZEALAND POLICE [2023] NZHC 3498

SONG v NEW ZEALAND POLICE [2023] NZHC 3498 [4 December 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2023-404-289[2023] NZHC 3498BETWEEN TIANQI SONGAppellantAND NEW ZEALAND POLICERespondentHearing: 16 October 2023Appearances: C Mitchell for the appellantR Va'ai for the respondentJudgment: 4 December 2023JUDGMENT OF CAMPBELL J[Appeal against Conviction]This judgment was delivered by me on 4 December 2023 at 3.00 pmRegistrar/Deputy RegistrarIntroduction[1] On 26 April 2023, Mr Song was convicted by Judge E M Thomas in the NorthShore District Court of driving with excess breath alcohol.1 Mr Song appeals.Background facts[2] In the early hours of 25 August 2021, Mr Song was driving in Albany.Constable Wakely saw Mr Song swerving within his lane. At 12.24 am, upon stoppingMr Song's car, Constable Wakely detected a strong smell of alcohol.[3] Constable Wakely administered a breath screening test on Mr Song. Thisreturned a result over 400. Constable Wakely showed Mr Song the positive result andrequired Mr Song to accompany him to the North Shore Policing Centre to undertakean evidential breath test, blood test, or both. During this interaction Mr Song wasspoken to and responded in English.[4] After Constable Wakely required Mr Song to accompany him to the PolicingCentre, Constable Wakely advised Mr Song of his rights under the New Zealand Billof Rights Act 1990 (Bill of Rights) in full. When asked if he understood, Mr Songsaid yes. This happened at 12.32 am.[5] After Mr Song realised that he was required to accompany Constable Wakelyto the Policing Centre, Mr Song's language skills appeared to deteriorate. ConstableWakely arranged for another officer, Constable [Redacted], to be available to assistonce they were back at the Policing Centre.[6] Constable Wakely arrived with Mr Song at the Policing Centre at 12.40 am.Constable Wakely called Constable [Redacted], who read Mr Song his rights again inMandarin over the phone. When asked if he would like to speak to a lawyer, Mr Songreplied "yes".1 Song v New Zealand Police [2023] NZDC 17009.[7] The first lawyer who was contacted spoke to Mr Song in English. She said shethought Mr Song's English was fine but referred Constable Wakely to aMandarin‑speaking lawyer. Mr Song spoke to that lawyer from 1.16 am to 1.22 am.[8] At 1.26 am, Mr Song began evidential breath test procedures. Mr Song's testreturned a result of 1,063 micrograms of alcohol per litre of breath.District Court decision[9] At trial in the District Court, Mr Song argued that he had been very intoxicatedand had only a rudimentary understanding of English, and so did not understand hisrights as read to him. Mr Song said this was clear to Constable Wakely before headministered the roadside breath screening test, and that the Constable had notadequately explained his rights to him before requiring him to accompany theConstable to the Policing Centre.[10] In his decision, Judge Thomas described the alleged offending. He recordedMr Song's evidence that he was unable to remember much about the evening, that hecould not recall what he had been told about the process in general, and that he couldnot understand everything Constable [Redacted] told him in Mandarin.[11] The Judge said the Police were obliged to advise Mr Song of his rights. TheJudge said this was done in both English and Mandarin. He also noted their obligationto ask if Mr Song understood those rights, which they did in both English andMandarin, with Mr Song confirming he understood on each occasion.[12] The Judge said that Constable Wakely first spoke to Mr Song in English. Therequirement to undertake a breath screening test, the requirement that Mr Songaccompany Police to the Policing Centre and the first advice to Mr Song of his rightswere all conveyed in English. The Judge said that Constable Wakely did not have todo any more unless put on notice that he needed to do more. He found thatConstable Wakely was given no notice at that point that he needed to do more.Mr Song's intoxication did not mean he could not understand, and Mr Song appearedto respond sensibly to Constable Wakely's conversation, requests and commands. TheJudge said there was no evidence that Mr Song said anything consistent with notunderstanding anything in that initial exchange or during the breath screening test.[13] The Judge said that, in any event, Constable Wakely involved Constable[Redacted] prior to Mr Song's evidential breath test. His Honour noted that, inMandarin: Mr Song acknowledged he understood his rights as provided in Mandarin;spoke to a lawyer; and declined to speak to a lawyer again before the evidential breathtest.[14] The Judge concluded that there were no signs to Police that Mr Song did notunderstand or that they needed to do more. He considered that Police did all they wererequired to do. The Judge found the charge proved and convicted Mr Song.Ground of appeal[15] Mr Song appeals his conviction on the ground that, owing to his seriousintoxication and his limited understanding of English, he did not understand the advicethat Constable Wakely gave him, after being required to accompany the Constable tothe Policing Centre, of his rights under the Bill of Rights. Mr Song says that his rightunder s 23(1)(b) of the Bill of Rights (to consult and instruct a lawyer without delayand to be informed of that right) was therefore breached.[16] Mr Mitchell, counsel for Mr Song, confirmed at the hearing that the focus ofthe appeal was on the interactions between Constable Wakely and Mr Song at theroadside. It was not contended that Constable [Redacted]'s advice of Mr Song's rights,once Mr Song had arrived at the Policing Centre, was inadequate.Principles on conviction appeal[17] To succeed on this appeal, Mr Song must, under s 232(2)(b) and (c) of theCriminal Procedure Act 2011, establish that the Judge erred in his assessment of theevidence to such an extent that a miscarriage of justice has occurred, or that amiscarriage of justice has occurred for any other reason.Was Mr Song's right under s 23(1)(b) breached?[18] Section 23(1)(b) of the Bill of Rights provides that persons who are detainedhave the right to be "informed" of their right to consult and instruct a lawyer withoutdelay. In R v Mallinson, the Court of Appeal said:2To 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.Unless there are circumstances calling for obvious care and further inquirythere is no reason for not taking the accused's answers at face value. Iffollowing advice as to the right to a lawyer the accused responds affirmativelyto the question whether he or she understands the position, the obviousinference is that the accused did indeed understand his or her rights. But morethan a bare statement of the s 23(1)(b) right and a bare acknowledgement ofunderstanding is likely to be required where, for example, the person arrestedis intoxicated or under drugs or appears to have a mental or physical disabilitywhich could interfere with his or her comprehension of the rights.[19] In Attorney-General v Udompun,3 the Court of Appeal said that the test set outin Mallinson:4 requires effective communication to a detainee so that the detainee(subjectively) understands that he or she has a right to consult a lawyer withoutdelay. It is, however, made clear that, where a person at the relevant timeacknowledged an understanding of the right, there has to be an evidential basis(other than mere assertion of not understanding) put forward for an argumentthat a detainee did not in fact understand the right. If there is such an evidentialbasis, it is then for the Crown to prove understanding. To provide an evidentialbasis a detainee must point either to there not having been an objectivelyeffective communication of the right, or to some special circumstance orcharacteristic (whether known to the police or not) that could have hinderedunderstanding.It is clear from Mallinson that, if there has been an objectively effectivecommunication of rights and there are no special characteristics, then aperson's answer at the time that he or she understood the rights can be takenat face value. If there is an evidential basis for asserting that there aretriggering circumstances calling for obvious care and further inquiry, however,2 R v Mallinson [1993] 1 NZLR 528 (CA) at 530–531.3 Attorney-General v Udompun [2005] 3 NZLR 204 (CA).4 At [119]–[120].more than a bare statement of the s 23(1)(b) rights and a bare acknowledgmentof understanding is likely to be required and the onus is on the Crown to proveunderstanding in such a case.[20] In R v Buchanan,5 the Court of Appeal emphasised that special circumstanceshindering the detainee's understanding need not (in order to shift the onus to theCrown) be obvious to the police officer or be raised at the time. In that case the Courtconfirmed that, where an onus arises on the Crown, it is an onus to prove on thebalance of probabilities that the detainee understood his or her rights.6[21] Here there was objectively effective communication of Mr Song's rights at theroadside. Mr Song responded that he understood those rights. I am prepared toassume, without deciding,7 that the combination of Mr Song's intoxication and Englishnot being his first language formed an evidential basis for an argument that Mr Songdid not, in fact, understand his rights. On that assumption, the issue is whether theCrown proved on the balance of probabilities that Mr Song understood, at the roadside,his right to consult a lawyer without delay.[22] Constable Wakely gave evidence of his initial interactions with Mr Song. Theprocedure sheet completed during the course of the breath screening test and then theevidential breath test was in evidence. The inference from this evidence is that MrSong understood what the Constable was saying to him at the roadside. After stoppingMr Song's car, Mr Song was able to tell the Constable that he had been drinking beerand that he had had one beer. Constable Wakely's evidence was that at that stage hiscommunication with Mr Song was fine:I felt like we could understand each other reasonably well, it was, obviouslyit wasn't his first language but we could still communicate.[23] The Constable then required Mr Song to accompany him to the Policing Centreand read his rights to him. He asked Mr Song, in English, whether he understood, andMr Song replied, in English, "Yes". Mallinson and Udompun make it clear that, wherean evidential basis has been raised of a lack of understanding, such an5 R v Buchanan [2008] NZCA 480 at [48].6 At [48].7 The hesitation is because, as will become apparent from my review of the evidence, at no point inhis evidence did Mr Song say that he did not understand the rights that were read to him byConstable Wakely.acknowledgement of understanding is unlikely to be sufficient, in itself, to prove thatthe detainee understood their rights. But those cases do not mean that a court putssuch an acknowledgement to one side altogether. The acknowledgement is stillevidence that Mr Song understood the rights that had been read to him.[24] Constable Wakely's evidence, clarified in cross-examination, was that afterMr Song realised he was required to accompany the Constable to the Policing Centre,Mr Song's language skills appeared to deteriorate. Constable Wakely said that itseemed as if Mr Song was making it difficult for him.[25] Once back at the Policing Centre, and after having his rights read to him inMandarin, the first lawyer contacted by Mr Song was an English-speaking lawyer.After she spoke with Mr Song, she told Constable Wakely that she thought Mr Song'sEnglish was fine, but said another lawyer (who could speak Mandarin) "will be ableto help".[26] Constable Wakely's evidence was that he had subsequently visited Mr Songand asked him who his lawyer was and how he would like disclosure. Mr Song gavethe Constable his lawyer's details and told him to give disclosure to his lawyer. Again,this is consistent with Mr Song having a more than reasonable understanding ofEnglish.[27] Mr Song gave evidence at the trial through an interpreter. He said that heremembered that at the roadside Constable Wakely "asked me to do that other breathtest" and that "he asked me to go with him back to the police station". These wererequests that Constable Wakely had given Mr Song in English. It is clear fromMr Song's evidence that he understood those requests.[28] Mr Song was asked whether he remembered what Constable Wakely said tohim regarding his rights. His answer was "I can't remember." His explanation for hislack of memory was that he had been drunk. Mr Song's evidence was also that hecould not remember what Constable [Redacted] said to him back at the PolicingCentre. Indeed, he was able to remember very few things from that night.[29] At no point in his evidence did Mr Song say anything to suggest he had notunderstood the rights that had been read to him by Constable Wakely. His evidencewas merely that he could not recall what the Constable said to him.[30] In cross-examination, it was put to Mr Song that he understood enough to dothe breath screening procedure. His answer was:I was not so sure, I just did whatever the police officer asked me to do.[31] In order to have done what Constable Wakely asked him to do, Mr Song musthave been able to understand what the Constable was saying to him (in English).[32] The evidence all points towards Mr Song having understood what ConstableWakely told him, notwithstanding that the Constable was speaking in English. ThePolice comfortably discharged any burden that may have arisen of proving, on thebalance of probabilities, that Mr Song understood his rights.Result[33] The appeal is dismissed.______________________Campbell J