PATEL v NEW ZEALAND POLICE [2016] NZCA 109

PATEL v NEW ZEALAND POLICE [2016] NZCA 109 [11 April 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA621/2015[2016] NZCA 109BETWEEN VINESH PATELApplicantAND NEW ZEALAND POLICERespondentHearing: 1 March 2016Court: Randerson, Peters and Collins JJCounsel: A J Haskett for ApplicantZ R Johnston for RespondentJudgment: 11 April 2016 at 9:00 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The applicant, Mr Patel, was convicted of driving with excess blood alcohol following a Judge-alone trial before Judge P Sinclair in the District Court at Auckland.1 Moore J dismissed Mr Patel's appeal against conviction.2[2] Mr Patel now seeks leave to bring a second appeal against conviction. The Court may not grant leave unless satisfied that the appeal involves a matter of1 Police v Patel [2015] NZDC 14698.2 Patel v Police [2015] NZHC 2361.general or public importance or that a miscarriage of justice may occur unless the appeal is heard.3[3] Counsel for Mr Patel, Mr Haskett, submits that the points he seeks to pursue on appeal satisfy each of these grounds.Background[4] At approximately 2.30 am on 17 August 2014 Mr Patel failed a roadside breath screening test. After advising Mr Patel of his rights under the New Zealand Bill of Rights Act 1990 (NZBORA), including his right to consult a lawyer, a constable at the scene required Mr Patel to accompany him to a police station to undergo an evidential breath test, blood test or both.[5] The constable repeated Mr Patel's NZBORA rights at the police station.Mr Patel said he wished to speak to a lawyer. The first two lawyers the constable telephoned did not respond but ultimately Mr Patel spoke to Ms S for, on the evidence accepted by the Court, some 17 minutes. At the end of the discussion, Mr Patel expressed dissatisfaction with the legal advice given but did not ask to speak to another lawyer. The constable then required Mr Patel to undergo an evidential breath test without delay.[6] In the course of the breath testing procedure Mr Patel said that Ms S had onlygiven him advice about blood testing and not about breath testing. Mr Patel's first proposed ground of appeal is that, having been advised of this, the constable was required to ask Mr Patel whether he wished to consult a lawyer again.[7] The constable's attempts to administer the evidential breath test wereunsuccessful. On the first attempt, Mr Patel did not blow into the tube sufficiently to provide a sample. His second attempt was unsuccessful, because he did not blow into the device at all or blew very little. A third attempt failed because the sample contained mouth alcohol.3 Criminal Procedure Act 2011, s 237; McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.[8] By this time it was 3.21 am. The constable required Mr Patel to give a bloodspecimen and repeated Mr Patel's NZBORA rights, following which Mr Patel spoketo a different lawyer, Mr E. That conversation concluded at 3.40 am. The blood specimen was then taken and a positive result returned.[9] The second issue that Mr Patel seeks to pursue on appeal arises from theconstable's decision to require Mr Patel to provide a blood specimen, rather than torequire Mr Patel to undergo a second evidential breath test.4High Court[10] Mr Haskett submits that Moore J made errors in determining the two matters we have mentioned.[11] First, Moore J is said to have misconstrued Mr Haskett's "reasonable facilitation argument" or to have given incorrect reasons for rejecting the argument.[12] The argument said to have been put to the Judge is that the constable had a duty to facilitate Mr Patel taking legal advice and that, when Mr Patel said that Ms S had not advised him regarding breath testing procedures, the duty to facilitate required the constable to enquire whether Mr Patel wished to consult a lawyer again.[13] We do not consider that Moore J misunderstood this submission. The Judgewas satisfied that the constable's (undisputed) duty to facilitate Mr Patel'sconsultation with a lawyer did not extend to his continuing to enquire whether Mr Patel had finished exercising the right.5 As the Judge said:[45] ... To do so would be to extend to the detainee an ongoing and potentially open ended opportunity to speak to further lawyers until satisfied. Not only would such a regime introduce potential delays in the statutory regime which must, if it is to be effective, impose time limits, but it would also place an unacceptable burden on the officer to subjectively determine at what stage the detained person had actually finished exercising their right. This is neither practical, logical nor consistent with the legislative intention which underpins the drink driving procedures.4 Land Transport Act 1988, s 70(1).5 Patel v Police, above n 2, at [45].[14] Other authorities provide clear support for the Judge's view that a detainee's right to consult counsel in the "drink/drive" context must be balanced against thepurposes of the legislation.6[15] Given that, we do not accept that Moore J misunderstood the submission or that it is reasonably arguable he erred in dismissing it.[16] Mr Haskett also takes issue with Moore J's conclusion that, if he were wrong and if the results of the blood test were "improperly obtained", he would still haveadmitted the evidence on the basis that exclusion would be disproportionate to the impropriety.7[17] It is unnecessary for us to address this point because, as we have said, we do not consider there was any impropriety.[18] The other principal issue that Mr Haskett raises concerns the constable'sdecision to require Mr Patel to provide a blood specimen, rather than to undergo a further evidential breath test. The constable made that decision after the evidential breath test did not produce a result.[19] If a breath test fails to produce a result, then s 70(1) of the Land Transport Act 1988 confers discretion on an enforcement officer as follows:70 Person may be required to undergo further evidential breath test if initial test fails to produce result(1) If for any reason an evidential breath test carried out under section 69 by an enforcement officer fails to produce a result, the enforcement officer may, at his or her discretion, either require the person to undergo without delay a further evidential breath test or proceed as if section 72(1)(c) applies.[20] In the High Court, Mr Haskett submitted that the constable had proceeded straight to a blood test and did not consider whether Mr Patel should undergo a further breath test, that is, the constable wholly failed to exercise the discretion vested in him by s 70(1).6 Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 279-280; and Barrie v R [2012] NZCA 485, [2013] 1 NZLR 55 at [13].7 Evidence Act 2006, s 30(2).[21] Moore J concluded that the constable had in fact exercised the discretion vested in him. Although Mr Haskett submits this finding was not open on theevidence, there were grounds for it in the following passage from the constable'sevidence in the District Court:Q. Now in the circumstances where a motorist has obviously blown into the evidential breath test by reason of having an insufficient in amouth alcohol result, why haven't you considered doing a secondevidential breath test?A. Right, it goes back to the amount of time he heard the lawyer for 17 minutes. For me it took – to me, in my mind, it took him 17 minutes to realise the lawyer was giving him bad advice. I mean, he should have picked it up in the first few minutes and then see me again. Then I could have got another lawyer for him. After 17 minutes, I'm of mind that he's just jerking my chain by then and he's just going to go –[22] Alternatively, Mr Haskett submitted that the discretion in s 70(1) must beexercised "reasonably" and that in this case it was not.[23] Moore J upheld the decision of the District Court Judge that the constable had an unfettered discretion to require a blood specimen when the breath test failed to produce a result. However if he were wrong in that, Moore J held that the constable's decision was reasonable.[24] Counsel for Mr Patel submits that both of these conclusions were incorrect. It is unnecessary to address the first because the second is not reasonably open to argument.[25] Each of Mr Patel's three attempts to give a breath sample failed. That the third failed through no fault of Mr Patel is irrelevant. The fact is that it failed. In addition, Mr Patel was clearly unhappy at having to undergo a breath test at all, given his comments regarding the legal advice he had received, and it was 3.20 am.Given these matters, Moore J's decision that the constable acted reasonably inabandoning breath testing and requiring a blood specimen was not only open to him but correct.[26] The matters proposed to be raised on appeal do not meet the required threshold. No matter of general or public importance arises and there is no risk that a miscarriage of justice may occur if the appeal is not heard. We decline this application accordingly.Solicitors:Legal Defence Service Ltd, Auckland for ApplicantCrown Law Office, Wellington for Respondent