HE v POLICE [2022] NZHC 2618

HE v POLICE [2022] NZHC 2618 [11 October 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-258[2022] NZHC 2618BETWEEN XIAO HEAppellantAND NEW ZEALAND POLICERespondentHearing: 10 October 2022Appearances: C Mitchell for appellantP J O'Boyle for respondentDate of judgment: 11 October 2022JUDGMENT OF JAGOSE JThis judgment was delivered by me on 11 October 2022 at 2.00pm.Registrar/Deputy RegistrarCounsel/Solicitors:C Mitchell, Barrister, AucklandMeredith Connell, Auckland[1] Xiao He appeals the reserved decision of Judge S J Bonnar QC in the DistrictCourt at Auckland on 30 September 2021,1 finding Mr He guilty of driving with excessblood-alcohol,2 being 146 milligrams of alcohol per 100 millilitres of blood.Background[2] Mr He and two passengers were stopped in his car at a police checkpoint inAuckland's Mercury Lane at 11.45 pm on 20 December 2019. He was alleged to havefailed passive, screening and evidential breath tests, the last after a brief delay in theback of the police car caused by Mr He interrupting the constable's administration ofthe last test's procedure. A supervising sergeant interceded, initially getting into thefront seat of the car to explain the constable needed to go through the procedure, beforeleaving the car to recover Mr He's cellphone from him after Mr He recorded part oftheir interaction.[3] In response to the constable's subsequent explanation of his rights, Mr He thenaffirmed he wished to speak to a lawyer. The constable called a rostered solicitor fromher own cellphone, explained Mr He was undergoing an evidential breath-alcoholprocedure, handed the cellphone to Mr He and exited the car. At the conclusion of thecall, Mr He opened the car door and handed the cellphone back to the constable. Theconstable got back into the car and concluded the procedure, asking Mr He toacknowledge he was advised of his rights, which Mr He declined to do.[4] Mr He then accompanied the constable to the Auckland Central police station,where his blood specimen was obtained. There is no dispute with the blood testingprocedure or result.Judgment under appeal[5] At issue was if the blood test was admissible, if obtained without prefatorybreath tests;3 in breach of Mr He's rights to legal counsel on detention;4 or under threat1 Police v Xiao He [2021] NZDC 19292.2 Land Transport Act 1998, s 56(2): the offence is driving while the proportion of alcohol in theperson's blood exceeds 80 milligrams of alcohol per 100 millilitres of blood.3 Sections 69 and 72.4 New Zealand Bill of Rights Act 1990, s 23(1)(b).of arrest without advice of the availability of bail.5 After an extensive review of theevidence given at trial by the constable, Mr He and one of his passengers — includinga 15-second video clip recorded by Mr He on his cellphone, of the sergeant'sintercession in the police car before the sergeant removed his cellphone from him —Judge Bonnar was satisfied the breath tests were conducted on and failed by Mr He;6the right to legal counsel inherently being to consult in private,7 he was affordedopportunity to consult with a solicitor in private;8 and the blood test was not"improperly obtained".9 By 'improperly obtained', the Judge was referring to thestatutory test for exclusion of evidence.10[6] For Mr He, Colin Mitchell argues, from a close examination of the notes ofevidence taken before Judge Bonnar, the Judge erred in concluding a reasonableperson in Mr He's position would not have understood he was at risk of arrest.11Relying on Ellicock v Courtney,12 Mr Mitchell contends the circumstances of thesergeant's intercession, comprehended by Mr He as threatening his arrest, raised"a case for unfairness" only open to negation by calling the sergeant to give evidence,which was anticipated but waived by the prosecution on the morning of trial.Approach on appeal[7] Mr He has a first appeal right against his conviction to this Court.13 I mustallow the appeal if satisfied either the Judge "erred in his assessment of the evidenceto such an extent that a miscarriage of justice has occurred", or "a miscarriage ofjustice has occurred for any reason". Otherwise I must dismiss the appeal.14[8] By 'miscarriage of justice' is meant something has occurred in relation to trialto create a real risk against a more favourable outcome for Mr He, or has resulted in5 Police v Xiao He, above n 1, at [15].6 At [80].7 At [82], citing Police v Kohler [1993] 3 NZLR 129 (CA).8 At [84].9 At [110].10 At [99], referring to s 30 of the Evidence Act 1990.11 Police v Xiao He, above n 1, at [108].12 Ellicock v Courtney (1992) 8 CRNZ 390 (HC) at 398, citing R v Noble (1986) 2 CRNZ 583 (HC).13 Criminal Procedure Act 2011, ss 229(1) and 230(1)(b).14 Section 232.an unfair trial or a nullity.15 The appeal proceeds by way of rehearing, in which I amto form my own view of the facts and determine the appeal accordingly,16 while takinginto account any advantages the trial judge may have had.17 Mr He must show errorhas been made. The threshold is high; not every error will amount to a miscarriage ofjustice.18Discussion[9] The Judge assessed the interaction between Mr He and the sergeant:19There is no evidence here that any officer threatened Mr He with arrest fornon-compliance. Constable Si'a's evidence was that Sergeant Schoen was justtelling Mr He that he needed to "listen" and that the sergeant's voice is "firm,but that's just him". The constable's evidence is consistent with my assessmentof the sergeant's demeanour and tone as seen in the brief video recording takenby Mr He.The constable could not recall, under cross-examination, any mention beingmade by the sergeant of the possibility of arrest.In his evidence, Mr He did not suggest that any officer threatened him with ormentioned arrest. Mr Mitchell asked Mr He:Did the sergeant say anything to you as advice or whatever about yourdealings with the officer on the procedures?Mr He replied:Not really. The sergeant only spoke to me while both the sergeant and mewere in, were in the vehicle, we were disputing about the 10 minutesbreak.Although Mr He described the sergeant's conduct, in his view, as "'veryaggressive", he said, in relation to the taking away of his telephone:A: I felt threatened and just scared because I think if l don't follow up hisadvice, I will be under arrest.Q: But that (inaudible) he never told you you were going to be arrested?A: He didn't say that but his behaviour, I felt like that.15 Section 232(4); Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [38]–[48], citing R v Sungsuwan[2005] NZSC 57, [2006] 1 NZLR 730 at [110], Matenga v R [2009] NZSC 18, [2009] 3 NZLR145 at [30] and Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [47].16 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].17 At [38]–[40].18 Otis v Police [2019] NZCA 231 at [4], citing McAllister v R [2014] NZCA 175, [2014] 2 NZLR764 at [38]; Murdoch v Police [2019] NZCA 366 at [12]; and Williams v R [2020] NZCA 666 at[8].19 Police v Xiao He, above n 1, at [101]–[107].He went on to say that he co-operated after the argument about the 10 minuteperiod and the taking of his phone because he "could be under arrest if l don'tfollow up."As noted previously, Mr He maintained that he was scared as a result of thesergeant's manner, including during the period of the video recording. Myassessment of the recording is set out at paragraphs [63] and [64] above. I donot consider the sergeant's words or manner to be oppressive or overbearing.I consider his approach to be moderately firm but calm throughout. Nor did Iassess Mr He as being fearful or scared. On the contrary, he appearedsomewhat heated and argumentative.[10] The Judge's assessment of the video recording was:20The footage is a very brief 15 second clip. It shows the sergeant seated in thedriver's seat of the vehicle. Mr He, taking the video, is obviously seated in therear left hand passenger seat of the vehicle. The clip commences with thesergeant reaching back and saying: "Excuse me". Mr He can be heard saying"Say again — comply to New Zealand lawyer or comply to New Zealandofficer." The sergeant responds "You do as we say right now." Mr He replies"No, I comply to my lawyer. If you touch me or arrest me ... "[.] The sergeantsays "Can I have your phone please?" Mr He responds "No, I call my lawyer".The sergeant says "Can I have, take your phone please?" and the clip ends.The sergeant appears calm throughout, although possibly somewhatfrustrated, and his words "You do as we say right now" are spoken in amoderately forceful tone. Mr He's tone is also moderately forceful and, fromhis words and tone, he appears to be somewhat heated and argumentative. Onthe face of the recording, he does not appear to be acting in a fearful orsubmissive manner.[11] The Judge concluded:21In the absence of evidence of any threat or possibility of arrest by any of thePolice officers involved, I consider that there was no obligation on the officersto mention the possibility of bail. Even if Mr He was indeed fearful that hemay be arrested if he did not comply, a subjective and unexpressed fear on hispart, in the absence of any oppressive conduct or misrepresentation on the partof the Police which would cause a person in his place to reasonably considerthat he was at risk of arrest, could not, in my view, give rise to an obligationon the part of the officers to raise the possibility of bail.[12] The relevance of "the possibility of bail" springs from the Court of Appeal'sexplanation, if possibility of arrest for refusing a blood-alcohol test arises, so tooshould possibility of bail be explained, to avoid "a plain risk that consent to a bloodspecimen will be extracted by what is tantamount to misrepresentation", being that20 At [63]–[64].21 At [108].refusal would lead to custody.22 Even if the last binding word on the subject,23 thatnow is to be understood in the context of both entitlements on arrest or detentioncontained in the New Zealand Bill of Rights Act's s 30,24 and the Evidence Act's s 30,which provides for exclusion of evidence found, on the balance of probabilities, to beimproperly obtained if:25 proportionate to the impropriety by means of a balancing process that givesappropriate weight to the impropriety and takes proper account of the need foran effective and credible system of justice.[13] Ellicock, relied on by Mr Mitchell, denies "automatic vitiation" of a consensualblood-alcohol test's admissibility in the absence of reference to the possibility of bailwhere the question of arrest arises. Instead:26Where the evidence discloses a credible narrative of material capable ofsupporting the conclusion that consent (whether to accompany, or to take anevidential test, or to give a blood sample) was obtained unfairly, theprosecution must exclude that proposition as a reasonable possibility.Unfairness may include misrepresentation, coercion, improper pressure, or aninducement. The ultimate question is whether there is a reasonable possibilityof a causative link between the words or conduct complained of and theparticular evidence relied upon, usually the result of the evidential breath test,or the blood test. I have stated the proposition in terms of an onus on theprosecution to negate unfairness, once the circumstances raise a case forunfairness; [14] The Judge's finding there was no 'threat or possibility of arrest by any of thePolice officers involved" necessarily means he found no 'credible narrative' to supporta conclusion Mr He's consent to provide a blood-alcohol test was obtained unfairly,and therefore no reasonable possibility of the requisite 'causative link'. Althoughwithout evidence from the sergeant, the Judge had both the constable's and Mr He'sevidence. The constable was present throughout the sergeant's interaction with Mr He;Mr He's evidence included the video of part of that interaction.[15] The best that can be said for Mr He's contention of unfairness is — 17 monthsafter the event, cross-examined if the sergeant may have mentioned Mr He's arrest or22 Auckland City Council v Dixon [1985] 2 NZLR 489 (CA) at 492.23 Langton v Police [1993] 1 NZLR 655 (CA) at 658: if bail's availability must be mentioned onwarning of arrest "remain[s] open for further consideration if the need arises".24 R v Goodwin [1993] 2 NZLR 153 (CA) at 166–167.25 Evidence Act, s 30(2)(b).26 Ellicock v Courtney, above n 12, at 398.detention — the constable could not remember or recall what words were said. Thereis no evidence either police officer indicated Mr He's arrest was in prospect; rather,given Mr He's own use of the word "arrest" at the time, the inference is heindependently comprehended arrest was a possibility. Mr Mitchell says that does notaccount for whatever may have been said by the sergeant outside the car to Mr He,unfairly to bring about Mr He's subsequent compliance.[16] Only after the fact, in giving evidence before the Judge, did Mr He attributehis comprehension of arrest to the sergeant's "behaviour". Mr He's use of the word"arrest" at the time was in proactively asserting his right to counsel — "heated andargumentative[ly]", to paraphrase the Judge — prior to the sergeant's demand for hiscellphone, rather than reflecting anything said to him by either police officer. At thepoint of the sergeant's intercession, the constable had not formally specified Mr He'sright to counsel.[17] Further, Mr He's evidence was he and the sergeant were only "disputing"Mr He's contribution to the test procedure's delay, and not addressing the constable'sadministration of the procedure. That confirmed the constable's evidence the sergeant"was just saying [Mr He] needed to listen". Anything Mr He may have taken from thesergeant's intercession was ameliorated by the subsequent exercise of his right toconsult counsel.[18] There is therefore no reasonable basis to contend for any 'causative link'between the sergeant's behaviour and Mr He's compliance in providing a bloodsample. The circumstances do not raise any case for unfairness. Rather the appealappears a fishing expedition — looking for, rather than at, evidence27 — the sergeantnonetheless may have provided a basis for such a link.[19] Even if so, the presence of such a link only would be effective to render theblood sample inadmissible if its exclusion achieves proportionate balance between theweight of the impropriety and "the need for an effective and credible system ofjustice".28 Here, the weight of any impropriety is in raising the question if bail's27 Re Securitibank (No 31) (1984) 1 PRNZ 514 (HC) at 519–520.28 Evidence Act, s 30(2)(b).availability also ought to have been mentioned. But, as the Court of Appeal hasexplained:29[t]here is a great difference between inducing consent to a blood test by thethreat of arrest , and persuading a driver to accompany by warning him ofthe consequences of refusal.In Mr He's circumstances, the sergeant's secondary and essentially supportive role inthe test procedure administration, taken together with Mr He's subsequent access tolegal counsel, makes any impropriety insubstantial.[20] That particularly is so in terms of s 30(3)'s factors when "a refusal to takea blood test [has] the same consequences as driving with excess blood alcohol".30 Thusany improper threat of arrest (as may be the case if bail is not mentioned) does notdirectly impugn the admissibility of the blood sample. And driving with excessblood-alcohol levels is serious offending under the Land Transport Act, withsignificant safety and social consequences. Even if there was a causative link betweenpolice conduct and Mr He's consent to give a blood sample, his apprehension of arrestwould only have relied on so slight an impropriety by police as to be unable toovercome the countervailing weight of a reliable and workable justice system.[21] Mr He's blood sample accordingly is admissible. No miscarriage of justice hasoccurred, still less on the Judge's assessment of the evidence. The Judge did not err.Result[22] The appeal is dismissed.—Jagose J29 Langton v Police, above n 22, at 658.30 Police v Bishop [1991] 2 NZLR 388 (CA) at 391. See Land Transport Act, ss 58–60.