KERR v NEW ZEALAND POLICE [2020] NZCA 245

KERR v NEW ZEALAND POLICE [2020] NZCA 245 [23 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA661/2017[2020] NZCA 245BETWEEN ZANE CHRISTOPHER KERRAppellantAND NEW ZEALAND POLICERespondentHearing: 31 July 2019Court: Clifford, Gilbert and Wild JJCounsel: J D Lucas and S J Jamieson for AppellantA M Powell and V McCall for RespondentB M McKenna and M R G van Alphen Fyfe for Minister ofJustice as IntervenerR S Reed QC and H M Z Ford for New Zealand Law Society asIntervenerL A Andersen and S J Zindel for Criminal Bar Association ofNew Zealand Incorporated as IntervenerJudgment: 23 June 2020 at 3 pmJUDGMENT OF THE COURTA The appeal is allowed.B The conviction is quashed.C A judgment of acquittal is entered.____________________________________________________________________REASONS OF THE COURTTable of ContentsIntroduction [1]Facts [7]Judgments below [15]Arguments on appeal [18]Mr Kerr and the New Zealand Law Society [18]The Police [20]The Minister of Justice [23]The Criminal Bar Association [24]Analysis [25]Section 23(1)(b) and the drink-driving scheme [26]The PDLA [35]R v Alo [46]The Practice Note [50]Canadian jurisprudence [53]The first question: Is there an obligation to facilitate the availabilityof legal advisers to enable the envisaged legal consultation to occur? [58]The second question: Was there a breach of Mr Kerr's right unders 23(1)(b) in the circumstances? [72]Section 30(3) — admissibility [78]Result [80]Introduction[1] Mr Kerr was convicted in the District Court at Christchurch in October 2016of refusing to permit a blood specimen to be taken.1 He had defended the charge onthe basis that he had not been able to exercise his right to consult and instruct a lawyerbefore being required to give that specimen. Accordingly, evidence of his refusal hadbeen improperly obtained and was inadmissible. The District Court rejected thatsubmission and convicted Mr Kerr. Mr Kerr's subsequent appeal to the High Courtwas dismissed.2 Mr Kerr brings this second appeal with leave.3[2] The right to consult and instruct a lawyer is affirmed by s 23(1)(b) of theNew Zealand Bill of Rights Act 1990 (NZBORA) which provides:1 Police v Kerr [2016] NZDC 26952 [Verdict judgment]; and Police v Kerr [2017] NZDC 6513[Sentencing notes].2 Kerr v Police [2017] NZHC 2595 [High Court judgment].3 Kerr v Police [2018] NZCA 326 [Leave judgment].23 Rights of persons arrested or detained(1) Everyone who is arrested or who is detained under any enactment—(b) shall have the right to consult and instruct a lawyer withoutdelay and to be informed of that right; and[3] In the leading 1992 case Ministry of Transport v Noort, this Court held thatrecognition of the s 23(1)(b) right is not inconsistent with the drink-driving scheme.4However, the operational requirements of the scheme constrain exercise of thes 23(1)(b) right to a limited, but reasonable, opportunity to consult a lawyer bytelephone.[4] This Court granted Mr Kerr leave for this second appeal on two questions:5(a) whether the right in s 23(1)(b) of NZBORA implies an obligation onthe state to facilitate the availability of legal advisers to enable theenvisaged legal consultation to occur; and(b) whether there was a breach of Mr Kerr's right under s 23(1)(b) in thecircumstances where calls were placed unsuccessfully to 13 lawyers.[5] Those two questions raise the difficult issue of striking the appropriate balancebetween the coercive provisions of the drink-driving scheme and the need to give whatRichardson J in Noort termed "a generous interpretation suitable to give individualsthe full measure of the fundamental rights and freedoms referred to".6[6] When Noort was decided there was no state-funded legal advice scheme fordetained motorists. There now is: the Police Detention Legal Assistance scheme(the PDLA). The critical point in this appeal is whether the failure of that scheme to4 Ministry of Transport v Noort [1992] 3 NZLR 260 (CA).5 Leave judgment, above n 3, at [11].6 Ministry of Transport v Noort, above n 4, at 277; quoting Minister of Home Affairs v Fisher [1980]AC 319 (PC) at 328.enable Mr Kerr to obtain legal advice resulted in a breach of Mr Kerr's s 23(1)(b)right.Facts[7] Mr Kerr was stopped by the police whilst driving in Marshland, Christchurch,at 9.45 pm on 8 July 2016. Section 114 of the Land Transport Act 1998 empowers thepolice to stop any driver in order to obtain their particulars and exercise enforcementpowers under that Act. Though no particular suspicion is required on the part ofthe police, in this case Mr Kerr attracted their attention for a variety of reasons.He was driving his car very slowly on the far left of the road with its hazard lights on.The police could see that there was considerable damage to the tyres of the vehicle: itwas driving on its rims. Mr Kerr was also using his cellphone.[8] When stopped Mr Kerr told the police he was a disqualified driver. In responseto a police inquiry he confirmed he had been drinking. Mr Kerr refused the police'srequest to undergo a breath screening test.7 The police consequently told Mr Kerr hewas required to accompany the police to Christchurch central police station, which heagreed to do.8 At that point, the police advised Mr Kerr of his rights and asked whetherhe understood them.9 Mr Kerr replied "no", but refused to elaborate.[9] At the police station a constable continued the procedures called for by thedrink-driving scheme as recorded in the police's standard breath and alcohol proceduresheet. The officer again told Mr Kerr he had the right to speak to a lawyer and thatthere was a list of lawyers available to whom he could speak for free. Mr Kerr wasasked whether he wished to speak to a lawyer. He replied that he wanted to speak toa Mr Allen. The constable called Mr Allen, who did not answer the phone. Mr Kerrwas then referred to a print-out of the PDLA list of some 20 to 30 lawyers.7 An enforcement officer may require any driver to undergo a breath screening test without delay:Land Transport Act 1998, s 68(1)(a).8 An enforcement officer may require a person who has refused to undergo a breath screening testto undergo an evidential breath test, and to accompany the officer to any place where they canundergo the test: s 69(1)(c).9 These included the right to remain silent and not to make a statement; the right to consult andinstruct a lawyer without delay, and the fact the police have a list of lawyers to whom the detaineemay speak for free; and the caution that anything said will be recorded and may be given inevidence. This caution is a simplified version of the Chief Justice's Practice Note: see [50]–[52]below.[10] From the list, Mr Kerr picked three lawyers whom the constable then called.None answered. Mr Kerr stopped the constable at that point, and suggested he simplyleave a message on Mr Allen's voicemail. The constable duly did so.[11] The constable carried on working through the procedure sheet and told Mr Kerrthat he was required to undergo an evidential breath test. He again asked Mr Kerrwhether he would like to speak with a lawyer and Mr Kerr again said yes.The constable rang Mr Allen again, and a further four lawyers from the list. Stillno-one answered.[12] At 10.38 pm, the constable prepared the evidential breath test by starting thetesting sequence on the device and attaching a mouthpiece. Mr Kerr refused toundergo the test. The constable told him he was therefore required to provide a bloodtest.10 At this stage, Mr Kerr was at the sharp end of the drink-driving scheme. Up tothis point, whilst the legislation requires compliance, and a person who refuses toaccompany the police when required to do so may be arrested,11 no offences areprovided for. Refusing to provide a blood specimen is, however, an offence with amaximum period of imprisonment of two years.12 The constable once more cautionedMr Kerr and asked whether he wished to speak to a lawyer. Mr Kerr said he did.Mr Kerr indicated that the constable should continue to work his way down the list,and a further five lawyers were tried without success.[13] At that point, the constable decided to continue with the procedure and onceagain told Mr Kerr he needed to provide a blood specimen. He asked Mr Kerr whetherhe consented to the taking of a blood specimen. Mr Kerr said he did not as he did notlike needles. The constable warned him that refusal to provide a specimen was anoffence and then arrested him. He recorded the time as 10.50 pm and asked Mr Kerrwhether he understood his rights. Mr Kerr replied: "no, because you said I could speakto a lawyer, but none will answer, and I have been delayed".10 An enforcement officer may require a person who has refused to undergo an evidential breath testto undergo a blood test: s 72(1)(a).11 Section 69(6).12 Section 60.[14] Thus, over the one hour and five minute period of his detention before arrest,Mr Kerr's own lawyer was telephoned three times and phone calls were also made to12 of the 20 or 30 lawyers on the PDLA list.Judgments below[15] In the District Court, the police acknowledged there were issues with theefficacy of the PDLA, but contended that was not the police's responsibility.13The constable had done all he could to facilitate the right. The Judge acceptedthe police submission and concluded the reasonableness of the constable's actions wasdemonstrated by the number of calls he had made.14[16] Mr Kerr's appeal to the High Court was dismissed by Davidson J. The Judgenoted that, following Noort, the courts had consistently held the obligation was tofacilitate rather than to provide.15 The Judge said the issue for him was whethers 23(1)(b) imposed an obligation on the executive to ensure, or do more to try toensure, that detainees who elect to consult a lawyer are able to do so. He concluded,although with some misgivings, the answer to that question was "no". First, theobligation recognised was only to facilitate and not to create obligations at any highpolicy level.16 Secondly, s 24(f) of NZBORA guaranteed free legal assistance, butonly to impecunious persons after they have been charged with an offence. It wouldtherefore be inappropriate for the Courts to rely on s 23(1)(b) to bring forward thepoint at which legal aid entitlements begin.17 Thirdly, the PDLA appeared to workadequately during the day and it was only drink-driving suspects detained at night whoexperienced its shortcomings.18[17] The Judge, however, emphasised his conclusion the executive was responsiblefor facilitating the exercise of the right. If Mr Kerr's difficulties with the PDLA were13 Verdict judgment, above n 1, at [7]–[8].14 At [10].15 High Court judgment, above n 2, at [17]–[18].16 At [36].17 At [37]–[38], referring to Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: ACommentary (2nd ed, LexisNexis NZ, Wellington, 2015) at [20.7.25]–[20.7.27].18 At [39].experienced by other motorists in the future, that might well constitute a breach of theright.19Arguments on appealMr Kerr and the New Zealand Law Society[18] Mr Kerr argued that the answer to the first leave question was yes: there was aduty to facilitate "the availability of legal advisors". But that was part of a broaderduty to ensure lawyers would be available when phoned. Recognition of that requiredreconsideration of Noort. For Mr Kerr, Mr Lucas and Ms Jamieson expressed thatpoint in the following manner:It is submitted that the executive branch must facilitate access to a lawyer ifrequested by a person who has been detained by the State. That puts a positiveobligation on the State to ensure that the PDLA scheme operates in a mannerthat will ensure legal assistance is available to detained persons at any time ofday or night. A system that does not work cannot be said to be one that facilitates anything.Based on the difficulties Mr Kerr experienced, the PDLA scheme had not sufficientlyfacilitated his s 23(1)(b) right.[19] As Ms Reed QC and Ms Ford for the New Zealand Law Society (NZLS) asintervener similarly put it, facilitation which did not guarantee access to legal advice,as had occurred in Mr Kerr's case, was not sufficient. NZBORA is a "livinginstrument" and it was now appropriate to revisit Noort. It was not unreasonable,particularly in the context of the drink-driving scheme, to expect the executive toprovide a toll-free phone number for persons requiring access to a lawyer whilst indetention, and to ensure that number would be staffed on a 24-hour basis.The Police[20] For the police, Mr Powell and Ms McCall argued the Crown's obligation waslimited to facilitation. It would be unconstitutional for the courts to require19 At [40]–[42].the executive to establish a particular scheme providing access to lawyers in pursuitof an obligation under s 23.[21] That the terms of the PDLA went beyond the scope of the executive'sNZBORA obligations did not alter the nature of the right afforded by s 23(1)(b).Accordingly, any perceived failings in the PDLA could not, of themselves, constitutebreaches of that obligation. If the right to a reasonable opportunity to consult andinstruct a lawyer was unjustifiably abridged, the Court would vindicate the right andprovide the detainee with an effective remedy. That might include excluding evidencethus obtained or recognising a defence to a criminal charge based upon actions whenthe right was denied. Such decisions by the courts would, over time, influence futureexecutive conduct, as had occurred following Noort.[22] The obligation to facilitate had been fulfilled in Mr Kerr's case, and theevidence of his refusal should be admitted accordingly.The Minister of Justice[23] Appearing for the Minister of Justice as intervener, Ms McKenna andMs van Alphen Fyfe assisted the Court by describing the history and evolution of thePDLA scheme, and the operation of that scheme currently. We are grateful to adoptthat explanation, as did all the parties in arguing the appeal, when we consider thequestions raised.The Criminal Bar Association[24] Mr Andersen and Mr Zindel for the Criminal Bar Association (CBA) took adifferent approach. As the executive had promised free legal advice under the PDLA,a legitimate expectation arose that it would in fact be provided.20 That expectationmeant it would not be a reasonable limitation of Mr Kerr's right, in terms of s 5 ofNZBORA, for the advice not to be provided. As a result of the PDLA, thedevelopment of the s 23(1)(b) right had moved from facilitation of access to a lawyerto the provision of advice free of charge.20 See Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 (PC); and New ZealandAssoc for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC).Analysis[25] We are asked to depart from Noort and find that the right to "consult andinstruct" means the executive has an obligation to ensure detainees receive legaladvice if they wish to do so. Of necessity that obligation would require advice to begiven for free, at least to impecunious detainees. The context for our decision whetherto recognise such an obligation is provided principally by:(a) the significance of the affirmation of the right in s 23(1)(b), asconsidered by the Court in Noort and subsequently;(b) the implications of the establishment of the PDLA (1994);(c) the cautions police are required to administer pursuant to this Court'sdecision in R v Alo and, subsequently, the promulgation ofthe Chief Justice's Practice Note on Police Questioning (2007);21 and(d) Canadian jurisprudence, as relied on by New Zealand courts over timeand by the parties to this appeal.We address each in turn.Section 23(1)(b) and the drink-driving scheme[26] Prior to the enactment of NZBORA, the right of a person arrested and chargedto consult a lawyer was well recognised. The position was not so clear as regardsdetained persons, before arrest and charge.[27] Two 1973 decisions of the (then) Supreme Court had, however, provided clearacknowledgement of the unfairness generated when a request by a detainee to consulta lawyer was declined.22 The issue then came before this Court in the 1989 decision21 R v Alo [2007] NZCA 172, [2008] 1 NZLR 168; and Practice Note – Police Questioning (s 30(6)of the Evidence Act 2006) [2007] 3 NZLR 297 [Practice Note].22 Nazer v Ministry of Transport [1973] New Zealand Recent Law 117 (SC); and R v Puhipuhi [1973]New Zealand Recent Law 139 (SC).of R v Webster.23 Again the significance of the denial was assessed in the context ofJudges' broad discretion to exclude unfairly obtained evidence.[28] Noort (which was heard with a companion appeal, Police v Curran) was thefirst substantive consideration of the NZBORA right by this Court. Mr Noort had beenconvicted of having a breath alcohol reading above the legal limit, and Mr Curran forrefusing to allow a blood specimen to be taken. They had both separately challengedtheir convictions on the basis their right under s 23(1)(b) had been breached. In boththeir cases the High Court found, as the Crown had argued, that the drink-drivingscheme excluded the exercise of the right. In another decision the High Court hadreached the opposite view.24 The principal question for this Court in Noort was whichof those two approaches was correct.[29] A number of important general principles guided the Court's approach inanswering that question. In particular, the need to give the civil and political rightsfound in pt 2 a generous interpretation, as noted above at [5], had to be reconciled withthe observation that those rights are not absolute. Sections 4, 5 and 6 of NZBORA,together with general principles of statutory interpretation, guide the recognition andapplication of rights affirmed by NZBORA in the balanced way that was, therefore,called for.[30] The Judges approached that task in different ways.25 Underpinning theapproach each of them took, however, was acceptance that recognition of anunqualified and unlimited right — in which every arrested or detained person could,for instance, wait for their lawyer to attend their place of detention in person and thenconsult for as long as desired26 — would not be consistent with the requirements ofthe drink-driving scheme. But, whether or not recognition of the right at all wasinconsistent with the drink-driving scheme, as the Crown had argued, was a differentquestion.23 R v Webster [1989] 2 NZLR 129 (CA).24 Littlejohn v Ministry of Transport [1990–92] 1 NZBORR 285 (HC).25 Cooke P emphasised the importance of the interpretational mandate provided by s 6. BothRichardson and Hardie Boys JJ saw s 5 as playing a greater role in that analysis.26 See Andrew Butler and Petra Butler, above n 17, at [20.7.7].[31] To answer that question three of the Judges considered the significance of theright itself. Whilst not a fundamental or inalienable right, it had become widelyrecognised. It had great strategic value as a safeguard against violations ofundoubtedly fundamental rights such as the right not to be arbitrarily arrested ordetained.27 The right was part of New Zealand's basic constitutional inheritance anda central feature of contemporary international statements of human rights. It waspivotal in assuring so far as possible that both those detained and those detaining themact in accordance with the law. Access to counsel was a means of reducing theimbalance between the state and detained or arrested persons and of ensuring fairtreatment in the criminal process.28 The right was as important as any other; indeed itwas a necessary concomitant of those other rights which maintain the freedom and thedignity of the individual against the power and the authority of the state.29[32] The Court was satisfied that providing an opportunity to exercise thatimportant right was not inconsistent with the requirements of the drink-drivingscheme.30 In reaching that conclusion, the Judges expressed themselves similarly.It suffices to cite Cooke P and Richardson J. Cooke P spoke of:31 a limited opportunity of making telephone contact with a lawyer and takingadvice. The opportunity is to be limited but reasonable. It is not necessarilylimited to one call, but there must be no unreasonable delay. A driver whocannot immediately contact his or her own lawyer should normally be allowedto try one or two others. Rosters of lawyers, available to undertake thiswork at an appropriate fee, may be prepared by the law society, the police orthe ministry, but that is outside the control of the Court.Richardson J said:32A motorist detained and required to accompany the enforcement officer to atesting station should be informed without delay of his or her right to consultand instruct a lawyer. The right can only have meaning to an arrested ordetained person if it is taken as raising a correlative obligation on theenforcement officer to facilitate contact with a lawyer The exercise of thatright should be facilitated by making available a telephone — whether acell phone in the officer's car or a telephone on arrival at the testing stationwill depend on the circumstances. And for the effective enjoyment of the right27 Ministry of Transport v Noort, above n 4, at 270 per Cooke P.28 At 279 per Richardson J.29 At 286 per Hardie Boys J.30 The Court did not extend the application of the right to the initial breach screening stage: see alsoTemese v Police (1992) 9 CRNZ 425 (CA).31 Ministry of Transport v Noort, above n 4, at 274.32 At 284.motorists to whom the breath/blood-alcohol regime applies will have to beafforded access to lists of lawyers, including outside ordinary office hours [33] Implicit in those conclusions is that it is not sufficient for the police simply topause in their administration of the scheme, and advise the detainee they have a rightat that point to consult a lawyer. Clearly, something more is required. But, equally,the statutory process could not be unduly hindered. It might not always be possiblefor the motorist to contact a lawyer within a reasonable time or, having done so, toconsult and instruct that lawyer to the extent the motorist might wish. Whethercurtailment of the right in a particular case was justified in terms of s 5 had to dependon an assessment of the operational requirements of the legislation and of the acts ofthe particular enforcement officer in the performance of the powers conferred underthe legislation. As Cooke P put it:33Hard-and-fast rules cannot be laid down for all circumstances. Ultimately itmust always be a question of fact and common sense whether a reasonableopportunity has been given.[34] Subsequent decisions of this Court and the High Court confirmed andexplained that approach.34 In a passage later endorsed on a number of occasions,Neazor J formulated the proper inquiry as:35The question is always whether there has been reasonable action by the policeto afford the motorist the facility to exercise the right in a real and practicableway once there has been an indication that he or she wishes to do so.The PDLA[35] Following Noort the Department of Justice identified a need to establish ascheme to ensure arrested and detained persons had ready access to legal advice.To meet the immediate need, informal arrangements were made between district lawsocieties and the police to develop lists of lawyers who would provide advice todetainees on a voluntary basis. The understanding was that a permanent legislative33 At 274.34 See, for instance, R v Mallinson [1993] 1 NZLR 528 (CA); Bennett v Ministry of Transport (1992)9 CRNZ 365 (HC); Danks v Ministry of Transport HC Christchurch AP199/92, 16 September1992; R v Barber (1993) 10 CRNZ 301 (HC); and Steel v Police (1994) 11 CRNZ 383 (HC).35 Steel v Police, above n 34, at 390–391; followed in Rae v Police [2000] 3 NZLR 452 (CA) at [57];Brown v Police HC Hamilton CRI-419-87-04, 22 October 2004; and Helms v Police [2004] DCR200 (HC).system would be developed. By 1994 that had not happened. Lawyers werewithdrawing from the voluntary scheme in large numbers. Concerned that a totalcollapse of the system would place criminal proceedings in jeopardy by breaching theprinciples in Noort, the Department secured funding for an interim scheme thatremunerated participating lawyers for both phone calls and attendances in person.[36] Later that year, the Legal Services Amendment Act 1994 was passed to providea legislative basis for a permanent scheme. The Act made it a function of theLegal Services Board to operate the PDLA. The newly inserted s 158C(2) provided:(2) The object of the Police detention legal assistance scheme shall be toensure that there is available, in each district, a sufficient number oflegal assistance practitioners to provide, in accordance with this Act,advice or assistance, or both, to unrepresented persons who—(a) Either—(i) Are detained persons who are being detained bythe Police; or(ii) Are cautioned persons who are being questioned bythe Police or whom the Police wish to question; and(b) Wish to consult and, where appropriate, instruct a practitionerabout any matter relating to their arrest or, as the case may be,their detention or that questioning.[37] In its written briefing on the bill to the Justice and Law Reform Committee inSeptember 1994 the Department explained that district legal services committeeswould obtain, from district law societies, lists of lawyers qualified and willing to act.Those lists would be available to local police or other authorities. A detained personwould contact a lawyer from the list for free. The person could, of course, choose tocontact their own lawyer, in which case payment would be their own responsibility.[38] The legal basis of the PDLA changed under the Legal Services Act 2000.Section 49 continued the existence of the PDLA. Section 50 provided the object ofthe scheme was "to ensure that there is available a sufficient number of lawyers toprovide legal advice" to those persons being questioned or detained who wished toconsult a lawyer. Section 51(2) stated that such persons were "entitled" to the servicesof such a lawyer.[39] The 2009 review of the legal aid system, commonly known as the Bazleyreport, resulted in the enactment of the Legal Services Act 2011.36 That Act containsno specific provision for the PDLA. Rather, the Secretary for Justice has a genericpower to create "specified legal services",37 which are then subject to general qualityassurance and approval provisions.38 The Secretary duly continued the PDLA bynotice in the Gazette.39 That notice described the PDLA as follows:The PDLA Service provides legal advice, or legal assistance, or both, to anyperson:(a) who has been detained by Police; and(b) who wishes to consult or instruct a lawyer about any matter relatingto the person's questioning or detention.[40] The PDLA now operates on two distinct bases: that of "rosters" of lawyers andthat of "lists" of lawyers. The two schemes are remunerated on the same attendancebasis, but are organised differently.[41] Under the roster approach every three months the Ministry of Justice prepareslists of appropriately qualified lawyers who have expressed an interest to participate.As it now operates in Christchurch, the roster system comprises four teams of seven,with each team rostered for a full seven day week commencing at 7 pm on Mondayand every fourth week thereafter. Participating lawyers must advise the Ministry assoon as possible if they are unable to attend a session they are rostered for.[42] Under the list approach the Ministry asks appropriately qualified lawyers everythree months to confirm their interest and availability. Those who are unavailable fora period of over one week in the entire three month period are excluded.The remaining lawyers are placed on the list for the full three months. There is noallocation of responsibility by a roster. Continuous availability is not expected.36 Margaret Bazley Transforming the Legal Aid System: Final Report and Recommendations(Ministry of Justice, Wellington, November 2009).37 Legal Services Act 2011, s 68(2)(b).38 See generally pt 3, sub-pt 2.39 "Establishment of the Police Detention Legal Assistance Service as a Specified Legal Service"(23 June 2011) 86 New Zealand Gazette 2108 at 2108–2109.[43] In July 2016, when Mr Kerr was detained, the PDLA in Canterbury operatedon the list basis. In 2019, and after a national review, the roster approach was adopted.We return to the circumstances that led to that change of approach below at [73] whenwe consider the second leave question.[44] As can be seen, the PDLA as established went beyond what Noort saids 23(1)(b) required. In particular lawyers were organised by the Department toprovide advice, and their advice was to be free. The establishment of the PDLA hasalso resulted in there being little further consideration of the requirements of thes 23(1)(b) right. As Butler and Butler observe:40Because Parliament has enacted a particular scheme no consideration has beengiven in the case law to the prior question of whether such a scheme (or asimilar one) is necessary to fulfil the requirements of s 23(1)(b). That said, tothe extent that the current scheme only covers police detention (and notdetention by other state officials) that may be an issue worth considering.[45] Since the establishment of the PDLA, appeals on the question of the extent offacilitation repeatedly returned to Neazor J's touchstones of reasonableness andpracticability in determining whether the appropriate level of facilitation had beenprovided.41 Taken overall, the cases established the following general guidance as towhat adequate facilitation will require:(a) Making a cellphone or telephone available to the detainee (if needed)in circumstances of reasonable privacy.42(b) Enabling the detainee to ring his/her own lawyer if requested,43 andhelping them by obtaining the telephone number from the internet orthe New Zealand Law Society website, if required.44(c) If the detainee cannot immediately contact his/her own lawyer, or doesnot have one, allowing the detainee to ring "one or two others".4540 Andrew Butler and Petra Butler, above n 17, at [20.7.25].41 See above at [34].42 Ministry of Transport v Noort, above n 4, at 274 per Cooke P and 284 per Richardson J; and Raev Police, above n 35, at [58].43 Ministry of Transport v Noort, above n 4, at 274 per Cooke P.44 Ahuja v Police [2019] NZCA 643 at [21].45 Ministry of Transport v Noort, above n 4, at 274 per Cooke P. See also Danks v Ministry ofTransport, above n 34, at 4; and Bennett v Ministry of Transport, above n 34, at 366–367.That will require the officer to have available "a telephone book or alist of lawyers willing to give advice to detained motorists".46(d) Fulfilling these obligations throughout the drink-driving procedures.47R v Alo[46] Before assessing the significance of the Practice Note we turn to the 2007decision of this Court in R v Alo.48 Mr Alo was arrested on suspicion of assault.Mr Alo asked to speak to his lawyer, a Mr Bradley. When called by the constable,Mr Bradley's phone went to voicemail. Mr Alo told the constable he knew no otherlawyers. The interview proceeded, with Mr Alo making various incriminatingstatements. The constable was not sure whether he told Mr Alo about the existence ofthe PDLA after Mr Bradley proved unreachable.[47] On appeal, the primary argument for Mr Alo was that the constable should havetold him of the existence of the PDLA and that it provided for free legal advice. It wasaccepted at the time that the obligation to facilitate required police to advise of theexistence of the PDLA if an arrested person wanted legal advice but said they couldnot afford it.49 The relatively confined point in Alo was thus whether that obligationalso existed where the arrested person remained silent as to why they did not want tocontact a lawyer.[48] The majority, William Young P and Arnold J, concluded that no such obligationexisted. Because s 23(1)(b) "plainly" did not confer a substantive right to free legaladvice for those arrested,50 it followed that there could not be an entitlement under thatsection to be told of a right to free legal advice:51As a matter of interpretation of s 23(1)(b), the "right" of which the detaineemust be informed is necessarily the substantive right which is provided for,namely the "right to consult and instruct a lawyer without delay". Since that46 Rae v Police, above n 35, at [58]. See also Ministry of Transport v Noort, above n 4, at 284 perRichardson J; and Takarangi v Ministry of Transport (1992) 9 CRNZ 234 (HC).47 Rae v Police, above n 35, at [57]; and Ahuja v Police, above n 44, at [18]–[22].48 R v Alo, above n 21.49 R v Barber, above n 34.50 R v Alo, above n 21, at [31].51 At [66(a)].substantive right does not extend to free legal advice, logic suggests that thereis thus no "constitutional" entitlement to be told of a right to free legal advice.[49] Chambers J dissented. In his opinion, the fact that s 23(1)(b) did not articulatea right to be provided with legal advice (or to be informed of the existence of the same)was no barrier to an obligation arising, and the majority's conclusion left a criticalcomponent of the right to speak with a lawyer to chance.52The Practice Note[50] The practical effect of Alo was short-lived, however, as Elias CJ's 2007Practice Note provided further guidance to the police on questioning suspects.53Compliance with the Practice Note is a matter which must be taken into account unders 30(6) of the Evidence Act 2006 when considering whether a statement has beenobtained by police unfairly. The Practice Note provides, in relevant part:54(2) Whenever a member of the police has sufficient evidence to charge aperson with an offence, or whenever a member of the police seeks toquestion a person in custody, the person must be cautioned beforebeing invited to make a statement or answer questions. The cautionto be given is:(a) that the person has the right to refrain from making anystatement and to remain silent;(b) that the person has the right to consult and instruct a lawyerwithout delay and in private before deciding whether toanswer questions and that such right may be exercised withoutcharge under the Police Detention Legal Assistance Scheme;(c) that anything said by the person will be recorded and may begiven in evidence.[51] As the Chief Justice explained in an introductory section of the Practice Note:55The obligation to advise that legal advice may be available without chargeunder the Police Detention Legal Assistance Scheme is new. As well theadvice requirements under s 23 of the New Zealand Bill of Rights Act 1990are brought into the required caution. Giving such advice prior to a suspectbeing arrested or detained does not obviate the necessity to repeat the adviceupon arrest or detention.52 At [80], [84] and [87].53 Andrew Butler and Petra Butler, above n 17, at [20.7.41].54 Practice Note, above n 21, at 297.55 At 297.[52] The Practice Note provides that it does not "affect the rights and obligationsunder the New Zealand Bill of Rights Act", and consequently cannot be determinativewhen interpreting s 23(1)(b).56 We accordingly do not accept the CBA's submissionthat the Practice Note can effectively achieve that outcome by creating a legitimateexpectation relevant to the interpretation of the right.Canadian jurisprudence[53] We turn finally to the Canadian jurisprudence relied on by all the parties.Particular attention was drawn to the case of Prosper v R, an appeal heard by theSupreme Court of Canada two years after this Court released its decision in Noort.57[54] That Court had, several years earlier, confirmed in R v Therens that motoristsdetained pursuant to Canadian drink-driving schemes had the right to retain andinstruct counsel, as guaranteed by s 10(b) of the Charter.58 The Court had furtherfound, in R v Brydges, that when detainees say they are unable to afford a lawyer,police must inform them of local legal aid or duty counsel schemes (if any).59The Court had been careful, however, not to create a substantive entitlement to suchschemes or place any requirement on provinces to enact them. Notwithstanding,following Brydges many provinces established systems of duty counsel, includingstaffed toll-free lines, which subsequently became termed "Brydges duty counsel".[55] In Prosper, the Supreme Court faced the issue the appellant raises here. Thatis, despite the clear line of previous authority, did the Charter place a substantiveobligation on the executive to guarantee the availability of lawyers?[56] The Court unanimously agreed that it did not.60 The reason for that conclusionwas, as the Crown urges here, the significance of the basic constitutional principle thatit is not for the courts to add to the substantive content of the obligation created bys 10(b). Moreover, the possibility of doing so had been expressly considered in the56 At 297.57 Prosper v R [1994] 3 SCR 236.58 R v Therens [1985] 1 SCR 613.59 R v Brydges [1990] 1 SCR 190.60 Prosper v R, above n 57, in particular at 266 per Lamer CJ, Sopinka, Cory and Iacobucci JJ; at286 per L'Heureux-Dubé J; and at 298 per McLachlin J.course of the preparation of the Charter, and had been rejected. However, in theleading majority judgment, Lamer CJ considered that in the absence of Brydges dutycounsel, the authorities would be required to grant detainees a greater opportunity toreach counsel, perhaps until a local legal aid office opened or until a private lawyerwilling to provide free summary advice could be reached.61 Thus, although it was notlegally required for provincial governments to establish Brydges duty counsel, therewas a substantial incentive for each to do so.62[57] Against that background we turn to the leave questions.The first question: Is there an obligation to facilitate the availability of legaladvisers to enable the envisaged legal consultation to occur?[58] The first leave question asks whether what is currently recognised asacceptable facilitation, the provision of a list of lawyers and their after-hours contactdetails, implies a need for the executive to have made some (or better) arrangementsfor the lawyers listed to respond when telephoned. Before addressing that question,we consider Mr Kerr's more extensive proposition, that there is an obligation toguarantee that when advice is requested it is made available.[59] New Zealand courts have consistently emphasised that NZBORA rights are,generally speaking, not absolute. At the same time, they have also consistentlyacknowledged the unusual status of the drink-driving scheme, and rejected challengesbased on assertions that all of the scheme's many complicated requirements must bestrictly complied with. In Aylwin v Police the Supreme Court confirmed the latterconsideration when it said:63[17] Every driver of a motor vehicle on the roads of this country should bynow be aware that driving after consuming more than a small amount ofalcohol is dangerous, illegal and socially unacceptable. The great majority ofdrivers comply with their obligations in this respect. A small minority do not.Parliament has legislated to ensure that these drivers do not escaperesponsibility through technical and unmeritorious defences. The courts mustgive full effect to that clear Parliamentary indication.61 At 269–270.62 At 275.63 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1.[60] Those considerations, and the alarming social costs of drink-driving, have ledto the enactment of a scheme which, in some respects, departs from the usualexpectations and standards of criminal justice. Drivers are required to submit to theprocedures called for by the scheme at random, without reasonable suspicion by thepolice. Although a stopped driver is told that they may exercise the right to silence,they are nonetheless obliged to provide breath or blood samples on demand.Determined failure to co-operate is an offence, punished as if the substantive bloodalcohol offence had been proved.[61] As we have seen the courts have, whilst accepting the justification for thoseaspects of the drink-driving scheme, and the need to maintain the integrity of thatscheme, nevertheless sought to give the right to legal advice practical effect. In thatcontext, Mr Kerr's proposition that s 23(1)(b) requires the executive to guarantee theavailability of advice from a lawyer faces considerable difficulties.[62] First, that is not what s 23(1)(b) requires on its face. To recognise such anobligation would represent a considerable addition to the words of the section. As wehave noted, were that proposition to be upheld, of necessity there would be anobligation to provide legal advice for free: if not, impecunious motorists would not beguaranteed the receipt of legal advice. As Davidson J noted in the High Court,64the inclusion of a right to free legal advice for impecunious persons charged with anoffence in s 24(f), and the omission of any comparable right for detained persons ins 23, is a strong indicator that such an obligation cannot be taken as implicit.[63] Second, and relatedly, recognising such an obligation would require us toenlarge the right to counsel for detained individuals beyond the right for individualsactually charged and facing trial. In R v Condon the Supreme Court distinguishedbetween the absolute right to a fair trial, as affirmed by s 25(a) of BORA, and thesubsidiary right of persons charged with an offence to consult and instruct a lawyer,as affirmed by s 24(c).65 Section 24(c), the Court observed, did not requirethe executive to "guarantee to provide the lawyer's services", except to the extent64 High Court judgment, above n 2, at [37]–[38].65 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300.s 24(f) might be engaged.66 Considering those charged and facing trial are generallyin greater need of a lawyer, this too undercuts the proposition we are invited to adopt.[64] Third, it would require us to depart from Noort and Mallinson, both decisionsof the Full Court, and a number of related Permanent Court decisions, includingR v Alo, where it was assumed that the right could not extend to a substantiveentitlement.67[65] Fourth, to do so would require us to go further than Canadian authority, inparticular that in R v Prosper, which since Noort has been found by the New Zealandcourts to be highly persuasive.[66] We therefore conclude that there is no obligation under s 23(1)(b) to guaranteethe availability of legal advisers.[67] We turn, then, to the first leave question as framed: that is, and as we have putit: does the obligation to facilitate extend to making, or making better, arrangementsfor lawyers to respond when telephoned than existed in Mr Kerr's case? We say atonce we accept Mr Powell's submission that it is not for this Court to tell the executivehow to go about upholding the s 23(1)(b) right. To that extent, the answer to the leavequestion as framed must be "no".[68] It remains incumbent on the executive to afford a detained motorist the facilityto exercise the s 23(1)(b) right "in a real and practicable way".68 If the executive doesthat through the PDLA, then it must ensure that the scheme fulfils its purpose ofproviding contact details of lawyers "capable of and willing to provide legal advice todetained persons".69[69] It does not follow that every detained motorist will be able to speak to a lawyer.In limited circumstances, practical limitations may circumscribe what can reasonablybe provided by police: an unexpected cellphone outage is one example. Such66 At [76].67 R v Alo, above n 21, at [31].68 Steel v Police, above n 34, at 390.69 Barrie v R [2012] NZCA 485, [2013] 1 NZLR 55 at [15].situations cannot always be guarded against. As has been recognised since Noort, itwould be unreasonable, and undercut policework to an unacceptable degree, to requiremotorists detained under the drink-driving scheme to enjoy the right in every situation.[70] We have referred in [68] to "the executive". That is because we agree withDavidson J that the obligation to facilitate exercise of the s 23(1)(b) right isappropriately imposed on the broader executive government.70 Thus it is no answerto a challenge under s 23(1)(b) for the police to contend the police officer involved dideverything in his or her power to facilitate exercise of the right.[71] Finally, we make clear that we do not consider the position of detainees whocannot afford their own lawyer. The issue for Mr Kerr was not that he wasimpecunious: he had initially intended to talk to his own lawyer. Rather, the issueraised is the extent of the recognised obligation to do more than pause in theadministration of the scheme to give the detained motorist an opportunity to contacta lawyer and to in fact facilitate the motorist's ability to do so.The second question: Was there a breach of Mr Kerr's right under s 23(1)(b) inthe circumstances?[72] The evidence in the District Court showed, in our view, that in this case theexecutive fell short of what was required. At the relevant time in Canterbury, thePDLA scheme operated on a list rather than a roster scheme.71 The constable dealingwith Mr Kerr subsequently acknowledged in cross-examination that this systemworked very poorly:Q. So [is lawyers on the PDLA list not answering calls] a commonproblem of when you go — you commonly go through this type ofprocedure with other motorists?A. If people request a lawyer I do what I can to get a lawyer. Sometimesit can't happen but for reasons they're not answering, yes.Q. And does it normally happen in the evenings or can it happen duringthe day as well?A. It can happen at any time. It's almost 50/50 on whether you getthrough or not.70 High Court judgment, above n 2, at [21]–[23].71 See above at [40]–[43].Q. Another police constable, Constable Buck, he gave evidence I thinklast week in Court where he said it was about seven [times] out of 10no-one answered. Would that be accurate?A. I guess it would be different for everyone but it's reasonable for thatto be, yes.Q. Would you go so far as to say is it more often than not they don'tanswer?A. That's correct, yes.[73] Affidavit evidence filed in this appeal by the Ministry and the NZLS confirmedthose problems. An official from the Ministry explained that in February 2017, as aresult of a number of concerns raised by police regarding PDLA providers inChristchurch not answering their phones, an investigation into the operation of thePDLA in that area was undertaken. That investigation was given additional impetusfollowing comments by a local District Court Judge in dismissing a charge ofdrink-driving in circumstances where eight unsuccessful attempts were made tocontact different lawyers on the PDLA list.72 As that investigation progressed, itbecame clear the issues were not limited to Christchurch. It also became clear therewere too few providers in Canterbury available to implement an effective roster.The Christchurch investigation was, accordingly, paused in late March 2017, and anationwide review began. A survey of providers showed that 71 per cent of calls madepursuant to the PDLA were received between 10 pm and 4 am. All of the instanceswhich had caused the police concern fell within that time period. The providerssurveyed raised a range of other issues, principally as to remuneration and the police'sattitude and processes. Discussions were then held to consider potential changes tothe PDLA.[74] Following the review, a roster system was established in Canterbury, based on28 lawyers. The unchallenged evidence was that since the establishment of that rosterin Christchurch, no complaints have been received regarding the operation of thePDLA.[75] Whilst the names and contact details of lawyers on the list provided to Mr Kerrwere apparently accurate, those lawyers were not, in reality, willing to provide legal72 Police v Fraser [2017] NZDC 7387, [2018] DCR 185.services to Mr Kerr or indeed any detained person at the relevant times. It is clear,therefore, that as the police recognised in the District Court, it was in fact more likelythan not that — at such times — no lawyer on the PDLA list would be able to bereached, however many attempts were made. Thus the act of providing the list ofnames and telephone therefore provided little or no facilitation.[76] We acknowledge that Mr Kerr asked, on several occasions, for his own lawyerto be contacted. In our view, however, that does not mean that the facilitation providedby the list was of less significance. The list addresses the reality that, in the time thedrink-driving scheme allows for access to lawyers, and at the times a detainee underthe scheme is most likely to seek to do so, contacting and getting advice from adetainee's own lawyer (where they have one) may simply not be practicable. Nor doesthe individual constable's commendable willingness in Mr Kerr's case to ring 12 ofthe lawyers on the list demonstrate reasonable facilitation. Rather, and due to no faultof the constable, it points to the opposite conclusion. It does so by demonstrating theinadequacies of the list at that time in Canterbury.[77] It follows that the answer to the second leave question is "yes" because therewas a breach of Mr Kerr's right under s 23(1)(b).Section 30(3) — admissibility[78] Having thus answered the two questions on which leave is reserved,the question becomes one of relief. We turn to the balancing exercise called for bys 30(2)(b) of the Evidence Act and the non-exclusive list of relevant factors found ins 30(3). In our view, the following are the relevant factors here:(a) the right is one of acknowledged importance;(b) although not occasioned by deliberate carelessness or bad faith, thebreach of the right resulted from known inadequacies in the PDLAscheme operated in Canterbury at the time;(c) the evidence in question of Mr Kerr's refusal to permit a bloodspecimen to be taken is critical to the prosecution case;(d) Mr Kerr was charged with a serious offence; and(e) the ability for the police to efficiently and fairly administer thedrink-driving scheme is an important one, particularly given the risksdrink-driving poses to the population at large. By the same token,however, facilitation of the right is not difficult, particularly given theease and speed of modern telecommunication methods. Nor need itsexercise unduly impede the relevant processes.[79] Having regard to those factors, in our view exclusion of the evidence is theproportionate response. That being the case, there is no evidence upon which Mr Kerrcould be convicted of refusing to provide a blood specimen and a judgment of acquittalmust be entered.Result[80] Mr Kerr's appeal is allowed.[81] The conviction on the charge of failing to provide a blood specimen is quashed.[82] A judgment of acquittal is entered.Solicitors:Crown Law Office, Wellington for Respondent and Minister of JusticeAdams Hesketh, Tauranga for Criminal Bar Association