KERR v NEW ZEALAND POLICE [2018] NZCA 326

KERR v NEW ZEALAND POLICE [2018] NZCA 326 [27 August 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA661/2017[2018] NZCA 326BETWEEN ZANE CHRISTOPHER KERRAppellantAND NEW ZEALAND POLICERespondentHearing: 7 August 2018Court: Winkelmann, Brown and Clifford JJCounsel: J D Lucas for AppellantR K Thomson for RespondentJudgment: 27 August 2018 at 3.00 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is granted in respect of thefollowing matters:(a) whether the right in s 23(1)(b) of the New Zealand Bill of RightsAct 1990 implies an obligation on the State to facilitate theavailability of legal advisers to enable the envisaged legalconsultation to occur; and(b) whether there was a breach of Mr Kerr's right under s 23(1)(b) inthe circumstances where calls were placed unsuccessfully to13 lawyers.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] Mr Kerr was convicted of one charge of failing to provide an evidential bloodsample and one charge of driving while disqualified following a judge alone trial inthe District Court.1 Having unsuccessfully challenged his conviction for the failure toprovide a blood sample in the High Court2 he applies under s 253(1) of the CriminalProcedure Act 2011 for leave to bring a second appeal against that conviction. The keyissue is whether there was a breach of Mr Kerr's right under s 23(1)(b) of theNew Zealand Bill of Rights Act 1990 (NZBORA) to consult a lawyer.[2] Section 23(1)(b) states:Everyone who is arrested or is detained under any enactment shall have theright to consult and instruct a lawyer without delay and to be informed of thatright.[3] The section was considered in the context of the breath alcohol regime by thisCourt in Ministry of Transport v Noort where Cooke P observed:3The opportunity is to be limited but reasonable. It is not necessarily restrictedto one call, but there must be no unreasonable delay. A driver who cannotimmediately contact his or her own lawyer should normally be allowed to tryone or two others. If, despite a reasonable opportunity, no lawyer can becontacted (perhaps because of the hour of night) the test need not be delayedfurther. Rosters of lawyers, available to undertake this work at an appropriatefee, may be prepared by the Law Society, the police or the ministry, but thatis outside the control of the Court. Hard and fast rules cannot be laid downfor all circumstances. Ultimately it must always be a question of fact andcommon sense whether a reasonable opportunity has been given.[4] On the issue of facilitation Richardson J said:4That right can only have meaning to an arrested or detained person if it is takenas raising a correlative obligation on the enforcement officer to facilitatecontact with a lawyer The exercise of that right should be facilitated bymaking available a telephone — whether a cell phone in the officer's car or atelephone on arrival at the testing station will depend on the circumstances.And for the effective enjoyment of the right motorists to whom thebreath/blood-alcohol regime applies will have to be afforded access to lists of1 Police v Kerr [2016] NZDC 26952.2 Kerr v Police [2017] NZHC 2595.3 Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 274.4 At 284.lawyers, including outside ordinary office hours to lists of lawyers' hometelephone numbers.The level of facilitation required has been addressed in several authorities since.5[5] In response to Noort, Parliament introduced a scheme of legal aid, thePolice Detention Legal Assistance Scheme ("PDLA scheme"), to facilitate an initialconsultation between a lawyer and a person undergoing police questioning (whetherarrested or not) or in police detention, regardless of the detainee's financial means.6The Chief Justice's Practice Note on Police Questioning ensures that those questionedby the Police are both aware of the PDLA scheme and the fact that it is free of charge.7[6] The crux of Mr Kerr's proposed appeal concerns alleged deficiencies in thePDLA scheme. Mr Lucas submitted that the NZBORA applies to the PDLA schemeand that Mr Kerr's right was breached in the circumstances where none of the13 lawyers who were telephoned by him or on his behalf on the evening of hisdetention answered the calls. Mr Lucas contends that it is important to determinewhether s 23(1)(b) applies to the PDLA scheme as it will potentially affect all personswho are detained by the police and need access to free legal advice. In his judgmentdeciding Mr Kerr's first appeal Davidson J referred to anecdotal evidence of a policeofficer in another case that as many as seven out of ten times no lawyer can be reachedat night off the PDLA list.8[7] In opposing leave Ms Thomson submitted that there is no obligation on theState to provide legal advice to a detained person and that the proposition that the Statecould take no action until Mr Kerr had obtained such advice was contrary to authorityand inconsistent with the statutory provisions.[8] The Crown contends that while the issues identified by Davidson J regardingthe operation of the PDLA scheme may be a matter of general importance, it is not amatter involved in the appeal, the short point being that the police are not responsible5 R v Mallinson [1993] 1 NZLR 528 (CA); and Rae v Police [2000] 3 NZLR 452 (CA).6 Legal Services Act 1991 (repealed), s 158C; now Legal Services Act 2011, s 68. Discussed inAndrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis, Wellington, 2015) at [20.7.25].7 Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.8 Kerr v Police, above n 2, at [33].for the scheme's administration. Mr Lucas counters that a detained person'sfundamental right to consult with a lawyer is undermined to the point where it has noutility if none of the lawyers on the PDLA scheme are available to be consulted.[9] In Barrie v R this Court observed that the right to consult and instruct a lawyeris one of a number of rights that guarantee the protection of detained and chargedpersons under the law.9 The Court said that these rights are aimed at ensuring theproper administration of justice and must be practical and effective rather thantheoretical or illusory.10[10] However Butler and Butler make the point that because Parliament enacted aparticular scheme for the provision of legal advice no consideration has been given inthe case law to the prior question of whether such a scheme (or a similar one) isnecessary to fulfil the requirements of s 23(1)(b).11 They suggest that becauseParliament has seen fit to go beyond its NZBORA obligations and provide the PDLAscheme does not mean that it is legitimate to otherwise extend the scope of s 23(1)(b).12[11] In view of the element of uncertainty concerning the s 23(1)(b) right and theclaimed inadequacy of the PDLA scheme it is appropriate in our view that leave begranted to Mr Kerr to appeal to this Court on the following matters:(a) whether the right in s 23(1)(b) of the New Zealand Bill of Rights Act1990 implies an obligation on the State to facilitate the availability oflegal advisers to enable the envisaged 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.[12] Leave is granted to the Minister of Justice as the responsible Minister to appearand present submissions on the appeal. This judgment will also be sent to theNew Zealand Law Society (who was originally required to be consulted on the PDLA9 Barrie v R [2012] NZCA 485, [2013] 1 NZLR 55 at [22].10 At [22].11 Butler and Butler, above n 6, at [20.7.25].12 At [20.7.27].scheme) and to the Criminal Bar Association who may apply for leave to appear ormake a written submission on the appeal.Solicitors:Public Defence Service, Christchurch for AppellantCrown Law Office, Wellington for Respondent