Kerr v New Zealand Police

• Jurisdiction: New Zealand
• Judge: Clifford,Gilbert,Wild JJ
• Judgment Date: 23 June 2020
• Neutral Citation: [2020] NZCA 245
• Court: Court of Appeal
• Docket Number: CA661/2017
• Date: 23 June 2020

Between

Zane Christopher Kerr

Appellant

and

New Zealand Police

Respondent

[2020] NZCA 245

Court:

Clifford, Gilbert and Wild JJ

CA661/2017

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Bill of Rights, Criminal, Statutory Interpretation — appeal against a conviction of refusing to permit a blood specimen to be taken — right to consult and instruct a lawyer — whether the evidence had been improperly obtained — calls were placed unsuccessfully to 13 lawyers — New Zealand Bill of Rights Act 1990 — Evidence Act 2006

Counsel:

J D Lucas and S J Jamieson for Appellant

A M Powell and V McCall for Respondent

B M McKenna and M R G van Alphen Fyfe for Minister of Justice as Intervener

R S Reed QC and H M Z Ford for New Zealand Law Society as Intervener

L A Andersen and S J Zindel for Criminal Bar Association of New Zealand Incorporated as Intervener

• A The appeal is allowed.

• B The conviction is quashed.

• C A judgment of acquittal is entered.

JUDGMENT OF THE COURT

REASONS OF THE COURT

Table of Contents

Introduction	[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 availability of legal advisers to enable the envisaged legal consultation to occur?	[58]
The second question: Was there a breach of Mr Kerr's right under s 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 2016 of refusing to permit a blood specimen to be taken. 1 He had defended the charge on the basis that he had not been able to exercise his right to consult and instruct a lawyer before being required to give that specimen. Accordingly, evidence of his refusal had been improperly obtained and was inadmissible. The District Court rejected that submission and convicted Mr Kerr. Mr Kerr's subsequent appeal to the High Court was 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 the New Zealand Bill of Rights Act 1990 (NZBORA) which provides:

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 without delay and to be informed of that right; and

…

3 In the leading 1992 case Ministry of Transport v Noort, this Court held that recognition of the s 23(1)(b) right is not inconsistent with the drink-driving scheme. 4 However, the operational requirements of the scheme constrain exercise of the s 23(1)(b) right to a limited, but reasonable, opportunity to consult a lawyer by telephone.

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 on the state to facilitate the availability of legal 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 the circumstances where calls were placed unsuccessfully to 13 lawyers.

5 Those two questions raise the difficult issue of striking the appropriate balance between the coercive provisions of the drink-driving scheme and the need to give what Richardson J in Noort termed “a generous interpretation suitable to give individuals the full measure of the fundamental rights and freedoms referred to”. 6

6 When Noort was decided there was no state-funded legal advice scheme for detained 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 to

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 the police to stop any driver in order to obtain their particulars and exercise enforcement powers under that Act. Though no particular suspicion is required on the part of the 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: it was 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 response to a police inquiry he confirmed he had been drinking. Mr Kerr refused the police's request to undergo a breath screening test. 7 The police consequently told Mr Kerr he was required to accompany the police to Christchurch central police station, which he agreed to do. 8 At that point, the police advised Mr Kerr of his rights and asked whether he understood them. 9 Mr Kerr replied “no”, but refused to elaborate.

9 At the police station a constable continued the procedures called for by the drink-driving scheme as recorded in the police's standard breath and alcohol procedure sheet. The officer again told Mr Kerr he had the right to speak to a lawyer and that there was a list of lawyers available to whom he could speak for free. Mr Kerr was asked whether he wished to speak to a lawyer. He replied that he wanted to speak to a Mr Allen. The constable called Mr Allen, who did not answer the phone. Mr Kerr was then referred to a print-out of the PDLA list of some 20 to 30 lawyers.

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 simply leave 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 Kerr that he was required to undergo an evidential breath test. He again asked Mr Kerr whether 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. Still no-one answered.

12 At 10.38 pm, the constable prepared the evidential breath test by starting the testing sequence on the device and attaching a mouthpiece. Mr Kerr refused to undergo the test. The constable told him he was therefore required to provide a blood test. 10 At this stage, Mr Kerr was at the sharp end of the drink-driving scheme. Up to this point, whilst the legislation requires compliance, and a person who refuses to accompany the police when required to do so may be arrested, 11 no offences are provided for. Refusing to provide a blood specimen is, however, an offence with a maximum period of imprisonment of two years. 12 The constable once more cautioned Mr 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 once again told Mr Kerr he needed to provide a blood specimen. He asked Mr Kerr whether he consented to the taking of a blood specimen. Mr Kerr said he did not as he did not like needles. The constable warned him that refusal to provide a specimen was an offence and then arrested him. He recorded the time as 10.50 pm and asked Mr Kerr whether he understood his rights. Mr Kerr replied: “no, because you said I could speak to a lawyer, but none will answer, and I have been delayed”.

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 to 12 of the 20 or 30 lawyers on the PDLA list.

Judgments below

15 In the District Court, the police acknowledged there were issues with the efficacy of the PDLA, but contended that was not the police's responsibility. 13 The constable had done all he could to facilitate the right. The Judge accepted the police submission and concluded the reasonableness of the constable's actions was demonstrated by the number of calls he had made. 14

16 Mr Kerr's appeal to the High Court was dismissed by Davidson J. The Judge noted that, following Noort, the courts had consistently held the obligation was to facilitate rather than to provide. 15 The Judge said the issue for him was whether s 23(1)(b) imposed an obligation on the executive to ensure, or do more to try to ensure, 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, the obligation recognised was only to facilitate and not to create obligations at any high policy level. 16 Secondly, s 24(f) of NZBORA guaranteed free legal assistance, but only to impecunious persons after they have been charged with an offence. It would therefore be inappropriate for the Courts to rely on s 23(1)(b) to bring forward the point at which legal aid entitlements begin. 17 Thirdly, the PDLA appeared to work adequately during the day and it was only drink-driving suspects detained at night who experienced its shortcomings. 18

17 The Judge, however, emphasised his conclusion the executive was responsible for facilitating the exercise of the right. If Mr Kerr's difficulties with the PDLA were

experienced by other motorists in the future, that might well constitute a breach of the right. 19

Arguments on appeal

Mr Kerr and the New Zealand Law Society

18 Mr Kerr argued...