New Zealand Police v Duncan [2019] NZDC 8783

Published 13 June 2019

Right to consult lawyer in private — failure to remain stopped — drink driving — privacy — improperly obtained evidence — Land Transport Act 1998 — Evidence Act 2006 s 30 — New Zealand Bill of Rights Act 1990 ss 3 & 23(1)(b) — R v Hennessey [2009] NZCA 363 — Police v Kohler [1993] NZLR 129 — Robertson v Police, AP 366/92, HC Auckland, 22 February 1993 — Tamatea v Police A 135/00, HC Auckland, 9 November 2000 — Chief Justice's Practice Note on Police Questioning. The defendant was charged with failing to remain stopped, under the Land Transport Act, and driving with excess blood alcohol. At the end of the prosecution case, the defence submitted that there was no case to answer because the Police had breached the defendant's privacy when he was consulting a lawyer, therefore the drink driving evidence would be inadmissible. The defendant had been stopped by two police constables in a marked patrol car, where a breath test was administered and a result of over 400 was produced. The constable required the defendant to come to the Police Station for an evidential test. The Police described the defendant as initially compliant. The defendant made requests of the constables, including asking if he could roll down the windows of his car for his dog, which Constable 1 allowed. When the defendant rolled down the windows he then got into the car and shut the door. Constable 1 thought the defendant was attempting to flee and reached into the open window and grabbed the keys from the ignition, causing the car to "lurch forward". At this point, the Police restrained the defendant and allege the defendant became abusive. The defendant alleges the Police also became abusive. Once at the Police Station, the defendant asked to speak with a lawyer and the Police put the defendant in a room and made the call. The defendant remained in handcuffs. Under cross-examination, the two constables gave differing accounts of whether the door to the call room was open. Constable 1 testified that the door was closed at all times with the exception of when she went in to check if defendant's call had ended, at which point she identified the voice on the phone was female (initially when the call was set up, the lawyer speaking was male). Constable 2 stated under cross-examination that he heard the defendant speaking with a female from his position "outside the cell, maybe five or six metres away" and that he believed the door had been open throughout the call. The Judge reviewed the relevant case law and the Chief Justice's Practice Note on Police Questioning and identified the test as being whether the officer "was in a position to hear the appellant speaking, whether or not he wished or intended to listen," per Robertson v Police. On the present facts, the Judge found that a reasonable person could not conclude that privacy had been afforded to the defendant and therefore held that the defendant's right to consult a lawyer in private had been breached. The Judge then turned to consider whether the subsequent evidence was inadmissible as a consequence of the breach. The Judge noted the breach of the right was moderate and considered the breach in light of s 30 of the Evidence Act, which provides the balancing test for improperly obtained evidence. The Judge held that exclusion of the evidence would be proportionate to the impropriety, given the traditional and necessary" right breached. The defence had no case to answer and the driving with excess blood alcohol charge was dismissed. The charge of failing to remain stopped was unaffected by the evidential ruling, however on the facts, the car lurched forward as a result of Constable 1's action in removing the keys from the ignition. The defendant did not cause the car to fail to remain stopped, therefore, that charge was also dismissed. Judgment Date: 13 May 2019.