IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2020-404-66
[2020] NZHC 1106	

BETWEEN	SEFITA TONGA
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	19 May 2020	
Appearances:	A Shaw for the Appellant J C for the Respondent	
Judgment:	26 May 2020	

JUDGMENT OF POWELL J

This judgment was delivered by me on 26 May 2020 at 11 a.m.
Registrar/Deputy Registrar Date:

TONGA v NEW ZEALAND POLICE [2020] NZHC 1106 [26 May 2020]

[1]	Following a Judge alone trial in the District Court at Manukau the appellant, Sefita Tonga, was convicted by Judge T V Clark on charges of driving with excess breath  alcohol1   and  careless  driving2   relating  to   an  incident   that  occurred  on 5 November 2017.3

[2]	On the charge of driving with excess blood alcohol, Judge Clark sentenced Mr Tonga to a fine of $900, and a six-month disqualification from driving.4 On the charge of careless driving, Mr Tonga was convicted and discharged by Judge Clark.5

[3]	Mr Tonga appeals against his conviction on the charge of driving with excess breath alcohol and against the sentence imposed.

[4]	The crux of the appeal is whether the District Court Judge should have excluded the breath specimen evidence under  s  30  of  the  Evidence  Act  2006.  Mr Shaw, on behalf of Mr Tonga, submits this evidence was improperly obtained because Mr Tonga did not fully understand the nature of his right to counsel nor did the Police properly facilitate Mr Tonga’s exercise of that right. Mr Shaw accepts that if the conviction appeal does not succeed, then the sentence appeal will also fall away.

Approach on appeal

[5]	Section 229(1) of the Criminal Procedure Act 2011 (CPA) allows a person to appeal against their conviction to the High Court.6 Section 232 of the CPA sets out that an appeal against conviction must be allowed if, in the case of a Judge alone trial, the Judge erred in her or his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason. In any other case the appeal will be dismissed.

1	Land Transport Act 1998, s 56(1) and (3). Maximum penalty of three months’ imprisonment or a fine not exceeding $4,500 and the Court must order the person to be disqualified from holding or obtaining a driver licence for six months or more.
2	Land Transport Act 1998, s 37(1). Maximum penalty of a fine not exceeding $3,000, and the Court may order the person to be disqualified from holding or obtaining a driver license for such period as the Court thinks fit.
3	Police v Tonga DC Manukau CRI-2017-092-013352, 23 May 2019.
4	Police v Tonga [2020] NZDC 3869 at [7] and [8].
5	At [2].
6	Criminal Procedure Act 2011, s 230(b).

[6]	The Supreme Court in Sena v Police confirmed that:7

…in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had. Because of this, where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “customary caution”.8

[7]	An appeal against sentence is also governed by the CPA, and s 250(2) provides that the Court must allow an appeal against sentence if satisfied that for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.9

[8]	The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.10 As such, the measure of error that must be shown, is that the sentence is “manifestly excessive”.11 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.12 Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence was reached.13

The events of 5 November 2017 and the District Court judgment

[9]	There is no dispute that having been observed driving erratically, the basis for the careless use charge which is not challenged on appeal, Mr Tonga’s vehicle was stopped by the arresting officer, Constable Poi. Constable Poi administered a breath screening test to Mr Tonga and when this came back positive gave Mr Tonga  his  Bill of Rights advice in English and in Tongan (using his mobile device) and requested Mr Tonga accompany him back to the Police station.

[10]	Once at the station Constable Poi took Mr Tonga through the Breath & Blood Alcohol Procedure Sheet (“the Procedure Sheet”) for the purpose of administering an

7	Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
8	Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].
9	Criminal Procedure Act 2011, s 250(3).
10	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] – [27].
11	At [26] – [27].
12	At [36].
13	At [36].

evidential breath test. Constable Poi gave the following evidence as to what happened next:

I then, on my [mobile] device, found the legal roster for the free lawyers that the defendant would be able to speak to. Once I brought that up and said to the defendant to choose one of the names on the list he requested a Tongan- speaking lawyer. I said to the defendant that I’m not sure if any of the lawyers speak Tongan but if he has one we can contact that one. The defendant said he didn’t have a lawyer and so I asked him to choose one on the list if he wanted to continue to speak to a lawyer. I explained to the defendant to choose out of the lawyers a numbering system, 1, 2 then 3 as not all lawyers answer their phones. He repeated again he wanted to speak to a Tongan lawyer.  Again, I said, “I can’t confirm any of these lawyers speak Tongan.” So, the defendant said, “Don’t worry about it.” I confirmed with him if he wanted to speak to a lawyer or not and he said, “No”. Then I proceeded on with the secondary part of section (h).

[11]	Mr Tonga accepted that he was advised of the right to speak with a lawyer without delay and in private, and that he was advised of the list of lawyers he could speak to for free (the Police Detention Legal Assistance (“PDLA”) list).14 Mr Tonga also accepted that he had understood that he had the right to speak with a lawyer,15 and that although he did have a Tongan lawyer in mind, Mr Nalesoni Tupou, he did not provide his name to Constable Poi.16

[12]	Constable Poi’s evidence was that he then told Mr Tonga that he was required to undergo an evidential breath test without delay, otherwise he would be required to permit the taking of a blood sample. He then inquired again as to whether Mr Tonga wanted to speak to a lawyer – Mr Tonga replied “No”. Mr Tonga then refused to sign section H of the Procedure Sheet to confirm that he had been advised of the reason for his detention and his rights.

[13]	At 5.24 am Constable Poi administered the evidential breath test which recorded a result of 770 micrograms of alcohol per litre of breath.

[14]	Constable Poi proceeded to inform Mr Tonga that the reading was over 400 micrograms and therefore, if he did not request a blood test within 10 minutes the evidential breath test could be conclusive evidence in a prosecution against him. He

14	Police v Tonga, above n 3, at [44].
15	At [46].
16	At [79].

also explained what consequences might flow from the blood test and that he had been detained and the reason for the detention. Mr Tonga was again told he had a right to speak to a lawyer but again confirmed he did not want to speak to a lawyer. Mr Tonga did not elect to have a blood test and refused to sign sections J and K of the Procedure Sheet to affirm that he understood this advice.

[15]	In her judgment Judge Clark preferred the evidence of Constable Poi on every issue where there was a conflict between Constable Poi and Mr Tonga, noting in particular:17
Where the defendant’s evidence was opposed to that of Constable Poi, I prefer the evidence of Constable Poi. I found Constable Poi to be credible and reliable. I am satisfied that his account of events was correct notwithstanding the passage of time. He made what I consider to be an accurate assessment of the defendant’s ability to understand English and dealt with him accordingly. Importantly, Constable Poi had no motive to ignore the defendant’s requests or to prevent him from contacting his lawyer of choice. He gave his evidence in a calm and ordered fashion and did not overstate any aspect of what occurred. He made appropriate concessions and accepted that he had not taken notes and that he could not recall “exact word for word”. He was however sure about what he did and told the defendant and what the defendant did and told him.

In stark contrast, I do not consider the defendant to be a reliable witness. I cannot ignore the fact that the defendant was intoxicated after drinking for a period of 5 hours. I consider his ability to accurately recall events in detail was impaired as a result. He gave inconsistent evidence with regard to a number of matters to the extent that at one point, I felt it necessary to intervene to clarify his answers. In addition, I consider that he adopted an unreasonable position when he was unwilling to accept the Breath Alcohol reading although there was no defence challenge to the accuracy of the equipment or the result.

[16]	Her Honour concluded that Mr Tonga was given, and did understand, his s 23 New Zealand Bill of Rights Act 1990 (BORA) rights as a person detained by Police, and that18 Mr Tonga’s command of English did not warrant the assistance of an interpreter.19

17	At [81] – [82].
18	At [88].
19	At [89].

[17]	Further, in relation to the s 23(1)(b) right to counsel, Judge Clark found that:

(a)	Constable Poi made reasonable efforts to inform Mr Tonga of, and facilitate Mr Tonga’s exercise of this right, by providing him with a copy of the PDLA list and recommending that Mr Tonga select three lawyers to contact.20 Her Honour relied upon Asher J’s observations in Tallentire v Police that:21

The obligation is to facilitate, not to provide, and the requirement to assist with the provision of this opportunity is not a counsel of perfection.

…

Equally it was open to Mr Tallentire to make some effort to contact her (the lawyer of his choice) if he was not prepared to accept a local lawyer.

(b)	Mr Tonga made an informed waiver of his right to consult and instruct a lawyer without delay.22

[18]	Her Honour concluded that even if there had been a breach of the defendant’s rights, the impropriety would have been so marginal and unintended that exclusion of the evidence under s 30 of the Evidence Act 2006 would be a disproportionate consequence.23 Her Honour noted in particular:24
…it was the defendant himself who…possessed…the necessary information to allow for him to contact Mr Tupou, a lawyer of his choice who is a Tongan speaking lawyer. Instead, he did nothing to contact Mr Tupou and nor did he provide details to allow for Constable Poi to contact Mr Tupou.

[19]	Finding that the Evidential Breath and Alcohol Procedure had been properly conducted at both the roadside and Ormiston Police Station, Judge Clark found that it was proven beyond reasonable doubt that the defendant had driven a motor vehicle on a road while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath, being 770 micrograms of alcohol per litre of breath.25

20	At [90].
21	Tallentire v Police [2012] NZHC 1546 at [12] and [20].
22	Police v Tonga, above n 17, at [88].
23	At [99].
24	At [99].
25	At [103].

The case for Mr Tonga

[20]	In summary Mr Shaw submitted:

(a)	Mr Tonga did not understand the nature and extent of his right to counsel of choice so as to enable him to exercise those rights in a real and practical way;

(b)	the Police breached its obligation to facilitate Mr Tonga’s right to legal advice by failing to facilitate Mr Tonga’s right to consult and instruct a Tongan-speaking lawyer; and that as a result

(c)	the evidential breath test result should be excluded pursuant to s 30 of the Evidence Act 2006 on the basis it was improperly obtained.

[21]	In particular, Mr Shaw submitted that it had not been established by the prosecution that Mr Tonga understood the nature and extent of his right to counsel of choice at any stage so as to enable him to exercise that right in a real and practical way, and as he was not adequately informed of the nature and extent of his right to counsel he therefore could not have waived that right as found by Judge Clark.

[22]	Mr Shaw also pointed to section H of the Procedure Sheet in which the arresting officer, Constable Poi, had circled “yes” to the question “would you like to speak to a lawyer?”, and recorded Mr Tonga as commenting “I want to”. In Mr Shaw’s submission, relying on in particular Ahuja v Police26 and McMillan v Police,27 this gave rise to a positive obligation on Constable Poi to facilitate the exercise of Mr Tonga’s right to counsel of choice, with the reference to Tongan-speaking lawyer being “equivalent to a request by [Mr Tonga] to consult and instruct a counsel of his choice”. Mr Shaw submitted that Constable Poi “could, and should, have taken practical and meaningful steps to assist Mr Tonga to facilitate that request” including asking other officers at the Police Station about Tongan-speaking lawyers who were on the PDLA list, or otherwise known, and then conveyed that information back to Mr Tonga.

26	Ahuja v Police [2019] NZCA 643.
27	McMillan v Police (1995) 2 HRNZ 445 (HC).

Discussion

[23]	Section 23 of NZBORA provides that:

(a)	Everyone who is arrested or detained under any enactment –

…

(b)	shall have the right to consult and instruct a lawyer without delay and to be informed of that right.

[24]	There are two key limbs to this right, imposing two correlating obligations on Police:

(a)	To inform a person arrested or detained of their right to counsel.

(b)	To facilitate the exercise of their right to consult and instruct a lawyer without delay.

[25]	As Mr Shaw emphasised, R v Mallinson is the leading authority on the scope of the obligation to inform:28

To be “informed” of the right to a lawyer is to be made aware of it. The purpose is to provide a fair opportunity for the person arrested to consider and decide whether or not to exercise the right. The obligation on the arrester or other officer concerned is to communicate clearly to the person arrested that he or she has that right. No particular formula is required so long as the content of the right is brought home to the person arrested… In the end whether or not the obligation was satisfied must turn on what was said and what is to be implied from the circumstances…

…

…[M]ore than a bare statement of the s 23(1)(b) right and a bare acknowledgement of understanding is likely to be required where, for example, the person arrested is intoxicated or under drugs or appears to have a mental or physical disability which could interfere with his or her comprehension of the rights.

…

The crucial question is whether it was brought home to the arrested person that he or she had those rights. That is not the same question as whether the police were justified in assuming that he or she did understand them.

28	R v Mallinson [1993] 1 NZLR 528, (1992) 8 CRNZ 707 (CA) at 530 – 531.

[26]	As Mr Shaw does not challenge Judge Clark’s conclusions with regard  to  Mr Tonga’s knowledge of English, it is difficult to see how he can advance the proposition that Mr Tonga did not understand the extent of his rights. There is simply no factual foundation for Mr Shaw’s submission. On the contrary the submission flies in the face of the specific factual findings made by Judge Clark about the level of  Mr Tonga’s understanding,29 and which, as Mr Toebes noted, are not challenged on appeal.

[27]	The submission is also contrary to Mr Tonga’s own evidence that he did understand that he was entitled to a lawyer.30

[28]	Likewise, while the comment of Mr Tonga recorded by Constable Poi that he wanted to consult with a lawyer and specifically relied on by Mr Shaw is clearly important, it ignores the remainder of the interaction between Mr Tonga and Constable Poi described in Constable Poi’s evidence  which  was  accepted  by  Judge Clark. This makes it clear that notwithstanding his earlier indication that he wanted to speak with a lawyer it was Mr Tonga who ultimately told Constable Poi not to “worry about it”, and thereafter repeatedly confirmed that he did not wish to consult with a lawyer, albeit declining to sign the appropriate section in the Procedure Sheet. In the circumstances and given Judge Clark’s clear findings on credibility it is difficult to see how Mr Tonga’s conduct could be viewed as anything but a waiver of his right to counsel in terms of the principles set out in Police v Kohler,31 relied on by Mr Shaw. Specifically, on the facts as found by Judge Clark Mr Tonga’s ultimate decision that he did not wish to speak with a lawyer was voluntary, informed and unequivocal, and not implied from his silence. As a result the first ground relied upon by Mr Shaw cannot succeed.

[29]	I turn then to the question of whether Constable Poi facilitated the exercise of Mr Tonga’s right to counsel. The submission goes to Mr Tonga’s right to speak with counsel of his choice, rather than his right to speak with a Tongan-speaking lawyer or

29	At [17] herein. See also Police v Tonga, above n 3, at [88] – [89].
30	At [11] herein. See also Police v Tonga, above n 3, at [46].
31	Police v Kohler [1993] 3 NZLR 129 (CA) at 133.

Tongan lawyer per se. Given the lack of challenge to Mr Tonga’s level of English comprehension, I agree that this is the appropriate way to frame the question.

[30]	The Court of Appeal recently summarised the nature and extent of this obligation in Ahuja v Police:32

It is well-settled that drivers must be afforded their fundamental right to consult a lawyer when detained for the purposes of carrying out the statutory breath and blood testing procedures under the Land Transport Act. The opportunity may be limited but it must be reasonable in all the circumstances. In Ministry of Transport v Noort, Hardie Boys J emphasised the importance of the right to legal advice in maintaining the freedom and dignity of the individual against the power and authority of the State. He pointed out that it was wrong to perceive the lawyer as impeding law enforcement or hindering the administration of justice. On the contrary, responsible lawyers are part of the process and facilitate it.

Subject to reasonable and practical limitations consistent with the statutory scheme, drivers are entitled to consult a lawyer of their choice. This is based on the social value of freedom of choice and the importance of there being no interference by the State in the private and professional relationship that exists between a lawyer and client.

Reasonable steps must be taken to facilitate the exercise of the right in a real and practicable way. In Rae v Police, decided in 2000, this Court held that where a motorist communicates a wish to consult a lawyer, this should be facilitated by supplying a telephone, providing a telephone book or list of lawyers willing to give advice to detained motorists and providing reasonable privacy. The practical equivalent today might be access to online sources such as the Register of Lawyers maintained by the New Zealand Law Society.

(footnotes omitted).

[31]	In Ahuja the Court found that in circumstances where the appellant had named a lawyer, reasonable steps to facilitate would have included “obtaining the named lawyers telephone number from the Internet or  the  register  of  lawyers  on  the  New Zealand Law Society website”.33 That was not the case here, where it is not disputed Mr Tonga did not advise Constable Poi of the identity of the Tongan lawyer he had in his mind. As a result, and as Judge Clark noted, the fact situation was much closer to that in Tallentire v Police34 rather than Ahuja.35 In any event any further discussion about lawyers, Tongan speaking or otherwise, was brought to an end when

32	Ahuja v Police [2019] NZCA 643 at [18]-[20].
33	At [21].
34	Tallentire v Police [2012] NZHC 1546.
35	Police v Tonga DC Manukau CRI-2017-092-013352, 23 May 2019 at [92].

Mr Tonga told Constable Poi not to worry about contacting a lawyer. In those circumstances I agree with Judge Clark that Constable Poi had discharged his obligation to facilitate counsel for Mr Tonga.

[32]	As the Court in Mallinson noted that “anyone complaining of a breach of the Bill of Rights Act must, as the Canadian Courts say, invest the complaint with an air of reality”.36 I do not consider Mr Tonga to have done so here and the second limb of the appeal must also fail.

[33]	Even if I am wrong, as Mr Toebes noted, the Court in Ahuja was clear that if the failure to facilitate had been the only breach of the Bill of Rights the evidence resulting from the evidential breath test would not have been excluded.37   Given    Mr Tonga did not advise Constable Poi of the name of any lawyer, any failure to facilitate in this case could not be any more serious than the initial breach in Ahuja, and as a result the exclusion of the evidence would have been disproportionate to any impropriety.

Decision

[34]	The appeals against conviction and sentence are dismissed.

Powell J

36	R v Mallinson [1993] 1 NZLR 528, (1992) 8 CRNZ 707 at 531.
37	Ahuja v Police [2019] NZCA 643 at [35].