Note Barrie v The Queen

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NOTE Barrie v R

Supreme Court of New Zealand SC88/2012; [2013] NZSC 21
15 March 2013
Elias CJ, McGrath and Chambers JJ

Criminal practice and procedure – Prisoner’s right of access to lawyer –

Drinking and driving – Whether right to counsel included foreign counsel – “Foreign lawyer” – “Lawyer” – Limitations to right – Police obligations regarding right to counsel – New Zealand Bill of Rights Act 1990, s 23(1)(b) – Lawyers and Conveyancers Act 2006, ss 6 and 21.

Human rights – New Zealand Bill of Rights Act 1990 – Detainee’s right to

counsel – Drinking and driving – Whether right to counsel included foreign counsel – “Foreign lawyer” – “Lawyer” – Limitations to right – Police obligations regarding right to counsel – New Zealand Bill of Rights Act 1990, s 23(1)(b) – Lawyers and Conveyancers Act 2006, ss 6 and 21.

[1] Daniel Barrie was convicted of failing to permit a blood specimen to be

taken contrary to s 16 of the Land Transport Act 1998. He asserts he should not have been convicted because he was denied his “right to consult and instruct a lawyer” under s 23(1)(b) of the New Zealand Bill of Rights Act 1990. He asserts that the section conferred on him a right to consult a foreign lawyer if that was his choice. This argument has been unsuccessful in three lower
courts.1
[2] While the issue of the meaning of “lawyer” in s 23(1)(b) might be a matter of general or public importance in some circumstances, it is not such a matter in this case for two reasons. First, the police, in addition to informing Mr Barrie that they held a list of lawyers he could contact without charge,
offered to let him contact his lawyer in Sydney. It was not the police’s fault that he could not remember his lawyer’s name. So the appeal is bound to fail on the facts.
[3] Secondly, Judge Ingram carefully considered, should he be wrong in his ruling that Mr Barrie’s rights had not been infringed, whether the evidence of
Mr Barrie’s refusal to permit a blood specimen to be taken should be excluded under s 30 of the Evidence Act 2006. He concluded the evidence should not be excluded, a conclusion apparently not challenged in the High Court and certainly not challenged in the Court of Appeal. In the absence of a challenge to Judge Ingram’s s 30 evaluation, the proposed appeal must fail.2

1 Police v Barrie DC Tauranga CRI-2010-070-5243, 14 January 2011; Barrie v Police HC Tauranga CRI-2011-470-6, 6 October 2011; Barrie v R [2012] NZCA 485, [2013] 1 NZLR
55.
2 Gallichan v Police [2009] NZCA 79; Birchler v Police [2010] NZSC 109, [2011] 1 NZLR

The application for leave to appeal is dismissed.

Application dismissed.

169 at [19] and [21].

CaseChat Overview and Summary

In the case of Note Barrie v The Queen, Daniel Barrie contested his conviction for failing to permit a blood specimen to be taken under section 16 of the Land Transport Act 1998. He claimed that his conviction should be overturned because he was denied his right to consult and instruct a lawyer as provided for in section 23(1)(b) of the New Zealand Bill of Rights Act 1990. Barrie argued that this right extended to consulting a foreign lawyer if that was his preference. This argument had been unsuccessful in three lower courts. The Supreme Court of New Zealand was tasked with determining whether Barrie's right to counsel included the right to consult a foreign lawyer and whether the police had properly upheld his right to counsel.

The central legal issues before the court were whether the term "lawyer" in section 23(1)(b) of the New Zealand Bill of Rights Act 1990 included foreign counsel, and if so, whether the police had fulfilled their obligations to ensure that Barrie's right to counsel was respected. The court also considered whether the evidence of Barrie's refusal to permit a blood specimen should be excluded under section 30 of the Evidence Act 2006. The Supreme Court noted that while the interpretation of "lawyer" might be of general importance, in this particular case, the police had offered to facilitate Barrie's contact with his lawyer in Sydney, and it was not the police's fault that Barrie could not remember his lawyer's name. Additionally, Judge Ingram had carefully evaluated whether the evidence should be excluded under section 30 of the Evidence Act 2006, concluding it should not be, a decision which had not been challenged.

The Supreme Court concluded that Barrie's appeal must fail for two reasons. Firstly, the police had offered to assist Barrie in contacting his lawyer in Sydney, and it was not their fault that he could not recall his lawyer's name. Secondly, Judge Ingram had concluded that the evidence should not be excluded under section 30 of the Evidence Act 2006, a decision which had not been challenged. Therefore, the application for leave to appeal was dismissed. The court did not find it necessary to address the broader issue of whether the right to counsel included foreign counsel in this specific instance.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established