Justice Greg Blanchard‘s appeal decision, recently made public, ruled there was a miscarriage of justice on his first argument alone relating to the phone calls and the conviction was overturned.
The appeal decision said Lawrance chose to drive home to eat after having drinks with friends on June 22 last year.
The police mistake
On the way, he was stopped by a police officer and failed a breath screening test. He was asked to undergo an evidential breath test in the officer’s patrol car.
He asked to speak to a lawyer and the conversation took place in the back of the constable’s car for safety reasons, given it was dark and other cars on the road were travelling at speed.
The police officer sat beside Lawrance while he made the calls, because he used the constable’s phone. The decision said the constable was concerned about sensitive information on his police-issued phone.
Lawrance’s evidential breath test returned a result of 868 micrograms per litre of breath, more than twice the legal limit.
The officer told Lawrance he could elect a blood test instead of accepting the result, so Lawrance asked to speak with a lawyer again. The officer remained for the second call as well.
The decision said Lawrance said it was his understanding he was told he would need to travel to Rotorua for the blood test, which he was reluctant to do as he would need to leave his father’s Jaguar on the side of the road.
The officer disputed Lawrance’s version, saying he was advised the blood test could be done in Ōpōtiki.
The decision said Lawrance felt forced to accept the evidential breath test result.
What the lawyer did wrong
When Lawrance subsequently appeared in the Whakatāne District Court, he was advised by an assigned legal aid lawyer he had no defence and should plead guilty. He did so and was convicted.
Justice Blanchard said for the appeal to be upheld, the appellant must demonstrate a genuine misunderstanding or mistake.
He said if incorrect legal advice caused a defendant to “plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced”, then this could result in a miscarriage of justice.
The appeal decision
The right to consult a lawyer in private is a requirement under the New Zealand Bill of Rights Act. Justice Blanchard said there were exceptions to the right to consult a lawyer in private, but they were limited.
Justice Blanchard said he accepted the constable genuinely believed in the circumstances he was justified in remaining in the vehicle with Lawrance.
However, he said it wasn’t justified and Lawrance should have been told to get his phone from his vehicle.
Justice Blanchard said even if the option of using Lawrance’s phone was not available and the officer’s security concerns were justified, it must have been possible for the police officer to monitor Lawrance from outside the vehicle.
“All he needed to do was watch to ensure that Mr Lawrance was holding the phone to his ear and speaking into it, as opposed to holding it in his hands and using it to view applications.”
He ruled the New Zealand Bill of Rights Act was breached and therefore the evidential breath test was improperly obtained.
He reiterated the officer did not act deliberately, recklessly or in bad faith.
Justice Blanchard said Lawrance therefore should have been advised he had a defence to the charge.
“The absence of that advice undermines the integrity of his plea and leads to a miscarriage of justice.”
Kelly Makiha is a senior journalist who has reported for the Rotorua Daily Post for more than 25 years, covering mainly police, court, human interest and social issues.
