Judge Stephen O'Driscoll: "If lawyers do not want to participate in the [PDLA] scheme and be readily accessible then they should not have their names on the list."

A judge has told Christchurch lawyers to answer their phones after a drink-driving case was thrown out of court when the defendant couldn't get legal advice.

The case is one of several this year to highlight problems with the Police Detention Legal Assistance (PDLA) service; a voluntary scheme which lawyers say is under-funded and under-resourced nationwide.

Some said they often received calls from other cities after police had exhausted the local contact list. In one case an officer made 11 calls to nine different lawyers to no avail.



The PDLA is a roster of lawyers who offer free legal advice to people in police detention. Much of the work comes from people picked up for drink-driving and considering evidentiary breath or blood tests.

IAIN MCGREGOR/STUFF Canterbury Law Society president Craig Ruane emailed PDLA members to remind them of their responsibilities.

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One such case involved John Andrew Fraser, who was charged with drink-driving in September last year. After a breath screening test and reading Fraser his rights, police called eight lawyers on the Christchurch PDLA roster. None answered.

Fraser provided an evidentiary breath-alcohol test, which was over the allowable limit, and was then informed of his right to consider submitting to a blood test. He said he wanted a lawyer, but police did not try calling any more.



Judge Stephen O'Driscoll​ dismissed the case in April. While police efforts to contact a lawyer before Fraser's breath test were "clearly" sufficient, failing to try any more after the breath test was not.

"Police should have attempted to have made contact with at least one other lawyer in order for the defendant to get advice about that blood test, then the facilitation would have been complied with," the judge said in his decision.

STUFF Legal advice in drink-driving cases forms the bulk of the PDLA's work.

"I do not think that it would have been unreasonable to have made one further attempt to have contacted one other lawyer."

The judge went further, forwarding his decision to the Canterbury branch of the Law Society. "I think that it is incumbent on the Law Society to ensure that lawyers who have their names on the list . . . are readily accessible."

Canterbury branch president Craig Ruane, who is on the PDLA roster, sent an email to the rest of the lawyers on the list.

"I basically said, if you're on the roster you should be available unless there's a reasonable basis not to be. Not wanting to be phoned by a drunk in the middle of the night isn't a reasonable basis. If you don't want [that] you should come off the roster."

Several lawyers had since dropped off the list, which only put more pressure on those remaining, Ruane said.

"[The] fundamental issue is it's actually quite onerous to be on the scheme. The rewards aren't great and you get the calls in the middle of the night.

"Sometimes after three or four calls you just get sick of it, to be blunt, and you turn your phone off."

PDLA lawyers were paid $35 for every call they took, Ruane said, but there was no guarantee they would be assigned the case if it went to legal aid. The problem had been raised nationally with the New Zealand Law Society's criminal committee, he said.

"I know that it's a problem that's not just confined to Canterbury."

Resources could be boosted if lawyers from the Public Defence Service (PDS), which handles about half of all legal aid cases nationwide, were added to the roster, he said.

Ministry of Justice spokesman Matt Torbit​ said PDS lawyers were initially excluded from PDLA rosters because of concerns from the private bar that they would take away too much work.

"We are looking at how we can ensure access to PDLA lawyers, at all hours, and are talking with the profession about this. The possibility that some appropriately qualified PDS lawyers will make themselves available to assist is something that is being looked at. In the past, PDS lawyers have made themselves available when needed for PDLA duties."

Availability issues arose "from time to time", usually regarding drink-driving cases in the early hours of the morning, Torbit said.

Christchurch barrister Liz Bulger said she had taken after hours calls from police in Wellington and Dunedin, after they could not reach a local PDLA lawyer.

"The problem is that often these things happen in the dead of night . . . and if you're asleep you're asleep.

"It is an access to justice issue. People should have access and access is paid for. But you're also balancing ordinary people's lifestyles and sleep patterns and general availability."

Bulger said she would get 10 to 15 calls a month and miss another six to 10. She took five calls from Christchurch police last Saturday night.

"One guy said to me, 'How long do I have to talk to you before all the alcohol is gone from my system?' "