Davey v Police - [2019] NZHC 2107

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-406

[2019] NZHC 2107

BETWEEN
PAUL GORDON DAVEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 23 July 2019

Counsel:

J W Clearwater for Appellant M J Mortimer for Respondent

Judgment:

27 August 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 27 August 2019 at 4:00 pm Registrar/Deputy Registrar

Solicitors:
Clearwater & Associates (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

DAVEY v POLICE [2019] NZHC 2107 [27 August 2019]

Introduction

[1] Mr Davey appeals convictions entered by Judge J Jelas on one charge of refusing to permit a blood specimen to be taken1 and one charge of resisting police.2

[2] The nub of the appeal is that it was the police officer involved who acted unlawfully, not Mr Davey.

[3] My task is to assess whether a miscarriage of justice has occurred. In doing so, I must reach my own view of the evidence, bearing in mind any advantage Judge Jelas had through actually seeing the witnesses.3

Background

[4] There is evidence to the following effect: A car was seen driving erratically by a member of the public. The police were informed. Constable Keating was directed to investigate. A short time later he found the car parked in a driveway of a suburban home. The constable parked his police car in the street and walked up the driveway towards the car. Mr Henry, the tenant of the garage on the property (converted to a dwelling), was present. Constable Keating asked him whether he knew the driver of the car. Mr Henry’s reply was to the effect he did not know the driver, but he knew the owner. Mr Henry indicated Mr Davey who was standing nearby. Constable Keating spoke to Mr Davey and Mr Davey admitted being the driver of the car. However, Mr Davey challenged Constable Keating’s right to be on the property by repeatedly asking him whether he had a search warrant.

[5] There is controversy over the order of events, and what was actually said, but at some stage Constable Keating required Mr Davey to undergo a breath screening test. Mr Davey refused, and refused to accompany the police officer for the purpose of undergoing an evidential breath/blood test. Constable Keating arrested Mr Davey and Mr Davey resisted being arrested by stiffening his body and refusing to walk.

1      Police v Davey [2018] NZDC 20673; and Land Transport Act 1998, s 60(1)(a).
2      Summary Offences Act 1981, s 23(a).
3      Sena v Police [2019] NZSC 55.

[6] Mr Davey was a visitor to the property. One tenant of the property (Mr Henry was a sub-tenant) was Mr Davey’s ex-partner. She was absent. Mr Davey had taken to spending weekends at the property with the consent of his ex-partner. Also present was the 15-year-old daughter of Mr Davey and his ex-partner, Ms Brooke Davey. Ms Brooke Davey lived at the address and was also involved…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2107
Decision Date: 27 August 2019

CaseChat Overview and Summary

Paul Gordon Davey appeals his convictions of refusing to permit a blood specimen to be taken and resisting police, arguing that it was the police officer involved, Constable Keating, who acted unlawfully, not him. The appeal hinges on whether Constable Keating was lawfully on the property when he required Davey to undergo a breath screening test and subsequently arrested him for refusing to do so. The court must consider whether the implied licence Constable Keating had to be on the property was revoked by Davey or Ms Brooke Davey, the daughter of a tenant, before he exercised his coercive powers.

The court finds that Davey, a regular guest of the tenants, had the right to cancel Constable Keating's implied licence to be on the property. Davey's repeated questioning of Constable Keating's authority to be there, by asking if he had a search warrant, was a clear instruction for him to leave if he did not have legal authority to be present. Furthermore, Ms Brooke Davey, who lived on the property and was left in charge by her mother, also had the power to tell Constable Keating to go. Although Constable Keating initially had the tacit permission of Mr Henry, a sub-tenant, to be on the property, this permission was limited to speaking to Davey about the car. When Mr Henry left the scene, he either left the question of Constable Keating's presence to Davey and the constable or did not expect the constable to do more than make inquiries of Davey. Therefore, when Davey and Ms Brooke Davey objected to Constable Keating's presence, their implied direction that he go should have been effective.

Consequently, Constable Keating was not entitled to exercise his coercive powers, making his arrest of Davey unlawful. The charge of refusing to permit a blood specimen to be taken cannot be sustained as it requires Constable Keating to have had the lawful right to require Davey to undergo a breath screening test. The appeal is allowed, and the charges are dismissed. There will not be a re-trial.

Orders