Dennehy v Police - [2014] NZHC 1191

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2014-418-000006 [2014] NZHC 1191

MADELEINE THERESE DENNEHY

v

NEW ZEALAND POLICE

Hearing:
29 May 2014

(Heard at Christchurch)

Appearances:

D J Taffs for the Appellant (via audiovisual link) M A V Raj for the Respondent

Judgment:

29 May 2014

JUDGMENT OF PANCKHURST J

The issue

[1] Ms Dennehy appeals against a conviction for driving with an excess blood alcohol level. The sole ground advanced in support of the appeal is whether a breath screening test was properly obtained when the constable went onto the property of the appellant in order to require a breath-test. The central issue is whether the officer had an implied licence to enter the property and conduct that test.

The facts

[2] The events occurred on 2 June 2013, a little after 2.00 am in the morning. The constable was parked on the roadside of a street in Hokitika. There was a hotel nearby. He observed a car which was driven by Ms Dennehy driving down the road and proceeding into Revell Street and driving a short distance of a few houses before
turning into a driveway. In all, he observed the car on the roadway for something in

DENNEHY v NEW ZEALAND POLICE [2014] NZHC 1191 [29 May 2014]

the order of 100 metres or so. At some point the officer activated his patrol lights to indicate that he would like the car to stop. It did not, but rather drove quite slowly for the short distance before executing the left-hand turn into the driveway and stopping.

[3] The officer accepted in the course of cross-examination that there was nothing untoward in the appellant’s driving, although he did comment that the car was proceeding at a slow pace. He spoke to the appellant in the driveway after she disembarked from the driver’s side. To a question, she acknowledged that she had been drinking. He required her to provide a breath screening test without delay. It was positive. Subsequently, a blood sample was given and on analysis it returned
140 milligrams of alcohol per 100 millilitres of blood.

The District Court hearing

[4] The case was heard at Greymouth and Judge O’Driscoll conducted a voir dire concerning the admissibility of the breath screening test. He determined that the evidence was admissible. In light of the ruling Ms Dennehy entered a plea of guilty, subject to her right of appeal, and was duly sentenced. Her sentence has been deferred pending the resolution of the present appeal.

[5] The essence of the Judge’s decision is contained in paragraph 28. He said

this:1

In my view the constable was on the private property legitimately. He had followed the defendant on to the property. He was on the property in pursuit of the vehicle. He was on the property subject to the implied licence and I find that at no stage did he exceed the implied licence and at no stage was the implied licence revoked. The officer was not at…

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: [2014] NZHC 1191
Decision Date: 29 May 2014

CaseChat Overview and Summary

In the case of Dennehy v Police, Ms Dennehy appealed a conviction for driving with an excess blood alcohol level, specifically challenging whether a breath screening test was properly obtained when the constable went onto her property to require the test. The central issue was whether the officer had an implied licence to enter the property and conduct the test.

The High Court was tasked with determining the validity of the officer's entry onto Ms Dennehy's property to administer a breath screening test. The court had to assess whether the officer's entry was justified under the implied licence doctrine and whether the breath screening test was obtained legally.

The court examined the principles set out in Tararo v R, which held that members of the public, including police officers, may go to the door of private premises for any reasonable purpose, including law enforcement. The court concluded that the officer's conduct was lawful and reasonable as he had a right to engage Ms Dennehy in a lawful enquiry. The court rejected the argument that a random breath screening test should be characterised as unreasonable, finding that it did not render the officer's conduct unlawful. The decision in McDonald was upheld, which permits a police officer to enter private property to engage an occupier during a lawful enquiry.

The appeal was dismissed, affirming the conviction and sentence of Ms Dennehy. The court found that the officer's entry onto the property and subsequent breath screening test were lawful under the implied licence doctrine.

Orders