Dryden v Police
[2016] NZHC 92
•5 February 2016
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
CRI-2015-483-000026 [2016] NZHC 92
BETWEEN KEMP MATTHEW DRYDEN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 3 February 2016 Counsel:
C P Brosnahan for Appellant
N A Refoy-Butler for RespondentJudgment:
5 February 2016
JUDGMENT OF COLLINS J
Introduction
[1] I am dismissing Mr Dryden’s appeal against his conviction for driving with excess breath alcohol on 5 June 2015.1 Mr Dryden was convicted by Judge McGuire on 3 November 2015 in the Whanganui District Court.2
Background
[2] Mr Dryden failed a breath screening test when sitting in a police car near the McDonald’s restaurant in Taupo on 15 June 2015. He was taken to the Taupo Police Station where he failed an evidential breath test. Mr Dryden declined the option to
have a blood sample taken.
1 Land Transport Act 1998, s 56(1).
2 Police v Dryden [2015] NZDC 2245.
[3] The issue on appeal is whether Mr Dryden was unlawfully detained in the police vehicle at the time of the breath screening test and whether Judge McGuire erred when he held the evidence of the breath screening test, and all subsequently obtained evidence, was admissible under s 30 of the Evidence Act 2006 (the Evidence Act).
The District Court decision
[4] Judge McGuire heard evidence from a worker at McDonald’s. She described Mr Dryden arriving at the drive-through counter to order food at about 1.00 am. Mr Dryden was beeping his horn and slurring his words. After directing a series of abusive comments at the restaurant worker, Mr Dryden was told he would not be served food and he was told to drive off. Mr Dryden responded by parking his car in the drive-through lane thereby impeding other customers. The restaurant worker called the Taupo Police Station and a few minutes later two police officers arrived. She said the police officers told Mr Dryden to get out of his car and then took him away.
[5] Judge McGuire heard from Constable Jones. He said his partner, Constable Little, approached Mr Dryden when they arrived at the McDonald’s restaurant. Constable Little directed Mr Dryden to get out of his vehicle and make his way to the police car parked approximately five to ten metres away. Once Mr Dryden made his way over to where Constable Jones was standing, a passive breath test took place. The result showed alcohol to be present and so a breath
screening test was carried out.3 The result was over 400 micrograms of alcohol per
litre of breath. Mr Dryden was then required to accompany both police officers to the Taupo Police Station to carry out an evidential breath test, blood test or both.4
Mr Dryden was informed of his rights under the New Zealand Bill of Rights Act
1990. Constable Jones said Mr Dryden was verbally uncooperative and made the evidential breath screening procedure difficult.
[6] Mr Dryden spoke to a lawyer at 2.15 am for 15 minutes. Mr Dryden interfered with the evidential breath testing device by turning it off before it was
3 Land Transport Act 1998, s 68.
4 Section 69.
used and produced a reading of 740 micrograms of alcohol per litre of breath. Mr Dryden spoke again to a lawyer for approximately 15 minutes and opted against a blood test. His behaviour was described as “obnoxious” and “condescending”. Mr Dryden was then issued with a traffic offence notice forbidding him to drive for
12 hours and his licence was also suspended for 28 days.
[7] Mr Brosnahan, counsel for Mr Dryden, submitted to Judge McGuire that there was no case to answer. He submitted that s 68 of the Land Transport Act 1998, which empowers an officer to require certain persons to undergo a breath screening test without delay, does not include a power of detention. Requiring Mr Dryden to leave his vehicle to go to the police officers’ vehicle to undergo a breath screening test involved an element of detention. Mr Brosnahan relied on the decision of
Nicholson J in Excell v Police.5
[8] Judge McGuire concluded an unlawful detention had taken place. He then turned to s 30 of the Evidence Act and the balancing exercise required to determine whether excluding the evidence of the breath screening test and subsequent evidence was proportionate to the impropriety. Judge McGuire weighed s 30(3) matters, concluding that:
(1) the wrongful detention was deliberate but not done in bad faith; (2) the offence was moderately serious;
(3) the breach of the right need not have occurred;
(4)there are no obvious alternative remedies to the exclusion of the evidence;
5 Excell v Police HC Tauranga AP 75/01, 29 April 2002. In that case, one of two cars in a collision left the accident scene. Mr Excell was the driver and the police officer went to his house, suspecting the consumption of alcohol. The police officer required Mr Excell to accompany him to his car parked on the roadside. Nicholson J held that in the absence of a specific statutory power to do so, the officer was in breach of s 22 of the New Zealand Bill of Rights Act 1990.
(5) the impropriety may have been necessary to avoid apprehended physical danger to others; and [9]
(6)
Judge
there was some urgency.
McGuire noted further that the attending officers were simply
attempting to “restore normality” to the location at the McDonald’s restaurant.
[10] Mr Dryden was convicted in relation to the charge and fined $700, Court costs of $130, and disqualified from holding or obtaining a driver’s licence for a period of six months.
Legal principles governing an appeal
[11] This appeal is governed by s 232 of the Criminal Procedure Act 2011. The appeal can be allowed only if Judge McGuire erred in his assessment of evidence to such an extent that a miscarriage of justice has occurred, or if for any other reason a miscarriage of justice has occurred.6
[12] A miscarriage of justice is defined to mean:7
… any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[13] The test contained in s 232 of the Criminal Procedure Act involves, in part, an assessment of whether Judge McGuire made an error of such a nature that there is a real risk that the outcome of the trial was affected.
[14] An appeal against conviction proceeds by way of rehearing. I am therefore required to carefully consider all matters that were before Judge McGuire, but
ultimately I must reach my own decision on the merits. If I conclude that
6 Criminal Procedure Act 2011, s 232(2)(b) and (c).
7 Section 232(4).
Judge McGuire was wrong I must act on my own view of what the outcome should be.8
Discussion
[15] The point of contention in this case arises out of Mr Dryden having been “directed” to leave his car and undergo a breath screening test at the parked police car, no less than ten metres away. The issues that arise are:
(1)Whether Mr Dryden was unlawfully detained when undergoing the breath screening test so that the evidence arising was improperly obtained; and if so
(2)Whether the result of the evidential test and all subsequently obtained evidence ought to be excluded after applying the s 30 Evidence Act admissibility analysis.
Unlawful detention
[16] Mr Brosnahan agrees with Judge McGuire’s finding that the evidence was improperly obtained. The Crown however submits that the appellant was not unlawfully detained at the relevant time.
[17] Two cases preceding Excell are cited by the Crown as authority for the proposition that the request to carry out a breath screening test is a “matter of degree” and not necessarily, unlawful detention.9
[18] However, the Crown’s submissions centrally rely on the High Court decision of McCallum v Police.10 In that case, it was held that the defendant had voluntarily exited a hotel bar with a police officer after being asked to go outside for “a chat”
whereupon the defendant was required to undergo a breath screening test. The
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
9 Ambler v Ministry of Transport HC Dunedin M104/80, 19 November 1980; Ryan v Police HC Invercargill AP 53/92, 27 November 1992.
10 McCallum v Police [2014] NZHC 1135.
appellant had the ability to decline the request; but he did not do so. He was not required to go outside of the hotel meaning there was no unlawful detention.
[19] In my assessment, Mr Dryden faced a level of compulsion when he was told by Constable Little to go to where Constable Jones was standing next to the police car and was thus, unlawfully detained. He was not given an option to remain seated in his car and although he was not accompanied by a police officer, he was required to exit his car and move to the parked police car nearby. The fact that the police officer transported Mr Dryden’s car away from the drive-through further demonstrates it was not open for him to remain seated in his own car.
[20] From a practical point of view, the portable nature of breath screening devices meant that the test could have been carried out in Mr Dryden’s car. The police officers chose not to do so and Mr Dryden exited his car without a choice in the matter.
[21] There is no lawful authority under s 68 of the Land Transport Act to require a breath screening test to be carried out elsewhere. Therefore, Mr Dryden was unlawfully detained.
[22] Consequently, the evidence obtained by the police as a result of the breath screening test and subsequent conduct was “improperly obtained”. 11 This is because it was obtained in a manner that breached s 22 of the New Zealand Bill of Rights Act
1990. 12
Section 30 of the Evidence Act
[23] I must now undertake the balancing exercise specified in s 30 of the Evidence Act to determine if excluding the evidence is a proportionate response to the impropriety of the police.
[24] The proportionality analysis which I must undertake is explained in s 30(2)
and (4) of the Act. I am required to have regard to the relevant factors in s 30(3)
11 Evidence Act 2006, s 30(2)(a).
12 Section 30(5)(a).
(and any other relevant considerations) and then balance those considerations with the benefits of maintaining public confidence in an effective and credible system of justice.
[25] While not exhaustive, factors such as those listed in s 30(3) of the Evidence Act are relevant, including whether there are any alternative remedies which will be sufficient to dissociate the justice system from the impugned conduct.13
[26] Mr Brosnahan has submitted that Judge McGuire incorrectly assessed s30(3) factors and erred in finding that the impropriety did not warrant the exclusion of the evidence. The following five key points are made:
(1)the rights contained within the New Zealand Bill of Rights Act are fundamental;
(2) the wrongful detention of Mr Dryden was deliberate;
(3) the seriousness of the offence was at the lower end of the scale;
(4) the breath screening test was a portable device, creating a real
alternative for the officers to transport it to the defendant’s car;
(5) there was no urgency or apprehended danger. Mr Dryden’s actions
were merely a nuisance, rather than a threat to public safety.
[27] Having weighed the competing submissions, I come to the conclusion that
Judge McGuire was correct in his assessment of s 30(3) factors.
Importance of the right in issue
[28] I appreciate that the right against unlawful detention is an important right, as affirmed in the New Zealand Bill of Rights Act and other international instruments.14
13 Wilson v R [2015] NZSC 189 at [60].
14 New Zealand Bill of Rights Act 1990, s 22; International Covenant on Civil and Political Rights
(1966), art 9.
However, this was not a significant breach. Mr Dryden was not taken from the immediate vicinity and the distance he moved away from his car was minor.
Nature of impropriety
[29] There was no bad faith on the police. Subsequent police conduct was also carried out lawfully and with patience.
Nature and quality of the evidence
[30] The evidence which Mr Dryden challenges is strong and essential to the
Crown’s case.
Seriousness of offending
[31] Contrary to Mr Brosnahan’s submissions, I am satisfied Judge McGuire was right to conclude driving with excess breath alcohol is a moderately serious offence.15 Although Mr Dryden’s ultimate sentence was at the lower end of the range available, driving with excess breath alcohol is a serious matter.
Other investigative techniques
[32] An alternative investigatory technique was open to the police officers by way of a portable breath screening device and this could have been transported to Mr Dryden’s car. However, the decision to undergo a breath screening test away from congested traffic and members of the public was very reasonable in the circumstances.
[33] I would add that the impropriety is likely to have been necessary in the circumstances. Members of the public were being held up and it is understandable that the attending officers decided to move Mr Dryden’s car from the drive-through area and carry out the breath screening test elsewhere. The police officers were anxious to restore normality. There was thus some urgency in obtaining the
improperly obtained evidence.
15 George v Police [2014] NZHC 1725 at [25].
[34] Judge McGuire was correct to conclude that the actions of the police were “understandable and reasonable” and the need for an effective credible justice system outweighed any impropriety in this case.
[35] For completeness, I turn to Police v Swarbrick.16 In that case a similar situation arose in which the constable wrongly required a driver to accompany him from his vehicle to the police vehicle to undergo a breath screening test. It was claimed that this amounted to an arbitrary detention and that Excell applied. Judge Neave applied s 30 Evidence Act and concluded that any detention was so minor that it did not warrant subsequent evidence being ruled inadmissible. It should be noted that in that case the police car was even further away (20 metres) than in the present case (five to ten metres).
[36] Mr Dryden’s detention was minor and the police were simply attempting to restore normality to the disorder he had created. It therefore follows that the evidence obtained as a result of the breath screening test is admissible. In reaching this conclusion, I have carefully weighed the police impropriety against the relevant factors in s 30(3) of the Act, and the need to have proper regard for an effective and credible system of justice. I find Judge McGuire was correct when he held the charge had been proved beyond reasonable doubt.
Conclusion
[37] Mr Dryden’s appeal against conviction is dismissed.
[38] The sentence and orders made by Judge McGuire remain in force.
D B Collins J
Solicitors:
Roger Crowley, Whanganui for Appellant
Crown Solicitor, Whanganui for Respondent
16 Police v Swarbrick [2010] DCR 295.
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