Ferris v Police
[2013] NZHC 456
•12 March 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-14 [2013] NZHC 456
BETWEEN STEVEN BREMNER FERRIS Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 5 March 2013
Counsel: J Mooney for Appellant
A Longdill for Respondent
Judgment: 12 March 2013
JUDGMENT OF KATZ J
In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment with a delivery time of 4.30 p.m. on 12 March 2013.
Solicitors: Crown Solicitor, Auckland – [email protected]
Public Defence Service, Auckland – [email protected]
FERRIS V NEW ZEALAND POLICE HC AK CRI-2013-404-14 [12 March 2013]
Introduction
[1] The appellant, Steven Ferris, was charged under the Land Transport Act 1998 (“LTA”) with failing to permit a blood specimen to be taken. He was found guilty by Judge McAuslan in the District Court. He now appeals his conviction on the grounds that:
(a) The officer did not have good cause to suspect that Mr Ferris was under the influence of drugs at the time he required him to undertake a compulsory impairment test pursuant to s 71A of the Act.
(b) The requirements of s 71A(2) of the LTA were not complied with.
The basis for this argument was that when Mr Ferris and the police officer were still at the roadside, the officer did not formally require Mr Ferris to accompany him to the police station for the compulsory impairment test. Rather, the test was administered at the station after Mr Ferris had been arrested on other matters.
[2] Both these arguments were advanced unsuccessfully in the District Court.
The facts
[3] Constable Painter gave evidence in the District Court that he was on duty in Papatoetoe on 12 May 2012 when he witnessed Mr Ferris approaching traffic lights in his car. Constable Painter believed that the lights were yellow when Mr Ferris approached and that Mr Ferris continued on through the intersection on a red light. He also recalled the car moving slightly from one lane to another.
[4] Constable Painter put his lights on and pulled Mr Ferris over. Constable Painter’s evidence in chief was that the driver (Mr Ferris) got out of the car immediately and spoke to him. There were two passengers in the vehicle. On cross- examination it was put to the officer that the driver’s window was open and he
actually spoke to Mr Ferris through the driver’s window. While he could not exclude
that possibility, Constable Painter’s recollection was as follows:
No I think he got out straight away because I remember when I was doing the alcohol test he was standing in front of me. Usually if I do that test it’s through the window and I didn’t do that. …
[5] Mr Ferris gave his identity as Steven Fields and the officer administered a breath test. Mr Ferris passed the breath test, but the identity details he provided were false. The officer then arrested him for giving false details. The officer’s evidence was that when he arrested someone for providing false details he would generally lock the car up and take the keys with him “so the car doesn’t disappear in case there’s a further issue”. However, he confirmed in cross-examination that he couldn’t “absolutely, 100%” say that is what he did on this occasion.
[6] Constable Painter drove Mr Ferris to a couple of addresses where Mr Ferris said people would know him, in an unsuccessful attempt to get his correct details. Eventually Constable Painter discovered Mr Ferris’s correct identity, which revealed that he was forbidden from driving. The officer then arrested him for that offence as well. The officer then rang his sergeant and returned to the scene, as he had to impound the vehicle. By this stage Mr Ferris had been travelling around in the back seat of Constable Painter’s patrol car for about an hour. Constable Painter confirmed in evidence that he had not smelt any cannabis on Mr Ferris during that period.
[7] Sergeant Gasson, who also gave evidence, arrived at the scene and Mr Ferris began removing his possessions from the vehicle. Constable Painter could not recall whether the two passengers were still there when he returned, and reiterated that his normal practice was to lock the car up and take the keys with him. Sergeant Gasson could recall Mr Ferris and one other person being at the scene when he arrived. Constable Painter said that he leaned into the vehicle at this stage. At the point his head was actually in the car he smelt cannabis. Sergeant Gasson also smelt cannabis. They therefore conducted a search pursuant to s 18(2) of the Misuse of Drugs Act
1975. A couple of cannabis roaches were located. Mr Ferris advised the officers that the roaches were not his and it was not his car.
[8] Further enquiries established that Mr Ferris was also in breach of bail. He was arrested for that offence also and taken to the Manukau Police Station. At the station he was required to undergo a compulsory impairment test. Only a preliminary assessment could be performed initially, as a specially qualified officer was required to undertake a full assessment.
[9] Sergeant Gasson was that specially qualified officer, and he produced the Compulsory Impairment Test Roadside Assessment into evidence. The “observations of driver” included in the assessment form noted that Mr Ferris’s speech was slow and his eyes were bloodshot. He was also described as restless, anxious and irritable. The form recorded that at 6.39 p.m. Sergeant Gasson gave the following direction to Mr Ferris:
I now require you to remain/accompany me to the Manukau Police Station or other such place for the purpose of a compulsory impairment test, blood test, or both.
[10] Mr Ferris was, however, already at the police station when this statement was made, having been arrested and taken there in respect of the other matters referred to above. Sergeant Gasson was not satisfied that any of the three phases of the compulsory impairment test were completed satisfactorily. He therefore required Mr Ferris to provide a blood sample. Mr Ferris refused, giving rise to the conviction which is the subject of the current appeal.
The law
[11] The LTA was amended in 2009 to give the police powers to deal with the problem of people driving under the influence of drugs. It is an offence to drive while impaired and with evidence in the bloodstream of a qualifying drug. The presence of a qualifying drug alone is not sufficient for an offence; there must first be impairment as demonstrated by unsatisfactory performance of the compulsory impairment test.
[12] Where a police officer has “good cause to suspect” that a driver has consumed a drug or drugs, the officer may require the driver to undergo a
compulsory impairment test.1 A compulsory impairment test includes an eye assessment, a walk and turn assessment and a one leg stand assessment.
[13] If the driver does not satisfactorily complete the compulsory impairment test, the police officer may require the driver to provide a blood sample.2 The driver commits an offence if he or she fails or refuses to permit a blood specimen to be taken after having been required to do so.3
[14] The procedure for taking a blood sample is the same as for drink drivers who opt for a blood test. The penalties for drug impaired driving are aligned with the penalties for drink driving offences.
First ground of appeal: No good cause to suspect
[15] The first ground of appeal is a factual one. Mr Ferris says the officer did not have good cause to suspect that he had consumed a drug or drugs.
District Court findings
[16] The Judge concluded that given the manner of Mr Ferris’s driving, the smell of cannabis from the vehicle, and the fact the alcohol assessment was negative, the officers were of the view he must be under the influence of something. Good cause to suspect was established.
Appellant’s submissions
[17] Counsel for Mr Ferris summarised the argument on appeal in the following way:
It is submitted that the Learned District Court Judge erred in finding that the police had reasonable cause to suspect that Mr Ferris had consumed a drug or drugs. This is founded on the evidential uncertainty of whether other people had been in the vehicle during the hour in which Constable Painter was transporting Mr Ferris around South Auckland, and whether those other
1 Land Transport Act 1998, s 71A.
2 Ibid, s 72.
3 Ibid, s 60.
people could have been responsible for the smell of cannabis in the vehicle upon Constable Painter’s return. The proposition is strengthened it is submitted, by Constable Painter’s concession that he did not smell cannabis while arresting and accompanying Mr Ferris during that hour, and that cannabis was only smelt in the vehicle upon return. Further to this is Constable Painter’s concession that he may first have spoken to Mr Ferris through the driver’s window … It is submitted that it would be a reasonable inference to make that if cannabis had been consumed in the vehicle prior to it being initially stopped, that Constable Painter would firstly have smelt it when speaking to Mr Ferris through the driver’s window, and secondly would have smelt it on Mr Ferris’s person while arresting him, and transporting him around South Auckland for an hour in his patrol car.
Relevant law
[18] The test for “good cause to suspect” was set out by the Court of Appeal in
Police v Anderson:4
In principle, I can see no reason at all why a Court should require anything more than the ordinary standard of proof in judging the evidence of the traffic officer that the objective facts observed by him justified him requiring the driver to submit to a breath test. All that is required, in my opinion, are circumstances showing that the traffic officer had reasonable grounds for suspecting that the person he was interviewing was the worse for liquor. Common sense requires that in judging that from his physical senses alone, the officer is entitled to be influenced by the conduct of the suspect and in particular the way he has observed him to drive. The test of course is an objective one, but I do not for a moment accept the view that the evidence must reach a "high standard" of proof.
[19] As to what constitutes a suspicion, Neazor J stated in R v Thompson:5
The requirement of good cause to suspect, which is the criterion of arrest under s 315(2)(b) of the Crimes Act, is not the same as “reasonable ground for believing” which is the criterion for the issue of a search warrant under s 198 of the Summary Proceedings Act 1957. The two standards are different and cause to suspect is the lower of the two — Seven Seas Publishing v Sullivan [1968] NZLR 663, R v Grace [1989] 1 NZLR 197 (CA) and R v Sanders [1994] 3 NZLR 450 (CA). In the first case McGregor J referred to the SOED definitions of both words:
“To ‘suspect’ is to imagine something evil or undesirable, or on slight or no evidence to imagine or fancy something wrong, to imagine or fancy something to be possible or likely. To imagine something, especially something evil, is possible:”
To “believe” is to have evidence or faith and consequently to rely upon, to give credence to, to believe in its existing or occurrence.
4 Police v Anderson [1972] NZLR 233 at 242-243 per North P.
5 R v Thompson (1995) 13 CRNZ 546 (HC) at 12-13.
Discussion
[20] Evidence which supported Constable Painter’s “good cause to suspect”
included:
(a) Mr Ferris entering an intersection on a yellow light and continuing through the intersection on a red light, with the car moving slightly from one lane to another;
(b)Mr Ferris immediately getting out of the car when stopped, rather than speaking to the officer through the driver’s window;
(c) the smell of cannabis which Constable Painter noted when he leaned into the vehicle on his return, which was also confirmed by Sergeant Gasson;
(d)Mr Ferris’s speech was slow, his eyes were bloodshot, and he appeared to be restless, anxious and irritable; and
(e) the somewhat unusual behaviour of Mr Ferris giving false details to Constable Painter, but then taking the officer to places, such as his work place, where there would be people who would know who he was.
[21] The defence scenario that cannabis may have been consumed by other people in the car while Mr Ferris was with Constable Painter in his patrol car cannot be excluded. However, the standard of proof for “good cause to suspect” is not “beyond reasonable doubt”. As outlined in the cases I have referred to above, the standard is significantly lower than that. The prosecution does not need to prove that Mr Ferris had consumed cannabis. Rather, the issue is whether the officer had good cause to suspect that Mr Ferris had consumed cannabis. The facts outlined above are sufficient to found such a suspicion. Taking all of those matters together I am satisfied there was “good cause to suspect” that Mr Ferris was under the influence of
cannabis. I therefore find no basis for interfering with the Judge’s factual finding on
this issue.
Second ground of appeal: Alleged non-compliance with s 71A(2) of the LTA
[22] The second ground of appeal is on a point of law. Counsel for Mr Ferris submitted that the Judge erred in finding that the officer did not have to formally require Mr Ferris to accompany him to the Manukau Police Station to undergo the compulsory impairment test at the time the officer’s good cause to suspect arose (which was at the roadside). Rather, and somewhat artificially, a “direction” to accompany the officer to the police station was made when Mr Ferris was already at the station, having been arrested and taken there on the other matters referred to above.
[23] The Judge held that essence of the requirement to accompany the officer to the police station in s 71A(2) of the Act is simply to provide a lawful basis for a person not under arrest to be required to go to the police station for the necessary steps to be followed. Because Mr Ferris had been arrested on other matters, that step was unnecessary on the facts of this case.
Relevant law
[24] Section 71A(1) and (2) provides as follows:
71A Requirement to undergo compulsory impairment test
(1) An enforcement officer may require any of the following persons to undergo a compulsory impairment test given by an enforcement officer trained to give the test if the enforcement officer has good cause to suspect that the person has consumed a drug or drugs:
(a) a driver of, or a person attempting to drive, a motor vehicle on a road:
(b) a person whom the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:
…
(2) An enforcement officer may require a person specified under subsection (1) to—
(a) remain in the place where stopped, for a period of time that is reasonable in the circumstances, to undergo the compulsory impairment test; or
(b) accompany an enforcement officer to another place to undergo the compulsory impairment test if it would enhance road safety, personal safety, the person's privacy, or the giving or taking of the test.
[25] Mr Ferris has submitted that the Supreme Court decision in Birchler v Police,6 interpreting s 69 of the LTA, is applicable by analogy. In that case a police officer unlawfully detained Mr Birchler by taking him to the police station for an evidential breath test without first formally requiring him to accompany her to the station under s 69. Belatedly, she tried to remedy that default by making a formal direction under s 69, despite the fact that Mr Birchler was by that time unlawfully detained at the station.
[26] A breach of s 69(1) was established, because the requirement to accompany was not formally made to Mr Birchler until after arriving at the station. Birchler is quite different to the present case however. In this case Mr Ferris was lawfully arrested for providing false particulars, driving while forbidden and breaching bail. He was therefore in lawful custody at the police station when the compulsory impairment test was administered. Unlike Birchler, there was no unlawful detention.
[27] Section 71A(2) is permissive, not mandatory. It provides an officer with the power, in the event that it is needed, to require a driver to either remain at the roadside to undertake a compulsory impairment test or accompany the officer to another place to do so, if the interests of safety or privacy indicate that would be preferable, or it would enhance the giving or taking of the test.
[28] In this case the reason Mr Ferris was taken to the police station was because he had been arrested on other matters, not because of the interests of safety or privacy required it, or because being at the station would enhance the giving or taking of the compulsory impairment test. Mr Ferris was lawfully detained and
taken to the station due to his arrest on other matters. There was therefore no need for the officer to exercise his powers under s 71A(2) on this occasion.
[29] If I am wrong in that conclusion, in my view s 64(2) of the LTA (the
“reasonable compliance”) section would apply. It provides that:
(2) It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.
[30] The Crown relied on the decision of Venning J in Tule v Police as being analogous.7 Like Birchler it was a case under s 69 rather than s 71A. In Tule, an officer observed Ms Tule swerving her car dramatically as she drove. The officer followed Ms Tule until she came to a stop outside a party. The officer ran after Ms Tule as she tried to run into the house. He grabbed her by the arm and required her to undergo a breath screening test. Ms Tule became abusive and assaulted the officer. The officer took Ms Tule to ground and arrested her for assault. On the way to the station he advised Ms Tule of her rights and told her breath and blood alcohol procedures would follow at the station. She subsequently refused the breath testing procedures at the station.
[31] It was argued for the appellant in Tule that the procedures had not been properly followed by not formally requiring Ms Tule to accompany the officer to the police station for the purpose of an evidential breath test. Ms Tule relied on Birchler, but the Judge distinguished it, primarily on the basis that that case involved unlawful detention. Venning J stated:
[33] I accept Ms Cameron’s submission that the failure to utter the words “I require you to accompany me” when the appellant was already in police custody (having been arrested) and was being taken back to the police station is a minor procedural oversight on the part of the officer and capable of being saved under s 64(2) of the Act. In Police v Tolich [(2003) 20 CRNZ
150 (CA)] the Court of Appeal confirmed that the section must be given a liberal approach. In the present case, there can be no suggestion of prejudice
to the appellant by the failure of the officer to utter the words “I require you
to accompany me”. She was already being taken back to the station in police
custody and furthermore, was informed that breath and blood procedures would follow at the station.
[32] As noted above, in the present case it is my view that there was no need to formally require Mr Ferris to accompany the officer to the station for the compulsory impairment test in terms of s 71A(2). If I am wrong in that view, then such failure was a minor procedural oversight. Mr Ferris was lawfully detained for other offences. If there were a technical breach of s 71A(2) in such circumstances, s 64(2) would save any such breach.
[33] Accordingly, the second ground of appeal also fails.
Result
[34] The appeal is dismissed.
Katz J
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