Frood v Police
[2021] NZHC 2907
•29 October 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000115
[2021] NZHC 2907
BETWEEN NIKEISHA ROSE FROOD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 October 2021 Appearances:
A J Bailey for Appellant
J H Whitcombe for Respondent
Judgment:
29 October 2021
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 29 October 2021 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Introduction
[1] The appellant, Nikeisha Frood, was convicted of driving with excess breath alcohol following a judge-alone trial before Judge Crosbie.1 She appeals her conviction on the basis that the evidential breath test reading was unlawfully obtained
1 Police v Frood [2021] NZDC 13824.
FROOD v NEW ZEALAND POLICE [2021] NZHC 2907 [29 October 2021]
and, pursuant to s 30 Evidence Act 2006, the evidence should have been ruled inadmissible.
Facts
[2] On 24 July 2020, the Police set up an alcohol checkpoint on Carlton Mill Road, Christchurch in order to check motorists’ alcohol levels. Two marked police cars were parked facing each other in the centre of the road on the flush median. The red and blue flashing lights on the cars were operating and there were signs to indicate there was a checkpoint in place. Police officers stood on the flush median, between the cars wearing high visibility vests, and from there they signalled to drivers to stop for the checkpoint.
[3] At about 11 pm Ms Frood was driving on Carlton Mill Road and approached the checkpoint. When an officer signalled for her to stop she continued driving. Constable Hemi Wallace moved from his position in the middle of the road, got in to his unmarked police vehicle that was parked on the side of the road, and followed her. He signalled for her to pull over by activating red and blue flashing lights. Ms Frood complied.
[4] Ms Frood admitted to having five beers that evening and said she was on her way home from a quiz night. An alcohol breath test gave a result of 600 micrograms of alcohol per litre of breath which exceeded the legal limit of 250 micrograms. Ms Frood was charged accordingly.
[5] Ms Frood appeals her conviction on the grounds that the police checkpoint was illegal as it was in breach of r 6.7 of the Land Transport (Road Users) Rule 2004.2 She says there was a causal connection between the illegally located checkpoint and her subsequent apprehension and breath testing. Consequently, the evidence was improperly obtained and should be excluded, even after considering the balancing exercise in s 30 of the Evidence Act.
2 Although the appellant originally said it was also in breach of r 6.1 that argument is not advanced on appeal.
Principles on appeal
[6] This Court may only allow an appeal against conviction if satisfied that the Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.”3 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.4 In this section, a trial includes a proceeding in which the appellant pleaded guilty.5
[7] The appeal proceeds by way of rehearing and this Court is required to form its own view of the facts.6 If this Court reaches a different view on the evidence, it follows the trial judge necessarily will have erred and the appeal must be allowed.7 The onus is on the appellant to show that an error occurred.
The law
[8]The relevant rule in the Land Transport (Road User) Rule 2004 (the Rules) is:
6.7 Parking on traffic islands and flush medians
A driver or person in charge of a vehicle must not stop, stand, or park the vehicle on a traffic island or flush median.
[9] There is an exception to liability for breach of that rule contained in r 1.8. That rule relevantly provides:
1.8 General exceptions
…
(3)A person is not in breach of this rule if that person proves that the act or omission complained of—
…
3 Criminal Procedure Act 2011, s 232(2)(b).
4 Section 232(4).
5 Section 232(5).
6 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].
7 At [38].
(b)in the case of an act or omission done by an enforcement officer or a parking warden, was necessary in the execution of the person’s duty.
…
District Court decision
[10] Judge Crosbie found there were three issues to be determined. First, did Constable Wallace breach the relevant Rules? Secondly, if he did, does the exemption in r 1.8 apply? Thirdly, if the exemption does not apply, should the evidence be excluded under s 30 Evidence Act?
[11] The Judge found that Constable Wallace did not breach r 6.7 which prohibits parking on flush medians because the exemption in r 1.8 applied. The Judge noted there was no real question that police checkpoints were generally necessary. He also held the way the checkpoint (which was described as a micro-checkpoint) was set up was necessary. The Judge noted had the vehicles been parked on the side of the road, the officers would have been deprived of protection from oncoming traffic. There was a risk of vehicles failing to stop at the checkpoint, like Ms Frood did, which posed a danger to the officers at the checkpoint, particularly at night. The minor breach of r 6.7 “provided a safe way for the officers to conduct a micro-checkpoint”.8
[12] The Judge also rejected the submission that there was a link between the alleged breach of r 6.7 and the obtaining of the evidence. He said the evidence was not obtained at the checkpoint, but when Constable Wallace subsequently pulled Ms Frood’s vehicle over and where all that followed was “legitimate”.9
[13] In the event he had erred in finding the evidence was not improperly obtained, he went on to consider whether the evidence should be excluded under s 30 Evidence Act. In considering the balancing exercise, he noted there had not been any obvious breach of Ms Frood’s rights, any impropriety was very slight, the offending was a moderately serious offence, and the impropriety was necessary for the physical safety
8 Police v Frood, above n 1, at [32].
9 At [25].
of the police officers. On balance, the Judge was satisfied that excluding the evidence would not be proportionate to the impropriety.
[14] The Judge found the evidence was admissible and Ms Frood’s conviction was inevitable.
Submissions
Appellant’s submissions
[15] Ms Frood’s position on appeal is the checkpoint on Carlton Mill Road was in breach of r 6.7 because the police vehicles were parked on the flush median and they could not demonstrate that it was “necessary” to do so. The illegal checkpoint led to her being stopped and breath tested and the evidence obtained was therefore inadmissible.
[16] Mr Bailey submits the District Court Judge failed to explain why checkpoints themselves are necessary. The fact that checkpoints are used by the police and may be an “important tool” does not render them necessary. He says that in applying and interpreting the word “necessary” as it appears in cl 1.8, it is important not to overlook that the clause excuses otherwise unlawful conduct. Mr Bailey submits there are reasonable alternative options to checkpoints, including signalling or requesting drivers to stop pursuant to s 114(2) Land Transport Act 1998. Similarly, testing can be undertaken if the police attend an incident such as an accident.
[17] Even if checkpoints are necessary it does not follow that parking the vehicles on the flush median was necessary in this particular case. Mr Bailey submits the availability of alternative checkpoint set-ups suggest it is not necessary to utilise such a setup. Further, the police do not have ownership of the roads and free range to park vehicles in the middle of the roads at any time. Mr Bailey challenges the necessity of setting up a checkpoint on a non-arterial road at night. He suggests that the utilisation of such checkpoints is a matter of convenience for police, rather than necessity.
[18] Mr Bailey submits the vehicles could have been parked in a lawful way and provided just as much protection to the officers. He submits his research shows that
the use of police vehicles parked in the middle of roads is not customary practice. Accordingly, in Mr Bailey’s submission, the parking of vehicles in the middle of the road at night was not necessary.
[19] Mr Bailey submits it was the unlawful police set up that led to Ms Frood being stopped by police and undergoing breath testing procedures. Accordingly, there was sufficient causative connection between the illegality and gathering of evidence to say the evidence was improperly obtained. In his submission, the exclusion of the evidence is proportionate to the impropriety which took place.
Respondent’s submissions
[20] Mr Whitcombe, for the respondent, submits the exemption in r 1.8 of the Rules applies and the police were therefore not in breach of them. In any event, the District Court Judge found that Constable Wallace was not the driver of either of the vehicles parked on the flush median and therefore he could not be said to be in breach of the Rules. The Judge found the stop was not completed at the checkpoint where the vehicles were parked, accordingly the evidence was not improperly obtained. In the alternative, if this Court finds the police acted illegally, the evidence should nonetheless be admitted pursuant to s 30 Evidence Act.
[21] In submitting the exemption in r 1.8 applies, Mr Whitcombe refers to Whittaker v Police where the appellant challenged a speeding ticket.10 There, the police officer was seated in a patrol car on an elevated grass median area. From that position he detected the appellant exceeding the speed limit, stopped him and issued him with an infringement notice. The appellant contended the officer was parked on the elevated median in breach of the Rules. Gendall J held that the finding in the lower Court that the breach was necessary, was a finding that it was entitled to make. In any event, if illegally obtained, the evidence should still be admitted as the officer’s “parking infringement in no way infringed the appellant's rights or entitlements.”11
10 Whittaker v Police HC Wellington CRI-2006-485-29, 26 May 2006.
11 At [27].
[22] In Mr Whitcombe’s submission, it is not necessary to determine whether police checkpoints are “necessary” as a matter of general policy. Here, the officers were conducting a lawful duty in testing road users for alcohol and the analysis requires a determination of whether the parking of the police vehicles on the flush median was necessary in the execution of the officer’s duties.12
[23] In relation to the s 30 Evidence Act analysis, Mr Whitcombe refers to Miller v Police saying similar considerations arise.13 There, the police officer was parked on double yellow lines when he observed the appellant engaged in street racing and the evidence was considered to be improperly obtained. However, on conducting the s 30 analysis, Whata J concluded that the evidence should not be excluded.
[24] Mr Whitcombe submits the police did not breach Ms Frood’s rights, there is no evidence the police acted in bad faith or in contravention of the regulations, nor did they present a serious safety risk to the public. Further, Ms Frood’s level of intoxication gives rise to real and serious public safety concerns. These all point to the evidence being admissible.
Analysis
Did the Police breach the Rules, and if so, does the general exemption apply?
[25] Ms Frood does not challenge the Judge’s findings that the police were not in breach of r 6.114 but pursues her appeal on the grounds they were in breach of r 6.7.
[26] Two marked police vehicles were parked on the flush median as part of the set-up for the checkpoint. It is common ground this was a breach of r 6.7 unless the exception in r 1.8 applies.
[27] I do not consider it necessary to engage in the broad question of whether checkpoints are necessary as a matter of police policy or on whether a checkpoint in this particular location was necessary. There can be no doubt that police are authorised
12 Referring to Land Transport Act 1998, s 114.
13 Miller v Police [2012] NZHC 817.
14 Which prohibits road users from parking vehicles on the road “without due care or without reasonable consideration for other road users”.
to check motorists for excess breath alcohol as long as certain rules and procedures are followed. Section 68 of the Land Transport Act 1998, makes it clear that testing may be required, not just of people who are suspected of committing offences under that Act, or who are involved in an accident, but any person driving, or attempting to drive, a motor vehicle on a road.15 In that regard, I accept the District Court Judge’s conclusion that police checkpoints are necessary to enforce pt 6 of the Land Transport Act and are an important tool in both detecting and deterring drink driving.
[28] Given it is lawful to establish checkpoints for the purpose of monitoring motorists’ alcohol levels and deterring drink driving generally, in my view the question should simply focus on whether it was “necessary” for the police to park vehicles on the flush median to carry out a checkpoint at this location.
[29] The meaning of the term “necessary” has been considered judicially, although not in this particular context. In Commissioner of Stamp Duties v International Packers Ltd and Delsintco Ltd, North J discussed the meaning of the word “necessary” and concluded:16
I am disposed to agree that the word necessary “must be given a fair construction and that it does not mean absolutely necessary” but reasonably “necessary” with reference to the circumstances of the case and the purpose of the statute under consideration.
He then cited, with approval, Sir George Jessel MR in In re Wreck Recovery and Salvage Co Ltd, where he said:17
Now the word “necessary” means that it must not be merely beneficial but something more, though the necessity must be determined by the Court, having regard to all the circumstances of the case. It does not, of course mean, that no other course would be possible.
[30] The meaning of the term “necessary” was also discussed in the Court of Appeal’s decision in Environmental Defence Society Inc v Mangonui County Council.18 Cooke P observed that “necessary is a fairly strong word falling between
15 Land Transport Act 1998, s 68(1)(a).
16 Commissioner of Stamp Duties v International Packers Ltd and Delsintco Ltd [1954] NZLR 25 (CA) at 54.
17 In re Wreck Recovery and Salvage Co Ltd (1980) 15 ChD 353.
18 Environmental Defence Society Inc v Mangonui County Council [1989] 3 NZLR 257 (CA).
expedient or desirable on the one hand and essential on the other.”19 In similar vein, Somers J said:20
The word “necessary” is one of somewhat protean dimensions. It may import something which cannot be done without, that is to say something indispensable or it may mean requisite or needful. The last two themselves embrace varying degrees of necessity.
[31] In the present case, where both the Rules and the use of alcohol checkpoints are intended to promote road safety, I do not consider the police action in breaching r 6.7 must be shown to be the only course that was available to them. Rather, I consider it requires the police to show that it was reasonably necessary to do this, particularly where, as has been conceded, it was done with due care and consideration for other road users.
[32] Constable Wallace, being the constable who ultimately breath tested Ms Frood, gave evidence in the District Court. He explained that he stood in the middle of the road, on the hatched median strip, between the two parked police patrol vehicles and from there he would signal cars to stop. In cross-examination he accepted that normal citizens would not be allowed to park on the flush median in the middle of the road. The constable acknowledged he did not turn his mind to whether the set-up was legal as it was already in place when he got there. However, he explained that placing the cars in that arrangement was standard practice and was outlined in a document to show safe practice when setting up what he described as a “micro checkpoint”.
[33] While there was limited evidence on the question of necessity, as a matter of logic, where police are having to approach drivers on the driver’s side of the vehicle, having the vehicles parked in a way where they physically protect the police officers standing in the centre of the road did, as the Judge concluded, provide “a safe way for the officers to conduct a micro checkpoint”.21 While it may be possible to envisage another way to set-up a micro-checkpoint on a road such as this, I consider it was “necessary” in the sense of being reasonably needed to conduct the checkpoint safely. I am fortified in this view by having regard to the purpose of the Rules which are to
19 At 260.
20 At 280.
21 Police v Frood, above n 1, at [32].
enhance road safety. No danger or obstacle was created by the police vehicles and it facilitated the conduct of their checkpoint which, itself, had a road safety objective.
[34] In my view, the Judge did not err in finding the exemption under r 1.8 applies and that a breach of r 6.7 was necessary for the police officers to execute their duties in a safe manner.
[35] If I am wrong in that conclusion the next issue is whether the illegality in the checkpoint set-up was sufficiently linked to Constable Wallace subsequently obtaining the breath alcohol evidence from Ms Frood, to say the evidence was improperly obtained.
[36] As Mr Bailey submitted, evidence is improperly obtained pursuant to s 30(5) of the Evidence Act if (among other things) it is obtained “in consequence of a breach of any enactment or rule of law”. A causal connection is therefore required.
[37] Mr Bailey relied on the Court of Appeal’s decision in R v Williams as describing the required degree of link between the impropriety and the evidence subsequently obtained.22 In that case, it was said that the “but for” test was appropriate and that:23
… [u]nder this test, subsequent evidence that would not have been obtained but for the breach must be considered to have a real and substantial connection to that breach. It would therefore be unreasonably obtained on that basis. The test will not be met, however, where the obtaining of the evidence can be seen as being independent of the breach. It also does not apply where the link between the breach and the evidence is so remote that it cannot sensibly be seen as causative of the obtaining of the evidence.
[38] Mr Bailey also referred to Duffy J’s observations in S v Police, where the appellant had been denied access to a toilet during a blood test process, in breach of his rights under the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act), causing him to soil himself.24 Duffy J concluded that it was:25
22 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.
23 At [98].
24 S v Police [2018] NZHC 1582, [2019] 2 NZLR 392.
25 At [71] (footnotes omitted).
… not so simple as to say that the blood test would have been obtained regardless of the Police impropriety and therefore there was no causative link between the two … Causation is ultimately a question of judgment. A “material or operative effect” is required.
She concluded the entire search was “coloured by the impropriety”.26 Without the inappropriate search there would not have been a blood test and the fact that it could have been obtained by a Bill of Rights Act compliant search could not break the linkage between the actual search and the evidence on which the conviction relied.27
[39] Here, Mr Bailey says the unlawful police set-up on Carlton Mill Road was what led to Ms Frood being stopped by the police and required to undergo alcohol testing procedures, including an evidential breath test, and this was a sufficient causal connection, even on the factual base that the Judge proceeded on.
[40] I disagree. In my view, the causal connection between the illegally parked police vehicles (if in fact they were) and the obtaining of the evidence was simply too remote. There is no suggestion that the way the vehicles were parked was material, in any way, to Ms Frood’s actions in failing to stop or in her deciding to stop when subsequently followed by Constable Wallace in a separate police car. This is not a case where, for example, an unlawful search leads to evidence being located, where there is a clear link between the impropriety and the evidence obtained. It is also not a case like Miller v R where the very reason the police officer chose to park on the yellow lines was so he could “detect any behaviour that could pose a danger to others and indeed that is what he observed”.28
[41] Equally, this is not a case where the impropriety directly taints the process of gathering the evidence as it did in S v Police.29 There is no suggestion that Constable Wallace’s actions in following Ms Frood, signalling for her to stop and then administering the screening and evidential breath test was in any way improper. Unlike the appellant in S v Police, Ms Frood’s rights were not violated in any way.
26 At [71].
27 At [71].
28 Miller v Police, above n 13, at [6] quoting from the lower Court’s judgment.
29 S v Police, above n 24.
[42] In my view, the lack of causal connection between the way the police vehicles were parked and the gathering of breath alcohol evidence is clear and means this appeal must fail.
Section 30 Evidence Act
[43] In the alternative, and in case I am wrong in finding the evidence was not improperly obtained, I go on to consider the s 30 Evidence Act balancing exercise.
[44]Section 30 relevantly provides:
30 Improperly obtained evidence
…
(2)The Judge must -
…
(b) … determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.
(3)For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a)the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b)the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c)the nature and quality of the improperly obtained evidence:
(d)the seriousness of the offence with which the defendant is charged:
(e)whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f)whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g)whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h)whether there was any urgency in obtaining the improperly obtained evidence.
[45] The checkpoint setup did not breach Ms Frood’s rights. Further, there is no evidence of bad faith by Constable Wallace, nor on the part of the supervisor in charge of setting up the checkpoint. In my view, the impropriety was minor.
[46] I see no error in Judge Crosbie’s assessment of the gravity of Ms Frood’s offending as moderate. Driving while intoxicated poses a significant risk to public safety and failing to stop at the checkpoint was an aggravating factor.
[47] In respect of whether other techniques were available, it may be the police could have parked the vehicles on the side of the road, thus not breaching r 6.7. However, I agree with Judge Crosbie’s comment that that would increase the risk to the officers, particularly given the time of night at which the checkpoint was operating.
[48] I do not consider the exclusion of the evidence to be proportionate to the impropriety. Accordingly, I consider the Judge was correct to conclude the evidence should be admitted under s 30, if he had been required to make that decision.
Conclusion
[49]The appeal is dismissed.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy To:
Mr A J Bailey, Barrister, Christchurch
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