Frood v Police - [2021] NZHC 2907

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…

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.

Continue reading Frood v Police

Details

AGLC: Frood v Police [2021] NZHC 2907
Case: [2021] NZHC 2907
Decision Date: 29 October 2021

CaseChat Overview and Summary

Nikeisha Frood appeals her conviction for driving with excess breath alcohol. The appeal hinges on the contention that the breath test was unlawfully obtained, and therefore inadmissible under s 30 of the Evidence Act 2006. The crux of the appeal is whether the police checkpoint, which led to the breath test, was illegal due to the police vehicles being parked on a flush median, in breach of r 6.7 of the Land Transport (Road Users) Rule 2004. Frood argues that this breach was not justified under the exemption in r 1.8, which allows for acts or omissions done by enforcement officers in the execution of their duties. The court must determine if the exemption applies and, if not, whether the evidence should be excluded under the balancing test in s 30 of the Evidence Act.

The court first examines whether the police checkpoint was illegal. The police parked their vehicles on the flush median, which is a breach of r 6.7. However, the court finds that the exemption in r 1.8 applies, as the police were conducting a lawful duty in testing road users for alcohol and the parking was reasonably necessary to execute their duties safely. The court holds that the setup, while a breach, was reasonably necessary for the safety of the officers, given the potential dangers of the operation, particularly at night.

Next, the court considers if there was a sufficient causal connection between the illegal setup and the obtaining of the breath test, as required for the evidence to be deemed improperly obtained under s 30(5) of the Evidence Act. The court concludes that the causal link was too remote; the manner in which the vehicles were parked did not influence Frood's decision to drive through the checkpoint or her subsequent stop by Constable Wallace. The breath test was administered in a lawful manner after Frood failed to stop at the checkpoint.

Finally, the court conducts the s 30 balancing exercise to determine if the evidence should be excluded. The court finds the impropriety was minor, there was no breach of Frood's rights, and the impropriety was necessary for the safety of the police officers. The court concludes that excluding the evidence would not be proportionate to the minor impropriety, and thus affirms the admissibility of the evidence under s 30.

The appeal is dismissed, and the conviction stands.

Orders