Grainger v Police
[2020] NZHC 1869
•30 July 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000209
[2020] NZHC 1869
BETWEEN NATALIE REBECCA GRAINGER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 July 2020 Counsel:
TD Clee for Appellant
LJ Sullivan for Respondent
Judgment:
30 July 2020
JUDGMENT OF DOWNS J
This judgment was delivered by me on Thursday, 30 July 2020 at 10.30 am.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Manukau. TD Clee, Auckland.
GRAINGER v POLICE [2020] NZHC 1869 [30 July 2020]
The appeal
[1] Ms Grainger was convicted of one charge of driving with excess breath alcohol.1 Judge David J Harvey fined and disqualified Ms Grainger from driving for six months.2 Ms Grainger appeals conviction and sentence. Mr Clee for Ms Grainger says the conviction appeal is the primary one. If it fails, the sentence appeal can be dismissed.
Background
[2] On the evening of 22 November 2018, Ms Grainger was at McDonald’s. Her car lightly collided with another. The driver of the other car, Meleina Lafu, spoke to Ms Grainger. Ms Lafu considered Ms Grainger unhelpful. And, to be either “under the influence or drunk”. Ms Lafu attempted to block Ms Grainger from leaving, but Ms Grainger mounted a kerb and drove away. Ms Lafu called Police and followed for a time.
[3] Just after 10.12 pm, Constable Peter McLean found Ms Grainger at home. She lived nearby. The officer required Ms Grainger to undergo a breath screening test. This happened at the doorway of the home. Ms Grainger failed the test. Constable McLean then required Ms Grainger to accompany him to the Police station. She there failed an evidential breath test: 762 micrograms of alcohol per litre of breath.
[4] Ms Grainger accepts she had been drinking before going to McDonald’s (one glass of wine). But, Ms Grainger says she drank more before Constable McLean arrived.
The case for Ms Grainger
[5] Mr Clee makes two arguments. First, Ms Grainger’s subsequent consumption of alcohol undermines the application of s 77(1) of the Land Transport Act 1998, because of the possible delay between events at McDonald’s and her home. I call this the presumption argument. Second, the breath screening test (and everything that
1 In contravention of the Land Transport Act 1998, s 56(1).
2 Police v Grainger [2020] NZDC 10721.
followed) was inadmissible because Constable McLean exceeded an implied licence when reaching inside to administer the breath screening test. Both arguments were raised with the Judge.
Analysis
[6] The presumption argument requires some introductions. Section 77(1) of the Act provides:
For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant’s breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant’s breath indicated by the test.
[7] To this must be added s 68(1)(b), the provision concerning the power to administer a breath screening test:
68 Who must undergo breath screening test
(1) An enforcement officer may require any of the following persons to undergo a breath screening test without delay:
...
(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:
[8]The Judge dealt with the presumption argument this way:3
A critical argument has been addressed by Mr Clee as to the issue of timing and he has referred to the case of Torres-Calderon v Police, a decision of Duffy J which does point to the importance of timing in cases such as this. However, the timing as far as I can see involves probably no more than an hour 20 minutes, if that, and that there is sufficient juxtaposition between the driving and the enquiry that was made by Constable McLean for it to fall within the reasonable enquiry time referred to in the statute.
Ms Grainger indicated that she had consumed alcohol between arriving home and the time that she was approached by Constable McLean. The suggestion of course is that the level of alcohol in her blood was affected by this but that is covered clearly by the presumptions under s 77(1) which were specifically enacted to state that the level that is revealed at test was the level at the time of driving specifically enacted to recognise that there were occasions where
3 Police v Grainger, above n 2, at [22]–[23] (footnotes omitted).
alcohol might be consumed between the driving incident and testing incident and of course there has been no evidence to suggest that the consumption of that alcohol skewed the result. So the presumption under s 77(1) Land Transport Act must apply.
[9] In the case discussed by the Judge, Duffy J warned of the danger of expanding the power to administer a breath screening test through inflation of the implied licence to enter property to administer the test.4 Mr Clee argues Ms Grainger’s case illustrates the danger as she consumed alcohol after returning home, on her evidence, when she had done nothing wrong, and the test was some time later.
[10] The evidence differs as to how much later. Ms Lafu said the McDonald’s incident occurred at 9.20 pm. Ms Grainger said 8.40 pm. Stills from closed-circuit television supported the latter, but these were not put in evidence. The Judge appears to have concluded the McDonald’s incident happened at 9 pm, perhaps taking the middle ground. Constable McLean first spoke with Ms Grainger just after 10.12 pm; Ms Grainger’s flatmate answered the door, then got Ms Grainger.
[11] Four points address the presumption argument. First, even on Ms Grainger’s evidence, Constable McLean spoke with her only a little more than 90 minutes after the incident. In Round v R, the Court of Appeal held a delay between 90 minutes and two hours was unremarkable.5 Second, Ms Lafu believed Ms Grainger had been drinking. Ms Grainger’s driving at the scene provided support for that belief. The combination was sufficient to engage s 68(1)(b) which, as observed, permits an officer to require someone to undergo a breath screening test on good cause to suspect that person “has recently committed an offence against this Act”. Third, a long line of authority holds the mere fact of delay and subsequent alcohol consumption do not displace the presumption in s 77(1).6 Were it otherwise, the provision would be frustrated. So too legislative intent. Fourth, the decision cited by Mr Clee to the Judge—Torres-Calderon v Police—is ultimately concerned with the concept of
4 Torres-Calderon v Police [2018] NZHC 722 at 51, citing Transport Ministry v Payn
[1977] 2 NZLR 50 (CA).
5 Round v R [2018] NZCA 155.
6 In addition to Round v R, above n 5, see Stewart v Police [1970] NZLR 560 (CA); Police v Bradley [1974] 1 NZLR 113 (CA); Transport Ministry v Poskitt [1976] 1 NZLR 153 (SC); Seigel v Ministry of Transport (1989) 4 CRNZ 183 (HC); Ministry of Transport v Martis [1993] 1 NZLR 307 (CA); Tebbs v R [2013] NZCA 523.
implied licence, not a reading down of s 77(1) when someone has consumed alcohol after a collision.
[12] This brings me to the second argument. It is common ground a Police officer— like anyone else—may walk to the front door of a home and knock on that door in the hope of speaking to an occupant. Mr Clee contends Constable McLean exceeded this implied licence by reaching inside to administer the breath screening test. Ms Grainger says this is what happened.7 The Judge appears to have found it did. However, the Judge concluded this was not unlawful as Ms Grainger did not protest, and the officer’s action was consistent with the operation of an implied licence.
[13] The leading decision on the concept of implied licence is that of our Supreme Court in Tararo v R.8 Tipping J, for the majority, described the licence as “permitting entry onto private premises for the purpose of reasonable enquiry”.9 An occupant “is entitled to deny or terminate the licence, either in advance of its being invoked or in the course of its being invoked”.10
[14] There was no challenge to the lawfulness of Constable McLean’s entry onto the property. Nothing in the record suggests Ms Grainger did anything to deny or terminate the licence to her front door. Constable McLean did not go inside.11 So, the only question is whether reaching inside (given the Judge’s finding) made the officer’s otherwise lawful conduct unlawful.
[15] Mr Clee contends Police v McDonald suggests so.12 In that case, a Police officer “administered a passive breath test on the doorstep”.13 Dobson J considered a distinction arose between going onto private property, and going inside private property:14
The existence of the implied licence is not contentious. It permits a Police officer to enter private property so far as is necessary to engage an occupier,
7 The officer’s evidence is not so clear.
8 Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145.
9 At [12].
10 At [12].
11 Nor did his colleague.
12 Police v McDonald HC Nelson CRI-2009-442-11, 30 October 2009.
13 At [5].
14 At [36].
in the course of any lawful enquiry. Generally, that would involve going to the threshold of the premises on the property. Going further, typically into the premises, depends upon either consent being given by the occupier for the officer to do so, or the dialogue from the threshold reaching the point where the officer can justify exercising coercive powers. Realistically, consent is often treated as having been granted impliedly.
[16]I respectfully agree with Dobson J’s distinction, which is consistent with
Tararo. However, McDonald does not answer the question. Nor does Tararo.
[17] It may be helpful to step away from the facts. Imagine a courier driver comes to the front door and hands the occupant a package through the open door. Or, a salesperson comes to the front door and hands, inside to the occupant, a brochure. The same hypothetical can be imagined in diverse scenarios: a politician electioneering, handing their party’s flier to the person inside; a child handing chocolate inside to raise money for their school; or a neighbour reaching inside to return something they had borrowed a day earlier. Few would question the legality of these actions unless, of course, the occupant had terminated the licence, say for example, by locking the gate, posting a sign forbidding anyone coming to the front door, or telling the person from behind a closed door to go away.
[18] Constable McLean’s actions are analogous. The officer was giving something to Ms Grainger, not taking something from her home; nor doing anything to get inside, for example, unlocking a latch. His action in passing the device inside so Ms Grainger could breathe into it would not be “a search” in everyday language nor in contravention of a reasonably held expectation of privacy, the usual touchstone of a search under s 21 of the New Zealand Bill of Rights Act 1990. Again, the examples explain why: the licence often extends to someone reaching inside to give the occupant something, providing the occupant has come to the door and done nothing to revoke the licence, either then or earlier.
[19] Mr Clee contends Ms Grainger revoked the licence. This submission is unsupported by the record. Ms Grainger said nothing to Constable McLean or his colleague to suggest they were not lawfully on the property, or otherwise unwelcome.15
15 Ms Grainger said she believed she had to undergo the breath screening test.
Result
[20]The appeal is dismissed.
……………………………..
Downs J
0
3
0