Grant v Police
[2021] NZHC 2297
•2 September 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000089
[2021] NZHC 2297
BETWEEN CRAIG ANTHONY GRANT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 August 2021 Appearances:
J H M Eaton QC for the Appellant J E Lancaster for the Respondent
Judgment:
2 September 2021
JUDGMENT OF NATION J
Introduction
[1] The appellant, Craig Anthony Grant, faces one charge of driving with excess blood alcohol,1 and one charge of careless use of a motor vehicle arising from a motor vehicle accident.2
[2] In a pre-trial hearing before Judge Phillips on 15 March 2021, Mr Grant challenged the admissibility of his alleged admissions that he was the driver of the vehicle at the relevant time.
[3] In a reserved judgment dated 21 June 2021, Judge Phillips ruled the evidence was admissible.3
1 Land Transport Act 1998, s 56(2).
2 Land Transport Act 1998, s 37(1).
3 Police v Grant [2021] NZDC 11909.
GRANT v POLICE [2021] NZHC 2297 [2 September 2021]
[4] Mr Grant appeals that decision but requires leave to do so. Resolution of the issues raised by the appeal are essential to the trial. There is no opposition from the Crown. Leave is accordingly granted.
Background
[5] The Police allege that, on 15 September 2019, Mr Grant drove a motor vehicle on St Albans Street when the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood, and that he drove the vehicle carelessly.
[6]Mr Grant has pleaded not guilty to both charges.
[7] On the evening of 15 September 2019, neighbours saw a vehicle that had crashed into a hedge at the corner of Mansfield Avenue and Browns Road, Christchurch. They observed two males walking away from the scene. Police were alerted. Police found a rates bill in the vehicle in Mr Grant’s name, recording his address as 2 Abberfield Lane.
[8] A Police dog handler tracked the occupants of the vehicle to Abberfield Lane, though not directly to the door of the property. Constables Henare and Hayman were directed to undertake a “door knock” at 2 Abberfield Lane.
[9] Constable Henare gave evidence at the pre-trial hearing. His evidence was that he and Constable Hayman went to the address where Constable Henare did the “door knock”. Constable Henare said the door to the property was opened by the appellant’s wife, Ms Grant. Constable Henare asked her if two males had returned to the property recently, she confirmed they had and said her partner had arrived home. Constable Henare asked if the officers could come inside as they wanted to speak to the men. Constable Henare’s evidence was that Ms Grant did not hesitate in allowing them to enter the home and he felt she was “on board with [the] police”.
[10] Constable Henare gave evidence that there were two men in the kitchen of the home who matched the description of the men seen leaving the vehicle, as per the information passed onto the constable by the Police communication system.
Constable Henare’s evidence was that he approached them and said “There’s been an accident down the road. The dog handlers tracked to this address; who was driving?” It was Constable Henare’s evidence that the person later identified as Mr Grant said he was the driver.
[11] Constable Henare’s evidence was that he then immediately arrested Mr Grant and read him his bill of rights advice, before questioning him about the accident and recording the answers in his notebook.
[12] At the conclusion of his questions, Mr Grant signed Constable Henare’s notebook record of the interview. Constable Henare required Mr Grant to undergo an evidential breath screening test, which gave a positive result. Constable Henare then asked Mr Grant to accompany him to New Brighton Police Station, which he did. An evidential breath test showed a result of 860 micrograms per litre of breath. A blood sample was also taken from Mr Grant, which gave a result of 191 milligrams of alcohol per 100 litres of blood.
District Court decision
[13] In the District Court, Mr Grant argued the admission evidence had been unfairly obtained by Constable Henare for two reasons:
(a) he had failed to inform Ms Grant at the door that he had no lawful authority to enter without her consent; and
(b) he had not advised Mr Grant of his rights before asking the initial question which led to an admission.
[14] Judge Phillips noted the primary trial issue is whether the prosecution can prove beyond reasonable doubt that Mr Grant was the driver of the vehicle on 15 September 2019.
[15] The Judge found the constable was clear that, although Mr Grant’s car had been involved in an accident, the constable did not know which of the two men had been the driver of the car, and he remained unsure of this until Mr Grant said he was the
driver, at which time Mr Grant was arrested.4 Judge Phillips found Constable Henare’s evidence was “truthful and correct” and accepted he only resorted to using his notebook after Mr Grant identified himself and admitted being the driver.5 His Honour accepted there were discrepancies between the timing of the constable’s notebook entry, his written statement, and his evidence in Court as to what he first said to the men inside the home. However, the Judge held that the “somewhat different” wording did not change the “overall context” nor affect his view of the constable’s evidence.6
[16] The Judge did not accept that Constable Henare, prior to entering the premises, had good cause to suspect Mr Grant was the driver and would be charged with dangerous driving. This was not in accord with the constable’s evidence which the Judge accepted. The Judge accepted that, prior to entering the property, the constable knew the vehicle was owned by Mr Grant, that a police dog had tracked the scent from the scene to Mr Grant’s address, and that an officer had been told that two males had been seen walking away from the scene.
[17] In relation to the submission that Mr Grant was in a position where he was not free to leave and police had entered his home in breach of “good police practice”, Judge Phillips found Ms Grant had freely given consent to the police officers to enter the home and there was no duress or intimidation placed upon her to do so.7 The Judge characterised the entry as “no more than a police officer … making a simple request of a citizen to which she responded positively”.8 The Judge held there was no legal duty on Constable Henare to advise Ms Grant of her right to refuse to allow his entry.9 His Honour found further that, even had Ms Grant not consented, Constable Henare could have invoked s 8 of the SSA to gain entry (albeit with the proviso that Constable Henare did not know at that point which of the two persons had been the driver).10 This was because the Judge accepted Constable Henare had reasonable grounds to
4 Police v Grant, above n 3, at [18].
5 At [24].
6 At [24].
7 At [22] and [27].
8 At [22].
9 At [22] and [54], referring to R v Machirus [2007] NZCA 120 at [31], where the Court of Appeal held “there is no such formal obligation”.
10 Police v Grant, above n 3, at [40] and [59].
suspect a person had committed a breath alcohol offence and that the driver of the car was at the address.11
[18] The defence had submitted Constable Henare breached cl 2 of the Chief Justice’s Practice Note on Police Questioning (the Practice Note) by failing to caution Mr Grant before questioning him. As mentioned above, his Honour accepted there were discrepancies in the constable’s evidence, but determined those discrepancies were due to the officer having only begun to record the exchange in his notebook after identifying Mr Grant as the driver. His Honour found that, when the constable entered the kitchen, he addressed the two men, asked who was driving and Mr Grant volunteered the information that he was driving.12 After Mr Grant confirmed he was the driver, the Judge determined Constable Henare immediately arrested him, gave him his rights and proceeded to interview him.13 His Honour found Constable Henare did not tell Mr Grant he was required to answer any questions so that no breach of cl 1 of the Practice Note was made out.14
[19] The Judge accepted that Constable Henare did not know, and could not have known, which of the two men was the driver of the vehicle when he entered the home. Therefore, he did not have sufficient evidence to charge Mr Grant, with the result that cl 2 of the Practice Note did not apply.15 Even if there was a breach in regard to the first question and the resulting admission, the Judge found it would “not affect the following question after the defendant was cautioned”.16 His Honour determined it was not practical for Constable Henare to immediately caution the two men upon entering the home and it was necessary for the constable to provide some initial context about what he was doing (that is, investigating an accident). The Judge found the constable had good cause to suspect one of the men was the driver of the car and had committed an offence but he did not know which one. In asking who was driving, the constable did not suggest the men were required to answer. However, the Judge
11 At [58].
12 At [29].
13 At [29] and [65].
14 At [67]-[71].
15 At [34]-[38].
16 At [40].
held that, once the answer was provided, the constable had sufficient evidence to charge Mr Grant and immediately cautioned him.17
[20] The Judge concluded that, even if one of the breaches had been made out, the evidence would still be admissible pursuant to s 30(2)(b) of the Evidence Act 2006.18 In reaching this conclusion, his Honour assessed that, although the breach would be viewed as a moderate intrusion, it would not have been in bad faith or deliberate, the charge was serious, the officer had the ability to invoke s 8 of the SSA, and the evidence was central to the prosecution case. The Judge also noted there were no alternative remedies, the probative value of the evidence was high, and there was urgency in locating the driver of the vehicle.19
Principles on appeal
[21] Section 215 of the Criminal Procedure Act 2011 applies to charges to be tried by a Judge alone. Section 215(2)(a) provides that the defendant or the prosecutor may, with the leave of the first appeal court, appeal to that court against a decision making or refusing to make an order under s 79 as to the admissibility of evidence.
[22] If leave is granted, the appeal proceeds as a general appeal.20 Accordingly, this Court is entitled to form its own opinion as to whether the pre-trial decision is correct or incorrect, assisted by a consideration of the reasoning of the District Court Judge if appropriate.
The appeal
[23] Mr Eaton QC, on behalf of Mr Grant, adopted the written submissions filed in the District Court and submitted the District Court Judge erred in that:
(a) the critical factual findings were not reasonable;
(b) section 8 of the SSA did not authorise entry into the property; and
17 At [74].
18 At [48].
19 At [40]-[47].
20 R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734 at [49]-[53].
(c) the admission was improperly obtained and inadmissible because:
(i) the entry into Mr Grant’s property was an unreasonable search in breach of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA); and/or
(ii) the admission was improperly obtained under s 30(5) of the Evidence Act 2006 (the Act) and obtained unfairly and in breach of the Practice Note under s 30(5)(c) and (6) of the Act.
[24] At the hearing of the appeal, Mr Eaton orally submitted Mr Grant’s admissions were obtained as a consequence of an unlawful search, given the requirements of ss 91 and 95 of the SSA and the advice which s 93 required the Police officers to give the person who had consented to the Police entering the home. He acknowledged and apologised for the fact that neither the defence nor prosecution had raised this with the Judge and the Judge had not considered s 93.
Discussion
Critical factual findings
[25] Constable Henare agreed he had not told Ms Grant that he did not have any legal authority to enter the home without her consent. Constable Henare said he had not mentioned Mr Grant’s name to the woman at the door, Ms Grant. He gave evidence that she was friendly, offered no objection to his request to enter the address to talk to two people who had been tracked to the address, and was entirely cooperative with him. The constable said he had spoken to Constable Hayman about s 8 of the SSA in the patrol car prior to commencing the door knock but that he chose to go “down the road” of consent to enter rather than seeking entry by use of s 8 of the SSA.
[26] Constable Henare agreed that, while in the kitchen, he became aware both men had been drinking but he was unsure who the driver was at that point. The constable said he asked who was driving and “Mr Grant put up his hand”. The constable agreed with Mr Eaton that he had not made a note of that initial exchange in his notebook and that it was the first exchange of words he had with Mr Grant. His notebook entry
began by his taking down Mr Grant’s details, then arresting him for dangerous driving and giving him his Bill of Rights advice.
[27] Constable Henare gave evidence that his formal written statement of 17 September 2019 was in accord with his recollection at the time he wrote the statement and from his notebook and/or memory. Under repeated questioning from Mr Eaton in relation to his question as to “who was the driver”, the constable said a number of times that he had asked the two men “who was the driver”, and Mr Grant said it was him. His evidence was he then immediately arrested Mr Grant and asked his name, date of birth and similar questions, which he noted down.
[28] It was the defence case that, in asking who the driver was, Constable Henare had embarked on questioning Mr Grant in circumstances where he should have first given Mr Grant a caution and Bill of Rights advice. It was the Police case that Mr Grant volunteered an admission that he was the driver of the vehicle, and it is this alleged admission that is critical evidence sought to be advanced by the Police.
[29] The Judge found that, on entering the property, Constable Henare saw Mr Grant and another male, asked who was driving and Mr Grant raised his hand, volunteering he was the driver. Mr Eaton submitted this version of events, which aligns with that given in evidence by Constable Henare, contradicted both the constable’s contemporaneous notebook entries and his formal written statement made two days later. Mr Eaton emphasised the constable’s evidence introducing a new account was given some 18 months after the event and was inconsistent and unreliable.
[30] Mr Eaton submitted it was unreasonable for the Judge to prefer the account given by the constable at the pre-trial hearing over the written notes made at and shortly after the event. Mr Eaton maintained that the notebook entry did not record the officer having entered the property, asking who was driving and Mr Grant making a voluntary admission. Instead, it recorded Mr Grant’s personal details, that he was the driver and only then recorded that he was arrested and given his bill of rights advice. Mr Eaton argued the notebook entries supported the defence case that the constable had, on entry, sought to identify which of the men was Mr Grant and commenced questioning him absent any caution.
[31] Mr Eaton submitted the statement prepared by the constable two days later contradicted his pre-trial evidence. In that statement the constable said he identified one of the men was Mr Grant and then commenced the interview by asking Mr Grant what happened. According to the statement, Mr Eaton submitted, it was at that stage Mr Grant admitted he was driving. He argued the Judge’s factual finding of accepting the constable’s evidence in Court was erroneous and pivotal to the admissibility ruling. Mr Eaton asserted that if the notebook entry and written statement were reliable, Constable Henare had both commenced an interview of Mr Grant and secured the critical admission in contravention of the Practice Note and s 30(5) of the Act.
[32] Ms Lancaster, counsel for the Crown, submitted the Judge was entitled to find Constable Henare’s evidence in Court was reliable and accurate. She argued Constable Henare gave clear, consistent and reasonable evidence that he asked the initial question about who was driving and then, after Mr Grant had identified himself, took out his notebook and began recording Mr Grant’s details. Ms Lancaster submitted it cannot be expected that everything that occurs will be noted in a Police officer’s notebook and it is not routine practice for officers to have their notebook out at the start of such discussions.
[33] Ms Lancaster emphasised that, when challenged, Constable Henare’s explanation for the order of his notebook did not change. The constable said his notebook entries began at the point he started asking for Mr Grant’s details because he had already established Mr Grant was the driver. Ms Lancaster noted that the constable then recorded “Driver of JHH477 Mercedes Black” as Mr Grant had already offered that information.
[34] Ms Lancaster submitted the Judge was correct to find that discrepancies in the wording between Constable Henare’s evidence in Court and his formal statement did not change the overall context of his evidence. Ms Lancaster argued the exact words used by the constable did not materially change the way the admission was obtained. Even if the constable’s statement was correct and he began by identifying the appellant as being Mr Grant, Ms Lancaster maintained the constable would not have known which of the two men was the driver. As a result, he would still have had insufficient
evidence to lay a charge, so would not have been required to advise Mr Grant of his rights before asking the next question.
[35] Finally, Ms Lancaster submitted weight should be placed on the fact the District Court Judge had the benefit of hearing the constable’s evidence first-hand. In this regard, the Judge noted the constable was prepared to make concessions but was steadfast in relation to the matters to which the defence played particularly close attention.
[36]The relevant notebook entries recorded on 15 September were as follows:
2124 GRANT/Craig Anthony 21/04/1972
2 Abberfeild Land [sic] 021 355 323
189 Papanui Rd Merivale Fresh Choice Driver of JHH477 Mercedes Black
2126 K9 Dangerous Driving BOR Given
[37] The relevant paragraphs of Constable Henare’s formal written statement made on 17 September 2019 recorded:
14. We entered the address and saw there were two males in the kitchen.
15. I identified that one of the males inside the address was Craig Anthony GRANT.
16. I asked GRANT what had happened on the corner of Mansfield Avenue and Browns Road and he stated he was driving and had an accident.
17. I arrested GRANT for Dangerous Driving and gave him his Bill of Rights.
[38] Later in his statement, Constable Henare recorded the series of questions he then asked Mr Grant, as entered in his notebook. That questioning was recorded as including the following exchange:
Q: Were you driving the vehicle JHH47? A: Yes.
Q: That vehicle crashed outside 77 St Albans Street. Can you explain that? A: I just made a mistake driving; an absolute mistake in judgement.
[39] Constable Henare then gave evidence before Judge Phillips at the pre-trial admissibility hearing on 15 March 2021. In his evidence-in-chief, the constable said, upon entering the property, he approached two males in the kitchen who matched the description of what Police communications had given them and said: “There’s been an accident down the road. The dog handler’s tracked to this address and who was driving.” The constable said Mr Grant then raised his hand and said: “Yes I was the driver.” He said he arrested Mr Grant straight away and gave him his bill of rights advice, before questioning him further about what happened, as recorded in his notebook. He gave evidence he made the entries in his notebook immediately after giving Mr Grant his rights advice, which Mr Grant signed.
[40] Constable Henare was then subject to a lengthy and detailed cross- examination, which amounted to 23 pages in the Notes of Evidence. Constable Henare accepted he was aware that, at the time, a rates notice in the name of Mr Grant of 2 Abberfield Lane had been found in the crashed car, and he was directed to go to Abberfield Lane based on dog tracking to that address. However, he said he was aware there was a passenger in the car and, although it was likely Mr Grant’s car, he had formed the view it “could have been very well that the passenger could have been driving Mr Grant’s car”. He also gave evidence he was aware of Mr Grant’s name before entering the property.
[41] Constable Henare accepted he had already decided before entering the property that he would be charging and arresting the driver of the vehicle with dangerous driving. He accepted that, on seeing the men in the kitchen, it was immediately obvious both men had been drinking. The constable said that, in these circumstances,
he did not immediately caution the men and give them their rights as he did not know who the driver was.
[42] In cross-examination, the constable accepted that the critical admission he said was volunteered by Mr Grant prompting the constable to arrest him was not in his notebook. Constable Henare said he obtained Mr Grant’s details, then arrested him, and then gave him his bill of rights. The constable reiterated the first thing he asked was “who was driving?”. He later repeated that, after entering the property, he said to the men: “there’s been an incident down the road, the dog handler’s tracked to this address, two people matching your description, who is the driver?” That is, the constable gave evidence that he asked who the driver was and Mr Grant said it was him, before the constable asked for Mr Grant’s personal details and recorded them in his notebook. In response to Mr Eaton putting it to him that he should have warned Mr Grant before asking who was the driver, the constable said, at that stage, he did not have “evidential sufficiency” necessary to charge him, so he asked who the driver was.
[43] Mr Eaton pointed to Constable Henare’s responses to challenges during cross- examination and submitted his evidence was inconsistent and unreliable. At one point, the constable admitted the best record of what happened is “probably what’s in my statement”. Constable Henare could not explain why his notebook did not reflect his evidence that he had entered the home and first asked who was driving. After the absence of an explanation, Mr Eaton put to the constable that his evidence of having immediately asked who the driver was on entering the property was tainted by the passage of time. The constable accepted his memory “could very well be tainted”. In his evidence, Constable Henare also acknowledged the order of the events as entered in his notebook did not coincide with the evidence he gave at trial and that the Court would, to an extent, need to rely on his memory of events.
[44] When Constable Henare was re-examined by the prosecutor he said he did not know at the time he entered the home who the driver was. In relation to his use of the notebook, the constable said that, at the start of such discussions, it is not routine practice for officers to have their notebook out because having “your head in your notebook” before assessing a situation creates a safety concern. Because of this,
Constable Henare said it would not have been unusual for him to have omitted recording the first words Mr Grant said to him.
[45]The Judge evaluated Constable Henare’s evidence as follows:
[24] It is also important to note that when I consider the evidence given by Constable Henare and the responses that he gave to Mr Eaton in a very detailed and exacting cross-examination, I accept that the officer’s evidence, is evidence that I can rely on. I accept that there were some discrepancies between the timing of his notebook entry and what is contained in a written statement he made on 17 September 2019. In relation to the notebook entries and the sequence of events, as questioned on by Mr Eaton, I accept the officer’s explanation that once the defendant had identified himself and admitted being the driver, the officer then resorted to the use of his notebook. I accept that in relation to the written statement of the 17 September 2019, that the wording that is put is somewhat different, but the overall context, in my view, is the same and this issue does not affect my view of the Constable[’s] evidence. I noted that Constable Henare was prepared to make all proper concessions but was steadfast in relation to the matters to which Mr Eaton played particularly close attention. I have no doubt that the officer’s evidence, as given by him in Court as against the written notetaking, is evidence I can accept as truthful and correct and as such is appropriate evidence for me to use in the circumstances of the arguments put to me by the defence.
[46] I do not accept, to the extent there might have been inconsistencies between the constable’s evidence at the hearing and the notebook entries or statement, such inconsistencies made it unreasonable for the Judge to accept the constable’s evidence as he did. The entries made in the constable’s notebook were consistent with the constable only starting to record Mr Grant’s details after Mr Grant had identified himself and admitted to being the driver. I accept the Crown’s submission that “it cannot be expected that everything that occurs will be noted in a police officer’s handbook”,21 and it is routine practice for officers to first assess a situation to maintain their safety before focusing on making recordings in their notebook. It was also understandable that the constable did not record Mr Grant’s initial admission in his notebook. At the time he made the entries in his notebook, it was the admission that Mr Grant made after his arrest and caution that was important. At that point, and even when he prepared his first statement two days later, the constable had no reason to think Mr Grant’s initial acknowledgement as to being the driver was important. Mr Grant’s admission after being cautioned was the evidence the Police officer needed to record and which he had Mr Grant accept through signing the notebook.
21 R v Avenell [2007] NZCA 532 at [20].
[47] The gravamen of the case was that Constable Henare initially asked “who was driving”. That the constable was willing to acknowledge certain inconsistencies and his memory could have been tainted, in the circumstances of this case, could reasonably have bolstered the constable’s credibility. The District Court Judge also had the advantage of seeing and hearing Constable Henare give his evidence, including his performance under cross-examination. I consider the Judge was entitled to rely on the constable’s evidence, given he gave consistent evidence at the hearing that he asked who the driver was and Mr Grant said it was him, before the constable asked for Mr Grant’s personal details and recorded them in his notebook. This was despite what the Judge described as a “very detailed and exacting cross-examination”.
[48] I also consider Constable Henare’s evidence was inherently plausible. He had gone to the property believing on reasonable grounds that the two people who had been in the vehicle when it crashed had gone into the home. With what he knew of the crash, he had decided whoever was driving the vehicle would be charged with dangerous driving. The Police needed to know who the driver was before they could decide how to proceed. Constable Henare had a clear memory of Mr Grant raising his hand and saying it was him.
[49] The constable acknowledged his memory could be tainted by time but, both before and after he made that concession, he was clear as to what happened when he initially went into the home. The way he proceeded to obtain Mr Grant’s details, gave him his NZBORA advice and recorded his answers was consistent with his evidence as to how the interaction started.
[50]Clause 2 of the Practice Note relevantly provides:
2. Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. …
[51] I accept there is no suggestion that Constable Henare cautioned Mr Grant or advised Mr Grant of his right to a lawyer under s 23(b) of the NZBORA prior to Mr Grant making the critical admission of being the driver. However, for it to become
necessary for a Police officer to issue a caution under the Practice Note, that officer must have sufficient evidence to charge the person with an offence.
[52] When Constable Henare entered the property with the consent of Ms Grant, on either version of the evidence put before the Court, he did not know which of the two men had been the driver of the vehicle. Constable Henare was aware a rates notice in the name of Mr Grant of 2 Abberfield Lane had been found in the crashed car and that he was directed to go to that address based on dog tracking to that location. He was also aware the two men had been seen leaving the scene and, when he entered the property, he realised the two males in the kitchen were intoxicated and matched the description of what he had been told by police communications. However, throughout this time, the constable knew two men were involved. He knew the owner of the vehicle was Mr Grant but not who was driving at the time of the collision. Indeed, Constable Henare gave evidence that although it was likely Mr Grant’s car, he had formed the view it “could have been very well that the passenger could have been driving Mr Grant’s car”.
[53] I consider, for the officer to know he had sufficient evidence to charge Mr Grant with the offence of dangerous driving, he had to know not who owned the vehicle but who was driving it at the time of the incident. Although Constable Henare confirmed in cross-examination that, on entering the property, he had already resolved to charge the driver with dangerous driving, this did not inevitably mean Mr Grant would be charged as the driver. Evidence that it was immediately obvious to Constable Henare that both men were intoxicated did not change the position. At that point, either man could have been the driver.
[54] In this context, even if the version of events in the constable’s statement was correct and he began by identifying the appellant as being Mr Grant, the constable still would not have known which of the two men was the driver at the point he asked who was driving. The obtaining of the defendant’s name did not create evidential sufficiency given there was another man accompanying him throughout the incident. As a result, he would still have had insufficient evidence to lay a charge, so would not have been required to advise Mr Grant of his rights before asking who the driver was. Therefore, cl 2 of the Practice Note did not apply.
[55] The Judge made certain findings of fact as to how matters proceeded between Constable Henare and Mr Grant. With those findings, he determined that the constable was not required to give Mr Grant a caution before asking the two men who was the driver. On the evidence, the Judge’s findings of fact were reasonable. On my review of the evidence, I would make the same findings.
Search and Surveillance Act 2012, s 8
[56] Mr Eaton submitted the Judge was incorrect to find Constable Henare could have relied upon s 8 of the SSA in order to gain entry to the home. The defence challenged the lawfulness of the Police entry onto the property and argued that, contrary to the finding of the Judge, there were no reasonable grounds to suspect an offence of driving with excess breath alcohol had been committed. Nor, in Mr Eaton’s submission, was there any evidence that evidence as to dangerous driving was at risk of being destroyed, concealed, altered or damaged.
[57] Ms Lancaster submitted this ground of appeal is fruitless as it is a challenge to a finding that was not material to the Judge’s decision. In relation to the constables’ entry into the home, the Judge determined they were given consent to enter by Ms Grant, free of duress, and that Constable Henare was under no legal duty to inform Ms Grant he could not enter if she refused. Accordingly, his Honour found there was no breach of s 21 of the NZBORA. The Judge then went on to consider whether, had Ms Grant refused entry, the Constable “would have had the power” to invoke s 8 of the SSA. Ms Lancaster argued the appellant was therefore not challenging the ratio decidendi in regard to the constables’ entry and that any challenge to the Judge’s following obiter statements is moot.
[58]Section 8 provides:
8 Entry without warrant to avoid loss of offender or evidential material
(1) In the circumstances set out in subsection (2), a constable may—
(a)enter a place or vehicle without a warrant; and
(b)search for and arrest a person that the constable suspects has committed the offence.
(2) The circumstances are that the constable has reasonable grounds—
(a)to suspect that the person has committed an offence that is punishable by imprisonment and for which he or she may be arrested without warrant; and
(b)to believe that the person is there; and
(c)to believe that, if entry is not effected immediately, either or both of the following may occur:
(i)the person will leave there to avoid arrest:
(ii)evidential material relating to the offence for which the person is to be arrested will be destroyed, concealed, altered, or damaged.
[59] The Judge decided that Constable Henare had reasonable grounds to suspect that a breath alcohol offence had been committed and, on that basis, s 8 could have been utilised for a warrantless entry.
[60] The Police had not however entered the premises because of suspicion that such an offence had been committed. At the time, they suspected the driver of the crashed vehicle had driven it dangerously. This was a reasonable suspicion, given the circumstances of the crash.
[61] Driving a vehicle on a road in a dangerous manner or speed is an offence with a maximum penalty of three months’ imprisonment or a fine of up to $5,500 and mandatory minimum six months’ disqualification.22
[62] The Judge could have found that Constable Henare entered Mr Grant’s home believing he and Constable Hayman were entering without a warrant to search for and arrest the person he suspected of committing the offence and:
(a) the offence of dangerous driving was an offence punishable by imprisonment for which the driver could be arrested without warrant; and
(b) the person who was suspected of having driven dangerously was in the home.
22 Land Transport Act 1998, s 35(2).
[63] However, there was no evidence to suggest Constable Henare could have had reasonable grounds to believe that, if entry was not effected immediately, either the driver would leave that home to avoid arrest or evidential material relating to dangerous driving would be destroyed, concealed, altered or damaged.
[64] The Police had found documents in the crashed car that suggested the home entered was the residence of at least one of the people who had gone inside that home. Evidence as to suspected dangerous driving existed outside the home, with all the circumstances in which the car had crashed.
[65]The Judge found that Constable Henare:23
… had reasonable grounds to suspect that a person had committed an offence of dangerous driving, and by inference arguably driving with excess breath alcohol, as in the evening, the car had been driven into a hedge and the occupants of the car had left the scene. Further, they had reasonable grounds to believe that the driver of the car was at the address, given that two occupants had been seen leaving the vehicle on foot; the rates bill was made out to that address, and the dog had traced a scent from the accident to outside the property. On that basis there would be reasonable grounds to believe that the evidence relating to the driver’s breath alcohol level would be altered.
[66] I accept it would have been reasonable for a Police officer to believe, based on what he knew as to the circumstances of this car crash, that the driver was likely to have been under the influence of alcohol at the time of the crash. If the Police officer knew the driver had decamped from the scene of the crash, it would be reasonable for him to conclude that the driver may have committed a breath alcohol driving offence and, if not apprehended, evidence of that offence, namely his breath or blood alcohol level at the time of the offence, would be lost.
[67] The maximum penalty for an excess breath alcohol or blood alcohol offence is three months’ imprisonment or a fine not exceeding $4,500 and a mandatory minimum of six months’ disqualification.24
[68] With such a belief, a constable could have entered the home without a warrant to search for and arrest a person the constable suspected had committed an excess
23 Police v Grant, above n 3, at [58].
24 Land Transport Act 1998, s 56(3).
breath alcohol offence. There was evidence on which Constable Henare could have reasonably believed a person who had committed such an offence was in the home. There would also have been reasonable grounds for him to believe that, if he did not enter the premises, evidential material (as to the breath or blood alcohol level) relating to the offence for which the driver would be arrested, would be destroyed, concealed, altered or damaged.
[69] However, these Police officers did not go to or into the home to investigate a possible breath alcohol offence and to arrest the driver for such an offence. For an entry and search to be lawful on a s 8 basis, the Police would have needed to actually believe they had reasonable grounds to carry out the warrantless search.25
[70] For an entry and search to be lawful on a s 8 basis, the Police would have needed to be consciously exercising s 8 rights. It could not be inferred they were doing so. I consider the Judge was in error in concluding there could have been a lawful entry into the property under s 8.
[71] However, the Judge’s error as to this was not material to his decision. The Judge had already found that the constables’ entry into the property was freely given by consent and not in breach of s 21 of the NZBORA.
[72] Section 8 powers would however be relevant in carrying out the balancing test under s 30 of the Act. Had the constables been refused entry, they would then have had to consider whether they could exercise s 8 powers under the SSA. In all the circumstances they were aware of, I consider it would have been reasonable and likely for them to conclude that inside the house was one of two men who had been driving the vehicle when, around 9.15 pm on Sunday 15 September 2019, it went off the road and crashed through a hedge. In my view, it would have been reasonable for them to believe, and had they had to think about it they would have believed, that the driver had gone into the home and the Police were being denied entry because the driver did not want to be identified and did not want to be required to undergo an evidential breath alcohol or blood alcohol test. Had the constables been refused entry, it is likely
25 Ward v R [2016] NZCA 580 at [34]-[43]; Hawkes v R [2015] NZCA 49 at [10]-[11].
the Police would have been able to exercise s 8 powers of entry to speak with and arrest the driver for a breath alcohol offence.
SSA pt 4, subpt 2 – consent searches
[73] I consider now the argument, raised for the first time, as to ss 92 and 93 of the SSA. Mr Eaton argues this was an entry clearly for the purpose of a search and for the purpose of locating people and/or evidence in connection with a suspected offence.
[74]Relevantly, ss 91 to 96 of the SSA state:
91 Application of rules about consent searches
Sections 92 to 95 apply in respect of consent searches undertaken by an enforcement officer in circumstances where a power of search by an enforcement officer to which this Part applies or any provisions of this Part apply (whether a warrantless power or a power able to be conferred by a search warrant) could be exercised if the officer held a particular belief or suspicion.
92 Purposes for which consent search may be undertaken
An enforcement officer may ask a person to consent to undergo a search or to consent to a search being made of a place, vehicle, or other thing apparently in the control of the person, if the enforcement officer wishes to conduct the search for 1 or more of the following purposes:
(a) to prevent the commission of an offence:
(b) to protect life or property, or to prevent injury or harm:
(c) to investigate whether an offence has been committed:
(d) any purpose in respect of which the enforcement officer could exercise a power of search conferred by an enactment, if he or she held a particular belief or suspicion specified in the enactment.
93 Advice that must be given before consent search undertaken
Before conducting a search by consent, the enforcement officer who proposes to conduct it must—
(a) determine that the search is for a purpose authorised by section 92; and
(b) advise the person from whom consent is sought of the reason for the proposed search; and
(c) advise the person that he or she may either consent to the search or refuse to consent to the search.
94 Circumstances where search by consent unlawful
A search by consent is unlawful if—
(a) it is not for a purpose set out in section 92; or
(b) the enforcement officer fails to comply with section 93(a), (b), or (c); or
(c) the search is undertaken in reliance on a consent given by a person who does not have authority to give that consent.
95 Ability of persons under 14 years to consent to searches of places, vehicles, or other things
(1) A person under 14 years of age is unable to consent to the search of a place, vehicle, or other thing.
(2) Subsection (1) does not apply to a person under 14 years of age who is found driving a vehicle with no passenger of or over the age of 14 years with authority to consent to the search of the vehicle.
96 Exceptions to consent search rules
Sections 92 to 95 do not—
(a) apply to a search conducted as a condition of entry to any public or private place; or
(b) apply to a search conducted in accordance with a power conferred by an enactment; or
(c) affect the rule of law relating to the implied licence to enter property.
[75] Entry into the home, albeit with the consent of Ms Grant, would be unlawful if it was “a search” as referred to in s 94 and if the Police had failed to determine the search was for a purpose authorised by s 92 and had failed to give the advice referred to in s 93(b) and (c). Section 94(c) is not relevant. The officers did obtain consent from Ms Grant, an occupier of the property.
[76] In R v Alsford, the majority of the Supreme Court described the purpose of this subpart:26
[21] We think it significant in this context that Parliament has not, despite the existence of the search warrant process, prohibited consent searches by the police where they do not have sufficient information to obtain a warrant. Rather, it has recognised that the police may carry out consent searches (whether or not they have grounds to obtain a warrant) but has regulated them.
… The effect of [s 91] is that a consent search may be undertaken in
26 R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710.
accordance with ss 92-95 even though the officer undertaking it does not have the suspicion or belief necessary to obtain a search warrant. This is made clear by the Law Commission, which specifically rejected introducing a “reasonable grounds” requirement for consent searches.
[22] It appears that the consent search provisions were introduced to meet the problems that were perceived to result from the police having an unrestricted ability to conduct consent searches (despite the existence of the warrant process). The effect of the provisions is to restrict the circumstances in which such searches can be conducted lawfully, by setting out the purposes for which a consent search may be conducted and by establishing pre- conditions for a valid consent. The existence of the consent search provisions suggests that Parliament did not see the enactment of the production order process as necessarily restricting the ability of the police to obtain information voluntarily.
Was the entry by Police into the property a “search”?
[77] Before applying the facts to subpt 2 of the SSA, it is first necessary to determine whether the constables’ entry into Mr Grant’s property amounted to a “search”.
[78] Mr Eaton argued the entry was clearly a search as it was undertaken for the purpose of locating people and/or evidence in connection with a suspected offence. Ms Lancaster submitted that, in all the circumstances, with the way the Police entered the property and with the purpose of that entry, it should not be treated as a search.
[79] The term “search” is not defined in the SSA. Whether the conduct of the Police constitutes a search in any given case is a fact-specific inquiry.27 The Supreme Court in Hamed v R did not provide a single definition of “search” but adopted the approach of the Supreme Court of Canada that “[i]f the police activity invades a reasonable expectation of privacy, then the activity is a search”.28 Blanchard J identified two elements to the inquiry, for which there appeared to be majority support: whether the person affected had such an expectation in fact and whether the expectation was one that society is prepared to regard as reasonable.29 In R v Alsford, the Supreme Court
27 Wright v Bhosale [2016] NZCA 593, [2017] NZAR 203 at [45], citing Lorigan v R [2012] NZCA 264, (2012) 25 CRNZ 729 at [23]-[24].
28 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [163], quoting R v Wise [1992] 1 SCR 527
at 533. See also Elias CJ at [8]-[10], Blanchard J at [161]-[168], Tipping J at [220]-[224], McGrath J at [265].
29 Hamed v R, above n 28, at [163].
adopted Blanchard J’s approach.30 It was also adopted by the Court of Appeal in Lorigan v R31 and Ward v R.32 Hence, this approach should be followed in the present case.
[80] I consider it is clear Mr Grant subjectively had an expectation of privacy against state intrusion into his own home. I also am of the view that this expectation was one that society would be prepared to regard as reasonable given the primacy afforded in society generally to the right of privacy in one’s own home. Here, the Police entered the property to speak to the driver and not for the purpose of examining the property to see if the driver was there. Although the constables could assess with a strong degree of likelihood that the perpetrator of the driving offence was in the property before entering it, at that point they did not know the identity of the driver. Entry into the house was necessary to ascertain the driver’s identity and to arrest that person. I consider it would be artificial to characterise the entry of Police officers into a citizen’s home, to locate and identify an offender and to make an arrest, as anything but an invasion of a reasonable expectation of privacy and therefore as a search.
Was the entry into the home for a purpose specified in s 92?
[81] On Constable Henare’s account of what happened, the Police entered the property not for the purpose of investigating whether an offence had been committed but to identify and charge whoever had committed the offence. They did not enter the premises to prevent the commission of an offence or to protect life or property or to prevent injury or harm.
[82] In considering whether entry into and then a search of the home was lawful in terms of s 92(d), the Police and the Judge needed to determine if a power of search was conferred by any enactment and if the Police had a particular belief or suspicion referred to in the enactment.
[83] For the reasons already discussed, this search was not exercised pursuant to the powers of a warrantless search set out in s 8.
30 R v Alsford, above n 26, at [50].
31 Lorigan v R, above n 27, at [22].
32 Ward v R, above n 25, at [31].
[84] Entry into the premises was also not authorised by s 119 of the Land Transport Act 1998. Section 119 empowers a constable to enter premises for the purpose of determining whether to require a driver of a motor vehicle to undergo a breath screening test or an evidential breath test. The constable must enter the premises in the course of the fresh pursuit of a driver whom the constable has good cause to suspect has committed a specified driving offence and has failed to stop when required to do so. The power may be exercised independently of an intention to arrest. On Constable Henare’s evidence, this was not such a situation.
[85]Therefore, entry was not for the purposes of s 92.
[86] There was no evidence from Constable Henare that he had advised Ms Grant of her right to refuse consent to an entry. He accepted it would have been good practice to have told Ms Grant he had no legal authority to enter without her consent but he did not do that because she was friendly and cooperative.
[87] Pursuant to s 94, entry into the home, albeit with the consent of Ms Grant, would be unlawful if it was “a search” as referred to in s 94 and if the Police had failed to determine the search was for a purpose authorised by s 92 or had failed to give the advice referred to in s 93(b) and (c).
[88] On the evidence of Constable Henare, Mr Grant’s home had been entered and searched without the Police officers determining that the search was for a purpose authorised by s 92 and without giving Ms Grant the advice referred to in ss 93(b) and (c). Accordingly, pursuant to s 94, the search was unlawful.
[89] It follows that the admission subsequently obtained from Mr Grant that he was the driver and then the results of the breath alcohol testing were obtained in consequence of an unlawful search under the SSA. The evidence was thus obtained improperly in terms of s 30 of the Evidence Act.33 The balancing test set out in s 30 therefore had to be applied.
33 Evidence Act 2006, s 30(5)(a); Ward v R, above n 25, at [47], citing R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 at [46]-[47]; and Boskell v R [2014] 497 at [9].
The s 30 balancing test
[90] The District Court Judge said, had evidence been obtained improperly, either because there had been no NZBORA caution before the men were asked who was the driver or because of the way the house was entered, he would have admitted the evidence on the s 30 balancing test.
[91] I must consider whether exclusion of the evidence would be proportionate to the impropriety giving appropriate weight to the impropriety and taking proper account of the need for an effective and credible system of justice.34 In this assessment, the Court may have regard to the factors set out at s 30(3) of the Evidence Act.
[92] In terms of the importance of any right breached by the Police, the right to be secure from trespass and unreasonable search in the privacy of one’s own home is one of the most fundamental in our society and evidence obtained in the course of a breach by the agent of the state of such a fundamental right should not be admitted into evidence lightly. However, I consider the intrusion on the Grants’ rights was at the low end of seriousness.
[93] Ms Grant was asked if and confirmed that two men had returned to the property recently. The Police said they wished to speak to them. She agreed to the Police entering the home to do so. Once inside, before asking any questions, Constable Henare had indicated he was investigating a nearby accident from which someone had been tracked to this address. When Constable Henare asked who the driver was, it would have been clearly apparent to Mr Grant that the constable was seeking to identify who had committed a suspected driving offence. Those men did not object to the Police either being in the home or to the question that was initially asked.
[94] I do not consider the nature of the impropriety in this case can be characterised as deliberate or made in bad faith. At the highest, there was a degree of absent- mindedness and nonchalance by the officer in neglecting to expressly advise Ms Grant of her right to refuse consent to the entry. As the evidence strongly suggests, she
34 Evidence Act 2006, s 30(2).
showed no hesitation in allowing the officers to enter her home and the impropriety was of a minor or technical nature in the circumstances. For the reasons discussed, had the officers been denied entry, it is likely they would have more carefully assessed the whole situation. Had they done so, it is likely they would have formed the necessary belief to have been empowered by s 8 to make a warrantless entry and search of the home.
[95] The evidence is of a high quality and is essential to the prosecution case on the charges now of driving carelessly and with excess blood alcohol. There was urgency in identifying the perpetrator and obtaining the breath or blood alcohol evidence as the level of alcohol would have been dissipating in Mr Grant’s bloodstream as time passed. The officers also made a considered decision to “go down the road of consent”, albeit without being fully apprised of the pre-conditions of valid consent under ss 92 to 95, and were acting in a situation that involved a degree of urgency. They were able to enter the property without causing any damage and without objection from those who were inside.
[96] I adopt the District Court Judge’s assessment as to the seriousness of the offence:35
[79] The overall public view of drink driving is that it is a moderately serious driving offence. Here the defendant’s blood alcohol reading was over twice the legal limit. There had been a car accident. I find there is a strong public interest in such cases being pursued albeit that the case is not in the most serious of categories.
[97] Balancing these relevant factors, I find that exclusion of the evidence of Mr Grant’s admission would not be proportionate to the impropriety. It is naturally of critical importance that Police officers exercising powers of search and entry do so in rigorous adherence to the law. However, the exclusion of the pivotal admission evidence, obtained in accordance with the Practice Note, would be disproportionate to the breach by Constable Henare here of failing to advise Ms Grant of her right to refuse entry in circumstances where neither she nor Mr Grant, having been informed of the reason for the officers’ approach to the property, demonstrated any reticence or objection to their entry. Adopting the finding of the Court of Appeal in Round v R,
35 Police v Grant, above n 3.
there would be an obvious gap in the law if it allowed Mr Grant to flee the crash scene, observed by witnesses, and so avoid the Police obtaining evidence that he had committed a driving offence while under the influence of alcohol.36
[98] In reaching this conclusion, I also have regard to the fact that, although the power of search and arrest under s 8 was not available because the Police officers had not consciously turned their minds to the requisite grounds, it is likely they would have been able to exercise those s 8 powers if they had been refused entry. In the circumstances, I consider it would have then been reasonable for them to conclude that inside the house was one of the two men who had been driving the vehicle. It would have been reasonable for the constables to believe, had they turned their minds to it, that the offending driver had entered the home and the Police were being denied entry because the driver did not want to be identified and did not want to undergo an evidential breath or blood alcohol test. They could reasonably have concluded that, if they did not enter the home, identify and arrest the suspected offender, evidence of a breath alcohol or blood alcohol offence would be altered or concealed.
Conclusion
[99] For all these reasons, the evidence in dispute is admissible. The appeal is dismissed.
Solicitors:
J H M Eaton QC, Barrister, Christchurch Raymond Donnelly & Co., Christchurch.
36 Round v R [2020] NZCA 557 at [41].
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