Higgins v Police

[2022] NZHC 445

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000364

[2022] NZHC 445

BETWEEN

ANDREW JAMES HIGGINS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 November 2021
Appearances:	H R Smith for the Appellant J A Lee for the Respondent
Judgment:	11 March 2022

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 11 March 2022 at 4.30pm.

Registrar/ Deputy Registrar

Solicitors/Counsel:

H R Smith, Auckland

Meredith Connell, Auckland

HIGGINS v NEW ZEALAND POLICE [2022] NZHC 445 [11 March 2022]

Introduction

[1]    On 2 July 2021 Judge A M Fitzgibbon in the North Shore District Court convicted Andrew Higgins of failing or refusing to permit a blood specimen to be taken after an enforcement officer had required him to do so pursuant to section 72(1)(e) of the Land Transport Act 1998 (Act). 1 This was Mr Higgin’s third (or subsequent) relevant conviction.2 Mr Higgins appeals. Mr Higgins has not been sentenced pending the outcome of his appeal against conviction.

[2]    On 30 May 2020, in circumstances described more fully below, the enforcement officer, Constable Law, stopped Mr Higgins while he was driving his vehicle on Nelson Street, Northcote. After speaking with Mr Higgins on the side of the road Constable Law required Mr Higgins to undergo a compulsory impairment test (CIT) pursuant to s 72(1)(a) of the Act. Constable Law also required Mr Higgins to accompany him to the Auckland Harbour Bridge Police Station (Station) to undergo the CIT.3

[3]    Constable Law administered Mr Higgins’ CIT at the Station. Constable Law is trained to administer CITs. He determined that Mr Higgins had not completed the CIT in a satisfactory manner.4 On that basis he required Mr Higgins to provide a blood specimen. Mr Higgins refused.

[4]    The primary issue in this appeal, as it was at trial, is whether Constable Law was empowered pursuant to s 71A(2)(b) of the Act to require Mr Higgins to accompany him to the Station to undergo the CIT. Mr Higgins says not. He says Constable Law was required pursuant to s 71A(2) to administer the CIT at the roadside where he was stopped. Mr Higgins says he was arbitrarily detained by Constable Law when Constable Law took him to the Station, in breach of his rights under the New Zealand Bill of Rights Act 1990 (NZBoR).5 He says the evidence of the CIT is therefore inadmissible.

1      New Zealand Police v Andrew James Higgins [2021] NZDC 13378.

2      Land Transport Act 1998, ss 60(1)(a) and 60(3). Maximum penalty two years’ imprisonment, a fine of $6,000 and a disqualification for more than one year.

3      Land Transport Act 1998, s 71A(2(b).

4      Land Transport Act 1998, s 72(1)(e).

5      Bill of Rights Act 1990, s 22.

Background facts

[5]    On 30 May 2020 Constable Law saw Mr Higgins’ vehicle take the Stafford Road off ramp off the Northern Motorway just north of the Auckland Harbour Bridge. At approximately 3.37pm Constable Law stopped Mr Higgins in Nelson Street after observing Mr Higgins’ vehicle emitting smoke. As the vehicle came to a stop Constable Law also observed the front tyre on the passenger side of the vehicle hit the kerb.

[6]    Constable Law spoke with Mr Higgins on the side of the road. Constable Law says that during this discussion he observed that: Mr Higgins’ pupils were pinpoint; he was restless and talking at a high speed; and he did not appear to understand instructions. Constable Law asked Mr Higgins if he had been drinking. Mr Higgins said he had one beer. Constable Law administered a breath screening test which Mr Higgins passed. Constable Law asked whether Mr Higgins had taken any medication or drugs that day. Mr Higgins said he had not, but mentioned that he was on medication for his Attention Deficit Hyperactivity Disorder (ADHD).

[7]    Constable Law says he noticed Mr Higgins was uneasy on his feet, staggering and swaying as he walked. He observed that Mr Higgins had a dry mouth and was continually drinking from his water bottle. Mr Higgins explained to Constable Law that he had been heading home to Hobson Street but had missed the turn off and ended up on the North Shore. Constable Law suspected that Mr Higgins had consumed a drug and formed the view that he should undergo a CIT.

[8]    In his formal witness statement Constable Law says that at 3:45pm he informed Mr Higgins that he was being detained for a CIT and was required to accompany him to the Station. Constable Law informed Mr Higgins of his rights under the NZBoR, which Mr Higgins confirmed he understood.

[9]    Constable Law and Mr Higgins then travelled to the Station. The Station is a short distance from where Mr Higgins had been stopped; Constable Law said in evidence it is less than one minute’s drive. Constable Law administered Mr Higgins’ CIT at the Station where there is a dedicated testing area designed for that purpose. As noted above Constable Law determined that Mr Higgins had not satisfactorily

completed the CIT. He required Mr Higgins to provide a blood specimen. Mr Higgins spoke with his lawyer and refused to provide the blood specimen.

Statutory framework

[10]   A person commits an offence if he or she fails or refuses to permit a blood specimen to be taken after having been required by an enforcement officer to do so under s 72 of the Act.6

[11]Section 72(1)(e) of the Act provides:

72 Who must give blood specimen at places other than hospital or medical centre

(1)            A person must permit a health practitioner or medical officer to take a blood specimen from the person being required to do by an enforcement officer if –

…

(e) the person does not complete a compulsory impairment test in a manner satisfactory to an enforcement officer, who was trained to give the test, when required to do so by an enforcement officer under section 71A.

[12]Section 71A relevantly provides:

71A Requirement to undergo compulsory impairment test

(1)    An enforcement officer may require any of the following persons to undergo a compulsory impairment test given by an enforcement officer trained to give the test if the enforcement officer has good cause to suspect that the person has consumed a drug or drugs:

(a) a driver of, or a person attempting to drive, a motor vehicle on a road:

…

(2)    An enforcement officer may require a person specified under subsection (1) to—

(a)    remain in the place where stopped, for a period of time that is reasonable in the circumstances, to undergo the compulsory impairment test; or

6      Land Transport Act 1998, s 60(1)(a).

(b)   accompany an enforcement officer to another place to undergo the compulsory impairment test if it would enhance road safety, personal safety, the person’s privacy, or the giving or taking of the test.

(emphasis added)

District Court Trial and Judgment

[13]   Judge Fitzgibbon correctly identified the issue in dispute to be whether the CIT was obtained lawfully. In the District Court, as in this Court, Mr Higgins argued that the CIT was not lawfully obtained because none of the circumstances in s 71A(2)(b) of the Act applied to enable Constable Law to require Mr Higgins to accompany him to another place to undertake the CIT. That is, Mr Higgins argued that moving to the Station would not have enhanced: road safety; personal safety; his privacy; or the giving or taking of the test.

[14]   Constable Law gave evidence-in-chief by reading his formal witness statement and answering the prosecutor’s additional questions. Constable Law’s evidence-in- chief did not include evidence as to which of the enhancements described in s 71A(2)(b) (i.e. road safety, personal safety, privacy or the giving and taking of the CIT) applied so as to empower him to require Mr Higgins to accompany him to the Station to undergo the CIT. However, Constable Law was carefully cross-examined about this, and he also gave relevant evidence in re-examination.

[15]   In her decision Judge Fitzgibbon summarised Constable Law’s evidence as follows:

[7]        The Constable was asked during the course of cross-examination why the CIT had not been performed at the location where the defendant’s vehicle was stopped by the Constable. The Constable agreed that on 30 May it was a clear, sunny day and that the defendant was answering his questions compliantly; he also passed the breath test. In relation to the question as to why the CIT was not performed roadside, which counsel for the defendant said was contemplated by the legislation, the response was that it was safer, easier and would give the defendant the privacy for the test to be performed at the Harbour Bridge Base, which was less than a minute away from the location at which the car was stopped.

[8]        The Constable further explained that performing the road test on the side of the road where there could be people close by at the time the CIT was to be taken was an issue as to the defendant’s privacy [sic]. He also referred

to the fact that a straight-line test was required and that would be difficult along a rough concrete outside area, […] whereas the Harbour Bridge base had a facility with a flat floor carpet for the standing part of the test which was marked and it was private. The Constable said that there were a lot of variables in this case regarding the roadside test, including road safety.

[16]Judge Fitzgibbon referred to relevant authorities, namely R v Abrahim7 and

McMullen v Police.8 Her Honour then concluded that:

[14] The Constable in the current case turned his mind to the factors in s 71(A)(2)(b), before requiring the defendant to accompany him to another place for the CIT. The Constable decided that it would enhance personal safety, the defendant’s privacy or the giving and taking of the CIT for it to be undertaken at the base and he referred in his evidence to his specific concerns.

…

[18]      I consider the Constable’s evidence was credible. He has considerable experience in CIT testing and he made an assessment in the circumstances that the CIT should be performed at the base. He gave reasons for that which included safety, being near a public park where there could be other people involved, the car was on the side of the road, there were also privacy reasons, and also he considered that the test would be enhanced if it was at the base, which I consider that he was entitled to do within the wording of s 71A(2), which says that a person needs to accompany an enforcement officer for a number of reasons if it would enhance the giving or taking of the test.

[19]    So the constable was of the view that the giving or taking of the test was enhanced, and therefore an assessment was made and the Police have established beyond reasonable doubt that the decision to perform the CIT at the base complies with s 71A(2)(b) of the Act. The CIT evidence is therefore not excluded.

Points on appeal

[17]   Mr Smith submits that Judge Fitzgibbon erred in her application of s 71A(2)(b). In particular, he submits that:

(b)Neither Constable Law’s notes, his formal witness statement, nor his additional evidence-in-chief make any mention of the factors that need to established under s 71A(2)(b) before Constable Law could be empowered to require Mr Higgins to accompany him to the Station to carry out the CIT. Constable Law’s first and only attempt to justify his decision to detain Mr Higgins in this way was ex post facto, while under

7      R v Abrahim [2020] NZDC 14910.

8      McMullin v Police [2012] NZHC 2597.

cross-examination. Mr Smith says this gap in Constable Law’s evidence tends to suggest that at the relevant time he never turned his mind to these factors at all.

(c)Judge Fitzgibbon accepted Constable Law’s ex post facto justifications at face value, without objectively reviewing his stated reasons for detaining Mr Higgins. As such the Judge failed properly to determine whether Constable Law was lawfully entitled to require Mr Higgins to go to the Station solely for the CIT.

(d)Judge Fitzgibbon misapplied R v Abrahim and in particular McMullin v Police in concluding that s 72A(2) entitles Constable Law to determine subjectively whether to conduct the test roadside or at the Station.

(e)If Judge Fitzgibbon had objectively reviewed Constable Law’s evidence she would have found there was no basis for him to conclude that road safety, personal safety or privacy would be enhanced by requiring him to undertake the CIT at the Station.

[18]    In terms of road safety, Mr Smith notes that Nelson Street is a dual carriage way and points to Constable Law’s evidence that there were no cars parked on the left- hand side of Nelson Street where Mr Higgins had stopped. Nor were there any obstructions on the right-hand side impeding traffic. And Constable Law recalled only one other vehicle going past at the time he was with Mr Higgins.

[19]   In terms of personal safety and privacy, Constable Law explained that at the time he was dealing with a person who he believed to be under the influence of drugs. He said they were in an area used by the public as a thoroughfare with a neighbouring park where people routinely walk and run. Constable Law said that in this situation people could interfere with police operations, and also start filming which would be distracting and raise issues for Mr Higgin’s privacy. However, Mr Smith points to Constable Law’s acknowledgement that at the relevant time there was no one running

past, filming or using the area as a thorough fare. He also says that Mr Higgins did not raise any privacy or safety concerns.

[20]   In terms of the “giving or taking of the CIT”, Mr Smith acknowledges this will undoubtedly be enhanced if the CIT is undertaken in a designated space designed for that purpose. However, he says that in the present case there was nothing in the environment on the Nelson Street roadside that rendered Constable Law unable to conduct the CIT there.

[21]   Mr Smith submits that in the circumstances Mr Higgins was taken to the Station purely as a matter of convenience. That is not permitted pursuant to s 71A(2)(b). As such, he says that Mr Higgins was unlawfully and arbitrarily detained when he was required to attend the Station and the CIT evidence should have been excluded.

Legal test on appeal

[22]   The relevant principles concerning appeals against conviction following a judge alone hearing are not in dispute. The appeal must be allowed if the District Court Judge has erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred,9 or if a miscarriage of justice has occurred for any other reason.10 “Miscarriage of justice” means any error, irregularity, or occurrence in or in relation to or effecting the trial that:11

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial that was a nullity.

[23]In any other case the appeal must be dismissed.12

9      Criminal Procedure Act 2011, s 232(2)(b).

10     Criminal Procedure Act 2011, s 232(2)(c).

11     Criminal Procedure Act 2011, s 232(2)(b).

12     Criminal Procedure Act 2011, s 232(3).

[24]   The principles in Austin, Nichols & Co Inc v Stichting Lodestar apply.13 The appellate Court is required to form its own view on the evidence and make its own assessment.14 If the Court comes to a different view on the evidence the trial judge would have erred and the appeal must be allowed.15 However, it is for the appellant to show that an error has been made and that the judgment under appeal is wrong.16

Discussion

[25]   I agree with Mr Smith that s 71A(2)(b) carefully prescribes the circumstances that must exist before an enforcement officer has any discretion to require a person to accompany him or her to another place to undergo the CIT. An enforcement officer will only have that discretion if to do so “…would enhance road safety, personal safety, the person’s privacy, or the giving or taking of the test.”

[26]   I also agree with Mr Smith that an enforcement officer must carry out this assessment objectively, not subjectively. Unless requiring a person such as Mr Higgins to go to another place would give rise to the enhancements described then an enforcement officer such as Constable Law may not do so.

[27]   Mr Smith referred to Judge Dawson’s judgment in R v Abrahim.17 In that case Mr Abrahim was sleeping in his vehicle which he had parked in the back area of a service station. A police officer woke Mr Abrahim and required him to go to a police station to carry out a CIT. In the course of moving Mr Abrahim’s vehicle for that purpose the police noticed a bag which appeared to contain methamphetamine. The police conducted a warrantless search of the vehicle and found methamphetamine, ecstasy tablets, $12,000 in cash and blank ammunition cartridges.

[28]   Mr Abrahim sought to exclude the evidence on the basis that the search was unlawful. Judge Dawson held that the police were not entitled to require Mr Abrahim

13     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.

14 At [16].

15     Sena v Police [2019] NZSC 55 at [38].

16     At [38]; see also Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].

17     R v Abrahim, above n 7.

to accompany them to the police station and their search of his vehicle was unlawful. Relevantly, Judge Dawson held that:

[13]      Section 71A(2)(b) clearly provides for a CIT to be taken elsewhere if one or more of the circumstances outlined arise. In this case none of those factors exist. The defendant and his vehicle were at the back area of the service station away from its forecourt and well away from the roadside. There was little if any traffic passing through that area. All the tests required for a CIT test could have been conducted there. Sergeant Ross was qualified to conduct a CIT test and could have done so.

[14]      The police witnesses’ explanation for taking the defendant away to the police centre was that it was their usual practice to do this and they were following that usual practice. If that is the case, then the usual practice of the police is wrong. They cannot adopt a practice that overrides the legislation. The police were not entitled to require the defendant to accompany them to the police station when none of the factors in subs (2)(b) existed.

[29]   I agree with Judge Dawson’s analysis.18 Section 71A(2) does not permit the police to adopt a standard practice of requiring drivers to accompany them to a police station (or anywhere else) to carry out CITs. They may only do so when that would give rise to one or more of the enhancements described in s 71A(2)(b).

[30]Judge Fitzgibbon distinguished Abrahim as follows:

[13]  In Abrahim, it was a failure to conduct the test at the roadside that led to the police entering the defendant’s car. This would not have been necessary if the defendant had passed the roadside CIT. So those facts are slightly different from the facts in the current case.

[31]   With respect, I do not consider Abrahim can be distinguished in that way. Whether or not Mr Abrahim might have passed the CIT at the roadside was beside the point. The search was unlawful because Mr Abrahim should not have been required to accompany the officer to the police station to carry out the CIT at all. Instead, Judge Dawson held the police should have conducted the defendant’s CIT behind the service station where he had parked. That is precisely the issue that arises here.

[32]   I also agree with Mr Smith that Judge Fitzgibbon erred in her application of Venning J’s judgment in McMullin v Police.19 Her Honour found that:

18     Judge Dawson went on to admit the evidence obtained in the unlawful search pursuant to s 30 of the Evidence Act 2006. In the present case the Police make no application pursuant to s 30.

19     McMullin v Police, above n 8.

[16]    At paragraph [36] of the High Court decision, Venning J says:

There is nothing inherently objectionable in requiring the test to carried out in a manner satisfactory to the enforcement officer. The enforcement officer is qualified by training to determine whether the driver has completed the test satisfactorily or not. I accept Mrs O’Sullivan’s submission that, as in any prosecution, the Court is still entitled to make its own assessment as to the credibility and reliability of the evidence given before it. The officer can be required to give evidence of the process he or she followed, as well as his or her findings. Where the evidence confirms the test as being completed in accordance with correct procedure (which can be tested in the usual way under cross-examination) the subjective finding of the relevant officer as to whether or not the test was completed to his or her satisfaction should be accepted.

[17]    That relates to the CIT test, which in this case the constable found had not been satisfactorily completed, but in my view the reasoning also applies to the test of whether or not the factors in s 71A(2) apply.

(emphasis added)

[33]   Venning J was referring to the test under s 72(1)(e) of the Act which provides that a person may be required to provide a blood specimen if she or he does not complete a CIT “in a manner satisfactory to an enforcement officer”. Venning J confirmed that this was a subjective assessment for the trained enforcement officer carrying out the CIT. That is quite different to the test in s 71A(2)(b). An enforcement officer can only require a person to carry out a CIT at another place if it “would enhance” the factors described. In my view that is an objective test.

[34]   Parliament could easily have expressed this as a subjective test, had that been its intent. It could have used the language of s 72(1)(e), empowering officers to take drivers to another place for a CIT if the officer was “satisfied” that to do so would enhance road safety etc. But that is not the test. Parliament required that taking the driver elsewhere would enhance the matters described.

[35]   This error may have caused Judge Fitzgibbon to conclude that it was sufficient for Constable Law to have turned his mind to whether the enhancements listed in s 71A(2)(b) would follow if Mr Higgins was taken to Station.20 If so, I consider that would be an error. Her Honour was required to assess the evidence to determine

20     I refer in particular to paragraphs [14], [18] and [19] of the judgment, set out at paragraph [16] above.

whether detaining Mr Higgins and taking him to the Station would enhance the relevant factors listed.

[36]   However, I do not consider that Judge Fitzgibbon erred in her assessment of the evidence (or otherwise) to such an extent that a miscarriage of justice has occurred. Having reviewed the evidence I agree with Constable Law’s assessment that the giving and taking of the CIT was enhanced by carrying it out at the Station. The CIT involves an eye assessment; a walk and turn assessment; and a one leg stand assessment.21 Constable Law described in evidence (albeit in re-examination) the way in which the testing room at the Harbour Bridge Station has been set up to facilitate CITs.

[37]   That is not to say that it will always enhance the giving or taking of a CIT to require it to be carried out at a Police Station with an area set up for that purpose. In the present case it is highly relevant that the place where Mr Higgins was stopped was so close to the Station to which he was taken. As noted above, Constable Law said it was less than one minute’s drive.

[38]   Given that the purpose of the CIT is to ascertain whether a driver is under the influence of drugs, the length of time between a driver being stopped and undertaking the CIT will always be important. When the CIT is carried out where a driver is stopped, she or he may only be required to remain for a period of time that is “reasonable in the circumstances”.22 And when drivers such as Mr Higgins are taken to a police station for a CIT I agree with Venning J’s observations in McMullin:

[52]  However, I do accept that the legislation appears to contemplate the  test will either be carried out at the roadside or shortly thereafter, when a person has been required to return to the police station. There may be cases where the only reason the person is required to accompany the officer to the police station is for the conduct of a CIT. In such cases there will come a point in time where the length of detention for that purpose will become unreasonable. That will be a matter of assessment in each case.

[39]   For these reasons I conclude that Constable Law was correct to conclude that the giving and taking of the CIT would be enhanced by carrying it out at the Station.

21     Land Transport (Compulsory Impairment Test) Notice 2009

22     Land Transport Act 1998, s 71A(2)(a)

Mr Higgins was lawfully detained for that purpose, and the evidence of the CIT is admissible.

[40]   Finally, I do not accept Mr Smith’s submission that Constable Law’s evidence about his decision to take Mr Higgins to the Station lacks credibility because it was adduced in cross-examination rather than evidence-in-chief. However, given the requirements of s 71A(2)(b), I consider it would be best practice for enforcement officers who decide to require drivers to accompany them elsewhere for a CIT to note their reasons for that decision. The test they apply in making that decision is an objective one, and as Mr Smith repeatedly emphasised the decision is subject to review.

Result

[41]The appeal is dismissed.

Robinson J