Hoeflich v Police
[2018] NZHC 1999
•8 August 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-000154
[2018] NZHC 1999
UNDER the Criminal Procedure Act 2011 IN THE MATTER
of an appeal against conviction and sentence
BETWEEN
ELLA DIANA HOEFLICH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 July 2018 Appearances:
D M M Dickinson & I L S Archibald for Appellant E A M Mok for Respondent
Judgment:
8 August 2018
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 8 August 2018 at 11:00 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland
HOEFLICH v POLICE [2018] NZHC 1999 [8 August 2018]
Introduction
[1] Ms Ella Hoeflich appeals from her District Court conviction for driving with an excess breath alcohol level. She also appeals from the District Court Judge’s decision to disqualify her from holding or obtaining a driver’s licence for a period of six months, and declining to find special reasons under s 81 of the Land Transport Act 1998 for not imposing a sentence of disqualification.
[2] A valid breath screening test is a pre-requisite for a police officer to require a person to undergo an evidential breath test under s 69 of the Land Transport Act. Consequently, the key question that arises in this appeal is whether the two police officers who entered Ms Hoeflich’s home and then required her to undergo a breath screening test were present in her home with actual or implied consent, or whether their presence was unlawful.
Background
[3] Ms Hoeflich resides with her three daughters at Mt Roskill in Auckland. Her daughters are aged 21, 16, and four years. On Sunday 9 October 2016 she was at her home with her daughters. Her partner was away overseas and his Ford Ranger motor vehicle was parked in the driveway.
[4] At around midday she received a phone call from her friend Veronica Shale, who was visiting her father in hospital. Ms Shale was upset by her father’s situation and it was arranged that she would come over to Ms Hoeflich’s house for the afternoon. She arrived around 12.30pm.
[5] At around 2.00pm, the two friends opened a bottle of wine that Ms Shale had brought with her, and over a period of several hours until around 5.00pm they talked, drank the wine and ate some crackers and hummus. During this time Ms Hoeflich was also from time to time attending to her youngest daughter and preparing the evening meal for her family.
[6] At around 5.00pm, Ms Hoeflich and Ms Shale decided to drive to a nearby service station to purchase some cigarettes. Ms Hoeflich drove the Ford Ranger. This was the first time she had driven it. Her own vehicle was a much smaller car.
[7] On the way back home after purchasing the cigarettes, while driving around a roundabout, the front left wheel of the Ford Ranger struck the curb. The impact with the curb dislodged the tyre from the wheel rim, causing a loud explosive sound. Despite the vehicle having a deflated and displaced front tyre, Ms Hoeflich decided to drive back to her home, which was only a short distance away.
[8] The explosive sound was heard by Mr Damien Cahill, who that afternoon was visiting his parents who live in the same street as Ms Hoeflich. Mr Cahill works as a Warrant of Fitness vehicle inspector. Hearing the loud noise, Mr Cahill went outside and saw the Ford Ranger being driven along the road with the left front tyre displaced. He thought that the driver of the Ford Ranger must have struck something and had not stopped to check what had been hit. He got into his own car and followed it. After a short distance, the Ford Ranger pulled into the driveway of a house. Mr Cahill stopped his vehicle across the entrance of the driveway to prevent the Ford Ranger from being driven away.
[9] Mr Thomas Johnson is a neighbour of Mr Cahill’s parents. He also heard the loud bang which seemed to come from the top of the road. He then heard a metal scraping sound which seemed to be getting closer, and he went outside to see what was happening. He saw a white coloured twin-cab vehicle being driven quite fast along the road with the front left tyre off the rim. He thought that it might be a stolen vehicle, and he ran along the road following it. As he was running, the vehicle turned into a property in the street. Shortly afterwards Mr Johnson’s neighbour Mr Cahill drove up in his car and stopped outside Ms Hoeflich’s address.
[10] Ms Hoeflich and Ms Shale were still seated in the vehicle. In his evidence Mr Cahill said that he spoke to the driver and asked her what she was doing driving like that. He said that the driver became quite agitated and aggressive and told him to “fuck off”. Mr Cahill said that it appeared to him that the occupants of the Ford Ranger were intoxicated.
[11] Mr Johnson was also present when Mr Cahill was speaking to the occupants of the Ford Ranger. He said that the driver and her passenger were a “little bit aggressive” and the driver seemed “a little bit intoxicated”. He said that the driver and her passenger both got out of their vehicle and were being spoken to by Mr Cahill. Mr Cahill’s father then arrived at the driveway and there was talk of contacting the police. Mr Johnson said that the driver reacted to Mr Cahill saying he was calling the police by telling them all to go away. Mr Cahill rang 111 and reported the matter to the police.
[12] Another neighbour, Mr Broden McPhail, who knows Ms Hoeflich, saw her driving the Ford Ranger past his house. He said the vehicle was “making a bit of a racket”, and he went along the road to her house to see what was happening. He was accompanied by one of his young sons, who is a close friend of Ms Hoeflich’s youngest daughter. When he arrived outside Ms Hoeflich’s house, she was standing with Ms Shale outside near the road. They greeted him and they all then went into the house. Mr McPhail was called as a defence witness. He said that when he spoke to Ms Hoeflich she was “stressed out” by having damaged her partner’s vehicle. He said that when in the house and while talking with Ms Hoeflich and Ms Shale he was offered a shot or two of whisky to drink, but he declined.
[13] Mr McPhail said that when he and his son had entered the house, his son and Ms Hoeflich’s youngest daughter had gone straight into her bedroom, which is the first room on the left-hand side inside the front door.
[14] Constables Carter and Dawson were on patrol in a vehicle at the time, and they were directed by the Police Northern Communications Centre to respond to Mr Cahill’s complaint. They arrived at Ms Hoeflich’s address some 15 minutes or so later. Upon arrival at the address, Constable Dawson observed the white Ford Ranger parked in the driveway of the property. He also saw some obvious gouge marks on the roadway leading to the driveway. He inspected the Ford Ranger and saw that the front left wheel rim was damaged with the tyre no longer on the wheel, but nearby.
[15] The two police officers first spoke to Mr Cahill and Mr Johnson who were present outside the address, and took brief statements from each of them. Constable
Dawson took several photographs of the Ford Ranger and of the scrape marks on the road leading to the driveway entrance. In one of the photographs Ms Hoeflich’s house appears in the background. The front door of the house can be seen in the photograph to be open.
[16] Having spoken to Mr Cahill and Mr Johnson, and having taken some photographs, the two police officers went to the front door of the house with the intention of locating and speaking to the driver of the Ford Ranger. What happened next is described quite differently by the constables on one hand, and the defence witnesses on the other. I shall start with the account given by the two constables.
Constable Carter’s account of entering the house
[17] Constable Carter said that having spoken to the person who had made the 111 call and having obtained a description of the driver of the vehicle, he entered the property. He said he noticed a black Mitsubishi four-wheel drive parked in the driveway. He said the vehicle had the registration FBA76, and it had the front left wheel completely caved in and looked like the axle had broken. He said Ms Shale was standing on the porch of the house smoking a cigarette.
[18] Constable Carter said that when he approached the front door, he asked Ms Shale who was driving the vehicle. He said she did not respond immediately, but then said that she was not the driver, and the driver was inside. He said that Ms Shale then opened the door and let the two police officers into the house, taking them through into the kitchen area. He said that there was a younger girl in the kitchen but he did not speak to her. Constable Dawson went and spoke with another woman in a separate room. Constable Carter says he himself did not see the other woman at that time.
[19] Constable Carter said he spoke to Ms Shale in the kitchen and again asked her who was the driver of the vehicle. After pressing her to answer, she appeared to indicate that the driver of the vehicle was the woman speaking to Constable Dawson. He said that he then went and spoke to Constable Dawson, who told him the woman he was talking to had said she was the driver of the vehicle. Constable Carter said he then left the house and went outside to talk again to the informant, Mr Cahill. He said that “about a minute” after he had taken down some details from Mr Cahill, Constable
Dawson came out of the house with Ms Hoeflich and “placed her in the rear of the patrol vehicle”.
Constable Dawson’s account
[20] Constable Dawson said that he and Constable Carter went together to the front door of the house. He said that Ms Shale was at the front door, and that Constable Carter took the lead on approaching Ms Shale and asked her who was driving the vehicle. He said that he understood that Ms Shale responded saying it was not her and that the person who was driving it was inside. He said that Ms Shale then went in the door and he and Constable Carter followed her, walking through the house to the kitchen area where he saw Ms Hoeflich. He said that he and Constable Carter asked the two women who was driving the ute, but they looked at each other and did not reply. He said that he then asked Ms Hoeflich who owned the ute, and she replied that it was her partner’s vehicle. He said that Ms Hoeflich was drinking from a mug at the time and he assumed that she was drinking coffee. He said he again asked who was driving the ute and Ms Hoeflich said “me”. Constable Dawson said he then told Ms Hoeflich that she was required to undergo a passive breath test to see if she had been drinking alcohol.
[21] Constable Dawson said he then proceeded to administer the passive breath test, which produced a positive alcohol result. He then proceeded to administer a breath screening test to Ms Hoeflich which he did while they were still in the kitchen of the house. The breath screening test result was over 400 micrograms of alcohol per litre of breath, and he told Ms Hoeflich it was a failed result and that she was required to accompany him to the Avondale Police Station for the purpose of undergoing an evidential breath test, blood test, or both.
Ms Hoeflich’s account of events
[22] Ms Hoeflich gave evidence. She said that she had not driven her partner’s Ford Ranger before driving it that day. She said that as she and Ms Shale were driving back to her house after purchasing some cigarettes, she must have turned too hard at the roundabout and the vehicle struck the curb. She thought she had a flat tyre, but as her house was just around the corner she decided to drive home. She said that shortly
before she arrived at her house the front left tyre came right off the wheel. When she arrived at her house, she parked the Ford Ranger in the driveway, got out of the vehicle and retrieved the tyre from beside her letter box. She said that some men had arrived and they were yelling and being abusive towards her. She said she was “freaked out” about what had happened to her partner’s vehicle. She said she had a panic attack and could not breathe.
[23] Ms Hoeflich said that Mr McPhail and his young son arrived and went with her into the house and into her youngest daughter’s bedroom where she told him what had happened. She said that she then went into the kitchen where her eldest daughter was getting ready to go to a 21st party. She said that her daughter was drinking spirits and gave her a few shots of vodka to calm her down and that she spent about 15 minutes with her daughter, during which time she consumed the vodka shots and also some whisky. During this time she also spoke to Mr McPhail.
[24] Ms Hoeflich went to the bathroom and says that when she returned to the kitchen, Ms Shale was there and the police officers were coming into the kitchen from the hallway. She said that they asked her if she had been driving the ute and whether she had been drinking. She admitted she was the driver of the Ford Ranger, and said she had been drinking alcohol, including alcohol that her daughter had given her after the accident. She said that the police then asked her to go out with them to their car, which she did. She said that when in the police car she was given a device to talk into and asked to state her name and address. She said that she was then told that because the reading was not clear she was to be taken back to the Avondale Police Station, where she underwent a breath test. Under cross-examination Ms Hoeflich said that the police officer had not asked her to undergo any breath testing until she was in the police car, and that he did not have any breath testing device with him whilst in her kitchen.
Ms Shale’s account of events
[25] Ms Veronica Shale was called as a defence witness. She explained that she had arrived at Ms Hoeflich’s home at around 1.00pm. She said that she and Ms Hoeflich spent the afternoon talking and sharing a bottle of wine. At around 5.00pm, they
decided to go and purchase some cigarettes. She said that on the way back from purchasing the cigarettes, the vehicle hit the curb. She and Ms Hoeflich talked about pulling over, but the car felt fine so they proceeded into Ms Hoeflich’s street. She said the wheel sounded as if the tyre was flat, but as they approached Ms Hoeflich’s house there was a loud crash and when they got out of the vehicle they saw that the tyre had come off. She said some men arrived in two cars. They came onto the property and asked about what had happened to the vehicle in a quite aggressive manner. She said Ms Hoeflich’s children had come out of the house and because of the aggressive behaviour of the men who had arrived, she told Ms Hoeflich to go inside and take the children with her. She said that she told the men to leave the property, and then went inside. She said that she made a cup of tea and Ms Hoeflich’s middle daughter then told her that there were some police officers present at the house.
[26] Ms Shale said that she then went from the kitchen towards the “front of the hallway” and saw that the police were at the “beginning of the hallway”, and they asked her if she was the owner of the house. She responded saying that she was not the owner, and turned around to get Ms Hoeflich who had just gone into the bathroom. She said that she did not invite the police into the house, and that she was not at the front door smoking a cigarette immediately before the police entered the house. She said the door of the house was open. Ms Shale said that the conversation she had with the police officer about who had been driving the vehicle took place in the kitchen/sitting room area. She said that Ms Hoeflich had come out of the bathroom at that stage and she was also in the kitchen area while the police were questioning them. Ms Shale also said that the police took Ms Hoeflich into her bedroom and spoke to her there.
Mr McPhail’s account
[27] Mr McPhail said that he had been inside Ms Hoeflich’s house for about 20 minutes before the children playing in the front bedroom went quiet and he went to check on them. He said the bedroom door was open and was about one and a half metres inside the front door, and the front door itself was wide open. He said that when the police arrived about five minutes later, he was still in the bedroom with the two children. He said that when the police arrived he heard them make a noise at the
front door and they walked straight in. He said the police stopped at the bedroom door, looked at him and asked “Who are you?” When he responded saying he was a neighbour, the police proceeded on into the house. He said he did not see Ms Shale with them or hear her invite the police into the house.
Ms Hoeflich’s eldest daughter’s evidence
[28] The defence also called Ms Hoeflich’s eldest daughter as a witness. She said that on the afternoon of Sunday 9 October 2016, she was getting ready to go to a friend’s 21st birthday celebration. She said that she was pouring herself an alcoholic drink in the kitchen when her mother came into the room. Her mother was anxious, hysterical and “freaking out”, saying that she had damaged her partner’s ute and the tyre had come off. She said she then gave her mother several shots of vodka and possibly some bourbon whiskey to drink to calm her down. She said she was waiting to be collected to go to the 21st celebration, and after a short while she left for the party. She did not see any police officers at the house. She was not cross-examined.
The District Court Judge’s decision
[29] In a reserved judgment dated 15 May 2018,1 Judge Manuel first set out the factual background and summarised the respective positions of the parties. Her Honour noted the dispute between the parties as to whether Ms Shale had escorted the two police officers into the house prior to the breath testing procedures being carried out. The Judge further noted that the prosecution case was that Ms Shale was standing by the front door of the house when the police officers arrived and that she had told them that she was not the driver of the vehicle, before opening the front door and letting them inside. Once inside, the officers followed Ms Shale down a hall into the kitchen area. Her Honour said that both officers had adamantly denied that they had simply let themselves in, and neither constable could recall Mr McPhail being in the house.
[30] The Judge also noted Ms Hoeflich’s evidence that she was in the bathroom of her house when the police officers arrived, and her claim that she was not breath tested
1 Police v Hoeflich [2018] NZDC 6870.
until she was in the police vehicle heading for the Avondale Police Station, and that she had not appreciated that she was in any trouble until she was tested at the police station.
[31] The Judge said that Ms Shale had given evidence that although she was outside the house at some point after she and Ms Hoeflich had returned to the property, she was in the kitchen when the police officers arrived, and her conversation with the constables took place there.
[32] Her Honour also referred to Mr McPhail’s evidence that he was in the front room of Ms Hoeflich’s house when the police arrived, that the front door was open, and that he had spoken to the police officers when they passed the door of the bedroom, telling them he was a neighbour.
[33] The Judge identified three issues, namely whether the evidence was improperly obtained; whether any testing took place at Ms Hoeflich’s home; and whether Ms Hoeflich was given a disqualification notice before the election period had run its course.
[34]In relation to the first issue, her Honour said:
[32] It was common ground that if the evidence for the defence regarding the police entry on to the defendant’s property was accepted, then the evidence relied on by the police to prove the excess breath alcohol charge was improperly obtained and s 30 EA would come into play.
[33] Having had the opportunity to see and hear Constables Carter and Dawson and Ms Shale and Mr McPhail, I find that on the balance of probabilities the police entry into the defendant’s property was lawful and the consequent evidence was properly obtained.
[34] The police officers gave clear and detailed evidence. They are sworn officers. They were unshaken by extensive cross-examination. They were willing to make proper concessions.
[35] Ms Shale’s evidence was clear, but on the day in question she was in the midst of personal difficulties with her father terminally unwell and in hospital. She had been drinking with the defendant. She had been a passenger in a vehicle which had been involved in a reasonably serious collision. There was also some suggestion in the evidence that she was trying to protect the defendant, who was her friend.
[36] On his own evidence Mr McPhail was playing with toys on the floor of the front bedroom. He did not have an opportunity to observe what took place outside before the police entered the defendant’s home. It is unclear whether he had an opportunity to hear everything that was said outside the home at that time.
[37] The defence highlighted a photograph taken by the police on their arrival which showed the front door open rather than closed, and asked the court to infer that this supported the defence position. There is insufficient evidence about what took place between the time the police arrived and their entry on to the property for the photograph to be of much probative value. I have concluded that the photo adds little to the evaluative process.
The appellant’s submissions
[35] Mr Dickinson for the appellant submits that the District Court Judge’s assessment of the evidence relating to the police entry to Ms Hoeflich’s house was flawed. He says that the principal proposition on which the appeal stands is the Judge’s failure to properly consider and determine the factual circumstances of the police entry to the house and the contradictions between the police officers themselves, as well as the conflict between the police and the defence witnesses.
[36] Relying on Rayner v Police2 and Perry v Police,3 Mr Dickinson further submits that the Judge erred in her assessment of the reliability of witnesses, took into account irrelevant evidence, and ignored relevant evidence such as the evidence of defence witnesses which contradicted the prosecution witnesses and whose accounts remained a reasonable possibility.
[37]In particular, Mr Dickinson submits that the Judge:
(a)failed to place any weight on the photograph taken by Constable Dawson which showed the front door of the house open;
(b)ignored the relevant evidence of Ms Shale;
(c)placed too much weight on the police officers’ evidence merely because they were “sworn officers”, and because they were
2 Rayner v New Zealand Police [2014] NZHC 2857.
3 Perry v Police [2015] NZHC 2810.
“unshaken” and gave “detailed evidence”, when Mr McPhail and Ms Shale were also unshaken in cross-examination and also gave detailed evidence;
(d)summarised the prosecution position as being that Ms Shale had opened the door and let the police officers inside, notwithstanding the inconsistency with Constable Dawson’s evidence in which he said that Ms Shale spoke to them at the front door and that he and Constable Carter then followed her inside;
(e)ignored the relevant evidence of Mr McPhail, including that he had seen the police officers walking into the house down the hallway and that they were not following Ms Shale as claimed; and took into account the irrelevant evidence that Mr McPhail was unable to see the front door from the child’s bedroom;
(f)placed too much weight on Ms Shale being in the midst of personal difficulties regarding her father’s illness and having shared a bottle of wine with Ms Hoeflich;
(g)failed to place any weight on the evidence showing that Mr Cahill had made no mention of Ms Hoeflich appearing to be intoxicated when first spoken to by the police, and of Mr Johnson only mentioning Ms Hoeflich appearing intoxicated for the first time when giving evidence; and
(h)failed to consider the effect of Ms Hoeflich consuming alcohol after her arrival back at her home and her anxiety at having damaged her partner’s vehicle. 4
[38] Mr Dickinson says that in the absence of an express invitation to enter the house, the police had no implied licence to enter. He submits that even on the police account, Ms Shale did not say she was the owner or occupant of the property, and
4 Relying on Torres-Calderon v Police [2018] NZHC 722, [2018] NZAR 665.
nothing that she said or did could convey to the police that she was someone with ostensible authority to give them permission to enter the house.
[39] Counsel submits that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred. Mr Dickinson submits that the Judge failed to address and apply the burden of proof on the prosecution to prove its case and particularly to prove that the police officers had either actual permission or an implied licence to enter Ms Hoeflich’s house. He submits that the errors are such that they have created a real risk that the outcome of the trial was affected.
[40] In the alternative, Ms Hoeflich appeals against the sentence of disqualification from driving. Mr Dickinson submits that special reasons exist in terms of s 81 of the Land Transport Act in that Ms Hoeflich consumed alcohol after driving, meaning that on the balance of probabilities she was under the legal limit at the time of driving.
The respondent’s submissions
[41] Ms Mok for the respondent says that the Judge made no error in finding that the police entry to the appellant’s house was lawful, and in the alternative submits that Ms Shale had ostensible authority to permit the police officers to enter and therefore consent to enter can be implied.
[42] Counsel refers to and relies on the observations of the Court of Appeal in R v Bradley where it said:5
[Counsel] urged upon us that the constable should have made further inquiries. He should have asked … if the woman lived at the house and confirmed that she had the authority to permit him to enter. We do not consider that the constable was under any such obligation. The question whether he could reasonably accept the woman’s response as conveying permission to enter the house and conduct the search must be assessed against normal standards of human behaviour in New Zealand. The position may be different in Canada or in the US. But we consider that in this country, unless something out of the ordinary is present, the response of an unidentified occupier purportedly exercising authority can be taken at face value. A meter-reader, inspector, or the like, seeking permission to enter a house would be unlikely to go beyond the person purporting to give that permission or question the person’s authority to do so.
5 R v Bradley (1997) 15 CRNZ 363 (CA) at 370.
[43] Ms Mok says the present case can be distinguished from Torres-Calderon v Police, where police entry to the house was at the invitation of an ambulance officer who clearly was not an occupant of the house and could not be regarded as having authority to invite the police to enter.6
[44] Ms Mok further submits that the initial police entry to the house is not so important, as an unlawful entry can be cured by subsequent permission being given to the police to remain, or by means of an implied authority to remain.7 She says that when Ms Hoeflich met the police officers in her kitchen and was asked whether she had been drinking, she did not protest their presence or ask them to leave her house. Counsel says that Ms Hoeflich did not tell the police that she was suffering from anxiety or a panic attack, and she notes that the alcohol which Ms Hoeflich consumed after returning home was said to have been to calm her down.
[45] From those circumstances, says Ms Mok, there was a sufficient evidential basis for the Judge to find that the police had Ms Hoeflich’s implied consent to be in her house and to remain there.
[46] Counsel submits that the Judge did address the conflicting prosecution and defence evidence in her judgment at [35]–[37]. Ms Mok says that the Judge explained her reasons for accepting the police officer’s evidence at [33] and [34], and she submits that while there are some differences in their accounts, the evidence of the two officers is broadly consistent. She submits that it was open to the Judge to prefer and accept the evidence of the police officers as to the circumstances of their entry to the house.
[47] As regards the appeal against the Judge’s decision declining to find that special reasons existed under s 81 of the Land Transport Act for not imposing a sentence of disqualification, Ms Mok submits that the Judge was entitled to conclude that no special reasons had been shown to be present. Counsel notes that Ms Hoeflich had pleaded guilty to the charge of careless driving and the Judge was entitled to take that into account in deciding whether special reasons were present.
6 Torres-Calderon v Police [2018] NZHC 722, [2018] NZAR 665.
7 Relying on King v Police [2010] NZAR 45 (HC) at [21].
Approach on appeal against conviction
[48] Ms Hoeflich’s appeal against conviction is brought pursuant to s 229 of the Criminal Procedure Act 2011. Section 232(2) of that Act provides that the appeal must be allowed if the Court is satisfied that, in the case of a judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason.
[49]Section 232(4) defines the term “miscarriage of justice” as follows:
… miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that –
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[50] A real risk that the outcome of the trial was affected arises where there is a reasonable possibility that a not guilty verdict (or a more favourable verdict) might have been delivered if nothing had gone wrong. An appellant does not have to establish that a miscarriage of justice has occurred in the sense that the verdict actually is unsafe; it will be sufficient for an appellant to show the existence of a real risk.8
[51] Irregularities which “plainly could not, either singly or collectively, have affected the result of the trial” are not miscarriages of justice, and the appellate court must disregard them.9 However, where pursuant to s 232(4)(b) a trial is found to have been unfair, it is unnecessary to consider whether the unfairness may have affected the outcome of the trial.10
The issues on appeal
[52] The Judge accepted the evidence of the two police officers and found that their entry into Ms Hoeflich’s house was lawful, and consequently that the evidence they obtained by means of the passive breath and breath screening test was lawfully obtained.
8 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
9 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
10 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [37].
[53] The first question on appeal is whether the Judge failed to properly consider and determine the factual circumstances of the police entry to the house, as Mr Dickinson contends. I must then go on to consider whether, given those factual circumstances, the police entry into the house was lawful. If it was not, I will consider whether the breath test results should nevertheless be admitted under s 30 of the Evidence Act 2006. Finally, I will consider Ms Hoeflich’s sentence appeal.
Did the Judge fail to properly consider and determine the factual circumstances of the police entry to the house?
[54] The Judge accepted the police officers’ version of events. She founded her acceptance of the police officers’ evidence on her observation that they gave clear and detailed evidence, which was “unshaken” by extensive cross-examination, and the fact that they were sworn police officers.11
[55] It is appropriate for an appellate court to recognise the advantage a trial judge has had in seeing and hearing the witnesses give their evidence, and only to interfere with a trial Judge’s findings of fact in exceptional circumstances.12 However, in the present case I consider that the conflict in the accounts between the police witnesses and the defence witnesses that emerged in the course of the hearing required considerably more analysis than was given to the matter in this instance. Mr Dickinson cited Rayner v Police and Perry v Police as examples of cases where there was insufficient evidence to support the prosecution case or the Judge failed to sufficiently analyse and consider the defence case. Both those cases related to an element of the charge itself, which must be proved beyond reasonable doubt, whereas the factual dispute in the present case relates to the way in which the police officers obtained the evidence against Ms Hoeflich. Nevertheless, I consider that the trial Judge was required to critically engage with and analyse both the prosecution and defence cases in determining, on the balance of probabilities, which version of events she accepted.
[56] An examination of the transcript of the evidence presented to the District Court leads to the following observations. First, there were some obvious inconsistencies between the two police officers in the evidence they gave regarding the circumstances
11 At [34].
12 Perry v Police [2015] NZHC 2810 at [8]; see also Jeffries v R [2013] NZCA 188 at [91]–[95].
of their entry to the house, which gave rise to issues as to the reliability of their accounts. Constable Carter said that once at the front door of the house, he spoke to Ms Shale who was outside having a cigarette. He said that she responded to his question regarding who was driving the vehicle by saying the driver was inside. He said she then opened the door and let the two officers into the house.
[57] However, Constable Dawson did not confirm the content of this conversation. He said “I understand that she said it wasn’t her …”. Constable Dawson’s use of the word “understand” indicates that he was recounting something he had been told, rather than something he had heard directly. Constable Dawson did not say that Ms Shale was smoking a cigarette at the time and he made no mention of her opening the front door to let them in. On his account, Ms Shale went in the door and he and Constable Carter followed her inside. I consider the inconsistencies between the accounts of the two police officers to be significant, especially because of the other evidence available which is relevant to what took place.
[58] First, there is the photograph showing the front door open. This photograph was taken by Constable Dawson shortly before he and Constable Carter entered the house. While the photograph shows only a limited field of view, it is significant that it clearly shows the front door to be open, and there is no indication of the presence of Ms Shale. The Judge found that there was insufficient evidence about what took place between the time of the police arrival at the property and their entry to the house for the photograph to be of much probative value. While the Judge was correct to observe that it was unknown how much time passed between when the photograph was taken and when the police entered the house, the photograph is nevertheless cogent evidence that the front door of the house had been left open after the police had arrived at the property and while they were carrying out their inquiries outside. While that does not necessarily mean that the door was still open when the police went to enter the house, it nevertheless provides some support for the evidence of Mr McPhail who said that the police walked in without the door being opened for them.
[59] Mr McPhail said he saw the two police officers enter the house and they stopped in the hallway and spoke to him. When asked about this in cross-examination,
the police gave responses which I consider to be quite unsatisfactory and unconvincing. Constable Carter said:
I don’t remember speaking to a gentleman and his claims that we walked into the house uninvited are completely untrue. I know from my EBA history, that would constitute a trespass if I was just to walk into the house uninvited.
[60]Constable Dawson said:
Counsel: Mr McPhail’s evidence will be that he was in a bedroom very close to the front door and that the police simply came in without knocking, what do you say to that?
Constable Dawson: I’ve got nothing to say to that. Counsel: Do you accept that it’s true?
Constable Dawson: No, it’s the first I’ve heard of it.
Counsel: And he would say that he was the first person who the police spoke to, what would you say about that?
Constable Dawson: I never spoke to a male inside the house that day, there’s only three females at that address, sorry, is he saying he came out to speak to us?
Counsel: His evidence would be that he was the first person spoken to at the address by the police.
Constable Dawson: I’ve never heard of this person and never seen this person as far as I know, there’s only three females at the address that day.
[61] There can be no doubt that Mr McPhail was in fact present in the house at the time of the police entry. Mr McPhail’s evidence that he was in the bedroom just inside the front door was accepted by the Judge, although she said that because Mr McPhail was playing with some children’s toys on the bedroom floor, he did not have an opportunity to observe what took place outside the house before the police entered, and that it was unclear whether he had an opportunity to hear everything that was said outside the house at the time. However, whether or not he could see or hear anything taking place outside the house does not alter the fact that he was in a position to see if two police officers walked in through the front door. Furthermore, if the police spoke to him to ask who he was and he responded by telling them he was a neighbour, it shows that the police must have also seen him.
[62] A member of the public present in his neighbour’s house with his young son when two police officers walk in through the door and ask him who he is, is hardly likely to forget the incident. Mr McPhail did not see Ms Shale anywhere nearby, and if she was nearby it would not have been necessary for the police to ask him who he was.
[63] It was not suggested to Mr McPhail when he was cross-examined by the prosecutor that he was mistaken or not actually present in the house that Sunday afternoon. In response to questions from the Court, Mr McPhail confirmed his account of being spoken to by the police. He said that the front door was wide open during the five minutes he spent in the bedroom with the children before the police entered the house, and that no-one went to the front door.
[64] The implications of Mr McPhail’s evidence are significant. I note that while commenting on his inability to see the front door from his position inside the bedroom, the Judge made no adverse comment as to his evidence or credibility. There being no challenge to his evidence that he was present in the house, there is no apparent reason why his account of what happened should not be accepted. It is clear that the two police officers were unable to contradict Mr McPhail’s account of what would have been for him a memorable event. I consider that it is clear from the trial transcript that the two police officers responded unconvincingly to the questions put to them in cross- examination. Of course, Mr McPhail’s account directly contradicted the police officers’ claim that they were let into the house by Ms Shale, which is consistent with Ms Shale’s evidence that the police were already inside the house when she first saw them in the hallway.
[65] The prosecution case was based on the assertion that Ms Shale had been standing by the front door having a cigarette, and had opened the door and let the police inside. However, when the evidence is analysed, it is clear that the evidential foundation of the prosecution case is based on the plainly inconsistent evidence of the two police officers as to what took place, as against Mr McPhail’s unimpeached evidence which was also consistent Ms Shale’s evidence. Having regard to an analysis of the evidence that can be undertaken from the trial transcript, I am satisfied that the proper conclusion to be reached from the evidence, on the balance of probabilities, is
that the two police officers entered the house through the open front door uninvited, and without the permission of Ms Shale or anyone else. They met Ms Shale in the hallway once they had already entered.
[66] It follows that I find that the Judge erred in her assessment of the evidence. In reaching this conclusion, I have borne in mind that an appellate Court will generally be reluctant to adopt a different view and overturn a trial Judge’s findings of fact, but I note that in the present case the Judge’s finding did not depend in any crucial way on an assessment of credibility which she would have been better placed to determine.
In those circumstances, was the police entry onto the property lawful?
[67] The police did not have any statutory authority for their entry into Ms Hoeflich’s house. Section 68 of the Land Transport Act authorises an officer to require the driver of a motor vehicle involved in an accident to undertake a breath screening test, but it does not permit entry onto private premises for the purposes of doing so.13 Nor does s 119 of the Land Transport Act provide a power of entry in these circumstances. The powers of entry in s 119 are narrowly circumscribed, and require the officer to be in “fresh pursuit” of a suspected offender. The officers in the present case were plainly not in fresh pursuit of Ms Hoeflich.
[68] The next question is whether the police acted within the scope of their common law implied licence to enter private property. In Tararo v R,14 the Supreme Court considered the doctrine of implied licence as applicable to police:
[11] … Put at its simplest, it has been recognised since Robson’s case that citizens generally, including police officers, are not trespassers if all they do is enter upon, but not into, private premises for the purpose of making inquiry of, that is, communicating with an occupier.
…
[14] Against that background we would formulate that licence in the following way. Members of the public, including police officers, may go to the door of private premises in order to make inquiry of an occupier for any reasonable purpose. In the course of doing so they may take photographs, if to do so is reasonable in order to accomplish that purpose. Police officers may
13 Torres-Calderon v Police [2018] NZHC 722, [2018] NZAR 665 at [24].
14 Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145 at [11], [12] and [14]–[16].
avail themselves of this licence for law enforcement purposes. But they cannot invoke the licence to do anything that by law requires a warrant.
[69] The law relating to police entry onto private property was succinctly summarised by the Court of Appeal in R v Meyer and Woods.15 The Court said:
[10] There is no dispute about the relevant principles. The police have no general right of entry onto private property for the purpose of obtaining evidence, questioning persons, or making an arrest. The entry into a private dwellinghouse will be a trespass unless there is statutory authority for the police to enter or they do so with the express or implied authority of the owner or occupier of the premises.
[11] The existence of an implied licence for members of the public (including police officers) to enter on to private property is well established. The leading authorities are Robson v Hallett [1967] 2 QB 939; Howden v Ministry of Transport [1987] 2 NZLR 747 (CA) at p 751; R v Bradley (1997) 15 CRNZ 363; and R v Ratima (1999) 17 CRNZ 227. The authorities were also canvassed in Attorney-General v Hewitt [2000] 2 NZLR 110 and the decision of this Court in R v Pou [2002] 3 NZLR 637.
[12] Summarising the principles as enunciated in Bradley generally at pp 367
– 369:
(a)a citizen’s fundamental right to privacy includes the preservation of the sanctity of his or her home;
(b)that principle is not absolute and, on occasions, privacy is forced to yield to the wider interests of the community, particularly the public interest in the detection and prosecution of crime;
(c)there is an implied licence for a member of the public, including a police officer, to come onto a private property on legitimate business for the purpose of communicating with the occupier;
(d)the extent of the implied licence has been reasonably strictly construed and is generally limited to entering the property and proceeding to knock on the front door or some other usual point of ingress or egress;
(e)but the nature of the business of the police cannot be disregarded and the scope of the implied licence may include the making of inquiries, a request to be admitted to the premises, or seeking permission to perform some other act on the property;
(f)the scope of the authority to enter may vary so as to permit that which, having regard to the householder’s reasonable expectation of privacy, is reasonable in the circumstances; and
(g)the implied licence may be revoked at any time, expressly or by implication.
15 R v Meyer and Woods [2010] NZAR 41 (CA).
[70] In R v Meyer and Woods, the police had gone to Mr Meyer’s residence for the purpose of conducting a bail check. They were met at the door by Mr Woods who held the tenancy of the premises. As it was raining, Mr Woods offered no objection to the police officers standing in the doorway out of the rain. During an amicable conversation, Mr Woods was told the reason for the police visit. He called out to Mr Meyer several times and then set off up the stairs, followed by one of the police officers. The police officer accepted that he had not been invited by Mr Woods to accompany him upstairs, but no indication was given by Mr Woods that he was unhappy with the officer doing so. Once up the stairs, Mr Woods opened the door to Mr Meyer’s room. The police officer then saw a package of cannabis and could smell cannabis. He invoked s 18 of the Misuse of Drugs Act 1975 to undertake a search of Mr Meyer’s room. The Court of Appeal found that Mr Woods was aware the police officer was following closely behind him as he went upstairs, and at no time did he object to the officer following him. In these circumstances, Mr Woods had impliedly authorised the police officer to follow him up the stairs of the dwelling, and the Court accordingly found that the police search of the room was lawful.
[71] In Torres-Calderon v Police,16 a police officer was called to attend a vehicle accident, and was taken by an ambulance officer through an external door into the room of the house where Mr Torres-Calderon had gone following the accident and where he was being treated for an injury by another ambulance officer. Before the arrival of the ambulance officers, Mr Torres-Calderon had been given a large glass of red wine by one of the occupants of the house. Once inside the bedroom, the police officer requested Mr Torres-Calderon to undergo a passive breath test, which he did. Because the test result indicated the presence of alcohol, the officer then requested Mr Torres-Calderon to undergo a breath screening test. This test was undertaken and the result triggered the requirement for an evidential breath test. The police officer required Mr Torres-Calderon to accompany him to the police station to undergo an evidential breath test. Mr Torres-Calderon co-operated and the evidential breath test procedure resulted in a reading in excess of the legal adult limit of 400 micrograms per litre of breath.
16 Torres-Calderon v Police [2018] NZHC 722, [2018] NZAR 665.
[72]Duffy J referred to the summary of principles as set out in Meyer and said:
[30] … However, because the implied licence to enter onto a property extends no further than is necessary to communicate with the occupant it does not “typically extend to a right of entry into a residence or building”. A police officer who takes this extra step uninvited is at risk of committing a trespass.
[31] Nonetheless, the typical bounds of the implied licence to enter private property do allow for exceptions. A police officer who enters such premises uninvited will not be a trespasser if either the occupier or someone with ostensible authority gave express or implied permission for this to happen. Once such permission is given, a police officer can then lawfully exercise her powers, including those under s 68 of the Land Transport Act, despite being on private property. However, as was explained by Somers J in Howden v Ministry of Transport, if this licence is revoked before a request to take a breath screening test is made, the power to make such request ceases to be exercisable on private property.
[32] Another circumstance that provides an exception to the general rules regarding implied licences is when the police arrive at a residence in response to a 111 call. The circumstances that can generate that type of call impute an authority for police to enter which arises from their duty to preserve life and protect citizens.
[33] Accordingly, unless a police officer fits within a recognised exception, or the circumstances warrant the case being recognised to warrant such characterisation, the implied licence is not sufficient to authorise entry into private premises.
(footnotes omitted)
[73] I have concluded, on an analysis of all the evidence, that the police were not invited into Ms Hoeflich’s house by an occupant or anyone whom they may reasonably have assumed to be an occupant. Rather, they entered through the open front door and proceeded down the hallway without invitation. It follows that their entry into the property was outside the scope of their implied licence. As I have already noted, there was no statutory authority for the police to go down the hallway uninvited. The police entry into Ms Hoeflich’s home was therefore unlawful.
[74] Ms Mok for the respondent says, however, that an unlawful entry can be cured by subsequent permission being given to the police to remain, or by means of an implied authority to remain. She notes that Ms Hoeflich did not protest the police officer’s presence or ask them to leave her house. Ms Mok relies on King v Police in making this submission.17 In that case, the police officer approached an open ranch
17 Relying on King v Police [2010] NZAR 45 (HC) at [21].
slider at the rear of the property and called out. The appellant came to the door. The officer spoke to him about an accident that had just occurred and asked him to produce identification. The appellant turned away from the door and went upstairs. The police officer followed him, watched him retrieve his driver’s licence, then followed him back downstairs to the kitchen, asking him questions as they went. While in the kitchen, the police officer requested him to undergo a breath screening test, but he refused. Winkelmann J held:
[21] In this case, there was ample evidence for the Judge to conclude that the appellant impliedly consented to the constable's presence. Although conceptually, at the point in time at which the constable entered onto the premises, and until such time as the appellant became aware of the fact that the constable was following him up the stairs, there may have been no objectively ascertainable consent, any absence of consent at that time can be remedied by the subsequent consent to be inferred from the conduct of the appellant. In R v Bradley, the Court found that although there was an initial unauthorised entry, the later consent of the occupant had the effect of excusing or condoning the police's irregular entry on to the property …
[75] In Torres-Calderon, however, Duffy J cited King v Police but reached a different conclusion on the facts. She observed:18
Whilst in principle an initial unlawful entry can be cured by the implied consent of an occupier, the application of this principle is fact specific, which explains the different results the relevant case law displays.
[76] Duffy J distinguished King v Police on the basis that Mr King had sufficient time to realise the police officer’s presence in his home and he willingly went to obtain his licence for the officer. Mr Torres-Calderon, on the other hand, was seated in his bedroom having his knee attended to by an ambulance officer when the police officer entered his bedroom from the outside door. Duffy J noted that his attention may have been diverted by the treatment he was receiving to his injured knee. Although he spoke to the officer for some 15 minutes prior to being asked to undertake a breath test, Duffy J considered that in the circumstances, it could take longer for an occupier to realise the full implications of a stranger like the police officer being present in the bedroom.
[77] Mr Torres-Calderon had also said in evidence that when he was asked to undergo the breath test, he did not realise he could ask the police officer to leave. He
18 At [40].
said he thought the police officer had “total authority”. Duffy J also noted that the incident occurred at an emotionally traumatic time for Mr Torres-Calderon, namely the second anniversary of the death by suicide of his former partner.
[78] I consider that similar circumstances prevailed in the present case, and that neither Ms Hoeflich nor Ms Shale impliedly consented to the police officers’ presence. Significantly, the police officers had already entered the house (unlawfully) at the time they met Ms Shale in the hallway. It was not a case where she met them at the door and impliedly consented to them following her inside, as in King v Police or R v Meyer and Woods. Ms Shale saw the two uniformed officers in the hallway and they asked her whether she was the driver. She responded that she was not, and turned away. The police officers followed her. It appears that it all happened relatively quickly, and Ms Shale had no opportunity to ask the officers to leave.
[79] As for Ms Hoeflich, she had just emerged from the bathroom to find two police officers in the kitchen. The officers then immediately began to question her as to whether she was the driver of the car. Ms Hoeflich did not have sufficient time to realise their presence in her house and ask them to leave. Furthermore, as Duffy J recognised in Torres-Calderon, in such situations there is an implicit imbalance of power as many ordinary citizens do not know the extent of their legal rights and obligations, including that they may demand that the officer leave at once. This is exacerbated where police officers act in a way that gives the appearance they are entitled to be there, as I consider the officers did in the present case by walking into Ms Hoeflich’s house and with one of them immediately beginning to question her.
[80] It is also relevant that Ms Hoeflich was emotionally distressed at the time because she had caused damage to her partner’s vehicle. Her eldest daughter described her as anxious and hysterical on arriving home. The police officers entered and spoke to her only a short time after the incident. Like Mr Torres-Calderon, whose attention was divided by the treatment he was receiving to his knee, Ms Hoeflich’s mental state was likely to have been preoccupied by the very recent events and their consequences. She was in no position to exercise her right to tell the police to leave her house. I therefore find that Ms Hoeflich did not impliedly consent to the police officers remaining in her house when speaking to her about her driving.
[81] Although I make no finding on the issue, I also note Ms Hoeflich’s evidence that she was not breath tested at all until she was in the police car. Constable Carter gave no evidence of any breath testing having taken place while he was present in the kitchen, and he describes Constable Dawson as having exited the house with Ms Hoeflich and him placing her in the police patrol car.
[82] The police therefore had no lawful basis for entering Ms Hoeflich’s house and were trespassing when they did so. Regardless of exactly when and where Ms Hoeflich was breath tested, it is clear that the unlawful entry into her house preceded the breath testing and I consider that the breath test results were obtained in consequence of the police trespass. The results were therefore improperly obtained evidence in terms of s 30(5) of the Evidence Act.
Does the balancing test in s 30 of the Evidence Act apply?
[83] As the Judge found that the police entry to the house was pursuant to Ms Shale’s invitation and therefore lawful, she did not need to address the question of admissibility pursuant to s 30 of the Evidence Act 2006.19 However in light of my finding that the police entry to Ms Hoeflich’s house was unlawful, and consequently that the breath test results were improperly obtained, it is necessary for me to address the issue.
[84] In Torres-Calderon, Duffy J held that s 30 of the Evidence Act cannot be used to admit the results of unlawfully obtained breath tests, citing the Supreme Court’s decision in Birchler v Police.20 However, in Birchler the police officer failed to comply with s 69(1) of the Land Transport Act 1998 by requiring Mr Birchler to accompany her to a police station without first having undertaken a breath screening test which had produced a positive result. The Supreme Court said:
[17] We say this because a failure to comply with s 69(1) means that a prescribed precondition for requiring a person to accompany an officer in order to undergo an evidential breath test has not been met. There has not been compliance with s 69. Such non-compliance will provide a defence to a breath or blood-alcohol charge under s 56 unless, in terms of s 64(2), there has been
19 The Judge noted at [32] that it was common ground between the parties that s 30 would apply were she to find the police entry to the house unlawful.
20 Birchler v Police [2010] NZSC 109, [2011] 1 NZLR 169.
“reasonable compliance”. There can be reasonable compliance where there has not been “strict compliance” and even, in some circumstances, where the section in question (here s 69) “has not been complied with at all”. The short point is that, if what has occurred does not pass muster as strict or reasonable compliance with s 69, there was no lawful basis for the breath-screening test and what followed thereafter.
…
[19] What has occurred in the present case is that those framing the case stated have confused two things. The first is proof of compliance with a necessary step in the statutorily prescribed process for obtaining an evidential test, where s 64(2) may dispense with the need for strict compliance in favour of reasonable compliance, thus removing a defence which might otherwise exist. The second is a question of admissibility of evidence to which s 30 may apply. This case involves only the former. Therefore s 30 could not apply, as it could do in a case like R v Gallichan, where the issue was not about compliance with the Land Transport Act but about the adequacy of a police officer’s explanation to a driver of the right to receive legal advice under s 23(1)(b) of the New Zealand Bill of Rights Act.
(footnotes omitted)
[85] The Supreme Court therefore drew a distinction between compliance with the statutorily prescribed process in the Land Transport Act, and cases where compliance with the statutory procedure is not in issue but there is some other problem with police conduct ancillary to the statutory procedure, such as a breach of rights under the New Zealand Bill of Rights Act 1990 (NZBORA). For cases in the first category, the Court must consider whether there has been “reasonable compliance” in terms of s 64(2) of the Land Transport Act. If there has not been reasonable compliance, that is determinative and the evidence is excluded without turning to s 30 of the Evidence Act. For cases in the second category, however, the Court indicated that it is not a question of “reasonable compliance” under s 64(2) of the Land Transport Act; rather, the balancing test under s 30 of the Evidence Act remains applicable.21
[86] The Court found that the facts of Birchler placed it in the first category: there had been non-compliance with the statutory precondition in s 69(1) for requiring a person to accompany an officer to the police station, and therefore the officer’s action of requiring the driver to accompany her was unlawful. The Court held there was no need to consider s 30 in those circumstances.
21 See Chadderton v R [2014] NZCA 528 at [31]–[34], where the Court of Appeal discussed this distinction.
[87] I consider that the present case, unlike Birchler, falls into the Supreme Court’s second category. It was the unauthorised entry and presence of the police officers in Ms Hoeflich’s residence that was unlawful, rather than non-compliance with a relevant provision of the Land Transport Act. Compliance with the requirements of the NZBORA and the common law rules regarding trespass are legal obligations which, while concurrent with the statutory obligations of the Land Transport Act, are discrete from those statutory requirements. Here, the police entry onto premises without authority was a trespass and a breach of Ms Hoeflich’s fundamental right to privacy and to be secure in her own dwellinghouse, which is the right recognised in s 21 of NZBORA.22
[88] Consequently, I do not consider that the unlawful entry and unlawful presence of the police in Ms Hoeflich’s residence before requiring her to accompany them to the police station to undergo an evidential breath test can be regarded as non- compliance with a necessary step in the statutorily prescribed breath testing process in the Land Transport Act, and I find that the present case is distinguishable from that of Birchler. I must therefore carry out the balancing test mandated by s 30(2)(b) of the Evidence Act. In determining whether exclusion of the evidence is a proportionate response to the police impropriety, I may have regard to the criteria set out in s 30(3).
[89] First, the appellant’s right to privacy and to be secure in her own home is a fundamental human right upon which our community places a high value.23 Here the intrusion involved police officers entering a private dwellinghouse without knocking at the door or seeking the consent or approval of the occupants to enter. The police officers had been told by witnesses that the driver of the Ford Ranger and her passenger had recently gone inside the house, and they could see that the front door was open. The police would therefore have known that the occupants of the house were at home and inside. There was no indication that anyone had left the premises or were evading the police, and there was no urgent reason for the police to enter the house.
22 It was not argued before me that the police entry constituted a breach of NZBORA rights.
23 R v Pou [2002] 3 NZLR 637 (CA) at [20].
[90] When the two police officers went to the front door of the house, whether it was open or closed, they had no reason not to knock on the door to announce their presence, so that the occupants could come to the front door to see who was there, and decide whether to permit them to enter the house. In addition, I note that this occurred on a Sunday evening when the police ought to have appreciated that family members and children would likely be present inside the house, as indeed they were. Even when the police constables encountered Mr McPhail in the bedroom just inside the front door, they did not stop to ask permission to enter or ask Mr McPhail to find Ms Hoeflich and ask her to come to speak with them.
[91] By entering the house and proceeding through to the kitchen area to locate and speak with the driver of the Ford Ranger, when they well knew they had no authority to enter, the police acted in a high-handed and somewhat over-bearing manner that in my view amounted to a serious intrusion and breach of Ms Hoeflich’s right to privacy and security in her home.
[92] As for the offence with which Ms Hoeflich was charged (driving with an excess breath-alcohol level), I accept that it is inherently serious by reason of the potential risk to public safety of other road users. However, in this case it was well below the upper range of offending of that kind. I also note the unchallenged evidence of Ms Hoeflich that she and Ms Shale had shared a bottle of wine over a period of two to three hours prior to her driving and regarding her consumption of alcohol after the driving incident, as well as the unchallenged evidence of Ms Hoeflich’s eldest daughter regarding her mother’s consumption of alcohol following the vehicle accident.
[93] Having regard to the criteria set out in s 30(3), I find that exclusion of the improperly obtained evidence is a proportionate response to the impropriety involved in the police conduct. There were other alternative and obvious measures available to the police to locate and to speak to Ms Hoeflich. Simply knocking at the door and speaking to the occupants was the obvious and indeed sensible thing to do in the circumstances, which would respect the rights of privacy and security of Ms Hoeflich and her family.
[94] It follows that the evidence of Ms Hoeflich’s breath test results should not have been admitted and therefore she should not have been convicted of driving with excess breath alcohol. I find that a miscarriage of justice occurred in terms of s 232 of the Criminal Procedure Act.
Sentence appeal
[95] As an alternative to her appeal against conviction, Ms Hoeflich also appeals against the sentence imposed of disqualification from holding a driver’s licence for a period of six months,24 specifically against the decision of the District Court Judge declining to find special reasons pursuant to s 81 of the Land Transport Act.
[96] Having regard to my finding that Ms Hoeflich should not have been convicted, it is unnecessary to address the sentence appeal, as the sentence imposed is quashed as a consequence.
Result
[97] Ms Hoeflich’s appeal is allowed and the conviction entered against her on the charge of driving a motor vehicle on 9 October 2016 with a breath-alcohol level exceeding 400 micrograms of alcohol per litre of breath is quashed together with the sentence of disqualification imposed.
Paul Davison J
24 Police v Hoeflich [2018] NZDC 10814.
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