Horne v Police HC Christchurch A5/02

[2002] NZHC 272

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY A5/02

BETWEEN DANIEL LEE HORNE
Appellant

AND THE POLICE
Respondent

Hearing: 27 March 2002

Counsel: C B Persson for Appellant
P J Shamy for Respondent

ORAL JUDGMENT OF PANCKHURST J

Solicitors:
C B Persson Barrister, Christchurch for Appellant
Crown Solicitor, Christchurch for Respondent

[1] The appellant was charged that on 22 September 2000 he drove with excess breath alcohol. His reading was 587 micrograms of alcohol per litre of breath. The case was heard in the District Court at Christchurch on 26 November 2001, fully fourteen months after the relevant events. After a defended hearing the appellant was convicted by the Judge in an oral judgment.

[2] This appeal has been brought on two main grounds. The first that the traffic officers involved in the appellant’s apprehension were trespassers at the time a breath-screening test was obtained. As a result the appellant was required to accompany. Mr Persson urged that given such status the evidence of all subsequent steps should have been excluded and hence that there was no basis for the charge.

[3] His second argument was in essence that at the police station requisite advice immediately following the evidential breath test was not given. Hence that in terms of s 77(3) of the Land Transport Act 1998 evidence of the evidential result should not have been admitted.

[4] To appreciate these arguments it is necessary to first say something concerning the facts. I shall do so in two parts. The facts relevant to the appellant’s apprehension form one segment of the relevant evidence. The facts relevant to the taking of the evidential breath test and what followed form the second relevant segment. As to the former, the officers gave evidence that at 1.10 am they were proceeding in an easterly direction on Bealey Avenue. The appellant was proceeding in a westerly direction and executed a right hand turn across their bows in order to proceed north on Colombo Street. In doing so, according to the officer’s evidence, he ran a red light which caused them to turn left themselves into Colombo Street and follow him. The patrol car’s flashing light and siren were activated.

[5] The appellant proceeded a distance up Colombo Street, turned left into Purchas Street and then drove a short distance until he came to the T intersection with Caledonian Road. At this point he crossed Caledonian Road and went up the driveway of number 47 which was his home address. He drove into the rear yard closely followed by the officers in the patrol car. At that point there was a conversation which culminated in the screening test and the requirement to accompany.

[6] Section 119 of the Land Transport Act 1998 relevantly provides:

“(1) An enforcement officer may exercise the powers conferred by subsection (2) if the enforcement officer -

(a) Has good cause to suspect that a person -

(i) Has contravened a request or requirement or demand made under section 114 (other than subsection (1)); and

(ii) Has also committed or is committing an offence against section 35(1)(a) or section 35(1)(b) (which relate to reckless or dangerous driving offences), or is, or has recently been, driving under the influence of drink or drug, or both; and

(b) Is freshly pursuing that person.

(2) The enforcement officer may, without warrant, in the course of the pursuit enter, by force if necessary, any premises which the person has entered, for either or both of the following purposes:

(a) Determining whether or not a power conferred on an enforcement officer by section 68 or section 69 should be exercised in respect of that person:

(b) Exercising or completing the exercise of any such power in respect of that person (as if the person were in a motor vehicle on a road).

(6) It is the duty of every enforcement officer exercising a power conferred by subsection (2) or subsection (3) or under subsection (5) -

(a) To identify himself or herself as an enforcement officer to the pursued person and to the occupant of the premises entered; and

(b) To tell the pursued person and the occupant of the premises entered that the power of entry is being exercised under this section; and

(c) If the enforcement officer is not in uniform, to produce to the pursued person and the occupant of the premises entered on initial entry, and, if requested, at any subsequent time, evidence that he or she is an enforcement officer.”

[7] Mr Persson argued that the present was a case of “fresh pursuit” in terms of s 119. Moreover he submitted that the case was indistinguishable from Page v Police A46/01, Auckland Registry, judgment 28 June 2001.

[8] In that case the appellant was likewise pursued onto his own property. There then ensued an exchange between the suspect and the officers. During the course of it an officer said that there had been a “law change” which entitled them to enter the property in the way they had. This was obviously a reference to s 119. Smellie J who heard the appeal accepted that in terms of s 119(1)(a)(i) the officers had good cause to suspect there had been a contravention of s 114 of the same Act. Pursuant to that section a motorist is required to stop when an enforcement officer in a vehicle indicates as much by displaying a flashing light and sounding a siren. Hence the officers did indeed have authority in terms of the law change to proceed onto the suspect’s property.

[9] The problem lay in compliance with the requirements of ss (6). Thereby they were obliged to identify themselves as police officers and tell the suspect or pursued person that they had entered in terms of s 119. That was not done. This obligation the learned Judge described as an “inescapable duty” and, at another point, as a “mandatory duty”. His conclusion was expressed in these terms:

“In my judgment the failure to discharge the duty imposed on this occasion means that the police were unlawfully on the appellant’s property. That being so the evidence of the taking of the breath screening test should have been rejected. This was a case where, by analogy with the Court of Appeal’s decision in Howden v MOT (1987) 2 CRNZ 417, the breach of the Act should not ‘be treated as a trivial error to be excused by the Court’, (Cooke P at 422 line 30). Since a positive breathalyser test is a prerequisite to authority to require an evidential breath test, the subsequent test in the Pukekohe police station, upon which the conviction rests, was a nullity.”

[10] Against this background Mr Persson submitted that the Judge in the District Court was wrong to treat the present case as one of entry under an implied licence. That is that the officers were present at 47 Caledonian Road pursuant to an implied common law licence to enter which at no stage was revoked. As to that the Judge said that he did not regard s 119 as a code and, moreover, that he saw Page as “simply not this case”.

[11] It is not altogether clear to me on a reading of the judgment how the Judge distinguished Page. However, I accept that it may be possible to view the present case in terms of implied licence principles. It does, however, have the feature of hasty entry onto the suspect’s land. It is not as if the officers, for example, parked in Caledonian Road and walked onto the property as one might if exercising a licensed entitlement to be there. Accordingly I prefer to view the case in terms of s 119 as did Smellie J in Page.

[12] In one respect it seems to me that the facts in Page are quite different to those in the present case. Here there was no suggestion of challenge to the officers’ authority to be on private property. Rather a reading of the evidence is only consistent with the view that the appellant appreciated that he had not stopped when required to do so during the course of the pursuit, that he considered he had been caught by the officers and that he was required to comply with their requests. In these circumstances there was no reference by them to s 119 or indeed to any other basis for their being there. In reality the issue did not arise. Mr Horne was cooperative and made no complaint about the presence of the officers. Certainly there was nothing which savoured of a challenge to their presence or which savoured of revocation of an implied licence.

[13] Nonetheless there was a clear breach of s 119(6). The officers did not identify themselves, albeit that was hardly necessary. But in particular they did not say they were present by virtue of their authority in terms of the section. Does it follow that the evidence of the procedures that ensued should be ruled out?

[14] In my view that is an issue which requires careful consideration. I am not enamoured of the notion that once a breach has occurred it is possible to mechanically apply the ratio of the Page decision and reach the view that all that followed was inadmissible. Indeed I see the question in somewhat different terms than did Smellie J in Page. In my view officers in a situation such as this are involved in a search. The meaning of search is helpfully considered in Adams on Criminal Law at para 10.8.04 where a number of relevant cases are gathered. One is R v Fraser [1997] 15 CRNZ 43 in which the Court of Appeal said that the touchstone in defining a search was protection of the reasonable expectation of privacy. The Court also said that in broad terms a search involved examination of a person or property. It was also noted that a search commonly involved an intrusion upon privacy, which may well be the privacy of one’s own home.

[15] It follows in my view that s 21 of the New Zealand Bill of Rights Act 1990 is relevant. Thereby citizens have a right to be secure against unreasonable searches. That section has of course spawned a number of cases relevant to the very question whether evidence should or should not be admitted in a criminal context. Such cases indicate that the fact of an illegality is not in itself determinative. Where officers of the state have acted illegally there is a presumption that resulting evidence will not be admitted. But the ultimate question is that of reasonableness. Even in the face of illegality it may be found that the search was nonetheless reasonable.

[16] When I suggested this approach to counsel in the course of argument this morning, Mr Persson submitted that even adopting it there was an onus upon the informant to establish that the search on the appellant’s land was in all the circumstances reasonable. I agree. As to that onus he suggested that where there was a clear breach of s 119(6), in particular a failure to indicate the basis of the authority to be present on private property, such would always be unreasonable. Mr Persson also submitted that there was no need for the householder to challenge the officers before the requirement for them to identify their authority to be there arose. In short that the section cast a positive duty, the breach of which must mean that the search was unreasonable and all that followed should therefore be ruled inadmissible.

[17] Mr Shamy, however, urged a different interpretation of the situation. He began with the proposition that since the officers were in uniform and driving a patrol vehicle their failure to identify themselves was of no moment. I agree. It was no more than a technical lapse for officers in such circumstances to fail to state the obvious. Second, Mr Shamy observed that the requirement to identify and inform persons of the basis of the intrusion was not a statutory pre-condition to the exercise of the power itself. Rather, counsel argued, it was a prerequisite which was to accompany the exercise of the power, not precede it. This, it was suggested, made at least a subtle difference.

[18] Next it was urged that nothing said or done by the officers savoured of bad faith or indeed of unreasonableness. To the contrary they entered the property in justified fresh pursuit, dealt with the suspect in a professional manner and in the event he in turn was cooperative. Further that in all the circumstances the case was one which involved a plain breach of the suspect’s obligation in terms of s 114. Clearly he must have been aware of the siren and flashing lights, yet he chose to continue to flee from the officers for at least a short distance along Colombo and Purchas Streets.

[19] Finally Mr Shamy submitted that it was significant there had been no challenge to their right to be on private property. Had there been counsel suggested the case may well have needed to be viewed in a different light and could have attracted a different result. On the basis of all these matters it was submitted that such breach as there had been of s 119 did not result in an unreasonable search in all the circumstances.

[20] In my view the officers were not trespassers at the operative time. They had, in terms of s 119, the authority to pursue the appellant onto his land in fresh pursuit. They were, however, in breach of ss (6), in particular by not indicating that they had authority in terms of that section to be there. However I do not consider that breach, or illegality, to be one of particular moment in the circumstances of this case. I agree it may well have been different if there was any suggestion of challenge to their authority or licence to be present. Then it would have been not only encumbent but essential for the officers to correctly refer to their authority to be present. Otherwise the suspect’s actions and reaction would fall to be judged against a response which was inadequate on the part of the enforcement officers. But that simply did not arise. There was no challenge, he was cooperative and the parties proceeded in terms of the relevant legislation.

[21] In these circumstances I find there was no breach of s 21. The search resulted in the location of the driver and, in due course, in the invocation of the testing process provided for in the Land Transport Act. I am not persuaded that the evidence should have been excluded on the basis suggested. My reasons are different from those of the learned District Court Judge but the result is the same.

[22] That brings me to the second main ground of appeal. The officers and the appellant proceeded back to the Papanui police station. In due course an evidential breath test was performed. The print-out from the machine indicated that the test occupied a period of minutes commencing at 1.29 and concluding at 1.34. The result itself was available at 1.33. A further minute was involved in a calibration check and what I understand is closure of the machine. Over the next few minutes there was some discussion and the completion of an advice of a positive evidential breath test form. I shall return to the exact terms of the evidence in a moment.

[23] Section 77(3)(a) provides:

“Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if -

(a) The person who underwent the test is not advised by an enforcement officer, immediately after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes, -

(i) In the case of a positive test that indicates that the proportion of alcohol in the person’s breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be sufficient evidence to lead to that person’s conviction for an offence against this Act;”

[24] Building on the evidence that the test result was available at 1.33 and the machine was shut down at 1.34 followed by a timing of 1.39 given by the officer for advising the result of the test, Mr Persson argued that immediacy had not been achieved. Hence that in terms of s 77(3)(a) evidence of the breath test should not be admitted. In short his argument was that there was an unexplained delay of five or six minutes which was fatal to the informant’s case.

[25] He advanced a secondary argument that such advice as was given to the appellant was incomplete in that he was not told that the breath text itself could be relied upon to support a conviction if the appellant did not elect to provide blood. In my view to assess these arguments it is necessary to first pay close regard to the evidence given by Constable Farrell. He referred to the test result being obtained from the machine on the result card and then continued:

“I advised the defendant of the result and informed him that he had the right to a blood test and that the result of an analysis of this blood would be used as evidence not the result of the breath test.

I also informed him that he had ten minutes to decide.

I also again advised the defendant of his right to consult and instruct a lawyer immediately and in private and offered him the use of a telephone.

The defendant declined to ring a lawyer.

The time was 1.39 am.

I completed an Advice of Positive Evidential Breath Test form which the defendant read and signed as an acknowledgement of this explanation.”

He then produced the form.

[26] Following that passage of evidence the witness also said that it was at 1.50 am that he asked the appellant whether he wished to undergo a blood test. The appellant declined. There was no challenge by way of cross-examination to this evidence. In light of it Mr Persson, in what I might describe as a clinical argument, submitted that there was a delay of five or six minutes for which there was no explanation. Hence he urged that in terms of Twiss v Police AP81/00, Christchurch Registry, judgment 22 June 2000, the relevant evidence should have been excluded.

[27] In Twiss there was an eight minute delay which was accepted to have been unexplained. It proved to be fatal. The case is also helpful for the summary which it contains of several decisions involving various periods of delay some of which were held to be unacceptable and led to dismissal of charges.

[28] What seemed to me central to counsel’s argument was an assumption that the requisite advice was given at 1.39 and not before. That is not how I interpret the evidence. The passage which I have just set out in the constable’s evidence in my view describes a process. What he said was that when the test result was available he explained orally to the appellant what his rights and obligations were. This was followed by reference to his rights under the Bill of Rights and completion of the form produced as an exhibit. This process would plainly have taken a period of time. Although the officer referred to the time as being 1.39 that does not indicate to me that that was the time at which he began the process which I have just detailed. Indeed on a reading of the advice form itself I infer that 1.39 was most likely the time at which the process was completed.

[29] In the absence of any cross-examination concerning this aspect I am not persuaded it is shown that there was delay, moreover that such delay is unexplained. To the contrary, on a natural reading of the evidence I understand that advice was given immediately after the result was available. Thereafter the form was filled in. The process as a whole occupied a period of minutes and the officer has described the advice as being given at 1.39 am.

[30] To my mind this interpretation is supported by subsequent events. Having completed the process to which I have just referred at 1.39 am the officer then delayed until 1.50, including the ten minute period for the suspect to reflect. Then he obtained his election not to supply blood and proceeded to the next stage. One minute, from 1.39 am to the start of the ten minute period (1.40 am), would not have been time enough to complete the advice process. In short I conclude that there was no delay, that the officer did act immediately and that the description he gave in evidence does explain what happened throughout the relevant period.

[31] I turn therefore to the second argument that there was a failure to comply with the terms of the statute, in particular to indicate that the breath test could of itself be sufficient evidence to lead to a conviction. I reject this submission as well. What the officer said was that if blood was given its analysis would be used in evidence, not the breath test. It follows that the appellant was told by that formula of words that the breath test result would be used to prosecute but if he provided blood then it would be the analysis of that which became relevant. In my view the words used met the obligation imposed under the section and adequately conveyed the substance of the matter to the appellant. The advice form, incidentally, put the matter beyond dispute. It effectively repeated the oral advice but very much in terms of the statute itself.

[32] It follows that the appeal must be and is dismissed. The appellant’s disqualification, which has been deferred until now, will become operative from 9 am tomorrow morning, 28 March.