Kumar v Police - [2019] NZHC 968

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI 2019-485-7

[2019] NZHC 968

BETWEEN
NITESH KUMAR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 May 2019

Counsel:

A O’Connor for Appellant

A W M Britton for Respondent

Judgment:

6 May 2019

JUDGMENT OF ELLIS J

[1] Following a judge alone trial before Judge Barry in the Hutt Valley District Court Mr Kumar was convicted of one charge of driving with excess blood alcohol.1 He now appeals that conviction.

Facts (some of which are disputed)

[2] Mr Kumar is 40 years old. Originally from India, he is now a New Zealand citizen and has been living in New Zealand for 10 years.

[3] On 1 May 2018 at 4:40 pm a member of the public informed police that a car with a specified registration number had been seen driving over a curb in Lower Hutt. It was ascertained that the car was registered to Mr Kumar at his home address some distance away, in Wainuiomata. Constable Black was directed to make further

1 New Zealand Police v Kumar [2019] NZDC 384.

KUMAR v NZ POLICE [2019] NZHC 968 [6 May 2019]

inquiries. Constable Black arrived at Mr Kumar’s home at approximately 5:30 pm. He knocked on the door and Mr Kumar answered.

[4]From this point forward, the evidence at trial diverged.

Constable Black’s account

[5] Constable Black’s evidence was that when Mr Kumar answered the door, he told Mr Kumar that he had received a complaint about the car parked outside and asked him if he owned it. He said that Mr Kumar then invited him inside and offered him a coffee. Once there, Constable Black again told Mr Kumar of the complaint and asked if he had been driving the car. Mr Kumar said he had. Constable Black then asked Mr Kumar if he had drunk any alcohol since he had got home. He said that Mr Kumar told him that he had been home for 45 minutes but had only drunk coffee during that time.

[6] At that point, Constable Black said that he could smell alcohol on Mr Kumar and observed that he had bloodshot eyes. The constable then told Mr Kumar that he was required to undergo a breath screening test without delay, pursuant to s 68 of the Land Transport Act 1998 (the LTA). He said that Mr Kumar complied without demur. The test returned a result of over 400 micrograms of alcohol per litre of breath. Mr Kumar was shown the result and asked by Constable Black to accompany him to the Lower Hutt Police Station. The Constable read Mr Kumar his rights.

[7] Because Mr Kumar had been home alone with his six year old child, it was necessary for him to make childcare arrangements, which occasioned some delay. But once at the police station, Constable Black again read Mr Kumar his rights and asked if he would like to speak to a lawyer.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 968
Decision Date: 6 May 2019

CaseChat Overview and Summary

The case of Kumar v Police is an appeal against a conviction of driving with excess blood alcohol, following a conviction in the Hutt Valley District Court. The appellant, Mr Kumar, challenges the decision on several grounds, focusing on the legality of the police officer's entry into his home and the subsequent breath screening test. The core legal issues revolve around the common law principles of implied licence and consent in the context of land transport matters, and whether these were overridden by the provisions of the Land Transport Act 1998. The appeal also questions whether the police officer's request for a breath test was lawful under the circumstances.

The court's reasoning begins by examining the statutory framework and relevant case law. It notes the established principles that police have no general right to enter private property but may do so with express or implied consent of the occupant. The court rejects the argument that the Land Transport Act 1998 operates as a code, which would limit the application of common law principles. It also finds that the Judge's credibility assessment of the evidence, favoring the police officer's account over Mr Kumar's, was not flawed. The court finds that Mr Kumar did, in fact, invite the police officer into his home and did not revoke this implied licence at any point. Furthermore, the court holds that the police officer was entitled to require Mr Kumar to take the breath test under section 68 of the Act, as the officer was lawfully on the premises and had reasonable grounds to suspect Mr Kumar had committed an offence.

The appeal is dismissed, and the conviction stands. The court confirms that the breath test was lawfully administered, and the evidence was sufficient to uphold the conviction for driving with excess blood alcohol.

Orders