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. Mr Kumar declined. An evidential breath test was then administered, yielding a result of 482 micrograms of alcohol per litre of breath.2

2      The legal limit being 400.

Mr Kumar’s account

[8]    Mr Kumar’s evidence differed in a number of material respects. Relevantly, he said that:

(a)he was scared when confronted by a police officer at the door and felt he had no choice but to do whatever he was told;

(b)once he had opened the door, Constable Black put his foot in it to prevent Mr Kumar from closing it;

(c)he did not invite Constable Black inside the house, nor offer him coffee;

(d)he saw that Constable Black was carrying something a bulky around his waist which he thought was a firearm; and

(e)he had drunk two pints of beer at the pub with a friend before picking his daughter up from school and driving home but had since been drinking whisky at home (as he said was his habit) while cooking dinner.

The District Court decision

[9]    In essence Judge Barry accepted Constable Black’s account and, to the extent it differed, rejected Mr Kumar’s. He gave a number of reasons for doing so.

[10]   First, said he was unconvinced by Mr Kumar’s evidence about his concern that Constable Black might have been carrying a gun, and his statement that his experiences in India had caused him to feel compelled to follow the officer’s orders. In that regard the Judge said:3

Mr Kumar is not some fresh-faced arrival…but a citizen of this country who has been here for 10 years. There is no suggestion that in fact the [officer] was carrying a firearm.

3      New Zealand Police v Kumar, above n 1, at [26].

[11]   Secondly, the Judge noted the suggestion that Constable Black had entered the house forcefully and Mr Kumar was scared of him sat uneasily with Constable Black permitting Mr Kumar to take the time he needed to make childcare arrangements before coming to the police station.4

[12]   Thirdly, the Judge noted that Mr Kumar had twice been advised of his rights twice but declined to speak to a lawyer on both occasions. Had Mr Kumar been frightened or his will overborne the Judge thought he would have exercised that right.5

[13]   Judge Barry was therefore satisfied that, on the evidence, Constable Black had express authority from Mr Kumar to enter his house and that that authority was not revoked at any time. He found the breath screening test was lawfully administered and the charge proved.6

[14]   Before turning to consider the appeal against Judge Barry’s decision, however, it is useful to say something about the statutory context, and the relevant authorities.

Relevant law

[15]   The power to require a person to undergo a breath screening test is contained in s 68 of the LTA which, for present purposes, relevantly provides

(1)An enforcement officer may require any of the following persons to undergo a breath screening test without delay:

...

(b) a person whom the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle: …

…

4 At [27].

5 At [28].

6 At [29].

[16]   Section 119 of the LTA confers a power of entry in order to conduct a breath screening test on private property, but this is limited to circumstances of fresh pursuit.7 Accordingly, the power to enter private property in other circumstances contemplated by s 68 falls to be determined by an application of the common law of implied licence to the particular facts.8

[17]In R v Meyer the Court noted there is no dispute about the relevant principles:9

[10]      … 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…

[12]Summarising the principles as enunciated in Bradley generally:

a)a citizens 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 householders reasonable expectation of privacy, is reasonable in the circumstances;

g)the implied licence may be revoked at any time, expressly or by implication.

7      Land Transport Act 1998, ss 119(2)(a) and (1)(b) [the LTA].

8      Mr O’Connor takes issue with this proposition on Mr Kumar’s behalf in this appeal, submitting that the LTA is a code. But for the reasons I shall later give, I do not agree with that proposition.

9      R v Meyer [2010] NZAR 41 (CA) (citations omitted).

[18]   While those principles may be clear, their application in cases of the present kind is not always straightforward. The need for legislative intervention has been noted on several occasions, including by the Court of Appeal in Transport Ministry v Payn and, ten years later, in Howden v Ministry of Transport.10 And rather more recently this Court has said:11

[55]      I note that in Payn Cooke J observed that “in a field such as this it is of first importance that the powers exercisable against the citizen should be clear and easily understood”. Cooke J also observed that the range of judicial opinion on when the breath testing procedures could be applied on private property was “too great” and suggested the law required the clarification of Parliament. Later in Howden … Cooke P observed that two of the judgments in Payn had drawn the attention of Parliament to this matter but nothing had been done yet to resolve it.  Since Howden the present legislation including  s 119 of the Land Transport Act has been passed. However, the limited scope of s 119 means that Courts are still faced with cases where police officers rely on the doctrine of implied licence and implied consent to support the exercise of their powers on private property.

[56]      There is an implicit power dynamic that the case law does not directly address. Many ordinary citizens do not necessarily know the extent of their legal rights and obligations. The law of implied licence to enter private properties to make enquiries typically stops at the entrance to private premises. However, when that principle is then coupled with the law of implied consent to carry out breath testing procedures on private premises there is an unspoken element of compulsion, especially when the officer is acting in a way that gives the appearance he is entitled to be there. Many citizens may not know they can demand the officer leave at once, and if she does not do so she will then be a trespasser. In the present case Mr Torres-Calderon displayed an initial reluctance to undergo the passive breath test and was told he would be arrested if he did not complete the test. In such circumstances, his later compliance is understandable. Some of the case-law shows other defendants were also reluctant to undergo those tests. Yet in the face of this expressed reluctance, the law says the police officers, who directed the defendants to undergo those procedures, are nonetheless present in the defendants’ homes with their implied consent. But if at the outset the same defendants had simply told the police officers to leave the premises and cease their trespass, the law of implied licence and implied consent could not be applied. The Courts would then have to acknowledge that police officers have no legal right to be on private property to carry out their breath tests. Whilst the law of implied consent is said to operate in this field to allow the public interest in the enforcement of the criminal law the ability to achieve this end rests to a large extent on defendants’ ignorance of their legal rights. This is contrary to the idea expressed by Cooke J in Payn on the need for powers exercisable against the citizen to be clear and easily understood. The presence of s 119 has done little to clarify this area of the law. More is required.

10     Transport Ministry v Payn [1977] 2 NZLR 50 (CA) and Howden v Ministry of Transport [1987] 2 NZLR 747 (CA).

11     Torres-Calderon v Police [2018] NZHC 722, [2018] NZAR 665 (citations omitted).

[19]   It is difficult not to agree.   But that agreement does not necessarily assist   Mr Kumar, to whose case I now turn.

Approach on appeal

[20]   This appeal is governed by s 232(2)(b) of the Criminal Procedure Act 2011. The appeal must be allowed if the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. A miscarriage of justice includes any error that has created a real risk that the outcome of the trial was affected. In the absence of any such error, the appeal must be dismissed.

Mr Kumar’s grounds of appeal

[21]   There are three, interrelated, planks to the argument advanced by Mr O’Connor on Mr Kumar’s behalf on appeal:

(a)whether the common law of implied licences in relation to land transport  matters  was  impliedly  revoked  by   the   LTA,   which  (Mr O’Connor says) is a code;

(b)whether the Judge was right to conclude that Constable Black had authority to enter Mr Kumar’s home; and

(c)to the extent that the LTA is not a code, and Constable Black was “licensed” to be in Mr Kumar’s house, whether Constable Black “requiring” Mr Kumar to take the breath test was nonetheless unlawful.

Discussion

[22]   The first submission is predicated on the proposition that, in expressly conferring a power of entry onto private property in specific circumstances in s 119, Parliament was implicitly saying that the existing common law permitting entry in other circumstances no longer applied. Put simply, one does not logically follow the other.

[23]   Nor is there anything express in the LTA to suggest that it is a code – in this or in any other respect. Indeed, all the decided cases since its enactment have proceeded on the opposite basis.

[24]   Mr O’Connor’s second argument amounts to a contention that Judge Barry was demonstrably wrong to have preferred the evidence of Constable Black over that of Mr Kumar on certain key matters.

[25]   It is trite that credibility findings are difficult to challenge on appeal. And here, Judge Barry did not make his assessment based solely on the witnesses’ demeanour; he gave other reasons for it. Mr Kumar’s evidence that the constable put his foot in the door to stop it from closing was considered and rejected as unconvincing and no basis on which I could disagree has been advanced.

[26]   In my view, there was clear evidence that Mr Kumar did invite Constable Black into his home and did not at any point ask him to leave. While I accept that politeness, or even fear, in the face of authority may have underlain his decisions there do not appear to have been any outward signs of his reluctance.

[27]   The third limb of Mr O’Connor’s argument must also fail. As I understood it, the submission was that even if the constable was not a trespasser, the fact that he was on private property meant that he could not “require” Mr Kumar to undertake the test and, indeed, he was required to tell Mr Kumar that he had the option not to do so. I am unsure, however, of the exact basis for that proposition which is both contrary to the wording of s 68 and at odds with the decided cases.

[28]   The short point is the exercise of the powers under s 68 is not limited to public places. If the constable was lawfully on the premises at the time he decided that grounds existed for breath testing Mr Kumar (which they plainly did), s 68 makes it clear that he could “require” Mr Kumar to take the test without delay. As the decision in King v Police makes clear, had he not taken it, he would no doubt have been arrested.12

Rebecca Ellis J

12     Police v King [2010] NZAR 45 (HC).