Maisey v Police
[2014] NZHC 629
•1 April 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2013-463-000095 [2014] NZHC 629
ROGER ROBERT MAISEY
v
NEW ZEALAND POLICE
Hearing: 24 February 2014
Appearances: A Simperingham for the Appellant
N Tahana for the Police
Judgment: 1 April 2014
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 1 April 2014 at 3.30 pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
MAISEY v POLICE [2014] NZHC 629 [1 April 2014]
Introduction
[1] The appellant, Mr Maisey, appeals against his conviction for driving with excess breath alcohol for a third or subsequent time pursuant to s 56(1) of the Land Transport Act 1998. Mr Maisey was convicted following a defended hearing in the District Court at Taupo before Judge C J McGuire, fined $750, and disqualified from driving for a period of one year and one month.
[2] The grounds for appeal are that Judge McGuire erred in law when he found: (a) that the Constable’s entry onto private property was lawful; and
(b) that the Constable’s implied license to enter the property had not been
revoked.
Factual Background
[3] A police officer, Constable Waite, was on general patrol in a marked police vehicle on Poihipi Road, near Taupo, on 12 April 2013. He was out of the vehicle carrying out a routine check on another vehicle, when he saw a blue and white motorcycle go past at speed.
[4] It was 8.14 pm in the evening, and it was dark.
[5] Constable Waite immediately returned to his patrol car, made a U-turn, and attempted to catch the motorcycle. He was unable to do so. Constable Waite increased his speed to between 90 and 100 kilometres per hour, but he could go no faster, given the road conditions. He could see the motorcycle approximately a kilometre ahead, and he could still hear it.
[6] At one point, the constable was able to increase his speed to approximately
150 kilometres per hour, but he still could not catch the motorcycle. He did regain sight of the motorcycle on a straight, but then promptly lost sight of it again. He next saw the motorcycle as it turned into the driveway of a property in Poihipi Road.
[7] Constable Waite was convinced that the motorcycle was being ridden dangerously. He activated his red and blue flashing lights, and turned left into the same driveway.
[8] The driver of the motorcycle turned and looked at him. Constable Waite was about to get out of his vehicle when the motorcyclist sped off up the driveway. He drove up a steep slope, before coming to a stop on a large concrete pad outside a garage.
[9] Constable Waite followed the motorcyclist in his patrol car. He caught up with the driver outside the garage. The driver was a male. Constable Waite asked to see his driver’s license. It was produced. He asked him whether he had consumed any alcohol that evening. He got a negative answer. Constable Waite said that he could see that the driver had glazed eyes, and that he could smell “intoxicants”. He thought that the driver had been consuming alcohol. Constable Waite then asked the driver to return to his patrol car. He administered a breath screening test, and then asked the driver to accompany him back to the Taupo Police Station. An evidential breath test was undertaken at the Police Station. The reading was 553 micrograms of alcohol per litre of breath.
[10] It transpired that the driver was the appellant, Mr Maisey. Mr Maisey was cooperative throughout.
[11] Mr Maisey gave evidence at the hearing. He lived and worked on the property. He testified that the garage he drove his motorcycle up to is a large shed used to service helicopters. Helicopters frequently land on the concrete pad in front of the shed. Halfway up the driveway from the road to the shed is a sign. The sign reads “Warning: Helicopter operational area. No unauthorised entry.”
[12] Constable Waite also gave evidence. He said that he did not see the sign.
District Court’s Decision
[13] Judge McGuire set out the relevant facts as noted above. He then noted the submissions made on behalf of Mr Maisey that the Constable’s entry onto Mr Maisey’s private property was not lawful.
[14] Judge McGuire referred to the relevant authorities, and to the legislation. He noted that Constable Waite did not see the sign, and observed that, in any event, the sign did not trouble Mr Maisey, who rode past it and up onto the helicopter pad. The Judge observed that Constable Waite did no more than follow Mr Maisey. The Judge considered that there was nothing in the subsequent events which indicated any revocation of the officer’s implied license to be on the property, and he found that Constable Waite’s license was not revoked.
[15] Judge McGuire therefore concluded that Constable Waite’s actions were
lawful, and that the charge was proved.
Submissions
[16] Mr Simperingham, for Mr Maisey, argued that a police officer must be lawfully present upon a property when exercising the power to require a person to undergo an evidential breath screening test. He argued that Constable Waite had neither a common law right under an implied license, nor a statutory right under s 119 of the Land Transport Act 1998 to be on Mr Maisey’s premises. He argued that such implied license as Constable Waite may otherwise have had was revoked by the sign on the driveway. He argued that it was immaterial whether or not Constable Waite noticed the sign, because a reasonable person, given the circumstances, ought to have noticed the sign, and realised that it revoked the implied license to otherwise be on the land.
[17] Ms Tahana, for the Crown, accepted that there is a need for a lawful presence on private property when administering an evidential breath screening test. She argued, however, that Constable Waite had an implied license to go onto the property, and inquire into the driving which he had observed. She accepted an implied license can be revoked, but submitted that whether or not there is a
revocation turns on the circumstances of the case. She argued that Constable Waite’s implied license was not revoked, submitting that the purpose of the sign was safety- related, and observing that Mr Maisey remained cooperative throughout his engagement with Constable Waite.
Analysis
[18] Historically, and at common law, officers of the Crown had no general right to enter private property, and if they set foot on the land of another without that other’s consent or legal justification there was a trespass.1 The common law was, however, ameliorated by the doctrine of implied license. It was recognised 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, and communicating with, an occupier.2
[19] These doctrines were applied in a number of New Zealand cases, concerning drink driving. For example, in Transport Ministry v Payn,3 the Court of Appeal held that traffic officers who went onto private property could request and conduct a breath test on that property, if they were there with the leave and license of the occupier. The Court also held that such implied license could be revoked, if the traffic officers were asked to leave. The matter was further considered, again by the Court of Appeal, in Howden v Ministry of Transport4 where the Court of Appeal held that an officer seeking to enforce the drink driving provisions had no right to do so by entering private property, merely for random investigation purposes, against the will of the occupier. The Court held that if the officer’s purpose was merely to check, he must have express or implied permission, and that it would not be reasonable to assume that an occupier gives an implied license to an officer to enter
private property for the purpose of random breath testing of a driver whose driving
or other behaviour has given no cause for suspicion.
1 See Semayne’s case (1604) 5 Co Rep 91a at 91b, 77 ER 194 at 195 (KB); Entick v Carrington
(1765) 2 Wils KB 275, 95 ER 807 (KB).
2 Robson v Hallett (1967) 2 KB 939 (CA).
3 Transport Ministry v Payn [1977] 2 NZLR 50.
4 Howden v Ministry of Transport [1987] 2 NZLR 747 (CA).
[20] There have also been a number of cases dealing with the exercise of the implied license in the context of the drink driving provisions in the High Court. Those decisions have not always been consistent.5
[21] The law has been restated in a recent judgment of the Supreme Court. 6 The Court unanimously held that members of the public, including the police, have a license, implied by law as an exception to the general law of trespass, to go to the door of private premises in order to make inquiry of an occupier for any reasonable purpose. Police can avail themselves of this license for law enforcement purposes, but they cannot invoke the license to do anything that, by law, requires a warrant. The landowner is entitled to deny or terminate the license, either in advance of it being invoked, or in the course of it being invoked. The landowner can revoke the implied license in advance, by such means as locking a gate, or putting up a notice making it clear that members of the public are not permitted to enter. Termination during the course of the exercise of the license can be achieved by making it clear to the person concerned that he or she may no longer remain on the property. If that person does not comply with the request to leave within an appropriate timeframe,
he or she becomes a trespasser.7
[22] While Mr Simperingham enjoined me to find that whether or not an implied license is revoked should be considered objectively, I am not satisfied that that is necessarily the case. Rather, I prefer the observations of Dobson J in Police v McDonald8 where it was noted as follows:
[35] …Whilst the objective reconstruction of the expectations of the reasonable, objective participants in the position of both the occupier and the officer may be a useful tool in testing the boundaries of the licence when it is to be imputed in any particular situation, neither perspective necessarily dictates the outcome in any case.
[23] I also note the observations of the Court of Appeal in R v Bradley, where it was noted that the scope of an implied license cannot be defined without regard to
5 See, for example, O’Connor v Police HC Invercargill CRI 2008-425-012, 10 October 2008;
contrast Police v McDonald HC Nelson CRI 2009-442-011, 30 October 2009.
6 Tararo v R [2012] 1 NZLR 145 at 1, 12 and 14–16.
7 Above, at [13]; and see Robson v Hallett, above, n 2; Howden v Ministry of Transport, above n
4, at 761; R v Ratima (1999) 17 CRNZ 227 (CA) at [11]; R v Soma (2004) CRNZ 23 (CA) at
[2]–[3].
8 Police v McDonald, above, n 5.
the public interest in the effective investigation of offences and the punishment of those responsible.9
[24] I now turn to apply these various authorities to the present case.
(a) Constable Waite did not go onto the property to conduct a random breath test. He was responding to what he perceived to be dangerous driving. In the course of his investigations into that issue, he formed the view that Mr Maisey may have been drinking, and the breath test was taken in that context.
(b)The constable did not observe the sign. He did not know that he required authorisation to go up onto the pad.
(c) The sign in its terms did not unequivocally revoke the implied license to enter the property at all. It was halfway up the drive. Rather, it conditionally revoked the license to go further if authority to proceed was not obtained.
(d)The sign was not backed up by other impediments to access – for example a locked gate.
(e) The purpose of the sign was primarily safety related. It was intended to avoid people being injured by a landing helicopter. There is no suggestion that helicopters were using the landing pad on the night in question.
(f) Constable Waite followed Mr Maisey up the slope onto the concrete pad outside the garage.
(g) Mr Maisey did not ask Constable Waite to leave. He cooperated with
the constable throughout, and the issue of the constable’s authority to
be on the property was not raised by either party.
9 R v Bradley (1997) 15 CRNZ 363 (CA) at 368.
[25] In my view, this case bears a striking resemblance to the decision of the Court of Appeal in R v Myer.10 In that case, two police officers had called at Mr Woods’ home in Albany to undertake a bail check in respect of a Mr Myer, who lived in an upstairs bedroom. Mr Woods held the tenancy of the property, and he met the constables at the door. He had a discussion with them. He was made aware of the purpose of the visit. He called out to Mr Myer several times. There was no
response, and Mr Woods set off up the stairs, followed closely by one of the constables. The constables spoke to Mr Woods at the entrance to the upstairs bedroom, asking if it was Mr Myer’s bedroom. He received an affirmative answer. The constable had not been specifically invited by Mr Woods to go up the stairs, but the Court found that Mr Woods knew that the constable had followed him up the stairs, and that he had given no indication that he was unhappy with that course. The Court held that there was ample evidence on which the Court could conclude that by his conduct, Mr Woods impliedly authorised the constable to do what he did. The Court held that it was of little moment whether the matter was analysed as an extension of the implied license, or more simply, as the granting of implied permission or authority from the occupier for the constable to follow him up the stairs.
[26] In my view, the principle of implied permission or authority applies in this case as well. Although Constable Waite did not directly obtain authority before he went beyond the sign, any absence of express consent thereafter was remedied by Mr Maisey’s subsequent consent. It is implicit from Mr Maisey’s conduct that he authorised Constable Waite to be on the premises. This had the effect of excusing or
condoning the constable’s initial unauthorised entry beyond the sign.11
[27] I do record that s 119 of the Land Transport Act had no application in the present circumstances. That section provides that an enforcement officer who, inter alia, has good cause to suspect that a person has been driving under the influence of alcohol or a drug, can exercise the power to enter premises which that
person has entered, in the course of a “fresh pursuit”, but only for limited purposes,
10 R v Myer CA16/04, 13 March 2004; see also, King v Police HC Auckland CRI-2004-404-211,
30 September 2004.
11 And see, R v Bradley (1997) 15 CRNZ 363 at [8].
and only if the provision of Part 4 of the Search and Surveillance Act 2012 have been complied with. Constable Waite did not comply with the Search and Surveillance Act, and expressly acknowledged in giving evidence before the Court that he was not purporting to exercise the right to enter pursuant to a fresh pursuit conferred by the Land Transport Act when he went onto Mr Maisey’s land.
[28] Accordingly, I uphold the decision reached by Judge McGuire. The appeal is dismissed.
[29] The sentence imposed by Judge McGuire, is currently suspended under s 107 of the Land Transport Act, pending determination of this appeal. It is appropriate to lift that suspension. I allow two days after the release of this judgment before the suspension is lifted so that Mr Maisey can make the appropriate arrangement. I direct that the sentence imposed by Judge McGuire – namely, that Mr Maisey is disqualified from driving for a period of one year and one month, and that he be fined $750, is to come into effect, two days after the release of this reserved
judgment.
Wylie J
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