McCallum v Police

[2014] NZHC 1135

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2013-476-8 [2014] NZHC 1135

BETWEEN

GRAHAM RODERICK McCALLUM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	26 May 2014
Counsel:	C S Withnall QC for Appellant N M Willcocks for Respondent
Judgment:	27 May 2014

JUDGMENT OF HEATH J

This judgment was delivered by me on 27 May 2014 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Dean & Associates, Timaru

Crown Solicitor, Timaru

McCALLUM v NEW ZEALAND POLICE [2014] NZHC 1135 [27 May 2014]

Introduction

[1]      Mr McCallum was charged with driving a motor vehicle while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath.1

Following a defended hearing in the District Court at Oamaru on 9 October 2013, a reserved judgment was delivered on 3 December 2013.2

[2]      Judge Kellar found Mr McCallum guilty of the offence.   On 18 December

2013, Judge Maze entered a conviction, fined Mr McCallum $1050, ordered him to pay Court costs, and disqualified him from holding or obtaining a driver licence for a period of six months.3   Immediately after the sentence had been pronounced, a notice of appeal was filed against the conviction.   Judge Maze made an order deferring operation of the disqualification pending appeal.

[3]      Mr McCallum appeals against his conviction on two grounds.   The first is that the District Court Judge erred in holding that, in the circumstances disclosed in the evidence, a police officer was entitled to administer a breath screening test.  The second is that the Judge was wrong to admit evidence of the evidential breath test because the officer first “required” Mr McCallum to undergo a breath screening test, contrary to the provisions of the Land Transport Act 1998 (the Act).

Background

[4]      There is  no  dispute with  the background  facts  set  out  in  Judge  Kellar’s

judgment.4   My summary is drawn from them.

[5]      Sergeant Muldrew knew Mr McCallum. At about 2.20pm on 1 June 2013, he saw Mr McCallum driving a van on State Highway 1, near Herbert.   The officer observed Mr McCallum’s van turning into the carpark of the Maheno Tavern.  Mr

McCallum alighted and entered the hotel.

1      Land Transport Act 1998, s 56(1)(a).

2      Police v McCallum DC Oamaru CRI 2013-045-243, 3 December 2013 (Judge Kellar).

3      Police v McCallum DC Oamaru CRI 2013-045-243, 18 December 2013 (Judge Maze).

4      Police v McCallum DC Oamaru CRI 2013-045-243, 3 December 2013 at paras [8]–[11].

[6]      Sergeant Muldrew drove into the hotel carpark.   He then walked into the tavern.   Mr McCallum was seated at the bar.   The officer estimated (based on a reconstruction prior to the hearing) that he would have taken about 26 seconds to go from his vehicle to the tavern premises.   Other evidence suggested that the delay could have been between three and five minutes.   While the Judge accepted the Sergeant’s evidence on this issue, I regard any difference in the timing as immaterial.

[7]      When Sergeant Muldrew entered the hotel he was carrying a breath screening device.  Once inside the bar, he asked Mr McCallum to “come and have a chat”.  He did this on two occasions.5   Mr McCallum followed the officer outside the bar, to do so.

[8]      At Sergeant Muldrew’s request, Mr McCallum underwent a breath screening test.  The result was positive. A subsequent evidential breath test revealed a result of

1034 micrograms of alcohol per litre of breath.  No blood test was requested.

[9]      On the evidence given in the District Court, Mr McCallum had been drinking heavily the previous night and had consumed a glass of wine prior to driving.  He denied having had any alcohol while at the hotel.   That seems likely given the proximity  in  time  between  Mr  McCallum  entering  the  licensed  premises  and Sergeant Muldrew’s arrival.

Analysis

(a)      Was Sergeant Muldrew entitled to administer a breath screening test?

[10]     Section 68(1) of the Act entitles an enforcement officer to require various classes of persons to undergo a breath screening test without delay.  It states:

68  Who must undergo breath screening test

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

(a)      A driver of, or a person attempting to drive, a motor vehicle on a road:

5      See para [27] below.

(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:

(c)      If an accident has occurred involving a motor vehicle,—

(i)       The driver of the vehicle at the time of the accident;

or

(ii)      If the enforcement officer is unable to ascertain who the driver of the motor vehicle was at the time of the accident, a person whom the officer has good cause to suspect was in the motor vehicle at the time of the accident.

[11]     Section  68(1)  envisages  three  situations  in  which  that  power  may  be exercised:

(a)      When a person is the  “driver of, or attempting to  drive, a motor vehicle on a road”.

(b)Where  the  officer  has  “good  cause  to  suspect”  that  someone  has recently committed an offence against the Act, involving the driving of a motor vehicle.

(c)      Where the person has been driving (or is  suspected to have been driving) a motor vehicle when an accident occurs.

[12]     In this case, Sergeant Muldrew’s ability to require a breath screening test was governed by s 68(1)(a).  The Sergeant gave no evidence to indicate that he had “good cause to suspect” that Mr McCallum had committed an offence against the Act, notwithstanding the high level of his breath alcohol concentration.

[13]     It was submitted in the District Court that Mr McCallum was not the “driver” at the time he was tested.  Reliance was placed on a decision of the Court of Appeal in R v Wynn-Williams.6

[14]     Judge Kellar did not accept that submission.  After referring to other relevant authorities, he held there was “no intervention of time, circumstance and conduct

6      R v Wynn-Williams CA400/03, 15 June 2004.

[such] that Mr McCallum ought to be seen as separated from the road and the act of driving”.7     The reference to “time, conduct and circumstance” is taken from R v Wynn-Williams.8

[15]     Mr Withnall QC,9  for Mr McCallum, submitted that s 68(1)(a) was intended to authorise random breath testing for persons who were actually driving, or attempting to do so.  He contended that it was not intended to operate in a situation where a person was sitting at the bar of a hotel, with his or her car outside, in circumstances where it may or may not be driven by that person on leaving the hotel.

[16]     Mr  Withnall  also  contended  that  the  intention  of  the  legislation  was  to interfere as little as possible with civil liberties and that a situation in which a person might be regarded as a danger to road safety was covered by the “good cause to suspect” criterion in s 68(1)(b).

[17]     This point was considered by the Court of Appeal in R v Wynn-Williams.  The scheme  of  the Act,  and  the  circumstances  in  which  s 68(1)(a)  was  intended  to operate, was discussed in the judgment of the Court, delivered by Glazebrook J.10

She said:

[25]    We accept Mr Withnall’s submission on the structure of s 68(1). We agree that para (a) is concerned with whether a person is a driver of a motor vehicle on a road (or a person attempting to drive) at the time the officer requires the breath screening test. Para (b), on the other hand, is concerned with past conduct and para (c) with the situation at the time of an accident.

[26]  We also accept Mr Withnall’s submission that the absence of the words “good cause to suspect” in para (a) is significant. This means that the officer can only require a person to undergo a breath screening test if the person is actually the driver of the car at the time or is attempting to drive. If this is proved to be the case at trial, then this will suffice. In this case, however, it is agreed that it was not proved at trial that Mr Wynn-Williams drove, or attempted to drive, the car in the camping ground. This means that it is not possible to rely on the camping ground driving insofar as para (a) is concerned.

[27]   Mr Wynn-Williams, however, admitted to Constable Scott that he had driven to the camping ground some 20-35 minutes earlier. Insofar as para (a) is concerned, the question for this appeal is whether Mr Wynn-Williams

7      Police v McCallum DC Oamaru CRI 2013-045-243, 3 December 2013 at para [23].

8      R v Wynn-Williams CA400/03, 15 June 2004 at para [32].

9      Mr Withnall did not appear in the District Court.

10     R v Wynn-Williams CA400/03, 15 June 2004 at paras [25]–[32].

could still be considered the driver at the time he was required to undergo the breath screening test on the basis of this earlier driving.

[28]   We accept Mr Pike’s submission [for the Crown] that the question of whether someone is a driver is a question of status. In ordinary English parlance a person may say that they are a driver of a car even if it is sitting in the driveway of their home and they have not driven it for some time. We consider that the addition of the words “on a road” in para (a), however, means that there must be a proximate connection to actual driving on the road for a person to be a driver. This means that there must be no such intervention of time, circumstance and conduct that the person must be seen as separated from the road and the act of driving.

[29]   In our view, this fits in with the policy of para (a), which was to allow random breath testing of motorists on the roads. At the time the predecessor s 68(1)(a) was introduced, the Hon Paul East, the then Attorney-General, when reporting to Parliament on the New Zealand Bill of Rights Act implications of the proposed new regime made it clear that the Bill was to give enforcement officers the power to undertake random breath testing at the time they had stopped a driver. He said at (1991) 521 NZPD 6367, December 17, 1991:

“Even  though  a  traffic  officer  is  empowered  to  stop  a  driver randomly he is not empowered to breath-test randomly. If the Bill becomes law, traffic officers will be so empowered. ”

[30]    It cannot have been the purpose of the legislation to allow a breath screening test to be required of a person at home, for example, merely on the basis that they were the driver of a car some hours previously. This would be particularly harsh given the presumption in s 77(1) and points away from an expansive definition of driver being intended. It would also arguably render otiose s 68(1)(b), which provides that a person whom an officer has good cause to suspect has recently committed an offence against the Act involving driving may be required undergo a breath test.

[31]    As to what is a sufficiently proximate connection with actual driving and the road we consider that the United Kingdom cases referred to by Mr Withnall will have some relevance, despite the different wording of the legislative provisions. We consider, however, that the word “driver” has a less restrictive interpretation than “driving”. It appears to us, for example, that a person would be held still to be a driver in circumstances such as pertained  in  Pinner  v  Everett  [1969]  3 All  ER  257.    In  that  case,  the appellant was stopped by police because his rear number plate was not illuminated. The officers, after a period of discussion about why he had been stopped, noticed that his breath smelt of alcohol, and then required him to undergo a breath test. The House of Lords, by a majority, held that he was not driving. It appears to us, however, clear from these facts that there was, in  this  case,  likely  to  have  been  a  sufficiently  clear  and  continuing connection to the road so as to render the appellant, in terms of the New Zealand legislation, a “driver of … a motor vehicle on a road”.

(Emphasis added)

[18]     Wynn-Williams was decided on 15 June 2004.   A few months later, on 12

November 2004, the Court of Appeal determined another appeal on the same issue: R v Pedersen.11   In a judgment delivered by John Hansen J, the Court considered and applied the principles articulated in Wynn-Williams.

[19]     It is clear from the Court of Appeal’s judgment in Pedersen that it recognised the issue as one of degree.  John Hansen J said:

[30]   This Court accepted that the UK authorities will have some relevance, but considered that the word “driver” has a less restrictive interpretation than “driving”. As an example, under the New Zealand legislation the appellant in Pinner v Everett would have been held to be the driver. … Glazebrook J, in delivering the decision of this Court stated:

“[28] We accept Mr Pike’s submission that the question of whether someone  is a  driver  is  a question of status.  In  ordinary English parlance a person may say that they are a driver of a car even if it is sitting in the driveway of their home and they have not driven it for some time. We consider that the addition of the words ‘on a road’ in paragraph (a), however, means that there must be a proximate connection to actual driving on the road for a person to be the driver. This means that there must be no such intervention of time, circumstance and conduct that the person must be seen as separated from the road and the act of driving. ”

[31]    In this case there is no doubt that the appellant was the person who drove the vehicle into the driveway, backed out and parked on the roadside berm. When first spoken to by the police she had only gone a few steps from her car. She was driving a few seconds before. An inference is available that her actions were to avoid the police checkpoint. If the appellant were not held to be the driver,  in terms  of s  68(1)(a), it  would  be  an affront to language, commonsense, and the clear purpose of the legislation. It would mean, as the Crown submitted, that any driver could avoid random testing by simply stopping and moving a few steps away from their vehicle. This would be completely contrary to the stated intention of Parliament.

[32]   There is “no such intervention of time, circumstance and conduct” to

separate the appellant from the driving.

….

[20]     For essentially the same reasons as those given by Judge Kellar, I agree that Mr McCallum should be treated as a “driver”, for the purposes of s 68(1)(a).  While the  literal  words  of  the  sub-section  can  properly  bear  the  meaning  for  which Mr Withnall contends, the purposive interpretation favoured by the Court of Appeal

has broadened its effect.  The question is whether there is a sufficient proximity to

11     R v Pedersen (2004) 21 CRNZ 580 (CA).

the driving to justify a person being required to undergo a breath screening test on a random basis.

[21]     At a time in relatively close proximity to when Mr McCallum entered the tavern, Sergeant Muldrew had observed him driving a van into the hotel carpark. The  Sergeant  went  into  the  tavern,  and  asked  Mr  McCallum  to  go  outside. Mr McCallum did so.  The officer administered a breath screening test.  When that result  was  positive,  he proceeded  to  an  evidential  breath  test.   That  revealed a reading that was well over twice the legal limit.

[22]     It is plain that Mr McCallum drove the vehicle to the hotel.   He said in evidence that he drank nothing in the hotel, so there is no risk that a heightened evidential breath test reading could have arisen through alcohol being imbibed immediately before the test.   The Sergeant  entered public premises to speak to Mr McCallum, so no issue arises as to whether entry to private premises could be justified on an implied license basis.

[23]     Given  that  Wynn-Williams  and  Pedersen  each  reject  an  interpretation  of s 68(1)(a) that would limit the ability of an enforcement officer to require a breath screening test at a time when a person was not actually driving on a road (or in the process of attempting to drive), the proximity in which the breath test was taken was sufficient, in my view, for s 68(1)(a) to apply.

[24]     The first ground of appeal fails.

(b)      “Requirement” to accompany

[25]     Judge  Kellar  explained  what  occurred  when  Sergeant  Muldrew  asked

Mr McCallum to “come and have a chat” in these terms:

[29]     The officer said that he asked Mr McCallum to “come and have a chat”.  Although the officer had the breath screening device the officer said Mr McCallum may not have seen the device.  Mr McCallum’s evidence was to similar effect.  He said the officer asked if he could “have a talk” to Mr McCallum  and  when  Mr  McCallum  asked  why  the  officer  simply  said “could you [Mr McCallum] come and have a talk to me [the officer]”.  Mr McCallum was not sure whether the officer had anything with him.  In any event Mr McCallum agreed to go with the officer.

[30]     There is a reasonable argument for saying that it is unlikely Mr McCallum  would  have  appreciated  the  significance  of  the  distinction between a request and a requirement.  The distinction between a requirement and  a  request  is  significant  because  s 68  contains  no  power  for  an enforcement officer to require a person to accompany him or her for the purpose of the breath screening rest. This is contrasted with s 69 in which an enforcement officer may require a person to accompany the enforcement officer to a place where it is likely the person can undergo an evidential breath test.

[Judge Kellar’s emphasis]

[26]     Mr Withnall submitted that s 68(1), in contrast to s 69(1) (which deals with evidential breath or blood tests), does not enable an enforcement officer to require a person to accompany him or her to a place where it is likely that he or she can undergo a breath screening test.   Mr Withnall submitted that Sergeant Muldrew asked Mr McCallum to “come and have a chat”.  He contended that amounted to a “requirement”, as opposed to a request for voluntary compliance.   Mr Withnall submitted that the officer exercised a power to require Mr McCallum to go outside the bar area to undergo a breath screening test, without statutory authorisation to do so.    Thus,  it  is  contended,  that  Mr  McCallum  was  then  subject  to  a  arbitrary detention contrary to s 22 of the New Zealand Bill of Rights Act 1990.

[27]     I  do  not  accept  that  submission.     On  my  reading  of  the  evidence, Mr McCallum went voluntarily with Sergeant Muldrew.   While asking a second time, Mr McCallum had the ability to decline the request; but he did not do so.  I reach that conclusion from the similar evidence given, in their respective evidence in chief, by both Sergeant Muldrew and Mr McCallum on this topic:

(a)      Sergeant Muldrew said:

A.        …  I  recognised  the  driver  of  the  van  as  being  Mr  Graham McCallum.   Mr McCallum has been known to me for about 30 years.  I turned to follow the vehicle and it turned into the Maheno Tavern carpark.   As I turned into the carpark I saw the vehicle stopped outside the front doors and I observed Mr McCallum as he went through the doors into the building itself.   I took a breath- testing device with me and entered the tavern, where I located Mr McCallum seated at a leaner.  In front of him was a large bottle of beer  and  a  glass.    Due  to  the  number  of  patrons  in  the  bar  I considered that privacy for Mr McCallum would be an issue and I asked Mr McCallum to come and have a chat.  He replied, “Why”? I again said, “Come and have a chat,” and I turned and walked out of

the building.   Mr McCallum got up and followed me out.   I then asked Mr McCallum if he had drunk from the bottle, to which he replied, “No”.   I immediately noticed signs of intoxication and immediately required a breath screening test.   Roadside testing procedures were completed and Mr McCallum accompanied me to the Oamaru Police Station. …

(b)      Mr McCallum’s evidence is recorded as:

Q        What happened when Peter Muldrew came to speak to you?

A.       He walked in the door and says, um, ah, ah, “Can I have a talk to you, please?” “Yeah”. “Can you come with me?” “Yep”.

Q.       What did you say to him?

A.       I said, “Why, why, you know, what’s going on?” yeah and then he repeated it again, “Could you come and talk to me, please?”

Q.       Did you see if he had anything with him?

A.       I can’t recall that to be actually seen, but I know very well that then

went back to the car to get the breath testing device so he (inaudible

15:11:29) on him, yep.

Q.       What was your view on – no, where were you breath tested? A.     I was taken outside onto the veranda, yep.

Q.       And where, where –

A.       Ah, right –

Q.       - so were you on the veranda when you were breath tested? A.      Yes.

Q.       Right.

[28]     Mr McCallum was not taken to another place.   In fact, he was not taken anywhere.  Rather, he went outside the hotel and spoke to Sergeant Muldrew on its verandah.   The officer was on his way out of the bar area, and Mr McCallum followed.  That is far removed from a situation where (for example) an officer may purport to require a suspect to go to a police station for a breath screening test to be administered.  Undoubtedly, that would be an unlawful detention.

[29]     The  District  Court  Judge  took  the  view  that  Mr  McCallum  “may  have construed the request as a requirement” and that, therefore, “there was an arbitrary

detention”.12   Nevertheless, he considered that s 30 of the Evidence Act 2006 applied to enable (otherwise) improperly obtained evidence to be admitted.13

[30]     With  respect,  I  think  the  Judge  erred  in  holding  that  there  had  been  a detention.  In the circumstances disclosed in Mr McCallum’s own evidence, I do not agree that he was required to go outside the hotel.   He was asked to do so, and complied.   Nor was he taken to another place.   He remained at the hotel.   The difference was that he was outside on the verandah, rather than inside the bar area. The evidence was admissible, in any event.  Section 30 was not engaged.

[31]     The second ground of appeal also fails.

Result

[32]     For those reasons, the appeal is dismissed.  The disqualification order made in the District Court shall commence at 12.01am on Thursday 28 May 2014.

[33]     I thank counsel for their helpful submissions.

P R Heath J

Delivered at 4.00pm on 27 May 2014

12     Police v McCallum DC Oamaru CRI 2013-045-243, 3 December 2013 at para [34].

13     Ibid, paras [34]–[38].