McKee v The Police HC Wellington Ap293/01

[2001] NZHC 1281

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY AP293/01

BETWEEN DUNCAN RICHMOND MCKEE
Appellant

AND THE POLICE
Respondent

Hearing: 18 December 2001

Counsel: Appellant in Person
M Ball for the Respondent

Judgment: 18 December 2001

ORAL JUDGMENT OF WILD J

Solicitors:
Luke, Cunningham & Clere, Wellington for the Respondent

Introducin

[1] This appeal is against both conviction and sentence. The appellant was convicted in the District Court at Wellington on 11 October of refusing to provide a blood specimen and refusing to surrender his driver’s licence.

Grounds of appeal

[2] The grounds of appeal are:

[a] That the statutory provision for powers of entry on to private property (s 119 Land Transport Act 1998) were not exercised by the Police.

[b] The property entered is and was privately owned and hence power of entry is limited to following the procedures of s 119.

[c] These procedures were by admission in Police evidence not followed correctly and hence entry on to this property was unlawful.

See decision of Smellie J A46/01 Page v Police 28.6.01.

[3] These grounds can, I think, be summarised in the submission that the Police could only, in the circumstances of this case, have entered on the private property pursuant to their powers under s 119 Land Transport Act 1998. As they did not do so, the entry was unlawful and the resulting convictions must be quashed.

The facts

[4] The facts of the case are not in dispute. Shortly after 9 pm on 18 May the appellant was noticed by a uniformed Police Officer sitting on a motorcycle in what the officer described as a public or customer carpark behind the Nees building store in Leeds St, Wellington. The headlight of the motorcycle was on, its engine was running, and Mr McKee was wearing a cycle helmet. The Constable thought that Mr McKee may have been drinking, and said in evidence that Mr McKee did not deny that. The officer required passive and breath screening tests, both of which the appellant refused. The appellant agreed to accompany the Constable to the Police Station, where he refused to undertake evidential breath and blood tests. He was arrested and charged.

[5] The following day the officer, having served the appellant with a suspension notice, went to the appellant’s house and required him to surrender his driver’s licence. Mr McKee refused to surrender it.

[6] In fact, the carpark was the property of a company called Azhul Holdings Ltd, which was the appellant’s employer at the time, and the appellant was there in his employee capacity. The carpark was used by the owner (or to be more precise the owner’s lessee) for its own use and that of its customers and contractors. The lessee was undertaking building work nearby at the time.

The District Court Judgment

[7] The District Court Judge held that the carpark was a “road” within the extended definition in s 2 Land Transport Act. He said that that logically and inevitably excluded the requirements of s 119. The carpark was not private premises into which the Police require to have the specific authority afforded by, and need to follow the specific provisions of, s 119. The Judge said that a “road” and such private premises or property are “mutually exclusive”.

[8] Mr McKee, in advancing his appeal, submitted that the Police Constable had no authority to enter the carpark and require breath tests or a blood sample or both tests and hence he declined them. He argued that s 119 allows the Police to pursue offenders on to private property, but it does not allow casual entry on to private property. He submitted that there had been a breach of the Act and cited the comments of Cooke J in Howden v MOT (1987) 2 CRNZ 417 (CA) as to the consequences of such a breach. Mr McKee submitted that there was no pursuit here. That was clearly established in evidence, the Constable accepted it. He also submitted that s 119 had not been invoked. He accepted that the definition of “road” in s 2 Land Transport Act was “wide, sweeping”. He conceded that the public had access to the carpark, although it was 7/8ths fenced off the public were able simply to drive in. Mr McKee accepted that the carpark was a road within the s 2 definition. Mr McKee ended his argument by making the point that s 2 was a Draconian provision because of its width. If the Police were to come into a private carpark which came within the definition of a road then they must comply with s 119. They must empower themselves under that provision.

[9] Mr McKee relied in the District Court, as he did in advancing this appeal, on the judgment of Smellie J in Page v Police 28.6.01 HC Auckland A46/01. The Judge had distinguished Page on its facts. He said that was a case where the Police had pursued a driver down a long drive to his home, the police car then drawing up alongside the driver in front of his house.

Decision

[10] I agree with the Judge that s 119 has no application to this case. But that is because it is confined to situations of fresh pursuit, and Mr McKee is absolutely correct in saying that there was no suggestion of that here. Thus, s 119 did not authorise the Constable to do what he did. Page is therefore not in point. It is a pursuit case to which s 119 did apply.

[11] I also agree with the Judge that the carpark was within the definition of a “road” in s 2 of the Act. An oft cited description is that of Wilson J in Police v Smith [1976] 2 NZLR 412 where at 413 the Judge said:

“It is clear that only those places to which the public - that is, the general public - have access, as of right or not, constitute ‘roads’ . . . . It is not enough that premises or a place may be physically open for the public to wander into. It must be that they are so open and so well-known to be open that in fact the public do either continually or from time to time without asking anybody’s permission enter upon them. If they do that it is a place to which the public have access whether as of right or not and it is a ‘road’.”

[12] The carpark here, although private and although perhaps reserved for the owner and its customers and contractors, would come within this description. Thus the Constable was entitled to require the appellant to undergo breath screening tests.

[13] Even if that is not so, the appeal cannot succeed. Section 119 does not codify the rights of the Police to undertake tests on private property in accordance with an implied licence, as exemplified in cases such as Robson v Hallett [1967] 2 QB 939 and Payn v MOT [1977] 2 NZLR 50 (CA). The section merely prescribes procedures in cases of fresh pursuit. This point was made clear by Wylie J in Burt v Ministry of Transport 10.6.91 HC Auckland AP39/91. His Honour said this:

“It was counsel’s submission that the provisions of a s 66A (the predecessor of s 119) codified the rights of traffic officers to undertake breath tests or other enforcement powers on private property and that the previous common law principles s to implied licence and express licence as exemplified in cases such as Payn v Transport, [1977] 2 NZLR 50 and Howden v Ministry of Transport [1987] 2 NZLR 747 could not longer be relied upon. He relied on a passage from the speech of Lord Herschell in Bank of England v Vagliano Brothers [1891] AC 107 at 144-145. With respect to the careful argument of counsel for the appellant I am quite unable to uphold that submission. In my opinion it is abundantly clear that s 66A (s 119) is not a codification of the whole of the law relating to traffic officers’ rights on private property. It is clearly by its own terms confined to cases of fresh pursuit. It may well be that it is a codification of the law relating to entry on premises in the course of fresh pursuit, but in my view it is quite untenable to argue that the section replaces the existing law as to licence to enter or, for that matter, licence to carry out tests or other enforcement powers by consent.”

[14] If the carpark was not a “road”, the issue would be: Did the Constable act in accordance with an implied licence? In Howden v MOT (1987) 2 CRNZ 417 (CA), following Payn, Cooke J considered that an officer seeking to enforce breath or blood alcohol provisions had no right to do so by entering private property against the will of the occupier, merely for random investigation purposes. If the officer’s purpose was merely to check, the officer must have express or implied permission. Here, the Constable appears to have been conducting no more than a random check. I do not understand there to have been any suggestion in the evidence that the Constable had rcason to suspect the appellant of anything before he approached him.

[15] Most of the seminal cases involving implied licence involve private residential properties. Here we are dealing with a carpark, privately owned, and for the use of the owner or its lessee, and its customers and contractors. However, as Mr McKee accepts, the public could, and did, come and go in their cars. The owners of the carpark I think would want the carpark to be used safely. To put the matter differently, I do not think the owners of the carpark would want it used by intoxicated drivers. Those circumstances seem to me to constitute an implied licence to Police Officers to enter the carpark to exercise powers under the Land Transport Act. The Judge did not approach the case in this way, but had he done so I am confident he would have come to that conclusion. Another relevant factor is the time of the incident - 9.05 pm. In Howden Bisson J suggested that an implied licence could only be exercised at a reasonable hour. There does not seem to be any evidence as to whether the carpark was actively in use by the owner or its contractors at the time. But I consider the owners of the store would not want the carpark to be used by intoxicated drivers at any time.

[16] The appeal against conviction is accordingly dismissed.

[17] None of the grounds of appeal relates to the appeal against sentence, which anyway lacks merit. The appellant was fined $700 for a first offence against s 60 of the Act. The maximum penalty is 3 months imprisonment or a $4,500 fine. A fine of $700 cannot be viewed as manifestly excessive. The 6 months disqualification period was mandatory. The appeal against sentence is also dismissed.

[18] Mr McKee has represented himself, and may I say that he has done so extremely well. He has been courteous, straight to the point and therefore succinct. Some barristers who frequent these Courts could take a lesson.