O v Police HC Invercargill CRI 2008-425-12
[2008] NZHC 1588
•10 October 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI 2008-425-000012
O
Appellant
v
POLICE
Respondent
Hearing: 1 September 2008
Appearances: S Vidal for Appellant
M G Sinclair for Respondent
Judgment: 10 October 2008
JUDGMENT OF FOGARTY J
Introduction
[1] Mr O was convicted in the District Court at Queenstown for driving with excess blood alcohol. He appeals the conviction. He relies essentially on the grounds that the evidence was obtained illegally and should not have been admitted. He also argues that the evidence identification is of poor quality. That point has no merit and I will deal with it briefly later in the judgment. The police contend that
even if proof of excess blood alcohol was obtained illegally, it should be admitted.
O V POLICE HC INV CRI 2008-425-000012 10 October 2008
Background
[2] At six o’clock one morning in Queenstown a very intoxicated man was seen trying to get petrol from a petrol pump. The service station was not open. The bystander who saw this, Mr Grinder, reported by telephone to the police describing the man as intoxicated and saying he had a very strong Irish accent. At the suggestion of the police Mr Grinder followed this man and his companion as they left the petrol station until they turned into a private dwelling. The police car arrived five minutes later. Constable Turner went onto the property. A man answered the door and she asked him if he had recently returned home and he agreed he had. He smelt of liquor and had an Irish accent. He was unsteady on his feet. She required him to undergo a breath screening test. He failed it and she asked him to accompany her to the Queenstown Police Station for an evidential breath test, blood test, or both. He was given his rights. An evidential blood test was taken. Following completion of the breath screening test Constable Turner asked the man whether he had been driving the van and he agreed he had.
Section 119 of the Land Transport Act 1998 does not apply
[3] On appeal it was agreed that the entry onto the property could not be justified in reliance on s 119 of the Act. Section 119 provides:
119 Powers of entry
(1) An enforcement officer may exercise the powers conferred by subsection (2) if the enforcement officer—
(a) has good cause to suspect that a person—
(i) has contravened a request or requirement or demand made under section 114 (other than subsection (1)); and
(ii) has also committed or is committing an offence against section 35(1)(a) or section 35(1)(b) (which relate to reckless or dangerous driving offences), or is, or has recently been, driving under the influence of drink or a drug, or both; and
(b) is freshly pursuing that person.
(2) The enforcement officer may, without warrant, in the course of the pursuit enter, by force if necessary, any premises which the person has entered, for either or both of the following purposes:
(a) determining whether or not a power conferred on an enforcement officer by section 68 or section 69 should be exercised in respect of that person:
(b) exercising or completing the exercise of any such power in respect of that person (as if the person were in a motor vehicle on a road).
…
(6) It is the duty of every enforcement officer exercising a power conferred by subsection (2) or subsection (3) or under subsection (5)—
(a) to identify himself or herself as an enforcement officer to the pursued person and to the occupant of the premises entered; and
(b) to tell the pursued person and the occupant of the premises entered that the power of entry is being exercised under this section; and
(c) if the enforcement officer is not in uniform, to produce to the pursued person and the occupant of the premises entered on initial entry, and, if requested, at any subsequent time, evidence that he or she is an enforcement officer.
(7) An enforcement officer who enters any premises under this section may not exercise on those premises any power of arrest conferred by this Act other than a power of arrest conferred by any of sections 68(3), 69(6), and
120.
[4] Under cross-examination Constable Turner had said she believed she was entering the property in reliance on s 119. However, she agreed she did not go through any of the matters required under s 119(6). Also, clearly there was doubt as to whether she had been “freshly pursuing that person”, subs (1)(b).
[5] The District Court Judge, Judge Phillips, found correctly that s 119 could not be relied upon by the police. However, he went on to find there was an implied licence for police officers to enter a property such as this and that there was no evidence that the defendant or any other occupier had revoked that implied licence. He distinguished the Court of Appeal in Howden v Minister of Transport [1987]
2 NZLR 747, and followed the Court of Appeal in Tipa v Ministry of Transport CA348\88 17 February 1989 and a number of High Court decisions which follow Tipa.
Whether there is an implied licence in this case justifying the entry of the police officer
[6] The principal reason for the delay in issuing this decision is that it became apparent in the course of oral argument that there are numerous cases on whether there is an implied licence in circumstances such as this. At the end of oral argument I allowed counsel to file further submissions. It is now clear to me that there are two conflicting ratios of the decision of the Court of Appeal in Howden. I have been taken to numerous cases. I am not going to burden this judgment with discussing each one of these cases. Essentially I have to choose between two different interpretations of the Court of Appeal decision in Howden.
[7] A recent High Court decision cited to me is that of the judgment of Winkelmann J in King v Police High Court Auckland CRI 2004-404-000211. In that judgment Winkelmann J usefully introduces the subject matter of implied licence:
[11] It is an established principle that the police have no general right of entry on to private property for the purpose of obtaining evidence, questioning persons and making an arrest. A citizen has a fundamental right to privacy in their own home and this right has long been recognised – Entick v Carrington (1765) 95 ER 807; 19 St Tr 1029. However, this fundamental right is not absolute and is subject to limitations. The existence of an implied licence for members of the public to enter on to private property is well established. The leading authorities are Robson v Hallett [1967] 2 QB 939; Howden v Ministry of Transport [1987] 2 NZLR 747 (CA) p751; R v Bradley [1997] 15 CRNZ 363; R v Pou [2002] 3 NZLR 637. The extent of this implied licence is however closely circumscribed.
[12] As was said in Robson v Hallett, (per Diplock LJ at 953):
When a householder lives in a dwellinghouse to which there is a garden in front and does not lock the gate of the garden, it gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front door or back door and to enquire whether he may be admitted and to conduct his lawful business.
[13] It has been held however that this implied invitation extends no further than is required to permit communication with the occupant of the premises, and it can be negated by express reference or revoked by the occupier.
[14] The implied licence does not extend to a licence to enter on to the premises. However, a police officer will not be a trespasser, if he or she has the permission, implied or expressed, of the occupant of the premises to enter or remain in the premises.
[8] Winkelmann J has selected from the reasoning of Diplock LJ in Robson v Hallett, a passage which highlights that it is the householder who gives the implied licence. In Howden Cooke P emphasised that the basis of the implied licence is the reasonable expectation of an occupier. He cited Lord Parker CJ in Robson v Hallett who explained that the implied licence available to police officers was no greater than that of any other members of the public, who have implied licence to walk through the gate of a residential property and knock on the door of the house. The fact that it is entry on terms which fall within the reasonable expectations of the property holder is confirmed by examples given in Robson v Hallett whereby the presence of implied licence could be removed by the gate being locked.
[9] Accordingly, one of the available ratios of Howden is that the existence of an implied licence depends on whether or not an occupier of a residential house gives an implied licence to a police officer to enter for the purposes for which the police officer actually did enter the property in question. That was the test posed by Cooke P in Howden where he said:
… Entering private property for random checking of a driver whose driving or other prior behaviour has given no cause for suspicion is quite a different thing. It is a very considerable intrusion into privacy. In my opinion it would not be reasonable to hold that an occupier gives any implied licence to police or traffic officers to enter for those purposes. Most New Zealand householders, I suspect, if confronted with that question would answer it No.
(At 751)
Clearly, such a test is a question of degree.
[10] In Tipa traffic officers had found a damaged car in a Dunedin street nearby a damaged fence. At about 11.15 pm that evening, two hours after finding the car, they called at the address of the owner of the car. They knocked at the door and talked to the occupier who was the owner. Leave to appeal was refused in a short judgment of the Court delivered by Cooke P who held that such entry fell within the kind of implied licence exercisable by law enforcement officers.
[11] The second and alternative interpretation appears in some subsequent decisions of the High Court which have read the ratio of Howden, as applied in Tipa, as standing for the proposition that where a police officer has a lawful purpose for
going onto private property the police officer has an implied licence. The test put that way is from the perspective of the police officer. From my reading it seems to have followed from the reasoning of Holland J at first instance in Tipa. John Hansen J in Bourke v Bourke High Court Christchurch AP 191/96 16 May 1997 made the point that it all depends on the facts. But he also went on to rely on Holland J’s judgment in Tipa at first instance. John Hansen J said:
In the High Court Holland J considered Howden went no further than being dependent on the unfairness of an officer misrepresenting the legal situation in relation to the lawfulness of his presence on the property for a random breath alcohol check. He distinguished Howden on the facts in that there was no misrepresentation, no revocation of licence and the situation required some urgency. Holland J proffered the opinion that he would only restrict the implied licence to persons who had a legitimate purpose at the time for entering the property, with that purpose may well having to be determined according to the circumstances in each particular case.
[12] Gallen J in Smith v Police (1996) 14 CRNZ 480 when summarising Howden
said:
The Court specifically accepted the comments in Robson …, but also accepted that there had to be some reasonable limitations on an implied licence to enter property. That I think would clearly follow from the comments in Robson … which accepted there was an implied licence for the purpose of coming on to the property in the pursuit of lawful business. Cooke P indicated that there could be no implied licence to enter on to property for the random checking of a driver whose driving or other prior behaviour had given no cause for suspicion. In such a case, there could have been no lawful purpose.
[13] John Hansen J in Bourke followed Gallen J in Smith interpreting his reasoning for the proposition:
… [T]hat the purpose of entry is the dominant factor in such cases, Gallen J concluded that in this case there were reasonable grounds to justify entry by the security guard and the Police.
[14] This line of reasoning has led to an analysis which examines whether on the facts the police officer had lawful grounds for entering onto private property, such as reasonable suspicion that the occupier or other persons present on the property had committed an offence.
[15] To sum up, there are two alternative interpretations of Howden and Tipa, which can be summarised this way:
1.Implied licence depends on whether or not the grounds for entry were those for which an occupier of a residential dwelling gives implied licence to enter.
Or
2.Implied licence depends upon the police officer having a reasonable ground for entering on private property.
[16] It may be argued that those two interpretations are not alternatives. Certainly, in many instances they will overlap. But there may be situations where a police officer has a reasonable ground for wanting to speak to an occupier but that will not be a reasonable ground for entering without the consent. This will be particularly so if the consequences of entry may lead to the occupier being arrested. I prefer the first of the alternative interpretations of Howden and Tipa, as highlighted, in my view, by Winkelmann J in King.
[17] I also agree with Ms Vidal, who argued for this interpretation, that it is an interpretation reinforced by statute law. She noted that Howden (1987) and Tipa (1988) predate the enactment of the New Zealand Bill of Rights Act 1990, and likewise precede the enactment of a hot pursuit provision into the Act, now s 119.
[18] She submitted that given the narrow set of circumstances within which Parliament has, by s 119, authorised entry onto private property, and having regard to NZBORA, the Court should not allow the common law on implied licence to circumvent these restrictions and justify entry. I agree.
[19] I conclude that the entry in this case by Constable Turner was based on her reasonable belief that there was a person on the residential property who had been driving while intoxicated in breach of the law. However, residential property occupiers do not give an implied licence to police officers to come onto their property to check whether they or their guests have been driving while intoxicated. This is reinforced by the presence of a special statutory power in this regard where
Parliament had seen the need to give statutory powers of entry, but only in limited form as now contained in s 119.
The identity of the accused
[20] The identity argument depended on a fact not yet mentioned. There were in the house at the time two Irish men, both of whom were intoxicated. However, the evidence of identity depended on an identification undertaken by Mr Grinder after the accused had left the residence and was seated in the back of the patrol car. There he identified him as the man he had seen driving the van.
[21] Judge Phillips appropriately cautioned himself as to the dangers of identity evidence. I am satisfied that his analysis was correct and there is no merit in the identity point.
Whether the improperly obtained evidence should be admitted – s 30 Evidence
Act 2006
[22] Section 30 of the Evidence Act provides:
30 Improperly obtained evidence
(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if -
(a) the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or
(b) the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.
(2) The Judge must—
(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process
that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.
(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c) the nature and quality of the improperly obtained evidence: (d) the seriousness of the offence with which the defendant is
charged:
(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:
(h) whether there was any urgency in obtaining the improperly obtained evidence.
(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(5) For the purposes of this section, evidence is improperly obtained if it is obtained—
(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or
(b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or
(c) unfairly.
(6) Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.
[23] I am satisfied that on the probabilities the evidence was improperly obtained by reason of the unlawful entry onto the property in the first instance. The key
consideration is that posed in subs (3)(a) as to whether or not the exclusion of the evidence is proportionate to the impropriety.
[24] With reference to all the criteria in subs (3) there is no doubt that the common law has since the 18th century, at least, required all entry on private property without the consent of the owner to be empowered by some positive law. (See Winkelmann J cited above.) Parliament regards this common law principle to be of enduring importance. It is the explanation for s 199 of the Land Transport Act. It is supported by s 20 of the NZBORA.
[25] When weighing this consideration (a) in s 30(3) it is of paramount importance to take into account current Parliamentary policy. That is the policy in s
119. It reflects importance given by Parliament to entry by police officers onto private property. If Parliament has constrained that to particular circumstances, where is the authority of the Court to liberalise that policy? Certainly not from the NZBORA, whose policy drives in the other direction.
[26] Moving on to the other criteria there is no doubt that the entry was not done in bad faith. There is no doubt that the accused was intoxicated and that valuable evidence as to the degree of intoxication was obtained. Driving severely intoxicated is a serious offence. It threatens the safety of other persons on the road. There is a case for liberalising entry onto private property where the question of intoxicated driving is involved. But that is an issue which Parliament has already addressed and can further address if need be.
[27] The other criteria, (e) to (h) do not really have relevance to these facts.
[28] Moving on to subs (4), in my mind the exclusion of the blood alcohol evidence is proportionate to the impropriety and accordingly I am obliged to exclude the evidence.
[29] With the evidence gone there is no basis for the conviction. The appeal is allowed. The conviction is set aside.
Solicitors:
Queenstown Legal Chambers, Queenstown, for AppellantPreston Russell Law, Invercargill, for Respondent
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