Page v Police HC Auckland A46/01

[2001] NZHC 567

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY A.46/01

BETWEEN REX ALTON PAGE
Appellant

AND POLICE
Respondent

Hearing: 26 June 2001

Counsel: Z Mohamed for Appellant
K Mitchell for Respondent

Judgment: 28 June 2001

JUDGMENT OF SMELLIE J

Solicitor: Zahir Mohamed, PO Box 39-119, Howick, Auckland
Crown Solicitor, DX CP24063, Upper Shortland Street, Auckland

Introduction

[1] This is a general appeal against conviction entered pursuant to s.56(1) of the Land Transport Act 1998, (the Act).

[2] It involves a consideration of s.119 of the Act, which to date does not appear to have been the subject of any reported decision.

Factual background

[3] The appellant left the Tuakau Tavern at about 10.15 p.m. on 10 November 2000 to drive his station wagon some 700 to 800 metres to his nearby home. He failed to turn on his lights. This was observed by a police patrol travelling in the opposite direction. The police executed a U-turn and activated the flashing lights on the police vehicle. There was by this time, another car between the appellant’s station wagon and the police car. As the police car moved out to overtake, the appellant entered a long drive leading to his home. The police car followed and drew up alongside in front of the appellant’s home. The appellant was accosted and admitted that he had been drinking. It seems that his wife probably emerged from the house and had some words with the police.

[4] The appellant was tested, whether it was with the breathalyser was disputed, and required to go to the Pukekohe police station to provide an evidential breath test, which proved positive.

The points on appeal

[5] The points taken on appeal were as follows.

Point 1: Section 23 of The New Zealand Bill of Rights Act 1990 was breached in that the appellant did not receive privacy. (This relates to a contention that the appellant’s conversation with his lawyer at the Pukekohe police station before the evidential breath test procedure was commenced, could be overheard by the officer who was about to process him.)

Point 2: The constable was not entitled to carry out any test on the appellant’s property and he was not entitled to require the appellant to accompany him as he misled the appellant as to the right of entry onto the property. (This essentially is the s.119 issue.)

Point 3: The constable was not entitled to require the appellant to accompany him to the police station as a breath screening test was not carried out. (This follows on from the s.119 point but is essentially a disputed factual issue.)

The judgment under appeal

[6] The points on appeal were advanced for the appellant in the District Court. There were other aspects of the evening of 10 November 2000 which were also debated in the Lower Court, but not pursued on appeal.

[7] In her judgment the learned District Court Judge made no specific finding as to which room the appellant was in when he exercised his right to consult a lawyer in private. She made a clear finding, however, that the telephone conversation the appellant had with his solicitor, was conducted in circumstances where his right to privacy was recognised and respected.

[8] So far as Point 2 is concerned, however, the judgment, with respect, does not really come to grips with what Ms Mitchell, for the Police, correctly in my judgment, identified as the central issue in the appeal.

[9] The discussion of the basis upon which the police were on the appellant’s property is inconclusive. The opposing contentions of prosecution and defence appear to have been resolved by a factual finding that the issue did ot arise until after the breath screening test had been undertaken. That it seems, (although the point is not articulated), was thought to be sufficient to establish that the entry was pursuant to the implied license and as a consequence the provisions of s.119(6) did not have to be complied with.

[10] There are, however, significant findings of fact which bear on the issue. In his evidence in chief the appellant said at pages 37 and 38 of the notes:

“Did the constable say anything to you about being on your property?. . . He said that there had been a law change and he had the right to follow me on to my property.

. . .

and he asked you to go with him, why did you agree to go with him?. . . Because he had asked me to talk into the device and it said that he had had a positive result, I think it was, and he cautioned me and asked me to accompany him.

Did you believe that he had the right to take you away?. . . Yes.

What made you believe that?. . . Again because he said that there had been a law change and he had the right to be there because he had asked me to talk into the machine and said he had had a positive result, but I didn’t have the right not to accompany him.”

[11] Whereas the police officer who administered the breath screening test and required the appellant to accompany him to the Pukekohe police station, while not denying he had said words to that effect, had no recollection of saying them.

[12] The learned Judge’s conclusions on this evidence are at page 4 of the judgment and again at pages 6 and 7 as follows:

“It was also Mr Page’s evidence that at his own property he was told by the Constable that the law had changed and that he, that is the Constable, was entitled to be on private property. That was put to the Constable in cross-examination. The Constable could not recall whether or not he did say that to the defendant.

The defendant himself when giving evidence about that comment was unable to put it in any context, in other words he did not say it was in response to any question asked by him. The defendant himself, in cross-examination also gave evidence that he could not recall when that comment was made to him but that he was sure (although not 100%) that the comment was made “after the breath screening test” had been administered.

Counsel for Mr Page has made submissions that the defendant should not be penalised for confusing a breath screening test with a passive test, given of course Mr Page’s evidence that he was never given a breath screening test. I accept that that is so although I believe the Constable when he gives his unequivocal evidence that he did administer the breath screening test. Accordingly, when Mr Page said in evidence that he was sure the comment (although not 100% sure) about whether or not the Constable was entitled to be on the private property, was made after the breath screening test, I am satisfied that it was after the breath screening test as opposed to being after the passive breath test.” (Emphasis added)

I interpolate to say that that appears to be a finding that the comment was made.

[13] Pages 6 and 7:

“The submissions made by Mr Mohamed are firstly, that the comment made by the Constable which the defendant attributes to him, that is that there had been a law change and he was entitled to be on private property, was misleading, and that the prosecution cannot invoke Section 119 of the Land Transport Act because there has not been sufficient compliance with the provisions of that Section and there has been, in this case, misinformation from the Police as to the defendant’s rights.

On the other hand the prosecution Sergeant has pointed out that the Police were entitled to be on Mr Page’s land by way of an implied licence and unless that licence was revoked, there is nothing wrong with the Police having undergone the procedure that they did.

In terms of Mr Page’s evidence, as I have already said, the comment, if it was made, about the law change, was made after the breath-screening test was administered. I have already indicated in the course of this decision that I believe the Constable, when he gave evidence that a breath-screening test was administered. In those circumstances I accept the prosecution submission that if the statement about the law change was made, it came at a time when there was already sufficient evidence available to the prosecution to proceed and to request Mr Page to accompany them to the Police station.” (Emphasis added)

The privacy and breath screening issues

[14] I have considered Mr Mohamed’s submissions on both points carefully. I am satisfied there was evidence upon which the Judge in the Lower Court could properly decide as she did regarding privacy. In those circumstances the first point on appeal fails. In addition, in relation to the third point, the prosecution evidence that a breath screening test was administered was accepted and that of the appellant that only the passive device was used rejected. There is no basis upon which on appeal that finding should be departed from.

Was the law change comment made, and if so, what significance does that have?

[15] The passage in the judgment at page 7, “the comment, if made” is equivocal and at odds with what appears to have been an earlier finding that it was made at page 4. In my judgment unless the Judge in the District Court was prepared to find the appellant’s evidence false on this point (and she did not), it should have been accepted that the comment was made.

What then is the consequence?

[16] There was no suggestion in the police evidence that they entered pursuant to the implied licence. That proposition was only raised in final submissions when apparently, the thrust of Mr Mohamed’s contention was recognised. In fact the police car appears to have been in hot pursuit. At page 2 of the notes of evidence the constable describes the entry onto the property and events immediately prior to it as follows:

“I did a U-turn and activated red and blue flashing lights and followed the vehicle. The vehicle sped up, accelerated and turned right onto Gibson Street, Tuakau, its headlights were still off. I continued to pursue the vehicle, there was another vehicle between my car and the Isuzu, I had to overtake that in order to catch up with the Isuzu on Gibson Road. The Isuzu vehicle turned left into the address of 39 Gibson Road, down a long driveway. I pursued the vehicle down this long driveway and it stopped outside a house. I drove my vehicle up on the driver’s side of the Isuzu and stopped in order to prevent the driver from running into the house. I got out of my vehicle and spoke to the driver who Constable Hunter had got out and stopped.”

[17] Furthermore, if the implied licence was being relied upon, why, when the issue of the police pursuing onto private property was raised (irrespective of when or how it was raised) was the “change in the law” comment made. The only fair and logical inference to be drawn in all the circumstances is, that viewed objectively, the pursuit down the long drive and the preventing of the appellant entering his house, had occurred on the strength of s.119 which Parliament clearly intended to be available in just such circumstances.

What does s.119 allow and require?

[18] It appears under a general section heading “Powers of Entry, Arrest, Immobilisation, and Impoundment”. The relevant portions of the section itself read:

“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).

(3) . . .

(4) . . .

(5) . . .

(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; . . .

[19] Applying those provisions to the circumstances of this case the enforcement officer on this occasion had good cause to suspect that the appellant had contravened s.114 because he had not stopped when pursued by a police car with flashing lights. He also may have had good cause to suspect that the appellant was driving under the influence of drink because he was driving away from the hotel without his lights on. Furthermore, the enforcement officer was clearly freshly pursuing the appellant. It follows that the police officer was entitled, without a warrant in the course of the pursuit, to enter the appellant’s premises.

[20] But subs.(6) places upon an enforcement officer in such circumstances an inescapable duty to identify himself (a point not taken by the appellant) and to tell the person pursued and the occupant of the premises entered that the power of entry is being exercised pursuant to s.119 of the Act.

[21] In the circumstances of this case it is clear that the police failed to discharge their duty under subs.(6)(b) of s.119 to inform the appellant and probably his wife when she emerged from the house, that the power of entry was being exercised under s.119 of the Land Transport Act 1998.

[22] In my judgment there can be no question but that it is a mandatory duty, undoubtedly enacted because the powers given cut across cherished common law rights of property and privacy.

[23] In my judgment the failure to discharge the duty imposed on this occasion means that the police were unlawfully on the appellant’s property. That being so the evidence of the taking of the breath screening test should have been rejected. This was a case where, by analogy with the Court of Appeal’s decision in Howden v MOT (1987) 2 CRNZ 417; the breach of the Act should not, “be treated as a trivial error to be excused by the Court”, (Cooke P. at 422 line 30). . Since a positive breathalyser test is a prerequisite to authority to require an evidential breath test, the subsequent test in the Pukekohe police station, upon which the conviction rests, was a nullity.

Decision and Costs

[24] The conviction is quashed and the appellant is awarded costs of $750 against the Police with filing fees and other reasonable disbursements fixed by the Registrar.