Parata v Police

[2018] NZHC 3234

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI 2018-485-62

[2018] NZHC 3234

BETWEEN

WIREMU PARATA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

9 November 2018

26 November and 7 December 2018 (further submissions)

Counsel:

S J Fraser for Appellant

S Carter and D M Helm for Respondent

Judgment:

10 December 2018

JUDGMENT OF SIMON FRANCE J

[1]                 Mr Parata appeals a pre-trial decision ruling admissible identity evidence at his upcoming trial.1

[2]                 Mr Parata was stopped while driving. He gave details of his identity which are alleged to be untrue and concerning which a charge has been laid. Discovering his true identity has also led to a charge of driving while disqualified.

[3]                 It is the process by which the Police learned his correct identity that is the subject of legal challenge. After stopping Mr Parata, the Police initiated breath alcohol procedures. Mr Parata refused to undergo a breath screening test. Accordingly, the police officer required Mr Parata to accompany her to the nearby police station. It is

1      New Zealand Police v Parata [2018] NZDC 17934.

PARATA v POLICE [2018] NZHC 3234 [10 December 2018]

common ground that this was done pursuant to s 69 of the Land Transport Act 1998, and it constitutes an authorised detention.

[4]                 At the station Mr Parata blew into the device and recorded a reading of 389 mg of alcohol per litre of breath. This reading is below the longstanding threshold of  400 mg but now constitutes an infringement offence punishable by a $200 fine.2 After obtaining the reading, the Police took Mr Parata’s photo and fingerprints pursuant to s 32 of the Policing Act 2008. That process led to discovering Mr Parata’s correct identity and the charges he now faces. The issue is whether the circumstances allowed for the use of the s 32 powers once it was clear only an infringement offence had been committed.

[5]Section 32 provides:

32       Identifying particulars of person in custody

(1)The purpose of this section is to enable the Police to obtain information that may be used now or in the future by the Police for any lawful purpose.

(2)For the purpose of this section, a constable may take the identifying particulars of a person who is in the lawful custody of the Police if that person is detained for committing an offence and is—

(a)at a Police station; or

(b)at any other place being used for Police purposes.

(3)A constable—

(a)must take the person's identifying particulars in a manner that is reasonable in the circumstances; and

(b)may only use reasonable force that may be necessary to secure the person's identifying particulars.

(4)A person who, after being cautioned, fails to comply with a direction of a constable exercising his or her powers under this section—

(a)commits an offence; and

(b)is liable on conviction to imprisonment for a term not exceeding 6 months, to a fine not exceeding $5,000, or to both.

2      Land Transport Act 1998, s 56(1A); and  Land  Transport  (Offences  and  Penalties) Regulations 1999, sch 1. An infringement offence under this section will also attract 50 demerit points.

(5)In this section and section 33,—

identifying particulars

means, in relation to a person, any or all of the following:

(a)the person's biographical details (for example, the person's name, address, and date of birth):

(b)the person's photograph or visual image:

(c)impressions of the person's fingerprints, palm-prints, or footprints

place

includes any land, building, premises, or vehicle.

[6]At the hearing before me, it was argued that:

(a)section 32 is only available where it is established that the person has actually committed an offence;

(b)alternatively, that s 32 is not available where the person is detained for committing an infringement offence.

[7]                 The second question touches on the real issue which is whether Mr Parata was at the time lawfully detained for committing an offence. Further submissions have been filed on that, but I first address the first appeal ground.

[8]                 It is clear that the expression in s 32 – “detained for committing an offence” – refers to the police officer’s reason for detaining. Whether the person has as a matter of fact committed an offence is irrelevant. This is made plain by s 34(2) of the Act which provides that these records must be destroyed if a charge is not brought or a conviction not obtained. Plainly conviction is not a pre-requisite to exercising the power.

[9]                 The real issue in the case arises from the fact that s 32 is available only when someone is detained for committing an offence. It goes without saying that it must be a lawful detention, at least in the sense that there exists a power to detain for the offence which the detainee is suspected of committing. Here, once a reading of

389 mg was obtained, Mr Parata could only be suspected of committing a drink driving infringement offence. The question therefore is whether he could be detained for committing that offence in order to trigger the s 32 powers.

[10]              The respondent accepts there is no general detention power applicable to the infringement offence. Next, the original detention power under s 69 of the Land Transport Act had expired once the breath alcohol result was known. Section 69(5)(c) requires a person must remain at the station “until after the result of the test is ascertained”. Other detention powers must take over at that point. Finally, s 32 does not itself amount to a detention power.

[11]              I accordingly conclude that the offence associated with drink drinking afforded no basis for further detention. Accordingly, the drink driving conduct at that point could not trigger the s 32 power to take photo and fingerprints.

[12]              The respondent now seeks to argue that there was a power to take the fingerprints and photograph separate from s 32. It is s 33 of the Policing Act. That section allows the taking of photo and fingerprints where an offence is suspected and the officer intends to proceed by way of summons.3 The offence the respondent relies on is providing false details. The respondent submits there are notebook entries indicating the officer already suspected false particulars, but accepts this option was not explored in the District Court hearing. Indeed, as counsel for the respondent notes, until the power to detain was queried by the Court at the appeal hearing, there had never been any suggestion s 33 was relevant or relied upon.

[13]              The difficulty with the s 33 proposition is that before fingerprints can be obtained, it requires the officer to have already formed an intention to charge. Here that would mean that prior to obtaining the photograph and fingerprints, which are the very items confirming  the false details, the officer had  already decided to charge  Mr Parata with providing false details. It is not a realistic option on the facts. I accept

3      For completeness, I note that s 6(1)(b) of the Criminal Procedure Act 2011 allows proceedings for an infringement notice to be commenced by way of charging document rather than infringement notice. I am unsure when this option might ever be used but it is not suggested it was the officer’s intention here.

there may have been suspicion, but there would not have been at that point a firm decision to initiate proceedings.

[14]              It follows that the identifying information was obtained at a point where there was no power to obtain them. I accept the police acted in good faith, but the actual absence of any power to obtain the information is significant. The charges are moderately serious but of themselves involved no threat to the public safety. I am unsure as to the impact of exclusion of this evidence on the prosecution, as all that would seem to be required is proof Mr Parata was the driver, proof of the name he provided and that the name provided is not him (for the false details charge) and proof he is disqualified (for the other charge). In terms of other s 30 factors, the appellant submits the conduct involves a significant privacy breach. I do not agree, noting it involves minor intrusion into bodily integrity. Urgency or otherwise is not a relevant factor. The issue is simply the power to obtain.

[15]              The evidence obtained without power to do so is directly linked to the current charges. The absence of any lawful authority makes exclusion proportionate.

Result

[16]              I allow the appeal and rule the identification evidence obtained consequent upon the s 32 procedure to be inadmissible at Mr Parata’s trial.

Simon France J