Pogson v Police

[2012] NZHC 112

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000322 [2012] NZHC 112

BETWEEN  ROBERT JAMES MARK POGSON Appellant

ANDPOLICE Respondent

Hearing:         7 February 2012

Appearances: R Mulgan for Appellant

A Longdill for Respondent

Judgment:      10 February 2012

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on

10 February 2012 at 11.30 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140
Copy to:

R Mulgan, 51 Pembroke Crescent, Glendowie, Auckland

POGSON V POLICE HC AK CRI-2011-404-000322 10 February 2012

[1]     Mr Pogson appeals against conviction in the District Court, Judge C J McNaughton,for driving with excess breath alcohol (third or subsequent).  There are three issues in this appeal:

1.        Whether he was unlawfully detained in the course of the process establishing he was driving with excess breath alcohol;

2.        Whether  his  evidential  breath  test  was  improperly  obtained  in consequence of such unlawful detention;  and

3.        If  the  evidence  has  been  improperly obtained,  whether  or  not  its exclusion is proportionate to the impropriety.

[2]      The appellant had been in his partner‟s home.  The police were called to a domestic  incident  at  the  home.    A  marked  police  car  came,  containing  two constables, a man Constable Ahotalafolau and a woman Constable Paviour.   The appellant was stopped by the police driving away from the home, about 300 metres down the street.   Constable Ahotalafolau administered  a roadside screening test which the appellant failed. This happened at 8.12 p.m.

[3]      Section 69(1)(ab) of the Land Transport Act 1998 applied:

69       Who must undergo evidential breath test

(1)      An enforcement officer may require a person to accompany an enforcement officer to a place where it is likely that the person can undergo an evidential breath test or a blood test (or both) when required to do so by the officer, if,—

…

(ab)      in the case of any other person, the person has undergone a breath screening test under section 68 and it appears to the officer that the proportion of alcohol in the breath of the person who underwent the test exceeds 400 micrograms of alcohol per litre of breath;

[4]      The constable did not, however, require the appellant to accompany him to the nearby police station for an evidential breath test or a blood test.  Rather, he said to the appellant something along these lines:

We need to go and sort out what has gone on in your partner‟s house.

[5]      The evidence was summed up by the Judge to the constable in this way:

Q        “I said we needed to sort things out at Stanaway Street, is that okay?

He said „okay‟.  I am not too sure what I said, something along those lines.” Is that it?

A.       Yes, yeah.

[6]      The appellant could recall the constable saying „I need you to come with me or come back to Stanaway Street‟.  He could not recall the words to the effect, „Is that okay‟.

[7]      The constable had no right to require the appellant to accompany them back to his partner‟s house to investigate the incident.  The police position is that they had asked the appellant to come and that he had agreed.

[8]      The police car then went back and parked outside his partner‟s house.  The appellant stayed in the front seat of the car with Constable Ahotalafolau who asked some  questions  about  the  incident.    Constable  Paviour  went  into  the  house  to question the people in the house.

[9]      It is standard practice for domestic incidents to be responded to by two constables, one of whom will interview one participant, one the other.

[10]     Shortly before 9.00 p.m. Constable Paviour came out of the house and had a short discussion with Constable Ahotalafolau.  As a result the appellant was arrested at 9.00 p.m. for assault on a female.  At 9.01 p.m. he was required to accompany the constables to the North Shore Police Station for an evidential breath test or blood test.

[11]     It was not seriously disputed that the facts of this case raise an issue as to whether or not there had been any unlawful constraint on the appellant‟s liberty. Where that is an issue there is an onus on the Crown on the balance of probabilities to satisfy the Court that the detention was lawful.  See R v M.[1]   The test to be applied

[1] R v M [1995] 1 NZLR 242, at 247, line 23-24.

was  settled  in  the  Court  of  Appeal  in  Everitt  v  Attorney-General  adopting

Blanchard J‟s dictum in R v M: [2]

It is a mixed objective/subjective test:  does the suspect have the reasonably held belief, induced by police conduct, that he or she is not free to leave?

[2] Everitt v Attorney-General [2002] 1 NZLR 82 at 87.

[12]     In his reserved judgment, Judge McNaughton found that:

[18]      On the evidence I have heard there was no unlawful detention.  The Defendant‟s evidence is equivocal regarding what he was told by the police officer.  I accept that Constable Ahotalafolau did ask the Defendant if it was okay for him to come to the Stanaway address with the police and that the Defendant agreed.

[19]     Despite the failed breath screening test the Defendant was not told that he was required to accompany.  No Bill of Rights advice was given at that stage either and the fact that the Defendant travelled in the front seat of the  patrol car further  reinforces the voluntary nature  of the  Defendant‟s assistance with the police enquiries.

[20]      Whilst the Defendant may have believed that he had no option but to go with the police there were absolutely no objective grounds to support that belief.   There was nothing said or done by Constable Ahotalafolau which could have induced a reasonably held belief on the part of the Defendant that he was not free to go.

[13]     Mr Mulgan argued that there is an error in the Judge‟s application of whether the suspect had “a reasonably held belief”.  He argued that this objective aspect of the test has to be judged from the perspective of the average person, not from the perspective of a person with specialist legal knowledge.  Mr Mulgan emphasised the context.  The presence of a marked police car with flashing lights and two uniformed policemen.    The  police  officer  dealing  with  the  appellant  saying  that  he,  the appellant, was needed by the police in respect of the incident back at his partner‟s house.  In that context the phrase “is that okay”, or words to that effect, could be understood merely to be a courtesy sugar-coating what was a requirement.  Naturally Ms Longdill argued vigorously to the contrary.

[14]     It would appear that this nuanced approach to the test argued by Mr Mulgan was not placed before the trial Judge.

[15]     Where a person‟s liberty is compromised during a police investigation the law tends to require very careful explanation to persons who have not been arrested of their freedoms and right of silence.  No note was made by the police officer that he had obtained the appellant‟s consent to come back to his partner‟s house rather than be taken to the North Shore Police Station for the next step in the statutory process under the Land Transport Act.  In the circumstances as they were, a model of excellence would have been for the constable to explain quite clearly that he was proposing a departure from the statutory regime under the Land Transport Act and was asking the appellant to co-operate in coming back to his partner‟s house where the normal enquiries would be made in respect of that incident.

[16]     I am not satisfied on the balance of probabilities that the appellant was fully informed and freely agreed to co-operate.  Absent those preconditions he should be treated as having been kept under the control of police officers during this period of about 49 minutes between 8.12 p.m. and 9.00 p.m.  Accordingly, I find there was an unlawful detention during that period.

[17]     The second issue becomes whether or not the subsequent evidential breath test was improperly obtained as a consequence of that unlawful detention.

[18]     The trial Judge found at [21]:

Even if I am wrong in that conclusion the evidence sought to be excluded was not obtained in consequence of any breach of any enactment.  I am quite sure  that  if  the  police  had  not  decided  to  follow  up  the  complaint  at Stanaway Street the evidential breath testing procedure would have occurred in exactly the same way.  There is no causal nexus between the evidential breath test result and the breach complained of.   Accordingly there is no basis for any finding that the evidence was improperly obtained in terms of the Evidence Act and s 30 is not engaged.

[19]     Ms Longdill, for the Crown, placed great emphasis on this issue.   For, of course, if this issue is decided against the appellant it resolves the case.  She pointed out that in R v Shaheed[3] it was suggested this issue should be examined first.  I am examining it second, as I consider that at least in this case it is more logically best

[3] R v Shaheed [2002] 2 NZLR 377.

appreciated  having  examined  the  context  against  the  requirements  of  the  Land

Transport Act.

[20]     The appellant‟s  written submissions did not come to grips with this issue. Mr Mulgan argued that it is implicit in s 69 that where the enforcement officer requires a person to accompany him or her to a place to undergo an evidential breath test or blood test that that requirement will be made immediately following failure of the breath screening test.   He argued that if the requirement is not made straight away then the power to require the evidential breath test becomes “stale”.   This argument was not placed before the trial Judge.

[21]     There may be sets of facts where this argument could succeed.  But in this case, 49 minutes later, I do not think there is any merit in the proposition that that lapse of time resulted in the enforcement officer not having the powers under s 69. There can be a myriad of incidences where there is a delay following a failure of a driver to pass a breath screening test.  For example, the setting may be an accident in a rural location with two constables and one police car present and, say, a fire engine. The needs of other persons in the accident may well preclude the despatch of the driver to the nearest police station or to a doctor‟s  surgery etc. for an evidential breath test.  It is noticeable that Parliament does not impose any time limits on the exercise of that power.  The power, of course, has to be exercised in all good faith and for its proper purpose and thus is inherently subject to limitations pending on the particular facts.

[22]     I am satisfied on the probabilities that had Constable Ahotalafolau correctly explained to the appellant that he, as a police officer, did not have the power to take the appellant at that time back to his partner‟s house and was only asking him to co- operate and had the appellant refused, then the constable would have taken him to the North Shore Police Station for the evidential breath test (and likely made other arrangements vis-a-vis Constable Paviour and the domestic incident).

[23]     It was not suggested that there would be any material difference between the results of the evidential breath test by reason of the 49 minute delay.  As the trial Judge observed, the delay only favoured the appellant.

[24]     I am satisfied, that the results of the evidential breath test were accordingly not improperly obtained by reason of the unlawful 49 minute detention.

[25]     Even if I am wrong, I turn to the question of the application of the discretion in s 30.  Judge McNaughton did not do this analysis as on his reasoning he had no need to.

[26]     I turn to the criteria in s 30(3):

30       Improperly obtained evidence

(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.

[27]     As to (a), there is no doubt as to the central importance in our legal system of the liberty of persons prior to being arrested.  But, this was not a serious intrusion on that liberty.   It lasted 49 minutes.   It was a sensible request by the officer.   It is probable that the appellant would have agreed, if the options had been more clearly put to him.  For it was the appellant‟s evidence that he was not expecting a complaint of assault against him by his partner.  It would appear that it was other members of the family who had rung the police.   He told the Court that they had a volatile

relationship but usually managed to sort things out for the children‟s sake.   He acknowledged he had serious problems to sort out with his partner.   On the night there was no suggestion in fact that he was protesting at being taken back to the house. He was not restrained by handcuffs or by any other manner.

[28]     As to (b), I am satisfied that the restraint such as it was, was as a result of a request in good faith by Constable Ahotalafolau that he simply needed to talk to the appellant about the incident in the normal way and that it was practical to do so outside the house while Constable Paviour was inside talking to the appellant‟s partner.

[29]     As to (c), there is no doubt as to the quality of the evidential breath test.

[30]     As to (d), Mr Mulgan argued that this was  not a serious charge of offending. He cited Muggeridge v New Zealand Police[4] to the effect that although drink driving is a significant community concern, it is at a lesser end of the spectrum of offending. However, he had to acknowledge that a third or more offence is serious.

[4] Muggeridge v New Zealand Police HC Tauranga CRI 2008-463-57, 2 December 2008.

[31]     As to (e), he argued that the police did have a clear option to take the appellant to the North Shore Police Station straight away either leaving Constable Paviour to investigate the domestic incident complaint or to come back and complete that investigation after removing the appellant to the police station for the evidential breath test.

[32]     It was agreed that criteria (f), (g) and (h) did not apply on these facts.

[33]     In  my  view,  the  exclusion  of  this  evidence  in  this  case  would  be disproportionate to a relatively low degree of impropriety and so would not be giving appropriate weight to the impropriety.  To exclude this evidence would be essentially to  take  advantage  of  only  a  technical  loss  of  liberty  and  would,  in  my  view,

undermine an effective and credible system of justice.

[34]     Accordingly, the appeal from Judge McNaughton‟s judgment is dismissed for slightly different reasons.