Police v M HC Nelson Cri-2009-442-11

[2009] NZHC 2025

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2009-442-000011

NEW ZEALAND POLICE

Appellant

v

M

Respondent

Hearing:         6 October 2009

Counsel:         C P Stevenson for appellant

S E England for respondent

Judgment:      30 October 2009

RESERVED JUDGMENT OF DOBSON J

[1]      The Police appeal under s 107(3) of the Summary Proceedings Act 1957 by way of case  stated  from  a  determination  of  the  District  Court  at  Nelson.    The challenge relates to a decision to dismiss a charge of driving with excess breath alcohol.  The question of law for determination by the Court is:

Was [the Judge’s] decision that [a Police Constable] did not have an implied licence to enter the respondent’s property erroneous in law?

[2]      Judge McKegg applied the decision of Fogarty J in the recent and factually similar decision in O’Connor v Police HC INV CRI-2008-425-000012 10 October

2008.  The present case stated is in essence an argument that O’Connor is wrong on

NEW ZEALAND POLICE V  M HC NEL CRI-2009-442-000011  30 October 2009

the frequently considered issue of the nature of a Police officer’s implied licence to go on to private property.

Factual background and District Court decision

[3]      On 15 May 2008, the respondent paid for goods at a drive-through window at a service station in Nelson.   The staff member serving the respondent noted her faculties seemed impaired and smelt alcohol on her breath.  He called the Police after she drove away, providing a description of her and the registration details of the vehicle.

[4]      Shortly after the report to the Police, and as a result of information relayed to him by the Police Communications Centre, Police Constable Currie attended the residence to which the car that the respondent was reported as driving was registered. He was able to identify from the roadway that the car that was parked there had the requisite registration number.  It transpired that the respondent was not the owner of the car, and the owner was not present at the address.

[5]      Constable Currie walked down the driveway of the property.  He knocked on a side door at the address and spoke to the respondent who, after initial denials, admitted that she had recently been driving the vehicle parked in the drive.   He administered a passive breath test on the doorstep, which the respondent failed.  The respondent then complied with Constable Currie’s request that she accompany him to the Police Station.  A subsequent blood-alcohol test found that the respondent had

141 milligrams of alcohol per 100 millilitres of blood, 61 milligrams in excess of the limit.

[6]      The respondent was charged with driving with excess blood alcohol, contrary to s 56 of the Land Transport Act 1998.  Having pleaded not guilty, the respondent was convicted after a hearing on 5 February 2009.  However, after being appraised of the O’Connor decision, Judge McKegg ordered a re-hearing.  After re-argument (on the basis of the evidence at the original hearing), he adopted the approach in O’Connor in the following terms:

[6]       In the result His Honour was of the opinion that 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 reflects the reasoning in [19] of O’Connor.)

[7]      The absence of an implied licence was held to prevent the admission of the blood-alcohol test as evidence in terms of s 30(4) of the Evidence Act 2006, and thus prevented any possibility of conviction.

[8]      In O’Connor, Fogarty J cited the decision of Howden v Ministry of Transport [1987] 2 NZLR 747 (CA), treating it as having two conflicting rationes ([6]). Fogarty J preferred the interpretation of that decision that he discerned from the decision of Winkelmann J in King  v  Police  HC  AK  CRI-2004-404-211  30

September 2004.   That was to the effect that the scope of an implied licence is determined from the perspective of the occupier, rather than the Police officer.  An occupier would never consider it reasonable for a Police officer to enter the property to check whether he had been drinking where that would lead to the prospect of a charge under the Land Transport Act.  Accordingly, the Police officer in O’Connor could not have had an implied licence; it was deemed to be revoked by the occupier.

The competing submissions

[9]      Counsel  for  the  appellant  argued  that  this  interpretation  of  Howden  is artificial, and instead the scope of an implied licence should be determined with reference to the public interest rather than the perspective of either of the officer or occupier, citing as authority R v Bradley (1997) 15 CRNZ 363 (CA).

[10]     Moreover, counsel argued that Fogarty J should not have relied upon the decision of Winkelmann J in King, as that case involved the implied licence of a Police officer to enter a residence, rather than the lesser intrusion of going onto a property to talk to the occupier at the doorstep.

[11]     Lastly, counsel argued that Fogarty J should not have treated s 119 of the Land Transport Act as supporting his interpretation of Howden.  Section 119 does not codify Police powers of entry on to property and should not be seen as replacing the common law concept of implied licence.

[12]     For these three key reasons, the appellant argued that in circumstances such as this case, the Police have an implied licence to enter a suspect’s property to communicate with that suspect and carry out their enquiries.

[13]     The respondent submitted that Constable Currie, in entering the property, checking the car’s registration, going to the back door, and threatening to detain the respondent, exceeded his implied licence.  Further, that the constable was not aware of the identity of the driver when he entered onto the property, and in that sense any questioning of the respondent was random.  It was also submitted that the approach to implied licences in O’Connor was correct.

Discussion

[14]     The scope of an implied licence for Police officers to go onto private property is a matter of some general importance.   It requires a balancing between the recognition of citizens’ rights to privacy, and the public interest in effective enforcement of the criminal law.  That balance is not frozen and tends to move with society’s expectations of effective enforcement of the law.

[15]     At the time of Howden, the relevant law did not include any entitlement for an enforcement officer randomly to stop and check drivers as to whether they had been drinking.   Section 58A of the Transport Act 1962 required an enforcement officer first to have “good cause to suspect” that a driver had consumed “drink”.  It was  only in  1993  that  what  is  effectively s 68  of  the  Land  Transport  Act  was introduced, empowering an enforcement officer to require a driver to undergo a breath screening test forthwith, and without the officer needing to have a reason for doing so.

[16]     In Howden, a Police officer had followed the defendant for about a kilometre. The car was driven normally and there was nothing in the driving to cause the officer to suspect any offence.  The driver was not aware that he was being followed and before the officer made any attempt to stop him, the defendant had driven into the driveway of his parents’ home where he lived.  He parked the vehicle and got out, at which point the officer got out of his own car, approached the defendant and asked him for his licence.  The defendant explained that his licence was in the house, and the officer asked him if would take a seat in the patrol car where the officer would obtain particulars of his identity and check by radio with the Ministry as to the details of his licence.  On speaking with the defendant, the officer noted his breath smelt of alcohol, his face was somewhat flushed and his eyes were glazed.  In the patrol car, the officer required the defendant to undergo a breath screening test and when that was positive he required him to accompany him to a Police Station where a positive evidential breath test was obtained.

[17]     Cooke P observed that an implied right for an officer to enter or remain on private property could not be precisely defined with any confidence, and that there was no judicial consensus on the point.  A random check, in the sense of there being no cause to suspect any offence at the time of going onto the property, was found to have been the officer’s actuating purpose.

[18]     Cooke  P  cited  the  decision  of  a  divisional  Court  of  the  Queen’s  Bench Division in Robson v Hallett [1967] 2 QB 939 as “an influential modern case in which a doctrine of implied licence was either invented or articulated”. That decision was founded on the premise that the occupier of any dwellinghouse was deemed to give an implied licence to any member of the public (including Police officers) coming on his or her lawful business to come through the gates, up the steps, and knock on the door of the house. It was recognised that such an implied licence could be revoked, but that a reasonable time to leave the premises must be allowed.

[19]     As to the reasonable limitations on this implied licence, the Court of Appeal treated entry onto private property for random checking of a driver whose driving or

other prior behaviour had given no cause for suspicion as being a “very considerable intrusion into privacy”.

[20]     Cooke P continued:

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.  Whether or not that suspicion is correct, it certainly could not be maintained that the answer Yes is required so clearly as to justify the Courts in asserting that such an implied licence exists. (751)

[21]     That observation does not confine the scope of an implied licence by any subjective  impression  of  the  particular  occupier  confronted  by  a  Police  officer. Rather, it involves an objective analysis about the extent of circumstances in which it would be reasonable to impute that an occupier would acknowledge such an implied licence would apply.   On the facts in Howden, the Court of Appeal negatived the expectation that an implied licence would so extend because the circumstances of the officer’s entry onto the property constituted such a “very considerable intrusion into privacy”, where there was no reasonable pretext affording a justification for the officer to seek to communicate with the occupier.

[22]     The scope of the implied licence was considered further in Bradley.   That decision dealt primarily with the lawfulness of a search conducted after entry into a dwellinghouse, under s 18(2) of the Misuse of Drugs Act 1975.  However, the mode of approach to the dwellinghouse by Police officers in the course of attempting to locate and apprehend three suspects also brought into question the application of the implied licence to enter the property.

[23]     In  Bradley,  the  approach  to  the  dwellinghouse  was  planned  on  the assumption that, if the suspects were at the address, but were afforded any warning of the officers’ arrival there, they would seek to escape.   A sergeant and a dog handler positioned themselves so as to cover the front door of the house, and two other officers then approached open ranchslider doors off an elevated balcony.  The officers had to clamber up onto the balcony, to present themselves at the open doors. The Court found that an occupant then gave those officers permission to enter the premises, which they did.

[24]     On the basis of Robson and Howden, Thomas J for the Court of Appeal described the scope of an implied licence as follows:

Such an implied invitation, however, 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 altogether.  Where the Police act in accordance with this implied permission their action is not regarded as an intrusion upon the privacy of the occupier.  The implied licence effectively waives the privacy interest which the occupier might otherwise have in his or her home.

[25]     The judgment continued by referring to endorsement in a decision of the Supreme Court of Canada of the notion that the purpose of the implied licence is “to enable the Police officer to reach a point in relation to the house where he can conveniently and in a normal manner communicate with the occupant”.  Thomas J observed that the scope of the licence cannot be defined without regard to the public interest in the effective investigation of offences and the punishment of those responsible.  Further, that the nature of the legitimate business will also be relevant:

…the scope of the implied permission for a police officer to pursue his or her  legitimate  business  will  not  necessarily  be  the  same  as  the  implied licence for, say, a postman or stranger merely seeking directions.  The lawful business of each differs, and with that difference, the occupier’s expectation of privacy may also differ.  The scope of the authority to enter may vary so as to permit that which, having regard to the householder’s reasonable expectation of privacy, is reasonable in the circumstances.

[26]     Bradley also demonstrates that the scope of the licence is not dictated by how a reasonable occupier is deemed to respond to the circumstances of entry onto the property by a Police officer, but rather by a balancing that takes into account the nature of the public interest (presumably related to the relative seriousness of the offending that may have occurred) and the context in which the communication sought by the officer will occur.

[27]     A more recent High Court decision applied by Fogarty J in O’Connor is the decision in King.  In that case, the appellant had left the scene of an accident and was followed to his home address by a witness who identified the premises to the Police. Two officers knocked on the front door of the house but when no one answered, one of the constables went through a side gate to the rear of the house where he stood at an open ranchslider door and called out.  The appellant came to the door and after

the appellant was non-committal in responding to a question as to whether he had been involved in the accident, the constable asked the appellant for some identification.  The appellant turned away from the door and headed upstairs.  The constable followed the appellant inside and watched him retrieve a licence from a pile of clothing.   The appellant then went back downstairs with the constable following him.  When they were back in the kitchen of the premises, the constable requested the appellant to complete a breath screening test.   The appellant was uncooperative and subsequently was arrested for failing to accompany the constable. The appeal was pursued on the basis that the constable’s entry into the residence was unauthorised and illegal, so that the procedures following thereafter were invalid and did not provide any basis for the conviction.

[28]     Winkelmann J  described  the  extent  of  the  implied  licence  as  “closely circumscribed”, and extending no further than is required to permit communication with the occupant of the premises.  The licence can be negated by express reference or revoked by the occupier ([13]).  The judgment continued:

The implied licence does not extend to a licence to enter on to the premises.

[29]     Consistently with earlier decisions, I consider this observation to reflect a distinction between the licence to enter onto the property as a whole from the point where it joins public property on the one hand, and the structure (conventionally a dwellinghouse, but equally any building) referred to in the expression “the premises” on the other.  Without being diverted by the semantics I would, with respect, suggest that the restriction might more naturally be expressed as not extending to entry into, rather than onto, premises.   Entry onto a porch or a deck at the ground level that would be necessary, for example, to knock at the door of the premises could not logically be excluded from the implied licence to enter a private property, as entry to that point would be necessary to attempt communication with an occupier.

[30]     It appears not to have been contested in King that the constable was not going beyond the scope of the implied licence when he stood at the ranchslider and called out to the appellant.   Rather, the argument was that the constable was not given authority to enter into the house.   The appeal was resolved on the basis that the appellant impliedly consented to the constable’s presence inside the house.   There

was adequate opportunity for the appellant to resist the constable’s entry into the house, or up the stairs, or to the constable remaining in the house once they had both returned downstairs to the kitchen.  Consent to the constable’s entry was reasonably to be inferred.

[31]     Turning then to O’Connor, the circumstances were described by Fogarty J in the following terms:

[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.

[32]     The constable thought  at  the time that  she  was  entering  the  property in reliance  on  s 119  of  the  Land  Transport  Act,  the  “fresh  pursuit”  authorisation, separately considered below.  The District Court Judge had found that that provision could not be relied upon, and that finding was accepted on appeal.   However, the District Court Judge had gone on to find that the circumstances of entry onto the property were within the implied licence, and that there was no evidence that the defendant or any other occupier had revoked it.

[33]     Fogarty J’s analysis of the authorities, including Howden and King, led him to discern two possible approaches to the analysis of whether an implied licence extended to cover the circumstances and extent of entry in any particular case.  The first was from the perspective of the occupier, and whether the grounds for entry were those for which an occupier of a residential dwelling gives implied licence to enter.   The second was that an implied licence depends upon the Police officer having a reasonable ground for entering onto private property.   The material difference is that the scope of any implied licence under the first test would be from

the perspective of the notional, reasonable occupier, and the second from the perspective of the notional, reasonable Police officer.  Fogarty J treated the analyses in Howden and King as preferring the first approach, namely whether the grounds for entry were those for which an occupier would give an implied licence to enter.  His Honour then found:

…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. [19]

[34]   With the greatest of respect, the breadth of application of that general proposition  illustrates  the  inappropriateness  of  testing  the  scope  of  the  implied licence by reference to standards notionally attributed to occupiers of residential properties.   The parameters of the implied licence are not usefully defined in any given factual situation by speculating on what ought reasonably to be expected of some notional occupier in the particular situation.  Nor are the parameters defined by analysis of the reasonableness of the Police officer’s expectation of an entitlement to enter depending on the nature and extent of information that the officer relies on in wishing to communicate with the occupier.  To the extent that the former approach can be discerned from the reasoning in Howden, it is to be confined to the context of a random questioning without any grounds to suspect any offence may have been committed, in an era when a reasonable ground for such suspicion was a necessary pre-condition to requiring anyone to submit to a breath test, rather than just non- drivers as provided for in the current legislation.

[35]     The notion of an implied licence is an invention of the common law to reflect the balance between respect for an individual’s right to privacy, and the public interest in enforcement of the criminal law.  Whilst the objective reconstruction of the expectations of the reasonable, objective participants in the position of both the occupier and the officer may be a useful tool in testing the boundaries of the licence when it is to be imputed in any particular situation, neither perspective necessarily dictates the outcome in any case.

[36]     The existence of the implied licence is not contentious.  It permits a Police officer to enter private property so far as is necessary to engage an occupier, in the course of any lawful enquiry.  Generally, that would involve going to the threshold

of the premises on the property.  Going further, typically into the premises, depends upon either consent being given by the occupier for the officer to do so, or the dialogue  from  the  threshold  reaching  the  point  where  the  officer  can  justify exercising coercive powers.   Realistically, consent is often treated as having been granted impliedly.

[37]     So, too, can withdrawal, either of the implied licence or any consent for an officer to proceed further than the threshold, similarly be conveyed by words, or implied from conduct.  A locked gate, or a sign at the public boundary of a property stating that  all  uninvited  guests  are  to  stay  away,  are  examples  of  pre-emptive withdrawal of the implied licence.

[38]     Applying these elements of the implied licence to the circumstances of the present case, the constable was directed to the residential address because it was the address to which the relevant vehicle was registered.  The service station attendant had  observed  that  vehicle  being  driven  very  shortly  before  by  a  woman  who appeared to be intoxicated.  Before entering the property, the constable observed that the relevant vehicle was parked in the property and the constable’s evidence was that in those circumstances he believed “…I had an implied licence to make an enquiry about a possible offence”.  Although there was some difference about how readily, and in what terms, Ms M   accepted she had been recently driving the relevant vehicle, there was an admission that recently she had been driving and that was followed by the constable requesting her to undergo a breath screening test without delay.

[39]     I can see nothing in those activities that goes beyond the conventional scope of the implied licence.  It was submitted for Ms M   that, consistently with the approach in O’Connor, the randomness of the circumstances bringing the constable onto the property made it a situation in which the occupier would be assumed either not to extend the implied licence in the first place, or would be deemed to revoke it once the occupier was appraised of the fact that the reason for calling was that the owner of the vehicle had registered it to that address, but that the owner was neither present, nor had recently been driving the vehicle.   It was suggested that, as in Howden,  because  the  officer  did  not  have  a  relevant  reason  for  engaging  the

particular occupier before entering on the property, that disconnection rendered this an intrusion on the occupier’s privacy that fell outside the scope of the licence impliedly attributed to a reasonable occupier in such circumstances.

[40]     However,  I consider the  relevant  connection  between  the  conduct  of  the person driving the identified vehicle and the property entered by the constable as the registered address for that vehicle rendered the context of the constable’s enquiry an entirely relevant one, and not relegated to the “random” conduct so disapproved of in Howden.  The reality was that the vehicle had very recently been seen being driven and it had returned to the address to which it was registered so that a powerful inference arises that the driver would be at the address.   Enquiring whether the occupant who answered the door had recently been driving the vehicle parked just outside it must come within the form of lawful communication for a Police officer directed to investigate information in relation to potential drink driving.

[41]     Accordingly, I have the misfortune to differ from the approach determined by Fogarty J in O’Connor.  I do so only after a careful reconsideration of the decisions most directly bearing upon the scope of this implied licence, and the terms in which the cases he identified have suggested its scope should be measured.  It may be that the view urged on Fogarty J of the reasoning in King confused the non-contentious limit preventing any such licence extending to entry into premises, with a suggested constraint on entry onto a property in the first place, which is not a part of the analysis in that case.   Once that distinction is appreciated, the approach  I have contended for is, with respect, consistent with that in King.

[42]    One consequence of testing the imputed granting of a licence from the perspective of the occupier is that it tends to draw the analysis to the potential adverse  outcome  from  the  occupier’s  perspective.    As  the  finding  in  [19]  of O’Connor (quoted in [33] above) illustrates, this assumes the reasonableness of refusing entry where granting the licence may possibly lead to adverse consequences for the occupier.  However, the licence is implied to enable communication, which may or may not progress to a point having adverse consequences for the occupier.  In the present case, the context of the initial inquiry was that the Police had received a report that the vehicle parked in the driveway had recently been driven by someone

who  appeared  to  be  intoxicated,  and  whether  that  person  was  currently  at  the address.  If the answer had been ‘no’, then the communication could not have gone much further.  The conversation did go further, only because the answer was ‘yes’. The context to be weighed in the balance is the starting point for the communication, not where it might potentially end.

[43]     Fogarty J also upheld a submission to the effect that the terms of s 119 of the Land Transport Act (which authorises entry onto private property in narrow, “fresh pursuit”  circumstances),  when  viewed  in  the  light  of  the  provisions  of  the New Zealand Bill of Rights Act 1990, should not allow the Court to use common law principles on implied licence to circumvent the limits expressed in that section. Again, with great respect, I cannot agree.   Section 119 addresses the one specific circumstance of “fresh pursuit”.   When that situation arises, the section authorises entry into any premises, by force if necessary, and for enforcement officers to do that without warrant, for the purposes of determining whether to require breath screening tests or evidential breath tests to be undertaken.

[44]     That is an extremely intrusive power and Parliament has seen fit to justify it only in the limited circumstance of a fresh pursuit.  It cannot be seen as any attempt to constrain the circumstances in which the less intrusive common law implied licence arises when an officer wishes to go onto property for the purpose of communicating with an occupier, but accepts that there is no licence to enter the premises.    I  respectfully  adopt  the  reasoning  of  Wylie J  in  Burt  v  Minister  of Transport HC AK AP39/91 10 June 1991 on the point:

In my opinion it is abundantly clear that s 66A [s 119’s predecessor] 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. (40)

[45]     It follows that I do not treat s 119 as affecting the scope of common law powers in the circumstances where that section does not apply, ie where enquiries are being pursued other than in the circumstances of a fresh pursuit.

Outcome of the case stated

[46]     I accordingly determine the question of law posed in the case stated in the affirmative, namely that the Judge’s decision that the Police Constable did not have an implied licence to enter the respondent’s property was erroneous in law.

[47]     Mr Stevenson made it very clear that the case stated was pursued more out of the on-going impediment which the decision in O’Connor was seen as presenting in the variety of circumstances in which Police officers wish to pursue enquiries on private property, than with concerns at the individual outcome in the prosecution of Ms M  .  On her original conviction on 5 February 2009, she was disqualified from driving for six months from that date.  A little more than two months of that disqualification would have been served before she was successful in having the conviction reversed at the re-hearing on 8 April 2009.  She has been put to further trouble and expense in responding to the case stated that has been pursued more for its precedent value than out of a concern on the part of the Police to reinstate her conviction.

[48]     The powers of the Court on determination of the case stated are specified in s 112 of the Summary Proceedings Act.   They extend to reversing, confirming or amending the determination in respect of which the case has been stated, remitting the matter to the District Court, amending the conviction and orders under the power in s 201 of the same Act, or making any other order that the Court considers fit.  In this case, the appropriate outcome is to reinstate the original conviction as entered by Judge McKegg on 5 February 2009, leaving in place the fine of $800 and the order to pay Court costs of $130, but not reinstating the period of disqualification.   I so order.

[49]     There will be no order as to costs.

Solicitors:

Pitt & Moore, Nelson for appellant

Hunter Ralfe, Nelson for respondent

Dobson J