The Queen v Pedersen
[2004] NZCA 272
•12 November 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA209/04
THE QUEEN
v
STEPHANIE ILEEN LENORE PEDERSEN
Hearing:1 September 2004
Coram:Anderson P
John Hansen J
Randerson JAppearances: O E Harold for Appellant
S J Mount for Crown
Judgment:12 November 2004
JUDGMENT OF THE COURT DELIVERED BY JOHN HANSEN J
[1] Pursuant to leave granted by Keane J on 14 May 2004, the appellant appeals against her convictions for refusing to accompany an enforcement officer in breach of s 59(1)(b) and s 59(2) of the Land Transport Act 1998, and for refusing an officer's request for a blood specimen, contrary to s 60(1)(a) and s 60(3) of the Land Transport Act 1998. The charges arose when the appellant refused to undertake a passive breath test in the driveway of a private property, contiguous to a road, a short distance from a police check point.
[2] The questions of law for determination by this Court are:
(a)Was Keane J correct in finding the appellant was the driver of a motor vehicle on the road in the circumstances of this case.
(b)Was he correct in finding that the officer was entitled to exercise the powers he did in the driveway, in the circumstances of this case.
Background facts
[3] In Henderson on 12 August 2001 the police were operating a compulsory breath testing checkpoint. Two of the officers involved were Constables Rumble and Stilton. Both were in full police uniforms.
[4] At 12.44 am they noticed a vehicle had pulled into a driveway some 500 metres short of the check point. Constables Rumble and Stilton got into their police vehicle and drove to the address to talk to the driver. As they approached the driveway, the other vehicle backed out and parked on the grass berm at the front of the address. The lights of the vehicle were not on when the vehicle emerged from the driveway.
[5] The police vehicle pulled into the driveway, and Constable Stilton, seeing the driver get out of the vehicle and walk towards the house down the driveway, called to her, and she walked back up the drive.
[6] Constable Stilton attempted to administer a passive breath test, but the appellant refused to undertake it. At 12.45 am the constable informed the appellant that he required her to undergo a breath screening test without delay. She refused, and started to walk down the drive towards the house. At 12.46 am the constable informed her that he required her to accompany him to the mobile breath testing unit, or some other place, for the purpose of undergoing either an evidential breath test, blood test, or both. The appellant again refused, stating the constable had not seen her driving. He then warned her that if she refused to accompany him she would be arrested. She refused, was arrested and appropriately advised of her rights. At 12.51am the constable required the appellant to undergo the evidential breath test, but she refused to complete it. At 1.04 am she was warned again and required to undertake a blood test. She again refused and was taken to the Henderson Police Station to be formally charged.
The District Court decision
[7] The District Court Judge found that it was inescapable that the appellant was identified as the person who drove the vehicle onto the grass berm, as Constable Stilton saw her walk from the vehicle up the driveway. He found that the grass berm was part of the road in terms of s 2 of the Act. That is not a matter at issue in this appeal.
[8] The District Court Judge found that because the appellant had been driving on the grass the constables were entitled to require the appellant to undergo a breath screening test. He said it was not necessary for them to have good cause to suspect that she had recently committed an offence against the Act. He accordingly found she came within s 68(1)(a) of the Act which provides:
68 Who must undergo breath screening test
(1)An enforcement officer may require any of the following persons to undergo a breath screening test without delay:
(a)A driver of, or a person attempting to drive, a motor vehicle on a road:
…
[9] The Judge also found Constable Stilton entered the driveway where the appellant had gone, and that his ability to do so was governed by s 119 of the Act, and the common law. He distinguished the decision of Howden v Ministry of Transport [1987] 2 NZLR 747 because it was not the manner of driving that caused the constable to go up the driveway, rather the fact that the appellant had driven on the road, which in terms of s 68(1)(a) allowed the enforcement officer to require a breath screening test. He considered his view was supported by Culver v Police HC NAP AP2/2001 14 March 2001 and Kerehoma v Police HC NAP AP86/95 6 March 1996 where at 10 the Judge said:
I think that the District Judge was correct in his conclusion that taking into account time, place, circumstances and purpose for which the constable entered Mr Kerehoma's property, the purpose of entry was urgent.
[10] The Judge found that it was a matter of urgency for the Police to speak to the appellant because she turned off the road just prior to a checkpoint. For that reason he concluded that because the constable was in full uniform and identified as an enforcement officer, and as his implied licence to be on the driveway had not been revoked, in terms of the common law he was entitled to be there, and could pursue the breath testing procedure.
The High Court decision
[11] Keane J considered the essential issue on the appeal was whether or not the appellant was “a driver”. Like the District Court Judge he had no difficulty in relation to the appellant's identity. He said both officers saw her car move from the road into the driveway, and back out onto the roadside berm. He considered both the road itself and the berm, which comprised part of it, were “road” as it is understood in its natural meaning. He further found that even the driveway to which the public can have access by implied licence could be a road.
[12] He saw no difficulty in the officer exercising his powers, despite the early hour of the morning. He said if the officer was authorised to request a breath test without cause soon after he had seen the appellant driving, and just after she left the car, the fact it was carried out in the driveway to which she had retreated was unlikely to be an impediment. He said the real issue was whether or not he had that authority to request a breath test without cause.
[13] Having reviewed the legislative history of s 68 and relevant authorities, the Judge considered this case was on the borderline as to whether or not the appellant was the driver. He said that on a literal reading of s 68(1)(a) she had ceased to be the driver because she had stopped the vehicle and left it. However, he concluded in the circumstances where she had only just stopped driving and was within a short distance of the car it would frustrate the purpose for which Parliament conferred the right to test without cause if it were held she was not the driver. He said this would mean that a motorist could avoid random breath testing by simply taking a few steps from the car.
[14] The Judge did not appear to address the second question of law before us. He noted in the leave application that the appellant did not challenge his brief statement that the officers who apprehended the appellant were entitled to require her to undergo breath testing in the driveway. He said the challenge from the appellant was whether or not she was driving. However, at the Judge's suggestion the second question of law was framed for consideration by this Court.
Submissions
[15] On behalf of the appellant, Mr Harold submitted that for the purposes of s 68(1)(a) the appellant was not “a driver”. After referring to Wynn Williams v Police CA400/03 15 June 2004 and Pinner v Everett [1969] 3 All ER 257 HL, Mr Harold submitted that the appellant had so separated herself by her conduct from the act of driving that she could no longer be considered to be the driver of the motor vehicle. He submitted that by parking on the grass berm and walking a few metres away she had sufficiently distanced herself from the act of driving so that she could no longer be considered “a driver”.
[16] Mr Harold next submitted that the driveway could not be considered a road, within the definition of s 2 of the Act, so the appellant could not be said to be the driver, or to be driving, whilst she was walking down the driveway.
[17] Finally, in relation to the second issue, Mr Harold submitted that there was no implied licence in this case for the police to enter upon private property and require the appellant to undergo the procedures set down in the Act. He analysed a number of cases, and submitted that in all of the implied licence cases there were urgent, or suspicious circumstances. He also pointed to the fact that in all the cases he analysed only this one involved a property other than the residence of the suspect.
[18] Mr Harold submitted the evidence was therefore unlawfully obtained and it should be excluded.
[19] The Crown submitted that while English cases such as Pinner v Everett are relevant, the difference in wording between the New Zealand and English statute remains material. The English statute applies only to someone who is “driving a car, while the New Zealand statute applies to “the driver” of the car. The Crown submitted that as a consequence the New Zealand legislation was less restrictive.
[20] It was submitted that in terms of Wynn Williams v Police s 68(1)(a) is concerned with the status of the person at the time when the officer requires the breath screening test, and on the facts of that case a twenty to thirty-five minute gap was too long for the appellant to be considered “the driver”.
[21] The Crown submitted that the phrase “the driver” is not limited in the way suggested by the appellant, and in a case such as this, where the appellant had obviously been the driver of the vehicle a few seconds before being spoken to by the constable, it would be a nonsense to suggest she was not “the driver”. Furthermore, it would totally defeat statutory policy as it would allow anybody to stop a car and take a few steps away to claim immunity from random breath testing. It would mean motorists could readily avoid the checkpoints by the police.
[22] Furthermore, the Crown submitted that whether or not the driveway was a “road” is irrelevant. The statutory context that uses the term “on the road” does not mean that the test can only be administered on the road. The essential element is that the person is still “a driver” at the time of the breath test, not that they are still on the road. The phrase indicates the type of driver, not the location at which the test must take place (e.g. a driver of a vehicle on a private farm is not covered, but the driver of a vehicle on a road is).
[23] The Crown submitted that there was a proximate connection between the appellant's driving and the request for a passive breath test. Firstly, it was made almost immediately after she was seen driving on the road. Secondly, the request was made within metres of the car. Thirdly, the appellant had not commenced any new or legitimate activity after leaving the car. Her only action was an attempt to avoid the breath test. There is no suggestion in the evidence that she had any lawful business at the address, and she made no such claim to the Police. Finally, her driving behaviour raised an inference that she was attempting to avoid detection.
[24] In relation to the second question raised, the Crown accepted that every entry to private land is a trespass unless justified. Secondly, a common justification for entry is the implied licence granted to everyone to enter a property on lawful business. Thirdly, the scope of the implied licence in every case depends on what is reasonable in all the circumstances.
[25] In this case the Crown submitted the constable was lawfully on the driveway, pursuant to an implied licence, because:
(a)His purpose was a legitimate and reasonable one.
(b)The constable went no further than a few metres down the driveway, and did not interfere unreasonably, if at all, with the occupier's rights of privacy.
(c)The constable's entry was limited to the driveway, an area commonly used by visitors and lacking any elevated privacy interests.
(d)There was a degree of urgency in the situation, as he was seeking to speak to a driver he suspected of avoiding a breath testing checkpoint.
(e)The duration of the entry was brief.
(f)He was not asked to leave by the occupier, or anyone else.
(g)While the appellant's actions fell short of giving the constable “good cause to suspect an offence” the actions created a clear inference she was attempting to avoid the compulsory checkpoint.
(h)There was no occupier present and, accordingly, no one to seek permission from to enter. There was also no obvious alternative means of entry for the police officers.
[26] Accordingly, the Crown submitted the entry was reasonable and pursuant to an implied licence. In the event that the entry was unlawful, Mr Woolford submitted the evidence should still be admitted on standard fairness grounds.
[27] The Crown also noted that it was likely the appellant herself was a trespasser because there is no evidence of legitimate purpose to be at the premises. Her apparent purpose was to avoid detection, and was not to communicate with the occupier, or carry out any other lawful business.
Discussion
First issue
[28] We have no hesitation in agreeing with both the District Court and High Court Judges that the appellant was the driver of the vehicle in terms of s 68(1)(a) at the time she was required to undertake the breath testing procedure.
[29] Section 68(1)(a) was recently considered by this Court in Wynn Williams. This Court held that paragraph (a) is concerned with whether a person is a driver of a motor vehicle on the road (or a person attempting to drive) at the time the officer requires the breath screening test.
[30] This Court accepted that the United Kingdom authorities will have some relevance, but considered that the word “driver” has a less restrictive interpretation than “driving”. As an example, under the New Zealand legislation the appellant in Pinner v Everett would have been held to be the driver. At [28], Glazebrook J, in delivering the decision of this Court stated:
[28] We accept Mr Pike's submission that the question of whether someone is a driver is a question of status. In ordinary English parlance a person may say that they are a driver of a car even if it is sitting in the driveway of their home and they have not driven it for some time. We consider that the addition of the words "on a road" in paragraph (a), however, means that there must be a proximate connection to actual driving on the road for a person to be the driver. This means that there must be no such intervention of time, circumstance and conduct that the person must be seen as separated from the road and the act of driving.
[31] In this case there is no doubt that the appellant was the person who drove the vehicle into the driveway, backed out and parked on the roadside berm. When first spoken to by the police she had only gone a few steps from her car. She was driving a few seconds before. An inference is available that her actions were to avoid the police checkpoint. If the appellant were not held to be the driver, in terms of s 68(1)(a), it would be an affront to language, commonsense, and the clear purpose of the legislation. It would mean, as the Crown submitted, that any driver could avoid random testing by simply stopping and moving a few steps away from their vehicle. This would be completely contrary to the stated intention of Parliament.
[32] There is “no such intervention of time, circumstance and conduct” to separate the appellant from the driving.
[33] We consider the second submission of Mr Harold under the first question of law is misconceived. There is nothing in the section that requires that the approach to the driver, and the carrying out of the requisite procedure, must take place on a road. The section allows the driver of a motor vehicle on a road to be tested, but it would be importing something additional into the section to say the test itself must be carried out on the road. There are practical policy reasons for such an approach. It could well be that there would be inherent danger in carrying out such an exercise on the road, or the side of the road, and an officer must be entitled to carry out the test at a contiguous place of his choosing (subject to any issue of trespassing on private property).
[34] Accordingly, we answer the first question “yes” and find the appellant was “a driver” for the purposes of s 68(1)(a).
The second issue
[35] The second question posed is more problematic. There is nothing to suggest that the appellant had any legitimate purpose to be on the property in question or that she was the owner, occupier, or invitee of the occupier. In fact, all the circumstances suggest she was using the driveway of a stranger in order to evade Police investigation. It follows that she was a trespasser. Equally, the constable, when he entered upon the property, was also a trespasser. Most of the cases dealing with the question of implied licence for the police to be on private property relate to circumstances involving the defendant's property or residence. None relate to the circumstances where both the defendant and the police are trespassing on a third party's property.
[36] The power to request a breath screening test and the consequential powers cannot be taken as implied authority to commit what would otherwise be a trespass to land. We do not consider that s 119 of the Act assists. It is not a case where the prosecution relied on good cause to suspect, or fresh pursuit.
[37] It may well be that in circumstances such as this the doctrine of implied licence should be extended, although we do not think it necessary to determine that question in the context of this case. There is, however, possible support for such a view in Transport Ministry v Payn [1977] 2 NZLR 50. Richmond P at 55 said:
Having regard to the public importance of this particular legislation it is unthinkable that Parliament would have intended that suspected drivers could elude the machinery set up by the Act merely by retreating on to private property, whether their own or belonging to somebody else.
We note that the President was there referring to a situation where there was good cause to suspect.
[38] At 65 of the same decision Woodhouse J said:
The chance that a motorist pursued by a constable might attempt to seek a haven by dodging on to the nearest private land might seem relevant to the specialised argument that a breath test would not be a lawful part of the screening process once the motorist had ceased driving on the highway: but it has no relevance, in my opinion, to the trespass issue unless the driver should get onto his own land and then demand that the officer keep off it, or onto other land where he was able to exercise that sort of authority in the name of the true occupier. In my opinion the licence to enter onto property for reasonable and lawful purposes is not so restricted that it must be presumed against a constable or traffic officer that he would have no right to move from the street across the boundary in order to make an inquiry of a driver who had just done the same thing; or that he could not then require from the driver a breath test. Certainly no adverse reaction by the driver acting without authority from the occupier could make the officer a trespasser. And if there were a few cases where the driver was (or could speak for) the occupier and actually cancelled the licence to enter or remain I think there would not be many which could not still be given very effective attention from the roadside.
[39] The passage envisages a situation where drivers seek haven in private property, which does not actually belong to them. Woodhouse J took the view that, absent the authority from the actual owner/occupier, the driver cannot make the officer a trespasser. Inferentially, of course, the driver could not complain about the alcohol testing procedures on the grounds that the Police, as well as the driver, were trespassing on land adjacent to the road for reasons associated, one way and another, with those procedures.
[40] In Edwards v Police [1994] 2 NZLR 164, Tipping J said at 169–170:
I consider it reasonable to say that most, if not all, New Zealand householders would agree that a constable who, on reasonable grounds, suspects that a person has entered their property following the commission of an imprisonable offence, has their implied authority to pursue that person onto their premises in order to investigate. All reasonable law abiding citizens should have no difficulty with that proposition, whatever the time of day or night the entry may be: as to that see Bisson J in Howden at pp 754‑755. As there was no entry by the constable into the house, he having simply entered the grounds, and as in entering no force was used, I do not have to consider whether and in what circumstances an implied licence might extend to entry into buildings or to the use of force.
However, that was also a case based on good cause to suspect.
[41] There may be force in that dictum but the question does not need to be resolved in this case and for present purposes we are content to assume the police, like the appellant, were trespassers with no implied licence to be present.
[42] It is clear that the appellant cannot rely on the rights of the owner or occupier of the property. In R v Bruhns (1994) 11 CRNZ 656 (CA), Casey J in delivering the judgment of this Court said at 657:
The bulk of the submission to this Court advanced the proposition that there were breaches of the Bill of Rights in respect of the Police treatment and interview of the proposed witness, and for this reason his evidence against the accused should be rejected. This submission entirely misses the point of those cases in which evidence has been disallowed because of a failure to accord the prescribed rights to the accused. The exclusion of evidence has been developed by the Court as an appropriate remedy to compensate the person to whom the duty was owed for that breach. The matters raised in respect of the witness do not constitute a fail to observe rights to which the accused was entitled under the Act. Whatever may be the position with the former (and he makes no claim there was any breach of his rights) they are not relevant to the accused's situation. The Act is trivialised by this attempt to claim for himself a remedy which belongs to another.
[43] In R v Wilson [1994] 3 NZLR 257, Cooke P, in delivering the decision of the Court, noted that a similar approach had been adopted in some decisions under the Canadian Charter Of Rights And Freedoms. At 258 he said:
It seems to us that the circumstance that the Charter contains in s 24 an express remedies clause makes no difference to the applicability of the Canadian approach in principle. Mr Harrison cited two cases in the British Columbia Supreme Court, R v Luksicek [1993] BCJ No 2585 and R v Spinelli [1993] BCJ No 2128. The judgments in those cases said substantially what has been said by this Court in Bruhns: they afford the argument no assistance.
Subject to one dictum, the same applies to R v P (EK) (1989) 72 CR (3d) 182. There is in that case, a judgment of Oppal J in the British Columbia Supreme Court, the following dictum at p 194:
There might well be circumstances wherein physical evidence secured as a result of a breach of a third party's rights would offend the provisions of the Charter. However, there must be some nexus between the unlawful acts and the securing of such evidence. There is no such nexus in this case.
That dictum, if accepted, could have at least arguable relevance to the proposed evidence of the constable as to the handing over of the cannabis in this case and the subsequent analysis. We have found it difficult, however, to discern a tenable basis in principle for distinguishing between oral evidence obtained through a breach of a third party's rights under the Bill of Rights and real evidence obtained by the same breach. In our opinion the approach of the Court should be the same in both types of situation.
Mr Harrison has argued that the purpose of the Bill of Rights Act is to give rights to all, and to ensure so far as can be done that in their conduct of investigations the police act in accordance with those generally available rights. But we think that that is a somewhat loose way of describing the purpose or effect of the Bill of Rights. The rights affirmed therein are those of the persons to whom they are granted. It is not any part of the scheme of the Bill of Rights Act that a person whose rights have been in no way infringed should be able to capitalise on an infringement of someone else's rights.
[44] It follows from the principles elucidated in the authorities discussed in [37] and following that the appellant cannot rely on infringements of the rights of owners or occupiers.
[45] Where there have been no such infringements the Court concluded in Wilson:
There is no need or justification for taking the implications of the Bill of Rights so far, for, if there were anything in a particular case which persuaded the Court that to admit evidence against a particular defendant was unfair to the extent that it should be excluded, that jurisdiction is always available. In exercising that jurisdiction it could be material to consider whether a third party's rights under the Bill of Rights had been infringed. We say that as a precaution only, because in the present case there is nothing to persuade us that the evidence in question of any of the three proposed witnesses should be ruled out on the ground of unfairness.
[46] So assuming for present purposes the evidence was unlawfully obtained, although of course not in breach of the appellant’s personal rights, the question arises whether it should be ruled inadmissible on grounds of unfairness.
[47] In Payn Richmond P said at 53:
I think that his position would be analagous to that of an officer who acquires evidence in a criminal case while unlawfully trespassing. Such evidence is admissible subject to the court's discretion to exclude it if unfairly obtained.
[48] In Howden Cooke P made it clear that the exclusion was not automatic and at 752 said:
Some technical breaches of the law by officials may be not be serious enough to warrant the exclusion of their evidence under the jurisdiction to prevent unfairness. But, at any rate in the circumstances of this case, a misrepresentation of a traffic officer's rights on private property should not, in my opinion be treated as trivial error to be excused by the Court.
So I would bring the case to an end by ruling that the breath test evidence was obtained unfairly, although in good faith, by a wrong representation of the officer's powers on private property; with the result that the conviction and the consequential orders should be quashed and an acquittal entered instead.
[49] In R v Murphy (2003) 20 CRNZ 278, this Court re-emphasised at [11] that unlawfully obtained evidence is admissible and “plainly, something over and above the illegality must be shown to justify the exercise of the discretion to exclude”.
[50] The general approach to the fairness discretion was considered by this Court in R v Ahamat CA143/00 19 June 2000 where Gault J, in delivering the decision of the Court said at [11]:
The discretion to exclude evidence on fairness grounds involves fairness not just to the accused but also to the Crown. It is not to be called in aid simply because the circumstances approach, but fall outside, those engaged by the Bill of Rights Act. There must be unfairness in the manner in which the evidence is obtained (bearing in mind that even illegally obtained evidence is not automatically excluded) or unfairness likely to arise from the giving of the evidence at trial. In rare cases evidence might be excluded on this ground as a sanction against police misconduct – see R v Coombs [1985] 1 NZLR 318, R v Dally [1990] 2 NZLR 184 and R v Fahey CA94/00 and CA135/00, judgment 11 May 2000. To exclude probative evidence on fairness grounds is warranted only when that is consistent with the interests of justice or when that is necessary to assure the fundamental right of an accused to a fair trial.
[51] Any breach of rights by the police officers were those of the occupier and not the appellant. The trespass was brief and minor in nature. There has been no challenge to the accuracy, or the integrity of the police evidence. They were acting in good faith in a situation where it could be inferred that the appellant was attempting to avoid the breath testing checkpoint. In the circumstances, no investigatory alternatives were available for the police, and their actions overall must be considered reasonable. We do not consider fairness requires the exclusion of this evidence.
[52] We also answer the second question “yes”.
[53] It follows that the appeal against conviction is dismissed. This outcome is not to be taken, of course, as an encouragement, still less an authority, to the Police to commit trespass. This is not such a case as R v Fraser CA188/04 8 October 2004, where Police were held to be lawfully on private property pursuant to an imputed authority in an emergency situation.
Solicitors
Crown Solicitors, Auckland