Chadderton v R [2014] NZCA 528 (31 October 2014)

Last Updated: 5 November 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA40/2014 [2014] NZCA 528
BETWEEN	ISSAC JOHN CHADDERTON Appellant
AND	THE QUEEN Respondent

Hearing:	3 September 2014
Court:	White, French and Miller JJ
Counsel:	A G Speed and D H P Schellenberg for Appellant P D Marshall and Y Moinfar for Respondent
Judgment:	31 October 2014 at 10.30 am

JUDGMENT OF THE COURT

1. We answer the question of law submitted for determination by this Court:

“Can reasonable compliance under s 64(2) of the Land Transport Act 1998 apply to breaches of the New Zealand Bill of Rights Act 1990?”

No.

2. To that extent the appeal is allowed but the conviction is confirmed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

[1] Mr Chadderton was charged with driving with excess breath alcohol.
[2] At a defended hearing in the Auckland District Court, he contended that on two separate occasions during the assessment procedure under the Land Transport Act 1998, the police arbitrarily detained him in breach of s 22 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act).
[3] Judge Dawson found that Mr Chadderton had not been arbitrarily detained and convicted him.^[1] On appeal to the High Court Keane J dismissed the appeal,^[2] but later granted Mr Chadderton leave to appeal to this Court on the following question of law:^[3]

Can reasonable compliance under s 64(2) of the Land Transport Act apply to breaches of the New Zealand Bill of Rights Act 1990?

[4] It is common ground that the answer to this question must be “no” and that insofar as Keane J relied on s 64(2) in determining whether there had been a Bill of Rights Act breach he made an error of law.
[5] The main issue, therefore, is whether despite this error the conviction should stand.

Factual background

[6] At approximately 5 am on 20 February 2011, a security guard at Massey University discovered Mr Chadderton slumped over the steering wheel of his car, which was parked on campus with the engine running. The guard took the keys from the ignition and called the police.
[7] Two constables arrived at 5.50 am. One of them spoke to the guard while the other, Constable Fahy, administered a breath screening test, which Mr Chadderton failed. Constable Fahy advised Mr Chadderton of his rights and required him to accompany the officers to the North Shore Policing Centre for an evidential breath or blood test.
[8] Constable Fahy then placed Mr Chadderton in the police vehicle. There was a delay of approximately five to 10 minutes while they waited for the other officer to finish taking a statement from the security guard. This is the first delay Mr Chadderton claims breached s 22 of the Bill of Rights Act.
[9] On the way to the policing centre, they came across a van that had broken down just before an on-ramp to the motorway. The officers considered the van posed a road safety risk and stopped. Constable Fahy remained in the car with Mr Chadderton while the other officer saw to the removal of the van from the lane. They remained stopped for up to 30 minutes. During this time neither constable attempted to obtain help from any other officers to resolve the issue. This is the second delay Mr Chadderton claims breached s 22.
[10] Once they arrived at the policing centre, the evidential breath test was conducted promptly. It produced a result of 654 micrograms of alcohol per litre of breath. Mr Chadderton elected not to provide a blood specimen and Constable Fahy subsequently issued a summons for driving with excess breath alcohol.
[11] Judge Dawson in the District Court found the charge proved and convicted Mr Chadderton of the offence of driving with excess breath alcohol under s 56(1) of the Land Transport Act.

High Court judgment

[12] Mr Chadderton appealed his conviction to the High Court on the grounds of the two alleged breaches of the Bill of Rights Act.
[13] Justice Keane began his assessment by stating that whether there had been a breach of s 22 depended on whether the officers had failed to comply strictly or reasonably with s 69(1) of the Land Transport Act.^[4] Section 69(1) provides:

(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) ... 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; ...

[14] The Judge observed that an initially lawful detention can become unlawful if its length becomes disproportionate to the purpose for which the power to detain has been conferred.^[5]
[15] It was undisputed that Constable Fahy detained Mr Chadderton lawfully under s 69(1) after he failed the breath screening test. However, the Judge noted that strictly speaking s 69(1) only entitled the constable to detain Mr Chadderton in order to take him to the policing centre. It was therefore possible that the constable had exceeded his s 69(1) power in each of the two instances Mr Chadderton complained about.
[16] The Judge then turned to s 64(2) of the Land Transport Act, which states:

It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.

[17] Justice Keane considered the inquiries under s 22 of the Bill of Rights Act and ss 69(1) and 64(2) of the Land Transport Act merged at that point. He explained:^[6]

If in each instance complained of the constable complied at least reasonably with s 69(1), set against that section as a whole and the policy of the Act, in neither instance will Mr Chadderton’s detention have been arbitrary under s 22. If, conversely, in either instance, the constable ceased to comply reasonably with s 69(1), Mr Chadderton’s detention will have become arbitrary and, even more decisively, that will render null the evidential breath test result.

[18] The Judge went on to state that there is no ability under s 30 of the Evidence Act 2006 to admit an evidential breath testing result where there has not been reasonable compliance with s 69.^[7]
[19] On the evidence, Keane J considered that Constable Fahy did comply “at least reasonably” with s 69(1).^[8] With regard to the first alleged breach, the Judge noted the delay was short and the officers needed the security guard’s statement in order to determine whether Mr Chadderton had driven in his intoxicated state. As to the second breach, Keane J considered the failure to call for backup was regrettable, but emphasised that the officers were acting in good faith and the delay did not disadvantage Mr Chadderton. There had therefore been reasonable compliance with s 69(1) in terms of s 64(2). The Judge accordingly concluded that Mr Chadderton was at no time detained arbitrarily and dismissed the appeal.

Question of law

[20] As mentioned, Keane J subsequently granted leave for Mr Chadderton to appeal to this Court on the following question of law:

Can reasonable compliance under s 64(2) of the Land Transport Act apply to breaches of the New Zealand Bill of Rights Act 1990?

Arguments on appeal

[21] Counsel agreed that the answer to the question of law must be “no”.
[22] However, they differed in their analysis of the evidence and of the interaction between the provisions of the Land Transport Act and the Bill of Rights Act. Central to the disagreement was the interpretation of the leading decision of Birchler v Police.^[9]
[23] Mr Speed submitted that once the length of the delay became unreasonable and hence arbitrary and unlawful, the officers were in breach of both s 69 of the Land Transport Act and s 22 of the Bill of Rights Act. At that point (which Mr Speed fixed at approximately 10 minutes after arrival at the on-ramp) Mr Chadderton was no longer being detained for Land Transport Act purposes. It followed in counsel’s submission that 64(2) of the Land Transport Act (reasonable compliance) could not be invoked. Nor (following Birchler) was the issue one of admissibility of unlawfully obtained evidence under s 30 of the Evidence Act.^[10]
[24] According to Mr Speed, were we to find the detention was unreasonable, that was the end of the case. The conviction could not stand.
[25] In support of his argument that the delay was unreasonable, Mr Speed emphasised the absence of any explanation as to why the two constables did not call for backup at the on-ramp. He argued that the delay of 30 minutes was inexcusable. As to the first delay at the university campus, Mr Speed conceded that on its own it would not be sufficient but submitted that nevertheless it should be taken into account.

Our analysis

Birchler v Police

[26] The facts of Birchler are fairly straightforward. Mr Birchler was involved in a car accident. The officer who attended the scene had reason to suspect he had been drinking, but had forgotten to bring with her any breath screening device. While she later accepted she could have radioed to have a device brought to the scene, instead she took Mr Birchler to a nearby police station. Once there, he failed a series of breath tests and a blood test. He was charged with driving with excess blood alcohol under s 56 of the Land Transport Act.
[27] The case came before the Supreme Court as an appeal on a question of law. The Court accepted that in taking Mr Birchler to the police station before he had undergone a breath screening test, the officer had not complied strictly with s 69 – “a prescribed pre-condition for requiring a person to accompany an officer in order to undergo an evidential breath test [had] not been met”.^[11] The Court held that such non-compliance would provide a defence to a breath or blood alcohol charge under s 56 unless there had been reasonable compliance in terms of s 64(2). Section 30 of the Evidence Act was not invoked. The Court did not express a view on whether there had in fact been reasonable compliance.
[28] In the circumstances of the case, the police were not seeking to have the matter sent back to the District Court. Accordingly, the result of the Supreme Court’s decision on the question of law was that Mr Birchler’s conviction was quashed and the prosecution was brought to an end.
[29] In coming to its decision, the Supreme Court had occasion to consider the interaction between ss 69 and 64 of the Land Transport Act in some detail.
[30] For convenience, we again set out those two provisions, as well as s 22 of the Bill of Rights Act.

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) ... 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; ...

64. Defences

...

(2) It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.

22. Liberty of the person

Everyone has the right not to be arbitrarily arrested or detained.

[31] In our view, correctly interpreted, the Birchler decision draws a distinction between cases where the issue concerns an alleged breach of the Bill of Rights Act and cases where the issue is an alleged failure to comply with the procedural requirements of the Land Transport Act.
[32] Section 64(2) only applies to the second category of cases; that is, it applies to departures from the procedural requirements in pt 6 of the Land Transport Act. Part 6 outlines a number of steps that must be taken before obtaining an evidential breath or blood test. As a general rule, when police fail to comply with a step in the statutorily prescribed process, the defendant will have a substantive defence to a charge under the Act.^[12] Section 64(2) provides “limited dispensation from the very specific requirements of Part 6”.^[13] Where police have failed to comply with a required step but have complied reasonably with the overall regime, s 64(2) operates to bar the substantive defence that would otherwise have existed.
[33] In cases where there has not been reasonable compliance, and a substantive defence is therefore available to the defendant, that is determinative. The issue is not one of admissibility of evidence and s 30 of the Evidence Act is not engaged.
[34] Conversely, in cases such as the present one where a defendant alleges a breach of the Bill of Rights Act rather than a failure to comply with a procedural step in the Land Transport Act, s 64(2) does not apply at all. The court is required to assess the police conduct against the standard set by the relevant provision of the Bill of Rights Act. If proven, the alleged breach will not operate as a substantive defence but may render the blood or breath test evidence improperly obtained and require the judge to carry out the s 30 balancing exercise to determine its admissibility. Contrary to Mr Speed’s submission, we consider the Supreme Court makes this distinction clear at [19] of Birchler:

What has occurred in the present case is that those framing the case stated have confused two things. The first is proof of compliance with a necessary step in the statutorily prescribed process for obtaining an evidential test, where s 64(2) may dispense with the need for strict compliance in favour of reasonable compliance, thus removing a defence which might otherwise exist. The second is a question of admissibility of evidence to which s 30 may apply. This case involves only the former. Therefore s 30 could not apply, as it could do in a case like ... Gallichan,^[14] where the issue was not about compliance with the Land Transport Act but about the adequacy of a police officer’s explanation to a driver of the right to receive legal advice under s 23(1)(b) of the New Zealand Bill of Rights Act.

[35] Applying this analysis to the question of law before us, we agree with counsel that the answer to the question must be “no”. Section 64(2) cannot be applied to alleged breaches of the Bill of Rights Act.^[15]
[36] It follows that in our view Keane J erred when he took s 64(2) into account in deciding whether Mr Chadderton had been arbitrarily detained in breach of s 22 of the Bill of Rights Act.
[37] It also follows that we do not accept Mr Speed’s interpretation of the Birchler decision. Correctly analysed, the issue in this case is about an alleged breach of the Bill of Rights Act, not about a direct breach of s 69. Following Birchler the inquiry is therefore whether there was a breach and if so whether the evidence obtained as a result of that breach is admissible under s 30 of the Evidence Act.
[38] Having reached that conclusion, we now turn to consider the two delays in light of the s 22 standard.

Was Mr Chadderton arbitrarily detained?

[39] It is common ground that Mr Chadderton was detained by Constable Fahy within the meaning of s 22. It is also undisputed that the detention was initially lawful, pursuant to s 69(1) of the Land Transport Act. The question is whether Mr Chadderton’s detention became arbitrary during either of the periods of delay.
[40] The leading statement on the meaning of arbitrary in this context is found in Neilsen v Attorney-General:^[16]

Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures.

[41] Looking more specifically at detention for the purpose of breath/blood alcohol testing, it is possible to distil the following principles from the authorities:

• (a) Detention for the purpose of breath/blood alcohol testing under s 69(1) is not subject to any express time limit.^[17]
• (b) Despite the absence of an express time limit, detention should not last for longer than is reasonable in light of the statutory purpose.^[18]
• (c) Whether a person has been detained for an unreasonable period “can only be a matter of fact and degree in each case”.^[19]
• (d) There is some scope for delay in the process without giving rise to a breach of s 22. That is, there is no strict requirement that the defendant be transported to the appropriate site and tested immediately.^[20]
• (e) There is no absolute rule preventing an officer from prolonging the defendant’s detention in order to effect a secondary purpose of his own.^[21] Again, the issue will likely be one of reasonableness.
• (f) The time reasonably required may vary considerably depending on the locations involved and other pressing demands on the enforcement officer’s time, such as arriving at the scene of any accident.^[22]
• (g) Delay is less likely to render detention arbitrary where there is no evidence the defendant was prejudiced by the passage of time.^[23]

[42] As will be readily apparent, the sorts of considerations to be taken into account are very similar to those considered by Keane J under s 64(2).

First delay: five to 10 minutes while the security guard was interviewed

[43] Mr Speed submitted that although s 69(1) authorised the constables to detain Mr Chadderton for breath/blood testing, it did not authorise them to delay transporting him to the policing centre for five to 10 minutes while they conducted further investigations. He argued it was wrong of Keane J to justify the delay on the ground that the officers needed the security guard’s statement to ascertain whether Mr Chadderton had actually driven the car. By the time of the relevant delay, Constable Fahy had already required Mr Chadderton to undergo a breath screening test. The officers therefore already had sufficient grounds to transport Mr Chadderton to the centre for an evidential breath/blood test. Any other information could have been obtained later.
[44] We agree that the Judge was wrong to justify the delay on the ground that the police needed to ascertain whether Mr Chadderton had driven the car.
[45] However, in our view, the delay of five to 10 minutes was unobjectionable. In terms of the Neilsen standard, it was not capricious, unreasoned or without reasonable cause. Having arrived at the university, the two officers undertook parallel enquiries and, by chance, Constable Fahy completed his duties first. He was entitled to wait a brief time for his partner’s enquiries to be completed before they departed.
[46] To hold otherwise would be to impose an immediacy requirement, which, as the case law makes clear, is not the law.
[47] Mr Chadderton was not prejudiced by the brief delay, and the officers acted in good faith.
[48] We conclude that it was reasonable for Constable Fahy to wait a short time while the interview was completed before leaving the campus.

Second delay: up to 30 minutes while a broken-down van was removed from the road

[49] Mr Speed argued that the police evidence overstated the seriousness of the threat to public safety posed by the broken-down van. He accepted that a brief stop to make inquiries would have been reasonable but submitted that once the officers established there was no injury or immediate harm to persons, it was incumbent on them to carry on to the policing centre and arrange for other officers to attend to the accident. Again, the essence of the claim is that the police departed from their specific limited power under s 69(1), and in doing so arbitrarily detained Mr Chadderton.
[50] We disagree.
[51] The District Court Judge found on the evidence that the accident represented a hazard that was a danger to human life and property and that the officers would have been derelict in their duties if they had not stopped and dealt with the situation immediately.^[24] We see no basis for rejecting that finding.
[52] The evidence also established that, while in hindsight it might have been preferable for the officers to call for backup (if backup was available and there was no evidence to suggest it was), at the time they had no way of knowing how long it would take to clear the road. It was not a situation of the officers extending Mr Chadderton’s detention for their own convenience. They acted in good faith throughout. He was not exposed to any risk. Nor was he prejudiced.
[53] In all those circumstances, we agree with the District Court Judge that the police acted reasonably and that the detention was not unlawful or arbitrary.
[54] As Mr Speed accepted, it follows from that conclusion that the conviction must stand.
[55] For completeness we add that had we concluded the detention was unreasonable we would nevertheless have admitted the evidence of the test results under s 30 of the Evidence Act. In our view, in the circumstances of this case exclusion of the evidence would be disproportionate to the impropriety.

Outcome

[56] We answer the question of law submitted for determination by this Court:

“Can reasonable compliance under s 64(2) of the Land Transport Act 1998 apply to breaches of the New Zealand Bill of Rights Act 1990?”

No.

[57] To that extent the appeal is allowed but the conviction is confirmed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Police v Chadderton DC Auckland CRI-2011-044-1152, 3 April 2013.

^[2] Chadderton v New Zealand Police [2013] NZHC 2672.

^[3] Chadderton v New Zealand Police [2013] NZHC 3433.

^[4] Chadderton v New Zealand Police, above n 2, at [15].

^[5] At [17].

^[6] At [21].

^[7] At [22] relying on Birchler v Police [2010] NZSC 109, [2011] 1 NZLR 169 at [17].

^[8] At [23]–[28].

^[9] Birchler v Police, above n 7.

^[10] In written submissions, Mr Speed had previously submitted that the case turned on whether the evidence was admissible under s 30 of the Evidence Act 2006. At the hearing he told us that after reading Birchler again he resiled from that analysis and considered that were we to find the detention had been unlawful that was determinative.

^[11] At [17].

^[12] Birchler v Police, above n 7, at [17].

^[13] At [17].

^[14] Gallichan v Police [2009] NZCA 79.

^[15] This conclusion is consistent with Stott v New Zealand Police [2013] NZHC 2396 and R v Beck [2008] NZCA 283.

^[16] Neilsen v Attorney-General [2001] NZCA 143; [2001] 3 NZLR 433 (CA) at [34].

^[17] This can be contrasted to several other provisions in the Land Transport Act 1998, where the Act expressly requires certain steps to be undertaken “without delay”: for example, ss 68(1), 69(4) and 70(1).

^[18] Ministry of Transport v Masters [1991] NZCA 83; [1992] 1 NZLR 645 (CA).

^[19] Po v Ministry of Transport [1987] NZCA 123; [1987] 2 NZLR 756 (CA) at 759.

^[20] See, for example, Po v Ministry of Transport, above n 19; Lawrence v Ministry of Transport [1982] 2 NZLR 756 (CA); Murphy v Police HC Hamilton AP87/93, 2 November 1993; and George v Police HC Tauranga CRI-2009-470-8, 16 June 2009.

^[21] Lawrence v Ministry of Transport, above n 20.

^[22] Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA).

^[23] See, for example, Murphy v Police, above n 20; Lawrence v Ministry of Transport, above n 20; and Stott v New Zealand Police, above n 15.

^[24] Police v Chadderton, above n 1, at [31].