R v Swenson [2016] NZDC 7715 (6 May 2016)

Last Updated: 14 December 2016

EDITORIAL NOTE: PERSONAL/COMMERCIAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT NORTH SHORE

CRI-2014-044-004600 [2016] NZDC 7715

THE QUEEN

v

_{MURRAY WILLIAM SWENSON}

Hearing:	26 August 2015, 3 February 2016 and 11 April 2016
Appearances:	Sergeant S Gallagher for the Prosecution T Beach for the Accused
Judgment:	6 May 2016

_{RESERVED JUDGMENT OF JUDGE PIPPA SINCLAIR}

[1] Murray William Swenson faces three charges – driving with excess breath alcohol (third or subsequent), dangerous driving and assaulting a Constable.

[2] The police case is that on 7 December 2014 Mr Swenson was driving his motor vehicle dangerously around the Greenhithe area. A member of the public became concerned with his manner of driving, phoned police and followed him until he reached [name of road deleted]. Soon after, two Constables attended Mr Swenson’s residential address in [name of road deleted] and found Mr Swenson asleep in the driver’s seat of his motor vehicle with his seatbelt on and the keys in the ignition. One of the Constables required Mr Swenson to accompany them to the North Shore Police Station for an evidential breath test. On the way to the police station, Mr Swenson assaulted one of the Constables by punching him in the shoulder. Evidential breath test procedures were undertaken and a reading of 1,156

_{micrograms of alcohol per litre of breath (“µg/L”) was obtained.}

R v MURRAY WILLIAM SWENSON [2016] NZDC 7715 [6 May 2016]

[3] The defence case is that Mr Swenson was not driving that afternoon. A friend was driving his motor vehicle. Specifically, Mr Swenson submits:

(a) The police have not adequately identified him as the driver of the motor vehicle and therefore have not proven one of the three elements of the charges of driving with excess breath alcohol and dangerous driving;

(b) The police had no implied licence to enter his property at [name of road deleted], and if they did have an implied licence to enter the property, it was revoked by a clear message from Mr Swenson. The downstream evidence of the evidential breath alcohol test was therefore improperly obtained and should not be admitted. Mr Swenson contends the exclusion of the evidence is the only proportionate response to the impropriety;

(c) Mr Swenson did not assault the police officer. He was unable to as his hands were handcuffed whilst travelling from his home address to the police station.

Procedural issues – Pre trial and mid trial applications

[4] This Judge Alone Trial (“JAT”) was given a time estimate of five hours. The matter proceeded part heard over three separate dates on 26 August 2015, 3 February

2016 and 11 April 2016. A number of pre trial applications were made. During the course of the substantive hearing I also made three rulings. I address all of these before I deal with the substantive hearing.

Applications by defence under s 45 of the Evidence Act 2006 and revocation of an implied license

[5] On 26 August 2015, prior to the JAT commencing, Mr Beach submitted the Court should determine two “admissibility” issues, namely whether the prosecution had adequately identified Mr Swenson and satisfied s 45 of the Evidence Act 2006, and whether there had been a revocation of an implied licence to enter Mr Swenson’s property. Mr Beach submitted I should determine these matters after hearing legal

arguments. I indicated it would be necessary to hear evidence on both of these issues.

[6] The issue of identification is not an admissibility issue. It is an element of each of the offences that the prosecution must prove and therefore needs to be determined as part of the substantive trial.

[7] The issue of implied licence is an admissibility issue. If this was the only issue raised I indicated I would have determined it as a pre trial issue by way of a

_{voir dire, following the procedure as prescribed in Gallichan v Police.}1

_However,

because it was only one issue of several to be determined, I considered that it was appropriate and more expedient to make all admissibility and evidential findings

_{after hearing all the evidence. Therefore I directed that the JAT proceed.}

Applications by defence under s 22 of the Evidence Act 2006 and s 30 Criminal

_{Disclosure Act 2008}

[8] On 17 November 2015 the defendant filed an application seeking to offer a hearsay statement, namely “the video DVD compiled by police, from cameras administered by the Joint Traffic Operations Centre (“JTOC”) of video footage of State Highway 18 at the time of the alleged offending on 7 December 2014”. Sergeant Gallagher advised that the police did not seek to admit the video DVD (“the DVD”) as he submitted it was not required for the prosecution case.

[9] Linked with the hearsay application was an application pursuant to s 30 of the

Criminal Disclosure Act 2008 seeking disclosure of the DVD.

[10] These applications were the source of various legal discussions on 3 February

2016 and 11 April 2016.

[11] The DVD had been disclosed to defence prior to the JAT commencing on

26 August 2015. However, on 3 February 2016 Mr Beach advised that after playing through the DVD once, it ceased to play. The DVD was also not playable in Court

1 [2009] NZCA 79.

either. Mr Beach submitted the DVD was relevant and sought a further copy, so that he could review it again and seek to have it admitted as a hearsay statement.

[12] At the conclusion of the hearing on 3 February 2016 I indicated that, in my view, disclosure of the DVD had been made to defence and therefore the prosecution had complied with its disclosure obligations. However, in the interests of justice I directed that the prosecution provide another copy to Mr Beach prior to the next hearing on 11 April 2016.

[13] I granted the application under s 22 of the Evidence Act 2006, notwithstanding the application was filed seeking admission under s 18. In my view the application should have been advanced under s 19 instead.

[14] I have been advised the cameras are administered by the JTOC, which is jointly operated by the New Zealand Transport Agency and Auckland Transport. In my view, those entities are within the definition of business, which includes the activities of any department of State, local authority, public body, body corporate, organisation or society. The DVD is a business record made in the course of business as a record and part of that business.

[15] I was satisfied the DVD was relevant and the circumstances relating to the taking and compiling of the statement provided reasonable assurance that the statement was reliable. It would serve no useful purpose requiring the person who compiled the DVD to attend as a witness and undue expense and delay would be caused if that person was required to appear. Accordingly, I granted the application.

[16] On 11 April 2016 Mr Beach advised that he had recently received a further copy of the DVD but that two of the six excerpts could not be played. Mr Beach submitted that those two particular excerpts were relevant to Mr Swenson’s case. I stood the matter down for Sergeant Gallagher to make enquiries as to whether a master copy could be obtained so that it could be played in Court. Sergeant Gallagher provided a further copy. I was advised again that due to a technical issue the DVD could not be played in Court. However, Sergeant Gallagher indicated it was possible to view it on the computer in the police room.

[17] Given this matter had been part heard on two previous occasions, I wished to avoid a further remand. With the consent of both Sergeant Gallagher and Mr Beach, I viewed the DVD in the presence of both Sergeant Gallagher and Mr Beach in the police room.

Application by defence for dismissal of charges pursuant to s 147 of the

Criminal Procedure Act 2011

[18] On 11 April 2016 Mr Swenson made an application pursuant to s 147 of the

Criminal Procedure Act 2011 for dismissal of the charges on two grounds:

(i) That he had not received a copy of the DVD in a playable format and therefore disclosure had not been complied with, and

(ii) The prosecution had caused undue delay by not disclosing the DVD in a playable form.

[19] The police opposed the application.

[20] I declined the application. In my view the application made by Mr Beach was misconstrued. Section 147 provides a remedy to a defendant where the prosecution has failed to satisfy the court there is sufficient evidence for a finding of guilt to be made. Mr Beach had not advanced a submission of insufficiency of evidence. (Moreover I was satisfied at the conclusion of the prosecution case that a finding of guilt could be made). Mr Beach instead submitted the prosecution had failed to comply with its disclosure obligations and had breached a Court order.

[21] The application was only relevant to the dangerous driving charge as Mr Beach accepted that the DVD could only be offered in relation to the manner of driving.

[22] I was not persuaded the prosecution had failed to comply with its disclosure obligations. Although there did seem to be some technical issues with the DVD, the DVD was nevertheless disclosed. On 3 February 2016, the Court directed that the prosecution provide another copy of the DVD for Mr Beach, although a formal order under s 30 of the Criminal Disclosure Act was not made. Both counsel and the

Court were able to view the DVD on the police computer system. Therefore there was no prejudice to the defendant.

[23] I was also not satisfied there had been undue delay. If an allegation of delay is raised, a stay of proceedings is usually sought. However, as noted by the Court of Appeal in Hancock v R:2

A stay of proceedings is a rare and exceptional remedy. A stay is likely to be the correct remedy only where there has been an egregious delay in the disposition of criminal proceedings or where the delay was due to prosecutorial misconduct. Thus a stay is not a mandatory or even a usual remedy for undue delay.

[24] Here, one remand was sought by the prosecution as it had failed to record the JAT date of 15 June 2015. The matter was delayed by three months when Mr Swenson made an application to change his election to one of JAT. The original time estimate of five hours was extended because of pre trial applications raised by the defence. The substantive hearing took place over three days as follows:

26 April 2015 11 am – 4:30 pm;

3 February 2016 3 – 5 pm; and

11 April 2016 10 am – 4:30pm.

[25] There have been no systemic delays and the defendant has not been prejudiced in any way. I was satisfied there had been no undue delay and therefore a stay of proceedings would not have been an appropriate remedy.

Ruling 1 – Application by defence to admit exhibit recording alleged injury sustained by Mr Swenson during his arrest

[26] Mr Beach sought to produce a doctor’s report of alleged injuries sustained by Mr Swenson in the course of his arrest on 7 December 2104. Mr Beach indicated he was not intending on calling the doctor.

[27] Sergeant Gallagher opposed the application on the grounds that the doctor was not available to be cross-examined. The Sergeant submitted that the injuries

claimed by Mr Swenson could have been pre-existing injuries not directly caused by the handcuffs placed on him.

[28] I ruled that as the defence was not intending calling the doctor to give evidence, the report was a hearsay statement and could not be produced.

Ruling 2 – Application by prosecution to admit Mr Swenson’s previous convictions

[29] Sergeant Gallagher sought to cross-examine Mr Swenson on his previous convictions for driving with excess breath or blood alcohol on the grounds that Mr Swenson had offered evidence about his veracity. Mr Beach objected on the grounds that the Court was dealing simply with this charge of driving with excess breath alcohol and previous convictions for drink driving were not relevant in the circumstances.

[30] In my view, bearing in mind s 38 of the Evidence Act, the defendant offered evidence about his veracity involving a key issue before the Court – whether he was driving while intoxicated. Mr Swenson said he would never have been able to drive the car home with a reading of 1,156 µg/L. He also stated that he would not drive a motor vehicle if he had consumed alcohol. However, Mr Swenson has had seven previous breath alcohol convictions of readings up to 1,043 µg/L.

[31] I was satisfied evidence of his previous convictions was relevant to the proceedings and its probative value outweighed the prejudicial effect. Accordingly, I ruled that the prosecutor could cross-examine Mr Swenson on his previous drink driving convictions.

[32] I am also satisfied the evidence of his previous convictions is propensity evidence. The evidence is relevant and constitutes propensity evidence in terms of s

40 of the Act because it tends to show that Mr Swenson has a propensity to drive a motor vehicle when he has consumed a significant quantity of alcohol.

[33] As noted by the Supreme Court in Mahomed v R, admission of propensity evidence rests largely:3

...on the concepts of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence the greater the probative value that the evidence is likely to have ... It is necessary, therefore, that the propensity has specificity about it. That specificity, in order to be probative, must be able to be linked in some way to the conduct or mental state alleged to constitute the offence for which the person is being tried.

[34] In terms of s 43 the evidence has a probative value in relation to an issue in dispute, namely whether or not Mr Swenson drove a vehicle with excess breath alcohol. Mr Swenson has seven previous convictions for driving with excess breath or blood alcohol between 1997 and 2008, with readings ranging from 676 µg/L to

1,043 µg/L. In my view there is a strong link between the propensity evidence and the charges he now faces. The probative value of the evidence is high and outweighs the risk that the evidence may have an unfairly prejudicial effect on Mr Swenson.

Ruling 3 – Application by prosecution to admit previous conviction of defence witness Grant Whyman

[35] During the course of giving evidence Shane Whyman invited the prosecution to check his criminal record and photo to verify that his police photograph would reveal that he did not usually have a full beard and therefore (usually) looked similar to Mr Swenson.

[36] Sergeant Gallagher sought to cross examine Mr Whyman on one of his previous convictions, namely accessory after the fact, relating to an offence committed in March 2000. Mr Whyman received a prison sentence of four months and 21 days for the offending. The prosecutor sought to admit this evidence to challenge the veracity of the witness. The Sergeant submitted that Mr Whyman was giving evidence supporting Mr Swenson’s case that he was not driving and therefore a conviction for accessory after the fact was highly relevant.

[37] Mr Beach opposed the application on the ground it was not substantially helpful.

[38] I concluded the evidence fell under the veracity rules. The proposed evidence was a conviction that indicates a propensity for dishonesty and lack of veracity on the part of Grant Whyman.

[39] However, out of an abundance of caution I declined the application because the conviction was fairly historic, the offending having occurred in March 2000, some 15 to 16 years ago. Therefore at least arguably, its relevance was limited.

Substantive hearing

Prosecution case

[40] The prosecution called three witnesses: Andrew John McRae, Constable McWalter and Constable Kok.

Mr McRae’s evidence

[41] Mr McRae gave evidence that on 7 December 2014 at about 2:30 pm he was driving along Brigham Creek Road towards the intersection of Kauri Road and Brigham Creek Road. Mr McRae said as he was about to enter the intersection he noticed a silver Mercedes travelling along Kauri Road towards the intersection. Mr McRae said he tried to make eye contact with the driver but could see the driver was not going to stop. Mr McRae said he had to take evasive action to avoid the Mercedes colliding into the passenger door of his vehicle. Mr McRae was so concerned about the incident he followed the Mercedes for about 10 to 15 minutes. He observed the driver clip the side of a roundabout and weave between lanes causing other motorists to take evasive action. He phoned the police, and gave a description of the driver, motor vehicle, registration number and manner of driving.

Constable McWalter’s evidence

[42] Constable McWalter gave evidence that on 7 December 2014 he was on duty with a colleague Constable Kok when he received a call from Police Communications (“Comms”).

[43] Acting on this information, Constable McWalter arrived in a marked police car in full uniform at about 2:50 pm at [address deleted], the registered address of the owner of the motor vehicle reported by Mr McRae. The Constable stated that he parked the police car on [name of road deleted]. He said he saw a Mercedes motor vehicle parked at the bottom of the driveway which matched the description and registration number he had been provided by Comms. He said that his intention was to establish who had been driving and to conduct an evidential breath test if required. Constable McWalter said Constable Kok went to the front door.

[44] As he neared the car, he saw a male (whom he later identified as the defendant) asleep in the driver’s seat with the driver’s door open. He took photographs of the defendant. Constable McWalter said the keys were in the ignition and the defendant had a seat belt on. The Constable said the defendant awoke without prompting and at 2.51 pm the Constable requested him to undergo a breath screening test. The result was over 400 πg/L, which indicated to the Constable that the proportion exceeded the legal limit.

[45] At 2:52 pm he required Mr Swenson to accompany him and advised him that he was detained. Constable McWalter said he gave Mr Swenson his full Bill of Rights. At this point he said Mr Swenson said he had not been driving and became very uncooperative. At 2:59 pm the Constable placed Mr Swenson in the rear of the patrol car and clarified his details.

[46] At 3.02 pm the Constable said he asked Mr Swenson the following questions and received the adjacent responses:

(a) How much have you had to drink today? One beer.

(b) Where were you drinking? At my house, I was sitting in my garage having a beer.

(c) Where did you drive? Nowhere.

(d) Where were you when we found you? Sitting in my car.

(e) Why were you in your car? Because I love my car. Because you are a piece of crap.

(f) When you were in your car why was your seatbelt on and keys in the ignition? Because I like to wear my seatbelt having a beer.

[47] Constable Kok drove the patrol car to the North Shore Police Station. During the drive back, Mr Swenson continued being very aggressive and abusive, despite Constable McWalter’s attempts to reason with him. Constable McWalter said Mr Swenson punched him in the left shoulder with his left hand.

[48] When the police car arrived at the police station he was assisted by other police officers who placed Mr Swenson in handcuffs and took him to the EBA suite. Constable McWalter said at 3:20 pm he advised Mr Swenson of his Bill of Rights and asked if Mr Swenson would like to speak to a lawyer. The Constable said Mr Swenson said he did not wish to speak with a lawyer and refused to sign the checklist. At 3:22 pm the Constable required Mr Swenson to undergo an evidential breath test without delay. The machine he used was a Drager device and received a result of 1,156 µg/L. At 3:25 pm he advised Mr Swenson of the positive result and at 3:28 pm advised Mr Swenson of his Bill of Rights. Mr Swenson again indicated he did not wish to speak to a lawyer and signed the checklist.

[49] Constable McWalter said at 3.31 pm he very slowly read out sections J5 and J6 advice of the positive evidential breath test checklist, and asked Mr Swenson to sign an acknowledgement as to what he was read which he signed. At 3:32 pm the Constable advised Mr Swenson he was about to undergo the 10 minute period. Mr Swenson indicated he did not wish to speak to a lawyer and refused to sign the check list. At 3:33 pm the 10 minute period commenced and concluded at 3:45pm.

[50] Constable McWalter said no election for a blood test was made. At 3:52 pm the Constable arrested Mr Swenson for excess breath alcohol (third or subsequent), assaulting a Constable and careless driving. He gave Mr Swenson his full Bill of Rights and processed him in the usual way.

Constable Kok’s evidence

[51] Constable Heremia Kok gave evidence that on 7 December 2014 at about

2:39 pm she received information from Comms of a possible drink driver being followed by a member of the public. She ascertained from the information received that the motor vehicle was owned by Mr Swenson. Constable Kok said she arrived at the registered address at 2:50 pm. She walked onto the driveway of [address deleted] and looked through the window of the home into the living area and could not see anyone there. Constable Kok noticed a car down the driveway with the registration number provided by Comms and as she got closer she saw the driver asleep in the driver’s seat with his seat belt on. Constable Kok said she touched the bonnet which was still warm and she noticed Constable McWalter taking photographs of the driver.

[52] Constable Kok said they woke Mr Swenson up. Constable McWalter requested Mr Swenson to undergo a breath screening test and he was then required to accompany them to the police station. Mr Swenson became abusive. He said he had just been listening to music and he had never driven the motor vehicle. He was uncooperative through the whole procedure.

[53] On route to the police station Mr Swenson became very aggressive. Constable Kok said that at some traffic lights she heard a commotion from the back seat and she saw Constable McWalter holding Mr Swenson up against the inside of the car. She said she radioed ahead for extra help when they arrived at the police station. Constable Kok said that when they arrived at the police station “it was chaotic” and they were assisted by another unit.

Defence evidence

Mr Swenson

[54] Mr Swenson gave evidence that on 6 December 2014 a friend, Grant Whyman, and his son brought his trailer to his address to do some repair work.

[55] Mr Whyman’s son took Mr Whyman’s car home. Mr Swenson offered Mr Whyman the use of his motor vehicle so that he could take his trailer back home. Mr Swenson said he was unable to drive as he was intoxicated. After Mr Swenson had completed the repairs on Mr Whyman’s trailer, Mr Whyman took Mr Swenson’s motor vehicle home.

[56] Mr Swenson said the following day, Mr Whyman returned the vehicle, leaving it at the top of the driveway. Mr Swenson said he was too intoxicated to drive Mr Whyman home, and asked a friend who was visiting him, namely Glen McDonald, to give Mr Whyman a ride home. Mr Swenson said his daughter had also come round earlier to return some hedge clippers.

[57] After Mr McDonald and Mr Whyman had left, Mr Swenson said he went to his garage to get more alcohol and decided to drive his car into the garage. He said he was too intoxicated to put the car in the garage, so he left the car at the end of the driveway and fell asleep. He said he put his seatbelt on because it makes a noise if the car is used without the seatbelt.

[58] Mr Swenson said he recalled being woken by two police officers asking if he had been driving. He said they wanted him to take a breath screening test. Mr Swenson blew into the breath screening device. He said he told them that Grant Whyman had been driving his car. Mr Swenson said he was required to accompany the police officers. He told them he was not going to accompany them and to get off his property. The police officers grabbed his arms and put them up against his back and grabbed and smashed his head onto the driveway. He said the police officers then handcuffed him and put him into a police car. Mr Swenson said he was put in the back left hand side of the police car and Constable McWalter was sitting in the left front seat with Constable Kok driving the motor vehicle. He said he told the officers he was going to lay a charge with the Independent Police Conduct Authority.

Mr Whyman

[59] Mr Whyman gave evidence that on 6 December 2014, he and his son took their boat trailer to Mr Swenson’s address to repair the trailer. Mr Whyman said that while he was there, his son had to leave, so took their vehicle. Mr Swenson offered his Mercedes motor vehicle so that he could drive the trailer home.

[60] The following afternoon, just after midday on 7 December, Mr Whyman said he returned Mr Swenson’s motor vehicle. On the way he called in at Whenuapai Roast Shop and met a friend of both his and Mr Swenson’s and then carried on to Mr Swenson’s address.

[61] Mr Whyman said he drove down the Main Highway, down Brigham Creek Road, and then onto State Highway 16. He said he did not drive on Kauri Road. He did not recall any driving incidents, and did not swerve in front of any vehicles. He said his driving was perfect.

[62] He said on that day he had a moustache and relatively short hair, and normally has a red blotchy face, but that he has since grown a beard to try and hide the rash.

[63] He said he recalled a man coming up behind him looking at him on [name of road deleted] but he just drove into Mr Swenson’s driveway. He said when he arrived at Mr Swenson’s address he was going to ask Mr Swenson to give him a lift to his girlfriend’s place, but Glen was there and was just leaving so he was able to get a lift with him. He said he probably left the keys in the car.

Other witnesses

[64] Kim Henderson, Grant Whyman’s girlfriend, gave evidence that on

6 December her son and Grant Whyman went over to Mr Swenson’s to “do something with their boat trailer”. Ms Henderson stated that her son got called away, so Mr Swenson gave Mr Whyman his car to bring back and then on

7 December Mr Whyman drove Mr Swenson’s car back to Mr Swenson’s address.

[65] Glen McDonald gave evidence that on 7 December 2014, or one day that weekend, he dropped his dog off at Mr Swenson’s address while he went kayaking. He said he returned about lunchtime and saw Narelle (Mr Swenson’s daughter) and Mr Swenson. Mr McDonald said he stayed very briefly at Mr Swenson’s address on the way back to pick up his dog, and gave Mr Whyman a ride to his home.

[66] Narelle Swenson, the defendant’s daughter, gave evidence that on

7 December she dropped back Mr Swenson’s hedge trimmer. She said she made herself a coffee and had a chat with her father. As she was leaving she claims she saw Mr McDonald.

[67] Finally, Shane Millerchen gave evidence that on 7 December 2014, “well after a late lunch”, he saw Mr Whyman walking across State Highway 16 at the Whenuapai shops. Mr Millerchen noticed Mr Whyman was driving a late model Mercedes and asked Mr Whyman whose motor vehicle it was. Mr Whyman told him he was returning the car to Mr Swenson.

Decision

Assessing the defence evidence

[68] Because the defendant elected to give evidence, I will consider his evidence and the other defence evidence first as a number of possible consequences may flow from whether I accept or reject his evidence.

[69] I did not find the defendant’s evidence convincing. I did not believe the alibi evidence advanced.

[70] I found the explanation Mr Swenson gave to the Constables on 7 December

2014 (that he likes sitting drinking in his car with his seatbelt on) implausible. This explanation did not have a ring of truth to it. In evidence Mr Swenson provided another explanation. However the explanation he gave to the police officers was not actually challenged by Mr Swenson. In evidence Mr Swenson said that he simply drove the car down the driveway to park it after it had been driven by Mr Whyman. Mr Swenson said he told the Constables at the time. In my view this piece of

evidence is crucial, but it was not put to either Constable McWalter or Constable Kok. Although I am aware Mr Swenson does not carry the burden of proving his innocence, given its importance, this matter should have been put to both Constables.

[71] Neither Constable made any mention of Mr Swenson telling them a friend Grant Whyman was driving the car. The Constables struck me as careful and conscientious. Constable McWalter asked Mr Swenson a series of questions which he recorded. There was an opportunity for Mr Swenson to tell the officer who had been driving.

[72] Furthermore Mr Swenson stated he repeatedly told the two Constables he had not been driving the car. This is internally inconsistent as Mr Swenson also said he had driven down the driveway to park it.

[73] It has not escaped my attention that the notice of alibi was not served on

Police until June 2015, notwithstanding a notice of alibi was sent to the defendant on

20 March 2015. Furthermore when police received the notice of alibi the name Narelle Swenson was provided. There was no mention of Grant Whyman who was the purported driver that day. It has also not escaped my attention that all the defence witnesses are either friends or family of Mr Swenson. None of the witnesses gave any evidence as to why they would have any reason to remember that particular event. The witnesses were vague about day and/or time. Mr Whyman, the main alibi witness, was particularly vague. At the beginning of his evidence he confused the dates and then later in his evidence said he could not distinctly remember the specific day. He was unable to confidently recall the time he dropped off the car to Mr Swenson’s address, just that it was “after 12 sometime”.

[74] I place little weight on Ms Henderson’s evidence. Ms Henderson, Mr Whyman’s wife and friend of Mr Swenson’s for 20 years gave largely hearsay evidence. Ms Henderson was unable to verify that Mr Whyman drove Mr Swenson’s car back to Mr Swenson’s address on 7 December 2014 as she was not there. In any event Ms Henderson could not be definitive, particularly about the time, suggesting Mr Whyman took the car back “mid morning or afternoon, just after lunch round there.... 4 or 3 o’clock after/ round lunch-ish”.

[75] Similarly I place little reliance on Mr McDonald’s evidence. Mr McDonald could not be certain about the date he left his dog with Mr Swenson, acknowledging he has left his dog with Mr Swenson on four occasions in the past. He was equally vague on the time, stating it was “mid afternoon, 1- half past 2, it wasn’t in the morning and it wasn’t at night or mid morning”. He rambled when questioned on whether he saw Mr Swenson that particular day and where Mr Swenson’s car was when he left.

[76] Ms Swenson, the defendant’s daughter, did not provide any evidence as to the time she saw her father and Mr McDonald on 7 December. Therefore I place little weight on her evidence.

[77] I place little weight on Mr Millerchen’s evidence. The evidence of a discussion he allegedly had with Mr Whyman outside the Whenuapai shops was not given by Mr Whyman. Mr Millechen could not be sure his brief meeting with Mr Whyman occurred on 7 December.

[78] I was also not convinced by Mr Whyman’s evidence. At times Mr Whyman was obstreperous and belligerent, refusing to properly address questions or avoiding answering questions he did not want to answer. When his evidence was queried he yelled and perseverated, stating “I’m the one driving the car and I knew I was driving the car and no one else could be driving the car cos I was driving the car”.

[79] I gained the impression Mr Swenson and Mr Whyman had colluded and discussed this matter in some detail. When questioned about Mr Swenson’s car, Mr Whyman immediately launched into a lengthy discussion about the tinted windows and headrests – evidence which was remarkably similar to Mr Swenson’s description. When asked about his appearance that day, Mr Whyman said that he normally has a “red blotchy face” which was a description referred to by Mr McRae and Mr Swenson in their evidence. Furthermore Mr Whyman made reference to the DVD indicating reasonable knowledge of its contents.

[80] Finally, Mr Whyman denied driving the car on Kauri Road. This is contrary to Mr McRae’s evidence (which I prefer) wherein he described the manner in which the Mercedes was being driven on Kauri Road.

[81] [During the course of Mr Whyman’s evidence the prosecutor sought to admit a previous conviction of Accessory after the Fact against Mr Whyman. This application is dealt with in Ruling 3.]

Discharging the burden of proof

[82] Although I have found the defendant’s evidence and case unconvincing and have rejected it as unworthy of belief, I still need to consider the prosecution evidence and determine whether on the basis of that evidence I am satisfied about Mr Swenson’s guilt on each of the three charges.

[83] I am satisfied the prosecution has established the three charges beyond reasonable doubt and I explain why.

[84] I found Mr McRae a frank and straightforward witness. I had no reason to disbelieve his evidence. I did not detect any ulterior motive. To the contrary I gained the impression he was a diligent and concerned member of the community who was genuinely worried about the manner of driving exhibited. Although Mr McRae expressed that some of the questions put to him were confusing, I found his evidence clear and consistent on the salient points. He was not deflected in cross examination.

[85] At the commencement of the JAT, Mr Beach submitted that s 45 was in issue. Mr Beach did not offer any submissions in relation to this issue but for the sake of completeness I will address it.

[86] Section 45 of the Evidence Act 2006 provides:

45 Admissibility of visual identification evidence

(1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the

defendant proves on the balance of probabilities that the evidence is unreliable.

(2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.

(3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—

(a) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and

(b) in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; and

(c) in which no indication is given to the person making the identification as to who among the persons in the procedure is the person to be identified; and

(d) in which the person making the identification is informed that the person to be identified may or may not be among the persons in the procedure; and

(e) that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and

(f) that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and

(g) that complies with any further requirements provided for in regulations made under section 201.

(4) The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure:

(a) a refusal of the person to be identified to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person):

(b) the singular appearance of the person to be identified (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):

(c) a substantial change in the appearance of the person to be identified after the alleged offence occurred and before it was practical to hold a formal procedure:

(d) no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant:

(e) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer’s initial investigation:

(f) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence.

[87] No formal procedure was undertaken by the prosecution in obtaining visual identification evidence. However, in my view there was good reason for not following a formal procedure, pursuant to sub-section 4(e).

[88] Mr McRae’s evidence was that he followed Mr Swenson’s motor vehicle because of the erratic nature of Mr Swenson’s driving. Mr McRae said he had two clear observations of Mr Swenson. First, when Mr Swenson was approaching the intersection of Kauri Road and Brigham Creek Road. Second, when Mr Swenson stopped in the middle of [name of road deleted] and turned around and looked at him over his shoulder. He was approximately eight metres behind the rear of the motor vehicle.

[89] Mr McRae immediately reported the driving to the police. He provided more than a generic description of the driver, stating that the driver was an “approximately 60 (to 70) year old guy with a silvery moustache, silvery hair red blotchy face”. Mr Swenson spent some considerable time arguing about the accuracy of this description. However, it also matched Constable McWalter’s description of him and having observed Mr Swenson in Court I consider the description is accurate.

[90] Mr Swenson and Mr Whyman gave evidence that Mr Swenson’s Mercedes has tinted windows and headrests and therefore Mr McRae could not have obtained a clear view of the driver. However I am satisfied from Mr McRae’s evidence that he did gain a clear and unobstructed view of Mr Swenson. It is quite possible the windows were open at the time.

[91] In addition, Mr McRae referred to a blue t-shirt worn by Mr Swenson which was also commented on by Constable McWalter. He provided a description of the silver Mercedes, and the car registration number of [registration number deleted]. As a result the Constables attended on Mr Swenson’s address within nine minutes of Mr McRae’s last observation of him and found him in a silver Mercedes with the same registration number provided by Mr McRae. Mr Swenson was in the driver’s seat, behind the steering wheel with his seat belt still on, the bonnet warm and the keys in the ignition.

[92] In the circumstances, I am satisfied that there was good reason for the police not following a formal procedure for identification. I am also satisfied the identity evidence is reliable. Accordingly, I am satisfied that Mr Swenson was driving the motor vehicle that day.

[93] The second issue raised by Mr Swenson is whether the police had an implied licence to enter Mr Swenson’s property and if so whether the implied licence was revoked.

[94] The police have not relied on the hot pursuit provisions of s 199 of the Land Transport Act. This is appropriate given the gap in time. Although Constable Kok touched the bonnet of Mr Swenson’s motor vehicle, in my view her main purpose in activity was to make enquiries of the occupier for a reasonable purpose.

[95] The majority of the Supreme Court in Tararo v R formulated the common law doctrine of implied licence in the following way: 4

...The common law modifies the absoluteness of the ordinary law of trespass by permitting entry onto private premises for the purpose of

reasonable enquiry. The common law recognises, however, that a landowner is entitled to deny or terminate the licence.

...Termination during the course of the exercise of the licence can be achieved by making it clear to the person concerned that they may no longer remain on the property. If that person does not comply with the request to leave within an appropriate timeframe they become a trespasser.

[96] Members of the public, including police officers, may go to the door of a private property in order to make enquiry of an occupier for any reasonable purpose. Police officers may avail themselves of this licence for law important purposes but they cannot invoke the licence to do anything that by law requires a warrant.

[97] Section 68B Land Transport Act 1998 allows a police officer to require a person whom the officer has good cause to suspect has recently committed an offence against the Act to undergo a breath screening test without delay.

[98] In my view, speaking with Mr Swenson about him driving his motor vehicle is a reasonable purpose for going on to private property. In two High Court decisions since Te Aro, an implied licence to enter property to communicate with a person in relation to excess breath alcohol offending was found.

[99] In Dennehy v Police5 a police officer observed the defendant driving after activating his flashing lights and indicated that the vehicle should stop. He followed the defendant onto the defendant’s driveway before speaking to him in the driveway

_{and conducting a breath screening test.}

[100] Justice Pankhurst referred to Police v McDonald6 as a more conventional view concerning the ambit of an implied licence to enter onto private property. In that case, Dobson J stated that the existence of the implied licence is not contentious:7

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 a property.

5 _{[2014] NZHC 1191.}

6 _{[2010] NZAR 59.}

7 At [36].

[101] The first question that needs to be determined is whether the Constables exceeded the terms of an implied licence by walking to the Mercedes at the end of the driveway.

[102] In my view, the Constables’ actions in themselves were not outside the terms of an implied licence. Constable Kok gave evidence that she peered through the window of the house situated on [address deleted]. The house is situated at the top of the driveway, close to the street. Constable Kok said she could not see anyone in the house so continued down the driveway. Both Constable McWalter and Constable Kok gave evidence that they identified the motor vehicle that was the subject of the description given by Comms and both saw a male sitting in the driver’s seat of the parked motor vehicle. I have no reason to disbelieve their evidence.

[103] This was, in my view, within the terms of an implied licence. The mere fact that the Constables went to the driver’s side of the car demonstrates a willingness and intention to communicate with the driver.

[104] Having found that the Constables acted within the terms of an implied licence I must consider whether Mr Swenson told the officers to leave the property, and if so, whether that was sufficient to revoke the implied licence?

[105] In Dallas v R8 the Constable went to the appellant’s house to enquire about an assault allegation. The Constable knocked on the door and the appellant opened it. The Constable at the door told the appellant why he had come and invited him to come to the police station for an interview. The appellant refused. He advised the Constable that he was not under arrest and that the Constable was not welcome at the address. The Constable then arrested him. The Court of Appeal stated that it could not accept that the Constable was a trespasser when he arrested the appellant. He was at the door under an implied licence and the appellant did not unequivocally withdraw that licence but told the Constable that unless he was under arrest the Constable was unwelcome.

[106] Similarly in Coster v Attorney General9 the appellant told the police to “fuck off”. The High Court considered that that was equivocal and not enough to revoke an implied licence. The Court held that there was no acceptable evidence that the appellant used any clear language requesting the Constables to leave his property and therefore failed to satisfy the Court that he had revoked the implied licence

_{permitting the Constable to be on his land.}

[107] It appears from these authorities that a very clear and unambiguous

_{revocation is required.}

[108] It was clear from the evidence of both Constables that Mr Swenson was very abusive and uncooperative in his dealings with the police, particularly when he was required to accompany them to the police station for the purposes of undergoing evidential breath testing. However, I do not accept Mr Swenson’s evidence that he asked the Constables to leave his property. Given Mr Swenson’s level of intoxication I do not find his evidence reliable. I have no doubt he was abusive and angry, but I am not satisfied he used clear and unambiguous language requiring the Constables to get off his property.

[109] Moreover, I accept the evidence of both Constable McWalter and Constable Kok that Mr Swenson did not order them off the property. Constable McWalter was consistent on this point and was not deflected in cross-examination. His evidence was made even more compelling when he stated that he was aware of the obligation to leave the property if someone tells an officer to leave. He added in his evidence that he was a traffic Constable for many years and is aware of the excess breath alcohol procedures.

[110] Constable Kok’s evidence was consistent with Constable McWalter’s. She was equally clear that at no time did Mr Swenson order them to leave the property.

[111] I am satisfied the implied license was not revoked. Therefore, I am not satisfied that the evidence of the breath test has been improperly obtained.

Determining the charges

[112] Having made these findings I turn to the elements of each charge. With regard to the charge of driving with excess breath alcohol (third or subsequent), the defence did not challenge the reading of 1,156 µg/L and did not challenge any of the breath alcohol procedures.

[113] Given my earlier findings, I am satisfied beyond reasonable doubt that Mr Swenson was driving a motor vehicle on a road namely [name of road deleted] while the proportion of alcohol in his breath was 1,156 micrograms per litre of breath.

[114] The charge of dangerous driving requires the prosecution to prove Mr Swenson drove his vehicle and that he did so in a manner which, having regard to all the circumstances was or might have been dangerous to the public or to a person. I have made a finding that Mr Swenson was in fact driving the car. I must therefore be satisfied beyond reasonable doubt that the manner in which Mr Swenson drove was “dangerous”.

[115] The Court of Appeal in R v Jones confirmed that in order to establish that driving was dangerous, the prosecution has to prove that driving was objectively dangerous and there was fault on the part of the driver, reflected by the defendant driving in a manner falling below the standard of care and skill of a competent and experienced driver in the circumstances.10 As noted by Hardie Boys J in McBreen v Ministry of Transport, dangerous driving requires a real risk of injury or damage resulting from the manner of the driving.11

[116] Mr Swenson relies on the DVD which provides an image of his car travelling up a portion of State Highway 18. Although I accept the image does not reveal the Mercedes weaving across lanes, the DVD excerpt was for a very small portion of the driving described by Mr McRae. Mr McRae followed Mr Swenson for 10 to 15

_minutes.

10 _{[1986] 1 NZLR 1 (CA) at p 3.}

11 HC Dunedin, M102/82, 20 July and 27 September 1983.

[117] Again, I accept the evidence of Mr McRae for the reasons I have already mentioned. I have no reason to doubt that he was describing exactly what he saw. The way in which the vehicle was being driven prompted him to telephone the police. Mr McRae described the concern he felt having his pregnant wife and three year old child in the car with him and said the way in which the car was being driven suggested the driver had a serious medical condition or was severely intoxicated.

[118] Mr McRae described Mr Swenson’s manner of driving in detail. Mr McRae said the driver was not looking when coming into the intersection and came straight at him. He said if he (Mr McRae) had not slowed down to allow the car through it would have collided into the passenger side of his car, where his pregnant wife was sitting. Mr McRae said the driver just about “took out another vehicle, went onto the gravel and then came back onto the road”.

[119] He said the motor vehicle was weaving in and out of its lane and at an intersection the vehicle clipped the side of the round-about and continued to drive across two lanes causing people to manoeuvre around it. The car was weaving across the lanes when it pulled out onto the motorway. Mr McRae said at one point the driver caused a car with a trailer to go “just about into the median barrier and then swerve back into the lane and then just about swerve into the bridge as well ... almost creating another accident.” The driver turned right into [name of road deleted] and then stopped in the middle of the road blocking both lanes so it was impossible to get past.

[120] On the evidence, I am satisfied that Mr Swenson drove in the manner described by Mr McRae and that this manner constitutes dangerous driving. Although there is no suggestion Mr Swenson was driving with excess speed, he drove his car in a manner well below that of a competent and careful driver and created a real risk of harm to other road users, who were forced to take action to avoid collision with his vehicle.

[121] Finally I turn to the charge of assault on a Constable. In order to prove this charge the prosecution must prove that Mr Swenson applied force to the Constable and that the force was deliberate.

[122] Mr Swenson gave evidence that he was handcuffed while in the police car. However Mr Swenson was heavily intoxicated at the time and I place little reliance on his evidence. Again, I prefer the prosecution evidence.

[123] Constable McWalter said he did not put handcuffs on Mr Swenson as he walked up the driveway because he managed to persuade Mr Swenson to come up the driveway without needing to arrest him. Constable McWalter said Mr Swenson was not handcuffed going to North Shore Police Station but was handcuffed when he was transferred to the Henderson Police Station to be processed.

[124] Constable Kok was unsure whether Mr Swenson was handcuffed walking up to the police car. In my view Constable McWalter’s evidence is more reliable on this point because he was dealing directly with Mr Swenson. In any event, both Constables were sure that Mr Swenson was not handcuffed in the police car on the way to the station. I am satisfied Mr Swenson was not handcuffed at that time and therefore his hands were free.

[125] Constable Kok said Mr Swenson was sitting in the left rear seat of the motor vehicle with Constable McWalter sitting in the right rear of the motor vehicle. Constable McWalter‘s evidence on this point had some inconsistencies, as did the arm he said Mr Swenson used to strike him, and which shoulder was struck. Notwithstanding this, Constable McWalter recalled clearly that he was struck by Mr Swenson. To some extent, Mr McWalter’s evidence is endorsed by Constable Kok who said she heard a “big commotion” in the back and saw Constable McWalter holding Mr Swenson against the door which prompted her to phone through to the policing unit for assistance when they arrived.

[126] It was clear from the evidence that on the way to the police station Mr Swenson was extremely agitated and abusive. Both Constables gave evidence that Mr Swenson was swearing profusely and accusing them of being “corrupt, liars, P users and losers”. At times he was threatening: “I’m going to fucking kill you, you fucking piece of shit”. Constable McWalter said at one point Mr Swenson got so agitated he (the Constable) got spittle on his face. Mr Swenson did not challenge the

prosecution evidence that he was abusive towards the police officers and in fact impliedly endorsed it.

[127] I observed two instances of Mr Swenson’s poor impulse control when he became aggressive and abusive in the solemnity of the courtroom. On the first occasion, Mr Swenson stood up in court and called Mr McRae a “bloody idiot” while he was giving evidence. He also called the prosecutor “a fucking cunt” when he did not like a question the prosecutor was putting to a defence witness.

[128] For these reasons I am satisfied beyond reasonable doubt Mr Swenson did strike Constable McWalter on the shoulder while in the police car and the strike was intentional.

Pippa Sinclair

District Court Judge