Sutton v Police [2012] NZHC 1398 (21 June 2012)

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Sutton v Police [2012] NZHC 1398 (21 June 2012)

Last Updated: 20 August 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-98 [2012] NZHC 1398

BETWEEN CRAIG CHARLES SUTTON Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 11 June 2012

Counsel: R Mulgan, N P S Winkler and A Simpson for Appellant

K Wendt for Respondent

Judgment: 21 June 2012

_{JUDGMENT OF POTTER J}

In accordance with r 11.5 High Court Rules

I direct the Registrar to endorse this judgment with a delivery time of 12.30 p.m. on 21 June 2012.

Solicitors: Meredith, Connell, Auckland – [e-mail]

P Winkler, Auckland – [e-mail]

_{Copy to: R Mulgan, Auckland – [e-mail]}

SUTTON V NEW ZEALAND POLICE HC AK CRI-2012-404-98 [21 June 2012]

Introduction

[1] Following a defended hearing in the District Court1 Craig Charles Sutton was found guilty by Judge Moses of a charge of driving a motor vehicle on a road, namely Whitford Road, on 15 May 2010, while the proportion of alcohol in his breath exceeded 400 mg of alcohol per litre of breath, in that it was 568 mg of alcohol per litre of breath.

[2] Mr Sutton appeals against his convictions on the grounds that:

(1) His right to a blood test was not adequately facilitated by police; and

(2) The copy of the certificate of compliance for the evidential breath testing device should not have been admitted.

[3] A third issue before the District Court Judge relating to disclosure of a police logbook was not pursued on appeal.

[4] Having found the charge proved, Judge Moses convicted Mr Sutton and imposed a fine of $600 together with Court costs of $132.89. He disqualified Mr Sutton from obtaining a driver’s licence for six months commencing on 19 March

2012. This sentence is not challenged on appeal.

Approach on appeal

[5] This is a general appeal under s 115 of the Summary Proceedings Act 1957. The appeal is by way of rehearing and normal appellate principles apply. The appellant has the onus of satisfying the Court that it should differ from the original

_{decision but the appellate court must come to its own view on the merits.}2

1 _{New Zealand Police v Sutton DC Manukau CRI-2010-092-7734, 9 March 2012.}

2 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141.

[6] The appeal court should exercise caution when assessing credibility of witnesses where the trial Judge has had the benefit of seeing and hearing witnesses give evidence. This latter aspect does not assume prominence in this appeal as Judge Moses accepted the appellant’s version of events, the police constable involved, Constable Rakete, having no independent recollection of events as described by the appellant.

Factual background

[7] On 15 May 2010 Mr Sutton was the driver of a motor vehicle that was stopped at a police checkpoint. He failed a breath screening test and was taken to a police bus where he underwent an evidential breath test. This test produced a result of 568 mg of alcohol per 100 litres of breath.

[8] After Mr Sutton had completed the breath test and the result was printed, Constable Rakete advised him of his right to elect a blood test and gave him ten minutes to decide whether he wanted to undertake a blood test. These facts are not in dispute.

[9] Mr Sutton’s evidence, accepted by the Judge, was that Constable Rakete advised him that it would take 30 to 45 minutes for a nurse to arrive to carry out the blood test. Mr Sutton went outside to speak with his wife who was nervous, as there were a number of people milling around the area. She wanted to go home. On the basis of Constable Rakete’s estimate of the time delay, Mr Sutton decided not to elect a blood test.

[10] When he returned to the bus he saw someone inside the bus having a blood test. He did not raise this matter and did not mention it to Constable Rakete. Mr Sutton advised Constable Rakete that he did not wish to elect a blood test as it would take too long. He signed the form confirming this, writing beside his signature “I do not have time for blood test”. Mr Sutton said in evidence that if he had known he could have had a blood test straight away, he would have done so.

[11] The following passage from the appellant’s evidence in chief refers:

Q What was your decision about the blood test?

A Um, with knowing I was going to have to wait for some time, my wife was really nervous. She just wanted to get home so I declined. It just didn’t – I didn’t want to wait.

Q When you got back on the booze bus what did you see?

A At this stage there was a woman in there giving someone else another bl – someone else a blood test, yeah.

Q Did you say anything?

A No, I didn’t say anything, but I did think it was unusual that why

would you get two lots of blood test people.

Q If you had known you could have a blood test immediately, what would your decision have been?

A Oh I could’ve had the blood test straight away. It would – then my

wife wouldn’t have to wait.

THE COURT:

Q What would your decision have been? A My decision?

Q Mmm.

A It, oh, I would’ve had the blood test if it was straight away, yeah.

[12] Constable Rakete could not remember details of these events and had no notes of these matters.

Relevant statutory provisions

[13] Section 56(1) of the Land Transport Act 1998 establishes the offence for driving with excess breath alcohol.

[14] Section 77 relevantly provides:

Presumptions relating to alcohol-testing

(1) For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant’s breath at

the time of the alleged offence was the same as the proportion of

alcohol in the defendant’s breath indicated by the test.

(2) ...

(3) Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—

(a) The person who underwent the test is not advised by an enforcement officer, [without delay] after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes,—

(i) In the case of a positive test that indicates that the proportion of alcohol in the person’s breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be [conclusive[ evidence to lead to that person’s conviction for an offence against this Act; or

...

(b) The person who underwent the test—

(i) Advises an enforcement officer, within 10 minutes of being advised of the matters specified in paragraph (a), that the person wishes to undergo a blood test; and

...

[15] Section 64 sets out available defences. Section 64(2) provides that it is no defence that a provision forming part of ss 68-75A and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance.

[16] Section 70A provides:

Right to elect a blood test

(a) If the result of a person’s evidential breath test appears to be positive, the person has the right, within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), to elect to have a blood test to assess the proportion of alcohol in his or her blood.

(b) This section is for the avoidance of doubt.

[17] Section 75A provides:

Certificates of compliance for evidential breath-testing devices

(a) An evidential breath-testing device must be supported by a certificate of compliance given under this section by a person authorised for the purpose by the Science Minister.

(b) At any trial or defended hearing for an offence involving excess breath alcohol recorded by the device (being an offence committed on or after the commencement of this section), the prosecution must produce to the court a certified copy of the certificate of compliance. The certification must be given by a person authorised for the purpose by the Commissioner and must state that the copy is a true copy of the original certificate.

(c) Subject to subsection (4), a certificate of compliance or a certified copy of it that is produced under subsection (2), is for all purposes conclusive evidence of the matters stated in the certificate, and neither the matters stated in the certificate nor the manufacturer’s specifications for the device concerned may be challenged, called into question, or put in issue in any proceedings in respect of an offence involving excess breath alcohol recorded by the device.

(d) In the absence of proof to the contrary, a document purporting to be a certificate of compliance or a certified copy of a certificate of compliance—

(a) must be treated as such a certificate or certified copy; and

(b) is conclusive evidence of the sufficiency of the authority of the person who signed the document.

Judgment appealed

[18] As to the first ground, after referring to relevant evidence, Judge Moses said that given Constable Rakete had no direct recollection of the events but did not dispute the account given by Mr Sutton, he had no reason to dispute the description of events as given by the appellant. The Judge referred to the submission for the appellant that it was incumbent on Constable Rakete once he returned to the bus and had seen that a blood taker had arrived, to inform the appellant of that fact. He said there was no evidence that Constable Rakete was aware that a blood taker was arriving shortly at the bus, nor any evidence that he noticed the person taking blood from another person in a separate part of the bus. The appellant did not specifically raise the issue with Constable Rakete. There was no suggestion that Constable Rakete acted in anything other than good faith in his dealings with Mr Sutton.

[19] The Judge accepted there is an obligation on the police not to mislead detained motorists about the option of a blood test. However, in this case the only information given to Mr Sutton was at the result of a question about how long it would take for the blood procedure to be completed. The Judge found there was no element of either bad faith or misleading information having been provided to the appellant.

[20] The Judge also accepted that even if the original advice had been given to Mr Sutton in good faith, subsequent developments could render it inaccurate or misleading, requiring correction. However, there was no evidence either direct or by inference that Constable Rakete was put on notice either from his observations or from anything that was told to him by Mr Sutton, that required any correction. The Judge distinguished on their facts the cases of Muggeridge v Police3 and Neiman v Police.4

[21] Having concluded that the evidence of the breath test was not illegally obtained, the Judge said he did not need to assess whether the evidence should nonetheless be admissible under s 30 of the Evidence Act.

[22] As to the second ground, the Judge noted that a true copy of the original certificate of compliance for the evidential breath testing device used to produce the printout of 568 mg of alcohol per litre of breath had been produced. He referred to the defence submission that this certificate was inadmissible because it did not comply with the requirements of s 75A of the Land Transport Act 1998 in that the instrument of authorisation produced did not refer to Bruce Behrent, but rather to another person (namely Janine Abhinesh Foon). Therefore the document could not “purport” to be a certified copy of the certificate of compliance.

[23] The Judge rejected that submission. He referred to the certification signed by

Bruce Behrent and beneath his signature the words:

A person authorised by an Assistant Commissioner, the delegate of the Commissioner of Police, acting pursuant to s 75A(2) of the Land Transport Act 1998

3 _{Muggeridge v Police HC Tauranga CRI-2008-463-57, 2 December 2008.}

4 Neiman v Police HC Wellington CRI-2006-485-125, 14 February 2007.

[24] He found in terms of s 75A(4) that the certificate must be treated as a certificate or a certified copy of the certificate and “in the absence of proof to the contrary” is sufficient evidence that s 75A has been complied with.

[25] He held that the instrument of authorisation produced by the police which on its face purported to state that Janine Abhinesh Foon was authorised to certify copies of certificates of compliance in respect of an evidential breath test device as a true copy of the certificate pursuant to s 75A(2) was of no relevance. It was not required to be produced in evidence and did not prove that Mr Behrent was not an authorised person.

[26] The Judge held that the tests were properly conducted and concluded with an admissible result, that the appellant was at all times advised of his rights and that the charge was proved beyond reasonable doubt.

Issue 1: Appellant’s submissions

[27] Counsel submitted that the appellant was misled about the availability of a blood test. He had done enough to put Constable Rakete on notice that delay in availability of the blood test was important to him: he asked about delay; he went outside to consult with his wife; he told the constable he would not have a blood test because he could not wait; and he wrote on the relevant form that he did not have time for the blood test.

[28] Counsel submitted it was incumbent upon the constable to make inquiries to substantiate his time estimate of 30 to 45 minutes in view of the appellant placing great weight on this factor. Further, the constable was obliged to correct his previous advice when a blood taker appeared and was seen by the appellant taking a blood sample from another person. The appellant could not necessarily be expected to raise the point himself as he did not know the procedure or the involvement of the blood taker he saw.

[29] There is an obligation upon the police not to mislead detained motorists about the option of a blood test: Muggeridge v Police and Neiman v Police were cited as

illustrative of this general principle. Counsel also cited from Aylwin v Police5 that since the statutory bar on challenging the accuracy of breath testing equipment: 6

... a blood test, taken by a registered medical practitioner with the result scientifically analysed, is the motorist’s ultimate protection.

[30] Counsel noted that where the breach complained of is not in respect of statutory obligations the reasonable compliance provision in s 64(2) of the Land Transport Act is not relevant. But where police conduct results in a motorist being misled about his rights in breach of the obligation of police to facilitate the rights of people they process, the admissibility of the evidence falls for determination under s

30 of the Evidence Act 2006.7

[31] Relying on R v Livingston,8 counsel submitted that once the defence puts an element of the procedure followed by the police in issue, it is incumbent upon the Crown to disprove it to the balance of probabilities standard. The benefit of any doubt must go to the person accused.

[32] It was submitted the Judge was wrong in concluding that because there was no evidence that the officer saw the blood taker, there was no element of bad faith or misleading information having been provided to the appellant. It was not for the appellant to show the blood taker was visible to the police officer but for the police to show the blood taker was not visible to the officer, once the point had been put in issue by the defence.

[33] Further, there was the necessary causative link between the alleged omission

_{on the part of the police officer and the appellant’s decision not to have a blood test,}9

5 _{Aylwin v Police [2009] 2 NZLR 1 (SC).}

6 Counsel’s written submissions refer to [3] of the Supreme Court judgment in Aylwin for this citation. I assume counsel intends to refer to the passage cited in Aylwin at [12] from Falesiva v Ministry of Transport [1987] 1 NZLR 275 at 279: “The legislature has evidently acted on the view that a blood test, taken by a registered medical practitioner with the result scientifically analysed, is the motorist’s ultimate protection and a reliable basis for a conviction.”

The Court in Aylwin observed at [11]: “The right of election to have a blood test and the right to

be advised of that right, conferred by s 70A, must be regarded as providing effective protection against the consequences of an error in a breath-screening test or an evidential breath test.”

7 _{Muggeridge v Police.}

8 _{R v Livingston CA232/00, 12 October 2000.}

9 Sluys v Police HC Hamilton CRI-2004-419-120, 22 December 2004.

because the appellant’s evidence was that he would have had the blood test if it had

been available straight away.

[34] Counsel submitted that the evidence was unfairly obtained and should be excluded under s 30 of the Evidence Act.

Respondent’s submissions

[35] The respondent acknowledged that there can be unfairness to a motorist such that evidence of excess breath alcohol ought to be excluded pursuant to s 30 of the Evidence Act, but cautioned that this is a case-specific inquiry.10

[36] Counsel submitted that the proper inquiry ought simply to be “whether what happened had the effect of influencing the appellant away from the option of providing a blood sample”11 This is to be determined on the balance of probabilities. Counsel noted that the appellant does not question the accuracy of the breath test and there is no challenge to the police procedures in this respect.

[37] Counsel submitted that the evidence of the breath test was not improperly obtained. There was insufficient evidence from which to conclude that any advice of delay from Constable Rakete alone influenced the appellant against choosing the blood test. Motorists have a statutory right to choose a blood test if their breath alcohol exceeds the statutory limit, but that right does not extend to having the test done immediately. Here the appellant’s evidence was that he would have chosen to have the blood test if it had been available to him straight away. He was not asked how long he was prepared to wait. There was no evidence before the Court that the appellant could have been processed promptly and that any time estimate the constable provided was inaccurate. The Court is being asked to rely on speculation.

[38] It was further submitted that if the Court were to conclude that the evidence was improperly obtained because there was unfairness to the appellant the evidence

10 _{Muggeridge v Police.}

11 Muggeridge v Police at [17].

should not be excluded because this would be a disproportionate response to the breach.

[39] Counsel referred to the comment by the Supreme Court in Aylwin v Police:12

Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences. The Courts must give full effect to that clear Parliamentary indication.

Discussion

[40] In Aylwin v Police the Supreme Court said:13

It follows that, in order to establish the charge under s 56(1) against Mr

Aylwin, the prosecution was required to establish only:

(a) the fact that a breath-screening test was conducted; (b) the fact that an evidential breath test was conducted; (c) the results of these tests; and

(d) that Mr Aylwin was advised of his right to have a blood test.

[41] There is no dispute in this case in respect of factors (a), (b) and (c). Nor is there any dispute that Mr Sutton was advised of his right to have a blood test in accordance with s 70A. The appellant’s submission is that Constable Rakete’s advice to the appellant as to the time delay in taking the blood test resulted in unfairness to him such that his right to a blood test was not adequately facilitated.

[42] In Muggeridge v Police, the appellant was informed that blood test results tended to be higher than breath test results. It was clear that this directly influenced the appellant’s decision not to elect a blood test, as she considered that it would only serve to increase her culpability.

[43] Woodhouse J said:14

But questions of admissibility may also arise even though the conduct in question is not blameworthy. The question in this case is whether what

12 _{Aylwin v Police at [17].}

13 _{At [14].}

14 At [17].

happened had the effect of influencing the appellant away from the option of providing a blood sample. There was clear evidence in this case that the effect of the information provided to the appellant – about the police officer’s understanding of the result of blood tests – was to persuade the appellant not to elect to provide a blood sample.

[44] Woodhouse J considered that the information conveyed led the appellant to be “only partially informed, if not misinformed”,15 and that notwithstanding the officer’s good faith, the communication resulted in unfairness to the appellant. The Judge then proceeded to consider whether the proper response of the Court was to exclude the evidence under s 30 of the Evidence Act. He concluded that exclusion was the proportionate response becuase s 70 is an important right, the offence under s 56 “is not particularly serious if weighed in relation to the full range of offences in the Crimes Act and other enactments”, and the evidence that would otherwise be admissible (the evidence from the evidential breath test), is decisive.16

[45] In Neiman v Police,17 the appellant was advised of the results of his breath test and told that he had 10 minutes within which to elect a blood test. He was given a form, but was not told that he had to do more than sign the form to effectively elect a blood test. The appellant sat with the officer for 10 minutes, after which the officer notified him that it was too late to request a blood test. Simon France J allowed the appeal on the basis that the appellant had not been adequately informed of how to make his election.

[46] Muggeridge v Police and Neiman v Police both involved an officer who had unfairly intervened in the motorist’s decision-making process by misinforming the motorist as to an essential aspect of his or her right to elect a blood test. In Muggeridge v Police, the officer did not accurately explain the consequences of an election. In Neiman v Police the officer did not properly explain how to make the election.

[47] In this case Mr Sutton was properly advised about his right to make the election to have a blood test, the nature of his right and the steps he needed to take to

_{exercise that right. There is no suggestion of an element of bad faith or that the}

15 _{Muggeridge v Police at [21].}

16 _{At [24]-[26].}

17 Neiman v Police.

constable provided inaccurate or misleading advice. The Judge was correct to distinguish those cases on their specific facts.

[48] In this case the proposition for the appellant is that his sighting of a blood taker in the bus after he had made his decision not to elect a blood test, imposed an obligation on Constable Rakete to ascertain whether his estimate of time delay was correct.

[49] The situation may well have been different if, against the background of the appellant’s concern about delay, the appellant had drawn Constable Rakete’s attention to the presence of the blood taker in the bus, or if there was evidence that the constable was aware of the blood taker’s arrival. It would then have been incumbent upon Constable Rakete to make further inquiries to ensure that the information he had provided about delay was correct, and to correct it if necessary. However, as there is no evidence that the constable was aware of the presence of the blood taker or that the blood taker was available to give the appellant a blood test promptly, the appellant’s contention that he was misled about the availability of a blood test cannot be supported. He made his election on the basis of advice provided in good faith by Constable Rakete which, on the available evidence, was not misleading. The appellant’s evidence on this aspect is equivocal. There was no evidence to support an inference that the presence of a blood taker giving a blood test to another person, meant that Mr Sutton could be tested straight away or promptly. There can be no onus on the prosecution to rebut a matter of mere speculation by the appellant. To adopt the phraseology in R v Livingston,18 the point has not properly been put in issue.

[50] Evidence that is obtained unfairly is evidence improperly obtained in terms of s 30 of the Evidence Act.19 As the Judge said, given that the evidence was not improperly obtained, the assessment under s 30 was not required.

_{[51] This ground of appeal fails.}

18 _{R v Livingston.}

19 Section 30(5)(c).

Issue 2: Certificate of Compliance

[52] Under s 75A of the Land Transport Act a certified copy of a certificate of compliance is mandatory at a defended hearing for an offence involving excess breath alcohol recorded by a breath-testing device.20 A certificate of compliance or a certified copy of it is for all purposes conclusive evidence of the matters stated in the certificate.21 In the absence of proof to the contrary a document purporting to be a certificate of compliance must be treated as such.22

[53] In this case the police volunteered an instrument of authorisation which on its face had no link to the certified copy of the certificate of compliance. The Judge held this instrument to be irrelevant and that the certified copy of the certificate of compliance provided conclusive evidence in terms of s 75A.

[54] The appellant submitted that the instrument of authorisation is evidence which suggests the signatory on the certificate was not of a person in fact authorised to sign it, and thus the certificate is inadmissible.

[55] No issue is taken by the appellant with the certificate of compliance itself. As the Judge stated, it is a certificate of compliance for a Seres ethylometre model

679ENZ breath-testing device No 3018. It is signed by Mereana Joan Moore who is stated to be a person employed by the Institute of Environmental Science & Research Limited and authorised for the purpose by the Minister of Research, Science and Technology.

[56] A green sticker attached to the certificate of compliance states:

I, Bruce Behrent certify that the affixed document is a true copy of the original Certificate of Compliance.

DATED the 16th day of December 2010.

_{Signed “B Behrent”}

20 _{Section 75A(2).}

21 _{Section 75A(3).}

22 Section 75A(4).

A person authorised by an Assistant Commissioner, the delegate of the Commissioner of Police acting pursuant to s 75A(2) of the Land Transport Act 1998.

[57] The issue therefore is whether the instrument of authorisation which gives authority to a person other than Mr Behrent, provides “proof to the contrary” such that the document cannot purport to be a certified copy of the certificate of compliance.

[58] In Police v Kiel23 the sticker on the certificate of compliance was signed by a person stated to be authorised under s 75A(2), but the signature was contained within the sticker and did not extend on to the certificate. Judge Kean concluded that the provisions of s 75A(4) overcame the alleged defect:24

The phrase “proof to the contrary” has been discussed in various cases under other provisions. None appear to be directly on point as they deal mainly with mistakes made within the Certificate itself. What is clear is that “proof to the contrary” is a higher standard than “evidence to the contrary”, (see Hilton v Police (High Court, Wellington AP 10501, 23 August 2001). The test referred to in Hilton is whether the defence evidence is sufficient to discharge the burden of proving, on the balance of probabilities, that the certificate on its face is wrong. Of course, I repeat, this case concerns certification rather than the content of the certificate itself. Despite Constable Gold acknowledging that he did not see the certifier physically place the sticker on the Certificate, I do not consider this qualifies as positive proof that the certifier did not do so. For that matter I cannot know if the sticker was signed by the person named on it or whether or not he or she had the authority of the Commissioner to certify.

[59] As in this case, the issue in the Police v Kiel related to the certification rather than the certificate itself. The appellant submitted that the provision by the police of the instrument of authorisation “muddied the waters” and introduced a level of doubt about the credentials of Bruce Behrent to certify the certificate of compliance which must be resolved in favour of the appellant.

[60] Counsel referred to Cross v Ministry of Transport25 where Speight J noted that in order to qualify for admissibility “on what would otherwise be a hearsay matter, strict compliance with the permissive section is ... required”. In Cross, an

_{unauthorised person had signed the certificate in issue.}

23 _{Police v Keil [2003] DCR 636.}

24 _{At [15].}

25 Cross v Ministry of Transport HC Auckland AP62/88, 5 September 1988.

Reynolds27 as authorities in support of their submissions. These cases address documentary hearsay in a context where there was an error on the face of the certificate itself. In Brown v Auckland City Council the certificate stated that it was issued by one person but was signed by another. In Police v Reynolds, the certificate was illegible but appeared to have been signed by someone other than the approved analyst.

[62] In this case the certificate of compliance is sufficient on its face and includes evidence as to the authority of the person who signed it, Mereana Joan Moore. Under s 75A(4)(b) the certificate is conclusive evidence of the sufficiency of the authority of that signatory.

[63] The instrument of authorisation disclosed by the police, ostensibly in support of the authority of Mr Behrent who certified the certificate of compliance as a true copy, clearly does not evidence his authority to certify the certificate of compliance. It appears to bear no relationship to the certification on the certificate of compliance or the certifier, Mr Behrent. However, no evidence of the authority of the certifier is required under s 75A. The instrument of authorisation may thus be regarded as irrelevant to the certificate of compliance and its certification. As Judge Moses held, at best it could suggest some doubt as to the authority of the person who signed the

certificate, Mr Behrent, but it falls well short of providing “proof to the contrary”.28

[64] In the absence of proof that Mr Behrent did not have authority to certify the certificate of compliance, the certificate of compliance and its certification by Mr Behrent must be treated as a certified copy of the certificate of compliance in terms of s 75A(4)(a).

_{[65] This ground of appeal also fails.}

26 _{Brown v Auckland City Council HC Auckland M681/85, 1 August 1985.}

27 _{Police v Reynolds HC Invercargill AP16/99, 7 September 1999.}

28 Police v Kiel at [15].

[66] The appeal is dismissed.