Chadderton v Police [2013] NZHC 2672 (14 October 2013)

Last Updated: 22 October 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-157 [2013] NZHC 2672

BETWEEN	ISSAC JOHN CHADDERTON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	8 October 2013
Appearances:	D H P Schellenberg for Appellant L M Mills for Respondent
Judgment:	14 October 2013

_{JUDGMENT OF KEANE J}

This judgment was delivered by on 14 October 2013 at 4.30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland

CHADDERTON v POLICE [2013] NZHC 2672 [14 October 2013]

[1] On 3 April 2013 Issac Chadderton was convicted in the District Court, Auckland of driving on 20 February 2011 with an excess breath alcohol proportion. It was 654 micrograms of alcohol per litre of breath. On 22 May 2013 he was fined

$500 and disqualified for six months.

[2] On this appeal against his conviction Mr Chadderton contends that, while he was subject to the statutory assessment procedure, he was arbitrarily detained twice. That first happened, he contends, when he was detained for five – ten minutes immediately after he failed the breath screening test and had been required to accompany the administering officer to the North Shore Policing Centre for further testing. A more senior officer was then taking a statement from a proposed witness. Then, he contends, he was arbitrarily detained for up to 30 minutes on the way to the policing centre, while the two officers responded to a road safety issue.

[3] In his decision under appeal Judge Dawson considered only the second of those periods. He did not consider the first and appears not to have understood that it was in issue. The only question he had to decide, he said, was whether Mr Chadderton was arbitrarily detained on the way to the policing centre. He held that he was not. In that certainly, Mr Chadderton contends, the Judge erred in law.

[4] In resolving this appeal I will consider whether, as Mr Chadderton contends, he was unlawfully detained in both instances. I have also to consider another issue that the Judge did not have to resolve: whether, even if Mr Chadderton was detained unlawfully, the evidential breath test result remained admissible under s 30 of the Evidence Act 2006.

Evidence at hearing

[5] At 5 am on 3 April 2013, according to the evidence, a security guard at Massey University, Albany, responded to a sounding alarm. As he did so he noticed a car parked within the campus precinct that had not been there a quarter of an hour before. After responding to the alarm he returned to that car.

[6] The guard found that the car’s engine was still running, that the headlights were on and that the driver, Mr Chadderton, secured by a seat belt, was slumped over

the steering wheel. He saw empty beer bottles in the car and one between Mr Chadderton’s legs. He smelt alcohol on Mr Chadderton’s breath. He considered Mr Chadderton still obviously intoxicated.

[7] The guard engaged the handbrake and took the keys from the ignition. He telephoned the police. Before the police arrived Mr Chadderton awoke and asked for the car keys. The guard refused to hand them over. Then, at 5.50 am, two constables arrived.

[8] The more senior constable spoke to the guard and while he was doing so Constable Fahy, at 6.01 am, required Mr Chadderton to undergo a breath screening test. At 6.03 am, when the result was ‘fail general’, he told Mr Chadderton of this and required Mr Chadderton to accompany him to the North Shore Policing Centre for further testing. He also advised Mr Chadderton as to his rights.

[9] The more senior constable was then still taking the guard’s statement and they did not leave the campus for perhaps five – ten minutes. Then, though the policing centre was only some 5.7 kilometres away, they did not arrive there until

6.51 am. At the Greville Road roundabout, next to the motorway, a short distance from the centre, the officers were confronted with a broken down van. They considered it posed a road safety risk. Constable Fahy remained in the car with Mr Chadderton. The more senior constable saw to the removal of the van from the lane in which it then remained. In the event that took 30 minutes.

[10] Why it took as long as it did is not in evidence. Constable Fahy was not asked that question. He did agree that it would have been easy to call up another patrol car to assist and that this would have freed him to take Mr Chadderton to the policing centre. He was not asked why he did not and he did not say.

Decision under appeal

[11] The Judge accepted that Mr Chadderton was detained at the roundabout for up to 30 minutes, and that neither constable attempted to obtain help from any other officers to resolve the road safety issue. The sole question he had to decide, the

Judge said, was whether that detention was in breach of s 22 of the NZBORA 1990. He held that it was not.

[12] The Judge first identified two cases in which motorists had been held to have been detained unreasonably, if not arbitrarily. In one, Auckland City Council v Larsen,1 the officer, taking the appellant to a municipal building for testing, responded at high speed to a call to assist a colleague. Smellie J held that this involved an ‘offhand disregard’ of the appellant’s rights, causing him anxiety and exposing him to some danger. In the other, Mantell v Police,2 the delay resulted from the police not having a working testing device, Goddard J held that this involved ‘disregard of clearly defined rights’.

[13] The Judge distinguished both of these cases. In this present instance, by contrast, the Judge held:

The circumstances that caused the delay were not of the police’s making. While en route to the police station, they came across a hazard that was a danger to human life and property. They would have been derelict in their duties if they had not stopped and dealt with the situation immediately.

[14] The Judge held also that this delay did not prejudice Mr Chadderton’s

delayed evidential breath test. But he did say this:

With the benefit of hindsight, Constable Fahy agreed in his evidence that a request for another police vehicle to come and collect the defendant could have been made. At the actual time, Constable Fahy had no way of knowing how long the stop at the Greville Road roundabout would take. Nor is it known if another police car would have been available if that request was made.

Had the delay been much longer, it would have been incumbent on the police to have tried to find other ways of transporting the defendant to the police station. But taking into account all the circumstances of the delay I find that in this case it was not unreasonable so as to amount to a breach of the defendant’s rights pursuant to s 22.

Arbitrary detention and reasonable compliance

[15] Whether Mr Chadderton was detained arbitrarily, in breach of s 22 of the

_{NBORA 1990, depends on whether, in detaining Mr Chadderton in these two}

1 _{Auckland City Council v Larson [1987] 2 NZLR 583 (HC).}

2 Mantell v Police HC Wellington AP95/01, 12 June 2001.

instances, the officers failed to comply strictly or reasonably with s 69(1) of the Land

Transport Act 1998.

[16] Section 22 NZBORA 1990 secures the liberty of the person. It affirms that

‘everyone has the right not to be arbitrarily arrested or detained’; and so the issue is, as it was expressed in Neilsen v Attorney-General,3 whether in the two instances identified Mr Chadderton’s detention was ‘capricious, unreasoned, without reasonable cause ... (and) made without reference to an adequate determining principle or without following proper procedures’.

[17] A detention that is initially lawful can become unlawful if it becomes disproportionate in length to the purpose for which the power to detain is conferred.4

And that is the issue that arises here.

[18] It is undisputed that the constable detained Mr Chadderton lawfully under s 69(1) of the Land Transport Act, once Mr Chadderton failed the breath screening test. It is undisputed that Mr Chadderton then came under a duty to accompany the constable to the policing centre and to participate in the complete testing process.5

Had he failed to comply, the constable had a power of arrest.6

[19] Strictly speaking, however, s 69(1) only entitled the constable to detain Mr Chadderton in order to take him to the policing centre. It did not permit him to detain Mr Chadderton for any other purpose. In that strict sense the constable may have exceeded his s 69(1) power in each of the two instances of which Mr Chadderton complains. But that is where s 64(2) of the Land Transport Act 1998 comes into play. It says this:

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.

3 _{Neilsen v Attorney-General [2001] 3 NZLR 433 (CA).}

4 _{Zaoui v Attorney-General [2005] 1 NZLR 577 (CA) at [175].}

5 _{Land Transport Act 1998, s 69(5); see also Rae v Police [2000] 3 NZLR 452 (CA).}

6 Land Transport Act 1998, s 69(6).

[20] Section 64(2) is a saving provision that is to be applied liberally. To be weighed in the balance is the extent to which there has been non-compliance against

‘any real possibility of prejudice to the defendant’.7 Both are highly material.

[21] At this point the inquiries under s 22 NZBORA and ss 69(1) and 64(2) of the Land Transport Act merge. 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. As the Supreme

Court explained in Birchler v New Zealand Police:8

A failure to comply with s 69(1) means that a prescribed pre-condition for requiring a person to accompany an officer in order to undergo and evidential breath test has not been met. There has not been compliance with s 69. Such non-compliance will provide a defence to a breath or blood alcohol charge under s 56 unless, in terms of s 64(2), there has been reasonable compliance ... if what has occurred does not pass must as strict or reasonable compliance with s 69, there ... (is) no lawful basis for ... what followed thereafter.

[22] Where that condition precedent has not been met that is an end of the matter. There is no ability under s 30 of the Evidence Act 2006 to admit the evidential breath testing result nevertheless. As the Supreme Court said:9

The statutory scheme provides in s 64(2) for its own limited dispensation from the very specific requirements of Part 6 and it would be quite inconsistent with s 64(2) if, notwithstanding a finding of a lack of reasonable compliance, and therefore of the existence of a defence, the Court could nevertheless proceed as if there had been simply a question of admissibility of the breath or blood test evidence obtained following the breath screening test, and have resort to s 30 of the Evidence Act.

[23] The only issue with which I am concerned, therefore, is whether throughout the constable did comply at least reasonably with s 69(1) in his exercise of that

_{power of detention. Whether the detention was for a reasonable length of time, as}

7 _{Police v Tolich [2003] NZCA 134; (2003) 20 CRNZ 150 at [24].}

8 _{Birchler v Police [2010] NZSC 109 at [17].}

9 At [17].

Cooke P said in Po v Ministry of Transport,10 is always ‘a matter of fact and degree in each case’. As he then said, ‘the Courts cannot lay down hard and fast rules when Parliament has not done so’. A detention will be reasonable where it is necessary ‘to enforce the policy of the Act’. Otherwise it may amount to an abuse of power.

Conclusions

[24] The first delay on which Mr Chadderton relies, at most five – ten minutes at the Massey Campus, does not seem to me to have been unreasonable or inconsistent with the s 69(1) power.

[25] To resolve whether they were entitled to rely on the breath screening test result, the officers had also to ensure that Mr Chadderton had driven while in that state. Apart from what he said himself, they needed to know what the security guard had to say. In this they were prescient. That proved to be Mr Chadderton’s first defence point at the summary hearing. The delay in itself was brief.

[26] The lengthier delay at Greville Road is more problematic. As the Judge held, the officers had to stop to sort out any risk to road safety immediately confronting them. They would have been derelict otherwise. Had they been able to sort it out straight away, Mr Chadderton could have no cause for complaint. But once that began to take time, the constables could and should have called for help, to free them to take Mr Chadderton to the policing centre. It is surprising that they did not do so.

[27] That failure cannot be assessed adequately on the evidence as it is without being speculative. But what is clear, as the Judge held, is that the officers were acting in good faith. Also that the delay entailed did not, when Mr Chadderton did undergo the evidential breath test, work to his disadvantage. These two considerations, I consider, entitled the Judge to hold as he did that Mr Chadderton was at no time detained arbitrarily.

[28] Like the Judge, however, I consider that there had to be an end point to that analysis. Had the delay at the roadside extended much longer, Mr Chadderton’s

10 Po v Ministry of Transport [1987] 2 NZLR 756 (CA) at 759.

detention would have become arbitrary. The officer would have ceased to comply reasonably with his s 69(1) powers and that would have rendered null the breath test result. Like the Judge, I consider that it only just remained within tolerable grounds.

_{As it is I see then no error in the Judge’s decision and I dismiss the appeal.}

P.J. Keane J