Dennehy v Police [2014] NZHC 1191 (29 May 2014)

Last Updated: 13 June 2014

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2014-418-000006 [2014] NZHC 1191

MADELEINE THERESE DENNEHY

v

_{NEW ZEALAND POLICE}

Hearing:	29 May 2014 (Heard at Christchurch)
Appearances:	D J Taffs for the Appellant (via audiovisual link) M A V Raj for the Respondent
Judgment:	29 May 2014

_{JUDGMENT OF PANCKHURST J}

The issue

[1] Ms Dennehy appeals against a conviction for driving with an excess blood alcohol level. The sole ground advanced in support of the appeal is whether a breath screening test was properly obtained when the constable went onto the property of the appellant in order to require a breath-test. The central issue is whether the officer had an implied licence to enter the property and conduct that test.

The facts

[2] The events occurred on 2 June 2013, a little after 2.00 am in the morning. The constable was parked on the roadside of a street in Hokitika. There was a hotel nearby. He observed a car which was driven by Ms Dennehy driving down the road and proceeding into Revell Street and driving a short distance of a few houses before

_{turning into a driveway. In all, he observed the car on the roadway for something in}

DENNEHY v NEW ZEALAND POLICE [2014] NZHC 1191 [29 May 2014]

the order of 100 metres or so. At some point the officer activated his patrol lights to indicate that he would like the car to stop. It did not, but rather drove quite slowly for the short distance before executing the left-hand turn into the driveway and stopping.

[3] The officer accepted in the course of cross-examination that there was nothing untoward in the appellant’s driving, although he did comment that the car was proceeding at a slow pace. He spoke to the appellant in the driveway after she disembarked from the driver’s side. To a question, she acknowledged that she had been drinking. He required her to provide a breath screening test without delay. It was positive. Subsequently, a blood sample was given and on analysis it returned

140 milligrams of alcohol per 100 millilitres of blood.

The District Court hearing

[4] The case was heard at Greymouth and Judge O’Driscoll conducted a voir dire concerning the admissibility of the breath screening test. He determined that the evidence was admissible. In light of the ruling Ms Dennehy entered a plea of guilty, subject to her right of appeal, and was duly sentenced. Her sentence has been deferred pending the resolution of the present appeal.

[5] The essence of the Judge’s decision is contained in paragraph 28. He said

this:¹

In my view the constable was on the private property legitimately. He had followed the defendant on to the property. He was on the property in pursuit of the vehicle. He was on the property subject to the implied licence and I find that at no stage did he exceed the implied licence and at no stage was the implied licence revoked. The officer was not at any stage in my view a trespasser. In those circumstances I find that what the constable did was legal, was legitimate. The subsequent breath screening test was not illegally obtained or improperly obtained in accordance with the High Court decision Police v McDonald. In those circumstances I find that the breath screening test was properly obtained.

[6] I note the reference to pursuit of the vehicle. As Mr Taffs has rightly pointed out, the constable did not assert that this was an occasion of fresh pursuit in terms of

_{s 119 of the Land Transport Act 1998. Under that section there is an express power}

¹ Ruling of Judge O’Driscoll, Police v Dennehy, 3 March 2014 at [28].

to enter property with force if necessary where a drink-driving offence is suspected and a pursuit has actually occurred. In this instance, the officer accepted that there was no pursuit in terms of the section, given that there was such a short distance available within which the motorist could have stopped when he activated the patrol lights. Instead, he realistically accepted that he was reliant upon an implied licence.

The submissions

[7] What then is the basis of the appeal? I supposed when I came onto the bench that the essence of the appeal was that Mr Taffs would advocate that I should follow the decision of O’Connor v Police,² which reached a conclusion that the use of implied licences in the present context is limited.

[8] Subsequent to O’Connor, the decision in Police v McDonald³ was given in

2009. Indeed, that was an appeal by way of case stated and represented a direct response to the judgment in O’Connor. It culminated in a decision of Dobson J, in which he reached what I would term a more conventional view concerning the ambit of an implied licence to enter upon private land. It will be evident that Judge O’Driscoll in the present case was influenced by the McDonald judgment, because he made reference to it in the passage I have quoted. I take it from this that he preferred the approach in McDonald to that in O’Connor.

[9] Despite this background, and my understanding that I would be confronted with an argument in favour of following O’Connor, Mr Taffs advanced a rather different argument. He referred to the Supreme Court decision in Tararo v R,⁴ a case decided in 2010. It concerned whether the implied licence doctrine availed a police officer who went onto a private property believed to be operated as a tinnie house. He had a concealed camera. His purpose was to secure evidence of a cannabis sale to support a prosecution. The evidence was held to be properly obtained and hence

_admissible.

² _{O’Connor v Police [2010] NZAR 50 (HC).}

³ _{Police v McDonald [2009] NZHC 2025; [2010] NZAR 59 (HC).}

⁴ Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145.

[10] The main judgment delivered on behalf of four members of the Court was given by Tipping J. Of importance for present purposes is this passage at para 14:

Against that background we would formulate that licence in the following way. Members of the public, including police officers, may go to the door of private premises in order to make enquiry of an occupier for any reasonable purpose. In the course of doing so they may take photographs, if to do so is reasonable in order to accomplish that purpose. Police officers may avail themselves of this licence for law enforcement purposes. But they cannot invoke the licence to do anything that by law requires a warrant. (emphasis added)

[11] Mr Taffs focused upon and emphasised the reference to “reasonable purpose” in the third line of the quotation. He then compared the facts of this case to those in both O’Connor and McDonald. In both there was evidence to show that the defendant was in all probability intoxicated when the officer proceeded to go onto the defendant’s land in order to invoke the blood alcohol procedures. By contrast, Mr Taffs submitted the present is a simple case of a random test. The officer did not suggest that there was anything in the appellant’s conduct to indicate she was intoxicated. The only thing he could rely upon was the positive answer to the question, “Have you been drinking?” So this distinction was established and, as I have said, emphasised.

[12] Mr Taffs then submitted that an enquiry by a visitor onto private land in reliance upon a implied licence must be “reasonable”. He further argued that where the request for a breath screening test was purely random in nature it should not be regarded as reasonable. The test is, in his words, a coercive power and the net result of a test can be, depending on its result, that the defendant is incriminated and in this situation while on their own private property. Hence, the argument continued, this was not a reasonable enquiry as defined in Tararo.

[13] As I commented in the course of argument, my appreciation has previously been that what is required is that the purpose of the visitor onto private land is lawful. I acknowledge, however, that the word “reasonable” was substituted by Tipping J in the passage to which I have referred. That case, I note, was argued in part by reference to the New Zealand Bill of Rights Act, in particular s 23 where the test of reasonableness is used in relation to search powers.

[14] I turn then to the decision in McDonald. The essence of the decision is contained at para 36. Dobson J said this:⁵

The existence of the implied licence is not contentious. 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 the property.

Those three sentences, I think, are enough for the purposes of this case. They describe the nature and extent of the licence. In my view, this passage correctly states the law in this country and, with respect, I doubt the different test arrived at in O’Connor. I note that Dobson J referred to a lawful enquiry, but even if Mr Taffs is correct in substituting in terms of Tararo that the enquiry must be reasonable, I cannot see that this makes any difference.

[15] I do not accept the proposition that because the traffic officer has embarked upon a random breath-test enquiry that his conduct should be characterised as unreasonable. Certainly, it cannot be called unlawful, because he had a lawful right to do as he did. It is noticeable that in the quoted passage from Tararo Tipping J referred to lawfulness as well, although he also used the phrase “reasonable purpose”.⁶

[16] The rationale for an implied licence has been variously described. I prefer the explanation that the common law has simply embraced the reality that many people in Western countries accept the right of others to come onto their land to communicate with them, provided the visitor’s enquiry is both reasonable and lawful. Often the visitor will need to knock on the door to initiate their enquiry, but I need not venture into the limitations upon entry into the dwelling itself. On the other hand some property occupiers elect to exclude visitors, whether by a locked gate, a sign, or some other device. But absent such indicators of exclusion, an implied

_{licence to enter exists at common law.}

⁵ _{Police v McDonald [2009] NZHC 2025; [2010] NZAR 59 (HC) at [36].}

⁶ Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145 at [14] and [23].

Conclusion

[17] For these brief reasons I am not persuaded that there is any basis to differ from the decision reached by Judge O’Driscoll. In my view, McDonald was correctly decided and states the law as it is in this country. Application of that decision to the facts of this case is necessarily decisive. Accordingly, the appeal must be dismissed.

Solicitors:

D Taffs, Barrister, Westport

Raymond Donnelly & Co, Christchurch