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High Court of New Zealand Decisions |
Last Updated: 26 April 2018
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV 2017-404-200
[2018] NZHC 722 |
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BETWEEN
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LEE OMAR TORRES-CALDERON
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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14 November 2017
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Counsel:
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H Leabourn for Appellant M Mortimer for Respondent
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Judgment:
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19 April 2018
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JUDGMENT OF DUFFY J
This judgment was delivered by me on 19 April 2018 at 11 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors/Counsel:
H Leabourn, Barrister, Auckland Meredith Connell, Auckland
TORRES-CALDERON v NEW ZEALAND POLICE [2018] NZHC 722 [19 April 2018]
[1] Following a Judge-alone trial in the Auckland District Court the appellant, Mr Torres-Calderon, was found guilty of driving with excess breath alcohol.1 At sentencing he sought a discharge without conviction. However, he was convicted and sentenced to pay a fine of $650, Court costs of $130, and was disqualified from holding or obtaining a driver’s licence for six months.
[2] Mr Torres-Calderon appeals against the conviction and the Judge’s refusal to grant a discharge without conviction.
Facts
[3] Mr Torres-Calderon is from Peru. In January 2016, he was living at Rannoch House as an artist in residence. At around 1 am on 11 January 2016 Mr Torres- Calderon was driving home when his vehicle collided with the rock wall at the entrance to Rannoch House, 77 Almorah Road, Epsom, Auckland. He injured his knee but was still able to make his way on foot into Rannoch House. Once inside he complained about the pain in his knee. Another person who was residing at Rannoch House called the St John Ambulance. The Police also went to Rannoch House. It is not clear to me from the evidence if this was the result of someone at Rannoch House calling the Police or whether the call to the St John Ambulance prompted Police attendance as well. Constable Skelton, who was the police officer who attended this incident said he was called to attend a vehicle collision in Almorah Road.
[4] Rannoch House is owned by the Wallace Arts Trust. Graeme Burton is a film producer for Wallace Productions Limited and an arts liaison for the Wallace Arts Trust. In the latter role, he has access to security film footage of passages in Rannoch House. By the time of the trial the film footage of 11 January 2016 had been wiped. However, Mr Burton recalled seeing Mr Torres-Caldron on film in the entranceway to Rannoch House at between 12.20 am and 12.30 am.
[5] Thomas Price, who was also residing at Rannoch House at the time, said in evidence that he gave Mr Torres-Calderon a large glass of red wine before the arrival
of either the St John Ambulance or Constable Skelton. Mr Price said that he thought the collision had occurred on the way into the driveway of Rannoch House and he saw nothing wrong with giving Mr Torres-Calderon a glass of wine.
[6] Constable Skelton received notice of a single vehicle incident at 1.08 am and arrived at the scene at around 1.25 am. An ambulance officer, who was on the roadside when Constable Skelton arrived at their address, directed and accompanied him to Mr Torres-Calderon’s location.
[7] Mr Torres-Calderon was in his bedroom at Rannoch House along with a civilian male. The bedroom has a door that leads directly to the outside area of Rannoch House. Another ambulance officer was present treating Mr Torres- Calderon’s injury, which consisted of a minor laceration to his left knee. He did not require hospital treatment. Constable Skelton and the ambulance officer entered the bedroom from the outside through an external door. Constable Skelton could not recall if Mr Torres-Calderon was seated on the bed or a chair close by. However, he understood he was in Mr Torres-Calderon’s bedroom. Constable Skelton believed he had authority to enter the bedroom and make enquiries of Mr Torres-Calderon because of the vehicle collision.
[8] Once Constable Skelton learned that Mr Torres-Calderon had consumed alcohol before driving the vehicle Mr Torres-Calderon was asked to undergo a passive breath test, which he did. Because this test registered alcohol Constable Skelton then asked Mr Torres-Calderon to undergo a breath screening test without delay. He was also told he would be arrested if he did not complete this test. The test was taken and it showed a result which triggered the requirement for an evidential breath test. Mr Torres-Calderon was then told he was required to accompany Constable Skelton to the Police station to undergo the evidential breath test. Then he was given his rights under the New Zealand Bill of Rights Act 1990. He went to the Police station.
[9] At the Police station an evidential breath test was carried out under procedures which are not challenged. The result was a reading of 534 micrograms of alcohol per litre of breath, which is over the legal adult limit.2
2 The adult legal limit is a level that does not exceed 400 micrograms of alcohol per litre of breath.
[10] Mr Torres-Calderon said in evidence that when he was asked to undergo the breath test he did not realise he could ask Constable Skelton to leave or refuse to take the test. Mr Torres-Calderon said he thought Constable Skelton had “total authority”.
[11] The incident occurred at an emotionally traumatic time for Mr Torres- Calderon. It was the second anniversary of the death by suicide of his former partner. He had gone out for the evening and while out he had shared a bottle of wine and a meal with a companion. He was emotionally upset on his return to Rannoch House.
District Court proceedings
[12] The Judge found that Constable Skelton had an implied right of entry into Mr Torres-Calderon’s bedroom.3 The Judge held that the purpose of the entry related to Constable Skelton’s duties following attendance at an accident and, because the Constable has a duty to assist following an accident, until the implied licence to enter was revoked, he was entitled to remain to pursue his duties. The Judge referred to the fact no evidence was produced to indicate the Constable’s entry or presence in the room was challenged at the time. Instead the evidence showed that Mr Torres- Calderon did not object to Constable Skelton’s presence and readily communicated with him.
[13] The Judge found that because Constable Skelton was at all material times lawfully present at Rannoch House under an implied right of entry this meant the request for a breath screening test was also lawful.4
[14] The Judge also found that if he was incorrect in determining that the Constable’s presence was lawful, the evidence was nonetheless admissible under the balancing test in s 30 of the Evidence Act 2006. Here the Judge considered the factors in s 30(3).5
3 Police v Calderon [2017] NZDC 2271 at [26].
4 At [27].
5 At [28].
[15] The Judge concluded that after balancing all relevant factors, even if Constable Skelton’s presence at Rannoch House was unlawful he would nevertheless allow the use of the evidence.6
[16] As regards whether the request to undergo the breath screening test was an abuse of process, the Judge concluded that the power to make the request lay in s 68(1)(c) of the Land Transport Act as Mr Torres-Calderon was the driver of a vehicle involved in an accident. The period between the accident and the request was approximately one hour and 46 minutes. The Judge referred to the unchallenged evidence of Mr Torres-Calderon drinking a large glass of red wine in the intervening period, but noted his admission to the consumption of alcohol prior to driving. The Judge concluded the testing was not done for an improper purpose. Nor was it so remote from the suspected offence to make the result probatively unconnected with the charge. The Judge referred to the conclusive presumption in s 77(1) having unfair results. Nonetheless, he did not see this as a factor that warranted exclusion of the evidence.
Discharge without conviction application
[17] At sentencing, Judge Sharp declined to grant Mr Torres-Calderon’s application for a discharge without conviction.7 The Judge assessed the gravity of the offending as “not in the higher ranges” of the drink-driving offences, and concluded it was moderately serious offending because of the risks to other people on the road and road safety considerations.8
[18] The Judge noted that Mr Torres-Calderon could not get full credit for acceptance of responsibility because he contested the charges rather than pleading guilty. Mr Torres-Calderon deserved some credit in the Judge’s view for the steps he had taken to pay for the damage caused, and to address his own personal issues associated with the offending, which ameliorated the offending “towards the lower
6 At [30].
7 Police v Calderon [2017] NZDC 10164.
8 At [2]-[4].
end of the scale but still with that moderate overlay given the nature of the type of offending”.9
[19] The actual and potential consequences of conviction were assessed, with a “bad potential outcome” when the immigration authorities consider his application for residency. The Judge recognised that Mr Torres-Calderon’s ability to remain in New Zealand may be jeopardised by a conviction. He is also participating in rehabilitation in New Zealand for the consequences of the death of his former partner. These would be endangered by a conviction preventing Mr Torres-Calderon from remaining in New Zealand and returning to Peru, where he is unable to continue such rehabilitation. This humanitarian basis for concern was taken into account. Nonetheless, the Judge did not consider that the consequences of a conviction would outweigh the gravity assessed as a lower end of a moderate scale, and declined the application.
Approach on appeal
[20] The appeal is brought as of right under s 229 of the Criminal Procedure Act 2011, pursuant to s 232 of that Act. Section 232(2) provides that the appeal must be allowed if the Court is satisfied that, in the case of a judge-alone trial, the judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred,10 or that a miscarriage of justice has occurred for any reason.11
[21] Section 232(4) defines a “miscarriage of justice” as:
...any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[22] If there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong then a “real risk” that the outcome of the trial was affected will arise.12 Irregularities which “plainly could
9 At [8].
10 Criminal Procedure Act 2011, s 232(b).
11 Section 232(c).
12 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110]; Wiley v R [2016] NZCA 28, [2016]
3 NZLR 1 at [27].
not, either singly or collectively, have affected the result of the trial” are not miscarriages of justice and the appellate court must disregard them.13 However, under s 232(4)(b) if an accused person has not received a fair trial then any conviction must be set aside, and it is unnecessary to consider whether the unfairness may have affected the outcome of the trial.14
Discussion
Was the breath screening test lawfully obtained?
[23] A valid breath screening test is a pre-requisite for a police officer to require an evidential breath test under s 69 of the Land Transport Act.15 Accordingly, the key issue is whether the breath screening test taken in Mr Torres-Calderon’s bedroom was lawfully obtained.
[24] Section 68(1)(c) authorises an officer to require the driver of a motor vehicle involved in an accident to undergo a breath screening test. However, s 68 does not grant a power of entry onto private property for the purposes of exercising this power.
[25] Section 119 specifies a narrow range of circumstances in which an officer may enter private property and require the taking of a breath screening test. It is common ground that none of those circumstances applied here. There is nothing elsewhere in the Land Transport Act that permits an officer to exercise this power when on private property.
[26] The respondent acknowledges that this is not a case where s 14 of the Search and Surveillance Act 2012 could apply.
[27] It follows that Constable Skelton had no statutory authority to enter Mr Torres- Calderon’s bedroom.
13 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30]; Wiley v R at [28].
14 Wiley v R at [37].
15 See Birchler v Police [2010] NZSC 109, [2011] 1 NZLR 169 at [17].
[28] Under the common law police officers have no general right of entry onto private property for the purpose of obtaining evidence, questioning persons and making an arrest.16 Nonetheless, it is well settled that the common law gives police officers, like other members of the public, an implied licence to enter onto private property in order to communicate with the occupier. However, this licence is “closely circumscribed”; it generally extends no further than to allow those persons to proceed through the grounds to the front or back entrance of a residential building, and then either to enquire as to whether admission may be obtained, or for the enquiries that prompted the visit to be carried out at the doorstep.17
[29] The Court of Appeal in R v Meyer set out the law on implied licence as follows:18
[10] There is no dispute about the relevant principles. The police have no general right of entry onto private property for the purpose of obtaining evidence, questioning persons, or making an arrest. The entry into a private dwellinghouse will be a trespass unless there is statutory authority for the police to enter or they do so with the express or implied authority of the owner or occupier of the premises.
[11] The existence of an implied licence for members of the public (including police officers) to enter on to private property is well established.
...
[12] Summarising the principles as enunciated in Bradley generally at pp 367 to 369:
16 See discussion in King v Police [2010] NZAR 45 (HC) at [11].
17 See King v Police at [11]-[15].
18 R v Meyer [2010] NZAR 41 (CA).
[30] The above statement in R v Meyer has been regularly followed in subsequent cases. However, because the implied licence to enter onto a property extends no further than is necessary to communicate with the occupant it does not “typically extend to a right of entry into a residence or building”.19 A police officer who takes this extra step uninvited is at risk of committing a trespass.
[31] Nonetheless, the typical bounds of the implied licence to enter private property do allow for exceptions. A police officer who enters such premises uninvited will not be a trespasser if either the occupier or someone with ostensible authority gave express or implied permission for this to happen.20 Once such permission is given, a police officer can then lawfully exercise her powers, including those under s 68 of the Land Transport Act, despite being on private property.21 However, as was explained by Somers J in Howden v Ministry of Transport, if this licence is revoked before a request to take a breath screening test is made, the power to make such request ceases to be exercisable on private property.22
[32] Another circumstance that provides an exception to the general rules regarding implied licences is when the police arrive at a residence in response to a 111 call. The circumstances that can generate that type of call impute an authority for police to enter which arises from their duty to preserve life and protect citizens.23
19 R v Fraser [2005] 2 NZLR 109 (CA) at [13]; and see King v Police at [14].
20 R v Bradley (1997) 15 CRNZ 363 (CA).
22 Howden v Ministry of Transport [1987] 2 NZLR 747 (CA) at 752.
23 R v Fraser at [34].
[33] Accordingly, unless a police officer fits within a recognised exception, or the circumstances warrant the case being recognised to warrant such characterisation, the implied licence is not sufficient to authorise entry into private premises.
[34] Because Constable Skelton went into a room which he recognised to be Mr Torres-Calderon’s bedroom and spoke to him there without invitation I am satisfied this conduct went beyond the bounds of the terms of the implied licence recognised in R v Meyer. The next question is whether this entry was a trespass or permissible because Mr Torres-Calderon consented to its occurrence. Because Constable Skelton did not describe himself as responding to a 111 call I do not consider this exception to apply here. Nor do I consider the present circumstances warrant development of a separate category of exception. Neither party addressed this issue before me.
[35] Constable Skelton was taken into Mr Torres-Calderon’s bedroom by a St John’s ambulance officer who was at the roadside when Constable Skelton arrived:
Q. And how was your admission to the building obtained?
A. An ambulance officer accompanied me from the roadside, directed me to the defendant inside his bed – I believe it was his bedroom inside the house.
[36] Constable Skelton recognised the person who took him to the bedroom to be a member of the St John Ambulance Service. The ambulance officer’s presence at the roadside could not suggest he had been sent to meet Constable Skelton in order to bring him into the house. In the circumstances, the ambulance officer who took Constable Skelton to the bedroom would have been an obvious stranger to the residence. The ambulance officer was not called to give evidence.
[37] There is nothing about the above circumstances that suggests the ambulance officer had authority to consent to Constable Skelton entering the house. The circumstances suggest to me that the ambulance officer did no more than direct Constable Skelton to where Mr Torres-Calderon could be found, with Constable Skelton entering the bedroom of his own volition. Accordingly, I am satisfied there is
no reasonable basis for viewing this ambulance officer as someone who could consent to Constable Skelton entering the bedroom.
[38] Further, I consider the fact there was an ambulance at the roadside and another ambulance officer present attending to Mr Torres-Calderon, suggests there was nothing to trigger Constable Skelton’s duties to preserve life and ensure safety of citizens. Whatever injury Mr Torres-Calderon may have suffered, the fact the ambulance vehicle remained parked on the road with an ambulance officer in attendance while another ambulance officer provided treatment to an obviously conscious Mr Torres-Calderon was sufficient to indicate those officers had the situation in hand. Thus, the circumstances are distinguishable from those which confronted police in R v Fraser.
[39] Accordingly, I am satisfied that Constable Skelton was a trespasser when he entered the bedroom. Mr Torres-Calderon never expressly consented to Constable Skelton remaining in the bedroom. The next question, therefore, is whether Constable Skelton remained with the implied consent of Mr Torres-Calderon. Without such consent the trespass would continue, in which case there could be no lawful basis for Constable Skelton to require Mr Torres-Calderon to undergo the breath screening test.
[40] Whilst in principle an initial unlawful entry can be cured by the implied consent of an occupier, the application of this principle is fact specific, which explains the different results the relevant case law displays.
[41] In Howden v Ministry of Transport Cooke P recognised that “there must be some limitations on the implied licence”.24 This recognition led the Court of Appeal in Howden to find that a traffic officer could not enter private property to carry out a random check in order to see whether a person whose driving had not attracted attention had been driving with an excess breath/blood alcohol limit. No express consent was given by the occupier in Howden, and in the circumstances the Court of Appeal refused to infer an implied consent. Cooke P stated:25
24 At 751.
25 At 751.
Entering private property for random checking of a driver whose driving or other prior behaviour has given no cause for suspicion is quite a different thing. It is a very considerable intrusion into privacy. In my opinion it would not be reasonable to hold that an occupier gives any implied licence to police or traffic officers to enter for those purposes. Most New Zealand householders, I suspect, if confronted with that question would answer it No. Whether or not that suspicion is correct, it certainly could not be maintained that the answer Yes is required so clearly as to justify the Courts in asserting that such an implied licence exists.
[42] Howden has since been regarded as restricted to its facts, with the distinguishable feature being that the officer entered Mr Howden’s residence for the purpose of carrying out a random breath test check on him.26 Nonetheless, the decision remains generally relevant in its recognition of the need for some limitations on the law of implied licence, which has been described as:27
...an invention of the common law to reflect the balance between respect for an individual’s right to privacy, and the public interest in the enforcement of the criminal law.
[43] In Police v McDonald Dobson J rejected the idea that an objective reconstruction of the expectations of the reasonable objective participants in the position of both the occupier and the officer may be a useful tool in testing the boundaries of when an implied licence is to be imputed in any particular case. The Judge’s view was that “neither perspective necessarily dictates the outcome in any case”.28 I agree with that view. I consider the better approach is for the Judge to determine whether it is reasonable in all the circumstances for implied consent to be found in the case which he or she must decide. Furthermore, as I read Howden this is how Cooke P approached the matter. Accordingly, whereas other cases can provide helpful insight, ultimately each case will turn on its own facts. Whether consent to enter the premises of a private residence is implied or not will depend upon whether the Judge hearing the case decides the police officer’s otherwise unlawful intrusion can be justified on grounds of reasonableness.
[44] The case of King v Police bears some factual similarities with the present case. In King, two constables attended Mr King’s home address following a motor vehicle
26 See discussion in Police v McDonald (2009) NZAR 59 (HC) at [34]-[37]
27 Police v McDonald at [35].
28 At [35].
accident from which he had immediately decamped. A member of the public followed him to his home address and notified the police. Their arrival was seemingly in close proximity to the time of the accident. After knocking on the entrance door one of the constables went through a side gate to a courtyard at the rear of the house where he saw an open ranch slider and beyond that Mr King was standing. The police officer spoke to Mr King who was non-committal in his response to a question about his involvement in the accident. The police officer then asked Mr King for some identification. Mr King began walking upstairs to his bedroom. The police officer entered the residence and followed Mr King up the stairs. Mr King retrieved his driver’s licence and went downstairs with the police officer following him. The police officer asked Mr King to complete a breath screening test, and when he refused he was arrested.
[45] The facts in King were sufficient to persuade Winkelmann J that there was ample evidence to support the view Mr King had impliedly consented to the police officer’s presence in his home. The Judge accepted that at the time the officer entered Mr King’s home and until such time as Mr King became aware the officer was present in the home there “may have been no objectively ascertainable consent”.29 However, such absence of consent at that time could be “remedied by the subsequent consent to be inferred from the conduct of [Mr King]”.30 Accordingly, the breath testing procedures that were invoked in Mr King’s home were lawful and capable of supporting his conviction.
[46] In King the facts that seemingly supported the finding of implied consent were: Mr King’s acquiescence to the police officer remaining on the premises as well as the officer following Mr King upstairs to his bedroom and downstairs again; Mr King’s providing the officer with the evidence of identification that he had sought; as well as refraining from directing the police officer to leave the premises. There was also the fact the police officers arrived on the scene shortly after the accident. Given the circumstances of that case where Mr King was seen leaving the scene of the accident and followed to his home with the police arriving shortly thereafter, the finding of
29 See King v Police at [21].
30 At [21].
implied consent to the officer’s presence which then provided the lawful basis for him to invoke the breath testing procedures is reasonable.
[47] Police v McDonald also has similarities to the present case. In McDonald a citizen noticed Ms McDonald seemed impaired, smelt of alcohol and was driving a vehicle. The vehicle was reported to police who then visited Ms McDonald’s home. She came to the entrance door, spoke to the police officers and admitted she had recently driven the vehicle parked in her driveway. She was then asked to take a passive breath test which she failed. She then complied with the police request to accompany them to the police station for further testing. She was shown to have a blood alcohol level in excess of the adult limit. At a defended hearing she attempted to have the blood test results excluded on the ground the police officers had no lawful right to administer the breath screening test at her home. Dobson J found the circumstances in which the test was administered fitted within the “conventional scope of implied licence”.31 This was because the police arrived relatively soon after the reported incident of impaired driving, the subject vehicle was registered to Ms McDonald and it was parked at her address. The police officer believed he had an implied licence to go to her door and ask her if she had recently driven the vehicle. She admitted she had and was compliant with the breath testing procedures.
[48] Here the respondent relies on the reasoning in King and in McDonald to support Mr Torres-Calderon’s conviction. However, I am satisfied that the facts of the present case are distinguishable from both King and McDonald.
[49] In King Mr King had sufficient time to realise the police officer’s presence in his home and he willingly went to obtain his licence for the officer. In McDonald the police inquiries were made on the doorstep and Ms McDonald readily complied. She had the option of not answering the front door had she intended to avoid the police. Here Mr Torres-Calderon was seated in his bedroom having his knee attended to by a St John’s ambulance officer when Constable Skelton immediately entered the bedroom from the outside door. Constable Skelton said he spoke with Mr Torres- Calderon for approximately 15 minutes before administering the passive breath test.
31 Police v McDonald at [39]
Ordinarily, a 15 minute discussion may be sufficient to establish the occupier had impliedly consented to the police presence in his home. However, here Mr Torres- Caldron’s attention may have been diverted by the treatment he was receiving to his injured knee. In such circumstances it could take longer for an occupier to realise the full implications of a stranger like Constable Skelton being present in the bedroom.
[50] Secondly, the police officer arrived approximately one hour and a half after Mr Torres-Calderon arrived home. During this time Mr Torres-Calderon had consumed a large glass of red wine. This extraneous factor was absent in King and in McDonald. Here, but for the conclusive presumption in s 77(1) the breath screening test and the evidential breath test that followed it would have no probative value because one could not otherwise be sure the excess breath alcohol limit was caused by the alcohol that was consumed before Mr Torres-Calderon drove the vehicle.
[51] In Transport Ministry v Payn Woodhouse J realised the impact of the time gap between the driving incident and when the police officers came to the suspect driver’s home and invoked or attempted to invoke the breath testing procedures. Woodhouse J recognised that in some cases the lapse of time may be immaterial whereas in others, such as where an intervening act may skew the results, the lapse of time may be very material:32
In one case the lapse of an hour or so following upon the driving occasion would not only be explicable in terms of delay but it could reasonably be thought that no extraneous factor could have intervened during that interval of time to complicate the test or render the breath specimen an unfair indication of the man’s condition on the earlier and relevant occasion. In a different case the time interval could be the same but the other circumstances critically different. Take the present case. It is accepted that after the respondent had returned to his home he drank some beer and in doing so was joined by his wife. It may have been done deliberately in order to confuse any inquiry that might be made of him concerning his condition before he got back to his home. If so his conduct can be rightly criticised. But what if it were done innocently... [T]aking into account the irrebuttable nature of the presumption that arises form a positive breath test... I think the incident in general highlights the problems that could develop if the blood alcohol provisions of the Act are able to be set in motion on a hearsay basis against a man who may have gone into his own home or elsewhere and there consumed alcohol for quite innocent domestic reasons.
32 At 66.
[52] Woodhouse J’s reasoning remains relevant today. I consider the unchallenged evidence of the innocent consumption of a large glass of red wine in the home after the driving occasion is another factor that makes the application of the implied licence doctrine unreasonable in this case. This is particularly so because there is no evidence to suggest that even without the subsequent consumption of alcohol Mr Torres- Calderon would still have been over the legal adult limit. Had there been such evidence it may then still have been reasonable to find there was implied consent.
[53] Parliament has seen fit to enact the conclusive presumption in s 77(1), but it has not yet seen fit to enact statutory powers to permit a police officer to apply the breath testing procedures in circumstances like the present. That can only be done with the aid of a common law invention. Accordingly, I do not see a refusal to apply that invention, on the ground it would be unreasonable to do so in this case, as undermining Parliament’s will as regards the conclusive presumption. It is the duty of Courts to ensure common law inventions do not become instruments of abuse or oppression. This is done by Courts setting limits on the application of such inventions. The need to impose limitations on the doctrine of implied licence in the area of the alcohol breath/blood testing procedures was recognised in Payn. When the probative value of evidence obtained through reliance on implied consent can only be maintained by a conclusive statutory presumption, which could otherwise be met by unchallenged factual evidence to the contrary, this to me is one of the occasions for a limit to be imposed on the implied licence doctrine.
[54] Accordingly, I find that Mr Torres-Calderon did not impliedly consent to Constable Skelton remaining in the bedroom, and subsequently administering the passive breath test and the breath screening test. Absent such consent the administration of the test was unlawful, which in turn undermines the legitimacy of the later steps of the breath testing regime. Accordingly, the breath tests results on which Mr Torres-Calderon’s conviction rests were unlawfully obtained.
[55] I note that in Payn Cooke J observed that “in a field such as this it is of first importance that the powers exercisable against the citizen should be clear and easily
understood”.33 Cooke J also observed that the range of judicial opinion on when the breath testing procedures could be applied on private property was “too great” and suggested the law required the clarification of Parliament.34 Later in Howden v Ministry of Transport Cooke P observed that two of the judgments in Payn had drawn the attention of Parliament to this matter but nothing had been done yet to resolve it.35 Since Howden the present legislation including s 119 of the Land Transport Act has been passed. However, the limited scope of s 119 means that Courts are still faced with cases where police officers rely on the doctrine of implied licence and implied consent to support the exercise of their powers on private property.
[56] There is an implicit power dynamic that the case law does not directly address. Many ordinary citizens do not necessarily know the extent of their legal rights and obligations. The law of implied licence to enter private properties to make enquiries typically stops at the entrance to private premises. However, when that principle is then coupled with the law of implied consent to carry out breath testing procedures on private premises there is an unspoken element of compulsion, especially when the officer is acting in a way that gives the appearance he is entitled to be there. Many citizens may not know they can demand the officer leave at once, and if she does not do so she will then be a trespasser. In the present case Mr Torres-Calderon displayed an initial reluctance to undergo the passive breath test and was told he would be arrested if he did not complete the test. In such circumstances, his later compliance is understandable. Some of the case-law shows other defendants were also reluctant to undergo those tests. Yet in the face of this expressed reluctance, the law says the police officers, who directed the defendants to undergo those procedures, are nonetheless present in the defendants’ homes with their implied consent. But if at the outset the same defendants had simply told the police officers to leave the premises and cease their trespass, the law of implied licence and implied consent could not be applied. The Courts would then have to acknowledge that police officers have no legal right to be on private property to carry out their breath tests. Whilst the law of implied consent is said to operate in this field to allow the public interest in the enforcement of the
33 At 69.
34 At 69.
35 At 750.
criminal law36 the ability to achieve this end rests to a large extent on defendants’ ignorance of their legal rights. This is contrary to the idea expressed by Cooke J in Payn on the need for powers exercisable against the citizen to be clear and easily understood. The presence of s 119 has done little to clarify this area of the law. More is required.
Applicability of s 30 of the Evidence Act
[57] The District Court Judge found in the alternative that he would admit the breath test results under s 30 of the Evidence Act, had he found they were improperly obtained.
[58] However, s 30 of the Evidence Act cannot be used to admit the results of unlawfully obtained breath tests. In Birchler v Police the Supreme Court found that a lawfully obtained breath screening test is a necessary step in the statutory process for obtaining an evidential breath test. Where such process has not been followed then, unless the prosecution can establish that what occurred amounts to “reasonable compliance” in terms of s 64(2) of the Land Transport Act, the prosecution must fail.37
[59] In Birchler the non-compliant aspect of the breath testing process had occurred at the outset when the officer who attended the accident in which the defendant was involved found she had no breath screening devices available to her. So, she unlawfully required the defendant to accompany her to a police station for the purpose of taking a passive breath test and breath screening test there. The Supreme Court found that the taking of a positive breath screening test (usually at the roadside) was a prescribed statutory precondition to an order to accompany an officer to a police station for the taking of an evidential breath test. Absent that condition, the officer had no power to require the defendant to go the police station for testing. Despite the subsequent tests all proving positive for the defendant, the initial illegality was not something that could cured by “reasonable compliance”. The Supreme Court expressly rejected the view the test results could nonetheless be admitted under s 30 of the Evidence Act, finding that if the process taken does not pass strict or reasonable
36 See Police v McDonald at [35].
37 Birchler v Police at [17].
compliance it would be inconsistent with the statutory intention in s 64(2) for the prosecution to be able to rely on s 30 of the Evidence Act as if it were a mere admissibility of evidence issue.38
[60] I have found the lawful basis for requiring Mr Torres-Calderon to undergo an evidential breath test is absent. Although the circumstances are different from those in Birchler in both cases the same statutory precondition for the taking of an evidential breath test was absent. In Birchler such absence was not cured by “reasonable compliance”. I see no basis for seeing the matter differently here. Accordingly, the evidential breath test results do not comply with s 69 of the Land Transport Act. The judge was wrong to consider the application of s 30 of the Evidence Act. It follows that the conviction cannot be saved by admission of the test results via s 30.
Application for discharge without conviction
[61] The conclusions I have already reached make it unnecessary to determine this aspect of the appeal. Nonetheless, for completeness and in case I am wrong on the unlawfulness of the breath tests, I shall consider the appeal against the Judge’s refusal to discharge without conviction.
[62] Section 106 of the Sentencing Act 2002 gives the Court the discretion to discharge a person without conviction. However, that discretion is subject to s 107 of the Sentencing Act:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[63] The three-step approach required by s 107 is well settled, and has been summarised as follows:39
The Court must first assess the gravity of the offence, then identify the direct and indirect consequences of a conviction and, finally, determine whether those consequences are out of all proportion to the gravity of the offence.
38 At [17].
39 Rigg v Police [2016] NZHC 3135 at [4]; see also Z (CA447/12) v R [2012] NZCA 599, [2013]
NZAR 142 at [8].
[64] Without the s 107 test being met, the discretion to discharge without conviction under s 106 cannot be invoked. For the purposes of appellate review, the s 107 test (namely whether or not the consequences of conviction sufficiently outweigh the gravity of the offending) is a matter of fact requiring judicial assessment,40 is subject to normal appellate principles, and the appellate court can come to its own view on the merits.41
[65] When determining the gravity of the offence, it is appropriate to consider at that stage all the aggravating and mitigating factors relating to the offending and to the offender.42 This is followed by an assessment of the consequences of a conviction, which includes an analysis of the nature and seriousness of the consequences, and the degree of likelihood of those consequences occurring.43 As the Court of Appeal has noted, the “higher the likelihood and the more serious the consequences, the more likely it is that the statutory (disproportionality) test can be satisfied”.44 Regarding the likelihood of the consequences occurring, the Court only has to be satisfied that there is a real and appreciable risk of such ramifications.45
[66] Counsel for Mr Torres-Calderon submits that a conviction could have real and grave consequences in relation to his maintaining his visa and eventually acquiring permanent residency status. He has also been suffering significantly from the death of his partner and receives weekly counselling to help deal with the issues of trauma, grief, and depression with the support of the New Zealand Aids Foundation. A conviction could have a detrimental impact in this continuing. There is also the possibility that he will be unable to travel overseas, which would have a negative impact for his work as an artist and his work with the World Peace Initiative Foundation.
40 See Maraj v Police [2016] NZCA 279 at [11]; H (CA680/11) v R [2012] NZCA 198 at [30];
Edwards v R [2015] NZCA 583 at [6].
41 See Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
42 Z (CA447/12) v R at [27]-[28].
44 R v Hughes at [82]; Iosefa v New Zealand Police at [35].
45 Iosefa v New Zealand Police at [34], cited with approval in Maraj v Police at [10].
[67] The Crown oppose a discharge without conviction, submitting that immigration concerns are more appropriately left for immigration authorities to determine and that the travel-related consequences are not adequately supported by evidence to qualify as consequences of the conviction. It is said that the consequences of a conviction are not out of proportion with the offending.
[68] The gravity of the particular offending is low. Whilst drink-driving is not to be regarded lightly, it is towards the lower end of offending and Mr Torres-Calderon’s offending was of a moderate nature and not the most serious of its kind. Moreover, in light of the unchallenged evidence regarding the innocent consumption of alcohol after the driving incident, it is clear the conviction rests on the application of the conclusive presumption in s 77(1) of the Land Transport Act. This is a factor that is highly relevant to the offending in terms of the s 107 assessment. Regarding how alcohol came to be consumed after the driving incident, first the glass of wine was given to Mr Torres-Calderon by another resident, Mr Price. Secondly, at the time Mr Torres- Calderon consumed the wine there was nothing to indicate to him that approximately one and a half hours later a police officer would enter the bedroom and require him to take a breath screening test. Thus there can be no suggestion Mr Torres-Calderon consumed this alcohol in order to upset the result of a later breath test.
[69] As a general principle, it is for immigration authorities to consider whether to renew an offender’s visa having regard to the Court’s assessment of the gravity of the offending.46 While the immigration consequences are best left for the authorities, there will always be occasions where in a finely balanced case a discharge may be warranted on such grounds.47 This will be particularly so in a nuanced case, like the present, where the conviction materially results from a statutory presumption rather than actual facts to establish culpability. In such cases a Court rather than immigration authorities may be best placed to assess the seriousness of the conviction.
[70] Here the immigration dimensions of the case will have broad implications for Mr Torres-Calderon, as they may result in him losing his visa or preventing an
46 Ho v R [2016] NZCA 229 at [15].
application for permanent residency all of which would be out of proportion with his offending.48 Further, the inability to remain in New Zealand will adversely impact on the therapeutic assistance Mr Torres-Calderon is receiving regarding his former partner’s death, such assistance not being available in his home country.
[71] Accordingly, if I have erred in finding that Mr Torres-Calderon was wrongly convicted I would have nonetheless allowed the appeal against conviction on the ground he should have been discharged without conviction.
Result
[72] The appeal against conviction is allowed. The conviction entered against Mr Torres-Calderon in the District Court for driving with an excess breath alcohol limit is set aside.
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URL: http://www.nzlii.org/nz/cases/NZHC/2018/722.html