Davey v Police

JurisdictionNew Zealand
CourtHigh Court
JudgeBrewer J
Judgment Date27 August 2019
Neutral Citation[2019] NZHC 2107
Docket NumberCRI-2018-404-406
Date27 August 2019

[2019] NZHC 2107





Brewer J


Paul Gordon Davey
New Zealand Police

J W Clearwater for Appellant

M J Mortimer for Respondent

Criminal — appeal of conviction for charge of refusing to permit a blood specimen to be taken and resisting police — Constable had entered private property requiring a breath screening text — appellant had asked the Constable for a search warrant — whether asking for a search warrant amounted to trespassing the Constable

The Court held that D had delegated authority, implicit or actual, from the tenants (his ex-partner and her new partner) to control access to the property in their absence. There had been children present. The tenants, away from their home for a short time, would have expected D to act on their behalf in keeping the children and the property secure from visiting strangers. When the Constable had entered the property D, acting with the implied agency of the tenants given the circumstances, had the right to cancel the constable's implied licence to be on the property.

An implied licence may be revoked at any time, expressly or by implication. If a licence to be on private property was revoked before a request to take a breath screening test was made, the power to make such a request ceased to be exercisable on the property. D had not explicitly told the Constable to leave the property until he had been required to accompany. However, D had repeatedly challenged the Constable's presence by asking if he had a warrant which conveyed a clear intent the Constable must leave if he did not have one. In the context of the Constable mistakenly believing he had a statutory right to be on the property under the Land Transport Act 1998, the words D had used were sufficiently clear to revoke the Constable's implied licence to be present on the property. The Constable had not exercised his coercive power before he was impliedly told to go by D.

D's daughter had also had the power to tell the Constable to leave. She was 15 and lived at the property. Her mother and her mother's partner were absent and had left her in charge of the property. D's right had not displaced his daughters. She had at least challenged the Constable's presence by joining with her father in asking about a warrant before the request for a breath screening test.

H's tacit permission given to the Constable to be on the property continued throughout the period the constable engaged with D. However, that permission had been overridden by D and his daughter.

On the balance of probabilities, D had made it clear to the Constable that he should go before the Constable had used his coercive powers. The Constable had not ben not entitled to exercise his coercive powers. He was unlawfully on the property when he had done so. The Constable had not been entitled to arrest D and D's resistance to being arrested was not unlawful. Since the Constable had no lawful right to require D to undergo a breath screening test then his refusal could not found the charge

The appeal was allowed. The charges were dismissed. There would not be a re-trial.


This judgment was delivered by me on 27 August 2019 at 4:00 pm Registrar/Deputy Registrar


Mr Davey appeals convictions entered by Judge J Jelas on one charge of refusing to permit a blood specimen to be taken 1 and one charge of resisting police. 2


The nub of the appeal is that it was the police officer involved who acted unlawfully, not Mr Davey.


My task is to assess whether a miscarriage of justice has occurred. In doing so, I must reach my own view of the evidence, bearing in mind any advantage Judge Jelas had through actually seeing the witnesses. 3


There is evidence to the following effect: A car was seen driving erratically by a member of the public. The police were informed. Constable Keating was directed to investigate. A short time later he found the car parked in a driveway of a suburban home. The constable parked his police car in the street and walked up the driveway towards the car. Mr Henry, the tenant of the garage on the property (converted to a dwelling), was present. Constable Keating asked him whether he knew the driver of the car. Mr Henry's reply was to the effect he did not know the driver, but he knew the owner. Mr Henry indicated Mr Davey who was standing nearby. Constable Keating spoke to Mr Davey and Mr Davey admitted being the driver of the car. However, Mr Davey challenged Constable Keating's right to be on the property by repeatedly asking him whether he had a search warrant.


There is controversy over the order of events, and what was actually said, but at some stage Constable Keating required Mr Davey to undergo a breath screening test. Mr Davey refused, and refused to accompany the police officer for the purpose of undergoing an evidential breath/blood test. Constable Keating arrested Mr Davey and Mr Davey resisted being arrested by stiffening his body and refusing to walk.


Mr Davey was a visitor to the property. One tenant of the property (Mr Henry was a sub-tenant) was Mr Davey's ex-partner. She was absent. Mr Davey had taken to spending weekends at the property with the consent of his ex-partner. Also present was the 15-year-old daughter of Mr Davey and his ex-partner, Ms Brooke Davey. Ms Brooke Davey lived at the address and was also involved in this incident. What she said to Constable Keating was also the subject of dispute at the trial.

The issue

A police officer has the same right as any other member of the community to walk onto someone else's residential property for a lawful purpose. 4 For example, a stranger to a neighbourhood looking for a friend's address might go to the door of a house and knock with the intention of asking whether the occupant knows where his friend lives. That is not an act of trespass. However, if the person who answers the door tells the visitor to leave the property, and the visitor refuses, then the visitor is unlawfully on the property as a trespasser. Of course, that depends on the person who answered the door having the lawful authority to require the visitor to leave. 5 To illustrate through extremes, a burglar would have no such authority, but the owner of the house would.


Here, Constable Keating walked onto the property lawfully because he was there for a lawful purpose, to make inquiries as to whether the car was the one reported as being driven erratically and whether, if so, the driver was present. The issue is whether Constable Keating's implied licence to be present on the property was revoked before he started acting coercively by requiring Mr Davey to undergo a breath screening test, to accompany him for the purpose of undergoing an evidential breath/blood test and then arresting him when he refused. It is the issue because if Constable Keating's implied licence to be on the property had been revoked then he was thereafter a trespasser and his coercive requirements were unlawful. He should have left the property and applied for a search warrant to re-enter.


The issue is complicated by the fact that Constable Keating encountered and spoke to three people after he walked onto the property. The issues relating to them are:

Mr Davey:

  • • Did Mr Davey have the right to tell Constable Keating to go?

  • • If so, did he tell Constable Keating to go?

  • • If so, did he tell Constable Keating to go before Constable Keating exercised his coercive power?

Ms Brooke Davey

  • • Did Ms Davey have the power to tell Constable Keating to go?

  • • If so, did she tell Constable Keating to go?

  • • If so, did Ms Davey tell Constable Keating to go before Constable Keating exercised his coercive power?

Mr Henry

  • • Did Mr Henry give Constable Keating permission to be on the property which continued through the period in which he dealt with Mr Davey?

  • • If so, did that permission entitle Constable Keating to remain even if Mr Davey and/or Brooke Davey had the right to tell him to go and did so?

District Court decisions

Judge Jelas gave two decisions relevant to this appeal. The first was in response to an application by Mr Davey at the end of the Crown case for the charges against him to be dismissed. 6 Judge Jelas in her judgment of 18 April 2018 declining to dismiss the charges found Mr Davey had no authority over the property to enable him to require Constable Keating to leave. 7 Further, on the evidence the Judge did not consider Mr Davey had actually required the constable to leave:

[13] In addition, I do not consider there was a revocation of the implied licence. Mr Davey's repeated reference to a search warrant is not an act revoking the Constable's licence. The test for revocation is objective. A misapprehension by Mr Davey that a warrant was required was not a revocation but rather a misstatement of law.

(footnotes omitted)


Judge Jelas dealt with a number of other objections to the legality of the way Mr Davey was treated by the police, but they are not pursued on this appeal.


The trial resumed, and evidence was called on behalf of Mr Davey. At the conclusion of the defence evidence, Mr Davey again applied for the two charges against him to be dismissed. The application was determined against Mr Davey by Judge Jelas in her judgment of 5 October 2018. Having dismissed the application, the Judge found the charges to be proved. Findings by the Judge relevant to the issues on the appeal regarding Ms Davey are:

  • (a) Ms Davey did not have the lawful authority to revoke Constable Keating's implied licence. 8 Ms Davey was the daughter of a tenant of the property (in addition to her mother, her mother's partner was a named tenant on the tenancy agreement). Therefore, the Judge concluded, while Ms Davey was...

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