Davey v Police

• Jurisdiction: New Zealand
• Judge: Brewer J
• Judgment Date: 27 August 2019
• Neutral Citation: [2019] NZHC 2107
• Court: High Court
• Docket Number: CRI-2018-404-406
• Date: 27 August 2019

Between

Paul Gordon Davey

Appellant

and

New Zealand Police

Respondent

[2019] NZHC 2107

Brewer J

CRI-2018-404-406

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

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

Counsel:

J W Clearwater for Appellant

M J Mortimer for Respondent

JUDGMENT OF Brewer J

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

Introduction

1 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

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

3 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

Background

4 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.

5 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.

6 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

7 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.

8 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.

9 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

10 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)

11 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.

12 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 lawfully on the premises that did not give her the authority to revoke Constable Keating's implied licence of entry. Merely being a child of a tenant and resident at the property did not give her an agency on behalf of the tenants to exercise their authority in this way.

• (b) Ms Davey did not actually tell Constable Keating to leave. 9 Instead, all that was asked of him, multiple times, was whether he had a search warrant. Where Constable Keating's evidence conflicted with that of Ms Davey, the Judge preferred the evidence of the constable.

Mr Davey's case on appeal

13 On appeal, Mr Davey argues that Judge Jelas was in error in concluding that Mr Davey, and/or Ms Brooke Davey, did not have the authority to require Constable Keating to leave and did not in fact do so. So far as Mr Davey is concerned, the submission is that, on the evidence, Mr Davey asked Constable Keating whether he had a warrant to be on the property “about one minute into the conversation”. The constable replied that he did not require a search warrant and that under the Land Transport Act he had a right to be there. According to Constable Keating: 10

… the conversation kept on going around in a circle that I needed a search warrant and I explained that I didn't need a search warrant and I required him to undergo a breath screening test. I believe I did this at least five times.

14 Later, in response to a question from the Judge, Constable Keating said: 11

He kept on saying that I couldn't be on the property, I needed to go away and get a search warrant and it was just a, it was just a circuitous conversation.

15 Mr Clearwater for Mr Davey submits this evidence can only be interpreted as being a denial by Mr Davey of the constable's implied licence to be on the property and amounts to a requirement for the constable to leave. Mr Clearwater submitted also that Mr Davey had the authority to require the constable to leave because he was lawfully present as a periodic guest of the tenants and because Ms Brooke Davey gave evidence that while her mother was away she was in charge but when Mr Davey was at the property both were responsible as to who visited it.

16 So far as Ms Brooke Davey is concerned, the submission is she had authority to require the constable to leave because she lived on the property and while her

mother was away she was in charge. Ms Brooke Davey explicitly or impliedly exercised her authority to tell the constable to leave, but the constable did not

The Crown's response

17 Mr Mortimer's first submission is that, regardless of the positions of Mr Davey and Ms Brooke Davey, Mr Henry...