Torres-Calderon v New Zealand Police

• Jurisdiction: New Zealand
• Judge: Duffy J
• Judgment Date: 19 April 2018
• Neutral Citation: [2018] NZHC 722
• Docket Number: CIV 2017-404-200
• Court: High Court
• Date: 19 April 2018

Between

Lee Omar Torres-Calderon

Appellant

and

New Zealand Police

Respondent

[2018] NZHC 722

CIV 2017-404-200

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Criminal — appeal against a conviction under s56 Land Transport Act 1998 (“LTA”) (contravention of specified breath or blood-alcohol limit) in the District Court (“DC”) and the Judge's refusal to grant an application under s106 Sentencing Act 2002 (“SA”) (discharge without conviction) — appellant breath tested in his bedroom after an accident — whether the breath screening test was lawfully obtained under s68 LTA (who must undergo breath screening test)

Counsel:

H Leabourn for Appellant

M Mortimer for Respondent

JUDGMENT OF Duffy J

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

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

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

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,...