HIGGINS v NEW ZEALAND POLICE [2022] NZHC 445

HIGGINS v NEW ZEALAND POLICE [2022] NZHC 445 [11 March 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000364[2022] NZHC 445BETWEEN ANDREW JAMES HIGGINSAppellantAND NEW ZEALAND POLICERespondentHearing: 15 November 2021Appearances: H R Smith for the AppellantJ A Lee for the RespondentJudgment: 11 March 2022JUDGMENT OF ROBINSON JThis judgment was delivered by me on 11 March 2022 at 4.30pm.Registrar/ Deputy RegistrarSolicitors/Counsel:H R Smith, AucklandMeredith Connell, AucklandIntroduction[1] On 2 July 2021 Judge A M Fitzgibbon in the North Shore District Courtconvicted Andrew Higgins of failing or refusing to permit a blood specimen to betaken after an enforcement officer had required him to do so pursuant to section72(1)(e) of the Land Transport Act 1998 (Act). 1 This was Mr Higgin's third (orsubsequent) relevant conviction.2 Mr Higgins appeals. Mr Higgins has not beensentenced pending the outcome of his appeal against conviction.[2] On 30 May 2020, in circumstances described more fully below, theenforcement officer, Constable Law, stopped Mr Higgins while he was driving hisvehicle on Nelson Street, Northcote. After speaking with Mr Higgins on the side ofthe road Constable Law required Mr Higgins to undergo a compulsory impairment test(CIT) pursuant to s 72(1)(a) of the Act. Constable Law also required Mr Higgins toaccompany him to the Auckland Harbour Bridge Police Station (Station) to undergothe CIT.3[3] Constable Law administered Mr Higgins' CIT at the Station. Constable Lawis trained to administer CITs. He determined that Mr Higgins had not completed theCIT in a satisfactory manner.4 On that basis he required Mr Higgins to provide a bloodspecimen. Mr Higgins refused.[4] The primary issue in this appeal, as it was at trial, is whether Constable Lawwas empowered pursuant to s 71A(2)(b) of the Act to require Mr Higgins toaccompany him to the Station to undergo the CIT. Mr Higgins says not. He saysConstable Law was required pursuant to s 71A(2) to administer the CIT at the roadsidewhere he was stopped. Mr Higgins says he was arbitrarily detained by Constable Lawwhen Constable Law took him to the Station, in breach of his rights under the NewZealand Bill of Rights Act 1990 (NZBoR).5 He says the evidence of the CIT istherefore inadmissible.1 New Zealand Police v Andrew James Higgins [2021] NZDC 13378.2 Land Transport Act 1998, ss 60(1)(a) and 60(3). Maximum penalty two years' imprisonment, afine of $6,000 and a disqualification for more than one year.3 Land Transport Act 1998, s 71A(2(b).4 Land Transport Act 1998, s 72(1)(e).5 Bill of Rights Act 1990, s 22.Background facts[5] On 30 May 2020 Constable Law saw Mr Higgins' vehicle take the StaffordRoad off ramp off the Northern Motorway just north of the Auckland Harbour Bridge.At approximately 3.37pm Constable Law stopped Mr Higgins in Nelson Street afterobserving Mr Higgins' vehicle emitting smoke. As the vehicle came to a stopConstable Law also observed the front tyre on the passenger side of the vehicle hit thekerb.[6] Constable Law spoke with Mr Higgins on the side of the road. Constable Lawsays that during this discussion he observed that: Mr Higgins' pupils were pinpoint;he was restless and talking at a high speed; and he did not appear to understandinstructions. Constable Law asked Mr Higgins if he had been drinking. Mr Higginssaid he had one beer. Constable Law administered a breath screening test which MrHiggins passed. Constable Law asked whether Mr Higgins had taken any medicationor drugs that day. Mr Higgins said he had not, but mentioned that he was onmedication for his Attention Deficit Hyperactivity Disorder (ADHD).[7] Constable Law says he noticed Mr Higgins was uneasy on his feet, staggeringand swaying as he walked. He observed that Mr Higgins had a dry mouth and wascontinually drinking from his water bottle. Mr Higgins explained to Constable Lawthat he had been heading home to Hobson Street but had missed the turn off and endedup on the North Shore. Constable Law suspected that Mr Higgins had consumed adrug and formed the view that he should undergo a CIT.[8] In his formal witness statement Constable Law says that at 3:45pm he informedMr Higgins that he was being detained for a CIT and was required to accompany himto the Station. Constable Law informed Mr Higgins of his rights under the NZBoR,which Mr Higgins confirmed he understood.[9] Constable Law and Mr Higgins then travelled to the Station. The Station is ashort distance from where Mr Higgins had been stopped; Constable Law said inevidence it is less than one minute's drive. Constable Law administered Mr Higgins'CIT at the Station where there is a dedicated testing area designed for that purpose.As noted above Constable Law determined that Mr Higgins had not satisfactorilycompleted the CIT. He required Mr Higgins to provide a blood specimen. Mr Higginsspoke with his lawyer and refused to provide the blood specimen.Statutory framework[10] A person commits an offence if he or she fails or refuses to permit a bloodspecimen to be taken after having been required by an enforcement officer to do sounder s 72 of the Act.6[11] Section 72(1)(e) of the Act provides:72 Who must give blood specimen at places other than hospitalor medical centre(1) A person must permit a health practitioner or medicalofficer to take a blood specimen from the person being requiredto do by an enforcement officer if –(e) the person does not complete a compulsory impairment testin a manner satisfactory to an enforcement officer, who wastrained to give the test, when required to do so by anenforcement officer under section 71A.[12] Section 71A relevantly provides:71A Requirement to undergo compulsory impairment test(1) An enforcement officer may require any of the followingpersons to undergo a compulsory impairment test given by anenforcement officer trained to give the test if the enforcementofficer has good cause to suspect that the person has consumeda drug or drugs:(a) a driver of, or a person attempting to drive, a motor vehicleon a road:(2) An enforcement officer may require a person specified undersubsection (1) to—(a) remain in the place where stopped, for a period of time thatis reasonable in the circumstances, to undergo thecompulsory impairment test; or6 Land Transport Act 1998, s 60(1)(a).(b) accompany an enforcement officer to another place toundergo the compulsory impairment test if it wouldenhance road safety, personal safety, the person's privacy,or the giving or taking of the test.(emphasis added)District Court Trial and Judgment[13] Judge Fitzgibbon correctly identified the issue in dispute to be whether the CITwas obtained lawfully. In the District Court, as in this Court, Mr Higgins argued thatthe CIT was not lawfully obtained because none of the circumstances in s 71A(2)(b)of the Act applied to enable Constable Law to require Mr Higgins to accompany himto another place to undertake the CIT. That is, Mr Higgins argued that moving to theStation would not have enhanced: road safety; personal safety; his privacy; or thegiving or taking of the test.[14] Constable Law gave evidence-in-chief by reading his formal witness statementand answering the prosecutor's additional questions. Constable Law's evidence-in-chief did not include evidence as to which of the enhancements described in s71A(2)(b) (i.e. road safety, personal safety, privacy or the giving and taking of theCIT) applied so as to empower him to require Mr Higgins to accompany him to theStation to undergo the CIT. However, Constable Law was carefully cross-examinedabout this, and he also gave relevant evidence in re-examination.[15] In her decision Judge Fitzgibbon summarised Constable Law's evidence asfollows:[7] The Constable was asked during the course of cross-examination whythe CIT had not been performed at the location where the defendant's vehiclewas stopped by the Constable. The Constable agreed that on 30 May it was aclear, sunny day and that the defendant was answering his questionscompliantly; he also passed the breath test. In relation to the question as towhy the CIT was not performed roadside, which counsel for the defendantsaid was contemplated by the legislation, the response was that it was safer,easier and would give the defendant the privacy for the test to be performedat the Harbour Bridge Base, which was less than a minute away from thelocation at which the car was stopped.[8] The Constable further explained that performing the road test on theside of the road where there could be people close by at the time the CIT wasto be taken was an issue as to the defendant's privacy [sic]. He also referredto the fact that a straight-line test was required and that would be difficultalong a rough concrete outside area, [] whereas the Harbour Bridge basehad a facility with a flat floor carpet for the standing part of the test which wasmarked and it was private. The Constable said that there were a lot ofvariables in this case regarding the roadside test, including road safety.[16] Judge Fitzgibbon referred to relevant authorities, namely R v Abrahim7 andMcMullen v Police.8 Her Honour then concluded that:[14] The Constable in the current case turned his mind to the factors in s71(A)(2)(b), before requiring the defendant to accompany him to anotherplace for the CIT. The Constable decided that it would enhance personalsafety, the defendant's privacy or the giving and taking of the CIT for it to beundertaken at the base and he referred in his evidence to his specific concerns.[18] I consider the Constable's evidence was credible. He has considerableexperience in CIT testing and he made an assessment in the circumstances thatthe CIT should be performed at the base. He gave reasons for that whichincluded safety, being near a public park where there could be other peopleinvolved, the car was on the side of the road, there were also privacy reasons,and also he considered that the test would be enhanced if it was at the base,which I consider that he was entitled to do within the wording of s 71A(2),which says that a person needs to accompany an enforcement officer for anumber of reasons if it would enhance the giving or taking of the test.[19] So the constable was of the view that the giving or taking of the test wasenhanced, and therefore an assessment was made and the Police haveestablished beyond reasonable doubt that the decision to perform the CIT atthe base complies with s 71A(2)(b) of the Act. The CIT evidence is thereforenot excluded.Points on appeal[17] Mr Smith submits that Judge Fitzgibbon erred in her application of s71A(2)(b). In particular, he submits that:(b) Neither Constable Law's notes, his formal witness statement, nor hisadditional evidence-in-chief make any mention of the factors that needto established under s 71A(2)(b) before Constable Law could beempowered to require Mr Higgins to accompany him to the Station tocarry out the CIT. Constable Law's first and only attempt to justify hisdecision to detain Mr Higgins in this way was ex post facto, while under7 R v Abrahim [2020] NZDC 14910.8 McMullin v Police [2012] NZHC 2597.cross-examination. Mr Smith says this gap in Constable Law'sevidence tends to suggest that at the relevant time he never turned hismind to these factors at all.(c) Judge Fitzgibbon accepted Constable Law's ex post facto justificationsat face value, without objectively reviewing his stated reasons fordetaining Mr Higgins. As such the Judge failed properly to determinewhether Constable Law was lawfully entitled to require Mr Higgins togo to the Station solely for the CIT.(d) Judge Fitzgibbon misapplied R v Abrahim and in particular McMullinv Police in concluding that s 72A(2) entitles Constable Law todetermine subjectively whether to conduct the test roadside or at theStation.(e) If Judge Fitzgibbon had objectively reviewed Constable Law'sevidence she would have found there was no basis for him to concludethat road safety, personal safety or privacy would be enhanced byrequiring him to undertake the CIT at the Station.[18] In terms of road safety, Mr Smith notes that Nelson Street is a dual carriageway and points to Constable Law's evidence that there were no cars parked on the left-hand side of Nelson Street where Mr Higgins had stopped. Nor were there anyobstructions on the right-hand side impeding traffic. And Constable Law recalled onlyone other vehicle going past at the time he was with Mr Higgins.[19] In terms of personal safety and privacy, Constable Law explained that at thetime he was dealing with a person who he believed to be under the influence of drugs.He said they were in an area used by the public as a thoroughfare with a neighbouringpark where people routinely walk and run. Constable Law said that in this situationpeople could interfere with police operations, and also start filming which would bedistracting and raise issues for Mr Higgin's privacy. However, Mr Smith points toConstable Law's acknowledgement that at the relevant time there was no one runningpast, filming or using the area as a thorough fare. He also says that Mr Higgins didnot raise any privacy or safety concerns.[20] In terms of the "giving or taking of the CIT", Mr Smith acknowledges this willundoubtedly be enhanced if the CIT is undertaken in a designated space designed forthat purpose. However, he says that in the present case there was nothing in theenvironment on the Nelson Street roadside that rendered Constable Law unable toconduct the CIT there.[21] Mr Smith submits that in the circumstances Mr Higgins was taken to theStation purely as a matter of convenience. That is not permitted pursuant to s71A(2)(b). As such, he says that Mr Higgins was unlawfully and arbitrarily detainedwhen he was required to attend the Station and the CIT evidence should have beenexcluded.Legal test on appeal[22] The relevant principles concerning appeals against conviction following ajudge alone hearing are not in dispute. The appeal must be allowed if the DistrictCourt Judge has erred in her assessment of the evidence to such an extent that amiscarriage of justice has occurred,9 or if a miscarriage of justice has occurred for anyother reason.10 "Miscarriage of justice" means any error, irregularity, or occurrencein or in relation to or effecting the trial that:11(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial that was a nullity.[23] In any other case the appeal must be dismissed.129 Criminal Procedure Act 2011, s 232(2)(b).10 Criminal Procedure Act 2011, s 232(2)(c).11 Criminal Procedure Act 2011, s 232(2)(b).12 Criminal Procedure Act 2011, s 232(3).[24] The principles in Austin, Nichols & Co Inc v Stichting Lodestar apply.13 Theappellate Court is required to form its own view on the evidence and make its ownassessment.14 If the Court comes to a different view on the evidence the trial judgewould have erred and the appeal must be allowed.15 However, it is for the appellantto show that an error has been made and that the judgment under appeal is wrong.16Discussion[25] I agree with Mr Smith that s 71A(2)(b) carefully prescribes the circumstancesthat must exist before an enforcement officer has any discretion to require a person toaccompany him or her to another place to undergo the CIT. An enforcement officerwill only have that discretion if to do so "would enhance road safety, personal safety,the person's privacy, or the giving or taking of the test."[26] I also agree with Mr Smith that an enforcement officer must carry out thisassessment objectively, not subjectively. Unless requiring a person such as MrHiggins to go to another place would give rise to the enhancements described then anenforcement officer such as Constable Law may not do so.[27] Mr Smith referred to Judge Dawson's judgment in R v Abrahim.17 In that caseMr Abrahim was sleeping in his vehicle which he had parked in the back area of aservice station. A police officer woke Mr Abrahim and required him to go to a policestation to carry out a CIT. In the course of moving Mr Abrahim's vehicle for thatpurpose the police noticed a bag which appeared to contain methamphetamine. Thepolice conducted a warrantless search of the vehicle and found methamphetamine,ecstasy tablets, $12,000 in cash and blank ammunition cartridges.[28] Mr Abrahim sought to exclude the evidence on the basis that the search wasunlawful. Judge Dawson held that the police were not entitled to require Mr Abrahim13 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.14 At [16].15 Sena v Police [2019] NZSC 55 at [38].16 At [38]; see also Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].17 R v Abrahim, above n 7.to accompany them to the police station and their search of his vehicle was unlawful.Relevantly, Judge Dawson held that:[13] Section 71A(2)(b) clearly provides for a CIT to be taken elsewhere ifone or more of the circumstances outlined arise. In this case none of thosefactors exist. The defendant and his vehicle were at the back area of theservice station away from its forecourt and well away from the roadside.There was little if any traffic passing through that area. All the tests requiredfor a CIT test could have been conducted there. Sergeant Ross was qualifiedto conduct a CIT test and could have done so.[14] The police witnesses' explanation for taking the defendant away to thepolice centre was that it was their usual practice to do this and they werefollowing that usual practice. If that is the case, then the usual practice of thepolice is wrong. They cannot adopt a practice that overrides the legislation.The police were not entitled to require the defendant to accompany them tothe police station when none of the factors in subs (2)(b) existed.[29] I agree with Judge Dawson's analysis.18 Section 71A(2) does not permit thepolice to adopt a standard practice of requiring drivers to accompany them to a policestation (or anywhere else) to carry out CITs. They may only do so when that wouldgive rise to one or more of the enhancements described in s 71A(2)(b).[30] Judge Fitzgibbon distinguished Abrahim as follows:[13] In Abrahim, it was a failure to conduct the test at the roadside that ledto the police entering the defendant's car. This would not have been necessaryif the defendant had passed the roadside CIT. So those facts are slightlydifferent from the facts in the current case.[31] With respect, I do not consider Abrahim can be distinguished in that way.Whether or not Mr Abrahim might have passed the CIT at the roadside was beside thepoint. The search was unlawful because Mr Abrahim should not have been requiredto accompany the officer to the police station to carry out the CIT at all. Instead, JudgeDawson held the police should have conducted the defendant's CIT behind the servicestation where he had parked. That is precisely the issue that arises here.[32] I also agree with Mr Smith that Judge Fitzgibbon erred in her application ofVenning J's judgment in McMullin v Police.19 Her Honour found that:18 Judge Dawson went on to admit the evidence obtained in the unlawful search pursuant to s 30 ofthe Evidence Act 2006. In the present case the Police make no application pursuant to s 30.19 McMullin v Police, above n 8.[16] At paragraph [36] of the High Court decision, Venning J says:There is nothing inherently objectionable in requiring the test tocarried out in a manner satisfactory to the enforcement officer. Theenforcement officer is qualified by training to determine whether thedriver has completed the test satisfactorily or not. I accept MrsO'Sullivan's submission that, as in any prosecution, the Court is stillentitled to make its own assessment as to the credibility and reliabilityof the evidence given before it. The officer can be required to giveevidence of the process he or she followed, as well as his or herfindings. Where the evidence confirms the test as being completed inaccordance with correct procedure (which can be tested in the usualway under cross-examination) the subjective finding of the relevantofficer as to whether or not the test was completed to his or hersatisfaction should be accepted.[17] That relates to the CIT test, which in this case the constable found hadnot been satisfactorily completed, but in my view the reasoning also appliesto the test of whether or not the factors in s 71A(2) apply.(emphasis added)[33] Venning J was referring to the test under s 72(1)(e) of the Act which providesthat a person may be required to provide a blood specimen if she or he does notcomplete a CIT "in a manner satisfactory to an enforcement officer". Venning Jconfirmed that this was a subjective assessment for the trained enforcement officercarrying out the CIT. That is quite different to the test in s 71A(2)(b). An enforcementofficer can only require a person to carry out a CIT at another place if it "wouldenhance" the factors described. In my view that is an objective test.[34] Parliament could easily have expressed this as a subjective test, had that beenits intent. It could have used the language of s 72(1)(e), empowering officers to takedrivers to another place for a CIT if the officer was "satisfied" that to do so wouldenhance road safety etc. But that is not the test. Parliament required that taking thedriver elsewhere would enhance the matters described.[35] This error may have caused Judge Fitzgibbon to conclude that it was sufficientfor Constable Law to have turned his mind to whether the enhancements listed in s71A(2)(b) would follow if Mr Higgins was taken to Station.20 If so, I consider thatwould be an error. Her Honour was required to assess the evidence to determine20 I refer in particular to paragraphs [14], [18] and [19] of the judgment, set out at paragraph [16]above.whether detaining Mr Higgins and taking him to the Station would enhance therelevant factors listed.[36] However, I do not consider that Judge Fitzgibbon erred in her assessment ofthe evidence (or otherwise) to such an extent that a miscarriage of justice has occurred.Having reviewed the evidence I agree with Constable Law's assessment that the givingand taking of the CIT was enhanced by carrying it out at the Station. The CIT involvesan eye assessment; a walk and turn assessment; and a one leg stand assessment.21Constable Law described in evidence (albeit in re-examination) the way in which thetesting room at the Harbour Bridge Station has been set up to facilitate CITs.[37] That is not to say that it will always enhance the giving or taking of a CIT torequire it to be carried out at a Police Station with an area set up for that purpose. Inthe present case it is highly relevant that the place where Mr Higgins was stopped wasso close to the Station to which he was taken. As noted above, Constable Law said itwas less than one minute's drive.[38] Given that the purpose of the CIT is to ascertain whether a driver is under theinfluence of drugs, the length of time between a driver being stopped and undertakingthe CIT will always be important. When the CIT is carried out where a driver isstopped, she or he may only be required to remain for a period of time that is"reasonable in the circumstances".22 And when drivers such as Mr Higgins are takento a police station for a CIT I agree with Venning J's observations in McMullin:[52] However, I do accept that the legislation appears to contemplate thetest will either be carried out at the roadside or shortly thereafter, when aperson has been required to return to the police station. There may be caseswhere the only reason the person is required to accompany the officer to thepolice station is for the conduct of a CIT. In such cases there will come a pointin time where the length of detention for that purpose will becomeunreasonable. That will be a matter of assessment in each case.[39] For these reasons I conclude that Constable Law was correct to conclude thatthe giving and taking of the CIT would be enhanced by carrying it out at the Station.21 Land Transport (Compulsory Impairment Test) Notice 200922 Land Transport Act 1998, s 71A(2)(a)Mr Higgins was lawfully detained for that purpose, and the evidence of the CIT isadmissible.[40] Finally, I do not accept Mr Smith's submission that Constable Law's evidenceabout his decision to take Mr Higgins to the Station lacks credibility because it wasadduced in cross-examination rather than evidence-in-chief. However, given therequirements of s 71A(2)(b), I consider it would be best practice for enforcementofficers who decide to require drivers to accompany them elsewhere for a CIT to notetheir reasons for that decision. The test they apply in making that decision is anobjective one, and as Mr Smith repeatedly emphasised the decision is subject toreview.Result[41] The appeal is dismissed.__________________Robinson J