GRANT v POLICE [2021] NZHC 2297

GRANT v POLICE [2021] NZHC 2297 [2 September 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000089[2021] NZHC 2297BETWEEN CRAIG ANTHONY GRANTAppellantAND NEW ZEALAND POLICERespondentHearing: 12 August 2021Appearances: J H M Eaton QC for the AppellantJ E Lancaster for the RespondentJudgment: 2 September 2021JUDGMENT OF NATION JIntroduction[1] The appellant, Craig Anthony Grant, faces one charge of driving with excessblood alcohol,1 and one charge of careless use of a motor vehicle arising from a motorvehicle accident.2[2] In a pre-trial hearing before Judge Phillips on 15 March 2021, Mr Grantchallenged the admissibility of his alleged admissions that he was the driver of thevehicle at the relevant time.[3] In a reserved judgment dated 21 June 2021, Judge Phillips ruled the evidencewas admissible.31 Land Transport Act 1998, s 56(2).2 Land Transport Act 1998, s 37(1).3 Police v Grant [2021] NZDC 11909.[4] Mr Grant appeals that decision but requires leave to do so. Resolution of theissues raised by the appeal are essential to the trial. There is no opposition from theCrown. Leave is accordingly granted.Background[5] The Police allege that, on 15 September 2019, Mr Grant drove a motor vehicleon St Albans Street when the proportion of alcohol in his blood exceeded 80milligrams of alcohol per 100 millilitres of blood, and that he drove the vehiclecarelessly.[6] Mr Grant has pleaded not guilty to both charges.[7] On the evening of 15 September 2019, neighbours saw a vehicle that hadcrashed into a hedge at the corner of Mansfield Avenue and Browns Road,Christchurch. They observed two males walking away from the scene. Police werealerted. Police found a rates bill in the vehicle in Mr Grant's name, recording hisaddress as 2 Abberfield Lane.[8] A Police dog handler tracked the occupants of the vehicle to Abberfield Lane,though not directly to the door of the property. Constables Henare and Hayman weredirected to undertake a "door knock" at 2 Abberfield Lane.[9] Constable Henare gave evidence at the pre-trial hearing. His evidence was thathe and Constable Hayman went to the address where Constable Henare did the "doorknock". Constable Henare said the door to the property was opened by the appellant'swife, Ms Grant. Constable Henare asked her if two males had returned to the propertyrecently, she confirmed they had and said her partner had arrived home. ConstableHenare asked if the officers could come inside as they wanted to speak to the men.Constable Henare's evidence was that Ms Grant did not hesitate in allowing them toenter the home and he felt she was "on board with [the] police".[10] Constable Henare gave evidence that there were two men in the kitchen of thehome who matched the description of the men seen leaving the vehicle, as per theinformation passed onto the constable by the Police communication system.Constable Henare's evidence was that he approached them and said "There's been anaccident down the road. The dog handlers tracked to this address; who was driving?"It was Constable Henare's evidence that the person later identified as Mr Grant saidhe was the driver.[11] Constable Henare's evidence was that he then immediately arrested Mr Grantand read him his bill of rights advice, before questioning him about the accident andrecording the answers in his notebook.[12] At the conclusion of his questions, Mr Grant signed Constable Henare'snotebook record of the interview. Constable Henare required Mr Grant to undergo anevidential breath screening test, which gave a positive result. Constable Henare thenasked Mr Grant to accompany him to New Brighton Police Station, which he did. Anevidential breath test showed a result of 860 micrograms per litre of breath. A bloodsample was also taken from Mr Grant, which gave a result of 191 milligrams of alcoholper 100 litres of blood.District Court decision[13] In the District Court, Mr Grant argued the admission evidence had beenunfairly obtained by Constable Henare for two reasons:(a) he had failed to inform Ms Grant at the door that he had no lawful authorityto enter without her consent; and(b) he had not advised Mr Grant of his rights before asking the initial questionwhich led to an admission.[14] Judge Phillips noted the primary trial issue is whether the prosecution canprove beyond reasonable doubt that Mr Grant was the driver of the vehicle on 15September 2019.[15] The Judge found the constable was clear that, although Mr Grant's car had beeninvolved in an accident, the constable did not know which of the two men had beenthe driver of the car, and he remained unsure of this until Mr Grant said he was thedriver, at which time Mr Grant was arrested.4 Judge Phillips found Constable Henare'sevidence was "truthful and correct" and accepted he only resorted to using hisnotebook after Mr Grant identified himself and admitted being the driver.5 His Honouraccepted there were discrepancies between the timing of the constable's notebookentry, his written statement, and his evidence in Court as to what he first said to themen inside the home. However, the Judge held that the "somewhat different" wordingdid not change the "overall context" nor affect his view of the constable's evidence.6[16] The Judge did not accept that Constable Henare, prior to entering the premises,had good cause to suspect Mr Grant was the driver and would be charged withdangerous driving. This was not in accord with the constable's evidence which theJudge accepted. The Judge accepted that, prior to entering the property, the constableknew the vehicle was owned by Mr Grant, that a police dog had tracked the scent fromthe scene to Mr Grant's address, and that an officer had been told that two males hadbeen seen walking away from the scene.[17] In relation to the submission that Mr Grant was in a position where he was notfree to leave and police had entered his home in breach of "good police practice",Judge Phillips found Ms Grant had freely given consent to the police officers to enterthe home and there was no duress or intimidation placed upon her to do so.7 The Judgecharacterised the entry as "no more than a police officer making a simple requestof a citizen to which she responded positively".8 The Judge held there was no legalduty on Constable Henare to advise Ms Grant of her right to refuse to allow his entry.9His Honour found further that, even had Ms Grant not consented, Constable Henarecould have invoked s 8 of the SSA to gain entry (albeit with the proviso that ConstableHenare did not know at that point which of the two persons had been the driver).10This was because the Judge accepted Constable Henare had reasonable grounds to4 Police v Grant, above n 3, at [18].5 At [24].6 At [24].7 At [22] and [27].8 At [22].9 At [22] and [54], referring to R v Machirus [2007] NZCA 120 at [31], where the Court of Appealheld "there is no such formal obligation".10 Police v Grant, above n 3, at [40] and [59].suspect a person had committed a breath alcohol offence and that the driver of the carwas at the address.11[18] The defence had submitted Constable Henare breached cl 2 of the ChiefJustice's Practice Note on Police Questioning (the Practice Note) by failing to cautionMr Grant before questioning him. As mentioned above, his Honour accepted therewere discrepancies in the constable's evidence, but determined those discrepancieswere due to the officer having only begun to record the exchange in his notebook afteridentifying Mr Grant as the driver. His Honour found that, when the constable enteredthe kitchen, he addressed the two men, asked who was driving and Mr Grantvolunteered the information that he was driving.12 After Mr Grant confirmed he wasthe driver, the Judge determined Constable Henare immediately arrested him, gavehim his rights and proceeded to interview him.13 His Honour found Constable Henaredid not tell Mr Grant he was required to answer any questions so that no breach of cl1 of the Practice Note was made out.14[19] The Judge accepted that Constable Henare did not know, and could not haveknown, which of the two men was the driver of the vehicle when he entered the home.Therefore, he did not have sufficient evidence to charge Mr Grant, with the result thatcl 2 of the Practice Note did not apply.15 Even if there was a breach in regard to thefirst question and the resulting admission, the Judge found it would "not affect thefollowing question after the defendant was cautioned".16 His Honour determined itwas not practical for Constable Henare to immediately caution the two men uponentering the home and it was necessary for the constable to provide some initialcontext about what he was doing (that is, investigating an accident). The Judge foundthe constable had good cause to suspect one of the men was the driver of the car andhad committed an offence but he did not know which one. In asking who was driving,the constable did not suggest the men were required to answer. However, the Judge11 At [58].12 At [29].13 At [29] and [65].14 At [67]-[71].15 At [34]-[38].16 At [40].held that, once the answer was provided, the constable had sufficient evidence tocharge Mr Grant and immediately cautioned him.17[20] The Judge concluded that, even if one of the breaches had been made out, theevidence would still be admissible pursuant to s 30(2)(b) of the Evidence Act 2006.18In reaching this conclusion, his Honour assessed that, although the breach would beviewed as a moderate intrusion, it would not have been in bad faith or deliberate, thecharge was serious, the officer had the ability to invoke s 8 of the SSA, and theevidence was central to the prosecution case. The Judge also noted there were noalternative remedies, the probative value of the evidence was high, and there wasurgency in locating the driver of the vehicle.19Principles on appeal[21] Section 215 of the Criminal Procedure Act 2011 applies to charges to be triedby a Judge alone. Section 215(2)(a) provides that the defendant or the prosecutor may,with the leave of the first appeal court, appeal to that court against a decision makingor refusing to make an order under s 79 as to the admissibility of evidence.[22] If leave is granted, the appeal proceeds as a general appeal.20 Accordingly, thisCourt is entitled to form its own opinion as to whether the pre-trial decision is corrector incorrect, assisted by a consideration of the reasoning of the District Court Judge ifappropriate.The appeal[23] Mr Eaton QC, on behalf of Mr Grant, adopted the written submissions filed inthe District Court and submitted the District Court Judge erred in that:(a) the critical factual findings were not reasonable;(b) section 8 of the SSA did not authorise entry into the property; and17 At [74].18 At [48].19 At [40]-[47].20 R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734 at [49]-[53].(c) the admission was improperly obtained and inadmissible because:(i) the entry into Mr Grant's property was an unreasonable search inbreach of s 21 of the New Zealand Bill of Rights Act 1990(NZBORA); and/or(ii) the admission was improperly obtained under s 30(5) of theEvidence Act 2006 (the Act) and obtained unfairly and in breachof the Practice Note under s 30(5)(c) and (6) of the Act.[24] At the hearing of the appeal, Mr Eaton orally submitted Mr Grant's admissionswere obtained as a consequence of an unlawful search, given the requirements of ss91 and 95 of the SSA and the advice which s 93 required the Police officers to givethe person who had consented to the Police entering the home. He acknowledged andapologised for the fact that neither the defence nor prosecution had raised this with theJudge and the Judge had not considered s 93.DiscussionCritical factual findings[25] Constable Henare agreed he had not told Ms Grant that he did not have anylegal authority to enter the home without her consent. Constable Henare said he hadnot mentioned Mr Grant's name to the woman at the door, Ms Grant. He gaveevidence that she was friendly, offered no objection to his request to enter the addressto talk to two people who had been tracked to the address, and was entirely cooperativewith him. The constable said he had spoken to Constable Hayman about s 8 of theSSA in the patrol car prior to commencing the door knock but that he chose to go"down the road" of consent to enter rather than seeking entry by use of s 8 of the SSA.[26] Constable Henare agreed that, while in the kitchen, he became aware both menhad been drinking but he was unsure who the driver was at that point. The constablesaid he asked who was driving and "Mr Grant put up his hand". The constable agreedwith Mr Eaton that he had not made a note of that initial exchange in his notebook andthat it was the first exchange of words he had with Mr Grant. His notebook entrybegan by his taking down Mr Grant's details, then arresting him for dangerous drivingand giving him his Bill of Rights advice.[27] Constable Henare gave evidence that his formal written statement of 17September 2019 was in accord with his recollection at the time he wrote the statementand from his notebook and/or memory. Under repeated questioning from Mr Eaton inrelation to his question as to "who was the driver", the constable said a number oftimes that he had asked the two men "who was the driver", and Mr Grant said it washim. His evidence was he then immediately arrested Mr Grant and asked his name,date of birth and similar questions, which he noted down.[28] It was the defence case that, in asking who the driver was, Constable Henarehad embarked on questioning Mr Grant in circumstances where he should have firstgiven Mr Grant a caution and Bill of Rights advice. It was the Police case that MrGrant volunteered an admission that he was the driver of the vehicle, and it is thisalleged admission that is critical evidence sought to be advanced by the Police.[29] The Judge found that, on entering the property, Constable Henare saw MrGrant and another male, asked who was driving and Mr Grant raised his hand,volunteering he was the driver. Mr Eaton submitted this version of events, whichaligns with that given in evidence by Constable Henare, contradicted both theconstable's contemporaneous notebook entries and his formal written statement madetwo days later. Mr Eaton emphasised the constable's evidence introducing a newaccount was given some 18 months after the event and was inconsistent and unreliable.[30] Mr Eaton submitted it was unreasonable for the Judge to prefer the accountgiven by the constable at the pre-trial hearing over the written notes made at andshortly after the event. Mr Eaton maintained that the notebook entry did not recordthe officer having entered the property, asking who was driving and Mr Grant makinga voluntary admission. Instead, it recorded Mr Grant's personal details, that he wasthe driver and only then recorded that he was arrested and given his bill of rightsadvice. Mr Eaton argued the notebook entries supported the defence case that theconstable had, on entry, sought to identify which of the men was Mr Grant andcommenced questioning him absent any caution.[31] Mr Eaton submitted the statement prepared by the constable two days latercontradicted his pre-trial evidence. In that statement the constable said he identifiedone of the men was Mr Grant and then commenced the interview by asking Mr Grantwhat happened. According to the statement, Mr Eaton submitted, it was at that stageMr Grant admitted he was driving. He argued the Judge's factual finding of acceptingthe constable's evidence in Court was erroneous and pivotal to the admissibility ruling.Mr Eaton asserted that if the notebook entry and written statement were reliable,Constable Henare had both commenced an interview of Mr Grant and secured thecritical admission in contravention of the Practice Note and s 30(5) of the Act.[32] Ms Lancaster, counsel for the Crown, submitted the Judge was entitled to findConstable Henare's evidence in Court was reliable and accurate. She arguedConstable Henare gave clear, consistent and reasonable evidence that he asked theinitial question about who was driving and then, after Mr Grant had identified himself,took out his notebook and began recording Mr Grant's details. Ms Lancastersubmitted it cannot be expected that everything that occurs will be noted in a Policeofficer's notebook and it is not routine practice for officers to have their notebook outat the start of such discussions.[33] Ms Lancaster emphasised that, when challenged, Constable Henare'sexplanation for the order of his notebook did not change. The constable said hisnotebook entries began at the point he started asking for Mr Grant's details because hehad already established Mr Grant was the driver. Ms Lancaster noted that theconstable then recorded "Driver of JHH477 Mercedes Black" as Mr Grant had alreadyoffered that information.[34] Ms Lancaster submitted the Judge was correct to find that discrepancies in thewording between Constable Henare's evidence in Court and his formal statement didnot change the overall context of his evidence. Ms Lancaster argued the exact wordsused by the constable did not materially change the way the admission was obtained.Even if the constable's statement was correct and he began by identifying the appellantas being Mr Grant, Ms Lancaster maintained the constable would not have knownwhich of the two men was the driver. As a result, he would still have had insufficientevidence to lay a charge, so would not have been required to advise Mr Grant of hisrights before asking the next question.[35] Finally, Ms Lancaster submitted weight should be placed on the fact theDistrict Court Judge had the benefit of hearing the constable's evidence first-hand. Inthis regard, the Judge noted the constable was prepared to make concessions but wassteadfast in relation to the matters to which the defence played particularly closeattention.[36] The relevant notebook entries recorded on 15 September were as follows:2124 GRANT/Craig Anthony21/04/19722 Abberfeild Land [sic]021 355 323189 Papanui RdMerivale Fresh ChoiceDriver of JHH477Mercedes Black2126 K9 Dangerous DrivingBOR Given[37] The relevant paragraphs of Constable Henare's formal written statement madeon 17 September 2019 recorded:14. We entered the address and saw there were two males in the kitchen.15. I identified that one of the males inside the address was Craig AnthonyGRANT.16. I asked GRANT what had happened on the corner of Mansfield Avenueand Browns Road and he stated he was driving and had an accident.17. I arrested GRANT for Dangerous Driving and gave him his Bill ofRights.[38] Later in his statement, Constable Henare recorded the series of questions hethen asked Mr Grant, as entered in his notebook. That questioning was recorded asincluding the following exchange:Q: Were you driving the vehicle JHH47?A: Yes.Q: That vehicle crashed outside 77 St Albans Street. Can you explain that?A: I just made a mistake driving; an absolute mistake in judgement.[39] Constable Henare then gave evidence before Judge Phillips at the pre-trialadmissibility hearing on 15 March 2021. In his evidence-in-chief, the constable said,upon entering the property, he approached two males in the kitchen who matched thedescription of what Police communications had given them and said: "There's beenan accident down the road. The dog handler's tracked to this address and who wasdriving." The constable said Mr Grant then raised his hand and said: "Yes I was thedriver." He said he arrested Mr Grant straight away and gave him his bill of rightsadvice, before questioning him further about what happened, as recorded in hisnotebook. He gave evidence he made the entries in his notebook immediately aftergiving Mr Grant his rights advice, which Mr Grant signed.[40] Constable Henare was then subject to a lengthy and detailed cross-examination, which amounted to 23 pages in the Notes of Evidence. Constable Henareaccepted he was aware that, at the time, a rates notice in the name of Mr Grant of 2Abberfield Lane had been found in the crashed car, and he was directed to go toAbberfield Lane based on dog tracking to that address. However, he said he was awarethere was a passenger in the car and, although it was likely Mr Grant's car, he hadformed the view it "could have been very well that the passenger could have beendriving Mr Grant's car". He also gave evidence he was aware of Mr Grant's namebefore entering the property.[41] Constable Henare accepted he had already decided before entering the propertythat he would be charging and arresting the driver of the vehicle with dangerousdriving. He accepted that, on seeing the men in the kitchen, it was immediatelyobvious both men had been drinking. The constable said that, in these circumstances,he did not immediately caution the men and give them their rights as he did not knowwho the driver was.[42] In cross-examination, the constable accepted that the critical admission he saidwas volunteered by Mr Grant prompting the constable to arrest him was not in hisnotebook. Constable Henare said he obtained Mr Grant's details, then arrested him,and then gave him his bill of rights. The constable reiterated the first thing he askedwas "who was driving?". He later repeated that, after entering the property, he said tothe men: "there's been an incident down the road, the dog handler's tracked to thisaddress, two people matching your description, who is the driver?" That is, theconstable gave evidence that he asked who the driver was and Mr Grant said it washim, before the constable asked for Mr Grant's personal details and recorded them inhis notebook. In response to Mr Eaton putting it to him that he should have warnedMr Grant before asking who was the driver, the constable said, at that stage, he did nothave "evidential sufficiency" necessary to charge him, so he asked who the driver was.[43] Mr Eaton pointed to Constable Henare's responses to challenges during cross-examination and submitted his evidence was inconsistent and unreliable. At one point,the constable admitted the best record of what happened is "probably what's in mystatement". Constable Henare could not explain why his notebook did not reflect hisevidence that he had entered the home and first asked who was driving. After theabsence of an explanation, Mr Eaton put to the constable that his evidence of havingimmediately asked who the driver was on entering the property was tainted by thepassage of time. The constable accepted his memory "could very well be tainted". Inhis evidence, Constable Henare also acknowledged the order of the events as enteredin his notebook did not coincide with the evidence he gave at trial and that the Courtwould, to an extent, need to rely on his memory of events.[44] When Constable Henare was re-examined by the prosecutor he said he did notknow at the time he entered the home who the driver was. In relation to his use of thenotebook, the constable said that, at the start of such discussions, it is not routinepractice for officers to have their notebook out because having "your head in yournotebook" before assessing a situation creates a safety concern. Because of this,Constable Henare said it would not have been unusual for him to have omittedrecording the first words Mr Grant said to him.[45] The Judge evaluated Constable Henare's evidence as follows:[24] It is also important to note that when I consider the evidence given byConstable Henare and the responses that he gave to Mr Eaton in a very detailedand exacting cross-examination, I accept that the officer's evidence, isevidence that I can rely on. I accept that there were some discrepanciesbetween the timing of his notebook entry and what is contained in a writtenstatement he made on 17 September 2019. In relation to the notebook entriesand the sequence of events, as questioned on by Mr Eaton, I accept theofficer's explanation that once the defendant had identified himself andadmitted being the driver, the officer then resorted to the use of his notebook.I accept that in relation to the written statement of the 17 September 2019, thatthe wording that is put is somewhat different, but the overall context, in myview, is the same and this issue does not affect my view of the Constable['s]evidence. I noted that Constable Henare was prepared to make all properconcessions but was steadfast in relation to the matters to which Mr Eatonplayed particularly close attention. I have no doubt that the officer's evidence,as given by him in Court as against the written notetaking, is evidence I canaccept as truthful and correct and as such is appropriate evidence for me touse in the circumstances of the arguments put to me by the defence.[46] I do not accept, to the extent there might have been inconsistencies betweenthe constable's evidence at the hearing and the notebook entries or statement, suchinconsistencies made it unreasonable for the Judge to accept the constable's evidenceas he did. The entries made in the constable's notebook were consistent with theconstable only starting to record Mr Grant's details after Mr Grant had identifiedhimself and admitted to being the driver. I accept the Crown's submission that "itcannot be expected that everything that occurs will be noted in a police officer'shandbook",21 and it is routine practice for officers to first assess a situation to maintaintheir safety before focusing on making recordings in their notebook. It was alsounderstandable that the constable did not record Mr Grant's initial admission in hisnotebook. At the time he made the entries in his notebook, it was the admission thatMr Grant made after his arrest and caution that was important. At that point, and evenwhen he prepared his first statement two days later, the constable had no reason tothink Mr Grant's initial acknowledgement as to being the driver was important. MrGrant's admission after being cautioned was the evidence the Police officer needed torecord and which he had Mr Grant accept through signing the notebook.21 R v Avenell [2007] NZCA 532 at [20].[47] The gravamen of the case was that Constable Henare initially asked "who wasdriving". That the constable was willing to acknowledge certain inconsistencies andhis memory could have been tainted, in the circumstances of this case, couldreasonably have bolstered the constable's credibility. The District Court Judge alsohad the advantage of seeing and hearing Constable Henare give his evidence,including his performance under cross-examination. I consider the Judge was entitledto rely on the constable's evidence, given he gave consistent evidence at the hearingthat he asked who the driver was and Mr Grant said it was him, before the constableasked for Mr Grant's personal details and recorded them in his notebook. This wasdespite what the Judge described as a "very detailed and exacting cross-examination".[48] I also consider Constable Henare's evidence was inherently plausible. He hadgone to the property believing on reasonable grounds that the two people who hadbeen in the vehicle when it crashed had gone into the home. With what he knew ofthe crash, he had decided whoever was driving the vehicle would be charged withdangerous driving. The Police needed to know who the driver was before they coulddecide how to proceed. Constable Henare had a clear memory of Mr Grant raising hishand and saying it was him.[49] The constable acknowledged his memory could be tainted by time but, bothbefore and after he made that concession, he was clear as to what happened when heinitially went into the home. The way he proceeded to obtain Mr Grant's details, gavehim his NZBORA advice and recorded his answers was consistent with his evidenceas to how the interaction started.[50] Clause 2 of the Practice Note relevantly provides:2. Whenever a member of the police has sufficient evidence to charge aperson with an offence or whenever a member of the police seeks toquestion a person in custody, the person must be cautioned before beinginvited to make a statement or answer questions. [51] I accept there is no suggestion that Constable Henare cautioned Mr Grant oradvised Mr Grant of his right to a lawyer under s 23(b) of the NZBORA prior to MrGrant making the critical admission of being the driver. However, for it to becomenecessary for a Police officer to issue a caution under the Practice Note, that officermust have sufficient evidence to charge the person with an offence.[52] When Constable Henare entered the property with the consent of Ms Grant, oneither version of the evidence put before the Court, he did not know which of the twomen had been the driver of the vehicle. Constable Henare was aware a rates notice inthe name of Mr Grant of 2 Abberfield Lane had been found in the crashed car and thathe was directed to go to that address based on dog tracking to that location. He wasalso aware the two men had been seen leaving the scene and, when he entered theproperty, he realised the two males in the kitchen were intoxicated and matched thedescription of what he had been told by police communications. However, throughoutthis time, the constable knew two men were involved. He knew the owner of thevehicle was Mr Grant but not who was driving at the time of the collision. Indeed,Constable Henare gave evidence that although it was likely Mr Grant's car, he hadformed the view it "could have been very well that the passenger could have beendriving Mr Grant's car".[53] I consider, for the officer to know he had sufficient evidence to charge MrGrant with the offence of dangerous driving, he had to know not who owned thevehicle but who was driving it at the time of the incident. Although Constable Henareconfirmed in cross-examination that, on entering the property, he had already resolvedto charge the driver with dangerous driving, this did not inevitably mean Mr Grantwould be charged as the driver. Evidence that it was immediately obvious to ConstableHenare that both men were intoxicated did not change the position. At that point,either man could have been the driver.[54] In this context, even if the version of events in the constable's statement wascorrect and he began by identifying the appellant as being Mr Grant, the constable stillwould not have known which of the two men was the driver at the point he asked whowas driving. The obtaining of the defendant's name did not create evidentialsufficiency given there was another man accompanying him throughout the incident.As a result, he would still have had insufficient evidence to lay a charge, so would nothave been required to advise Mr Grant of his rights before asking who the driver was.Therefore, cl 2 of the Practice Note did not apply.[55] The Judge made certain findings of fact as to how matters proceeded betweenConstable Henare and Mr Grant. With those findings, he determined that the constablewas not required to give Mr Grant a caution before asking the two men who was thedriver. On the evidence, the Judge's findings of fact were reasonable. On my reviewof the evidence, I would make the same findings.Search and Surveillance Act 2012, s 8[56] Mr Eaton submitted the Judge was incorrect to find Constable Henare couldhave relied upon s 8 of the SSA in order to gain entry to the home. The defencechallenged the lawfulness of the Police entry onto the property and argued that,contrary to the finding of the Judge, there were no reasonable grounds to suspect anoffence of driving with excess breath alcohol had been committed. Nor, in Mr Eaton'ssubmission, was there any evidence that evidence as to dangerous driving was at riskof being destroyed, concealed, altered or damaged.[57] Ms Lancaster submitted this ground of appeal is fruitless as it is a challenge toa finding that was not material to the Judge's decision. In relation to the constables'entry into the home, the Judge determined they were given consent to enter by MsGrant, free of duress, and that Constable Henare was under no legal duty to inform MsGrant he could not enter if she refused. Accordingly, his Honour found there was nobreach of s 21 of the NZBORA. The Judge then went on to consider whether, had MsGrant refused entry, the Constable "would have had the power" to invoke s 8 of theSSA. Ms Lancaster argued the appellant was therefore not challenging the ratiodecidendi in regard to the constables' entry and that any challenge to the Judge'sfollowing obiter statements is moot.[58] Section 8 provides:8 Entry without warrant to avoid loss of offender or evidentialmaterial(1) In the circumstances set out in subsection (2), a constable may—(a) enter a place or vehicle without a warrant; and(b) search for and arrest a person that the constable suspects hascommitted the offence.(2) The circumstances are that the constable has reasonable grounds—(a) to suspect that the person has committed an offence that ispunishable by imprisonment and for which he or she may be arrestedwithout warrant; and(b) to believe that the person is there; and(c) to believe that, if entry is not effected immediately, either or both ofthe following may occur:(i) the person will leave there to avoid arrest:(ii) evidential material relating to the offence for which the personis to be arrested will be destroyed, concealed, altered, ordamaged.[59] The Judge decided that Constable Henare had reasonable grounds to suspectthat a breath alcohol offence had been committed and, on that basis, s 8 could havebeen utilised for a warrantless entry.[60] The Police had not however entered the premises because of suspicion thatsuch an offence had been committed. At the time, they suspected the driver of thecrashed vehicle had driven it dangerously. This was a reasonable suspicion, given thecircumstances of the crash.[61] Driving a vehicle on a road in a dangerous manner or speed is an offence witha maximum penalty of three months' imprisonment or a fine of up to $5,500 andmandatory minimum six months' disqualification.22[62] The Judge could have found that Constable Henare entered Mr Grant's homebelieving he and Constable Hayman were entering without a warrant to search for andarrest the person he suspected of committing the offence and:(a) the offence of dangerous driving was an offence punishable byimprisonment for which the driver could be arrested without warrant; and(b) the person who was suspected of having driven dangerously was in thehome.22 Land Transport Act 1998, s 35(2).[63] However, there was no evidence to suggest Constable Henare could have hadreasonable grounds to believe that, if entry was not effected immediately, either thedriver would leave that home to avoid arrest or evidential material relating todangerous driving would be destroyed, concealed, altered or damaged.[64] The Police had found documents in the crashed car that suggested the homeentered was the residence of at least one of the people who had gone inside that home.Evidence as to suspected dangerous driving existed outside the home, with all thecircumstances in which the car had crashed.[65] The Judge found that Constable Henare:23 had reasonable grounds to suspect that a person had committed an offenceof dangerous driving, and by inference arguably driving with excess breathalcohol, as in the evening, the car had been driven into a hedge and theoccupants of the car had left the scene. Further, they had reasonable groundsto believe that the driver of the car was at the address, given that two occupantshad been seen leaving the vehicle on foot; the rates bill was made out to thataddress, and the dog had traced a scent from the accident to outside theproperty. On that basis there would be reasonable grounds to believe that theevidence relating to the driver's breath alcohol level would be altered.[66] I accept it would have been reasonable for a Police officer to believe, based onwhat he knew as to the circumstances of this car crash, that the driver was likely tohave been under the influence of alcohol at the time of the crash. If the Police officerknew the driver had decamped from the scene of the crash, it would be reasonable forhim to conclude that the driver may have committed a breath alcohol driving offenceand, if not apprehended, evidence of that offence, namely his breath or blood alcohollevel at the time of the offence, would be lost.[67] The maximum penalty for an excess breath alcohol or blood alcohol offence isthree months' imprisonment or a fine not exceeding $4,500 and a mandatory minimumof six months' disqualification.24[68] With such a belief, a constable could have entered the home without a warrantto search for and arrest a person the constable suspected had committed an excess23 Police v Grant, above n 3, at [58].24 Land Transport Act 1998, s 56(3).breath alcohol offence. There was evidence on which Constable Henare could havereasonably believed a person who had committed such an offence was in the home.There would also have been reasonable grounds for him to believe that, if he did notenter the premises, evidential material (as to the breath or blood alcohol level) relatingto the offence for which the driver would be arrested, would be destroyed, concealed,altered or damaged.[69] However, these Police officers did not go to or into the home to investigate apossible breath alcohol offence and to arrest the driver for such an offence. For anentry and search to be lawful on a s 8 basis, the Police would have needed to actuallybelieve they had reasonable grounds to carry out the warrantless search.25[70] For an entry and search to be lawful on a s 8 basis, the Police would haveneeded to be consciously exercising s 8 rights. It could not be inferred they were doingso. I consider the Judge was in error in concluding there could have been a lawfulentry into the property under s 8.[71] However, the Judge's error as to this was not material to his decision. TheJudge had already found that the constables' entry into the property was freely givenby consent and not in breach of s 21 of the NZBORA.[72] Section 8 powers would however be relevant in carrying out the balancing testunder s 30 of the Act. Had the constables been refused entry, they would then havehad to consider whether they could exercise s 8 powers under the SSA. In all thecircumstances they were aware of, I consider it would have been reasonable and likelyfor them to conclude that inside the house was one of two men who had been drivingthe vehicle when, around 9.15 pm on Sunday 15 September 2019, it went off the roadand crashed through a hedge. In my view, it would have been reasonable for them tobelieve, and had they had to think about it they would have believed, that the driverhad gone into the home and the Police were being denied entry because the driver didnot want to be identified and did not want to be required to undergo an evidentialbreath alcohol or blood alcohol test. Had the constables been refused entry, it is likely25 Ward v R [2016] NZCA 580 at [34]−[43]; Hawkes v R [2015] NZCA 49 at [10]-[11].the Police would have been able to exercise s 8 powers of entry to speak with andarrest the driver for a breath alcohol offence.SSA pt 4, subpt 2 – consent searches[73] I consider now the argument, raised for the first time, as to ss 92 and 93 of theSSA. Mr Eaton argues this was an entry clearly for the purpose of a search and forthe purpose of locating people and/or evidence in connection with a suspected offence.[74] Relevantly, ss 91 to 96 of the SSA state:91 Application of rules about consent searchesSections 92 to 95 apply in respect of consent searches undertaken by anenforcement officer in circumstances where a power of search by anenforcement officer to which this Part applies or any provisions of this Partapply (whether a warrantless power or a power able to be conferred by a searchwarrant) could be exercised if the officer held a particular belief or suspicion.92 Purposes for which consent search may be undertakenAn enforcement officer may ask a person to consent to undergo a search or toconsent to a search being made of a place, vehicle, or other thing apparentlyin the control of the person, if the enforcement officer wishes to conduct thesearch for 1 or more of the following purposes:(a) to prevent the commission of an offence:(b) to protect life or property, or to prevent injury or harm:(c) to investigate whether an offence has been committed:(d) any purpose in respect of which the enforcement officer could exercise apower of search conferred by an enactment, if he or she held a particularbelief or suspicion specified in the enactment.93 Advice that must be given before consent search undertakenBefore conducting a search by consent, the enforcement officer who proposesto conduct it must—(a) determine that the search is for a purpose authorised by section 92; and(b) advise the person from whom consent is sought of the reason for theproposed search; and(c) advise the person that he or she may either consent to the search or refuseto consent to the search.94 Circumstances where search by consent unlawfulA search by consent is unlawful if—(a) it is not for a purpose set out in section 92; or(b) the enforcement officer fails to comply with section 93(a), (b), or (c); or(c) the search is undertaken in reliance on a consent given by a person whodoes not have authority to give that consent.95 Ability of persons under 14 years to consent to searches of places,vehicles, or other things(1) A person under 14 years of age is unable to consent to the search of aplace, vehicle, or other thing.(2) Subsection (1) does not apply to a person under 14 years of age who isfound driving a vehicle with no passenger of or over the age of 14 yearswith authority to consent to the search of the vehicle.96 Exceptions to consent search rulesSections 92 to 95 do not—(a) apply to a search conducted as a condition of entry to any public orprivate place; or(b) apply to a search conducted in accordance with a power conferred by anenactment; or(c) affect the rule of law relating to the implied licence to enter property.[75] Entry into the home, albeit with the consent of Ms Grant, would be unlawful ifit was "a search" as referred to in s 94 and if the Police had failed to determine thesearch was for a purpose authorised by s 92 and had failed to give the advice referredto in s 93(b) and (c). Section 94(c) is not relevant. The officers did obtain consentfrom Ms Grant, an occupier of the property.[76] In R v Alsford, the majority of the Supreme Court described the purpose of thissubpart:26[21] We think it significant in this context that Parliament has not, despitethe existence of the search warrant process, prohibited consent searches by thepolice where they do not have sufficient information to obtain a warrant.Rather, it has recognised that the police may carry out consent searches(whether or not they have grounds to obtain a warrant) but has regulated them. The effect of [s 91] is that a consent search may be undertaken in26 R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710.accordance with ss 92-95 even though the officer undertaking it does not havethe suspicion or belief necessary to obtain a search warrant. This is made clearby the Law Commission, which specifically rejected introducing a"reasonable grounds" requirement for consent searches.[22] It appears that the consent search provisions were introduced to meetthe problems that were perceived to result from the police having anunrestricted ability to conduct consent searches (despite the existence of thewarrant process). The effect of the provisions is to restrict the circumstancesin which such searches can be conducted lawfully, by setting out the purposesfor which a consent search may be conducted and by establishing pre-conditions for a valid consent. The existence of the consent search provisionssuggests that Parliament did not see the enactment of the production orderprocess as necessarily restricting the ability of the police to obtain informationvoluntarily.Was the entry by Police into the property a "search"?[77] Before applying the facts to subpt 2 of the SSA, it is first necessary todetermine whether the constables' entry into Mr Grant's property amounted to a"search".[78] Mr Eaton argued the entry was clearly a search as it was undertaken for thepurpose of locating people and/or evidence in connection with a suspected offence.Ms Lancaster submitted that, in all the circumstances, with the way the Police enteredthe property and with the purpose of that entry, it should not be treated as a search.[79] The term "search" is not defined in the SSA. Whether the conduct of the Policeconstitutes a search in any given case is a fact-specific inquiry.27 The Supreme Courtin Hamed v R did not provide a single definition of "search" but adopted the approachof the Supreme Court of Canada that "[i]f the police activity invades a reasonableexpectation of privacy, then the activity is a search".28 Blanchard J identified twoelements to the inquiry, for which there appeared to be majority support: whether theperson affected had such an expectation in fact and whether the expectation was onethat society is prepared to regard as reasonable.29 In R v Alsford, the Supreme Court27 Wright v Bhosale [2016] NZCA 593, [2017] NZAR 203 at [45], citing Lorigan v R [2012] NZCA264, (2012) 25 CRNZ 729 at [23]-[24].28 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [163], quoting R v Wise [1992] 1 SCR 527at 533. See also Elias CJ at [8]-[10], Blanchard J at [161]-[168], Tipping J at [220]-[224], McGrathJ at [265].29 Hamed v R, above n 28, at [163].adopted Blanchard J's approach.30 It was also adopted by the Court of Appeal inLorigan v R31 and Ward v R.32 Hence, this approach should be followed in the presentcase.[80] I consider it is clear Mr Grant subjectively had an expectation of privacyagainst state intrusion into his own home. I also am of the view that this expectationwas one that society would be prepared to regard as reasonable given the primacyafforded in society generally to the right of privacy in one's own home. Here, thePolice entered the property to speak to the driver and not for the purpose of examiningthe property to see if the driver was there. Although the constables could assess witha strong degree of likelihood that the perpetrator of the driving offence was in theproperty before entering it, at that point they did not know the identity of the driver.Entry into the house was necessary to ascertain the driver's identity and to arrest thatperson. I consider it would be artificial to characterise the entry of Police officers intoa citizen's home, to locate and identify an offender and to make an arrest, as anythingbut an invasion of a reasonable expectation of privacy and therefore as a search.Was the entry into the home for a purpose specified in s 92?[81] On Constable Henare's account of what happened, the Police entered theproperty not for the purpose of investigating whether an offence had been committedbut to identify and charge whoever had committed the offence. They did not enter thepremises to prevent the commission of an offence or to protect life or property or toprevent injury or harm.[82] In considering whether entry into and then a search of the home was lawful interms of s 92(d), the Police and the Judge needed to determine if a power of searchwas conferred by any enactment and if the Police had a particular belief or suspicionreferred to in the enactment.[83] For the reasons already discussed, this search was not exercised pursuant to thepowers of a warrantless search set out in s 8.30 R v Alsford, above n 26, at [50].31 Lorigan v R, above n 27, at [22].32 Ward v R, above n 25, at [31].[84] Entry into the premises was also not authorised by s 119 of the Land TransportAct 1998. Section 119 empowers a constable to enter premises for the purpose ofdetermining whether to require a driver of a motor vehicle to undergo a breathscreening test or an evidential breath test. The constable must enter the premises inthe course of the fresh pursuit of a driver whom the constable has good cause to suspecthas committed a specified driving offence and has failed to stop when required to doso. The power may be exercised independently of an intention to arrest. On ConstableHenare's evidence, this was not such a situation.[85] Therefore, entry was not for the purposes of s 92.[86] There was no evidence from Constable Henare that he had advised Ms Grantof her right to refuse consent to an entry. He accepted it would have been good practiceto have told Ms Grant he had no legal authority to enter without her consent but he didnot do that because she was friendly and cooperative.[87] Pursuant to s 94, entry into the home, albeit with the consent of Ms Grant,would be unlawful if it was "a search" as referred to in s 94 and if the Police had failedto determine the search was for a purpose authorised by s 92 or had failed to give theadvice referred to in s 93(b) and (c).[88] On the evidence of Constable Henare, Mr Grant's home had been entered andsearched without the Police officers determining that the search was for a purposeauthorised by s 92 and without giving Ms Grant the advice referred to in ss 93(b) and(c). Accordingly, pursuant to s 94, the search was unlawful.[89] It follows that the admission subsequently obtained from Mr Grant that he wasthe driver and then the results of the breath alcohol testing were obtained inconsequence of an unlawful search under the SSA. The evidence was thus obtainedimproperly in terms of s 30 of the Evidence Act.33 The balancing test set out in s 30therefore had to be applied.33 Evidence Act 2006, s 30(5)(a); Ward v R, above n 25, at [47], citing R v Chetty [2016] NZSC 68,[2018] 1 NZLR 26 at [46]-[47]; and Boskell v R [2014] 497 at [9].The s 30 balancing test[90] The District Court Judge said, had evidence been obtained improperly, eitherbecause there had been no NZBORA caution before the men were asked who was thedriver or because of the way the house was entered, he would have admitted theevidence on the s 30 balancing test.[91] I must consider whether exclusion of the evidence would be proportionate tothe impropriety giving appropriate weight to the impropriety and taking properaccount of the need for an effective and credible system of justice.34 In thisassessment, the Court may have regard to the factors set out at s 30(3) of the EvidenceAct.[92] In terms of the importance of any right breached by the Police, the right to besecure from trespass and unreasonable search in the privacy of one's own home is oneof the most fundamental in our society and evidence obtained in the course of a breachby the agent of the state of such a fundamental right should not be admitted intoevidence lightly. However, I consider the intrusion on the Grants' rights was at thelow end of seriousness.[93] Ms Grant was asked if and confirmed that two men had returned to the propertyrecently. The Police said they wished to speak to them. She agreed to the Policeentering the home to do so. Once inside, before asking any questions, ConstableHenare had indicated he was investigating a nearby accident from which someone hadbeen tracked to this address. When Constable Henare asked who the driver was, itwould have been clearly apparent to Mr Grant that the constable was seeking toidentify who had committed a suspected driving offence. Those men did not object tothe Police either being in the home or to the question that was initially asked.[94] I do not consider the nature of the impropriety in this case can be characterisedas deliberate or made in bad faith. At the highest, there was a degree of absent-mindedness and nonchalance by the officer in neglecting to expressly advise Ms Grantof her right to refuse consent to the entry. As the evidence strongly suggests, she34 Evidence Act 2006, s 30(2).showed no hesitation in allowing the officers to enter her home and the improprietywas of a minor or technical nature in the circumstances. For the reasons discussed,had the officers been denied entry, it is likely they would have more carefully assessedthe whole situation. Had they done so, it is likely they would have formed thenecessary belief to have been empowered by s 8 to make a warrantless entry and searchof the home.[95] The evidence is of a high quality and is essential to the prosecution case on thecharges now of driving carelessly and with excess blood alcohol. There was urgencyin identifying the perpetrator and obtaining the breath or blood alcohol evidence as thelevel of alcohol would have been dissipating in Mr Grant's bloodstream as timepassed. The officers also made a considered decision to "go down the road ofconsent", albeit without being fully apprised of the pre-conditions of valid consentunder ss 92 to 95, and were acting in a situation that involved a degree of urgency.They were able to enter the property without causing any damage and withoutobjection from those who were inside.[96] I adopt the District Court Judge's assessment as to the seriousness of theoffence:35[79] The overall public view of drink driving is that it is a moderatelyserious driving offence. Here the defendant's blood alcohol reading was overtwice the legal limit. There had been a car accident. I find there is a strongpublic interest in such cases being pursued albeit that the case is not in themost serious of categories.[97] Balancing these relevant factors, I find that exclusion of the evidence of MrGrant's admission would not be proportionate to the impropriety. It is naturally ofcritical importance that Police officers exercising powers of search and entry do so inrigorous adherence to the law. However, the exclusion of the pivotal admissionevidence, obtained in accordance with the Practice Note, would be disproportionate tothe breach by Constable Henare here of failing to advise Ms Grant of her right to refuseentry in circumstances where neither she nor Mr Grant, having been informed of thereason for the officers' approach to the property, demonstrated any reticence orobjection to their entry. Adopting the finding of the Court of Appeal in Round v R,35 Police v Grant, above n 3.there would be an obvious gap in the law if it allowed Mr Grant to flee the crash scene,observed by witnesses, and so avoid the Police obtaining evidence that he hadcommitted a driving offence while under the influence of alcohol.36[98] In reaching this conclusion, I also have regard to the fact that, although thepower of search and arrest under s 8 was not available because the Police officers hadnot consciously turned their minds to the requisite grounds, it is likely they would havebeen able to exercise those s 8 powers if they had been refused entry. In thecircumstances, I consider it would have then been reasonable for them to conclude thatinside the house was one of the two men who had been driving the vehicle. It wouldhave been reasonable for the constables to believe, had they turned their minds to it,that the offending driver had entered the home and the Police were being denied entrybecause the driver did not want to be identified and did not want to undergo anevidential breath or blood alcohol test. They could reasonably have concluded that, ifthey did not enter the home, identify and arrest the suspected offender, evidence of abreath alcohol or blood alcohol offence would be altered or concealed.Conclusion[99] For all these reasons, the evidence in dispute is admissible. The appeal isdismissed.Solicitors:J H M Eaton QC, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch.36 Round v R [2020] NZCA 557 at [41].