GRAINGER v POLICE [2020] NZHC 1869

GRAINGER v POLICE [2020] NZHC 1869 [30 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000209[2020] NZHC 1869BETWEEN NATALIE REBECCA GRAINGERAppellantAND NEW ZEALAND POLICERespondentHearing: 28 July 2020Counsel: TD Clee for AppellantLJ Sullivan for RespondentJudgment: 30 July 2020JUDGMENT OF DOWNS JThis judgment was delivered by me on Thursday, 30 July 2020 at 10.30 am.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Manukau.TD Clee, Auckland.The appeal[1] Ms Grainger was convicted of one charge of driving with excess breathalcohol.1 Judge David J Harvey fined and disqualified Ms Grainger from driving forsix months.2 Ms Grainger appeals conviction and sentence. Mr Clee for Ms Graingersays the conviction appeal is the primary one. If it fails, the sentence appeal can bedismissed.Background[2] On the evening of 22 November 2018, Ms Grainger was at McDonald's.Her car lightly collided with another. The driver of the other car, Meleina Lafu, spoketo Ms Grainger. Ms Lafu considered Ms Grainger unhelpful. And, to be either "underthe influence or drunk". Ms Lafu attempted to block Ms Grainger from leaving, butMs Grainger mounted a kerb and drove away. Ms Lafu called Police and followed fora time.[3] Just after 10.12 pm, Constable Peter McLean found Ms Grainger at home. Shelived nearby. The officer required Ms Grainger to undergo a breath screening test.This happened at the doorway of the home. Ms Grainger failed the test.Constable McLean then required Ms Grainger to accompany him to the Police station.She there failed an evidential breath test: 762 micrograms of alcohol per litre of breath.[4] Ms Grainger accepts she had been drinking before going to McDonald's (oneglass of wine). But, Ms Grainger says she drank more before Constable McLeanarrived.The case for Ms Grainger[5] Mr Clee makes two arguments. First, Ms Grainger's subsequent consumptionof alcohol undermines the application of s 77(1) of the Land Transport Act 1998,because of the possible delay between events at McDonald's and her home. I call thisthe presumption argument. Second, the breath screening test (and everything that1 In contravention of the Land Transport Act 1998, s 56(1).2 Police v Grainger [2020] NZDC 10721.followed) was inadmissible because Constable McLean exceeded an implied licencewhen reaching inside to administer the breath screening test. Both arguments wereraised with the Judge.Analysis[6] The presumption argument requires some introductions. Section 77(1) of theAct provides:For the purposes of proceedings for an offence against this Act arising out ofthe circumstances in respect of which an evidential breath test was undergoneby the defendant, it is to be conclusively presumed that the proportion ofalcohol in the defendant's breath at the time of the alleged offence was thesame as the proportion of alcohol in the defendant's breath indicated by thetest.[7] To this must be added s 68(1)(b), the provision concerning the power toadminister a breath screening test:68 Who must undergo breath screening test(1) An enforcement officer may require any of the following persons toundergo a breath screening test without delay:...(b) a person whom the officer has good cause to suspect has recentlycommitted an offence against this Act that involves the driving of amotor vehicle:[8] The Judge dealt with the presumption argument this way:3A critical argument has been addressed by Mr Clee as to the issue of timingand he has referred to the case of Torres-Calderon v Police, a decision ofDuffy J which does point to the importance of timing in cases such as this.However, the timing as far as I can see involves probably no more than anhour 20 minutes, if that, and that there is sufficient juxtaposition between thedriving and the enquiry that was made by Constable McLean for it to fallwithin the reasonable enquiry time referred to in the statute.Ms Grainger indicated that she had consumed alcohol between arriving homeand the time that she was approached by Constable McLean. The suggestionof course is that the level of alcohol in her blood was affected by this but thatis covered clearly by the presumptions under s 77(1) which were specificallyenacted to state that the level that is revealed at test was the level at the timeof driving specifically enacted to recognise that there were occasions where3 Police v Grainger, above n 2, at [22]–[23] (footnotes omitted).alcohol might be consumed between the driving incident and testing incidentand of course there has been no evidence to suggest that the consumption ofthat alcohol skewed the result. So the presumption under s 77(1) LandTransport Act must apply.[9] In the case discussed by the Judge, Duffy J warned of the danger of expandingthe power to administer a breath screening test through inflation of the implied licenceto enter property to administer the test.4 Mr Clee argues Ms Grainger's case illustratesthe danger as she consumed alcohol after returning home, on her evidence, when shehad done nothing wrong, and the test was some time later.[10] The evidence differs as to how much later. Ms Lafu said the McDonald'sincident occurred at 9.20 pm. Ms Grainger said 8.40 pm. Stills from closed-circuittelevision supported the latter, but these were not put in evidence. The Judge appearsto have concluded the McDonald's incident happened at 9 pm, perhaps taking themiddle ground. Constable McLean first spoke with Ms Grainger just after 10.12 pm;Ms Grainger's flatmate answered the door, then got Ms Grainger.[11] Four points address the presumption argument. First, even on Ms Grainger'sevidence, Constable McLean spoke with her only a little more than 90 minutes afterthe incident. In Round v R, the Court of Appeal held a delay between 90 minutes andtwo hours was unremarkable.5 Second, Ms Lafu believed Ms Grainger had beendrinking. Ms Grainger's driving at the scene provided support for that belief.The combination was sufficient to engage s 68(1)(b) which, as observed, permits anofficer to require someone to undergo a breath screening test on good cause to suspectthat person "has recently committed an offence against this Act". Third, a long line ofauthority holds the mere fact of delay and subsequent alcohol consumption do notdisplace the presumption in s 77(1).6 Were it otherwise, the provision would befrustrated. So too legislative intent. Fourth, the decision cited by Mr Clee to theJudge—Torres-Calderon v Police—is ultimately concerned with the concept of4 Torres-Calderon v Police [2018] NZHC 722 at 51, citing Transport Ministry v Payn[1977] 2 NZLR 50 (CA).5 Round v R [2018] NZCA 155.6 In addition to Round v R, above n 5, see Stewart v Police [1970] NZLR 560 (CA); Police v Bradley[1974] 1 NZLR 113 (CA); Transport Ministry v Poskitt [1976] 1 NZLR 153 (SC); Seigel v Ministryof Transport (1989) 4 CRNZ 183 (HC); Ministry of Transport v Martis [1993] 1 NZLR 307 (CA);Tebbs v R [2013] NZCA 523.implied licence, not a reading down of s 77(1) when someone has consumed alcoholafter a collision.[12] This brings me to the second argument. It is common ground a Police officer—like anyone else—may walk to the front door of a home and knock on that door in thehope of speaking to an occupant. Mr Clee contends Constable McLean exceeded thisimplied licence by reaching inside to administer the breath screening test.Ms Grainger says this is what happened.7 The Judge appears to have found it did.However, the Judge concluded this was not unlawful as Ms Grainger did not protest,and the officer's action was consistent with the operation of an implied licence.[13] The leading decision on the concept of implied licence is that of ourSupreme Court in Tararo v R.8 Tipping J, for the majority, described the licence as"permitting entry onto private premises for the purpose of reasonable enquiry".9An occupant "is entitled to deny or terminate the licence, either in advance of its beinginvoked or in the course of its being invoked".10[14] There was no challenge to the lawfulness of Constable McLean's entry ontothe property. Nothing in the record suggests Ms Grainger did anything to deny orterminate the licence to her front door. Constable McLean did not go inside.11So, the only question is whether reaching inside (given the Judge's finding) made theofficer's otherwise lawful conduct unlawful.[15] Mr Clee contends Police v McDonald suggests so.12 In that case, a Policeofficer "administered a passive breath test on the doorstep".13 Dobson J considered adistinction arose between going onto private property, and going inside privateproperty:14The existence of the implied licence is not contentious. It permits a Policeofficer to enter private property so far as is necessary to engage an occupier,7 The officer's evidence is not so clear.8 Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145.9 At [12].10 At [12].11 Nor did his colleague.12 Police v McDonald HC Nelson CRI-2009-442-11, 30 October 2009.13 At [5].14 At [36].in the course of any lawful enquiry. Generally, that would involve going tothe threshold of the premises on the property. Going further, typically into thepremises, depends upon either consent being given by the occupier for theofficer to do so, or the dialogue from the threshold reaching the point wherethe officer can justify exercising coercive powers. Realistically, consent isoften treated as having been granted impliedly.[16] I respectfully agree with Dobson J's distinction, which is consistent withTararo. However, McDonald does not answer the question. Nor does Tararo.[17] It may be helpful to step away from the facts. Imagine a courier driver comesto the front door and hands the occupant a package through the open door. Or, asalesperson comes to the front door and hands, inside to the occupant, a brochure. Thesame hypothetical can be imagined in diverse scenarios: a politician electioneering,handing their party's flier to the person inside; a child handing chocolate inside to raisemoney for their school; or a neighbour reaching inside to return something they hadborrowed a day earlier. Few would question the legality of these actions unless, ofcourse, the occupant had terminated the licence, say for example, by locking the gate,posting a sign forbidding anyone coming to the front door, or telling the person frombehind a closed door to go away.[18] Constable McLean's actions are analogous. The officer was giving somethingto Ms Grainger, not taking something from her home; nor doing anything to get inside,for example, unlocking a latch. His action in passing the device inside so Ms Graingercould breathe into it would not be "a search" in everyday language nor incontravention of a reasonably held expectation of privacy, the usual touchstone of asearch under s 21 of the New Zealand Bill of Rights Act 1990. Again, the examplesexplain why: the licence often extends to someone reaching inside to give the occupantsomething, providing the occupant has come to the door and done nothing to revokethe licence, either then or earlier.[19] Mr Clee contends Ms Grainger revoked the licence. This submission isunsupported by the record. Ms Grainger said nothing to Constable McLean or hiscolleague to suggest they were not lawfully on the property, or otherwiseunwelcome.1515 Ms Grainger said she believed she had to undergo the breath screening test.Result[20] The appeal is dismissed...Downs J