FROOD v NEW ZEALAND POLICE [2021] NZHC 2907

FROOD v NEW ZEALAND POLICE [2021] NZHC 2907 [29 October 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000115[2021] NZHC 2907BETWEEN NIKEISHA ROSE FROODAppellantAND NEW ZEALAND POLICERespondentHearing: 14 October 2021Appearances: A J Bailey for AppellantJ H Whitcombe for RespondentJudgment: 29 October 2021JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 29 October 2021 at 2.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] The appellant, Nikeisha Frood, was convicted of driving with excess breathalcohol following a judge-alone trial before Judge Crosbie.1 She appeals herconviction on the basis that the evidential breath test reading was unlawfully obtained1 Police v Frood [2021] NZDC 13824.and, pursuant to s 30 Evidence Act 2006, the evidence should have been ruledinadmissible.Facts[2] On 24 July 2020, the Police set up an alcohol checkpoint on Carlton Mill Road,Christchurch in order to check motorists' alcohol levels. Two marked police cars wereparked facing each other in the centre of the road on the flush median. The red andblue flashing lights on the cars were operating and there were signs to indicate therewas a checkpoint in place. Police officers stood on the flush median, between the carswearing high visibility vests, and from there they signalled to drivers to stop for thecheckpoint.[3] At about 11 pm Ms Frood was driving on Carlton Mill Road and approachedthe checkpoint. When an officer signalled for her to stop she continued driving.Constable Hemi Wallace moved from his position in the middle of the road, got in tohis unmarked police vehicle that was parked on the side of the road, and followed her.He signalled for her to pull over by activating red and blue flashing lights. Ms Froodcomplied.[4] Ms Frood admitted to having five beers that evening and said she was on herway home from a quiz night. An alcohol breath test gave a result of 600 microgramsof alcohol per litre of breath which exceeded the legal limit of 250 micrograms.Ms Frood was charged accordingly.[5] Ms Frood appeals her conviction on the grounds that the police checkpoint wasillegal as it was in breach of r 6.7 of the Land Transport (Road Users) Rule 2004.2 Shesays there was a causal connection between the illegally located checkpoint and hersubsequent apprehension and breath testing. Consequently, the evidence wasimproperly obtained and should be excluded, even after considering the balancingexercise in s 30 of the Evidence Act.2 Although the appellant originally said it was also in breach of r 6.1 that argument is not advancedon appeal.Principles on appeal[6] This Court may only allow an appeal against conviction if satisfied that theJudge "erred in his or her assessment of the evidence to such an extent that amiscarriage of justice has occurred", or that "a miscarriage of justice has occurred forany reason."3 A miscarriage of justice means any error, irregularity, or occurrence inor in relation to the trial that has created a real risk that the outcome of the trial wasaffected, or has resulted in an unfair trial.4 In this section, a trial includes a proceedingin which the appellant pleaded guilty.5[7] The appeal proceeds by way of rehearing and this Court is required to form itsown view of the facts.6 If this Court reaches a different view on the evidence, itfollows the trial judge necessarily will have erred and the appeal must be allowed.7The onus is on the appellant to show that an error occurred.The law[8] The relevant rule in the Land Transport (Road User) Rule 2004 (the Rules) is:6.7 Parking on traffic islands and flush mediansA driver or person in charge of a vehicle must not stop, stand, or parkthe vehicle on a traffic island or flush median.[9] There is an exception to liability for breach of that rule contained in r 1.8. Thatrule relevantly provides:1.8 General exceptions(3) A person is not in breach of this rule if that person proves that the actor omission complained of—3 Criminal Procedure Act 2011, s 232(2)(b).4 Section 232(4).5 Section 232(5).6 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].7 At [38].(b) in the case of an act or omission done by an enforcementofficer or a parking warden, was necessary in the execution ofthe person's duty.District Court decision[10] Judge Crosbie found there were three issues to be determined. First, didConstable Wallace breach the relevant Rules? Secondly, if he did, does the exemptionin r 1.8 apply? Thirdly, if the exemption does not apply, should the evidence beexcluded under s 30 Evidence Act?[11] The Judge found that Constable Wallace did not breach r 6.7 which prohibitsparking on flush medians because the exemption in r 1.8 applied. The Judge notedthere was no real question that police checkpoints were generally necessary. He alsoheld the way the checkpoint (which was described as a micro-checkpoint) was set upwas necessary. The Judge noted had the vehicles been parked on the side of the road,the officers would have been deprived of protection from oncoming traffic. There wasa risk of vehicles failing to stop at the checkpoint, like Ms Frood did, which posed adanger to the officers at the checkpoint, particularly at night. The minor breach ofr 6.7 "provided a safe way for the officers to conduct a micro-checkpoint".8[12] The Judge also rejected the submission that there was a link between thealleged breach of r 6.7 and the obtaining of the evidence. He said the evidence wasnot obtained at the checkpoint, but when Constable Wallace subsequently pulledMs Frood's vehicle over and where all that followed was "legitimate".9[13] In the event he had erred in finding the evidence was not improperly obtained,he went on to consider whether the evidence should be excluded under s 30 EvidenceAct. In considering the balancing exercise, he noted there had not been any obviousbreach of Ms Frood's rights, any impropriety was very slight, the offending was amoderately serious offence, and the impropriety was necessary for the physical safety8 Police v Frood, above n 1, at [32].9 At [25].of the police officers. On balance, the Judge was satisfied that excluding the evidencewould not be proportionate to the impropriety.[14] The Judge found the evidence was admissible and Ms Frood's conviction wasinevitable.SubmissionsAppellant's submissions[15] Ms Frood's position on appeal is the checkpoint on Carlton Mill Road was inbreach of r 6.7 because the police vehicles were parked on the flush median and theycould not demonstrate that it was "necessary" to do so. The illegal checkpoint led toher being stopped and breath tested and the evidence obtained was thereforeinadmissible.[16] Mr Bailey submits the District Court Judge failed to explain why checkpointsthemselves are necessary. The fact that checkpoints are used by the police and maybe an "important tool" does not render them necessary. He says that in applying andinterpreting the word "necessary" as it appears in cl 1.8, it is important not to overlookthat the clause excuses otherwise unlawful conduct. Mr Bailey submits there arereasonable alternative options to checkpoints, including signalling or requestingdrivers to stop pursuant to s 114(2) Land Transport Act 1998. Similarly, testing canbe undertaken if the police attend an incident such as an accident.[17] Even if checkpoints are necessary it does not follow that parking the vehicleson the flush median was necessary in this particular case. Mr Bailey submits theavailability of alternative checkpoint set-ups suggest it is not necessary to utilise sucha setup. Further, the police do not have ownership of the roads and free range to parkvehicles in the middle of the roads at any time. Mr Bailey challenges the necessity ofsetting up a checkpoint on a non-arterial road at night. He suggests that the utilisationof such checkpoints is a matter of convenience for police, rather than necessity.[18] Mr Bailey submits the vehicles could have been parked in a lawful way andprovided just as much protection to the officers. He submits his research shows thatthe use of police vehicles parked in the middle of roads is not customary practice.Accordingly, in Mr Bailey's submission, the parking of vehicles in the middle of theroad at night was not necessary.[19] Mr Bailey submits it was the unlawful police set up that led to Ms Frood beingstopped by police and undergoing breath testing procedures. Accordingly, there wassufficient causative connection between the illegality and gathering of evidence to saythe evidence was improperly obtained. In his submission, the exclusion of theevidence is proportionate to the impropriety which took place.Respondent's submissions[20] Mr Whitcombe, for the respondent, submits the exemption in r 1.8 of the Rulesapplies and the police were therefore not in breach of them. In any event, the DistrictCourt Judge found that Constable Wallace was not the driver of either of the vehiclesparked on the flush median and therefore he could not be said to be in breach of theRules. The Judge found the stop was not completed at the checkpoint where thevehicles were parked, accordingly the evidence was not improperly obtained. In thealternative, if this Court finds the police acted illegally, the evidence shouldnonetheless be admitted pursuant to s 30 Evidence Act.[21] In submitting the exemption in r 1.8 applies, Mr Whitcombe refers to Whittakerv Police where the appellant challenged a speeding ticket.10 There, the police officerwas seated in a patrol car on an elevated grass median area. From that position hedetected the appellant exceeding the speed limit, stopped him and issued him with aninfringement notice. The appellant contended the officer was parked on the elevatedmedian in breach of the Rules. Gendall J held that the finding in the lower Court thatthe breach was necessary, was a finding that it was entitled to make. In any event, ifillegally obtained, the evidence should still be admitted as the officer's "parkinginfringement in no way infringed the appellant's rights or entitlements."1110 Whittaker v Police HC Wellington CRI-2006-485-29, 26 May 2006.11 At [27].[22] In Mr Whitcombe's submission, it is not necessary to determine whether policecheckpoints are "necessary" as a matter of general policy. Here, the officers wereconducting a lawful duty in testing road users for alcohol and the analysis requires adetermination of whether the parking of the police vehicles on the flush median wasnecessary in the execution of the officer's duties.12[23] In relation to the s 30 Evidence Act analysis, Mr Whitcombe refers to Miller vPolice saying similar considerations arise.13 There, the police officer was parked ondouble yellow lines when he observed the appellant engaged in street racing and theevidence was considered to be improperly obtained. However, on conducting the s 30analysis, Whata J concluded that the evidence should not be excluded.[24] Mr Whitcombe submits the police did not breach Ms Frood's rights, there isno evidence the police acted in bad faith or in contravention of the regulations, nor didthey present a serious safety risk to the public. Further, Ms Frood's level ofintoxication gives rise to real and serious public safety concerns. These all point tothe evidence being admissible.AnalysisDid the Police breach the Rules, and if so, does the general exemption apply?[25] Ms Frood does not challenge the Judge's findings that the police were not inbreach of r 6.114 but pursues her appeal on the grounds they were in breach of r 6.7.[26] Two marked police vehicles were parked on the flush median as part of theset-up for the checkpoint. It is common ground this was a breach of r 6.7 unless theexception in r 1.8 applies.[27] I do not consider it necessary to engage in the broad question of whethercheckpoints are necessary as a matter of police policy or on whether a checkpoint inthis particular location was necessary. There can be no doubt that police are authorised12 Referring to Land Transport Act 1998, s 114.13 Miller v Police [2012] NZHC 817.14 Which prohibits road users from parking vehicles on the road "without due care or withoutreasonable consideration for other road users".to check motorists for excess breath alcohol as long as certain rules and proceduresare followed. Section 68 of the Land Transport Act 1998, makes it clear that testingmay be required, not just of people who are suspected of committing offences underthat Act, or who are involved in an accident, but any person driving, or attempting todrive, a motor vehicle on a road.15 In that regard, I accept the District Court Judge'sconclusion that police checkpoints are necessary to enforce pt 6 of the Land TransportAct and are an important tool in both detecting and deterring drink driving.[28] Given it is lawful to establish checkpoints for the purpose of monitoringmotorists' alcohol levels and deterring drink driving generally, in my view the questionshould simply focus on whether it was "necessary" for the police to park vehicles onthe flush median to carry out a checkpoint at this location.[29] The meaning of the term "necessary" has been considered judicially, althoughnot in this particular context. In Commissioner of Stamp Duties v InternationalPackers Ltd and Delsintco Ltd, North J discussed the meaning of the word "necessary"and concluded:16I am disposed to agree that the word necessary "must be given a fairconstruction and that it does not mean absolutely necessary" but reasonably"necessary" with reference to the circumstances of the case and the purposeof the statute under consideration.He then cited, with approval, Sir George Jessel MR in In re Wreck Recovery andSalvage Co Ltd, where he said:17Now the word "necessary" means that it must not be merely beneficial butsomething more, though the necessity must be determined by the Court,having regard to all the circumstances of the case. It does not, of course mean,that no other course would be possible.[30] The meaning of the term "necessary" was also discussed in the Court ofAppeal's decision in Environmental Defence Society Inc v Mangonui CountyCouncil.18 Cooke P observed that "necessary is a fairly strong word falling between15 Land Transport Act 1998, s 68(1)(a).16 Commissioner of Stamp Duties v International Packers Ltd and Delsintco Ltd [1954] NZLR 25(CA) at 54.17 In re Wreck Recovery and Salvage Co Ltd (1980) 15 ChD 353.18 Environmental Defence Society Inc v Mangonui County Council [1989] 3 NZLR 257 (CA).expedient or desirable on the one hand and essential on the other."19 In similar vein,Somers J said:20The word "necessary" is one of somewhat protean dimensions. It may importsomething which cannot be done without, that is to say somethingindispensable or it may mean requisite or needful. The last two themselvesembrace varying degrees of necessity.[31] In the present case, where both the Rules and the use of alcohol checkpointsare intended to promote road safety, I do not consider the police action in breachingr 6.7 must be shown to be the only course that was available to them. Rather, I considerit requires the police to show that it was reasonably necessary to do this, particularlywhere, as has been conceded, it was done with due care and consideration for otherroad users.[32] Constable Wallace, being the constable who ultimately breath tested Ms Frood,gave evidence in the District Court. He explained that he stood in the middle of theroad, on the hatched median strip, between the two parked police patrol vehicles andfrom there he would signal cars to stop. In cross-examination he accepted that normalcitizens would not be allowed to park on the flush median in the middle of the road.The constable acknowledged he did not turn his mind to whether the set-up was legalas it was already in place when he got there. However, he explained that placing thecars in that arrangement was standard practice and was outlined in a document to showsafe practice when setting up what he described as a "micro checkpoint".[33] While there was limited evidence on the question of necessity, as a matter oflogic, where police are having to approach drivers on the driver's side of the vehicle,having the vehicles parked in a way where they physically protect the police officersstanding in the centre of the road did, as the Judge concluded, provide "a safe way forthe officers to conduct a micro checkpoint".21 While it may be possible to envisageanother way to set-up a micro-checkpoint on a road such as this, I consider it was"necessary" in the sense of being reasonably needed to conduct the checkpoint safely.I am fortified in this view by having regard to the purpose of the Rules which are to19 At 260.20 At 280.21 Police v Frood, above n 1, at [32].enhance road safety. No danger or obstacle was created by the police vehicles and itfacilitated the conduct of their checkpoint which, itself, had a road safety objective.[34] In my view, the Judge did not err in finding the exemption under r 1.8 appliesand that a breach of r 6.7 was necessary for the police officers to execute their dutiesin a safe manner.[35] If I am wrong in that conclusion the next issue is whether the illegality in thecheckpoint set-up was sufficiently linked to Constable Wallace subsequently obtainingthe breath alcohol evidence from Ms Frood, to say the evidence was improperlyobtained.[36] As Mr Bailey submitted, evidence is improperly obtained pursuant to s 30(5)of the Evidence Act if (among other things) it is obtained "in consequence of a breachof any enactment or rule of law". A causal connection is therefore required.[37] Mr Bailey relied on the Court of Appeal's decision in R v Williams asdescribing the required degree of link between the impropriety and the evidencesubsequently obtained.22 In that case, it was said that the "but for" test was appropriateand that:23 [u]nder this test, subsequent evidence that would not have been obtainedbut for the breach must be considered to have a real and substantial connectionto that breach. It would therefore be unreasonably obtained on that basis. Thetest will not be met, however, where the obtaining of the evidence can be seenas being independent of the breach. It also does not apply where the linkbetween the breach and the evidence is so remote that it cannot sensibly beseen as causative of the obtaining of the evidence.[38] Mr Bailey also referred to Duffy J's observations in S v Police, where theappellant had been denied access to a toilet during a blood test process, in breach ofhis rights under the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act),causing him to soil himself.24 Duffy J concluded that it was:2522 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.23 At [98].24 S v Police [2018] NZHC 1582, [2019] 2 NZLR 392.25 At [71] (footnotes omitted). not so simple as to say that the blood test would have been obtainedregardless of the Police impropriety and therefore there was no causative linkbetween the two Causation is ultimately a question of judgment. A"material or operative effect" is required.She concluded the entire search was "coloured by the impropriety".26 Without theinappropriate search there would not have been a blood test and the fact that it couldhave been obtained by a Bill of Rights Act compliant search could not break thelinkage between the actual search and the evidence on which the conviction relied.27[39] Here, Mr Bailey says the unlawful police set-up on Carlton Mill Road waswhat led to Ms Frood being stopped by the police and required to undergo alcoholtesting procedures, including an evidential breath test, and this was a sufficient causalconnection, even on the factual base that the Judge proceeded on.[40] I disagree. In my view, the causal connection between the illegally parkedpolice vehicles (if in fact they were) and the obtaining of the evidence was simply tooremote. There is no suggestion that the way the vehicles were parked was material, inany way, to Ms Frood's actions in failing to stop or in her deciding to stop whensubsequently followed by Constable Wallace in a separate police car. This is not acase where, for example, an unlawful search leads to evidence being located, wherethere is a clear link between the impropriety and the evidence obtained. It is also nota case like Miller v R where the very reason the police officer chose to park on theyellow lines was so he could "detect any behaviour that could pose a danger to othersand indeed that is what he observed".28[41] Equally, this is not a case where the impropriety directly taints the process ofgathering the evidence as it did in S v Police.29 There is no suggestion thatConstable Wallace's actions in following Ms Frood, signalling for her to stop and thenadministering the screening and evidential breath test was in any way improper.Unlike the appellant in S v Police, Ms Frood's rights were not violated in any way.26 At [71].27 At [71].28 Miller v Police, above n 13, at [6] quoting from the lower Court's judgment.29 S v Police, above n 24.[42] In my view, the lack of causal connection between the way the police vehicleswere parked and the gathering of breath alcohol evidence is clear and means thisappeal must fail.Section 30 Evidence Act[43] In the alternative, and in case I am wrong in finding the evidence was notimproperly obtained, I go on to consider the s 30 Evidence Act balancing exercise.[44] Section 30 relevantly provides:30 Improperly obtained evidence(2) The Judge must -(b) determine whether or not the exclusion of the evidence isproportionate to the impropriety by means of a balancingprocess that gives appropriate weight to the impropriety butalso takes proper account of the need for an effective andcredible system of justice.(3) For the purposes of subsection (2), the court may, among any othermatters, have regard to the following:(a) the importance of any right breached by the impropriety andthe seriousness of the intrusion on it:(b) the nature of the impropriety, in particular, whether it wasdeliberate, reckless, or done in bad faith:(c) the nature and quality of the improperly obtained evidence:(d) the seriousness of the offence with which the defendant ischarged:(e) whether there were any other investigatory techniques notinvolving any breach of the rights that were known to beavailable but were not used:(f) whether there are alternative remedies to exclusion of theevidence which can adequately provide redress to thedefendant:(g) whether the impropriety was necessary to avoid apprehendedphysical danger to the Police or others:(h) whether there was any urgency in obtaining the improperlyobtained evidence.[45] The checkpoint setup did not breach Ms Frood's rights. Further, there is noevidence of bad faith by Constable Wallace, nor on the part of the supervisor in chargeof setting up the checkpoint. In my view, the impropriety was minor.[46] I see no error in Judge Crosbie's assessment of the gravity of Ms Frood'soffending as moderate. Driving while intoxicated poses a significant risk to publicsafety and failing to stop at the checkpoint was an aggravating factor.[47] In respect of whether other techniques were available, it may be the policecould have parked the vehicles on the side of the road, thus not breaching r 6.7.However, I agree with Judge Crosbie's comment that that would increase the risk tothe officers, particularly given the time of night at which the checkpoint was operating.[48] I do not consider the exclusion of the evidence to be proportionate to theimpropriety. Accordingly, I consider the Judge was correct to conclude the evidenceshould be admitted under s 30, if he had been required to make that decision.Conclusion[49] The appeal is dismissed.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:Mr A J Bailey, Barrister, Christchurch