DAVEY v POLICE [2019] NZHC 2107

DAVEY v POLICE [2019] NZHC 2107 [27 August 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-406[2019] NZHC 2107BETWEEN PAUL GORDON DAVEYAppellantAND NEW ZEALAND POLICERespondentHearing: 23 July 2019Counsel: J W Clearwater for AppellantM J Mortimer for RespondentJudgment: 27 August 2019JUDGMENT OF BREWER JThis judgment was delivered by me on 27 August 2019 at 4:00 pmRegistrar/Deputy RegistrarSolicitors:Clearwater & Associates (Auckland) for AppellantMeredith Connell (Auckland) for RespondentIntroduction[1] Mr Davey appeals convictions entered by Judge J Jelas on one charge ofrefusing to permit a blood specimen to be taken1 and one charge of resisting police.2[2] The nub of the appeal is that it was the police officer involved who actedunlawfully, not Mr Davey.[3] My task is to assess whether a miscarriage of justice has occurred. In doingso, I must reach my own view of the evidence, bearing in mind any advantage JudgeJelas had through actually seeing the witnesses.3Background[4] There is evidence to the following effect: A car was seen driving erratically bya member of the public. The police were informed. Constable Keating was directedto investigate. A short time later he found the car parked in a driveway of a suburbanhome. The constable parked his police car in the street and walked up the drivewaytowards the car. Mr Henry, the tenant of the garage on the property (converted to adwelling), was present. Constable Keating asked him whether he knew the driver ofthe car. Mr Henry's reply was to the effect he did not know the driver, but he knewthe owner. Mr Henry indicated Mr Davey who was standing nearby. ConstableKeating spoke to Mr Davey and Mr Davey admitted being the driver of the car.However, Mr Davey challenged Constable Keating's right to be on the property byrepeatedly asking him whether he had a search warrant.[5] There is controversy over the order of events, and what was actually said, butat some stage Constable Keating required Mr Davey to undergo a breath screeningtest. Mr Davey refused, and refused to accompany the police officer for the purposeof undergoing an evidential breath/blood test. Constable Keating arrested Mr Daveyand Mr Davey resisted being arrested by stiffening his body and refusing to walk.1 Police v Davey [2018] NZDC 20673; and Land Transport Act 1998, s 60(1)(a).2 Summary Offences Act 1981, s 23(a).3 Sena v Police [2019] NZSC 55.[6] Mr Davey was a visitor to the property. One tenant of the property (Mr Henrywas a sub-tenant) was Mr Davey's ex-partner. She was absent. Mr Davey had takento spending weekends at the property with the consent of his ex-partner. Also presentwas the 15-year-old daughter of Mr Davey and his ex-partner, Ms Brooke Davey.Ms Brooke Davey lived at the address and was also involved in this incident. Whatshe said to Constable Keating was also the subject of dispute at the trial.The issue[7] A police officer has the same right as any other member of the community towalk onto someone else's residential property for a lawful purpose.4 For example, astranger to a neighbourhood looking for a friend's address might go to the door of ahouse and knock with the intention of asking whether the occupant knows where hisfriend lives. That is not an act of trespass. However, if the person who answers thedoor tells the visitor to leave the property, and the visitor refuses, then the visitor isunlawfully on the property as a trespasser. Of course, that depends on the person whoanswered the door having the lawful authority to require the visitor to leave.5 Toillustrate through extremes, a burglar would have no such authority, but the owner ofthe house would.[8] Here, Constable Keating walked onto the property lawfully because he wasthere for a lawful purpose, to make inquiries as to whether the car was the one reportedas being driven erratically and whether, if so, the driver was present. The issue iswhether Constable Keating's implied licence to be present on the property wasrevoked before he started acting coercively by requiring Mr Davey to undergo a breathscreening test, to accompany him for the purpose of undergoing an evidentialbreath/blood test and then arresting him when he refused. It is the issue because ifConstable Keating's implied licence to be on the property had been revoked then hewas thereafter a trespasser and his coercive requirements were unlawful. He shouldhave left the property and applied for a search warrant to re-enter.4 R v Bradley [1997] 15 CRNZ 363 (CA) at 368; Attorney-General v Hewitt [2000] 2 NZLR 1100(CA); Transport Ministry v Payn [1977] 2 NZLR 50 (CA); and Robson v Hallett [1967] 2 QB 939.5 See Lovelock v Ministry of Transport HC Timaru GR102/80, 21 July 1981; Robson v Hallett; andTorres-Calderon v Police [2018] NZHC 722, [2018] NZAR 665.[9] The issue is complicated by the fact that Constable Keating encountered andspoke to three people after he walked onto the property. The issues relating to themare:Mr Davey:• Did Mr Davey have the right to tell Constable Keating to go?• If so, did he tell Constable Keating to go?• If so, did he tell Constable Keating to go before Constable Keatingexercised his coercive power?Ms Brooke Davey• Did Ms Davey have the power to tell Constable Keating to go?• If so, did she tell Constable Keating to go?• If so, did Ms Davey tell Constable Keating to go before ConstableKeating exercised his coercive power?Mr Henry• Did Mr Henry give Constable Keating permission to be on the propertywhich continued through the period in which he dealt with Mr Davey?• If so, did that permission entitle Constable Keating to remain even ifMr Davey and/or Brooke Davey had the right to tell him to go and didso?District Court decisions[10] Judge Jelas gave two decisions relevant to this appeal. The first was inresponse to an application by Mr Davey at the end of the Crown case for the chargesagainst him to be dismissed.6 Judge Jelas in her judgment of 18 April 2018 decliningto dismiss the charges found Mr Davey had no authority over the property to enablehim to require Constable Keating to leave.7 Further, on the evidence the Judge did notconsider Mr Davey had actually required the constable to leave:[13] In addition, I do not consider there was a revocation of the impliedlicence. Mr Davey's repeated reference to a search warrant is not an actrevoking the Constable's licence. The test for revocation is objective. Amisapprehension by Mr Davey that a warrant was required was not arevocation but rather a misstatement of law.(footnotes omitted)[11] Judge Jelas dealt with a number of other objections to the legality of the wayMr Davey was treated by the police, but they are not pursued on this appeal.[12] The trial resumed, and evidence was called on behalf of Mr Davey. At theconclusion of the defence evidence, Mr Davey again applied for the two chargesagainst him to be dismissed. The application was determined against Mr Davey byJudge Jelas in her judgment of 5 October 2018. Having dismissed the application, theJudge found the charges to be proved. Findings by the Judge relevant to the issues onthe appeal regarding Ms Davey are:(a) Ms Davey did not have the lawful authority to revoke ConstableKeating's implied licence.8 Ms Davey was the daughter of a tenant ofthe property (in addition to her mother, her mother's partner was anamed tenant on the tenancy agreement). Therefore, the Judgeconcluded, while Ms Davey was lawfully on the premises that did notgive her the authority to revoke Constable Keating's implied licence ofentry. Merely being a child of a tenant and resident at the property didnot give her an agency on behalf of the tenants to exercise theirauthority in this way.6 Police v Davey [2018] NZDC 2896.7 At [12].8 Police v Davey, above n 1, at [8].(b) Ms Davey did not actually tell Constable Keating to leave.9 Instead, allthat was asked of him, multiple times, was whether he had a searchwarrant. Where Constable Keating's evidence conflicted with that ofMs Davey, the Judge preferred the evidence of the constable.Mr Davey's case on appeal[13] On appeal, Mr Davey argues that Judge Jelas was in error in concluding thatMr Davey, and/or Ms Brooke Davey, did not have the authority to require ConstableKeating to leave and did not in fact do so. So far as Mr Davey is concerned, thesubmission is that, on the evidence, Mr Davey asked Constable Keating whether hehad a warrant to be on the property "about one minute into the conversation". Theconstable replied that he did not require a search warrant and that under the LandTransport Act he had a right to be there. According to Constable Keating:10 the conversation kept on going around in a circle that I needed a searchwarrant and I explained that I didn't need a search warrant and I required himto undergo a breath screening test. I believe I did this at least five times.[14] Later, in response to a question from the Judge, Constable Keating said:11He kept on saying that I couldn't be on the property, I needed to go away andget a search warrant and it was just a, it was just a circuitous conversation.[15] Mr Clearwater for Mr Davey submits this evidence can only be interpreted asbeing a denial by Mr Davey of the constable's implied licence to be on the propertyand amounts to a requirement for the constable to leave. Mr Clearwater submittedalso that Mr Davey had the authority to require the constable to leave because he waslawfully present as a periodic guest of the tenants and because Ms Brooke Davey gaveevidence that while her mother was away she was in charge but when Mr Davey wasat the property both were responsible as to who visited it.[16] So far as Ms Brooke Davey is concerned, the submission is she had authorityto require the constable to leave because she lived on the property and while her9 At [10].10 NOE, 8 August 2017, at p 25, lines 18– 21.11 At p 26, lines 26–28.mother was away she was in charge. Ms Brooke Davey explicitly or impliedlyexercised her authority to tell the constable to leave, but the constable did not.The Crown's response[17] Mr Mortimer's first submission is that, regardless of the positions of Mr Daveyand Ms Brooke Davey, Mr Henry was clearly, as sub-tenant, able to give ConstableKeating permission to be on the property and to remain there. He submits that on theevidence Mr Henry did so.[18] The evidence is that Mr Henry, having pointed out Mr Davey to the constablewhen he first arrived, went into his garage. He reappeared at the time the constablewas attempting to arrest Mr Davey. Mr Henry did not oppose the constable being onthe property. To the contrary, he urged Mr Davey to co-operate with ConstableKeating and to go to the Police Station to sort things out.[19] Mr Mortimer submits that where a person who has authority over a propertypermits a person to remain on it, then that permission confers lawful authority toremain on the property even if others who are entitled to exercise authority direct theperson to leave.12[20] The Crown supports Judge Jelas's finding that, regardless of authority, neitherMr Davey nor Ms Brooke Davey directed Constable Keating to leave. All they didwas question the constable's right to be there without a search warrant.[21] Mr Mortimer, properly, conceded that at common law an occupier is definedas someone who has a sufficient degree of control over premises to come under a dutyof care to those who come lawfully onto the premises.13 He accepted, withoutconceding the point, that Ms Brooke Davey and possibly Mr Davey could beconsidered occupiers under this test.12 Bell v Police HC Dunedin, AP 10/01, 27 June 2001 at [15]; citing R v Thornley (1980) Cr App R72 (CA); and Attorney General v Hewitt, above n 4.13 Wheat v E Lacon & Co Ltd [1965] 2 All ER 700 (CA).DiscussionMr DaveyDid Mr Davey have the right to tell Constable Keating to go?[22] The evidence is that Mr Davey had been staying weekends at the property withthe permission of the tenants. When Constable Keating arrived, the tenants wereabsent attending their church (per Mr Henry) or shopping (per Ms Davey). Mr Daveywas a guest and he was no longer in an intimate relationship with his ex-partner.[23] I have not found, or been referred to, authority explicitly setting out who isauthorised to withdraw or revoke an implied licence. However, I accept that the abilityto grant or revoke permission to be on land has generally been attributed to a personwho is an occupier, or in possession of that land.14[24] In tort a person is prima facie entitled to sue for trespass if they had possessionof the land at the time of the contended trespass.15 Actual possession consists ofintention to possess the land and the lawful exercise of control over it to the exclusionof other persons.16 Without either element, a person will generally lack the authorityto revoke a licence, implied or otherwise, unless acting as an agent of someone whodoes.[25] I note that answering implied licence questions of this type requires a balancebetween individuals' right to privacy and public interest in the enforcement of thecriminal law.17 The privacy interest is more forceful regarding the dwelling itself thanthe property outside it.1814 See Transport Ministry v Payn, above n 4; Howden v Ministry of Transport [1987] 2 NZLR 747(CA) at 751; Lovelock v Ministry of Transport, above n 5; Police v McDonald [2010] NZAR 59(HC); and King v Police [2010] NZAR 45 (HC)15 Stephen Todd (ed) The Law of Torts in New Zealand (9th ed, Thomson Reuters, Wellington, 2019)at [9.2.04].16 At [9.2.04]; citing Moore v MacMillan [1977] 2 NZR 81 (SC) at 88; Shattock v Devlin [1990] 2NZLR 88 (HC) at 112; and Attorney-General v Hewitt, above n 4, at 118.17 See Robson v Hallett, above n 4; Howden v Ministry of Transport, above n 14; R v Bradley, aboven 4; and R v Pou [2002] 3 NZLR 637 (CA).18 See Howden v Ministry of Transport, above n 14, at 755.[26] In Edwards v Attorney-General Dobson J said the following on the authorityof a visitor or guest to revoke an implied licence:19 such a decision is dependent on the particular facts. In the absence ofspecific evidence I think that the authority of a casual visitor or guest to dealon the occupier's behalf with strangers coming on to the premises must beregarded as quite limited. Clearly a request to leave by a person having nosuch authority would be ineffective. Here there was no express evidence thatthe plaintiff had any direct authority to give such a direction and having regardto all the evidence, including the degree of vagueness on the plaintiff's part asto how long he had been at the Cortina Avenue address, I am not prepared toinfer the presence of any such power.[27] I agree with Dobson J that "the authority of a casual visitor or guest to deal onthe occupier's behalf with strangers coming on to the premises must be regarded asquite limited". Such a person is not generally to be classified as an occupier, or inpossession of land. They could not sue in trespass in respect of intrusion on the land.Of course, if a casual visitor or guest has been given authority by an occupier to act asthe occupier's agent in controlling access to the land then that is a different matter.[28] Judge Jelas, as the Crown accepts, erred in taking the position that only a tenantis authorised to revoke an implied licence to be on the property. The position is widerthan that. It depends on the evidence.[29] Mr Davey was more than a casual guest. He was a regular weekend guest. Hedid not give evidence and neither did his ex-partner or her new partner. I must applythe law as I understand it to the limited inferences I can draw from the evidence whichwas called before the Judge.[30] I do not consider that a regular weekend guest, without evidence of entitlement,obtains by that fact the status of occupier or possessor of land. I do not think that aweekend guest, relying only on that status, could sue in trespass.[31] The more pressing point is whether Mr Davey had delegated authority, implicitor actual, from the tenants (his ex-partner and her new partner) to control access to theproperty in their absence. I infer he did. Mr Davey was a guest, the only adult at theproperty. There were children present. One, at least, was his daughter and also the19 Edwards v Attorney-General [1986] 2 NZLR 232 (HC) at 239.daughter of a tenant. I infer the tenants, away from their home for a short time, wouldnaturally expect Mr Davey to act on their behalf as a responsible adult in keeping thechildren and the property secure from visiting strangers.[32] Ms Brooke Davey stated that when her mother was away Mr Davey and shewere responsible as to who visited the property. She was not asked on what basis shemade that statement. It stands baldly. Judge Jelas did not place weight on Ms Davey'sevidence. From reading the notes of evidence it appears Ms Davey was particularlypartisan in favour of her father's case. Judge Jelas assessed Ms Davey as a witnessand I cannot say her assessment was wrong. I do not find that Ms Davey's statementon this point adds to the inference I have drawn.[33] I infer and conclude that when Constable Keating entered the propertyMr Davey, acting with the implied agency of the tenants given the circumstances, hadthe right to cancel the constable's implied licence to be on the property.If so, did he tell Constable Keating to go?[34] An implied licence may be revoked at any time, expressly or by implication.20Whether certain words or conduct amount to a revocation of an implied licencerequires an objective and contextual assessment of fact.21[35] If a licence to be on private property is revoked before a request to take a breathscreening test is made, the power to make such a request ceases to be exercisable onthe property.22[36] The Crown contends there must be clear and unequivocal withdrawal of thelicence by someone entitled to withdraw it.23 Counsel points to Dallas v R, in whichan appellant told a constable that unless he was under arrest the constable wasunwelcome.24 The Court of Appeal held those words were not sufficientlyunequivocal to withdraw the officer's implied licence to be there.20 R v Meyer [2010] NZAR 41(CA) at [12].21 Hewson v Police HC Wellington AP 140/96, 14 November 1996.22 Howden v Ministry of Transport, above n 14, at 752.23 Dallas v R (1996) 3 HRNZ 204 (CA); and Attorney-General v Hewitt, above n 4, at [23].24 At 207.[37] In Harris v Attorney-General the phrase "fuck off" was deemed to requiresome further element – words, actions, or context – to constitute a revocation oflicence to be on the property (the phrase having multiple meanings in popularparlance).25 In Lovelock v Ministry of Transport an appellant saying he was home nowand there was nothing the traffic officer could do about it anymore was not equivalentto a demand that the officer leave.26 In Attorney-General v Hewitt simply "lying low"and not responding to calls or knocks was not considered a refusal of entry.27 InHewson v Police slamming a door and saying "I don't want to talk to you" was deemedto suffice.28 In Wiltshire v Police an appellant's refusal to provide a licence pursuantto s 175(3)(a) of the Sale of Liquor Act 1989, while telling police they did not haveauthority to be inside his private residence without a warrant (while in his privateresidence which they mistakenly entered, it being adjoined to the bar) was deemed aclear revocation.29[38] Constable Keating told Judge Jelas (quoted at [14]) that the point came whereMr Davey told him he could not be on the property and that he needed to go away andget a search warrant. From the context of the constable's evidence, that occurred afterhe had required Mr Davey to accompany him. Prior to that, Mr Davey appears not tohave explicitly told Constable Keating to leave the property. The words he used wereindirect – repeatedly asking about a search warrant is somewhat analogous to declaring"I am home and you can't do anything" as in Lovelock, being a superficially legalisticreference to the officer's authority for being present, but not an overt instruction forhim to leave.[39] On the other hand, in a context where Constable Keating was clearly interestedin Mr Davey's problematic driving, Mr Davey repeatedly challenging the constable'spresence by asking if he had a warrant to be there, in an apparently hostile manner,conveys a clear intent the constable must leave if he does not have one. ConstableKeating mistakenly thought he was empowered under the Land Transport Act to be onthe premises and told Mr Davey that. Had he instead conceded that he did not have25 Harris v Attorney-General HC Auckland, CIV 2004-404-5787, 5 July 2006, at [148].26 Lovelock v Transport, above n 5, at 5.27 Attorney-General v Hewitt, above n 4, at [6].28 Hewson v Police, above n 21, at 5.29 Wiltshire v Police HC Napier AP 20/2006, 3 August 2006 at [22].positive authority to be there, Mr Davey would likely have told him explicitly to go.I note that in Howden v Ministry of Transport a traffic officer's implicitmisrepresentation that he had authority to be on private property, while made in goodfaith, induced the appellant's co-operation with breath testing, rendering that evidenceunfairly obtained.30[40] I bear in mind that many ordinary citizens are not aware of the extent of theirlegal rights.31 While Mr Davey appeared to have some experience in situations likethis, it is unlikely many citizens would intuitively appreciate a legal distinctionbetween demanding a warrant from a police officer who is present and telling them togo explicitly. I consider most objective observers would consider Mr Davey'smessage to Constable Keating to be "if you do not have legal authority to be here youmust go". In the context of the constable mistakenly believing he had a statutory rightto be on the property, I consider the words Mr Davey used sufficiently clear to revokethe constable's implied licence to be present.If so, did he tell Constable Keating to go before Constable Keating exercised hiscoercive power?[41] The evidence on this point is not clear. Constable Keating himself does notclaim to have made the request for a breath screening test before being asked for awarrant.[42] The constable's evidence-in-chief was that after some initial questions:32A. I explained to him, I kept on explaining, the conversation just went,kept going around in circles and that my reason for being on theproperty and he kept on telling me that I needed a search warrant tobe on the property.Q. And then when he questioned you about the search warrant, what didyou advise him?A. I kept on telling I didn't require a search warrant. Under the LandTransport Act, I had the right to be there but it's just the conversationamount in a circle.Q. Did you explain anything further about that right?30 Howden v Ministry of Transport, above n 14, at 752.31 See Torres Calderon- v Police, above n 5, at [56].32 NOE, 8 August 2017, at pp 24-25.A. I did, I said, "I require you to undergo a breath screening test for me".Q. And what was the reason you required him to undergo a breathscreening test?A. I believed that he was intoxicated.Q. And did you explain this?A. Yes.Q. To the man?A. Yes.Q. And after you explained this to the male what happened?A. The conversation kept on going around in a circle that I needed asearch warrant and I explained that I didn't need a search warrant andI required him to undergo a breath screening test. I believe I did thisat least five times.[43] As I have said, the constable was wrong in his view that the Land TransportAct entitled him to be present. He was relying on s 119 of that Act which gives rightsof entry in a situation of fresh pursuit. This was not such a situation. It may be thatthe constable's mistaken belief in his right to be present was the reason why he stayedon the property in the face of Mr Davey's evident hostility to his presence.[44] In cross-examination Constable Keating denied that the first thing Mr Daveysaid was his query about having a search warrant. From context, the constable wasreferring to his earlier evidence of the initial conversation being about Mr Davey beingthe driver of the vehicle, what complaint had been made, and where he had beendriving. In answer to a question from the Judge the constable said the enquiry aboutthe search warrant came "within the first minute".Conclusion[45] I am not satisfied Constable Keating exercised his coercive power before hewas impliedly told to go by Mr Davey.Ms Brooke DaveyDid Ms Davey have the power to tell Constable Keating to go?[46] I am of the view that Ms Davey had the power to tell Constable Keating to go.She was 15 and lived at the property. Ms Davey not being a tenant does not changemy analysis. Her mother and her mother's partner were absent and had left her incharge of the property. Mr Davey's return to the property gave him the right to alsocontrol access to the property by strangers, but that did not displace Ms Davey'scontrol.[47] Mr Clearwater cited the British case of Robson v Hallett, in which the sons ofan occupier were regarded as able to grant licence to enter property on behalf of theoccupier.33 Cited in that case, McArdle v Wallace indicated that a member of anoccupier's family might or might not have the implied authority of the occupier to tellsomeone to leave.34 In Lovelock v Ministry of Transport the son of an occupier ofproperty had sufficient authority to revoke an implied licence on the basis that he hadbeen staying there temporarily and had sufficient status to do so.35 While thesedecisions are not binding, I consider the reasoning persuasive and applicable to thiscase. Nothing, in my view, is changed by the fact of Ms Davey being a minor. Itwould be a very odd thing if a 15-year-old occupant of a property, in the absence ofher tenant parent, could not control access to the property by strangers.[48] The Crown in its written submissions points to s 95 of the Search andSurveillance Act 2012, which provides that a person under 14 years of age is notauthorised to consent to the search of a place, vehicle, or other thing. In my view thisprovision serves to protect children from erroneously consenting to searches that putthemselves or others at legal risk. I do not consider that it indicates that a young personshould not have authority to expel a trespasser, should they be required to. Regardless,Ms Davey was over 14 years old at the time.33 Robson v Hallett, above n 4.34 McArdle v Wallace (1964) 108 Sol J 483 (QB).35 Lovelock v Ministry of Transport, above n 5, at 5.If so, did she tell Constable Keating to go?[49] Ms Davey gave evidence that she was present from the beginning of herfather's interaction with Constable Keating.36 Mr Henry's evidence was also to thateffect.37 Ms Davey testified that after her father (immediately) challenged ConstableKeating's authority by asking about a warrant she did the same.38 As I have discussed,Judge Jelas was not inclined to accept Ms Davey's evidence.[50] Constable Keating's evidence was not very clear as to the presence and actionsof Ms Davey. In his evidence-in-chief he referred to her "being obstructive" as one ofa crowd of people towards the end of the interaction,39 but in cross-examination saidhe was not sure when she arrived.40 He could not recall details of what she had said.He stated that that he did not recall Ms Davey telling him he had to leave the propertybut accepted it may have happened.41[51] On the evidence, there is nothing to suggest that Ms Davey did not repeat thedemands for a warrant and/or tell Constable Keating to leave. I accept Ms Daveyprobably did, at least, challenge the constable's presence by joining with her father inasking about a warrant. I have already indicated I consider this challenge to besufficient to revoke Constable Keating's licence to be there in the circumstances ofthis case.If so, did Ms Davey tell Constable Keating to go before Constable Keating exercisedhis coercive power?[52] Ms Davey said she asked about a warrant after her father did. Given theconstable's lack of recall about the order of events I find it more likely than not thatMs Davey chimed in on this issue before the request for a breath screening test.36 NOE, 5 September 2018, at p 9.37 At p 46.38 At p 10.39 NOE, 8 August 2017, at p 29, line 17.40 At p 53–54.41 At p 61–65.Mr HenryDid Mr Henry give Constable Keating permission to be on the property whichpermission continued through the period in which he dealt with Mr Davey?[53] Mr Henry had a clear right, as sub-tenant of a part of the property, to cancelConstable Keating's implied licence to enter the property and be on or near thedriveway.[54] Mr Henry's role in what happened is largely uncontested. He gave evidencefor Mr Davey at the trial.[55] Initially, Mr Henry spoke to Constable Keating and, responding to his inquiry,pointed out Mr Davey as the vehicle's owner. He did not revoke the implied licenceand by his actions endorsed it. Tacitly, he gave Constable Keating permission to beon the property for the purpose the constable had indicated, to inquire about the driverof the vehicle.[56] Mr Henry then went into his dwelling. He came out when the constable wasarresting Mr Davey. Mr Henry made no attempt to revoke the constable's licence evenwhen Mr Davey complained to him that he had "trespassed" the constable. To thecontrary, Mr Henry advised Mr Davey to co-operate:42A. Constable Keating said he was arresting Paul and I asked him whatfor and he said I'm not going to go into it again I think was hiscomment, so.Q. Do you recall Mr Davey saying anything around this time?A. Well Paul was saying he can't do this, he's trespassing, I havetrespassed him.Q. Did you in the presence of Constable Keating give Paul any advice?A. Well I didn't know what the legal situation was there with what rightof entry and this sort of thing.Q. So what did you say?A. So I said to Paul, look, it might be best to just go along with thingsand get your lawyer, give your lawyer a call and get him to sort it out.42 NOE, 5 September 2018, at p 47.[57] In my view, Mr Henry gave Constable Keating tacit permission to be on theproperty in the context of the constable wanting to talk to Mr Davey. He thenwithdrew to his dwelling. When he returned to the driveway, the situation had changedcompletely. Mr Henry responded to that new situation by advising Mr Davey to co-operate with Constable Keating, not knowing what the legal position was.[58] I conclude the tacit permission Mr Henry gave to Constable Keating to be onthe property continued throughout the period the constable engaged with Mr Davey.However, this is subject to the next issue.If so, did that permission entitle the constable to remain even if Mr Davey and/orBrooke Davey had the right to tell him to go and did so?[59] The Crown has pointed to a small number of authorities in which permissiongranted to police by an occupier to be on property was upheld by courts, despiteanother occupier having purported to revoke any permission or having demanded theyleave at the time.43 Those cases were all in the context of domestic disputes.[60] In Bell v Police the police officers were invited inside by the defendant'spartner, who was concerned for her safety and wished to retrieve her son and sufficientpossessions to stay at a women's refuge overnight.44 Justice Panckhurst consideredthere was no basis to believe on probable grounds that an offence likely to causeimmediate and serious injury was about to occur, which would have entitled police toenter regardless.45 He accepted that R v Thornley and Attorney-General v Hewitt were"authority for the general proposition that where there are co-occupiers of aproperty one may grant a licence to the police to enter, albeit that the other does notdo so, indeed positively indicates to the police that their presence is not welcome."46He adopted as a ruling the headnote of R v Thornley that police "were entitled toremain on the premises for a reasonable period of time in order to carry out that43 Bell v Police, above n 12, at [15]; citing R v Thornley, above n 12; and Attorney General v Hewitt,above n 4.44 Bell v Police at [3].45 At [10].46 At [15].investigation to their satisfaction, notwithstanding they had been told by the appellanthusband to get out."47[61] The present case is not directly comparable to the domestic violence cases. Inthose cases, one occupant requested police enter for a specific purpose directed towardthe other occupant who consequently opposed the police being there. The domesticviolence context raises discrete policy considerations.[62] In this case Mr Henry knew that Constable Keating had entered the propertyto inquire about the driver of the car. Mr Henry gave his tacit permission for that.Mr Davey, and probably Ms Davey, subsequently objected to the constable's presencewhen they realised where his questions were leading. The issue is whether theirimplied direction that the constable go overrides Mr Henry's permission for theconstable to be there.[63] In my view, the permission given by Mr Henry was a limited one: to speak toMr Davey. Mr Henry then withdrew to his dwelling. He knew nothing of what thenoccurred. He did not hear Mr Davey demanding to know if Constable Keating had awarrant. He did not hear the constable's responses. I conclude that when Mr Henrywent away from the scene he must either have left the question of Constable Keating'spresence on the property to Mr Davey and Constable Keating, or he did not expect theconstable to do more than make inquiries of Mr Davey.[64] I accept that where control of access to a property is shared no one occupiercan claim precedence over another in exercising that control. Had Mr Henry remainedoutside, and directly or tacitly supported Constable Keating's claimed right to be there,then Mr Davey's implied direction that the constable go would not be effective. Butthat is not what happened. I do not consider Mr Henry's advice to Mr Davey to co-operate after he had returned to the driveway amounts to an affirmation of a continuingpermission for Constable Keating to be there. It is Mr Henry's response to a differentsituation after the constable had exercised coercive powers.47 At [16]; citing R v Thornley, above n 12.Conclusion[65] Constable Keating entered the property lawfully under implied licence. Hegained the tacit permission of Mr Henry to remain on the property to speak toMr Davey about the driving of the car. Thereafter Mr Henry left matters to Mr Daveyand Constable Keating. On the balance of probabilities, Mr Davey made clear toConstable Keating that he should go before the constable used his coercive powers.Mr Davey had the implied authority of the tenants to control access to the property.The constable was under the mistaken view that he was entitled to remain and exercisehis powers by reason of the Land Transport Act. Mr Henry's return after the exerciseof those powers does not validate them. Accordingly, Constable Keating was notentitled to exercise his coercive powers. He was unlawfully on the property when hedid so.[66] It follows that Constable Keating was not entitled to arrest Mr Davey andMr Davey's resistance to being arrested was not unlawful.[67] It was submitted by Mr Mortimer that if I reached these conclusions I shouldnevertheless rule evidence of Mr Davey's refusal to permit a blood specimen to betaken admissible in the prosecution.48 That would save the conviction on that charge.Mr Mortimer said he would not in the circumstances apply for the same ruling inrespect of the charge of resisting police.[68] I do not consider this to be an admissibility of evidence issue. The charge ofrefusing to permit a blood specimen to be taken has as an essential prerequisite (in thiscase) that Mr Davey refused to undergo a breath screening test after being required todo so by Constable Keating.49 Since Constable Keating had no lawful right to requireMr Davey to undergo a breath screening test then his refusal cannot found the charge.There is no improperly obtained evidence to admit since Mr Davey never gave asample. Put another way, if the evidence of all that happened was before a Judge, thecharge would be dismissed as lacking an essential underpinning.48 Mr Mortimer referred to s 30 of the Evidence Act 2006 which can permit improperly obtainedevidence to nevertheless be used by the prosecution.49 Land Transport Act 1998, s 69.Result[69] The appeal is allowed. The charges are dismissed. There will not be a re-trial.________________________________Brewer J