Gordon Campbell | Parliament TV | Parliament Today | News Video | Crime | Employers | Housing | Immigration | Legal | Local Govt. | Maori | Welfare | Unions | Youth | Search

 

Judgment: Davey v NZ Police

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE

CRI-2018-404-406
[2019] NZHC 2107

BETWEEN
PAUL GORDON DAVEY
Appellant

AND
NEW ZEALAND POLICE
Respondent

[…]

Introduction

[1] Mr Davey appeals convictions entered by Judge J Jelas on one charge of refusing to permit a blood specimen to be taken and one charge of resisting police.

[2] The nub of the appeal is that it was the police officer involved who acted unlawfully, not Mr Davey.

[3] My task is to assess whether a miscarriage of justice has occurred. In doing so, I must reach my own view of the evidence, bearing in mind any advantage Judge Jelas had through actually seeing the witnesses.

[…]

The issue

[7] A police officer has the same right as any other member of the community to walk onto someone else’s residential property for a lawful purpose.4 For example, a stranger to a neighbourhood looking for a friend’s address might go to the door of a house and knock with the intention of asking whether the occupant knows where his friend lives. That is not an act of trespass. However, if the person who answers the door tells the visitor to leave the property, and the visitor refuses, then the visitor is unlawfully on the property as a trespasser. Of course, that depends on the person who answered the door having the lawful authority to require the visitor to leave. To illustrate through extremes, a burglar would have no such authority, but the owner of the house would.

[8] Here, Constable Keating walked onto the property lawfully because he was there for a lawful purpose, to make inquiries as to whether the car was the one reported as being driven erratically and whether, if so, the driver was present. The issue is whether Constable Keating’s implied licence to be present on the property was revoked before he started acting coercively by requiring Mr Davey to undergo a breath screening test, to accompany him for the purpose of undergoing an evidential breath/blood test and then arresting him when he refused. It is the issue because if Constable Keating’s implied licence to be on the property had been revoked then he was thereafter a trespasser and his coercive requirements were unlawful. He should have left the property and applied for a search warrant to re-enter.

[…]

Conclusion

[65] Constable Keating entered the property lawfully under implied licence. He gained the tacit permission of Mr Henry to remain on the property to speak to Mr Davey about the driving of the car. Thereafter Mr Henry left matters to Mr Davey and Constable Keating. On the balance of probabilities, Mr Davey made clear to Constable 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 exercise his powers by reason of the Land Transport Act. Mr Henry’s return after the exercise of those powers does not validate them. Accordingly, Constable Keating was not entitled to exercise his coercive powers. He was unlawfully on the property when he did so.

[66] It follows that Constable Keating was not entitled to arrest Mr Davey and Mr Davey’s resistance to being arrested was not unlawful.

[67] It was submitted by Mr Mortimer that if I reached these conclusions I should nevertheless rule evidence of Mr Davey’s refusal to permit a blood specimen to be taken admissible in the prosecution. That would save the conviction on that charge. Mr Mortimer said he would not in the circumstances apply for the same ruling in respect of the charge of resisting police.

[68] I do not consider this to be an admissibility of evidence issue. The charge of refusing to permit a blood specimen to be taken has as an essential prerequisite (in this case) that Mr Davey refused to undergo a breath screening test after being required to do so by Constable Keating. Since Constable Keating had no lawful right to require Mr 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 a sample. Put another way, if the evidence of all that happened was before a Judge, the charge would be dismissed as lacking an essential underpinning.

Result

[69] The appeal is allowed. The charges are dismissed. There will not be a re-trial.

[Full judgment: 2019NZHC2107.pdf]


© Scoop Media

 
 
 
Parliament Headlines | Politics Headlines | Regional Headlines

Pike River Recovery: Loader Driven By Russell Smith Recovered


A loader driven by former miner Russell Smith at the time of the Pike River Mine explosion has now been recovered from 1581m up the 2.3km drift access tunnel.
The recovery of the loader went smoothly and to plan. Pike River families were able to witness it being towed to a storage area, Chief Operations Officer Dinghy Pattinson says.
“We reached the loader at the end of last week, and then conducted a very deliberate and exacting forensic examination of the vehicle and operational zone... More>>

 

E-Cigarettes: Vaping Legislation Passes

Landmark legislation passed today puts New Zealand on track to saving thousands of lives and having a smokefree generation sooner rather than later, Associate Health Minister, Jenny Salesa says. The Smokefree Environments and Regulated Products (Vaping) ... More>>

ALSO:

Housing: Government Delivers On Rental Reforms Promise

The Government has delivered on its promise to New Zealanders to modernise tenancy laws with the passing of the Residential Tenancies Amendment (RTA) Bill 2020 today, says Associate Minister of Housing (Public Housing), Kris Faafoi. “The Residential ... More>>

ALSO:

National: $4 Billion Investment To End Wellington’s Congestion Woes

A National Government will invest another $4 billion in transport infrastructure across Wellington, igniting the economy and delivering the congestion-busting solutions the region has long been crying out for, National Party Leader Judith Collins says. ... More>>

ALSO:

Gordon Campbell: On The Virtues (and Fluffed Opportunities) Of The Operation Burnham Report

One unspoken rule of thumb in any official public inquiry is : whatever you do, don’t conclude you were made to listen to “a litany of lies” even if the evidence of a deliberate cover-up is right there under your nose. In that respect, the report ... More>>

ALSO:

Office Of The Speaker: Parliament Is Revamping Its Rules

Today, the Standing Orders Committee’s report on the review of Standing Orders was presented to the House. The Speaker of the House, the Rt Hon Trevor Mallard, chairs the committee. He said today that the 2020 review will make our rules more ... More>>

Your Vote 2020: Bringing Election Coverage To Viewers Across TVNZ Channels And Platforms

As New Zealand gets ready to head to the ballot box this September, 1 NEWS is bringing voters comprehensive coverage and analysis of this year’s General Election. TVNZ’s coverage will draw on the depth of experience held across the 1 NEWS team, says Graeme ... More>>

Economy: 30% Believe Households Worse Off, 298,000 Expect To Lose Jobs

64% of New Zealanders feel the economic position of their households is the same or better than a year ago – and 30% think it is worse or much worse, while 298,000 think they will lose their jobs in the next 12 months. Households’ perceptions ... More>>

State Services Commission: Findings Of Investigation Into COVID-19 Active Cases Privacy Breach

Deputy State Services Commissioner Helene Quilter has today announced the findings of an investigation into a breach of privacy regarding sensitive personal information. The investigation looked into who or what caused the disclosure of the information, ... More>>

International Security: New Zealand Suspends Extradition Treaty With Hong Kong

The New Zealand Government has suspended its extradition treaty with Hong Kong and made a number of other changes in light of China’s decision to pass a national security law for Hong Kong, Foreign Affairs Minister Winston Peters says. More>>

ALSO:

Energy: 100% Renewable Electricity Grid Explored With Pumped Storage ‘battery’

The Government is taking a significant step toward its goal for 100% renewable electricity generation in a move that could be a game changer for consumers and the creation of a low-emissions economy, Energy & Resources Minister Megan Woods said. ... More>>

ALSO:


 
 
 
 
 

LATEST HEADLINES

  • PARLIAMENT
  • POLITICS
  • REGIONAL
 


 

InfoPages News Channels