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Judgment: Davey v NZ Police


[2019] NZHC 2107





[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 The issue is whether Constable Keating’s implied licence to be present on the property was revoked before he started acting coercively by requiring Mr Davey to undergo a breath screening test, to accompany him for the purpose of undergoing an evidential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 It is the issue because if Constable Keating’s implied licence to be on the property had been revoked then he was thereafter a trespasser and his coercive requirements were unlawful.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.



[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.


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

[Full judgment: 2019NZHC2107.pdf]

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