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A man convicted of refusing a blood test and resisting arrest after he was suspected of driving drunk has had his charges overturned in the High Court because the policeman who arrested him was trespassed from the property.
Paul Gordon Davey's car was reported to be driving erratically, and a Constable Keating was sent to investigate.
He found the car parked at a house and walked up the driveway. Davey admitted he was the driver but challenged Keating's right to be there, repeatedly demanding a search warrant.
Davey refused a breath test and a blood test. Keating then arrested Davey, who resisted by stiffening his body and refusing to walk, court documents show.
He was charged with resisting arrest and refusing a blood test and convicted on both counts last year.
But he took his case to the High Court at Auckland, saying the police officer had acted unlawfully by staying on the property in defiance of a trespass order - making his subsequent actions invalid.
Davey was a frequent guest at the property, as his ex-partner Brooke Davey was a tenant and their 15-year-old daughter lived there.
Justice Brewer said a police officer had the right to walk onto a property for a lawful purpose but if a person with authority told them to leave, they must do so.
If it was found Keating had been trespassed, he should have left the property and applied for a search warrant before re-entering, the judge said.
Evidence showed Davey asked Constable Keating whether he had a warrant to be on the property about a minute into their conversation.
The constable replied he did not need a search warrant and had a right to be there under the Land Transport Act.
The conversation went round in circles, according to Keating. "I explained that I didn't need a search warrant and I required him to undergo a breath screening test. I believe I did this at least five times," he told Judge June Jelas at a 2018 hearing.
"He kept on saying that I couldn't be on the property, I needed to go away and get a search warrant," he said.
The man refused to take a breath test after being suspected of drink driving, instead repeatedly demanded the police officer show him a search warrant. Photo / File
In 2018 Judge Jelas said Davey had no authority to trespass Keating, and his demands for a search warrant did not amount to a trespass order.
She also said his 15-year-old daughter - who chimed in with similar demands - had no right to trespass the officer.
But Justice Brewer disagreed, finding the pair had delegated authority from the tenants to control access to the property in their absence.
"Mr Davey was a guest, the only adult at the property. There were children present ... I infer the tenants ... would naturally expect Mr Davey to act on their behalf as a responsible adult," the judge wrote in his decision.
His daughter also had the power to tell Keating to go.
"It would be a very odd thing if a 15-year-old occupant of a property, in the absence of her tenant parent, could not control access to the property by strangers."
The judge found Davey's repeated demands for a search warrant amounted to a trespass order.
"Mr Davey repeatedly challenging the constable's presence 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," the judge said.
Keating was wrong in thinking he had the right to be there under the Land Transport Act, as he would only have right of entry in a "fresh pursuit" situation, the judge said.
