B v Police HC Christchurch CRI 2006-409-84
[2007] NZHC 953
•26 September 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2006-409-000084
B
Appellant
v
POLICE
Respondent
Hearing: 7 June 2007
Appearances: D J Taffs for Appellant
C J Lange and C E Butchard for Respondent
Judgment: 26 September 2007
JUDGMENT OF FOGARTY J
[1] On 6 May 2005 around midday B was driving in the Christchurch central city area. A driving manoeuvre brought him to the attention of a police officer, driving an unmarked police car. The officer was dressed in police issue overalls, dark blue in colour, which had affixed to each shoulder a police insignia badge. The officer decided to speak to Mr B about his driving. The first contact between the two men occurred when Mr B was seated in his vehicle at a railway crossing where he was waiting for the barrier arms to be raised. The officer got out of his car, came up to the driver’s window and spoke briefly to
him requesting that he pull over when the barrier arms were raised. Mr B
B V POLICE HC CHCH CRI 2006-409-000084 26 September 2007
pulled over. The officer again approached and spoke to him. Mr B asked the officer for identification. The officer went back to his car. He came back and said he was not able to produce any written identification.
[2] However, the officer says he told the defendant his rank and name and told him to remain stopped. The appellant disputed he was told this and said his belief at the time was he spoken to by a man in overalls, who he thought may be a workman. The appellant drove off. The appellant drove some kilometres to his home. The police officer followed using his siren periodically. Mr B drove his vehicle up his driveway and inside his gate. The police officer drove his vehicle over the footpath and pulled up partly inside Mr B ’s drive. He pulled up outside the gate, which is set back.
[3] The officer tried to get out of the vehicle, but Mr B pushed against the door and then leaned in, removed the car keys and threw them across the road. Mr B then went back to the gate with the intention of padlocking it. (Obviously, the reason for padlocking it was to stop the second car coming any further onto the property.) While he was at the gate trying to lock it, the police officer tried to arrest him. There was a scuffle. Mr B evaded arrest. He is a black belt in the martial arts.
[4] On 3 April 2006, by a reserved decision Mr B was convicted of three offences. They were:
1.You failed to comply with a lawful requirement given to you under section 114(2) of the Land Transport Act 1998 by an enforcement officer in that you being the driver of a motor vehicle you failed to remain stopped for as long as was necessary for an enforcement officer to complete the exercise of any powers conferred on him by that act. [Land Transport Act 1998 s 52(1)(c)]
2.Assaulted … a police constable acting in the execution of his duty. [Crimes Act 1961 s 192(2)]
3.Being in the lawful custody of … a member of the police escaped from such custody. [Crimes Act 1961 s 120(1)(c)]
(Emphasis added)
[5] This is an appeal against the conviction on all three charges.
Procedural history
[6] The appeal was lodged on the broad ground that the judgment was in error of law and fact. It had a long procedural history before hearing because counsel for the appellant raised the question of the competence of trial counsel. Various issues arose as to the acceptance of further evidence and the possible cross-examination of deponents.
[7] At the hearing I became concerned that the issue at trial appeared to have been seen as one of whether or not Mr B knew that he was dealing with a police officer. There was no analysis of whether the requirements of s 114 of the Land Transport Act had been met when he was stopped. There appeared to have been an assumption that Mr B was acting unlawfully when he drove off.
[8] Much of the argument at the hearing was whether or not Mr B did or should have recognised the officer as a policeman because he was in uniform.
[9] Following the hearing there have been further memoranda and affidavits filed on the uniform question.
[10] I am conscious that this litigation has become very expensive for the parties and yet it is important. Accordingly, I took the unusual step of preparing a draft judgment and circulating it to counsel with an opportunity to make submissions on points which were not argued at the last oral hearing.
Was the officer entitled to require the appellant to remain stopped?
[11] Section 114(1), (2) and (2A) of the Land Transport Act provides:
114 Power to require driver to stop and give name and address, etc
(1) An enforcement officer who is in uniform, or wearing a distinctive cap, hat, or helmet, with a badge of authority affixed to it, may signal or request the driver of a vehicle to stop the vehicle as soon as is practicable.
(2) An enforcement officer in a vehicle following another vehicle may, by displaying flashing blue, or blue and red, lights or sounding a siren, require the driver of the other vehicle to stop.
(2A) Subject to subsections (4) and (5), the driver of a vehicle that is stopped by an enforcement officer under this Act must remain stopped for as long as is reasonably necessary for the enforcement officer to complete the exercise of any powers conferred, or duties imposed, on an enforcement officer by this Act.
[12] The summons refers to s 114(2). That is a typographical error as the offence refers to the obligation in (2A).
[13] The obligation to remain stopped depends on the driver having been previously stopped by an enforcement officer under this Act. There is no suggestion in the facts that he could be stopped other than pursuant to the processes in either subs (1) or subs (2). The Judge made no finding in this respect.
[14] The police officer had given evidence that he had, using blue and red flashing lights, requested the driver to stop. However, Mr B in cross-examination said that he first became aware of the officer when he noticed a gentleman standing in overalls about a metre from his driver’s window while he was sitting parked waiting for the barrier arm to lift. He says he never saw the flashing lights on the car and could not anyway, as given the height of his vehicle his rear vision mirror would not see the lights, even if they were working, given that the vehicle was parked close behind him. The Court asked the police officer this question:
Q. The question is whether there was any indication that he was aware of you behind him, as distinct from what was in his mind, whether there was any sign that he had been aware of you prior to the actual stopping.
A. No, I, to be fair to say here, I don’t think he [was aware of] me behind him as a police vehicle initially, and that’s why I got out on foot and walked up to him and made contact in that way, just to make sure that he knew I was behind him.
[15] In supplementary submissions counsel for the police continued to submit that the appellant was stopped by the senior sergeant at Gasson Road by activation of the blue and red flashing lights. He was unable to provide a reference in the judgment where that finding of fact was made. This was because it was not made. What the Judge found was:
4.As a result of the observations of the police officer, steps were taken to speak to the Defendant about his driving.
5.The first contact between the two men occurred while Mr B was seated in his vehicle at a railway crossing where he was waiting for the barrier arms to be raised.
6.Senior Sergeant Greatorex spoke briefly to the Defendant and requested that he pull over when the barrier arms were raised. This occurred and Mr B pulled over into a car park area by Hoyts Theatre.
7.The officer approached and spoke to Mr B where a co-operative mood existed for a short period of time. It is common ground that Mr B asked the officer for identification and steps were taken by the Senior Sergeant to locate his police identification badge in his wallet.
8.A dispute exists as to whether the officer said words to the effect he was not a constable and looked at his feet and indicated he could not produce identification. Mr B certainly didn’t appear to be interested in debating the issue and drove off to his Opawa home.
9.The Snr Sgt decided that the Defendant had a responsibility to stay and produce his details as required under the Land Transport Act. The officer says that before the Defendant drove away he was verbally advised as to rank and name and told to remain stopped. Mr B disputes that he was told this and says that his belief at that time was that he was being spoken to by a man in overalls who he thought may be a workman.
[16] I am satisfied that Mr B was in fact stopped not by the display of blue and red flashing lights but by the request of the officer standing alongside the vehicle when the barrier arm was down.
[17] That request can only be made pursuant to the criteria in subs (1), if it is to be a stopping “under this Act”.
[18] It is common ground that the police officer was not wearing a distinctive, cap, hat or helmet with a badge of authority affixed to it. However, the Judge found that the overalls worn by him constituted a uniform.
[19] Uniform is not defined. Crown counsel submitted:
Taking the natural and ordinary meaning of the word uniform, it is submitted that Sergeant Greatorex was indeed in police uniform. The overalls were a police issued garment with the New Zealand Coat of Arms affixed to each shoulder, which signified to any member of the public that he was a member
of the New Zealand Police, as the Coat of Arms is a recognised policy symbol. Therefore it is submitted that the overalls qualify as “uniform” pursuant to s113 and s114 of the Land Transport Act 1998.
[20] Mr Taffs submitted that for a garment to qualify as a uniform, it had to be a garment that readily identified the wearer to be an enforcement officer.
[21] The overalls the police officer was wearing were produced as an exhibit in the case. On the left hand chest side above a zipped pocket is a prominent label reading “POLICE” and the police badge of authority and under it in very small print the letters “SSTT”.
[22] Over the top of this label was affixed brown adhesive tape completely obscuring the label.
[23] The police officer said that the police badge was added between the incident with the appellant and the defended hearing. He said that on 10 March 2006, the date of the defended hearing, discussions were held between the defendant, the police prosecutor and the Judge as to the brown adhesive tape. The reason for the tape was explained to the Judge who accepted the explanation and proceeded with the hearing. There is no reference to the presence of the label and the tape in the reasoning of the Judge.
[24] After hearing counsel I sought affidavits from the Crown as to the characteristics of police uniforms at the time of this offending. Items of police uniform are approved by the Police Executive Committee following a recommendation of the Advisory Standing Committee on police uniforms. Navy blue overalls were first approved by the Police Executive Committee as part of New Zealand police uniform in 1993 for the Specialist Search Group. Since 1997 they have been used for the Staff Safety Tactical Training Unit (SSTT). The police officer in this case is attached to this unit.
[25] There have been a number of exchanges between the Court and Crown counsel resulting in a comprehensive affidavit by Ms Mulligan on behalf of the police. It is her view that to the best of her knowledge these navy blue uniforms have always had a badge on the front of the chest containing the word “POLICE”.
With the exception of the Armed Offenders Squad and the Special Tactics Group it has been police policy since at least September 1999 for there to be a badge with the word “POLICE” on the chest. However, the senior sergeant has filed an affidavit exhibiting a photograph of SSTT staff taken in 2003 of 11 persons. Four of those persons are wearing the navy blue overalls without the word “POLICE” on the chest. I am satisfied that the overall that the senior sergeant was wearing in this case was an item of police uniform. However, it is another question as to whether or not he was “in uniform” for the purposes of s 114(1).
[26] Ultimately it is a question for the Court as to whether or not a garment is a uniform as contemplated by Parliament in s 114(1) of the Act. Section 114 is a qualification of the freedom recognised for many centuries by the common law of free passage on streets and roads by any citizen. The correct approach to the construction of s 114(d) is to recognise it as a qualification upon that basic freedom, to move freely between properties. The word “uniform” is not defined in the Act.
[27] The purpose of s 114(1) is apparent. Parliament intends that an enforcement officer signalling or requesting a driver of a vehicle to stop should quite plainly be a police officer. This purpose is clear from the provision for an alternative if the officer is not in uniform. Then he or she must wear a distinctive cap with a badge of authority affixed to it. Such cap and badge will be presented face on to the driver. Looking directly at the officer the driver will see that the officer is a policeman for the driver will see the distinctive cap and badge of authority affixed to it.
[28] Obviously all the police uniforms which contain the word “POLICE” prominently on the chest plainly identify the person wearing them to be a police officer. As already noted, it has been police policy since 1999 for all uniforms (apart from the formal tunic) to have the word “POLICE” on the chest and with the police badge. The only exception are the Armed Offenders Squad and Special Tactics Group. One can readily understand why the Armed Offenders Squad do not have a prominent light coloured insignia on their chest. The problem in this case for the police is that the senior sergeant was wearing overalls issued before September 1999. In supplementary submissions counsel for the police seem to have interpreted the draft judgment as suggesting that police officers wearing uniform issue overalls
would have no power to stop a vehicle pursuant to s 114(1). This judgment does not say that at all. On the contrary, this judgment grapples with the fact that this officer was wearing a set of overalls which, contra to current police policy, did not have the word “POLICE” on the chest.
[29] In this case the police officer’s primary duty is training and certifying staff to carry and use Bushmaster rifles. On this particular day he was away from the station uplifting a piece of equipment that the police were getting repaired for baton training. He was wearing the out of date overalls. To readily observe that he was a police officer someone had to be standing side on to him or in the course of a conversation have an opportunity to examine his shoulder flash. Although the trial Judge found that Mr B should have known he was dealing with a police officer, in his sentencing notes he put it more circumspectly:
[3] I have gone through in my decision the reasons why I have rejected your version of events and preferred the officer’s evidence as to exactly how that occurred, and I think if you reflect upon matters you might think that the incident where you grabbed the car keys and threw them across the road was a completely unnecessary step on your part. The Senior Sergeant made it clear in the course of your cross-examination, that brought your nose within centimetres of the officer’s epaulette’s [sic] and it must have been apparent to you, if you had been calmly and rationally dealing with the matter, that this was a police officer. (Emphasis added)
[30] Parliament never expected drivers to have to form a judgment or ask questions in order to be sure that they were being asked to stop by a police officer. Plainly the officer concerned thought the question asked by the driver in the first instance was reasonable because he went back to his vehicle to see if he had some written identification that he was a police officer. He came back without it but had to assert that he was.
[31] I am quite satisfied that the overalls he was wearing that day were not sufficiently distinctive to achieve the purpose of s 114(1) so that he was not “in uniform” for the purpose of that section. It follows that he did not have the power to stop as conferred by that section. It follows that Mr B had not been “stopped by an enforcement officer” under this Act. The officer did not have the power to require him to remain stopped. So when he drove off he was not in breach of subs (2A). The first conviction is quashed.
Did Mr B assault the officer acting in the execution of his duty?
[32] The struggle between Mr B and the police officer occurred off the road on Mr B ’s drive. Counsel for the police submitted that the evidence is that the officer stopped outside the property and had not entered the property. The Judge found that the officer had stopped “just over the footpath” (at [11]). He also described this later as “inside his drive” in this sentence:
… He chose to ignore the request to remain stopped and no doubt believed he was able to order the officer from his property once he pulled up inside his drive. (at [34])
[33] The exhibits in the case show a sealed footpath. The seal stops at two fence posts, the right hand one containing the letter box and on the right a boundary fence clearly shown. The driveway is set inside. The police car’s back wheels are on the seal but most of the car is past the letter box and the fence, on the unsealed part of the driveway, in front of the gate, which is set back.
[34] Neither s 56 of the Crimes Act 1961 nor the common law of trespass depend on niceties of survey boundary. The material fact is that the police officer had driven off the road into a private driveway.
[35] The alternative argument in supplementary submissions was that:
Police officers, in common with other members of the public, may enter onto land under an implied licence to do so where the person is entering on legitimate business and intending to communicate with the occupier of the premise. An occupier may terminate the implied licence to enter and remain on the property. From that point of termination the police officers have no right to remain and will, at the end of a reasonable time to withdraw from the premises, become trespassers: ...
[36] There is no basis on these facts for the police officer to assume he had an implied licence to enter on the private property of Mr B . Mr B had driven off contrary to his request. Plainly, he did not want to talk to him. The police officer had followed, occasionally activating his siren. At the time the police officer drove into Mr B ’s drive he knew that Mr B did not want to talk to him. He could hardly have been under the impression that he had an implied licence to enter on to the property. The concept of an implied licence is private law concept. It
depends on implied consent to enter, an implication removed by the events immediately prior to entry.
[37] The third supplementary argument was that the officer was acting in the execution of his duty. He was only acting in the execution of his duty if he had lawfully stopped Mr B and if Mr B had unlawfully driven off. However, the officer certainly believed he was acting in the execution of his duty. That does not of itself give him a right to enter on to private property.
[38] The police officer had no right to be in the drive. The Land Transport Act confers only limited powers of entry onto private property. The section conferring that power is s 119. It gives power to follow a person onto private property to determine whether a breath screening test or evidential blood/breath test should be undergone or completed. There is no suggestion on the facts that this was the officer’s purpose.
[39] Before there was any physical contact between Mr B and the police officer the police officer had no power of arrest and could only enter the property if Mr B agreed. Plainly, Mr B did not want him to get out of the car and come further inside onto his property.
[40] Mr B was entitled to use reasonable force to prevent him trespassing on his property, s 58 Crimes Act. The question of whether or not he was using reasonable force in that regard when trying to stop the police officer opening the door was never identified as an issue at the trial. However, on the face of it that was a reasonable act. The police submission was that it was an assault because the actions of the defendant putting his body weight against the door to stop it opening trapped the police officer’s leg between the door and the door sill. Although the police officer talked about the defendant lunging against the driver’s door he also says:
I was holding the door with one hand, reducing the pressure on my leg. With my other hand, I attempted to grab the Police radio hand piece.
The defendant then reached into the Police vehicle and wrenched the keys from the ignition. The defendant threw the keys across Port Hills Road into an empty section.
[41] All of that suggests that the pressure that Mr B was putting against the door was not causing any significant injury to the leg, even if he saw that the officer’s leg was out. Also it cannot have lasted very long.
[42] Mr B was criticised severely for throwing away the keys, but plainly he was trying to immobilise the car so it could not travel any further onto his property.
[43] The next, or continuing scuffle was at the gate, where Mr B was on one side trying to padlock it and the police officer was on the other side trying to arrest him for the “assault” trapping his leg. Both suffered minor injuries, but there is nothing in the narrative of evidence which suggests that Mr B used unreasonable force to resist arrest.
[44] When trying to make an arrest the police officer was not acting in the execution of his duty. He had no right to be in the drive at the gate in the first place. Mr B had tried to stop him getting out of the car. That was justifiable conduct. It was not an assault. The second conviction for assaulting the police officer is quashed.
Did Mr B escape from lawful custody?
[45] It follows that the answer to this question is no for he was never in the lawful custody of a police officer. This conviction is quashed.
Conclusion
[46] All convictions are quashed. There will be no retrial for I am satisfied that on the facts of this case there is no possibility of the police obtaining convictions on these charges.
[47] Costs are reserved.
Solicitors:
D J Taffs, Westport, for AppellantRaymond Donnelly & Co, Christchurch, for Respondent
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