C v Police HC Wellington CRI 2005-485-137

[2006] NZHC 162

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2005-485-137

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 February 2006

Appearances: W Johnson for Appellant

M Anderson for Respondent

Judgment:      3 March 2006 at 4pm

RESERVED JUDGMENT OF MILLER J

[1]      Mr C   was convicted  in  the  District  Court  of driving  with excess  blood alcohol contrary to s56(2) of the Land Transport Act 1998.   He appeals against conviction.

[2]      Mr C   was driving his car without lights when he was stopped by a plain- clothes police officer in an unmarked police car.  There was no evidence before Judge Behrens of how the car was stopped, or whether the detective constable showed Mr C   any proof that he was a constable, or even said he was a police officer.   The evidence did establish that on the roadside Mr C   underwent a breath screening test, and was then required to accompany the detective constable to the Lower Hutt Police

Station.  There an evidential breath test was carried out followed by a blood test.  There

C V NEW ZEALAND POLICE HC WN CRI 2005-485-137  3 March 2006

was no evidence that Mr C   objected while on the roadside or at the Police Station to doing what the detective constable directed him to do.  And in cross-examination before Judge Behrens,  no challenge was  mounted  to  the detective constable’s  authority  to enforce the Land Transport Act.

[3]      The main point taken in the District Court and in this Court was that the relevant provisions of the Land Transport Act can be enforced only by an enforcement officer who is at the time in uniform or in possession of a warrant or other evidence of his authority.  The Judge accepted that was so, but ruled that the police had proved beyond reasonable doubt that the detective constable appeared to the defendant to have authority to enforce the provisions of the Act.  He relied on Police v Elley [1996] DCR 488, in which the Court held that in a case where there was no challenge to authority at the roadside, no cross-examination as to possession of authority, and the defendant was compliant, it was safe to infer that the officer did appear to have authority to exercise his powers under the legislation.  But in that case the inference appears to have been open that the officer was in uniform and/or in a marked patrol car.

[4]      Section 113(1) provides that:

113     Enforcement officers may enforce transport legislation

(1)     An enforcement officer in uniform or in possession of a warrant or other evidence of his  or her authority as an enforcement  officer may enforce the provisions of—

(a)     the Transport  Act  1962,  the Local  Government  Act  1974,  [the  Local Government  Act  2002,]  the  Road  User  Charges  Act  1977,  the  Transport (Vehicle  and  Driver  Registration  and  Licensing)  Act  1986,  the  Transport Services Licensing Act 1989, the Transit New Zealand Act 1989, the [Railways Act 2005], [the Land Transport Management Act 2003,] and this Act:

(b)     regulations and rules and bylaws in force under any Acts mentioned in paragraph (a).

[5]      The  Crown  urged  on  me  a  purposive  construction,  submitting  that  s113  is intended only to ensure that an officer must have evidence of authority before a motorist can be compelled to comply.  As Woodhouse J put it in Quirke v Ministry of Transport [1977] 2 NZLR 497 at 504:

“And I think the basic purpose of s68B(1) is also plain enough.  The legislature has recognised that a citizen is entitled to question apparent intrusions upon his actions and movements; so that if he challenges the status of an officer who wishes to enforce some provisions of the Transport Act, or the regulations made

under,  then  that  officer  must  be  in  a  position  there  and  then  to  produce reasonable evidence of his official position or standing.”

[6]      I accept that is the purpose of the section, but it does not follow that an officer who is without any evidence of his  or  her authority can enforce the legislation,  in circumstances where the citizen does not question his or her authority.  As a matter of construction, the section provides that it is a prerequisite to the officer’s authority to enforce the provisions of the Transport Act that he or she should be in uniform or in possession of a warrant or other evidence of his or her authority as an enforcement officer at the time of enforcement.  Section 113(1) is in materially identical form to the former s68B(1) of the Transport Act 1962, under which it was held that the officer’s statutory power to enforce the relevant legislation is available only where he or she is in fact in uniform or in possession of a warrant or other evidence of his or her authority: Robertson v Police HC MS M7/96 19 June 1996.  The Crown did not point to any other source of jurisdiction to enforce the Act.

[7]      Mr Anderson, who did not appear in the District Court, pursued an alternative argument, submitting that any sworn police officer is in possession of a warrant for the purposes of s113(1).  That submission founders on the language of the section.  It does not provide simply that an enforcement officer, such as a sworn police officer, may enforce the legislation.  Rather, it requires that the officer be possession of a warrant or other evidence of authority.   In other words, the section contemplates that the officer will have such evidence in his or her possession at the time, so that it can be shown if required to the citizen whose freedom  of movement the  officer  is  interfering  with. Further, there is no room for an inference that any sworn officer will be in possession of a warrant at all  times  while  on  duty:  the  evidence  did  not  establish  that,  and  Mr Anderson did not suggest that the Court could take judicial notice of it.

[8]      It is  of course for  the Crown to prove the elements  of the  offence beyond reasonable doubt, but the Court may be more ready to draw an inference from the evidence in circumstances where the officer’s authority was not challenged at the time or at the hearing: Quirke at 504-5 per Woodhouse J, Carroll v Police HC WN AP113/00 14

July 2000 at [8], Russo v Police HC RO CRI 2005-470-04 27 April 2005 at [36].  In this case, the Judge noted that there was no challenge to the officer’s authority in cross- examination.

[9]      In a number of cases the Court has been willing to  infer  from the driver’s compliance that the officer must have been in uniform.   Transport Ministry v Quirke [1977] 2 NZLR 497 is an example, as are Spiekerman v Police HC WN AP83/99 27

May 1999, Carroll v Police HC WN AP113/00 14 July 2000, and Te Ao Hema v Police HC WN CRI-2005-485-106 3 October 2005.  In this case, as the Judge found, no such inference could be drawn.  The evidence established rather that the officer was not in uniform, and was not driving a marked police vehicle.

[10]     There being no direct evidence on the point and no challenge to the officer’s authority, the issue for the Judge was whether an inference could be drawn that the officer was in possession of a warrant or other evidence of his authority.

[11]     In my view the evidence is too equivocal to justify an inference that the officer must have produced a warrant to secure Mr C  ’s compliance.  He may have done no more than assert his authority.  That being so, it was not possible to infer that he was in possession of a warrant, and the Judge did not do so.   Nor did Mr Anderson suggest before me that such inference was open.

[12]     Rather, the Crown’s position is that the Judge was entitled to infer from Mr C  ’s compliance that the officer must have been in possession of some other form of authority.  That submission fails for two reasons.  The first is that all the evidence about compliance establishes is that Mr C   believed he was dealing with a police officer. That state of affairs may have resulted from the officer simply asserting his authority. This  case  may  be  distinguished  from  those,  such  as  Quirke,  where  the  evidence, including evidence of compliance, justifies an inference that the officer was in uniform. The second is that in a case where the officer was not in uniform or in possession of a warrant, both of which the legislation deems to be evidence of authority, the question is whether the evidence establishes, directly or by inference, that he was in possession of something else that is, in law, evidence of his authority.  Proof of that requires that the Crown identify the thing that is said to evidence authority.

[13]     In this case the officer had a breath screening device in his possession, and his car must have been equipped with some means to stop Mr C  ’s vehicle.  However, I do not think that the evidence could justify an inference that the unmarked car must have been equipped with some indicia of authority, such as a siren.   Nor did Mr Anderson

suggest otherwise.  Mr C   might have been pulled over with flashing headlights or indicators, for example.  The Crown could point to no other item that might amount to evidence of authority.  Mr Anderson referred to an evidential breath screening checklist, but the evidence established that that document was completed at the police station. Accordingly, the only item that might establish authority is the breath screening device. Mr Johnson maintained that is not enough, pointing out that the evidence did not show it was an approved item and contending that such devices are freely available for purchase by any member of the public.   Mr Anderson relied on it as clear evidence of status. Neither counsel was able to produce authority on the point.

[14]     The evidence with which the section is concerned is evidence of the individual’s status as a member  of a class comprising enforcement officers, who include police officers.  A uniform serves that purpose.  The legislation also envisages that the officer may rely on his or her warrant, which is a form of official identification establishing that the holder is a police officer.  But a breath testing device does not clearly identify the individual carrying it as a police officer in the same way that a uniform or warrant card does.  And it is not something that only the police may possess.   The purpose of the section is to ensure that the officer can produce there and then reasonable evidence of his or her official status so that, as Woodhouse J put it, the citizen can exercise his right to challenge apparent intrusions on his actions and movements.   That requires evidence that, like a uniform or warrant card, is clear, such that the reasonable citizen could not take issue with the officer’s status when presented with it.   A breath screening device alone could not suffice for that purpose, although it might do so in combination with other indicia of authority.

[15]     Mr Johnson’s second ground of appeal was that there was a break in the chain of proof  relating  to  the  labelling  and  delivery  of  the  blood  sample.    The  detective constable’s evidence was that when the samples were handed to him by the person who took them, he “collected the senior sergeant’s key from his office to the locked senior sergeant’s safe and locked that safe with those items to be forwarded by courier at the next available opportunity”.  Judge Behrens inferred that the samples were locked in the safe.   He held that there was evidence that the blood specimen form identifying the sample was included.   There was evidence,  from a courier sticker, that the sample package was dispatched by courier.  The Judge found that it proved beyond reasonable doubt that the constable caused the blood to be sent, as required by the Act, relying on

Aualiitia v Ministry of Transport [1983] 3 NZLR 727. In that case the Court of Appeal held that an enforcement officer may cause a specimen to be posted by registered post if the officer makes use of an office system designed to bring about that result, including placing specimens in a locker containing the samples sealed and correctly addressed where that locker is intended for the specimens to be uplifted and then posted to the analyst.

[16]     Mr Anderson pointed out that the officer gave evidence that he attached the correct receipt number to the advice of evidential breath test form, and that the analyst’s certificate refers to the same number.  Section 74 does not require that the officer send the sample himself;  he need only cause it to be delivered (including courier) or posted. In any event, s76(1) provides that a certificate that names a person having the same name, address and occupation as the defendant from whom the specimen of blood was taken is evidence, until the contrary is proved, that the specimen was taken from the defendant.  I accept this submission, as did the Judge.  This ground of appeal fails.

[17]     However, the first ground succeeds.   The criminal is to go free because the prosecutor has blundered.  The appeal is allowed, and Mr C  ’s conviction is set aside.

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 4.00pm on the 3rd day of March 2006.

F Miller J

Solicitors:

W Johnson of Lower Hutt for Appellant

Crown Solicitor of Wellington for Respondent