D v Police HC Auckland CRI 2007-404-90

[2007] NZHC 614

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-000090

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 June 2007

Appearances: Mr M Lenihan for Appellant

Ms C Knight for Crown

Judgment:      6 July 2007 at 3.00 p.m.

JUDGMENT OF VENNING J

This Judgement was delivered by me on 6 July 2007 at 3.00 p.m. pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar
Date………….

Solicitors:           Crown Solicitor, Auckland

Lowndes Jordan, Auckland

Copy to:            M Lenihan, Auckland

D V NEW ZEALAND POLICE HC AK CRI 2007-404-000090  6 July 2007

Introduction

[1]      On 27 February 2007 the appellant was convicted in the North Shore District Court on one charge of driving a motor vehicle while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath.  He was fined $780, ordered to pay costs of $130 and disqualified from holding a driver’s licence for six months.    He  appeals  the  conviction.    The  disqualification  has  been  suspended pending the outcome of the appeal.

Background

[2]      At  about  2.20  a.m.  on  Thursday,  16  November  2006  an  off-duty police constable, Steven Gleeson was driving his private motor car north on the northern motorway.  The off-duty constable noted that a Honda Accord car in front of him had no tail lights on and was driving erratically.   He rang the police Northern Communications Centre on his cellphone to alert police to the situation.   He then followed the Honda vehicle when it exited the motorway at the Greville Road onramp.   The Honda drove north through Albany village.   The erratic driving continued.  The car lights were turned on and off.  The Honda car then turned left into the Coatesville/Riverhead Highway.  At that time the off-duty constable flashed his headlights a few times to see if the driver would stop.  The Honda turned left into O’Brien Road and, at about 2.45 a.m., stopped outside an address at O’Brien Road. The off-duty constable stopped his own car behind the Honda and then approached it.  He left his police identification in the car.  He did not identify himself as an off- duty police officer.  The evidence is that the conversation went as follows:

I said to the defendant, “Hi.” He replied, “Hi.”

I said, “Have you been drinking at all?” He said, “Yes.”

I said, “I will just borrow your keys.”

I asked him to put the transmission into ‘park’ so I could remove his keys.

He put the transmission into park and I removed the keys so he would not restart the car.  I told him that a police patrol would need to come and see if he was okay to continue driving.

The defendant agreed to wait and said he had been out of the country for the past 16 years and was a little unfamiliar with the roads now.

He handed me, without me asking, a laminated card with his name on. He got out of the Honda and walked around it. …

I asked him where he lived and he told me Ridge Road near North Harbour stadium and he pointed north.

The correct direction for the stadium from where we were was south. A Police Patrol arrived at 2.58am.

[3]      Sergeant Davis (from the patrol car) then carried out a breath screening test that led to the prosecution.

[4]      At the prosecution in the District Court the appellant accepted the evidence of both the off-duty constable and Sergeant Davis as admitted facts.  He also accepted the related exhibits and breath alcohol reading.   The appellant elected to give no evidence.

[5]      Although no contest was taken with the evidence counsel submitted that the evidential breath test should not be received in evidence because:

•   There had been a breach of s 113 of the Land Transport Act 1998 (the Act);  and

•   There had been a breach of s 114(2) of the Act and s 22 of the New Zealand Bill of Rights Act 1990, in that the detention was unlawful and the subsequent evidence was inadmissible.

•   The defendant was not a driver, given the time that elapsed from the time that he initially stopped and was subsequently dealt with by Sergeant Davis.

[6]      Judge Wilson QC rejected the submissions for the appellant.  He found that in the circumstances the off-duty constable was not acting as a policeman but rather as a responsible member of the public.  Next, the Judge found that as the off-duty constable was acting as a member of the public there could be no breach of s 114 or s 22 of the New Zealand Bill of Rights Act but in any event, the evidence of the breath test result would be admitted on a Shaheed balancing exercise.  Finally, the Judge rejected the submission that the appellant was not a driver, noting that there was no unreasonable delay between the driving in issue and the subsequent request to undergo the breath screening procedures.  The Judge found the charge proved and convicted the appellant accordingly.

Submissions for the appellant

[7]      In this Court the appellant pursues two arguments:

•    first, that Judge Wilson QC was wrong to hold that the off-duty constable was not acting as a police officer;  and

•    if the District Court Judge was wrong and the off-duty constable was acting as a police constable then he failed to comply with the requirements of ss 113 and

114 of the Act so that the evidence of the breath test was inadmissible.

Respondent’s submissions

[8]      The respondent supports the decision of the District Court Judge that on the facts the off-duty constable was not acting as, and had not held himself out to be acting as, a police officer and so had no reason to resort to the powers under the Act.

[9]      The essence of the appellant’s case is that although Constable Gleeson was off-duty, he was under a duty to act as a constable and once he so acted, he was effectively on duty so that he had to comply with ss 113 and 114 of the Act.

[10]     The office of constable is a product of the common law, but it also has statutory recognition.  It is a public office, the constable being a “minister of justice” as well as a servant of the Crown:  Laws of New Zealand, “Police” at paragraph 2. The  origin  of  the  common  law  status  of  police  constables  was  discussed  by McCardie J in Fisher v Oldham Corporation [1930] 2 KB 364, at 369 and 371.

[11] In New Zealand the statutory recognition is under the Police Act 1958. The Police Act 1958 provides in s 37 for the following oath to be taken by sworn police constables:

I, … do swear that I will well and truly serve our Sovereign Lady the Queen in the Police, without favour or affection, malice or ill-will, until I am legally discharged;   that I will see and cause Her Majesty’s peace to be kept and preserved;  that I will prevent to the best of my power all offences against the peace;  and that while I continue to hold the said office I will to the best of  my  skill  and  knowledge  discharge  all  the  duties  thereof  faithfully according to law.  So help me God.

[12]     The oath is in similar terms to that taken in other common law jurisdictions. As a consequence of the oath and the unique status of a constable it is said that a constable has common law duties to prevent breaches of the peace, to preserve life and property and to prevent crime and detect offenders:   Laws of New Zealand, “Police”, paragraph 2;  Halsbury’s Laws of England (4 ed reissue) 36(1) paragraph

524.

[13]     The first issue in the present case is whether an off-duty constable has the same obligation to act to prevent breaches of the peace, to preserve life and property and to prevent crime and deter offenders as an on-duty constable.

[14]     Mr Lenihan referred to three cases in support of his submission.  In Horne v

Coleman (1929) 46 WN (NSW) 30 the defendant was charged with assaulting a

constable while in the execution of his duty.   The constable was off-duty, not in uniform, but in a picture theatre.  He was called upon by the owner of the theatre to remove the defendant from the theatre as the defendant was being abusive and making a noise.  The constable approached the defendant and said:

Now you know who I am, you had better go away without causing any trouble.

[15] The defendant refused to leave. The constable told him again to leave, and the defendant struck the constable on the jaw. There was then a struggle, during which the constable was kicked and struck again. Davidson J noted that under the Police Regulation Act 1899 a member of the police force takes an oath to cause the peace to be kept and preserved and to prevent to the best of his power all offences against the same and that reg 219 provided that, whether on duty or not, a constable must be prepared, even when in his home to turn out in all such emergencies as fires, accidents of any kind, disturbances etc.

[16]     In light of that statutory obligation (in addition to the terms of the oath) Davidson J concluded that a constable:

has a continuing duty to prevent, or assist, in preventing, disturbances, or breaches of the peace.

[17]     Davidson J considered that the evidence the constable attempted to seize the defendant was evidence of an attempted arrest on the part of the officer.   He concluded that when the first blow was struck without excuse, there was a breach of peace so the constable was justified in arresting the defendant.

[18]     The note of R v Johnston [1966] 1 CCC 226 (Ont CA) is brief. The police officers were, in their off-duty time, privately employed to direct traffic outside a brewer’s warehouse. They arrested the defendant for creating a disturbance. In an oral judgment Gibson J.A. stated a police officer is “on duty at all times” and was quite within his rights to make an arrest. The case is of little assistance given the lack of information as to the relevant facts and the lack of authority for the general statement.

[19]     The last case counsel referred to was Shepherd v Martin (1991) 55 SASR

367.  In that case two off-duty police officers were on licensed premises.  They heard the respondent using offensive language and saw that she was severely affected by alcohol.   On their own  initiative  and  without  a  request  from  anyone  else,  they requested her to leave the premises.  She refused to do so.  They escorted her from the licensed premises and told her that she could not return for 24 hours.  Under the relevant liquor licensing legislation, a person removed from premises by a member of  the  police  committed  an  offence  if  they  re-entered  within  24  hours.    The respondent returned after 10 minutes.  She was subsequently charged.

[20]     The issue was the authority of the off-duty constables to remove her.  In the Supreme Court of South Australia Cox J held it was not in point that the constables were off-duty given the primary common law duty of a police constable is the preservation of the peace.  He referred to the oath of office and stated:

When the police officers in the … hotel had reason to believe that a breach of the peace or an offence was being or was about to be committed by the respondent … they were obliged to intervene. … In this sense of the expression a police officer is never off duty.

(emphasis added)

[21]     The issue has more recently been considered in the decision of the Supreme Court of Brisbane in Peat v Lin [2005] 1 Qd R 40. Three off-duty police officers were present at a night-club at which the plaintiff was stabbed. The plaintiff sued the officers in negligence alleging that they owed him a duty to intervene and ought to have known of the risk of attack because of the attacker’s behaviour that night. After considering the relevant authorities including Horne  v  Coleman,  Atkinson  J observed:

Relying on this authority, Williams J. observed in Hocken v. Pointing [1993]

2 Qd R. 659 at 660 that “the oath taken by a police constable … in essence requires a police officer to be on duty at all times”. In my view, that proposition is stated rather too widely. A police officer has a duty to the public which can not be discharged just because the police officer is not officially on duty. This does not, however, require an off-duty police officer to intervene in any situation to which police who are on duty might be called.  Nor does it justify a police officer using his or her public powers or office when acting in a private capacity.  These off-duty police officers are not alleged to have done anything which mean that they were acting or purporting to act in the capacity of a constable.  …

(emphasis added)

[22]     The issue was also considered in Re Mullen [1995] 2 Qd R 608. An off-duty constable punched another driver after a traffic skirmish. The issue was whether that was official misconduct. In response to the submission that a police officer is always on duty Lee J again reviewed the authorities, including Horne  v  Coleman  and observed:

Cases of that nature do not seek to ascribe to an off duty officer’s private conduct some official character, nor do they establish that every act done by such an officer no matter how unconnected with his or her position can be punished by official sanction.  Perhaps it would be more accurate simply to say that certain of a police officer’s functions do not cease at the end of their allocated  shift  but  may  be  invoked  at  any  appropriate  time  in  order  to prevent breaches of the peace:  cf Horne v Coleman (1929) 46 WN (NSW)

30.  Indeed, they have a duty to do so:  Duncan v Jones [1936] 1 KB 218;

Rice  v  Connolly  [1966] 2 QB 414, 419. Unless invoked in that way, however, it seems to me inappropriate to speak of their actions as official. …

[23]     Reference can also be made to the case of Davis v Minister of Pensions [1951] 2 All ER 318 (KB). Although the facts of the case are quite different, in the course of discussing the obligations on an off-duty constable the Court stated:

When the prescribed hours of duty of a police constable have come to an end and an emergency arises, it is his duty to attend to that emergency, and at that moment he is on duty in the strict and narrow sense which would bring him within the meaning of s 8(1), but until such an emergency arises, he is in the position of any other civilian.

[24]     As noted, in Peat v Lin, Atkinson J considered that the statement that police officers were on duty at all times was stated rather too broadly.  It is also of note that in the case of Horne v Coleman itself, Davidson J at 31 made a distinction between responding to a breach of peace and other actions:

A constable is not engaged in the execution of his duty if he is merely assisting a householder to eject an intruder: R v Roxburgh (12 Cox C.C. 8).

[25] In concluding a constable has a continuing duty to prevent breaches of the peace, Davidson J was influenced by and placed reliance on the oath and the express statutory obligation to “turn out” in emergencies. While the oath is still applicable, the Police Act does not contain any provision requiring a constable to ‘turn out’ in emergencies.

[26]     In Shepherd v Martin Cox J’s comment that a police officer was never off- duty was again based on the constable’s obligation to respond to a breach of peace. Cox J’s comment that a police officer is never off-duty also followed a reference to the case of Salt v Galkowski (1978) 19 SASR 130. In Salt v Galkowski an off-duty constable told some youths that he was an off-duty constable and asked them to move out of a shop where they were acting in a disorderly manner.   They then assaulted him.  The Court noted the constable was obliged, by his oath, to intervene where he had reason to believe that a breach of the peace or an offence is being or is about to be committed.

[27]     The authorities referred to support the proposition that an off-duty policeman has an obligation at common law and on the basis of his or her oath to intervene to prevent a breach of the peace.

[28]     The issue of the obligation on an off-duty policeman to intervene to preserve life and property and to prevent crime and detect offenders is, however, more problematic. The  authority cited  in  Halsbury’s  for  that  proposition  is  Haynes  v Harwood [1935] 1 KB 146 (CA). A policeman (on duty) was injured when he intervened to stop the defendant’s runaway horses. In the course of the decision Maugham LJ stated at 161-162:

In my opinion the police constable was not in any true sense a volunteer. It is true that he was under no positive legal duty to run out into the street and at the risk of his life to stop two galloping horses; and I quite accept that nobody would have thought of reprimanding him if he had done nothing. It is also true that the primary duty of the police is the prevention of crime and the arrest of criminals; but that is only a part of the duties of the police in London.   There is a general duty to protect the life and property of the inhabitants; there is a discretionary duty to direct the traffic, to help blind and infirm people to cross the road, and to direct people who have lost their way. I think it is common knowledge that the position of the police in this City has altered as the result of long habit and intercourse between them and the  people  since  the  year  1829,  when  Sir  Robert  Peel  introduced  his celebrated measure; so that the police are now regarded as the friends of the inhabitants whilst engaged in lawful avocations. In my opinion they are not mere lookers-on when an accident takes place, or seems likely to take place; they have, I think, a discretionary duty to prevent an accident arising from the presence of uncontrolled forces in the street, if they are in a position to do so.

(emphasis added)

[29]     The discretionary duty referred to by Maugham LJ is somewhat less than a positive  duty  to  intervene  to  protect  life  and  property.    It  also  related  to  the obligations of an on-duty constable, not an off-duty one.  When considering whether to impose a duty on off-duty police to intervene, the consequences of imposing such a duty are also a relevant consideration.   In R v Dytham [1979] 3 All ER 641 the Court of Appeal, Criminal Division confirmed that a police officer who, wilfully and without reasonable excuse, neglected to perform any duty he was bound to perform by common law or statute was indictable for the common law offence of misconduct in a public office.

[30]    The authority referred to in Laws of New Zealand is Fisher v Oldham Corporation [1930] 2 KB 364. In that case McCardie J discussed the basis of a constable’s authority. But when referring to the obligation relating to “preventing robberies and other felonies …” McCardie J took that wording from the then form of the oath. There was no suggestion in that case that an off-duty policeman owed any particular duties to prevent offences in general.

[31]     While an off-duty constable may, at common law, and in accordance with his or her oath of office have a duty to respond to and prevent a breach of peace, an off- duty constable not faced with a breach of peace, is not obliged to intervene in a situation to which the police on duty might be called:  Peat v Lin, Re Mullen, R v Dytham.  In addition, an off-duty constable may, despite the fact that he or she is off- duty, exercise powers that a constable is authorised to exercise:  Shepherd v Martin.

[32]     I conclude that the off-duty constable, Constable Gleeson was not under a positive duty to intervene in this case.  This was not a situation involving a breach of peace.  It was a case where any concerned motorist might take steps to try and stop the appellant from driving, and also alert the police.

[33]     The  real  issue  in  the  case  is  whether,  by  acting  as  he  did,  the  off-duty constable purported to exercise powers only available to a police officer under the Act and was, as a result, required to comply with ss 113 and 114 of the Act.

[34]     Mr Lenihan referred to two recent New Zealand authorities under s 113 and s

114:  Russo v New Zealand Police HC ROT CRI 2005-470-000004 27 April 2005

Allan J and Crilly v New Zealand Police HC WN CRI 2005-485-000137 3 March

2006 Miller J.  They can both be distinguished.  In Russo the constable purported to exercise powers under the Act.  The issue was whether there was sufficient evidence of his authority to do so as no evidence had been led as to whether he was in uniform.  The issue does not arise in the present case.  The off-duty constable did not purport to exercise powers as a police officer.  In Crilly the appellant was stopped by a plain clothes police officer in an unmarked police car.  Again no evidence was led to  establish  that  the  police  officer  showed  the  appellant  proof  that  he  was  a constable.  The case can also be distinguished on its facts.  The following passages from it are however of some assistance.   In referring to the requirement for the constable to produce evidence of authority when invoking s 113 Miller J noted at [14]:

… 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, [in Transport Ministry v Quirke [1977] 2 NZLR 497 (CA)] 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.

[35]     Similarly, in an earlier part of the judgment, at [6] Miller J stated:

As a matter of construction, [s 113] 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.

[36]     So where a constable seeks to enforce powers given him or her under ss 113 or 114 of the Act, he or she must produce evidence of their authority to do so to the driver.

[37]     A constable in uniform or in possession of his warrant may enforce the provisions of, inter alia, the Transport Act 1962:   s 113(1)(a).   The Transport Act

1962  has  largely been  repealed.    The  off-duty constable  was  not  purporting  to exercise any powers under that Act.  A constable in uniform or wearing a distinctive cap, hat, helmet with a badge of authority affixed, who is engaged in the regulation

of traffic may direct a person to stop their vehicle:  s 113(3).  The off-duty constable was not engaged in the regulation of traffic.   Alternatively, a police constable in uniform or wearing a distinctive cap, hat, helmet with a badge of authority affixed may signal or request the driver of  a vehicle to stop the vehicle as soon  as is practicable or may, by displaying flashing blue or blue and red lights or sounding a siren require the driver of a vehicle to stop:  s 114(1) and (2).

[38]     In the present case the off-duty constable caused the appellant to stop his vehicle.  But he did so by flashing the headlights of his private motor vehicle at the appellant.  At the time he was not in the course of directing traffic, he was not in a patrol car  and he was not in uniform.   He  was  not  purporting to  exercise  any authority under ss 113 and 114 when he flashed the lights of his private car to get the appellant’s attention.  The appellant chose to stop in response to being flashed, but he was not obliged to do so.   If Mr Lenihan’s submission was correct that the constable had to comply with s 113 and s 114 when he chose to act, then the constable would have not been entitled to have taken any action after the appellant had stopped, because even if he had approached the car and produced his warrant, it would have been too late.  But that time he had already caused the appellant to stop.

[39]     The off-duty constable then spoke to the appellant and said he would borrow his keys.  He asked the appellant to put the transmission into park so the keys could be removed.  The appellant did not know he was speaking to an off-duty constable. He chose to comply with the request.  The off-duty constable then told the appellant a police patrol would need to come and see if he was okay to drive.  The appellant agreed to wait.

[40]     In  acting  in  that  way the  off-duty constable  did  not  purport  to  exercise authority that only a police constable has.  He did not direct the appellant to give him his name, address and date of birth:  s 113(2), s 114(3)(b).  He did not demand the appellant state whether the car was his:   s 114(3)(b).   While he said that a police patrol would “need to come, to see if [the appellant] was okay to continue driving” he did not require the appellant to wait while he obtained particulars or while he administered any evidential breath test.

[41]     The actions the off-duty constable took were all actions that a member of the public could have undertaken without relying on any authority under the Act.  The appellant’s actions of stopping the car, allowing the keys to be taken and agreeing to wait, were not taken as a consequence of any authority exercised by the off-duty constable under the Act.  The appellant was not obliged to stop his car.  He was not obliged to put the transmission in park to enable the keys to be removed.  Even when the off-duty constable had the keys the appellant was not obliged to remain with the car.  He could have left the scene.

[42]     The fact that an on duty police constable could have forced the appellant to stop his car and could have required the appellant to remain and undergo a breath test does not mean that an ordinary citizen or an off-duty constable could not also in their own way seek to stop a driver who appeared to them to be affected by alcohol.

[43]     It follows that I agree with Judge Wilson QC that as a matter of law an off- duty constable does not become on duty and required to comply with the provisions of ss 113 and 114 of the Act just because he takes steps that another member of the public could also take to stop a drunk driver, provided he does not directly seek to exercise authority that only a police constable would have.   The Judge was entitled to infer from the evidence that the appellant, although not obliged to stop, once stopped and spoken to by the off-duty constable was simply resigned to the fact he should not be driving and co-operated on that basis.

[44]     Mr Lenihan accepted that the second ground of appeal was based on a finding in the appellant’s favour on the first.  Given my finding on the first there is no basis for the second ground.

Result

[45]     The appeal is dismissed.  The disqualification period is to run from midnight on 11 July 2007.

Venning J