Ghent v Police
[2014] NZHC 3282
•17 December 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000298 [2014] NZHC 3282
BETWEEN MARK JAMES PATRICK GHENT
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 15 December 2014 Appearances:
S Rollo for Appellant
H Musgrave for RespondentJudgment:
17 December 2014
JUDGMENT OF VENNING J
This judgment was delivered by me on 17 December 2014 at 3.30 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: C Morrall, Christchurch
Meredith Connell, Auckland
Copy to: S Rollo, Christchurch
GHENT v NEW ZEALAND POLICE [2014] NZHC 3282 [17 December 2014]
Introduction
[1] Mark Ghent was charged with:
(a) obstructing a police officer in the execution of his duty: s 23(a), Summary Offences Act 1981; and
(b)refusing to give his name and address to a police officer: s 52(1)(c) of the Land Transport Act 1998.
[2] Following a defended hearing in the District Court at Waitakere Judge J Bergseng delivered a reserved decision in which he found both charges proved.1 On the obstruction charge Mr Ghent was convicted and fined $200 with Court costs
$130.00. On the refusal to provide particulars he was convicted and discharged. Mr
Ghent appeals against both convictions.
The obstruction charge
[3] On 26 September 2012 Mr Ghent was driving a motorcycle in Henderson. Sergeant Thornley saw him overtaking a vehicle through an intersection. The Sergeant activated his lights and siren and pulled Mr Ghent over on Te Atatu Road. The Sergeant then noticed Mr Ghent was wearing a Hell’s Angel’s patch. The Sergeant asked Mr Ghent to provide his particulars and licence. Mr Ghent provided his licence but a stand-off between the two followed. Mr Ghent filmed the incident using his cell phone.
[4] Sergeant Thornley initially asked Mr Ghent to remove his helmet to confirm his identity. Mr Ghent partially lifted his helmet, but not fully, so the Sergeant asked him to take his helmet off properly. After initially refusing to do so, Mr Ghent eventually complied. Sergeant Thornley then returned towards his patrol car to run checks about Mr Ghent’s licence and vehicle. Mr Ghent followed the Sergeant closely. In colloquial terms, Mr Ghent got in the Sergeant’s face. The Sergeant asked Mr Ghent to return to his motorbike so he could carry out the checks without Mr Ghent’s interference. The Sergeant was also concerned for his safety. After
directing Mr Ghent to stand by his motorcycle, and Mr Ghent’s refusal to comply, Sergeant Thornley pushed Mr Ghent in the direction of his motorcycle. The Sergeant warned Mr Ghent on several occasions that he would be arrested for obstruction if he did not move before finally arresting him for obstruction.
The failure to provide details charge
[5] Approximately two and a half months later on 13 December 2012 Mr Ghent was with a group of fellow motorcyclists at the Shell Service Station at Westgate, Henderson. Constable Brown was directed to attend the service station.
[6] There were about 10 to 12 members of the group. Mr Ghent was one of the group. Constable Brown asked them to provide their names and drivers licences.
[7] Mr Ghent said it was time to leave. No-one had responded to the constable’s
request to provide names and drivers licences.
[8] As Mr Ghent commenced to put on his motorcycle helmet and climb onto his motorbike, Constable Brown again asked Mr Ghent to provide his name and driver’s licence. Mr Ghent refused. He was told that a continued refusal would lead to his arrest. Mr Ghent was then charged with refusing to provide his name and details.
The District Court judgment
[9] The Judge was satisfied that Sergeant Thornley decided to stop Mr Ghent on the first occasion because of the manner of his driving. The Judge next rejected the submission on behalf of Mr Ghent (based on Rodley v Police)2 that although his conduct might be seen as “inferior” or “unreasonable” and bringing discredit upon him it was not obstruction as he was doing no more than merely exercising his lawful rights. The Judge was satisfied that Mr Ghent’s actions and refusal to comply
with the officer’s reasonable request to stand away from him amounted to obstruction.
[10] The Judge rejected the evidence of Mr Brent Bills called on behalf of Mr Ghent that it was common practice for police to use powers contained within the Land Transport Act to stop gang members for the dominant purpose of information gathering as irrelevant. The Judge found the charge of obstruction proved beyond reasonable doubt.
[11] On the charge of failing to give his name and address the Judge considered that, had the matter rested with Constable Brown’s initial request for details which was primarily for the purpose of gathering information for the police data base, then Mr Ghent and his associates would have been entitled to decline to respond. However, once Mr Ghent put his helmet on, got on his motorcycle and started it, the officer was entitled to ask for his name and licence for Land Transport purposes. Mr Ghent was on a road and his refusal was in breach of his obligation to provide such details under the Land Transport Act. Again the Judge found the charge proved.
Grounds of appeal
[12] The appeals against conviction are pursued on the grounds that:
Obstruction:
(a) Mr Ghent was lawfully entitled to question and challenge the
Sergeant’s actions and he did so in a reasonable way;
(b)at the time Mr Ghent was warned of arrest and then was arrested he was doing little more than reasonably challenging and protesting the direction of the Sergeant that had no lawful basis and; therefore
(c) the Judge erred in holding the appellant’s actions could, as a matter of law, amount to obstruction.
Failure to give particulars:
(a) the officer accepted in evidence that the predominant purpose of his interaction with Mr Ghent was intelligent gathering;
(b) there was no evidence of road safety or other bona fide purpose for
the officer’s request that Mr Ghent provide his particulars;
(c) the Judge failed to give adequate consideration to whether there was a legitimate basis for the request; and therefore
(d)the Judge erred in rejecting the argument the officer was acting ultra vires at the time.
Discussion – the obstruction charge
[13] Mr Ghent chose not to give evidence but the video footage from his cell phone was introduced into evidence. In addition to Sergeant Thornley an officer who arrived later and took over also gave evidence. The evidence of another officer, Detective Robinson, who downloaded the video from Mr Ghent’s cell phone was admitted by consent.3
[14] While Mr Ghent did not give evidence he did however call the evidence of
Mr Bills, a former police officer. Mr Bills was a police officer between 2002 and
2006. He gave evidence of the police practice of stopping gang members using the
Land Transport Act as justification.
[15] The Judge was correct to consider Mr Bills’ evidence to be irrelevant. The issue in the present case is whether there was evidence that Mr Ghent was stopped for Land Transport considerations. There was direct evidence from Sergeant Thornley about that. Mr Bills’ evidence in very general terms as to what police practices might have been in 2002 and 2006 is entirely irrelevant to whether the stopping of Mr Ghent in September 2012 was justified or not. The only direct evidence before the Court on that issue was from Sergeant Thornley. He said that it was Mr Ghent’s action of overtaking a vehicle while proceeding through the intersection which caused him to turn around, activate his lights and siren and pull the motorcycle over. It was only later that he realised Mr Ghent was a patched Hell’s
Angel’s member.
3 The video was replayed in Court for the appeal.
[16] The real issue is whether Mr Ghent’s actions amounted to obstruction. In this context obstruction means making it more difficult for Sergeant Thornley to carry out his duty. In Urlich v Police,4 McGechan J approved the statement of Lord Goddard CJ in Hinchcliffe v Sheldon5 to that effect. Mr Ghent’s actions need not have gone so far as to prevent Sergeant Thornley from carrying out his duties, it is
enough if the performance of his duty was made more difficult.
[17] The action must also be accompanied by an absence of justification or lawful excuse: Goldsmith v Police.6 The Court should also bear in mind that, as Cooke P observed in Minto v Police:7
… the Courts should be — and I am sure are — conscious of the importance of ensuring that the rights and liberties of citizens are not unduly or unreasonably interfered with by the police or others in authority.
[18] The direct evidence about the incident comes from Sergeant Thornley’s evidence and the video from Mr Ghent’s cell phone which was admitted in evidence. The Sergeant’s evidence, which I consider is confirmed by the video, was that Mr Ghent was confrontational. While he eventually complied with the request to take off his helmet, he then made the Sergeant’s task of checking his licence and personal details through the police computer at his patrol car much more difficult. Mr Ghent followed the officer towards the car. While the officer was trying to communicate by his radio, in order to verify Mr Ghent’s details and request back-up, Mr Ghent came directly up to him, questioned him and effectively confronted him. Sergeant Thornley was distracted by Mr Ghent’s actions from giving and receiving his radio communications.
[19] Mr Ghent’s actions of refusing to stand where he was asked to stand by the officer made it more difficult for Sergeant Thornley to carry out his duties, which was to verify Mr Ghent’s details. Mr Ghent’s actions at least delayed the Sergeant
carrying out his duties. Prima facie he obstructed Sergeant Ghent.
4 Urlich v Police (1989) 4 CRNZ 144.
5 Hinchcliffe v Sheldon [1955] 1 WLR 1207.
6 Goldsmith v Police (1993) 10 CRNZ 106 (HC).
7 Minto v Police [1987] 1 NZLR 374, at 378.
[20] Mr Rollo submitted Mr Ghent was not obliged to comply with the Sergeant’s direction to move away from him and stand by his motorbike. He suggested it is questionable whether the Sergeant was acting reasonably and lawfully when he pushed Mr Ghent towards his motorbike. In failing to consider whether there was a lawful and reasonable basis for the Sergeant to command Mr Ghent to stand over by his motorbike the Judge fell into error.
[21] The context is relevant. Under s 114, Land Transport Act (the Act) Sergeant Thornley was entitled to require Mr Ghent to wait while he verified his details. Section 114(3) and (5) of the Act confirm that a police officer may require a driver such as Mr Ghent to remain stopped for as long as reasonably necessary to enable the officer to establish the identity (but not for longer than 15 minutes). Also the incident occurred at 10 o’clock at night. It was dark. The Sergeant was alone and was concerned for his safety. The Sergeant was sufficiently concerned to ask for backup. For those reasons his request to Mr Ghent to stand away and to stay by his motorcycle in order to enable him to carry on with his inquiries securely and uninterrupted was a reasonable request.
[22] As I have found the Sergeant’s request for Mr Ghent to move away from him and stand by his bike was a reasonable request in order to enable him to carry out his duties, the next issue is whether Mr Ghent was justified in refusing to comply with the direction.
[23] Mr Ghent undoubtedly has the right under New Zealand Bill of Rights Act
1990 (NZBORA) to freedom of movement and the right not to be unreasonably detained. Mr Rollo submitted Mr Ghent was not obliged to comply with the officer’s direction to stand by his motorbike. The issue is not so much Mr Ghent being directed to stand in a particular spot, but whether the officer could direct him to move away from him so that he could carry out his communications uninterrupted. The officer was entitled to ask Mr Ghent to move away from him to allow him to give and receive radio communications without Mr Ghent distracting him. It was reasonable to require him to return to his motorbike. But even if Mr Ghent had moved away – not to his motorbike, but far away so as not to distract the officer then that would have been sufficient. But Mr Ghent did not do that. He made no attempt
to move away at all. He deliberately confronted Sergeant Thornley and prevented him (or at the least delayed him) from completing his radio communications.
[24] Mr Ghent’s rights under the NZBORA did not entitle him to refuse to comply with the lawful and reasonable direction of Sergeant Thornley to return to his motorbike. This case is quite different to Tirikatene v Police.8 Sergeant Thornley did not precipitate the obstruction in this case.
[25] The appeal against the obstruction charge must be dismissed.
The refusal to give particulars
[26] Mr Rollo submitted that Constable Brown effectively admitted in evidence the only reason he went to the scene to speak to the motorcyclists was because they were associated with members of the Hell’s Angels motorcycle club. He submitted that nowhere in the evidence did the constable point to road safety or other legitimate purposes for engaging with Mr Ghent or demanding his particulars.
[27] He submitted the Judge fell into error by focusing on whether or not Mr Ghent was on a road instead of asking whether there was a legitimate purpose for the officer to ask for Mr Ghent’s particulars.
[28] Mr Rollo also referred to s 118 of the Land Transport Act 1998, noting that there are 14 days to provide an answer. Section 118 has no application in this case. Nor for that matter does s 114 of the Act. This was not a “stop” under the Act.
[29] In response Ms Musgrave submitted that any incidental effect of stopping Mr Ghent did not detract from the fact Constable Brown exercised his powers under s 113(2)(a) in good faith to ensure compliance with the provisions of the Land Transport Act.
[30] I agree that in this case the officer could only have been entitled to require Mr
Ghent to provide his particulars if s 113 of the Act applied:
8 Tirikatene v Police (1989) 5 CRNZ 149.
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 Local Government Act 1974, [the Local Government Act 2002,] the [Road User Charges Act 2012], … the [Government Roading Powers 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).
(2) Without limiting any other powers conferred on an enforcement officer, an enforcement officer, in enforcing any provisions referred to in subsection (1), may at any time—
(a) Direct a person on a road (whether or not in charge of a vehicle) to give the person's [full name, full address, date of birth, occupation, and telephone number,] or such of those particulars as the enforcement officer may specify, and give any other particulars required as to the person's identity, and (unless the person is for the time being detained or under arrest under any enactment) give such information as is within the person's knowledge and as may lead to the identification of the driver or person in charge of a vehicle:
…
[31] The request for particulars under s 113(2)(a) must, in this case, be for Land Transport issues (such as driver licensing). However, that was not the reason Constable Brown first asked Mr Ghent for his particulars. Constable Brown’s evidence is that he was directed by North Comms to go to the petrol station where there were a large number of motorbikes. He then:
… approached them and said hello and at that stage said, well now it’s my intention to get their ID so we could identify them and then they could be on their way.
Constable Brown said on more than one occasion it was a “traffic stop” or that he “deemed [it] to be a traffic stop”. However, a traffic stop can only be justified under s 114. That section does not apply. It is premised on the basis of actually stopping a vehicle. That is not what happened here.
[32] The evidence supports the conclusion the reason Constable Brown required Mr Ghent to provide his details was to obtain intelligence about members of the Hell’s Angels motorcycle gang as part of good policing. In response to Mr Rollo’s cross-examination there was the following exchange:
Q. So you accept then that the only reason you’re speaking to Mr Ghent and the other group was because they’re Hell’s Angels.
A. That’s one of the reasons, yes.
Q. Well that’s the predominant reason wasn’t it?
A. In terms of had they done anything else, we had no reports that day that anything else happened.
Then later:
Q. I’ll put it to you that was the predominant purpose of your visit there was, “These are Hell’s Angels, let’s go and find out what they’re up to, who they are,” et cetera, correct?
A. The main reason, yes, I can accept that, yes.
[33] The high point for the prosecution is the officer’s evidence in response to
leading questions in re-examination:
Q. Regarding generic motorcycle clubs … not just the Hell’s Angels, is it in your experience, are members sometimes perhaps disqualified or have warrants for their arrests
…
A. … To answer your question yes.
Q. So is that a reason for obtaining people’s details, to check for
example those things?
Constable Brown replied:
A. Obviously that’s a follow-on effect, but yes, their licence details, their driver status, bike status yes
[34] On the basis of the evidence taken as a whole, the Judge could not have been satisfied beyond reasonable doubt that on the last occasion Constable Brown requested Mr Ghent’s particulars he did so for Land Transport purposes under s 113 of the Act. The initial clear and predominant purpose was to gain intelligence about
the gang. The introductory words of s 113(2) make it clear the particulars can only be requested for the purpose of “enforcing any provisions in [s 113(1) – in this case the Land Transport Act]”. There must at least have been a reasonable doubt that predominant purpose did not change just because Mr Ghent moved to get on his motorbike and ride off.
[35] Although the Judge considered that Constable Brown was justified in requesting Mr Ghent’s particulars as he was on a road (the service station forecourt) and about to drive off, my review of the evidence as a whole leaves me with a reasonable doubt whether the predominant purpose had changed from intelligence gathering to Land Transport considerations.
[36] The following cross-examination is telling:
Q. And so, in your view, as Mr Ghent walked away from you towards his motorcycle he was, at that point, failing to comply with a lawful request under the Land Transport Act?
A. I wouldn’t say that I came to that conclusion immediately. I began to wonder if our job was going to be made a little more difficult, if our stop was going to be, perhaps, complicated by the people that were there. After I requested several times for his ID and he refused those requests that’s when, you know, stepped over that threshold of this guy’s just being annoying or making my job difficult, to yep, he’s refusing to give me his details.
The officer appears to have still been under the apprehension that this was a “stop” but it was not. The evidence leaves the Court with a reasonable doubt that when Constable Brown asked Mr Ghent for his particulars at his motorbike, the predominant purpose remained to obtain intelligence about the gang rather than Land Transport concerns.
[37] That predominant purpose could not justify Mr Ghent’s arrest for refusing to provide particulars. As Kós J said in The New Zealand Airline Pilots’ Association Industrial Union of Works Incorporated v The Civil Aviation Authority of New
Zealand & Anor:9
9 The New Zealand Airline Pilots’ Association Industrial Union of Works Incorporated v The Civil Aviation Authority of New Zealand & Anor HC Wellington CIV-2011-485-954, 13 July 2011 (footnotes omitted).
[74] It is clear that the existence of a collateral purpose does not invalidate the exercise of a statutory power, so long as the power is exercised primarily for proper purposes contemplated by the Act. Common law has long recognised that the possessor of a statutory power may do other things fairly incidental to express purposes. In Attorney-General v Ireland the Court of Appeal made clear that if the additional purpose, however, “ran counter to”, “thwarted” or “circumvented” the proper statutory purpose, a reviewable illegality could arise. To that list could be added the word “subvert”. That is, where the official authorised purpose is really window- dressing for other unauthorised purposes, which are the dominant purpose for the administration action concerned.
[38] In the present case I accept the force of Mr Rollo’s submission that the dominant purpose of requiring Mr Ghent’s particulars was to gain intelligence about the gang. That did not change during the interaction. I consider that any Land Transport considerations were subsidiary, or in this case, as Kós J put it, “window- dressing”.
Result
[39] The appeal against conviction for obstruction is dismissed.
[40] The appeal against conviction for refusing to provide particulars is allowed. That conviction is quashed.
Venning J