Montgomerie v Police
[2017] NZHC 1329
•16 June 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2017-404-000101 [2017] NZHC 1329
BETWEEN ANDREW MONTGOMERIE
Appellant
AND
NZ POLICE Respondent
Hearing: 13 June 2017 Appearances:
A Speed and E Gresson for Appellant
G Campbell for RespondentJudgment:
16 June 2017
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie
On 16 June 2017 at 11.00am Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
A Speed/E Gresson, Auckland
Crown Solicitor, Auckland
MONTGOMERIE v NZ POLICE [2017] NZHC 1329 [16 June 2017]
Introduction
[1] The appellant, Mr Montgomerie, was found guilty of one charge of driving with breath alcohol in excess of 400 micrograms per litre of breath, and one charge of exceeding the applicable speed limit, by Judge Gibson in the District Court at Auckland on 23 March 2017.1 He was sentenced to a fine of $500, and disqualified from driving for a period of six months.
[2] Mr Montgomerie appeals his conviction on the ground that Judge Gibson erred in finding that the police had complied with s 113(1) of the Land Transport Act
1998. He says that the constable’s authority was put in issue at the trial and that the
prosecution failed to lead evidence relevant to the issue.
[3] The matter in issue can be shortly stated – were two questions put to the constable in cross-examination at trial sufficient to put the prosecution on notice that there was a challenge to the constable’s authority?
[4] Mr Montgomerie does not appeal his sentence, in the event that the conviction appeal is unsuccessful.
Factual background
[5] On 21 August 2016, a police constable, Constable Whelan, was in an unmarked police car on Tamaki Drive in Auckland. He recorded the speed of another car proceeding along Tamaki Drive at 104 kilometres per hour. Tamaki Drive is a 50 kilometre per hour area.
[6] Constable Whelan activated the flashing lights on his car and the driver of the other car stopped his vehicle. The driver was Mr Montgomerie. Constable Whelan formed the impression that Mr Montgomerie had consumed alcohol. He asked him to undergo a breath screening test. Mr Montgomerie complied and he failed that test. Constable Whelan read Mr Montgomerie his rights and required Mr Montgomerie to accompany him to a nearby police station. An evidential breath screening test was
administered at the station. Mr Montgomerie failed this test as well. The test
1 Police v Montgomerie [2017] NZDC 7529.
recorded that he had 450 micrograms of alcohol per litre of breath. Mr Montgomerie refused the option of a blood test.
District Court decision
[7] Judge Gibson recited the relevant facts, and noted that there was no challenge to the way in which the breath testing procedures were carried out. For the sake of completeness, he nevertheless briefly outlined the evidence relevant to the carrying out of those procedures.
[8] The Judge recorded that the sole challenge to a finding of guilt came at the close of the police case, when Mr Speed, appearing for Mr Montgomerie, submitted that there was no case to answer, in reliance on a decision of this Court – Russo v Police,2 dealing with s 113(1) of the Land Transport Act.
[9] Judge Gibson observed that Constable Whelan had not given evidence that he was in uniform at the time, or that he was in possession of a warrant or other evidence of his authority as an enforcement officer. The Judge noted that the constable was in an unmarked police car and that this would not have been known to Mr Montgomerie until the constable activated the vehicle’s flashing lights. The Judge observed that the flashing lights were sufficient to cause Mr Montgomerie to bring his car to a halt, and that he then participated freely in the required breath test, at no time challenging Constable Whelan as to his status as an enforcement officer.
The Judge referred to relevant authorities. He noted as follows:3
… it was not put to the officer in cross-examination that he had not identified himself to [Mr Montgomerie] as an enforcement officer in uniform or in possession of a warrant or evidence of his authority. He was asked what his authority was and he said his authority was under the Land Transport Act. He is not required of course to specify which sections.
In my view, the evidence is sufficient for me to draw the available inference, especially having regard to the fact that the flashing lights on the vehicle were activated, and I find that … s 113(1) of the Act is met because the activation of the lights and the following of the process was sufficient to indicate to [Mr Montgomerie] that he was dealing with an enforcement officer, and in the absence of any challenge I am satisfied that the charge has been proved against [Mr Montgomerie] to the required standard of proof.
2 Russo v Police HC Rotorua CRI-2005-470-4, 27 April 2005.
3 Police v Montgomerie, above n 1, at [7]-[8].
The appeal
[10] Mr Montgomerie has a general right of appeal against conviction, pursuant to s 229 of the Criminal Procedure Act 2011. Pursuant to s 232 of the Criminal Procedure Act, this Court must allow the appeal if it is satisfied that, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or in any case, that a miscarriage of justice has occurred.
[11] The words “miscarriage of justice” are defined in s 232(4) as being any error, irregularity or occurrence in, or in relation to, or affecting, a trial, that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or trial that was a nullity.
[12] Under s 233 of the Criminal Procedure Act, this Court has broad powers if it decides to allow the appeal, including directing an acquittal of the appellant or directing that a new trial be held.
[13] It was common ground that the approach discussed by the Supreme Court in Austin, Nichols & Co Inv v Stichting Lodestar4 applies. This Court is obliged to form its own independent judgment of the merits of the appeal by way of rehearing. Mr Montgomerie bears the onus of persuading this Court to reach a different conclusion.
Analysis
[14] The starting point is s 113(1) of the Land Transport Act. It provides as follows:
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—
4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; and see
Green v Green [2016] NZCA 486, [2017] 2 NZLR 321.
(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).
[15] A predecessor section – s 68B(1) of the Land Transport Act 1962 – which was not materially different from s 113(1), was considered by the Court of Appeal in Transport Ministry v Quirke.5 It was there argued that the prosecution had not proved its case against a defendant charged with driving with excess blood alcohol because there was no evidence led that the traffic officer had been in uniform or was in possession of evidence of his authority at the time the defendant was required to
undertake the necessary testing. The majority – Woodhouse and Cooke JJ – held that s 68B(1) required the constable or traffic officer to be uniform, or in possession of a warrant or other evidence of his authority, before the alcohol testing procedures could be set in motion. The majority also held that, in the absence of a challenge to the officer’s authority, it is open to a Court to infer that the relevant statutory requirements were satisfied. Woodhouse J observed as follows:6
In my opinion where there has been no challenge in the field to the authority of a constable or traffic officer to take action under the Transport Act and in addition, at the hearing in court of some consequential charge, his authority to have acted in that way is not questioned at all until after the prosecution has closed its case, then the commonsense inference outlined in Cooper v Rowlands could usually be acted upon by the court. In the ordinary case at least that inference should be enough to dispose of the issue, if it were raised.
His Honour also said:7
… I think it likely that most of the cases coming before the courts will permit an appropriate inference to be drawn without direct proof. So that if there is no challenge in cross-examination during the hearing in Court and there has been no question raised at the roadside, then I think a failure by the prosecution to provide direct evidence [of the enforcement officer being in uniform] ought not to lead in any automatic way to dismissal of the proceedings.
Similarly, Cooke J observed as follows:8
5 Transport Ministry v Quirke [1977] 2 NZLR 497 (CA).
6 At 503.
7 At 505.
… I agree in principle with the first judgment of White J in this case … wherein he held … that assuming it was necessary to prove for the purposes of the charges laid here that the traffic officer was in uniform or in possession of a warrant or other evidence of his authority, the evidence was enough. We do not have the notes of evidence, but the magistrate’s reasons for his decision show that the officer stopped the defendant’s vehicle. Although it is true that the defendant refused the first breath test, there is no suggestion that he hesitated to comply with the signal or request to stop that must have been given by the officer. Nor is there any suggestion that either at that time or in cross-examination at the hearing the defendant ever so much as hinted at a possibility that the officer was not in uniform.
[16] The issue came before this Court in Russo v Police.9 Allen J referred to Quirke and various subsequent cases in this Court which followed Quirke. He considered that, in deciding whether an appeal should be allowed on the basis that there has been no proof of authority, it is necessary to distinguish between cases in which there has been a challenge in cross-examination to the authority of the enforcement officer, and cases where no such challenge is made. Where a sufficient challenge has been made, then he considered that the prosecution is on notice that the issue of authority has been put to proof; where no challenge is made, the Court
can rely on inferences from the surrounding circumstances. Allen J observed that:10
It will be a matter for the Court in each case, in the light of the factual circumstances, to determine whether a challenge is sufficiently explicit to place the burden of direct proof on the prosecution.
[17] The challenge to authority in Russo was not in the field; rather it arose in the course of cross-examination. The following question and answer exchange took place:11
Q I think it obviously has – it's a good Scottish name you've got here, Campbell Angus McKinnon. As Campbell Angus McKinnon you don't have an (sic) power or you didn't have any power on the night to put Mr Russo through these procedures and make him accompany you and make him undergo an evidential breath test. What gave you the power on the night. I mean what's the source of your power, where do you get your power from. I suppose I'm putting it to you that you didn't have any power on the night. What's your answer to that?
A I did under the Land Transport Act 1998, section 114. Q What does that say?
8 At 505.
9 Russo v Police, above n 2.
10 At [43].
A I can stop any vehicle, ascertain identity of the person driving and I can hold them there for 15 minutes for that purpose and I can also from there undertake any other steps under other parts of the Act that I may feel are appropriate.
[18] Allen J held that this challenge “was mounted in sufficiently clear terms”.12
He took the view that the proposition had been put directly to the enforcement officer that he had no authority to deal with the appellant, and that it was not relevant that the officer’s answer was directed to a different point altogether. He allowed the appeal and quashed the appellant’s conviction.
[19] More recently, the matter came before this Court again, in North v Police.13
In this case, Cooper J analysed all relevant authorities, and expressed the view that Russo had been incorrectly decided. He held that if an appellant seeks to challenge the authority of a police officer to invoke the alcohol screening procedures, the challenge should be directed at whether or not the constable was wearing a uniform, or was in possession of a warrant or other evidence of his or her authority. The Judge considered that s 113(1) of the Land Transport Act requires evidence of authority, and not evidence of a power, because the power is conferred by the statute itself.
[20] The question which had been posed in cross-examination in North was as follows:14
Q Just generally I put it to you that you didn’t have any power or authority to put Mr North through these procedures. What do you say to that?
A No, I would say that I do because he was the driver of a vehicle that had been involved in a road accident. Had Mr North been there at the time then he would have undergone a breath test as the other two drivers involved had done. He attended with no issues but when he did attend he smelt of intoxicating liquor.
[21] Cooper J expressed the view that neither that question, nor its more lengthy counterpart in Russo, was sufficient to result in the prosecution being obliged to give
direct evidence about authority. The Judge went on to say:15
12 At [45].
13 North v Police HC Auckland CRI-2007-404-297, 29 November 2007.
… Should it be sufficient for defence counsel simply to put the broad proposition that the constable did not have power to invoke the procedures? I think not, because the power is conferred on the enforcement officer by the Act. The real question is whether an enforcement officer was in the position to exercise his or her powers, by wearing a uniform, or carrying a warrant or other evidence of his or her authority. That requirement to exemplify or carry evidence of authority is there so that the citizen can be assured that what is required of him or her is lawfully required. Any challenge on that issue should be directed to the issue of whether the enforcement officer at the time met the prerequisites of the section.
A question in cross-examination that is couched in broad terms directed at power to act is not designed to elicit information on that point, and as this case shows (and the other cases that I have reviewed show) can be misunderstood.
[22] The Judge held that, while the wearing of a uniform or the possession of a warrant or other evidence of authority is a necessary prerequisite to the exercise of the power, it is not the source of the power itself. A question that asks the police officer the source of his or her power does not go to the relevant issues sufficiently to put the prosecution on notice. It followed that the District Court Judge who dealt with the matter at first instance was entitled to draw the inference that s 113(1) had been complied with on the facts of the case there in issue.
[23] Both the Russo and the North approach have had their respective adherents.
(a) Russo was followed, eg by Chisholm J, in Town v Police,16 and by
Miller J in Crilly v Police.17
(b) North has been followed, eg by Courtney J in Patel v Police,18 and by
Andrews J in Police v Kelly.19
[24] Turning to the facts of the present case, there was no challenge to Constable
Whelan’s authority at the time by Mr Montgomerie. The issue was raised in cross- examination at the trial. Constable Whelan was questioned as follows:
15 At [46]-[47].
16 Town v Police HC Dunedin CRI-2010-412-43, 24 November 2010.
17 Crilly v Police HC Wellington CRI-2005-485-137, 3 March 2006.
18 Patel v Police HC Auckland CRI-2011-404-300, 11 November 2011.
19 Police v Kelly HC Gisborne CRI-2011-416-19, 17 November 2011.
Q. Now when you approached, required Mr Montgomerie to accompany you to the police station, what authority were you relying upon when you made that demand to him?
A. Pursuant to the Bill of Rights and the fact that he was exceeding the
speed limit and he’d also failed the roadside breath test.
Q. Any other authority? A. Land Transport Act.
[25] The questions put to Constable Whelan were very similar to those put in Russo and North. The questions went to the source of Constable Whelan’s authority, and not whether he was wearing a uniform, or carrying a warrant or other evidence of his authority at the time. The questions were couched in broad terms, and this was reflected in Constable Whelan’s answers. It seems that he did not see the questions as asking him whether he was in uniform or had proof of his authority on him at the time; rather his reply was to cite the statute that gave him the authority to act. The questions did not directly ask Constable Whelan whether he was in compliance with s 113(1). Rather, they asked Constable Whelan whether he had legal authority to act as he did.
[26] I prefer the approach taken in North to that taken in Russo. It is a more nuanced approach. It does not place undue emphasis on what is otherwise an unmeritorious defence. The comment of the Supreme Court in Aylwin v Police is apposite:20
Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable. The great majority of drivers comply with their obligations in this respect. A small minority do not. Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences. The Courts must give full effect to that clear Parliamentary indication.
[27] In my judgment, the challenge in this case was not sufficient to put the prosecution on notice that it was required to adduce direct evidence to satisfy s
113(1).
20 Aylwin v Police[2008] NZSC 113. [2009] 2 NZLR 1 at [17].
[28] Other evidence led at the hearing was sufficient to enable Judge Gibson to infer that s 113(1) was satisfied. Although Constable Whelan’s car was unmarked, it was equipped with red and blue flashing lights. Constable Whelan activated those lights. He was in possession of both speed testing and breath testing equipment. He followed police procedures, such as giving Mr Montgomerie his rights. He took Mr Montgomerie to a police station in his car. While they were travelling to the police station, the constable showed Mr Montgomerie the speed which he had been driving at, which had been recorded on the Lidar radar system in the car. Once Mr Montgomerie was at the police station, all appropriate police procedures were followed and a further breath alcohol test was conducted. Mr Montgomerie was told that he could take a blood test. There was no challenge to Constable Whelan’s authority on the night.
[29] These various factors provide sufficient foundation for the inference that s
113(1) was satisfied, notwithstanding that Constable Whelan was in an unmarked car when he apprehended Mr Montgomerie. There was ample evidence from which Judge Gibson could infer that Constable Whelan was either in uniform or in possession of a warrant or other evidence of his authority at the relevant time.
[30] The appeal is dismissed and Mr Montgomerie’s conviction is upheld.
Wylie J
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