N v Police HC Auckland CRI 2007-404-297

[2007] NZHC 1345

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-000297

BETWEEN  N

Appellant

ANDPOLICE Respondent

Hearing:         26 November 2007

Appearances: M Harte for Appellant

P Singh for Respondent

Judgment:      29 November 2007

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

29 November 2007 at 9.30 a.m., pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Turner Hopkins, PO Box 33 237, Takapuna, Auckland

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.

Copy to:

M Harte, PO Box 105 720, Auckland

N V POLICE HC AK CRI 2007-404-000297  29 November 2007

[1]      N   appeals against his conviction in the District Court of the offence of driving with excess blood alcohol under s 56(2) of the Land Transport Act

1998.

[2]      He contends that he should have been acquitted because the defence had put in issue the authority of the police constable to act under s 113 of the Land Transport Act, and the prosecution had not led evidence that at the time he purported to require the appellant to undergo the breath and blood testing procedures in that Act, the constable had been wearing a uniform.

Background

[3]      According to the only witness called in the District Court, Constable Simon Pamplin, he attended an accident at about 4.15 p.m. on 9 January 2007.  When he arrived, there were two cars present that had been involved in the accident and he was advised that a third vehicle had left prior to his arrival.  The driver of that third vehicle had given his name as that of the appellant, Mr N  .

[4]      Constable  Pamplin  returned  to  the  Ellerslie  Motorway  Police  Base  from where he telephoned the appellant.   As a result of their discussion, the appellant agreed to come to the police station.  He arrived there at about 7.45 p.m.  He smelt strongly of intoxicating liquor and he told Constable Pamplin that he had been drinking earlier in the morning prior to the accident and had also consumed alcohol after it.

[5]      The constable conducted a breath screening test at about 7.55 p.m.   The appellant failed the test.   The constable then moved on to conduct an evidential breath test which the appellant also failed.  He was advised of the result of the test and also of his right to request a blood test within ten minutes.

[6]      The appellant exercised that right.   A sample of his blood was taken.   On analysis, it was shown that his blood contained 205 milligrams of alcohol per 100 litres of blood.   Under s 56(2) of the Land Transport Act, a person commits an

offence if he drives a motor vehicle on a road while the proportion of alcohol in his blood exceeds 80 milligrams of alcohol per 100 millilitres of blood.

[7]      Constable Pamplin was cross-examined by Mr Harte.  One issue dealt with in cross-examination was what the appellant had said to Constable Pamplin concerning the amount of alcohol that he had consumed after the accident.   Then, Mr Harte obtained an acknowledgement by Constable Pamplin that when he had contacted the appellant on his cell phone he had been co-operative.

[8]      The  brief  cross-examination  concluded  with  the  following  question  and answer:

Q        Just generally I put it to you that you didn’t have any power or authority to put Mr N   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 N   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.

[9]      There was no re-examination.

[10]     On  the  basis  of  the  question  and  answer  that  I  have  quoted,  Mr  Harte submitted that the defence had challenged the authority of the constable to act under s 113 of the Land Transport Act 1998.  He had done so because there had been no evidence that the constable had been in uniform at the time.  When the Judge found that there was a case to answer, the defence repeated its argument, contending that the defendant should be acquitted on the same basis.

[11]     The learned District Court Judge rejected that argument as well.

The Land Transport Act 1998, s 113

[12]     Section 113(1) of the Land Transport Act 1998 provides as follows:

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).

[13]     In Transport Ministry v Quirke [1977] 2 NZLR 497 the Court of Appeal had to construe s 68B(1) of the Transport Act 1962, a provision not different in material respects from s 113(1) of the Land Transport Act 1998. As with the section currently in force, s 68B of the Transport Act 1962 authorised constables (and, relevant then, traffic officers), to enforce the provisions of the Act, if for the time being in uniform, or in possession of a warrant or other evidence of their authority.

[14]     It was argued in that case that the prosecution had not established its case against the defendant because there was no evidence that a traffic officer had been in uniform or in possession of evidence of his authority at the times when he required the defendant to act upon his instructions.  At 503, Woodhouse J said:

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.

[15]     Further, at 504-505 he said:

I do not think the practical purpose of s 68B(1) designed as I think it is, to afford  some  sensible  assurance  for  those  who  become  the  subject  of legitimate inquiries, should be elevated to a level where it becomes essential for the prosecution to tender proof on every occasion that the officer concerned was in uniform or had the necessary evidence of authority.  As I have indicated in relation to the Cooper v Rowlands case 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 sort discussed in the present case ought not to lead in any automatic way to dismissal of the proceedings.

[16]     To similar effect was what Cooke J said, also at 505:

Secondly, I agree in principle with the first judgment of White J in this case, reported [1976] 1 NZLR 522, wherein he held, following Cooper  v Rowlands [1971] RTR 291, 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.  The case does not appear to be materially distinguishable from Cooper v Rowlands, which, like White J, I respectfully regard as a sensible decision.

[17]     Since the Court of Appeal’s decision in Transport Ministry v Quirke there have been a number of decisions in this Court in which the observations that I have quoted have been applied.  There is a useful summary of many of those decisions (together with decisions made in the District Court) in Allan J’s decision in Trevor John Russo v The Police (HC ROT CRI 2005-470-04, 27 April 2005).  As a result of his review of the authorities, Allan J concluded at [35] that a distinction should be drawn between cases in which there had been a challenge in cross-examination to the authority of the enforcement officer concerned, and those where no such challenge was mounted.

[18]     In the latter case, Allan J concluded that where there was no direct evidence of an enforcement officer being in uniform, it is nevertheless proper for the Court to consider all the available evidence and so draw an appropriate inference.   On the other hand if, either “in the field” (that is, at the place where the enforcement officer purported to exercise his powers) or in cross-examination, the prosecution is put on notice that the defence puts the prosecution to proof of the authority of the enforcement officer concerned, it will not be sufficient to rely on inferences to be drawn from the surrounding circumstances.  Allan J held that that was the approach required by the judgments of Woodhouse and Cooke JJ in Quirke.  He observed:

I do not believe that the prosecution is thereby unduly burdened.  After all, the issue arises only where there is a direct challenge and even then the challenge can be met by the giving of the briefest of direct evidence as to the officer being in uniform.  (At [36]).

[19]     At [37] he said:

But the authority of the enforcement officer is a matter which a defendant is entitled to put in issue and, in my view, having regard to the burden of proof which rests upon the prosecution, it is no answer to suggest that the prosecution ought to be entitled to invite the Court to draw appropriate inferences.  That is not what the judgments in Quirke permit where there has been a challenge either in the field or in cross-examination.  And there can be no doubt about the entitlement of a defendant to put the prosecution to proof on this point because the wearing of a uniform or possession of a warrant goes to the enforcement officer’s very authority to exercise any powers of enforcement under s 113:  see the judgment of Cooke J in Quirke at p 507 lines 36-40.

[20]     After discussing the question of the particularity with which  a challenge should be made, Allan J further observed at [43]:

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 upon the prosecution.  The overall burden lies, of course, with the prosecution in every case.   The difference is that, sensibly and pragmatically, the Court of Appeal in Quirke has confirmed the entitlement of the prosecution to rely on inferences to be drawn from all the surrounding circumstances where the question of whether the enforcement officer is in uniform is not put in issue by the defence before the Crown case has  closed.    Where  there  is  a  sufficient  challenge,  inferences  are  not sufficient and the prosecution must provide direct evidence, a task that is by no means burdensome, having regard to the fact that the evidence can be supplied in a single sentence from the enforcement officer concerned.

This case

[21]     This appeal turns on the issue of whether or not the challenge raised in cross- examination was sufficient.  I have earlier set it out.  Mr Harte put it to the constable that he had not had any power or authority to put the appellant through “these procedures”.   In context, I think that question would have been understood as a reference to the breath screening and  evidential breath tests and the subsequent taking of blood.  That the question was understood in that way seems plain from the constable’s answer which referred to his ability to conduct the procedures because the appellant had been a driver of a vehicle that had been involved in a road traffic

accident.    That  was  plainly a  reference  to  the  effect  of  s 68(1)(c)  of  the  Land Transport Act 1998 that provides that enforcement officers may require such persons to undergo a breath screening test without delay.

[22]     In the District Court Everitt DCJ referred to the decision in Russo which had been provided to him by Mr Harte in the course of his submissions.  The Judge noted that, in Russo, in which Mr Harte had also acted for the defendant, there had been a proper challenge of the relevant enforcement officer.   In that case, Mr Harte had asked the following question:

I think it is obvious, as the good Scottish name you have got there, Campbell Angus McKinnon, as Campbell Angus McKinnon you don’t have 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 is your source – what is the source of your power?  Where do you get your power from?  I suppose I am putting it to you that you didn’t have any power on the night. What is your answer to that?”

[23]     The answer given was simply, “I did under the Land Transport Act 1998 s 114”.  Mr Harte then asked a follow up question as to what s 114 said.  The answer given was that the officer could under its provisions stop any vehicle, ascertain the identity of the person driving it and hold them there for 15 minutes for that purpose. His reply was also to the effect that he could then undertake any other steps under other parts of the Act that he might feel were appropriate.

[24]     Section 114 of the Land Transport Act provides that enforcement officers who are 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.  Although the officer gave a summary of part of that provision, he made no reference to the uniform point.

[25]     In Russo Allan J held that Mr Harte had mounted a challenge in sufficiently clear terms.   This was on the basis that he had “put directly to the enforcement officer the proposition that he had no authority to deal with the appellant on the night in question”.  He also observed that Mr Harte had not been bound to lengthen his cross-examination by taking the witness even more directly to the question of the uniform.   The matter had been clearly put in issue by the question that had been

asked.  It was then for the witness to give an appropriate answer or for the prosecutor to ensure that the matter was covered in re-examination.

[26]     Of the briefer question raised in the present case, Everitt DCJ observed at [6-

7]:

[6]       With respect to Mr Harte’s submission today the cross-examination in  the  Russo  case  was  a  quite  clear  definite  detailed  challenge  to  the Officer’s authority.  In the case before me today I find that there has been no such challenge of that kind.  I recorded at the time, although it may not be entirely accurate because the point was not made at the time when I was taking a brief note of the evidence, as I recall Mr Harte simply asking Officer  Pamplin  what  his  authority  was,  and  his  answer  was  that  the defendant  had  been  involved  in  a  motor  vehicle  accident,  and  smelt  of alcohol.  Clearly the Officer misunderstood, if that was his answer, what Mr Harte  was  asking  him  and  it  now  becomes  quite  apparent  after  the prosecution case has closed, that what Mr Harte was perhaps asking him, was as in the Russo case, what he was wanting to ask him, although he did not put it, as “Officer Pamplin you did not have any power on the night to put Mr N   through these procedures and make him accompany you and make him undergo an evidential breath test”.  To make it more accurate, “he did not have the power to put Mr N   through these procedures at the police base.  What gave you the power on the night?  What is the source of your power?  Where do you get your power from?  I suppose I am putting it to you you did not have any power on the night.”   That is an entirely appropriate challenge in the Russo case.   In this case there was no such challenge and had Mr Harte gone further, after getting the answer he was involved in a motor accident and smelt of alcohol, and repeated that and said yes but what is your power, where do you get your power from?  That is a specific question, a specific challenge.

[7]       If one reads paragraph 6 of the Russo decision there is a direct, specific and a powerful challenge to the Officer’s authority.  Where did you get it from?  You did not have any power on the night.  There are assertions, a challenge, which the Officer did not meet.  I feel free, as I indicated to Mr Harte earlier, to draw inferences from the facts and there are a number of inferences that can be drawn from the facts here.

[27]     The Judge then went on to draw inferences from other evidence that the constable had been wearing a uniform at the relevant time.   As I understand it, Mr Harte does not challenge the process that the Judge went through in drawing those inferences.   His point is, rather, that on the basis of Transport Ministry v Quirke, the Judge should not have reached that point.   Because there had been a challenge of an appropriate kind, a conviction could only have been properly entered if the police had a adduced direct evidence that the constable had been wearing his uniform.

[28]     Mr Harte submitted that there was no real difference between the question that he asked in Russo and the question that he asked in the present case.  Plainly, the question in this case is shorter.  However, he contended that his question in Russo had been a more “long winded” version of what he asked in the present case, which contained essentially the same question  but  was  expressed  in  a  more clear  and focussed way.  Certainly, he did put it to the officer in the present case that he did not have power or authority to put the appellant through the procedures.  In my view, the question was the same in all essential respects.  It can be said in the present case, as Allan J did in relation to the question posed in Russo, that counsel had “put directly to the enforcement officer the proposition that he had no authority to deal with the appellant on the night in question”.

[29]     Ms Singh referred to the decision of Wild J in Spiekerman v New Zealand Police (HC WN AP83/99, 27 May 1999) in which he held, that s 113’s immediate predecessor had two purposes.   First, to enable a police constable to establish or demonstrate his or her authority to enforce the Act by wearing a uniform, carrying a warrant or by other evidence of the constable’s authority.   Second, to enable a motorist or other affected person to observe, or ask to see, evidence of a police constable’s authority, thereby satisfying the motorist that the person the motorist was dealing with was indeed a duly authorised person.  Ms Singh also drew attention to Wild J’s observation that the authority to act under the statute belongs to a constable by virtue of his position as a constable.  She contended that that should be born in mind when considering whether or not there had been a sufficient challenge.

[30]     She argued that there had not been a sufficient challenge in the present case and  that  Everitt DCJ  had  correctly  concluded  that  there  was  a  more  specific challenge in Russo than here.   She relied on the decision of Henry J in Riley v Ministry of Transport (HC AK AP156/86, 25 September 1986).   In that case the traffic officer who had been in a marked patrol car invoked the breath and blood testing procedures under the Transport Act 1962.  There was no direct evidence as to the  officer  having been  in  uniform  or  otherwise  evidencing his  authority under s 68B(1) of the Act.   There were the following questions and answers in cross- examination of the traffic officer:

Q         After that discussion about what he had had to drink at the side of the road, what did you think gave you the right to then undergo [sic] the breath screening test procedure?

A        The smell of drink on his breath, his speech was slurred, that is what gave me good cause to suspect.

Q        And it gave you the right to undergo procedures? A         Yes.

[31]     The District Court Judge observed that the cross-examination was understood by  him to be directed not to the question of uniform or other warrant of authority, but to the question of “cause to suspect”.  The Judge considered that the question had also been understood by the witness in that way.  Henry J held that that conclusion was fully justified.  At p 4 he observed:

The cross-examination to which I have just referred obviously was viewed by the officer in that light, and Mr Heaney who acted for the appellant in the Court below did nothing in the course of his cross-examination to correct that impression on the receipt of the answer to his first question.   In that context,  merely  then  to  seek  justification  for  the  officer’s  view  of  his authority to act, does not as I see it constitute a challenge to the question of uniform in a sense referred to by either Woodhouse J or Cooke J in Quirke’s case.  The issue was not here, in my view, ever effectively raised.  Nothing else was relied upon in support of the present appeal.

[32]     Henry J also referred to a decision of Vautier J in Kelsall v Auckland City Council (M1670/78, 2 March 1979).  He described it as a decision based on its own facts, and did not discuss it further.  The appeal against conviction was dismissed.

[33]     Kelsall v Auckland City Council was referred to by both counsel in argument in the present case.  That was an appeal against conviction on a charge of driving with excessive blood alcohol.  It was again argued that there had been no evidence before  the  District  Court  to  establish  that  the  traffic  officers  involved  were  in uniform or authorised as required by s 68B of the Transport Act 1962.  The District Court found that the traffic officers had been on duty investigating a hit and run accident.    They  went  to  a  private  address  in  Remuera  where  they  identified themselves as traffic officers.  At p 4 of his judgment, Vautier referred to the cross- examination of the traffic officers as follows:

… the question was put:

“You did not have authority to go on to that land did you?” The officer simply replied:

“In my belief I had authority to go on the land.” He was then asked:

“On what grounds did you have that belief?”

He answered this in an unconsequential way and to the further question:

“Are you saying that because of that you had authority to go on to this person’s private property?”

He simply answered:

“I would say so.”

The other traffic officer was simply asked:

“Did you believe you had any authority to be there?” His reply was:

“We were merely making inquiries.  We were not told to leave the property at any stage so I did not think we had no authority to be there.”

[34]     Vautier J recorded the respondent’s argument that the challenge had only been directed to the question of the authority of the traffic officers to be on the private property where they were making their inquiries.   Vautier J indicated his agreement with that proposition but then continued at p 4:

…but it is still nevertheless certainly a challenge advanced to the authority of the officers and that is one of the matters expressly referred to in s 68B(1). There  is  nowhere  any  evidence  to  show that  either  of  the  officers  was wearing uniform at the time.

[35]     He held that there had been a challenge to the authority of the traffic officers to act in the way they were acting at the time, and he considered that he was constrained by the decision in Quirke to allow the appeal.

[36]     Mr   Harte   contended   that   Kelsall   had   been   correctly   decided.      He distinguished Henry J’s judgment in Riley arguing that the questions in that case had been plainly directed to the specific point of the power to undergo the breath screening test procedures.  However, it is difficult to see why the questions asked in

Riley should be characterised in that way, if the questions raised in Kelsell were not to be characterised, as the respondent contended, as related to the question of authority to be present on private land.

[37]     Another case mentioned in argument by Ms Singh was Crilly v New Zealand Police (HC WN CRI 2005-485-137, Miller J).   That case too involved an appeal against conviction of driving with excess blood alcohol contrary to s 56(2) of the Land Transport Act 1998.  A breath screening test, evidential breath test and blood test were undergone by the appellant, and there was no evidence before the District Court of how the car had been stopped, whether the constable had shown any proof that he was a constable, or even said that he was a police officer.  No challenge to authority was raised in cross-examination, so the question for the Judge had been whether an inference could be drawn that the officer was in possession of a warrant or other evidence of his authority.  For reasons which he gave, Miller J considered that no inference could properly have been drawn on the facts of that case.

[38]     Because of its different factual setting, Crilly v New Zealand Police is not directly relevant here.  Ms Singh, however, relied on it for Miller J’s statement of the purpose of s 113.  At [14] he said in that respect:

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.

[39]     Effectively, that passage is simply a re-statement and amplification of what Woodhouse J said in Quirke.  Wild J’s observations in Spiekerman v New Zealand Police were to similar effect.  However, that case was also relied on by Ms Singh for what Wild J said at p 6:

I respectfully suggest that what qualifies a police constable to test is the constable’s office, and what s 68B is aimed at are ways in which the holding of that office may be demonstrated or established.  The “mischief” which the section is aimed at is a person who cannot properly establish that he/she is a police constable and thus authorised to carry out alcohol tests.  That, I think, explains Woodhouse J’s readiness to draw an inference as to authority in the absence of challenge at the scene or in the course of cross-examination at the hearing.

[40]     Ms Singh submitted that that approach to the section was preferable to the approach taken by Greig J in Robertson v Police (HC MAS 7/96, 19 June 1996) and Bartlett v Police (HC WN AP 70/96 19 June 1996) to the effect that being in uniform or in possession of a warrant or evidence of authority was an “essential element” to qualify a constable to carry out tests for alcohol.  Ms Singh submitted that Wild J’s approach was to be preferred, and that that had implications for the particularity of the challenge that is required to be mounted in cross-examination so as to put the prosecution to proof by direct evidence that the officer was wearing a uniform or armed with a warrant at the relevant times.  She argued that, simply to put the proposition that the witness lacked power or authority was insufficient to challenge that authority.

[41]     I consider that there is force in Ms Singh’s argument.  Section 113(1) of the Land Transport Act 1998 gives certain powers to enforcement officers in uniform or in possession of a warrant or other evidence of their authority as an enforcement officer.  I consider that Wild J was correct to identify the predecessor of that section as the source of the power to invoke the breath and blood testing procedures.  The same is true of s 113(1).  The wearing of a uniform or the possession of a warrant at the relevant time is a necessary prerequisite to the exercise of the powers, but it cannot be characterised as the source of the power itself.

[42]     It follows from that conclusion that, if it is sought to question the authority of a police constable to invoke the procedures, the challenge should be directed at whether or not the constable was wearing uniform or was in possession of a warrant or other evidence of his or her authority.  What the subsection requires is evidence of that authority, not evidence of the power, because the power is conferred by the statute itself.   In my view, that conclusion is justified not only by the statutory language (“or other evidence of his or her authority”) (emphasis added) but also by what was said  by the Court  of  Appeal  in  Transport  Ministry  v  Quirke, and in particular by Cooke J at 505:

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 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. (Emphasis added).

[43]     Ms Singh argued, as I have already mentioned, that Everitt DCJ had been correct in describing the challenge that was mounted in cross-examination in Russo as having been appropriate to raise the issue, and as having been a more direct challenge than that which was mounted in cross-examination in the present case.  For reasons that I have already given I do no think that that is correct.  In its essentials, the question raised here was effectively the same as that raised in Russo.  It follows that, if Russo was correctly decided, Mr Harte was justified in contending that the questions that he put in this case were sufficient to raise the issue, and that the prosecution should have led direct evidence as to whether or not the constable was in uniform or carrying a warrant.

[44]     On the view I take, however, neither the question raised in this case nor its more lengthy counterpart in Russo was in fact sufficient to result in the prosecution being obliged to give direct evidence about the wearing of the uniform.  In Russo, Allan J, referring to observations made by Greig J in Robertson v Police spoke at [42] of the balance that defence counsel will need to maintain between mounting a challenge which is subsequently held to have been insufficiently direct on the one hand and simply asking a question that is so explicit that its answer is obvious, on the other.  Greig J, in Robertson, had noted that a challenge which confronted the issue head on would “spring the trap in the matter and the Constable would have leapt clear”.   With respect, to my mind that approach puts too much emphasis on Courtroom tactics, and too little on the issues that are really at stake.

[45]     No citizen should be subjected to wrongful acts of authority such as would arise if an enforcement officer purported to act in the absence of the necessary prerequisites set out in s 113(1) of the Land Transport Act.  That proposition can be vindicated by acquittals entered where the prosecution fails to prove that the prerequisites were met.   In Quirke it was held that where not directly proved, the presence of the prerequisites could be inferred from the surrounding circumstances, unless there was an issue raised by the defence calling that into question.

[46]     It is at that point that the issues presented by the present case arise.  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.

[47]     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.

[48]     An acquittal in these circumstances does not amount to the vindication of any right.  It cannot properly be linked to the right to an acquittal where the prosecution has not proved its case beyond reasonable doubt, since the issue does not concern any of the essential ingredients of an offence charged under Part 6 of the Land Transport Act.  Nor would an acquittal be justified under s 25 of the New Zealand Bill  of  Rights  Act  1990.    None  of  the  guarantees  as  to  standards  of  criminal procedure set out in that section requires that outcome.   Rather, the approach is simply likely to result in the fortuitous acquittal of persons whose conduct has in fact breached the Act.  I do not consider that there is any convincing reason for endorsing that approach.

[49]     I respectfully decline to follow Russo and the other cases which have taken a similar approach.  I would hold in this case that the question raised was insufficient to put in issue the question of whether the police constable was in uniform, carrying a warrant or other evidence of his authority.

Result

[50]     In the absence of a direct challenge in cross-examination, there was ample evidence here on which the District Court could infer and did infer that the police constable was in uniform  and in possession of evidence of his  authority at  the relevant time.  Mr Harte accepted that that was so.  The relevant events all took place at the Ellerslie Base Police Station, at which the motorway police are based.  The Judge held that there had been no challenge or question raised as to Constable Pamplin’s authority on the night.  Again, Mr Harte did not challenge that finding.

[51]     Given my conclusion that the constable’s authority to act was not sufficiently challenged in cross-examination, it follows that the appeal must be dismissed.