P v Police HC Auckland CRI-2006-404-000117

[2006] NZHC 1016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-404-000117

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 September 2006

Appearances: M Bannan for the Appellant

M R Harborow for the Respondent

Judgment:      8 September 2006

[ORAL] JUDGMENT OF FRATER J

Solicitors:   M Bannan P O Box 33660 Takapuna Auckland for the Appellant

Meredith Connell P O Box 2213 Auckland for the Respondent

P V POLICE HC AK CRI-2006-404-000117  8 September 2006

[1]      Mr  P    appeals  against  his  conviction  under  s  52(1)(C)  of  the

Land Transport Act 1998 that, on 7 May 2005 at Auckland, he:

... failed to comply with a lawful requirement ... given under s 113(2)(e) of the Land Transport Act 1998 by an enforcement officer in that ... being the driver of a motor vehicle [he] drove [his] motor during a period that [he] had been forbidden to drive.

[2]      The conviction was entered following a defended hearing in the North Shore District  Court  on  7  February  2006  before  Justices  of  the  Peace.    As  a  result, Mr P   was fined the sum of $400 and ordered to pay costs of $130.00.

[3]      At  the  outset  I  note  that,  notwithstanding  that  it  is  apparent  from  the transcript of the evidence given at the hearing that there were extenuating circumstances explaining why Mr P   was driving on the particular day, the appeal is restricted to conviction only.

[4]      The facts are that on 7 May 2005 Mr P   was driving his motor car on Sanders Rd, which leads from Iona Rd across Dept of Corrections land to Paremoremo Prison.  Sanders Rd is a private road.  It is open to the public to enable them to reach the medium security prison facilities.   About 100 metres down the road, Mr P   was stopped at a checkpoint and spoken to by a member of the Police, Snr Cons Mann.  Cons Mann ascertained that Mr P   did not have a current driver’s licence.  In fact, it had expired two years previously.  Accordingly he directed Mr P   to drive into the Paremoremo Prison carpark, some 200 metres up the road, where he spoke with him again.

[5]      Cons Mann explained to Mr P   that a person without a driver’s licence was forbidden to drive and issued him with a written order pursuant to s 113(2)(e) of the Land Transport Act prohibiting him from driving until he held a licence to do so. Mr P   indicated that he understood the order.

[6]      Half an hour later, the Constable noticed him walking past the checkpoint. He  asked  him  if  he  was  all  right  and  whether  he  needed  a  ride  anywhere. Mr P   did not respond.

[7]      Just after 2.00 pm that day, Mr Le Haavre, a Corrections Officer on duty at the checkpoint, saw Mr P   driving out of the prison.   Mr Le Haavre was aware  that  Mr  P    had  been  forbidden  to  drive  as  he  was  present  with Snr Cons  Mann  when  he  spoke  with  him  earlier.     Accordingly  he  stopped Mr P     and   told   him   that   he   had   overheard   the   conversation   with Snr Cons Mann and was aware that he was a forbidden driver.  He said that he was going  to  pass  on  that  information  to  the  Police  –  which  he  obviously  did,  as Mr P   was subsequently issued with a summons, charging the offence in issue before the Court.

[8]      In the course of giving evidence before the Justices, Mr Le Haavre confirmed that he was a Corrections Officer with the Dept of Corrections and that on the day in question he was wearing appropriate uniform.  He also gave evidence that after he spoke with him, he saw Mr P   drive off down Sanders Rd, onto Iona Rd and along Paremoremo Rd.

[9]      Mr P   acted for himself before the Justices.   The major focus of his submissions was whether or not Sanders Rd was a public road, and his numerous grounds of his appeal generally related to this point.

[10]     On appeal he is represented by Mr Bannan.  He restricted the issues which he pursued to two points.

[11]     The first is that the s 113 notice was issued on a private road and is therefore not legally valid.  Related to this is Mr P  ’s concern that he was prohibited by the Justices from eliciting and adducing evidence in support of this point.

[12]     The  second  is  that  as  Mr  Le  Haavre  did  not  have  the  power  to  stop

Mr P  , his evidence should be ruled inadmissible.

[13]     The first ground of appeal is based upon the wording of s 113 of the Land

Transport Act 1998.  Subsection (2)(e) of that section states that:

(2)       Without  limiting  any  other  powers  conferred  on  an  enforcement officer, an enforcement officer, in enforcing any provisions referred to in subsection (1);

[which include the provisions of the Land Transport Act]:

may at any time—

...

(e)       forbid an unlicensed driver to drive a motor vehicle:

[14]     It is significant that whereas all the other paragraphs of subs (2), and indeed subs (3), make reference to something happening on a road, subs (2)(e) is not limited in that way.

[15]     Accordingly, I accept Mr Harborow’s submission, based on the plain reading of the section and supported by the decision of Randerson J in Police v Meafou (1999) 17 CRNZ 175, that a motorist does not need to be on a road for a prohibition order to be made.

[16]     In Police v Meafou Randerson J said, with reference to s 113(2)(e):

... on its face, it is expressed in general terms which contain no express limitations  upon the manner  in which the power  may  be  exercised.    In particular, there is no express limitation on time or circumstance.

[17]     In his written submissions, Mr Harborow went on to submit that if, contrary to my finding above, the Court did construe s 113(2)(e) narrowly so as to include a road requirement, such a requirement would be met on the facts of this case. Specifically, he argued that Sanders Rd does comes within the definition of “road” as set out in s 2 of the Act in that it is:

(d)       a place to which the public have access, whether as of right or not.

– And I agree.

[18]     Accordingly, the first ground of appeal is not made out.

[19]     The second ground necessitates consideration, in the first instance, of s 21 of the Corrections Act 2004 which provides that:

21       Protection of officers in discharge of functions

Every [corrections] officer, while acting in that capacity, has all the powers, authority, protections, and privileges of a member of the police (including a constable).

[20]     However, s 23 of the Corrections Act, upon which Mr Bannan relied, states that:

23       Restrictions on exercise of certain powers

(1)       Despite  sections  21  and  22,   sections  314A  to  314D  of  the Crimes Act 1961 (which relate to a general power to stop vehicles) do not apply to a member of the armed forces, or an officer who is not also a member of the police.

...

[21]     Mr  Bannan  submitted  that,  on  the  facts,  Mr  Le  Haavre  did  not  stop Mr P   pursuant to s 101 of the Corrections Act which allows an officer to stop and search a vehicle for the purpose of detecting an unauthorised item or a prisoner attempting to escape.  And as he was not a member of the Police he could not call in aid s 23.  Accordingly, he submitted, Mr Le Haavre was acting outside his authority when he stopped the appellant’s vehicle.

[22]     I do not accept that this is so.   I am satisfied that s 23 does not impose a general prohibition on a Corrections Officer stopping vehicles.   The prohibition in that section is limited to the exercise of a statutory search power expressly vested in a member of the Police.

[23]     However, the power under s 114(1) of the Land Transport Act is not limited in that way.  That section provides that:

114      Power to require driver to stop and give name and address, etc

(1)       An enforcement officer who is 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.

[24]     An enforcement officer is defined in s 2 of the Land Transport Act to include a Police Officer.  As a Prison Officer has the same powers as a Police Officer, I am

satisfied that Mr Le Haavre was empowered by s 114 to stop Mr Picker’s vehicle, as he did.

[25]     However, strictly speaking, whether or not Mr Le Haavre was empowered to stop Mr P   is irrelevant.

[26]     The elements of the offence before the Court are that:

i)         Mr P   was an unlicensed driver;

ii)        an  enforcement  officer  had  prohibited  him  from  driving pursuant to s 113(2)(e) of the Land Transport Act;  and

iii)       that  Mr  P    subsequently  drove  during  the  period  in which he had been forbidden to drive.

[27]     Mr Le Haavre’s evidence in relation to the driving was quite clear.  He saw Mr P   driving, not only on Sanders Rd but also on Iona Rd and out onto Paremoremo Rd, and he conveyed this information to Snr Cons Mann.   Evidence establishing the first two elements was given by Snr Cons Mann.

[28]     Accordingly, I am satisfied that this ground of appeal must also fail.

[29]     As neither ground of appeal has been established, the appeal is dismissed.

M A Frater J