Pearson v Police HC Blenheim CRI-2011-406-17
[2011] NZHC 2005
•14 December 2011
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI-2011-406-17
BETWEEN SHELLEY ANNE PEARSON Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 5 December 2011
Counsel: H Roose for Appellant
M A O'Donoghue for Respondent
Judgment: 14 December 2011
JUDGMENT OF MILLER J
[1] Ms Pearson is a shareholder in a company which subcontracts to a long-haul freight firm called SCS Transport. Her work, as I understand it, includes despatching drivers to collect and deliver freight.
[2] She appeals her conviction for inciting an SCS Transport driver, Nigel Hansen, to drive ―a vehicle‖ during a period when a constable had lawfully directed him ―to drive such a vehicle to Blenheim in order to obtain rest‖. The charge was laid under s 52(1)(c) Land Transport Act 1998 and s 66 Crimes Act 1961.
[3] The facts, which were uncontroversial, were that Mr Hansen was instructed to drive an SCS truck from Taupiri, which is near Huntly, to Christchurch and back. He was carrying general freight. On his way south, he rested during the Cook Strait ferry crossing before taking the wheel again at Picton early on Sunday 16 May 2010.
[4] On the return journey from Christchurch later that day Mr Hansen was stopped at Riverlands, five minutes drive from Blenheim, by Senior Constable
Jackson. The time was 4.20 pm. The Senior Constable checked Mr Hansen’s log
SHELLEY ANNE PEARSON V NEW ZEALAND POLICE HC BLE CRI-2011-406-17 14 December 2011
book and found that he had been driving for 12 hours and 50 minutes. Picton was still some 35-40 minutes away.
[5] Mr Hansen’s evidence at the defended hearing in the District Court was that he had been working for roughly 14 hours by that time. So he had already exceeded the 13 hours work time permitted him under s 30ZC Land Transport Act. The legislation also requires that a driver must have 10 hours rest time before driving again:
30ZC Limits on work time
(1) A driver subject to this subpart—
(a) may not exceed the work time restrictions specified in this section, the rules, or any variation granted under section
30ZA; and
(b) must comply with the rest time requirements specified in this section, the rules, or any variation granted under section
30ZA.
(2) In any cumulative work day, a driver—
(a) may not exceed 13 hours of work time; and
(b) must have at least 10 hours of continuous rest time.
[6] ―Rest time‖ and ―work time‖ are defined terms:
2 Interpretation
(1) In this Act, unless the context otherwise requires,—
...
rest time means all time that—
(a) is not work time; and
(b) is at least 30 minutes in duration; and
(c) is not spent in a moving vehicle associated with work.
...
work time includes (but is not limited to) all the time spent—
(a) driving a vehicle to which section 30ZB(1) applies:
(b) performing work-related duties, including (but not limited to)—
(i) loading and unloading:
(ii) maintenance and cleaning of vehicles (other than unpaid cleaning outside working hours):
(iii) administration or recording:
(c) in any paid employment (other than paid leave or paid breaks of at least 30 minutes' duration), whether or not related to transport activities.
[7] The Senior Constable was empowered under s 121(1) Land Transport Act to order Mr Hansen to rest, among other things, if he believed ―on reasonable grounds‖ both that the requirements of any enactment concerning work time or rest time were not being complied with, and that in all the circumstances a direction or prohibition was in the interests of the driver or the public. His powers are found in ss (2):
121Enforcement officer may immobilise vehicle, etc, in specified circumstances
...
(2) The enforcement officer may—
(a) Forbid that person to drive a motor vehicle for such period as the enforcement officer specifies:
(b) Direct the person to drive the vehicle to a specified place where the driver may obtain rest, or where the load on the vehicle or other conditions make it appropriate that the driver should drive to that place:
(c) Take possession of all ignition or other keys of the vehicle, and for that purpose require that person to deliver up immediately all such keys:
(d) Take such steps as may be necessary to render the vehicle immobile or to remove it to a place where it does not constitute a traffic hazard.
[8] A person who fails to comply with any such direction may be arrested without warrant. The legislation provides that where a person who is forbidden to drive under subs (2)(a) has an excess breath alcohol level the period of the
prohibition must be 12 hours unless there is good reason to impose a shorter time.[1]
The significance of this provision for present purposes is that it confirms a driver may be ordered to rest for more than 10 hours.
[1] Section 121(3).
[9] In this case the Senior Constable insisted that Mr Hansen surrender the truck keys, leaving the truck at Riverlands, and directed that he go to Blenheim to rest. The officer made it clear that he wanted Mr Hansen to take a motel there; in any event, Mr Hansen was not to leave Blenheim or resume driving until his rest period was up.
[10] Mr Hansen had a series of phone conversations with Ms Pearson. He was on the phone to her for about 45 minutes to an hour. During the same period she interceded with the Senior Constable. She wanted Mr Hansen to go to Picton and stay at a motel where the company has a permanent booking. I was given to understand that drivers normally deliver their trucks to the Picton ferry terminal and leave stewards to load the trucks while they rest; they then board the ferry; the time spent at the motel and on the ferry is not less than 10 hours and is treated as the required rest time.
[11] The Senior Constable was having none of Ms Pearson’s request. He made it clear to her that Mr Hansen was to remain in Blenheim, for he would still be working if he were to travel to Picton, even as a passenger. He also pointed out that Mr Hansen would also be working if he were to drive the relief driver’s car to Picton. The Senior Constable offered him a lift to Blenheim. Mr Hansen declined. He remained with the truck, which was curtain-sided and accordingly insecure, to protect it until a relief driver arrived about one and a half to two hours later.
[12] The Senior Constable did not take exception to Mr Hansen remaining with the truck while a relief driver was despatched, but he considered it work time. He knew both that the truck would not be staying where it was and that a driver cannot take rest time in a moving vehicle, and he wanted to ensure that Mr Hansen would have at least 10 hours actual rest before resuming work in the morning. That precluded rest time in the truck, which had its own sleeping accommodation. He accordingly ordered that Mr Hansen go to Blenheim and not resume work until 6 am the following day, so imposing what amounted to a 13-hour rest period. It appears
that he then left Mr Hansen with the truck, taking the keys to the Blenheim Police
Station.
[13] Ms Pearson thought the Senior Constable had exceeded his authority. She instructed Mr Hansen that he was not to stay in Blenheim. He was to go to Picton and take the ferry to Wellington, completing a 10-hour rest period there before resuming his journey north. She arranged for a relief driver to come from Picton to Blenheim by car to get the truck. The relief driver arrived after about an hour and a half to two hours. The driver did not retrieve Mr Hansen’s keys from the Police Station as the Senior Constable had envisaged, for there was a spare set concealed in the truck itself, kept there against the possibility that the driver should lose his keys. Mr Hansen had not told the Senior Constable about the spare set. On Ms Pearson’s instructions Mr Hansen drove the relief driver’s car to Picton.
[14] It appears from Mr Hansen’s evidence at the defended hearing that he failed to rest in Wellington as instructed and was later prosecuted for that and for failing to hand over the truck’s keys. It is not suggested that Ms Pearson was party to these offences. Defence counsel criticised Mr Hansen in cross-examination for having wasted time on the South Island leg of his journey, which he should have been able to complete within 13 hours. The point of this evidence, as I understood it, was that Ms Pearson did not have a practice of instructing drivers to work longer than permitted but was placed in difficulty on this occasion as a result of Mr Hansen’s behaviour.
[15] It is common ground that the information, which I have quoted at [2] above, is inaccurate. The Senior Constable did not direct Mr Hansen to drive a vehicle to Blenheim to obtain rest there, as alleged; he took the keys and directed Mr Hansen to go to Blenheim without the truck to rest there.
[16] There was no misconception at the hearing before the Justices, however. The general question was whether the Senior Constable had exceeded his authority. It was variously said that he had acted unreasonably and arbitrarily by imposing a non- driving period of 13 hours commencing there and then, and that he was without
power to tell Mr Hansen to go to Blenheim without the truck and remain there while he rested. The Justices found the charge proved.
[17] On appeal, Mr Roose accepted that s 66 Crimes Act applies in summary proceedings. The grounds of appeal are the same as those raised in the District Court.
[18] Contrary to the stance taken by the Police in the District Court, Mr O’Donoghue did not argue that the Senior Constable might tell Mr Hansen to take himself to Blenheim, sans truck, and stay there. Counsel accepted that the Senior Constable could not order Mr Hansen to go to Blenheim without the truck. I was invited to amend the information to one of inciting Mr Hansen not to follow a direction not to drive. It is said that Ms Pearson committed the offence by directing that Mr Hansen wait with the truck while a relief driver arrived then drive the relief driver’s car to Picton before commencing his rest. In the circumstances, Mr Hansen not only failed to comply with a lawful direction that he not drive any vehicle but also worked by driving a vehicle (the relief driver’s car) when he had exceeded the maximum permissible working hours. (For purposes of the definition of ―work time‖ I will assume the car was not a vehicle to which s 30ZB(1) applied, but driving
it was a ―work-related‖ duty in the circumstances.[2])
[2] A similar conclusion was reached under corresponding provisions of the Transport Act 1962 in
Police v Rudd DC Whangarei CRN: 1088017054-56, 7 November 2002.
[19] It is not in dispute that the Senior Constable could confiscate the keys and forbid Mr Hansen to drive for a given period. Section 121(2) permits an enforcement officer to take one or more of the actions specified; in particular, the officer may both direct that the driver take the vehicle to a place where rest may be had and forbid the driver thereafter to drive for a period. The truck having been driven to a place of rest, the officer may also take the keys to ensure that the driver complies with a prohibition on driving. However, as a practical matter the Senior Constable could not both take the keys at the roadside and direct that Mr Hansen
drive the truck to Blenheim.
[20] Nor did s 121(2) allow the Senior Constable to order Mr Hansen to go to a place of rest without the truck and rest there. The power to direct that the driver go to a particular place where rest may be had is available only when the driver is instructed to drive the vehicle in which he was stopped to that place. To the extent that he insisted the driver go to a particular place without the truck the Senior Constable overlooked the limited and specific terms of the powers conferred upon him. He might exercise his powers, which generally involve prohibiting the driver from driving any vehicle and immobilising the vehicle which he was driving when stopped, for the statutory object of ensuring that the driver has rest time, but the officer could not order the driver to rest at a particular place or in a particular way. Rest time, after all, is defined generally as non-work time. Had Mr Hansen insisted on going as a passenger to Picton to rest, leaving the truck at Riverlands, he might have been charged with working too many hours, but he could not have been charged with failing to comply with a direction given under s 121(2)(b).
[21] I turn to the question of amending the information. It is not in dispute that the amendment might have been made in the District Court under s 43 of the Summary Proceedings Act 1957, or that this Court has jurisdiction under s 121(6) of the same Act to amend an information on appeal.[3] The question is whether it is in the interests of justice to do so. I am satisfied that it is. The general question in the District Court, as here, was whether the Senior Constable could reasonably insist that
Mr Hansen stop driving there and then. It was not in dispute that he made it clear Mr Hansen could not drive the car to Picton, and that Ms Pearson nonetheless ordered Mr Hansen to do just that. The information is amended to one of inciting Mr Hansen not to follow a prohibition on driving for a prescribed period, contrary to s 121(2)(a).
[3] Hedges v Police HC Whangarei CRI-2009-488-49 9 September 2010.
[22] That brings me to the question whether the Senior Constable’s instruction that Mr Hansen rest at once in Blenheim was unreasonable. Mr Roose argued that Mr Hansen might have been permitted to drive the truck to Picton, which was only a short distance away; alternatively, he might have been driven there as a passenger. In either case he could have taken his rest in Picton or Wellington in the normal way.
In any event, a rest period of 13 hours was too long.
[23] With respect to the first of these options, in my opinion it cannot be said that the officer was without reasonable grounds for believing that Mr Hansen was not complying with the legislation. Nor can it be said that he exercised his discretion under s 121(1) unreasonably by insisting that Mr Hansen stop driving with immediate effect. Mr Hansen had already exceeded the prescribed working hours. Further, had he carried on to Picton in the truck Mr Hansen would have enjoyed only
10 non-driving hours before taking the wheel of the truck again at Wellington. Ten hours are the minimum rest time prescribed for a driver who has not exceeded the maximum working hours. It is a fallacy to assume that 10 hours must be enough no matter how many hours the driver has worked before taking rest time.
[24] Nor can Ms Pearson contend that the officer must offer Mr Hansen the option of going to Picton as a passenger before resting. There is a sense in which this option is academic, for Ms Pearson did not tell Mr Hansen to do what she now says was the reasonable thing. Instead she told Mr Hansen to wait with the truck then drive a car to Picton. That meant that he concluded his long working day – close to
17 hours - behind the wheel of a vehicle. She also envisaged that he would take only the minimum 10 hours rest once he reached Picton. By giving these instructions she unequivocally instructed Mr Hansen to ignore the Senior Constable’s instruction that he stop driving with the object of taking rest time before resuming work.
[25] There is no merit in the challenge to the number of hours non-driving time required of Mr Hansen. The legislation does not set a cap upon the duration of a driving prohibition, no doubt because there are cases in which the officer might reasonably conclude that 10 hours are too few. Because Mr Hansen would have to wait with the truck for some time before beginning his real rest, this was such a case.
[26] For these reasons I am not persuaded that the officer acted unreasonably by insisting that Mr Hansen take rest without delay and wait 13 hours before resuming work. The information is amended to one of inciting Mr Hansen not to follow a direction that he not drive for a prescribed period. The appeal is dismissed.
Miller J
Solicitors:
Crown Solicitor’s Office, Nelson for Respondent
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