Police v B HC Christchurch CRI 2006-409-84

[2007] NZHC 1346

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006-409-000084

POLICE

Intended Appellant

v

B

Intended Respondent

Hearing:         22 November 2007 (By Telephone) Counsel:   C J Lange for Intended Appellant

D J Taffs for Intended Respondent

Judgment:      29 November 2007

JUDGMENT OF FOGARTY J

[1]      This is an application for leave to appeal a decision of the High Court of

26 September  2007  which  set  aside  three  convictions.    Mr  B    had  been convicted of being a driver of a motor vehicle who had failed to remained stopped for as long as was necessary for an enforcement officer to complete the exercise of any powers  conferred by the Land Transport Act 1998.  He was then convicted of assaulting  the  same  officer  acting  in  the  execution  of  his  duty,  and  thirdly,  of

escaping from custody of that officer.

POLICE V B  HC CHCH CRI 2006-409-000084  29 November 2007

[2]      The New Zealand police seek to take two points to the Court of Appeal.  The first is the meaning of the words “in uniform” in s 114(1) of the Land Transport Act. Relevantly, s 114(1), (2) and (2A) of the Land Transport Act provides:

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.

(2)     An enforcement officer in a vehicle following another vehicle may, by displaying flashing blue, or blue and red, lights or sounding a siren, require the driver of the other vehicle to stop.

(2A)      Subject to subsections (4) and (5), the driver of a vehicle that is stopped by an enforcement officer under this Act must remain stopped for as long as is reasonably necessary for the enforcement officer to complete the exercise of any powers conferred, or duties imposed, on an enforcement officer by this Act.

[3]      Mr  B    had  stopped  at  the  request  of  a  police  officer  wearing  blue overalls which had a police badge affixed to each shoulder.  But at the time of the stopping the overalls did not have on the left hand chest side the standard prominent label reading “POLICE” and the police badge of authority.  With the exception of overalls worn by the Armed Offender Squad and the Special Tactics Group it has been police policy since at least September 1999 for this label and badge to be on the chest.  An obiter dictum in the judgment, at paragraph [28] makes it reasonably plain that the Court considered the current police uniforms to meet the requirements of s

114(1).

[4]      The officer concerned is a member of the Staff Safety Tactical Training Group (SSTT).  It seems that the overalls he was wearing were issued prior to 1999 which explains why it did not have the label on the chest at the time of the incident. As it happened, it had been attached to the overalls by the time of the trial but for the purposes of the trial had been taped over.   The Court concluded that the overalls were an item of uniform but were not sufficiently distinctive to reach the finding that the officer was “in uniform”.

[5]      In this application counsel for the police argue that the question of whether or not s 114(1) requires an officer to be in a uniform which is sufficiently distinctive is

a matter of sufficient importance to warrant a further appeal to the Court of Appeal. Posed that way the question appears to be important.

[6]      Mr Lange, for the appellant, said that the police are conducting a review of their uniforms and would be interested in further consideration of this topic by the Court of Appeal.  There may well be a review of police uniforms from time to time but there was no suggestion by Mr Lange that the police would be abandoning the use of the distinctive label “POLICE” and the police badge of authority prominently displayed on the chest of all uniform apparel other than the formal tunic (always worn  with  the  cap)  or  the  extraordinary  exceptions  in  the  case  of  the  Armed Offenders  Squad  and  Special  Tactics  Group.    For  obvious  reasons,  those  latter groups do not want white lettering prominently displayed over their chest area.

[7]      As I observed to Mr Lange, this Court takes public notice that the current police practice of chest labels is consistent with the Australian and British Police, and other countries. Given that this Court asked for the views of the Commissioner of Police as to uniform prior to delivering its judgment and received the affidavit from Ms Mulligan contending that the officer in this case was not in uniform and emphasising that it has been police policy since 1999 for the label and police badge to be on the chest, I find it quite surprising to hear an argument that the New Zealand Police want this matter to be given further consideration by the Court of Appeal.  As I understand the evidence, there are no officers currently dealing with the public wearing the overalls without the label and badge on the chest. I consider it extremely unlikely that there ever will be in the future.  Accordingly, in my view, the issue of whether or not the police officer in this case was in uniform is not of general or public importance.

[8]      The second point that the appellant wishes to take to the Court relates to the issue of implied licence.    It was submitted that the circumstances of this case raise important matters of law relating to the extent to which an officer in pursuit can lawfully stop a vehicle outside the gate of a property (but potentially with part of the vehicle being inside the legal boundary to the property).  Counsel submitted that the law has always recognised an implied licence to enter land but that licence may be terminated by the occupier.  The extent to which police officer in pursuing suspected

offenders have (or conversely do not have) an implied licence to stop (on private property) such as in the circumstances of this case is a matter of public importance.

[9]      It is common ground that police officers have no special rights at common law to enter private property.  The so-called doctrine of implied licence recognises merely that usually occupiers of residential properties, who do not lock their gates, or put up notices, allow callers to walk up the path and knock on the door.   See Robson  v  Hallet  [1967] 2 QB 939, 950 per Lord Parker CJ and 953-954 per Diplock LJ and Howden v Ministry of Transport [1987] 2 NZLR 747, 751 per Cooke P.

[10] It was submitted that the Court appeared to proceed on the basis that the officer believed, or at least should have believed, that the property was property in respect of which Mr B was a lawful occupier and as occupier he had terminated any implied licence by his conduct. See [36]. Mr Lange submitted that for all the officer knew the driver may have just driven onto a random private property. The Court did not proceed on that basis.

[11]     The Court proceeded on the basis that Mr B   had driven off against the wish of the officer.   In that circumstance, the pursuing officer had no reason to believe that he would be allowed on to the property that the man he was pursuing drove into, particularly when that man was trying to stop him coming in, and trying to lock the gate.  Mr Lange was reduced to arguing for a proposition that anyone can go on to any private property under the law of implied licence until they are asked to be removed by someone who they know is a lawful occupier.   That is not the common law.  Mr Lange was unable to produce any authority in support of it.

[12]     There is no basis for the common law to be stretched to accommodate the wishes of the New Zealand Police (though because of the uniform point, I have serious doubt as to whether or not this decision to apply for special leave to appeal has the support of the Commissioner of Police) when Parliament has for more than

100 years from time to time addressed and made special provision for powers of entry by police officers, rather than leaving the matter to the common law.

[13]     I am not satisfied that there is any point of law on implied licence of general and public importance which should be taken to the Court of Appeal.  This aspect of the case was resolved by findings of fact.

[14] Thirdly, I note, that counsel for the appellant tried to wrap into the implied licence point a challenge to the finding that the police officer did not have power of arrest prior to any physical contact between the officer and Mr B . See [39]. The setting of this finding was while the police officer was on private property, without licence, when Mr B started pushing the door of the officer’s car closed to prevent him getting out and getting any further on to his property.

[15]     Mr Lange tried to reopen the question of whether or not Mr B   should have stopped on the road a second time, while being pursued by the officer, after he had driven off against that officer’s wish.  He was never charged with an offence of failing to stop during this part of the events.   Moreover, there was evidence that although he did hear from time to time a police siren, it was sounded intermittently, but that he was aware there were other marked police cars in the area and was not sure that the siren was directed at him.   It was common ground that there were marked cars in the vicinity.   All the issues surrounding this aspect of the case are factual and prior in time to the events on private property.  There is no issue of law as to power of arrest involved in that earlier part of the narrative.  There would have been  difficulties  on  the  facts.    There  was  never  an  argument  seeking  to  apply s 114(6) to an officer on private property, while being a trespasser.

[16]     For these reasons the application for leave to appeal is declined.  Costs are reserved.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Intended Appellant

D J Taffs, Westport, for Intended Respondent