Police v D HC Rotorua CRI 2007-069-1885
[2009] NZHC 1180
•4 September 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2007-069-1885
BETWEEN NEW ZEALAND POLICE Appellant
AND D
Respondent
Hearing: 6 July 2009
Appearances: A M Powell for Appellant
A Shaw for Respondent
Judgment: 4 September 2009
JUDGMENT OF HEATH J
This judgment was delivered by me on 4 September 2009 at 2.00pm pursuant to Rule 11.5 of the High
Court Rules
Registrar/Deputy Registrar
Solicitors:
Crown Law, PO Box 2858, Wellington Gresson Grayson, PO Box 1045, Hastings Counsel:
A Shaw, 29A Grass Street, Oriental Bay, Wellington
NEW ZEALAND POLICE V D HC ROT CRI 2007-069-1885 4 September 2009
[1] On 13 September 2007, Mr D was stopped on two occasions by a police officer. He was charged with failing to remain stopped and failing to stop, on the second occasion.
[2] After a hearing in the District Court at Taupo, Judge McGuire dismissed both charges: see Police v D [2008] DCR 813. The Informant appeals, by way of case stated, against dismissal of the informations. Judge McGuire stated the following question for the opinion of this Court:
5.1 Whether an enforcement officer is empowered under s 114 of the Land Transport Act 1998 to require the driver of a vehicle to remain stopped for as long as reasonably necessary for the enforcement officer to undertake a QP (query person) in circumstances where the identity of the driver has been established to the satisfaction of the officer.
[3] Mr Powell, for the Informant, submits that the District Court Judge erred in holding that Mr D was not required, as a matter of law, to remain stopped while certain inquiries were undertaken by a police officer at the scene.
[4] Mr Shaw, for Mr D , raised a preliminary issue. He submits the appeal is not properly before the Court because it was not filed in time. The point involves the vexed issue of purporting to file Court documents by facsimile. However, on the view I take on the merits, I find it unnecessary to determine the point.
Factual background
[5] On 13 September 2007, Mr D was driving along Broadlands Road, about
20 kilometres north east of Taupo. The speed limit on that road was 100km/hr. Constable Foden was seated in a marked patrol vehicle on the same road. She was dressed in full police uniform.
[6] At about 2.30pm Constable Foden observed Mr D ’s vehicle travelling towards her at a speed shown as 112km/hr, on her radar screen. The constable activated red and blue flashing lights and a siren and gave chase.
[7] Mr D slowed and pulled over. After turning around, the constable parked her car behind Mr D ’s. Mr D alighted his vehicle and strode towards her. From that point, there was a dispute between Mr D and Constable Foden as to exactly what occurred. There were some fractious exchanges. With the benefit of time to reflect, neither is likely to look back on their behaviour with pride.
[8] While Mr D was stopped, Constable Foden asked to see his driver licence and asked him for his address. Mr D showed his licence to the constable and provided his address.
[9] Constable Foden’s evidence was that she asked Mr D to remain stopped while she went back to her vehicle to make an inquiry with police communications about the details provided to her. The task she had intended to undertake was to ask for a “QP”; a “query person” procedure, whereby information about the identity of a person is supplied to police communications so it may be checked against computer records to ascertain, for example, whether a warrant has been issued for that person’s arrest or if the person is a disqualified driver.
[10] While Constable Foden was making this inquiry, she saw Mr D drive away. Believing that he had done so while under a direction to remain stopped, Constable Foden again gave chase. When Mr D stopped, after driving about 3.5 kilometres, he was placed under arrest for failing to remain stopped and for failing to stop on the second occasion.
[11] The issue raised by those facts is whether the police constable had any statutory power to require Mr D to remain stopped while she undertook further inquiries (by way of the “QP”), after receiving details of Mr D ’s identity and address.
[12] Constable Foden exercised powers conferred by s 114(2) of the Land
Transport Act 1998 (the Act) to require Mr D to stop his vehicle. [13] The scheme of s 114 can be summarised as follows:
a) Any enforcement officer (including a constable) who is in uniform may signal or request a driver to stop a vehicle as soon as practicable: s 114(1).
b)If a vehicle is being followed by an enforcement officer in another car, the driver of the former may be required to stop by the officer displaying flashing blue, or blue and red, lights, or by sounding a siren: s 114(2).
c) A driver who is stopped by an enforcement officer (under either s 114(1) or (2)) “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” the Act: s 114(2A).
d) The obligation imposed by s 114(2A) is subject to two qualifications.
i)The first is that a driver who is stopped under s 114(2) is not obliged to remain stopped if the vehicle with flashing lights and siren does not, itself, stop in the near vicinity of the place where the driver has stopped his or her vehicle: s 114(4).
ii)The second is that an enforcement officer may only require a driver to remain stopped “for as long as is reasonably necessary to enable the officer to establish the identity of the driver”: s 114(5). If the requirement to remain stopped is
made only under s 114(5), the officer may not require a driver to stop for more than 15 minutes.
[14] Once a driver has been stopped under s 114 of the Act, the enforcement officer’s powers are circumscribed by s 114(3):
114 Power to require driver to stop and give name and address, etc
…
(3) An enforcement officer may require the driver of a vehicle that is stopped under this Act to—
(a) Remain stopped for as long as is reasonably necessary for an enforcement officer to obtain the particulars referred to in paragraph (b), or to complete the exercise of any other power conferred on an enforcement officer by this Act; and
(b) On demand by an enforcement officer,—
(i) Give his or her name and address and date of birth, or such of those particulars as the enforcement officer may specify; and
(ii) State whether or not he or she is the owner of the vehicle; and
(iii) If the driver is not the owner of the vehicle, give the name and address of the owner or such particulars within the driver's knowledge as may lead to the identification of the owner.
[15] An enforcement officer is entitled to arrest a person without warrant if there were good cause to suspect that person of failing to comply with a s 114 requirement or having given false or misleading information: s 114(6).
The District Court judgment
[16] After making appropriate findings of fact, Judge McGuire considered submissions advanced on behalf of the Informant and Mr D . He then analysed whether the officer’s power to require Mr D to remain stopped was engaged by the section. The Judge concluded:
[77] As I have said, the QP (query person) plainly goes beyond the parameters of s 114(5) and for that matter, the other provisions of s 114. QP
inquiries as a matter of course to [sic] range well beyond Land Transport Act matters. So, I conclude that they are not sanctioned by s 114. [Roper v Police [1984] 1 NZLR 48 (CA)] (along with others) remains authority for the proposition that the police have no power to detain a citizen except under express statutory power.
[78] It may well be that a public debate on this issue is timely. There may well be very sound practical and pragmatic reason to give carte blanche to QPs in their present form in all cases where drivers are stopped. But there are certainly arguments to the contrary that they are an unwarranted and further erosion of human rights. Those arguments are not for me to decide. Ultimately they are matters for Parliament.
[79] I must and do find that Mr D fulfilled his duties under s 114 to remained stopped to provide the personal details required of him. And having enabled Constable Foden the opportunity to establish his identity, he was entitled to leave when he did. Accordingly, the first charge he faces under s 52(1)(c) must fail. The prosecuting sergeant rightly acknowledges that if the first charge fails, so too must the second charge of failing to stop. Accordingly, the charges against Mr D are dismissed.
Competing submissions
[17] Mr Powell submits that:
a) Section 114 provides a basis on which an enforcement officer may require a driver to stop and to remain stopped while specified information is sought and steps taken to “complete the exercise of any other power conferred on an enforcement officer” by the Act.
b)The power to enforce the transport legislation is derived primarily from s 113 of the Act. Section 113(2) sets out a series of powers which are expressed in non-exhaustive terms. Section 113(2) provides:
113 Enforcement officers may enforce transport legislation
…
(2) Without limiting any other powers conferred on an enforcement officer, an enforcement officer, in enforcing any provisions referred to in subsection (1), may at any time—
(a) Direct a person on a road (whether or not in charge of a vehicle) to give the person's name and address and date of birth, or such of those particulars as the enforcement
officer may specify, and give any other particulars required as to the person's identity, and (unless the person is for the time being detained or under arrest under any enactment) give such information as is within the person's knowledge and as may lead to the identification of the driver or person in charge of a vehicle:
(b) Inspect, test, and examine—
(i) The brakes or any other part of a vehicle on a road or any associated equipment; or
(ii) A land transport document, or a document resembling a land transport document, displayed or carried on the vehicle:
(c) If the enforcement officer believes on reasonable grounds that a vehicle on a road causes an obstruction in the road or to a vehicle entrance to any property or that the removal of the vehicle is desirable in the interests of road safety or for the convenience or in the interests of the public,—
(i) Enter, or authorise another person to enter, the vehicle for the purpose of moving it or preparing it for movement; and
(ii) Move, or authorise another person to move, the vehicle to a place where it does not constitute a traffic hazard:
(d) Direct the driver or person in charge of a vehicle on a road to remove the vehicle from the road or a specified part of a road, if the officer believes on reasonable grounds that it causes an obstruction in the road or to a vehicle entrance to any property or its removal is desirable in the interests of road safety or for the convenience or in the interests of the public:
(e) Forbid an unlicensed driver to drive a motor vehicle: (f) forbid a person who is operating a transport service
without a licence to operate that transport service.
c) Although, in Roper v Police [1984] 1 NZLR 48 (CA) the Court of Appeal held that an enforcement officer could not make inquiries that went beyond the matters set out in s 66(2) of the Transport Act 1962 (the predecessor of s 114), that view has been modified by Po v Ministry of Transport [1987] 2 NZLR 756 (CA). Mr Powell submitted that Po authorises a more malleable power to inquire, provided the driver is not stopped for an unreasonable period of time.
d)Those restrictions on civil liberties can be justified by the need to regulate the activity of driving, particularly to promote road safety concerns. Mr Powell submits that serious consequences would result if law enforcement officers were unable to direct a motorist to remain stopped while inquiries were made as to whether the driver was disqualified, suspended or forbidden to drive.
[18] Mr Shaw submits:
a) Section 114 should be given the narrow interpretation on which Judge McGuire based his decision. Section 114 only authorises an enforcement officer to stop a motor vehicle for the purposes of that section and s 114(5) only entitles the officer to require a driver to remain stopped “for as long as is reasonably necessary to enable the officer to establish the identity of the driver”, but for no longer than
15 minutes.
b)Constable Foden had no authority to require Mr D to remain stopped while she undertook the “query person” check. She must have been satisfied, from the driver licence presented to her (containing Mr D ’s photograph and date of birth) of his identity. Thus, she had no basis to detain him further.
c) Section 114 cannot be used for purposes that go beyond the Act’s own enforcement powers: see Roper v Police and Jones v Attorney- General [2004] 1 NZLR 433 (PC).
Analysis
[19] My starting point is Roper v Police. In that case, two constables, in a marked patrol car, observed a vehicle being driven in an erratic manner. At the request of one of the constables, the other driver stopped. She was requested to give her name and address and the name and address of the owner of the vehicle. The driver gave her name and address and also informed the constable that she owned the car. The
constable informed her that she was to remain stopped to allow the road-worthiness of the vehicle to be checked. After that examination, she was told that the car had three bald tyres and that she should remain where she was until Ministry of Transport assistance was obtained. Notwithstanding that advice, the driver drove off and was later arrested and charged with failing to stop.
[20] The driver was charged under s 66 of the Transport Act 1962. In the District Court, the charge was dismissed on the ground that, once the driver had given her name, address and other particulars required by s 66, there was no further power vested in the constables to require her to remain stationary. The High Court allowed the Informant’s appeal, holding that a combination of powers contained in s 66(1) and s 68B enabled the constables to carry out duties cast upon them by s 68B, even though the driver might have already complied with a request for supply s 66(1) particulars. Leave to appeal to the Court of Appeal was granted.
[21] Delivering the judgment of the Court of Appeal, Richardson J described s 66 as a “self-contained provision”. He continued, at 51-52:
[Section 66(1)] creates two obligations: an obligation to stop at the request or signal of a constable or traffic officer; and an obligation to furnish specified information on demand. When read as a whole it is necessarily implicit in the subsection that the user of the vehicle must remain stopped for the time reasonably needed to provide the information which may be sought. But that obligation to remain stopped is not of indefinite duration. Both the justification for reading "stopped" in such an extended sense and the definition of the duration of that obligation rest on the association in the subsection of the two obligations. That interpretation parallels the construction of s 65(1) adopted by Richmond J in Houten [[1971] NZLR
903]. It also reflects the cardinal principle emphasised by this Court in Blundell v Attorney-General [1968] NZLR 341 that the police have no power to detain a citizen except under express statutory authority. Thus the duration of the duty under s 66(1) to remain stopped is governed by the associated obligation to supply information. Once the driver has stopped and has supplied the information thereafter sought, that obligation to stop (and remain stopped) has been exhausted and there is no authority under that section for the constable or traffic officer to make any further demands on the driver at that time. Subsection (2) prayed in aid by both counsel is entirely consistent with that analysis. If anything, it tends to reinforce that view of subs (1): the corollary to subs (2) is that any person who complies with all the provisions of subs (1) does not commit an offence.
[22] The Court of Appeal also considered s 68B to be a “self-contained” provision. It found that s 68B operated independently of s 66. Therefore, powers created by s 66 could not be used to supplement those contained in s 68B.
[23] Roper was distinguished, in Po v Ministry of Transport. Mr Po had been driving his vehicle on a Wellington street and was stopped by a traffic officer as part of a random breath test check, the sole purpose of which was to check the sobriety of the driver. Having stopped the driver and obtained admissions about recent consumption of alcohol, Mr Po was asked to undergo a breath screening test and, subsequently, an evidential breath test. Ultimately, he was convicted of driving with an excess breath alcohol concentration.
[24] The issue with which the Court of Appeal dealt was whether a traffic officer, having stopped a motor vehicle under s 66(1) of the Transport Act for the express purpose of checking a driver’s sobriety on a random basis, was entitled to detain the driver for that purpose.
[25] Delivering the judgment of the Court of Appeal, Cooke P expressed the following views, at 758:
… There is nothing contrary to the values embodied in our legal system in recognising that a person exercising the right to use a public highway by driving a motor vehicle does so on condition. He or she may fairly be required to submit to occasional checks to ensure that unlawful danger to other road users is not being created. Section 66 imposes certain duties on users of vehicles:
66. On demand by constable or traffic officer, user of vehicle to stop and give name and address — (1) The user of a vehicle shall stop at the request or signal of a constable or traffic officer in uniform or of a traffic officer who is wearing a cap, hat, or helmet which identifies him as a traffic officer, and on demand give him his name and address and state whether or not he is the owner of the vehicle, and, if he is not the owner of the vehicle, shall also give the name and address of the owner.
(2) Any person commits an offence who fails to comply with any provision of subsection (1) of this section, and may be arrested by any constable without warrant.
They are duties to stop and on demand to give certain information. By subs (2) failure to comply with any provision of subs (1) is an offence for which any constable may arrest without warrant. It is to be noted that the power of
arrest under s 66(2) itself is not conferred on traffic officers, although after a stopping under s 66(1) a situation could develop in which one of the powers of arrest without warrant conferred on the traffic officer by other sections might apply: see Auckland City Council v Dixon [1985] 2 NZLR 489, 491.
Under s 66(1) the duties of the driver are cumulative and in that sense separate. This section may be described as complementary to the enforcement sections, in particular s 58A and s 68B. Stopping a driver or obtaining a name and address are not ends in themselves. The duties imposed on drivers by s 66 must have been intended by Parliament to facilitate the enforcement or administration of the Act. But, apart from that obvious limitation, they are unqualified duties. They are not restricted to the enforcement or administration of any particular provision.
It is a fair and virtually inevitable interpretation that a traffic officer wearing an identifying cap, hat or helmet may require a driver to stop to enable the officer to check whether there is good cause to suspect the recent consumption of drink under s 58A(1)(a). Similarly he may check, for example, such matters as the currency of a warrant of fitness, the wearing of a seat belt, the driver's licence. The officer cannot be bound, however, to request the name and address or other information if it turns out that there is no particular reason or justification for such a request.
[26] At the time that Po was decided, s 66(1) contained no limit on the time for which a driver may be stopped under s 66. However, the Court was satisfied that a reasonable time should be allowed to enable an officer to check and, if necessary, exercise any appropriate enforcement powers under the Act.
[27] In Jones v Attorney-General, the Privy Council approved Po v Ministry of Transport, in holding that the s 114 power cannot be used for purposes other than the enforcement of road transport rules. Lord Bingham of Cornhill added:
[4] … It is plain that s 114 gives a large measure of protection to a reasonably well-trained constable acting in good faith, since a reasonably well-trained constable will not exercise the statutory power otherwise than for road transport purposes and a constable acting in good faith who chooses to give a driver a reason for stopping him will not give a reason which he knows to be false. …
[28] That approach has been echoed by the Court of Appeal: see R v Koroheke (CA193/00, 7 September 2000) and R v Moreton [2009] NZCA 121. In those cases, the Court reaffirmed the principle that, while s 114 creates a power to stop vehicles, it may only be exercised for purposes associated with the enforcement of the Act: Koroheke, at para [19] and Moreton, at para [13].
[29] With respect, I consider that Judge McGuire erred in relying solely on Roper v Police. I agree with Mr Powell that the approach taken by the Court of Appeal in that case was modified by Po v Ministry of Transport. The statements of principle to be found in Po, Jones v Attorney-General, Koroheke and Moreton all support the proposition that the s 114 power to stop and to require a driver to remain stopped may be exercised for reasons that go beyond the obtaining of information of the type to which reference is made in s 114(3) and (5), so long as they are exercised for road transport purposes.
[30] In my view, it is implicit in the power to require a driver to “remain stopped” (s 114(2A)) that an enforcement officer is able to undertake inquiries relevant to his or her enforcement powers under the Act. This conclusion is supported by references to “completion” of the exercises of powers conferred or duties imposed on an enforcement officer (ss 114(2A) and 114(3)(a)) and the ability arrest a person without warrant if there were good cause to suspect the driver of having given false or misleading information on being stopped (s 114(6)). The authority conferred by the Act to complete enforcement powers or duties is the reason why it is implicit that inquiries can be made so that the officer may ascertain if there are any enforcement powers or duties to exercise.
[31] Where I differ from Judge McGuire, on this point, is that I consider s 114(2A) and (3) to have primacy over s 114(5), in the circumstances of this case. I regard that latter as applying if the driver is requested to remain stopped for the limited purpose of establishing his or her identity. This case did not involve a random stop. The constable had grounds to believe that Mr D was speeding. However, a power might be exercised only under s 114(5) if, during a random stop, the driver does not have his or her licence available and it was necessary to obtain further information to verify identity. The reference in s 114(5) to stopping the driver only under that provision reinforces that conclusion.
[32] I limit the inquiries an enforcement officer is entitled to make to those relating to enforcement of the Act; or, road transport purposes, as that phrase was used in Attorney-General v Jones at [4]. Plainly, the officer is entitled to check whether the person is subject to a disqualification order or some other restriction on
his or her ability to drive. The officer should also be entitled to ascertain whether the vehicle is stolen.
[33] The existence or otherwise of any warrant for the arrest of the driver is another line of legitimate inquiry. That can be justified because a warrant may have been issued for a driver’s arrest on a road transport charge. But, there is no good policy reason to restrict the extent of any inquiry that may be made in relation to any extant warrant. Indeed, policy reasons go the other way. There is no good reason why a person who is the subject to a warrant for arrest for murder should escape detection because an inquiry about the existence of warrants is made after he or she is stopped under s 114. The fact that warrants arising out of road transport offending might exist is a good enough reason to allow inquiries to be made into the existence of any outstanding warrants.
[34] Beyond that, the good faith and relevance of any inquiry undertaken while a driver is required to remain stopped will need to be considered on a case by case basis, by reference to whether the inquiry was necessary to enable the enforcement officer to complete any duties imposed by the Act or to exercise any enforcement powers.
[35] I have dwelt, at some length, on the need to circumscribe the inquiries that can be made for two reasons. The first relates to civil liberties. The power to detain is something that ought to be as narrow as is reasonably necessary to meet relevant policy goals. The second is that, in the course of argument, Mr Shaw indicated that a “QP” inquiry could be wide ranging and may reveal personal information irrelevant to any enforcement powers. There was sparse evidence on that topic and I did not explore the issue in argument. But, the observations I have made should ensure that only information relevant to enforcement duties or powers under the Act is sought while the driver is required to remain stopped.
[36] I hold that the learned District Court Judge erred in his interpretation of s 114. However, I am not prepared to interfere with the Judge’s decision to dismiss the informations. First, I do not consider that the facts giving rise to the charges justify a further hearing in the District Court. Second, and perhaps more
importantly, there was no clear evidence on the extent of the inquiries undertaken by Constable Foden. I am not prepared to act on the assumption that she intended only to obtain information relevant for road transport enforcement purposes.
Result
[37] The appeal is allowed. The question posed in the case stated (set out at para [2] above) is answered as follows:
An enforcement officer is empowered, under s 114 of the Act, to require a driver of a vehicle to remain stopped for so long as is reasonably necessary for the enforcement officer to undertake a “QP” (query person) inquiry on any issues relevant to the powers of enforcement or performance of duties under the Act. That power may be exercised even though the identity of the driver has been established to the satisfaction of the enforcement officer.
[38] In the exercise of my discretion, I do not order a rehearing of the informations. The order dismissing the informations that was made in the District Court remains intact.
[39] I thank counsel for their assistance.
P R Heath J
Delivered at 2.00pm on 4 September 2009
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