Robertson v Police

[2015] NZHC 2408

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-28 [2015] NZHC 2408

BETWEEN

TE WINIKA ROBERTSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	29 September 2015
Counsel:	Appellant in person R B Annandale for Respondent
Judgment:	29 September 2015

ORAL JUDGMENT OF FOGARTY J

Solicitors:           Crown Solicitor, Whangarei

ROBERTSON v POLICE [2015] NZHC 2408 [29 September 2015]

[1]      Mr Te Winika Robertson appeals against a decision of Judge Duncan Harvey in the District Court at Kaitaia on the 26 August 2015.   Mr Robertson had been charged that on 4 June 2015, at Cable Bay, being a person on a road and having a lawful demand by an enforcement officer to give your full name and full address, you failed or refused to give such information.

[2]      The circumstances were that the police were on this day randomly stopping traffic to check current warrants of fitness and registration and, in the course of that, Mr Robertson was stopped and he was asked for his name and address which he refused.  It was explained to him that these questions were asked pursuant to s 114 of the Land and Transport Act 1998 which 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)       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 full name, full address, date of birth, occupation, and telephone number, 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.

(4)       The driver of a vehicle that is stopped under subsection (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.

(5)       An enforcement officer may require a driver to remain stopped on a road for as long as is reasonably necessary to enable the officer to establish the identity of the driver, but not for longer than 15 minutes if the requirement to remain stopped is made under this subsection only.

(6)       An enforcement officer may arrest a person without warrant if the officer has good cause to suspect the person of having—

(a)      failed to comply with this section or a signal or request or requirement under this section; or

(b)      given false or misleading information under this section.

[3]      After he refused a second time he was arrested and transported back to the police station.   The police officer at the police station identified him.   The Judge records that Mr Robertson was courteous at all times.

[4]      Mr Robertson’s position then and now has been that this was an unlawful act by the police.  Mr Robertson has mounted a constitutional argument defence based on Tino Rangatiratanga over Maori tangata whenua. I have read his argument, which is detailed, and I am familiar with such arguments, having, for example, examined it in a case in Invercargill some years ago where I dealt with the right of Maori to take flounder from Oreti Beach.

[5]      I have discussed with Mr Robertson today the significance of statutes that he has relied upon, being the New Zealand Constitution Act 1852, an Imperial Act of the United Kingdom which granted a degree of self-government to what was then the Colony of New Zealand.   I have explained that New Zealand does not have a superior written constitution.  As a matter of fact, there is a committee going around the country seeking submissions as to whether New Zealand should have one.  New Zealand is one of three countries in the western world without a written constitution, the other two being the United Kingdom and Israel.   The result of not having a

superior written constitution is that where there is a conflict between two statutes, then the later statute prevails and this is called the sovereignty of Parliament which Mr Annandale mentioned in his address to you.

[6]      Section 114 of the Act does give an extraordinary power to the police to stop private persons in vehicles who are not breaking the law and to ask them their name and address.  It is a section which has caused problems and Mr Robertson is not the first person to be concerned about the exercise of this power.  Certainly, Gallen J has explained in the case of Police v Tapara1  in 1988 that this power – and he was talking about an earlier version of it – does not include a general power of capricious stopping.  In other words, stopping without good purpose.  For all statutory powers

can only be exercised for their proper purpose and cannot be exercised just as an abuse of authority.  And that is why it is an important material fact here that this was a deliberate random stopping of motorists to check on warrants of fitness and registration.  It was not a case where Mr Robertson was being singled out because of who he was or was not.

[7]      For this reason, I am quite satisfied that Judge Harvey was correct in finding that Mr Robertson had committed an offence.  The Judge fined Mr Robertson $200, which is way short of the maximum fine under this section which is $10,000,2  and there is no basis on which I, sitting on appeal, can disturb that figure.

[8]      For these reasons the decision of Judge Harvey stands and the appeal is dismissed.

[9]      The Crown does not seek costs.

1      Police v Tapara [1990] 3 NZLR 199 (HC).

2      Land Transport Act 1998, s 52(2)