Rudland v Police

[2012] NZHC 3077

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-164 [2012] NZHC 3077

BETWEEN  SIDNEY BROWN RUDLAND Appellant

ANDTHE POLICE Respondent

Hearing:         12 November 2012

Appearances: S Clarke for appellant

B Hamlin for respondent

Judgment:      20 November 2012

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 10 am on Tuesday 20 November 2012

Solicitors/counsel :

A Speed Auckland  [email protected]

Crown Solicitor Auckland  [email protected]

RUDLAND V POLICE HC AK CRI 2012-404-164 [20 November 2012]

Introduction

[1]      Following a trial before Judge Ingram in the Auckland District Court, the appellant was convicted of careless use of a motor vehicle and of failing to remain stopped for as long as was necessary for an enforcement officer to obtain particulars. He was sentenced to fines of $100 on each charge and ordered to pay Court costs of

$132.89.  He now appeals against his conviction on each charge.

Factual background

[2]      The facts are undisputed.  On 27 June 2011 at about 3 am, Sgt Fischer was in a marked patrol car in Maungakiekie Avenue, Greenlane.  The appellant drove his car up next to the patrol car and stopped in the centre of the road.   The officer motioned for him to continue, but the appellant did not. The officer then undertook a u-turn and drove around the front of the appellant’s car, so that the two drivers’ doors were in juxtaposition.  The sergeant said in evidence that he had a brief conversation with the appellant as to why he was driving in the area.  In so doing the officer noted that the appellant presented himself as behaving in an erratic manner in that “ … eyes were darting everywhere, his demeanour was very unusual”.

[3]      The officer then reversed his vehicle and lined his car up with the appellant’s vehicle, bonnet to bonnet.  He initiated his flashing blue and red lights and went up to the driver’s door to speak to the appellant.  Sgt Fischer then renewed his questions as to the appellant’s movements.  The appellant gave three explanations.   First he said that he had been working in South Auckland and was driving back to Glen Eden.  Then he said that he was a road worker working late.  Finally he said that he was not working at all.

[4]      Sgt  Fischer  said  that  by then he had  developed  some  concern  as  to  the appellant’s mental state and his ability to drive.  He asked for the appellant’s details. The appellant handed him his driver’s licence.  The sergeant intended going back to the police car in order to conduct a “QP” on the police radio.   “QP” connotes a

“query person” procedure whereby information about the identity of a person is supplied to the police communications centre, so that 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.

[5]      But Sgt Fischer did not immediately return to the police car for that purpose. He continued to speak to the appellant because he was becoming increasingly concerned about his behaviour.  He asked the appellant to step out of the vehicle and opened the door to facilitate his exit from the car.   The appellant began fidgeting with the key in the ignition.   Sgt Fischer told him twice to desist, but instead the appellant started the engine and immediately reversed, driving in an arc that required the officer to jump out of the way to avoid being struck by the open door of the vehicle.  The appellant drove off at speed.  A short time later he was located in his vehicle by another police officer who arrested him.

The District Court decision

[6]      The case for the appellant in the District Court focused on the argument that the officer had no power under the Land Transport Act 1998 (the Act) to open the door of the appellant’s vehicle.   By that time, it was argued, Sgt Fischer was not exercising any powers under that Act, and he had given no direction to the appellant to remain stopped.  It was contended that, in those circumstances there had been no lawful requirement to remain stopped, and the appellant was entitled to drive his vehicle away.

[7]      Judge Ingram accepted that in opening the door of the appellant, Sgt Fischer was not exercising any express power under the Act, but he held that no such power was required.  The officer was acting in the general discharge of his duties.  But, the Judge held, even if the officer’s action in opening the car door was unlawful, it did not follow that the appellant was simply entitled to drive his car away.  He held that, by his actions, the officer had made it plain to the appellant that he was to remain stopped, and that the officer was quite entitled to impose that requirement, both in order to ascertain whether the appellant was fit to drive, and in order to make a QP inquiry as to the currency of his driver’s licence.

[8]      During the course of his oral judgment, Judge Ingram said:

[12]      The circumstances here in the cold light of day, well after the event, may be susceptible to fine analysis, but that is hardly fair on the police.  The officer   was   confronted   with   circumstances   which   gave   him   very considerable concern about this particular driver.  The behaviour that he has described leaves me in no doubt that the officer would have been little short of being in dereliction of his duty if he had not carried out the inquiries that he was intending to carry out.

[13]      I do not accept that opening the door means that the whole exercise is unlawful and I do not accept that the officer’s powers to make enquiry under s 114 come to an end simply because he has opened the door and asked the man to step out.  He did so for a good reason, because it was clear to him, as he said in his evidence, that the driver was plainly intending to do something about going and failing to remain stopped.

[14]     In my view the officer was perfectly entitled to ask him to remain stopped, to leave the key alone, and I do not accept that there has been any substantial act on the part of the officer which means that the whole of the exercise was unlawful.  In any event the law prescribes (sic) the driver from leaving once he has been stopped.  In my view the officer’s enquiries were reasonable.   I can understand that they took time because of the erratic replies that he was receiving and he has described in evidence a period of time not exceeding three minutes in which all of these events occurred.

[15]     In order to establish this charge the police are required to establish that  he  was  a  police  officer  carrying  out  his  duty.   There  has  been  no challenge to that.  Secondly, they are required to establish that there was a stopping, and I accept that there was a stopping, particularly when the officer parked  his  vehicle  nose  to  nose  with  the  other  vehicle  and  began  to commence his enquiries.  I accept too that it was reasonably necessary for the officer to continue with his enquiries given what he was confronted with on the day.

[9]      The Judge also found the charge of careless driving to have been proved.  He said that no reasonably prudent motorist would drive off at high speed, causing his vehicle to travel in an arc, in such a manner that the officer was obliged to jump out of the way in order to avoid being hit either by the car door or the vehicle itself.

Counsel’s submissions

[10]     On appeal, Mr Clark relies on much the same argument as was advanced in the District Court.  He argues that, although the officer undoubtedly had the power to obtain the appellant’s driver’s licence, he was not entitled, having done so, to engage the appellant in further lengthy discussion.   Mr Clark accepts that the officer was entitled to a reasonable period within which to check the validity of the driver’s

licence on his police radio, but argues that at some point his entitlement to do so lapsed by efluxion of time.   At that stage, the officer had no continuing right to require the appellant to remain stopped.  The officer’s problems were compounded, Mr Clark submits, by his decision to open the door of the appellant’s car.  Mr Clark submits that was unlawful, there being no statutory authority to justify it.  In those circumstances, the appellant was entitled to make good his departure in the manner he did.  Accordingly, Mr Clark submits, he ought to have been acquitted on each charge.

[11]     For the respondent, Mr Hamlin submits that the officer had ample statutory authority for everything he did, principally within ss 114 and 121 of the Act and that the District Court Judge was plainly right.   Further, he says, there can be little argument but that the appellant was guilty of careless driving when he made his escape.

Discussion

[12]     Section 52(1)(c) of the Act provides that it is an offence for any person to fail to comply with any lawful requirement or direction given to him or her under the Act by an  enforcement  officer.[1]     The case for the  respondent  was  that  the  relevant requirement or direction was given under s 114 of the Act, which provides:

[1] See also s 13(5) of the Act.

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.

[13]     The powers contained in s 114 extend to stationary vehicles.  In other words, they are not limited to cases in which an enforcement officer directs the driver of a moving vehicle to stop his or her vehicle.[2]

[2] Cleeve v Police HC Auckland A/150/02, 6 November 2002.

[14]     The officer was entitled to require the appellant to remain stopped to enable him to complete the exercise of any powers conferred, or duties imposed on an enforcement officer under the Act.[3]     The officer’s actions in parking the police vehicle so that it was bonnet to bonnet with the appellant’s vehicle, and in activating the police vehicle’s red and blue lights, plainly amounted to an implied direction to

remain stopped.  Mr Clark does not argue otherwise.

[3] Land Transport Act 1998, s 114(2A).

[15]     It is implicit in the Act that inquiries may be made by an officer in order to ascertain whether there are any enforcement powers or duties to be exercised in respect  of the  enforcement  of the Act,  or other road  transport  purposes.    Such purposes would include whether the person is subject to a disqualification or restriction on his or her ability to drive, has any outstanding warrants, or whether the

vehicle is stolen.[4]

[4] Police v Duff [2010] NZAR 71 at [30]-[33].

[16]     The officer felt unable to make his QP inquiries immediately because he remained concerned about the mental state and driving ability of the appellant, and wished to engage him in further discussion in order to assist in the making of an assessment of the appellant’s condition.  Ultimately he opened the driver’s door and asked the appellant to alight.  He did so in order to facilitate his assessment of the appellant’s condition, which caused a delay in making the QP inquiry.

[17]     In evidence the officer said that the whole of his discussion with the appellant would have taken two to three minutes.  There was no challenge to that evidence.  In my view, it is not tenable to argue that, by the time the officer opened the appellant’s car door, his right to make a QP inquiry had been lost.

[18]     If the delay becomes attenuated, then it may well be that an officer may be held to be no longer engaged in road transport related inquiries, but that is not this case.   I note that s 114(5) imposes a time limit of 15 minutes in cases where the officer is solely engaged in establishing the identity of the driver.  Here, the officer had wider concerns, but the 15 minute period may be taken to provide some sort of yardstick as to what might be a permissible delay.

[19]     In the alternative, Mr Clark argues that Sgt Fischer’s discussion with the appellant, after the licence had been handed over and before the appellant was asked to alight from the car, was unrelated to the exercise of any powers and duties under the Act.  He says that, for example, questions about the appellant’s movements on the   night   cannot   be   related   directly   to   the   officer’s   enforcement   powers. Accordingly, Mr Clark submits, the delay although of relatively limited duration,

was unjustified by reference to any powers or duties under the Act.  It follows, he

argues,  that  the  officer’s  power  to  require  the  appellant  to  remain  stopped  had

expired.

[20]     As I understand it, this argument is subtly different from the first point, which simply turns on the length of the delay.  This second argument is to the effect that an enforcement officer must be engaged in enforcement powers or duties throughout the period for which a driver is required to remain stopped, and as soon as an officer is engaged in any activity not referable to enforcement powers or duties, then the power to require the driver to remain stopped ceases.

[21]     This argument must be considered against the relevant factual background. Section 121 of the Act provides:

121      Enforcement officer may immobilise vehicle, etc, [in specified circumstances]

(1)       An  enforcement  officer  may  exercise  all  or  any  of  the  powers conferred by subsection (2) if he or she believes on reasonable grounds that—

(a)      Either—

(i)        a person who is for the time being in charge of a motor vehicle, because of his or her physical or mental condition (however arising),—

(A)      is incapable of having proper control of the vehicle; or

(B)      does not complete a compulsory impairment test in a manner satisfactory to an enforcement officer, who is trained to give the test, when required to do so by an enforcement officer under section 71A; or

(C)      fails or refuses to undergo a compulsory impairment  test  when  required  to  do  so under section 71A; or]

(ii)      The  requirements  of  any  enactment  concerning [work  time  or  rest  time]  are  not  being  complied with; and

(b)       In  all  the  circumstances,  the  direction  or  prohibition  or action is necessary in the interests of that person or of any other person or of the public.

(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.

(3)       The period for which an enforcement officer forbids a person to drive under subsection (2)(a) must, where the result of an evidential breath test undergone by the person indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, be a period of 12 hours, unless the enforcement officer is satisfied that there is good reason for imposing a shorter prohibition.

(4)       An enforcement officer may arrest without warrant a person who fails to comply with a direction given under this section or does or attempts to do any act that is for the time being forbidden under this section.

[22]     The powers in s 121 may be exercised if an officer believes on reasonable grounds that a driver is incapable of having proper control of a vehicle by reason of his or her physical or mental condition (however arising).  Such belief can arise only where an officer has had a reasonable opportunity of making an assessment of the physical or mental condition of a driver.  As in this case, that may require the officer to engage in conversation with the driver concerned.

[23]     Sgt Fischer gave evidence that he became concerned about the appellant’s mental condition by reason of his appearance (and in particular the fact that his eyes were darting “all over the place”) and by reason of the inconsistent answers he gave about his movements that night.   He decided to delay going immediately to the police vehicle to make a QP inquiry in order to engage the appellant in further discussion, for the purpose of making an assessment about his fitness to drive.  In so doing, he was undertaking an activity related to his powers and duties under s 121.

[24]     During the course of the discussion, he decided to ask the appellant to alight

from his vehicle.  He opened the driver’s door to facilitate that.  Instead of alighting,

the appellant fiddled with his car keys and placed them in the ignition.  Sgt Fischer told the appellant not to fiddle with the keys, to refrain from starting the vehicle, and to get out of the car.  That was a further direction to remain stopped.  It was a lawful direction because the officer was engaged in making a s 121 assessment.

[25]     Mr Clark submits that the officer had no statutory power to open the car door, and that his action in doing so was therefore unlawful.  He argues that thereafter the officer was not acting lawfully and was not entitled to require the appellant to remain stopped.

[26]     I reject that submission. A police officer must have an implied power to give effect to powers expressly conferred by the Act.[5]   In my view, it was not unlawful for the officer to open the car door in order to facilitate the appellant’s exit from the vehicle, any more than it would be unlawful for a private citizen to open a car door for that purpose.  But even if the action was unlawful, it does not follow, in my view, that the power to require the appellant to remain stopped was lost.   The officer

remained engaged in the making of an assessment under s 121 which, in my opinion, constitutes “the exercise of any other power conferred on an enforcement officer by this Act” for the purposes of s 114(3)(a).

[5] R v Gillies CA470/05, 4 April 2006 at [12].

[27]     In summary, I am of the view that:

(a)      the officer’s actions in parking his vehicle immediately in front of the appellant’s vehicle, and operating the police car’s blue and red lights, amounted to an implied direction to remain stopped;

(b)      the  making  of  a  QP  inquiry  was  an  activity  connected  with  the

officer’s enforcement powers and duties;

(c)      the  appellant  was  obliged  to  remain  stopped  while  the  officer conducted that inquiry;

(d)the delay in making the inquiry was caused by the officer’s need to make an assessment of the appellant’s physical and mental condition for the purposes of s 121;

(e)      the total  period  of two  to  three minutes  during which  the officer engaged the appellant in conversation did not, of itself, lead to the termination of the officer’s right to require the appellant to remain stopped;

(f)      because the officer remained engaged throughout in activities which were related to his enforcement powers and duties, there was in the event, no relevant delay at all;

(g)the officer’s discussion with the appellant was intended to assist him in making an assessment of the driver’s mental and physical ability to drive, and was not totally irrelevant as was argued by Mr Clark;

(h)for the purpose of making a s 121 assessment, the officer had an implied power to ask the appellant to alight from the vehicle, and to open the car door to facilitate that;  and

(i)the officer expressly directed the appellant not to start his vehicle and to stop fidgeting with the ignition during their discussion.  That was a fresh direction to remain stopped.

[28]     It follows, in my view, that the appellant was obliged to remain stopped.  He failed to do that.  Instead, he started his vehicle in defiance of an express direction from Sgt Fischer, and drove away.  In so doing he committed the offence of failing to remain stopped. The Judge was perfectly correct to find that charge proved.

[29]     Mr Clark devoted much less time to the charge of careless driving.   There was unchallenged evidence from Sgt Fischer that he had to jump clear of the appellant’s vehicle in order to avoid being hit by the open car door, or by the vehicle

itself.  A prudent driver would not have driven in that fashion.  Judge Ingram was plainly right to convict the appellant on that charge also.

Result

[30]     For the forgoing reasons I consider that Judge Ingram was right to find each of these charges proved. The appeal is accordingly dismissed.

C J Allan J