Sharp v Police
[2014] NZHC 263
•24 February 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000326 [2014] NZHC 263
BETWEEN DESMOND SHARP Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 24 February 2014
Appearances: M F Tuilotolava for Appellant
J Roach for Respondent
Judgment: 24 February 2014
ORAL JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, Auckland
M F Tuilotolava, Auckland
SHARP v NZ POLICE [2014] NZHC 263 [24 February 2014]
[1] Following a defended hearing in the District Court at Manukau Mr Sharp was convicted of an offence under the Land Transport Act 1998, namely failing to give his name and address and other particulars on demand. The Justices of the Peace fined him $850 together with Court costs of $132.89.
[2] Mr Sharp appeals against conviction and sentence.
Background
[3] At approximately 9.30 in the morning of 8 November 2012 Police Constables Tapley and Cartwright were on patrol in a marked police car. As they approached the intersection of Bairds Road and Preston Road in Otara they noticed a silver Toyota car stopped on the left hand side of Bairds Road facing Preston Road near the intersection with Preston Road. The location of the vehicle and its condition had caught their attention. Constable Tapley activated the patrol car’s red and blue lights and pulled up behind the car to check its status and to see if it could be moved. There was no apparent sign of a driver. However, as Constable Cartwright arrived at the car he noticed Mr Sharp lying down in the driver’s seat which was reclined. The key was in the ignition.
[4] An exchange then followed between Constable Cartwright and Mr Sharp. Mr Sharp became agitated. Constable Tapley came to the assistance of Constable Cartwright. Constable Tapley asked Mr Sharp for his name and other details. Mr Sharp refused to provide the details. Subsequently Sergeant Baker arrived and a Ms Amelia Schaaf who said she was the owner of the vehicle and known to Mr Sharp also arrived at the scene.
[5] Mr Sharp was arrested during this process and charged with failing to comply with a lawful requirement under the Land Transport Act 1998 (the Act), namely failing to provide his name and other details.
The approach to this appeal against conviction
[6] As the information was laid on 9 November 2012 the appeal continues in accordance with the law before the Criminal Procedure Act 2011.1
[7] The appeal is by way of rehearing. The approach the Court should take is consistent with the Supreme Court’s direction in Austin, Nichols & Co Inc v Stichting Lodestar.2
The grounds of appeal
[8] In support of the appeal Ms Tuilotolava submitted:
(a) the Justices of the Peace did not make any findings of fact on the disputed evidence;
(b) the Justices of the Peace did not rule on the issue raised on the appellant’s behalf, namely that the requirement under s 113(2) of the Act to provide details can be satisfied by the owner of the vehicle providing the information; and
(c) the sentence was grossly excessive.
Discussion
[9] The offence is contained in s 52(1)(c) of the Act:
(1) A person commits an offence if the person—
...
(c) Fails or refuses to comply with any lawful requirement, direction, notice, request, or prohibition given to or imposed on him or her under this Act by an enforcement officer or a dangerous goods enforcement officer;
...
1 Criminal Procedure Act 2011, s 397(2).
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[10] The lawful requirement relied on by the prosecution in this case was s 113 of the Act which requires a person to provide their full name, full address, date of birth, occupation and telephone number or such other particulars as an enforcement officer may specify. Section 113 of the Act provides:
113 Enforcement officers may enforce transport legislation
(1) An enforcement officer in uniform or in possession of a warrant or other evidence of his or her authority as an enforcement officer may enforce the provisions of—
(a) … the Local Government Act 1974, [the Local Government Act 2002,] the [Road User Charges Act 2012], … the [Government Roading Powers Act 1989], the [Railways Act
2005], [the Land Transport Management Act 2003,] …, and this Act:
...
(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 [full name, full address, date of birth, occupation, and telephone number,] 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
...
(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:
...
How did the Justices of the Peace deal with the evidence?
[11] Ms Tuilotolava submitted that the Justices of the Peace failed to deal with a number of disputed facts. She identified the facts in dispute as:
(a) why the officers asked for the appellant’s details; (b) whether the car was in fact parked inappropriately;
(c) whether and to what extent the appellant’s witness Ms Schaaf provided Mr Sharp’s details to the police; and
(d) why the police proceeded with the arrest of Mr Sharp after initially indicating a warning was to be issued.
[12] With respect Ms Tuilotolava’s submissions about the above disputed facts (to the extent that there is any dispute) proceed on a misapprehension as to what was required to be proved to establish the charge against Mr Sharp in this case. A dispute as to the facts is only significant if the facts in issue are relevant to proof of the charge.
[13] To establish failure to comply with the lawful requirement in this case, the prosecution was required to establish beyond reasonable doubt the following elements:
(a) that an enforcement officer in uniform;
(b) in the course of enforcing the provisions of the Act;
(c) directed Mr Sharp to give his full name and other details;
(d) that Mr Sharp was on a road (whether or not in charge of a vehicle);
and
(e) that Mr Sharp refused to provide such information.
[14] There is no issue as to the officers being in uniform. Nor can there be any issue that the officers directed Mr Sharp to give his name and other details, that he was on a road, (initially at least in the car) and that he refused to provide the information requested.
[15] The only two issues raised really are first, whether the officers requested the information in the course of enforcing the provisions of the Act and second, whether the obligation could be satisfied by a third party (which is a question of law, rather than a question of fact in any event).
[16] The main thrust of the submissions as I apprehend them for Mr Sharp is that the officers were not seeking Mr Sharp’s details in the course of enforcing the provisions of the Act. Ms Tuilotolava effectively submitted the officers asked for Mr Sharp’s details because they suspected the vehicle might be stolen and they were seeking to obtain evidence to support a possible prosecution under the Crimes Act
1961 and such was an improper purpose. Ms Tuilotolava relies on some comments by the officers about the concern the car may have been stolen and also Ms Schaaf’s evidence of a discussion that she had with Sergeant Baker. However, Ms Schaaf’s evidence about her discussion with Sergeant Baker on this point is of little assistance. Both she and Sergeant Baker arrived after the officers had asked Mr Sharp for his details. Constable Cartwright confirmed that. The direct evidence on the discussion before that comes from Constables Tapley and Cartwright. They are the ones who first dealt with and spoke to Mr Sharp. Mr Sharp did not himself give evidence.
[17] Constable Cartwright gave evidence that when they came across the car he considered it was parked in an inconsiderate position. He described the last corner before Preston Road:
[i]t’s almost blind, so as you come around the corner this car was right there. Had there been any vehicle turning into Bairds Road from Preston Road the, the car was in such a place that it could possibly cause a collision between two vehicles if they were, one was going towards Preston and one was coming from Preston. Just in the, how it was sticking out.
Constable Cartwright approached the car with a view to checking it out and, on finding Mr Sharp in it, decided to ask Mr Sharp his details. Mr Sharp responded aggressively and refused to supply them.
[18] Constable Tapley said he took over dealing with Mr Sharp, because he was more senior to Constable Cartwright and that:
I explained to him that as a road user in control of a vehicle as he was he was obligated to give me his name, address and date of birth and to give me the details of the owner of the vehicle.
And later:
A. Under the Land Transport Act section 113 I believe it is, I have the power to do a number of things including moving vehicles et cetera and one of the, the primary powers of that is to direct – demand details of the person on the road?
When asked why did he exercise that power, his answer was:
A. He was a road user. I had issues with where the vehicle was parked and who the owner may or may not be and I needed to confirm his details and that he was able – eligible to be in control of a motor vehicle.
[19] In relation to the suggestion or submission by Ms Tuilotolava that the photographs showed that there was no such danger I do accept her point that the evidence discloses the car was not parked on yellow lines but the officers consistently repeated their concern at where the vehicle was parked and the need to move it.
[20] Constable Tapley said again when asked why he believed he could ask Mr
Sharp for his details that it was
because he was in control of a vehicle that was, (a) looked like it had potentially been dumped, and (b) was so close to another intersection and causing obstructions of vehicles that’s why.
And then later noted that the vehicle was inconvenient to other road users and looked like it had been abandoned.
[21] I note, as Mr Roach submitted, that s 113(2)(c) enables police officers to shift a car in those circumstances. I also note that later Constable Tapley had said he actually showed Mr Sharp the card detailing his powers under s 113 of the Act, which supports a finding that the officers were acting in accordance with that section, rather than for any improper purpose as Ms Tuilotolava submitted.
[22] On the officers’ evidence Mr Sharp’s details were required because he was in charge of a car that was parked (or stationary) in a potentially dangerous situation. They also required his details to check he was licensed to drive it. Both are proper considerations under the Act and even if, putting the matter as high as it might be put on behalf of the appellant, the further observations and inquiries might have led them to suspect the vehicle was stolen, that was a collateral concern, which would not have affected their concern and need to shift the vehicle for road safety issues in any event. In accordance with that they were entitled to request the details under s 113 of the Act. There was more than sufficient evidence before the Court for the Justices of the Peace to be satisfied beyond reasonable doubt that the request for details was in
accordance with enforcing the provisions of the Act.
[23] Both counsel referred to the case of Baker v Ministry of Transport.3
In that
case Mr Baker had stopped short of a routine police checkpoint and left his vehicle. The police considered he was avoiding the check point. They approached him and asked for his name. He refused, saying he had done nothing wrong. On appeal Mr Baker submitted that the Act should not be construed to give power to require a person to supply their name and address unless the person had done something wrong or there were reasonable grounds in the officer’s mind for thinking that the person had done something wrong. Tipping J rejected that submissions for the appellant on the basis it would lead to a reading down of the clear words of the then
equivalent of s 113.
[24] While accepting that if it could be shown the power had been used for some quite different or collateral or improper purpose the Court may be of the view the
power had been wrongly exercised. Tipping J rejected that submission on the facts.
3 Baker v Ministry of Transport (1988) 3 CRNZ 169.
[25] In the present case, in light of the constables’ evidence I too reject the submission for Mr Sharp that the police officers were effectively exercising their powers for an improper purpose.
[26] As Mr Roach submitted, Parliament has made its intention clear. In the recent amendment on 1 December 2009 Parliament clarified the requirement now is for the provision of full name, full address, and other details as opposed to the previous provision which only required name and address and date of birth. There is no requirement in the Act for the police to provide reasons why they ask for the details. In this case they did. Police are not required to justify their reasons. To the extent that their reasons were put in issue at the hearing there was evidence that there were proper road safety and land transport concerns which justified the request under s 113.
[27] Ms Tuilotolava criticised the Justices of the Peace for failing to set out their
reasons for accepting the officer’s evidence, referring to McKelvie v Police.4
just said in this case that they accepted the evidence of the officers.
They
[28] I accept it would have been preferable for the Justices of the Peace to identify the aspects of the evidence they relied on and why, but I do not consider their failure
to articulate their reasons to be fatal to the conviction in this case.
[29] It is important to note that in McKelvie v NZ Police5 Wild J was faced with the situation where there was a clear conflict in evidence. The Justices of the Peace did not address that conflict. Instead they just referred to giving “credence” to the evidence of the constable when it was clearly unreliable on one aspect. In the present case there is really no conflict in relation to the essential elements of the charge, namely that the police requested details from Mr Sharp and Mr Sharp failed to provide them. There was ample evidence from the officers that they had proper reasons under the Act to ask Mr Sharp for his details. The overwhelming evidence was that the purpose behind their request for the details was in Constable Tapley’s
evidence:
4 McKelvie v Police HC Blenheim CRI-2009-406-000005, 27 April 2010.
5 McKelvie v NZ Police HC Blenheim CRI-2009-406-000005, 27 April 2010.
I called my sergeant down to the scene to, to try and help us, yeah, just – all
– ultimately all we wanted was this person’s name, details and for the car to be moved somewhere else.
[30] The Justices of the Peace accepted the overall evidence and there was no effective conflict of relevant evidence in relation to the elements of the offence.
[31] The next ground of appeal is that there was a dispute as to why Mr Sharp was not dealt with by a warning rather than being charged. I consider this to be a red herring. On Constable Tapley’s evidence Mr Sharp was arrested before the discussion about a warning with Sergeant Baker took place but in any event it was a matter for discretion of the police how they dealt with Mr Sharp’s refusal to comply with his statutory requirements under s 113 of the Act. They were entitled to arrest and charge Mr Sharp given his refusal to comply with the obligation on him.
[32] Next, Ms Tuilotolava submitted that in fact Mr Sharp’s details had been provided. They had been provided by his friend Ms Schaaf who gave the information as to Mr Sharp’s name, his address, his approximately age, place of birth and she also confirmed she was the owner of the car. Ms Tuilotolava submitted those details were given in response to a request by the police, Sergeant Baker in particular. However the evidence does not support that submission. There is no evidence that I see of any direct request of Ms Schaaf to provide the information.
[33] On her evidence she was asked to assist the police to obtain Mr Sharp’s co- operation and for Mr Sharp to provide that information. That is quite a different matter. The issue in this case is whether Mr Sharp complied with the requirement on him.
[34] In any event Constable Cartwright’s evidence was that the details provided by Ms Schaaf were not sufficient to identify Mr Sharp. But even accepting for present purposes that she had provided full details it is irrelevant to whether or not Mr Sharp had committed the offence he was charged with. At the relevant time Mr Sharp was a person on the road. He was required by the constables to give his full name, full address and date of birth yet refused to do so. Under s 113 the obligation was on Mr Sharp to provide those details. The wording of the section is plain. I do not accept
that the section can be construed as Ms Tuilotolava submitted, to enable an interested third party to provide that information on behalf of the person to whom the question is directed. The section requires details from a person but the person to provide the details is the person to whom the request has been directed. Under s 113 the obligation was on Mr Sharp in this case. It can be no excuse or defence to the charge Mr Sharp faced that someone else purported to provide the details on his behalf. The obligation was his not Mr Schaaf ’s. If Parliament had intended the obligation could be satisfied by a third person it would have said so. It has chosen not to.
[35] For those reasons the appeal against conviction must be dismissed.
The appeal against sentence
[36] The maximum penalty for breaching s 52(1)(c) of the Act is a fine not exceeding $10,000. Mr Tuilotolava referred to the case of Garnham v NZ Police6
where a submission of a fine of $600 was excessive was dismissed, and the case of
Cowlishaw v NZ Police7
where a fine of $200 was stated to be not manifestly
excessive. She also noted that as a result of this incident Mr Sharp had spent overnight in custody. There is no reference to that in the sentencing decision of the Justices of the Peace. However it does appear that the reason Mr Sharp spent the night in custody is because of the ongoing difficulty the police had in establishing Mr Sharp’s identity. To that extent it might be said he has been the author of his own
misfortune in that regard.
[37] In terms of the fine of $850, as Mr Roach submitted, that is less than 10 per cent of the maximum fine. While s 52 deals with a broad range of potential offending, it is still difficult in those circumstances to categorise this fine as clearly
excessive in the circumstances of this case.
[38] In the present case there was no attempt by Mr Sharp to comply with the requirement on him. This is not a case of an initial nor minor refusal with subsequent full compliance for instance. Mr Sharp was, on the evidence,
antagonistic throughout. He was difficult to deal with. He moved around so much
6 Garnham v NZ Police HC Wellington CRI-2012-485-000098, 18 December 2012.
7 Cowlishaw v NZ Police HC Auckland CRI-2008-404-000090, 20 May 2008.
the officers felt constrained to call in Senior Sergeant Baker. In the circumstances a fine of $850, while towards the upper end for such an offence, is not clearly
excessive. The appeal against sentence is also dismissed.
Venning J
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