Module 6 - Road Policing (Feb 2015) Flashcards

Question

What is Section 121A, Land Transport Act 1998?

Answer 1

Enforcement officer may give directions or immobilise vehicle if driver breaches certain licence conditions (1) An enforcement officer may exercise all or any of the powers conferred by subsection (2) if the enforcement officer believes on reasonable grounds that a person who is for the time being in charge of a motor vehicle has, in relation to a prescribed class of motor vehicle, breached any condition of a class 1 or class 6 learner licence or a restricted licence held by that person. (2) The enforcement officer may— (a) forbid the person to drive a motor vehicle until that person is able to comply with the conditions of that person’s learner licence or restricted licence: (b) direct the person to drive to a specified place (for example, the person’s home): (c) take possession of all ignition or other keys of the vehicle, and for that purpose require the person to deliver up immediately all such keys: (d) take any steps that may be necessary to make the motor vehicle immobile or to move the motor vehicle to a place where it does not constitute a traffic hazard. (3) An enforcement officer may arrest without warrant a person who fails to comply with a power exercised under subsection (2). (4) The power to take possession under subsection (2)(c) or to immobilise or move under subsection (2)(d) continues until— (a) the driver is able to drive the vehicle without breaching the conditions of that driver’s licence; or (b) another person is able to drive the vehicle without breaching— (i) that person’s licence: (ii) any enactment.

Answer 2

stopping vehicles, s 114 (formerly s66 Transport Act 1962) Facts The accused had appealed against conviction on two charges of being the user of a motor vehicle who failed to stop at the request of a constable contrary to section 66(2) of the Transport Act 1962 (now s 114 Land Transport Act 1998) and wilfully trespassing in a hotel within two years of being warned to stay off those premises. The accused was seen driving his car by two constables who recognised the passenger in the accused’s car. The constables wished to speak to the passenger and endeavoured to get the accused to stop his vehicle. They used their flashing lights and at one stage got alongside the accused’s vehicle and yelled at him to stop but he refused to do so. He then drove to the wholesale bottle store of a local hotel which then gave rise to the second charge of wilful trespass. The issues before the Court were whether the police constables had the power to require the accused to stop for a purpose which was not related to the accused or his driving of the vehicle. They simply wished to interview a passenger in the car. The second issue was simply whether the accused could become a trespasser by driving onto the hotel premises after he had been warned to stay off those premises that morning. Held It was submitted for the Crown that what is now s 114 of the Land Transport Act 1998 entitles a police constable or traffic officer to stop a vehicle for any purpose at all. Counsel for the accused submitted that the ambit of section 66 must be confined to purposes arising under the provision of the Transport Act itself. Gallen J, referred to Po v Ministry of Transport (1987) 2 NZLR 756, 758) where Cooke P, said: “Stopping a driver or obtaining a name or 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 restricted to the enforcement or administration of any particular provision.” Gallen J, went on to state: “Clearly the obligations other than stopping are directed towards matters related to the operation of the vehicle and I think this in itself tends to colour the obligation to stop. One can accept, as did the Court of Appeal in Po v Ministry of Transport, that the driving of a motor vehicle imports certain obligations in relation to the operation of the vehicle and the standard of driving, but that is not to say s 66 confers completely unrestricted rights to interfere with the activities of the citizen apart from those obligations. There are analogies with the powers of arrest and the courts have always been astute that such an interference with the rights of the individual must be conducted within strict limits and within defined parameters – see for example the decision of the Court of Appeal in Blundell v Attorney-General (1968) NZLR 341. Against that background I think it is inconceivable that Parliament could have intended to provide a completely unrestricted right under provisions of s 66 of the Transport Act, a right which … would allow even capricious stopping.” His honour went on to say that as the constables were not concerned with any aspect of the Transport Act but simply wished to talk to the passenger of the vehicle they could not rely on their power under s 66 to stop the vehicle.

Answer 3

684 – stopping vehicles, s 114 LTA and ss 314B and 317A Crimes Act Background Police observed a vehicle changing lanes without any indication and failing to proceed through an intersection when the traffic lights turned green. Before stopping the vehicle, a check on the registered owner revealed that he had drug convictions. Police allowed the vehicle to travel for a significant distance (approximately 3.8km) from the intersection where they had initially observed it before pulling it over. After stopping the vehicle the officer smelt cannabis from within the vehicle and invoked s 18(2) and (3) of the Misuse of Drugs Act 1975. During the search a bag was located in the vehicle that contained 70.5g of cannabis plant. Also located was a small set of scales, five syringes, a number of medical swabs and $650 in cash. The District Court held that the vehicle was not stopped because of a concern that the driver was alcohol impaired, rather the officer had become suspicious that the vehicle was owned by someone with drug convictions and decided to stop it. The stopping of the vehicle was held be unlawful, however, the evidence obtained as a result of the subsequent search was held to be admissible in the circumstances. Appeal T appealed on the basis that the judge erred in allowing the evidence obtained to be admitted. Decision The Court of Appeal overturned the District Court decision, ruling the evidence inadmissible and held: * The smelling of the cannabis was directly linked to and tainted by the earlier illegal stopping. There was an interconnected sequence of events, there had not been an act independent of the unlawful stopping that could properly give rise to a search under the Misuse of Drugs Act. * There was no legal basis for the constable to believe he had the power to stop the vehicle acting on a simple hunch (road safety concerns were found not to be a significant reason for stopping the vehicle). * The seriousness of the intrusion in the circumstances on individual interests outweighed the importance of the legitimate state interests in continuing with the prosecution and accordingly the search was unreasonable. Comment There is a general power to stop vehicles under s 121(1) of the Search and Surveillance Act 2012 (see Chapter 4: Search and Surveillance at page 21) for the purpose of conducting a statutory search if certain prerequisites are met. There is also a power to stop vehicles under s 9 of that Act for the purpose of arresting persons if they are unlawfully at large or have committed an offence punishable by imprisonment. Staff must ensure that they are familiar with the requirements of these two provisions and their statutory search powers. It is not lawful to use s 114 of the Land Transport Act 1998 to stop a vehicle for a purpose unrelated to traffic enforcement. Every vehicle stop must be able to be legally justified. Staff must be clear in their minds what power they are using before stopping a vehicle.

Answer 4

stopping vehicles, s 114 procedure Facts Two police officers, not in uniform and in an unmarked patrol car, stopped a vehicle for the purpose of checking its road-worthiness. While speaking to the occupants, one of the officers noticed a toolbox in the back seat of the vehicle, which he suspected was stolen. When questioned, the driver was asked to accompany the officer back to the station for questioning and, on his refusal to do so, was arrested on suspicion of theft. Immediately upon arrest the officers began a search of the driver’s person, but before it could be completed he ran away. He was caught a short time later and ultimately convicted of theft and escaping from lawful custody. Appeal This was an appeal to the High Court. The appellant (driver) challenged the legality of the initial stopping of the vehicle, his subsequent arrest, and the search of his person by the officers. Decision The High Court considered section 66 of the Transport Act 1962 (now s 114 Land Transport Act 1998), and noted the requirement that officers be in uniform, be wearing police headgear, or be using flashing blue or blue and red lights and sounding a siren when conducting a stop under the section. The evidence disclosed, however, that the officer were not in uniform, and had not used any lights or (seemingly) siren in stopping the appellant’s vehicle. The Court held that the procedural requirements of what is now s 114 are not merely technical, and that the failure to observe the elementary requirements of the section meant that the stopping of the vehicle was unlawful, and was an arbitrary detention in breach of section 22 of the NZ Bill of Rights Act 1990. The evidence resulting from the breach was therefore inadmissible, and both convictions would be quashed. Comment This decision serves as a reminder that there is no general power to stop motor vehicles outside the clear statutory powers. CIB and other non-uniform members should take particular note of the procedural requirements relating to identification contained in section 114 if future decisions similar to this are to be avoided.

Answer 5

Conducting inquiries at the road side; s 114 Background On 13 September 2007 Duff was directed to pull over when he was observed driving in excess of 100 km/hr. Constable F stopped Duff pursuant to s 114 of the Land Transport Act 1998 (LTA) and asked him to provide his address and driver licence. Duff did so. Constable F said she requested Duff to remain stopped while she sought to undertake a query person (QP) procedure. Duff drove away. He was pursued, stopped, and arrested by Constable F for failing to remain stopped (the first occasion) and failing to stop (the second occasion). District Court Proceedings In the District Court, McGuire J found that Constable F’s request that Duff remain stopped so that she could make a QP request went beyond the parameters of s 114. McGuire J found Duff was entitled to leave when he did. Police appealed. High Court Proceedings On appeal, the Crown argued that while s 114 of the LTA provides the basis on which a driver is required to stop; to permit an enforcement officer to “ complete the exercise of any powers conferred, or duties imposed..”, the powers to enforce transport legislation are derived from s 113 of the Act, and those powers are expressed in non-exhaustive terms. Powers that may be exercised under s 113(2) include requiring a driver to give his or her particulars, inspecting and testing any part of a vehicle on the road, moving the vehicle off the road, and forbidding an unlicensed driver to drive. The Crown argued that Po v Ministry of Transport [1987] 2 NZLR 756 (CA) gives enforcement officers (including police constables) a ‘more malleable’ power to make inquiries of the driver, provided that the driver is not stopped for an unreasonable period of time. The Crown argued 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.” Decision of High Court The Court agreed that the statements of principle to be found in Po and other cases: “.. support the proposition that the s 114 power to stop and require a driver to remain stopped may be exercised for reasons that go beyond the obtaining of information of the type referred to in s 114(3) and (5), so long as they are exercised for road transport purposes.” His Honour continued: “...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.” The authority to complete enforcement powers or duties must mean that an enforcement officer may make inquiries to determine if there are any enforcement powers or duties to exercise. His Honour found that the inquiries an enforcement officer is entitled to make are: “..those relating to the enforcement of the Act; or, road transport purposes...”. His Honour continued: “The existence or otherwise of any warrant for the arrest of the driver is another line of legitimate inquiry. There is no good reason why a person who is subject to a warrant for arrest for murder should escape detection because an enquiry 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.” Comment Section 114 permits any uniformed enforcement officer to stop a vehicle by use of lights or a siren (s 114(2)). The driver must remain stopped as long as reasonably required for completion of the exercise of any powers conferred or duties imposed on the enforcement officer (s 114(2A)) (all police constables are enforcement officers). If requested by an enforcement officer, a driver is required to provide his or her name and address and date of birth, advise whether he or she is the owner of the vehicle and, if not the owner, provide known details about the vehicle’s ownership (s 114(3)). The duty to remain stopped is required only for as long as it is reasonably necessary to enable the officer to establish the identity of the driver, but not longer than 15 minutes (s 114(5)). Duff provides that an enforcement officer may undertake inquiries in accordance with section 114(2A) of the LTA, and that subsection (5) is subject to subsections (2A) and (3). So, a driver may be stopped for as long as is reasonably necessary for an enforcement officer to complete the exercise of any powers conferred, or duties imposed, under the LTA. Such powers and duties include the making of inquiries to determine whether any powers or duties are to be exercised. Furthermore, Duff suggests that an enforcement officer who, as a result of inquiries, learns that a motorist is subject to any outstanding warrant may take appropriate action. Any further inquiry made while the driver is stopped may be subject to review, on the grounds of relevance and good faith.

Answer 6

Failure to identify; s 119 Facts The appellant was driving from a local tavern to his home nearby at night. He did not have his headlights on. This was observed by a police patrol travelling in the opposite direction. The police activated the flashing lights on the police vehicle. Shortly thereafter, the appellant entered a long drive leading to his home. The police car followed and drew up alongside in front of the appellant's home. The appellant was accosted and admitted that he had been drinking. His wife probably emerged from the house and had some words with the police. The appellant was tested, whether it was with the breathalyser was disputed, and required to go to the Pukekohe police station to provide an evidential breath test, which proved positive. The Appellant was then convicted of one count of Excess Breath Alcohol. The appellant appealed his conviction, arguing that the Police were not entitled to carry out breath test on his property nor require him to accompany them to police station. The High Court accepted that. The Police were entitled, without a warrant in the course of the pursuit, to enter the appellant's premises did have the capacity to enter the property pursuant to s119. The enforcement officer had good cause to suspect that the appellant had contravened s 114 because he had not stopped when pursued by a police car with flashing lights. Furthermore, the enforcement officer was ‘clearly freshly pursuing the appellant’. However, on this occasion the Police had not complied with all requirements of s119. In particular. (per Smellie J): Subs.(6) places upon an enforcement officer in such circumstances an inescapable duty to identify himself (a point not taken by the appellant) and to tell the person pursued and the occupant of the premises entered that the power of entry is being exercised pursuant to s 119 of the Act. In the circumstances of this case it is clear that the police failed to discharge their duty under subs.(6)(b) of s.119 to inform the appellant and probably his wife when she emerged from the house, that the power of entry was being exercised under s 119 of the Land Transport Act 1998. In my judgment there can be no question but that it is a mandatory duty, undoubtedly enacted because the powers given cut across cherished common law rights of property and privacy. Held There is no suggestion that the police entered pursuant to an implied licence; the police car appears to have been in hot pursuit; viewed objectively, the pursuit down the drive and the preventing of P entering his house occurred on the strength of s 119 Land Transport Act 1998 (“LTA”), which Parliament clearly intended to be available in such circumstances; however s 119 LTA places upon the officer in such circumstances an inescapable duty to identify himself and to tell the person pursued and the occupant of the premises that the power of entry is being exercised under the section; the police failed to discharge that duty; the police were unlawfully on P’s property; Appeal allowed.

Answer 7

Temporary closing of roads (1) A constable may temporarily close to traffic any road, or part of a road, leading to or from or in the vicinity of a place, if the constable has reasonable cause to believe that— (a) public disorder exists or is imminent at or near that place; or (b) danger to a member of the public exists or may reasonably be expected at or near that place; or (c) an offence punishable by 10 or more years' imprisonment has been committed or discovered at or near that place. (2) In this section,— road has the meaning given in section 315(1) of the Local Government Act 1974 except that it includes— (a) a motorway within the meaning of section 2 of the Transit New Zealand Act 1989; and (b) a private road within the meaning of section 315(1) of the Local Government Act 1974; and (c) a private way within the meaning of section 315(1) of the Local Government Act 1974 Temporarily means for a period that is reasonably necessary in the circumstances Traffic means all or any specified type of traffic (including pedestrian traffic).