Module 6 - Road Policing (Feb 2015)

Question 1

What is the Overriding Principle of Urgent Duty driving?

Answer 1

Employees must drive at an appropriate speed and manner and bear in mind that they:

• are individually legally responsible for their actions
• must prioritise public and police safety.

No duty is so urgent that it requires the public or police to be placed at unjustified risk.

Note: Constables must assess the risk of carrying non-constabulary passengers before undertaking urgent duty driving.

Question 2

What is Urgent Duty Driving?

Answer 2

Urgent duty driving is when a constable on duty is driving above the speed limit or the natural flow of traffic, and may not be complying with certain traffic rules and is:

either
• responding to a critical incident
• gathering evidence of an alleged offence
• apprehending an offender for a traffic or criminal offence
• apprehending a fleeing driver
• engaged in activities approved by the Commissioner in writing
AND
Are relying on the defences under the Land Transport (Road User) Rule 2004 (RUR) and the Land Transport Act 1998 (LTA) for not complying with certain traffic rules and regulations which would prevent the execution of that duty.

Question 3

What is a ‘critical incident’?

Answer 3

A ‘critical incident’ includes situations where:

• force or the threat of force is involved
• any person faces the risk of serious harm
• Police are responding to people in the act of committing a crime.

Question 4

What factors should be considered when undergoing Urgent Duty Driving?

Answer 4

Drivers must take all of the circumstances into account including the following factors when deciding to commence or continue urgent duty driving and to determine the appropriate speed and driving manner:

• time of the incident (is it in progress?)
• nature and seriousness of the incident
• proximity of other units to the incident
• environment, e.g. weather, traffic volume, road type, speed limit and pedestrians etc
• driver classification, vehicle classification and vehicle passengers
• whether warning devices are activated or a ‘tactical approach’ is being used.

Note: Situations may change, meaning drivers and constables who are passengers must constantly re-assess the situation considering the above factors in line with TENR, (the operational threat assessment tool). The manner and speed of driving must be adjusted accordingly (e.g. environmental conditions, incident seriousness or road speed limit).

Question 5

What is the New Zealand Police Policy on Warning Devices during Urgent Duty Driving?

Answer 5

Police must use flashing lights and sirens at all times (continuously) while undertaking urgent duty driving unless a ‘tactical approach’ is used.

Police must not rely on road users to take evasive action when warning lights and sirens are activated – they do not guarantee safety.

Question 6

What is a “Tactical Approach”?

Answer 6

A ‘tactical approach’ refers to urgent duty driving without the activation of either warning lights and/or sirens. Undertaking urgent duty driving without the activation of warning lights and/or sirens increases the road safety risks to police and public. Therefore, using a tactical approach is the exception rather than the rule. Vehicle speed and manner of driving must reflect and take into account the increased risks resulting from the absence of warning devices.

A tactical approach can involve:
• adjusting vehicle speed
• turning off or not activating the siren
• turning off or not activating the warning lights.

Using a tactical approach can be an advantage, allowing you to bring a patrol car closer to an offender/incident without alerting anyone of your arrival. This can also provide you with greater opportunities to gather evidence. Lights, sirens, engine noise may alert an offender or aggravate a situation.

For example:
• approaching a scene of a serious crime in progress, or
• attending a report of a suicidal person, or
• obtaining evidence of a speeding offence, where the offender’s driving is not dangerous and the risk of not using the warning devices is judged as low.

Any tactical approach must be proportional to the incident, in line with the TENR assessment, and be able to be executed safely.

A tactical approach, without lights or sirens whilst exceeding the speed limit or natural flow of traffic, can only be used in justifiable circumstances.

Notes:

• You will need to justify your decision to use a tactical approach should there be any subsequent investigation.
• If neither lights nor sirens are used, then the defences for proceeding against traffic signals or through intersections do not apply.

Note: A tactical approach cannot be used once a fleeing driver incident is initiated. Any deactivation of warning devices must be in line with the fleeing driver abandonment procedure.

Question 7

What are the responsibilities of a field supervisor when a member engages in Urgent Duty Driving?

Answer 7

• Manages Police performance relating to driving behaviour.
• Identifies and manages health and safety risks to those staff.
• Immediately reports policy breaches to their superior.
• Investigates and reports crashes involving a Police vehicle.

Question 8

What is the Overriding Principle in the Fleeing Driver Policy?

Answer 8

Public and staff safety takes precedence over the immediate apprehension of the offender.

Question 9

What is a Fleeing Driver risk assessment?

Answer 9

A risk assessment determines whether:
• a pursuit should be initiated, or
• if it has already been initiated, whether it should continue or be abandoned.

Given how quickly a pursuit can develop and circumstances change, assessing the risks must be a continuous process until the pursuit is resolved or abandoned. The communication procedure is designed to ensure that units involved in the pursuit of the fleeing driver provide situation reports (sit-reps) to the pursuit controller in a timely manner. This enables the pursuit controller to make an independent assessment of the risks and manage the pursuit including whether to direct the abandonment of the pursuit.

Risk assessment factors

You must carry out a risk assessment both prior to initiation and during a pursuit. The assessment must be based on the factors detailed in this table.

Risk factors Including…

Speed and manner of driving
• what is the speed limit?
• what is the manner of driving of the offending vehicle? Is it deteriorating or remaining the same?

Occupant characteristics
• is the offender known? Is there an immediate threat to public or staff safety?
• what offences have been committed or suspected of being committed?
• is it a stolen vehicle?
• how many occupants in the vehicle?
• how old are the occupants (observation only)?
• what is the condition of the offender’s vehicle (observation only)?
• are the occupants armed?

Weather conditions
• what are the driving conditions like?
• is it raining with slippery roads?
• is it dawn or dusk with a chance of sun strike?

Environment
• what is the location of the pursuit? Is it a built-up area, or near a school?
• what type of road is it?
• what potential hazards are there in the area?

Traffic conditions
• what are the traffic conditions like?
• what is the volume of traffic? Is it peak hour traffic?
• are there pedestrians around?
• what time of the day is the pursuit occurring?

Officer and vehicle capabilities
• is the driver an experienced officer? What is their PPDP classification?
• what type of Police vehicle is involved? What is the vehicle classification?
• is it a single-crewed unit?
• do they have hands-free radio?
• is a secondary unit available to take over pursuit commentary?
• are non-constabulary persons in the Police vehicle?

After considering these factors, determine whether the need to immediately apprehend the offender is outweighed by the potential risks of a pursuit to:

• the public
• the occupants of the pursued vehicle
• the occupants of your Police vehicle

If there is no need to immediately apprehend the fleeing driver or the risks are too great, a pursuit must not to be initiated, or should be abandoned.

If a pursuit is initiated, the driver (or Police passenger in the primary unit, if applicable) must advise Comms immediately. They must give details of the risk assessment as prompted by the dispatcher, using the communication procedure.

Question 10

What driver actions are required in regards to a Fleeing Driver incident?

Answer 10

1 Carry out a risk assessment.

2 Activate warning devices (lights and siren).

3 Inform Comms you have commenced a pursuit and maintain radio contact, as per communications procedure with the pre-alerting technique. If the unit is double-crewed this must be undertaken by the Police passenger.

4 Continually use the risk assessment factors to determine whether the need to immediately apprehend is outweighed by the risks posed by continuation of the pursuit. Where the risks outweigh the need to immediately apprehend, you must abandon pursuit.

5 You must follow the instructions of the pursuit controller and provide regular sit-reps to allow them to effectively manage the pursuit.

6 If the offending vehicle stops, ensure the vehicle is contained to prevent any risk of continuation.

7 When a pursuit is abandoned either as a result of the driver’s (or a Police passenger’s) decision, or on direction from the pursuit controller, the abandonment procedure must be followed.

Question 11

What steps must a Pursuit Controller take in a Fleeing Driver incident?

Answer 11

1 Ensure the pursuit warning is given by the dispatcher and acknowledged by the pursuing unit.

2 If the officer and vehicle classification allow, appoint the unit that initiated the pursuit as the primary unit. Replace unmarked vehicles (category B) in a pursuit with marked vehicles (category A) at the earliest opportunity. Ensure a secondary unit takes over the pursuit commentary if the primary unit is single-crewed.

3 Follow the communication procedure to ensure risk assessment information is received from the primary or secondary unit.

4 Constantly use the risk assessment information, to determine whether the need to immediate apprehend is outweighed by the risks posed by the continuation of the pursuit. Where this is the case, you must give the direction to abandon pursuit.

5 Direct the pursuit is abandoned if the identity of the offender(s) becomes known during the pursuit, the offender does not pose an immediate threat to public or staff safety, and can be apprehended later.

6 Limit the number of Police vehicles following to no more than two unless tactically appropriate (e.g. requirement of a dog handler in the vicinity).

7 Coordinate other units to support the primary and secondary units, and control traffic at critical points to maximise public and staff safety.

8 Arrange aerial surveillance where possible.

9 Consider and employ other tactical options as appropriate.

Question 12

What are the 4 roles and their definitions in the Fleeing Driver policy?

Answer 12

Primary unit driver - The driver of the lead Police vehicle pursuing the fleeing driver. This will usually be the driver of the unit that has initiated the pursuit, or the driver of a pursuit vehicle that has replaced the initial pursuit vehicle at the direction of the pursuit controller.

Police passenger - The Police constable who is a passenger in the primary unit.

Secondary unit - The second vehicle in the pursuit that follows the primary unit.

Pursuit controller - The shift commander at Comms who manages the pursuit. If a shift commander is unavailable, a team leader may take the role of pursuit controller. In exceptional circumstances, this may be a Police employee who is not a constable. In cases where the pursuit controller is not the shift commander, this must be reported to the Commissioner.

Question 13

What is a Field supervisors responsibilities during and after a pursuit?

Answer 13

During a pursuit
• Advise the pursuit controller of any relevant information.
• May recommend to the pursuit controller that the pursuit be abandoned.

Following a pursuit
• Has supervisory duties following a pursuit.
• Should take appropriate action to ensure compliance with this chapter. Any incidents of non-compliance must be reported immediately to their supervisor.
• Ensure the pursuit notification form is completed by the primary unit before the end of shift. If the primary unit is injured and unable to complete the form, the supervisor should complete.
• Review and approve the pursuit notification form in a timely manner.

Question 14

What tactical options are available during a Fleeing Driver incident?

Answer 14

Abandon pursuit - Initiated by: Driver, Police passenger, pursuit controller - Must be abandoned if directed by any of these people and abandonment procedure must be followed.

Tyre deflation devices - Initiated by: Pursuit controller to staff trained in this tactic except in exceptional circumstances. Comms Shift Commander for heavy vehicle deployments. - Refer to the tyre deflation device chapter.

Aerial surveillance - Initiated by: Pursuit controller - Must be used when available to take over responsibility of providing commentary to pursuit controller.

AOS/STG, noncompliant vehicle stop - Initiated by: AOS/STG commander - In response to a life threatening incident, must follow AOS/STG Standard Operating Procedures and only by those trained in the tactic.

Question 15

What is the principle of using Tyre Deflation Devices during a Fleeing Driver incident?

Answer 15

TDDs can only be deployed:

• on the authority of the pursuit controller; except in exceptional circumstances;
• on a heavy vehicle with the approval of the Comms Shift Commander; • in accordance with the tyre deflation device chapter; and
• by those staff who have been trained to use this tactic.

Caution: TDDs must not be used on motorcycles.

If a unit is positioned at a cordon point and the fleeing vehicle proceeds through that cordon, a tyre deflation device can be deployed to stop the vehicle, so long as the deployment is safe and meets the requirements of the tyre deflation device chapter.

Question 16

Who can abandon a pursuit?

Answer 16

The following role holders can abandon a pursuit:

• the driver of the primary unit
• the Police passenger in the primary unit, where they are senior in rank or service or PPDP classification to the driver
• the pursuit controller.

Note: in the case of a single-crewed primary unit, the secondary unit can recommend to the pursuit controller that the pursuit be abandoned.

The decision to abandon a pursuit by any staff member due to the escalating level of risk to themselves and other occupants of their vehicle, occupants in the offending vehicle, or members of the public will be supported by the organisation.

Question 17

What is the criteria for abandoning a pursuit?

Answer 17

A pursuit must be abandoned when any of the following criteria apply:

• an offender’s identity becomes known and apprehension can be effected later, so long as there is no immediate threat to public or staff safety or the fleeing vehicle’s location is no longer known
• the distance between the primary unit and the offending vehicle is such, that in order for the Police vehicle to catch up to it, the speed involved creates an additional risk, and Police no longer has the ability to warn other road users of the fleeing vehicle
• if a person is injured during the pursuit and there is no other unit available to render assistance
• there is a sustained loss of contact between the primary and/or secondary units with Comms, or the units fail to provide critical information to Comms in a timely manner
• when the siren and/or warning lights fail to operate
• any of the risk assessment criteria conditions change, such as an increase in traffic volumes or weather or road conditions, that mean the risks of continuing with the pursuit outweighs the need for immediate apprehension of the fleeing driver.

Question 18

What happens if a vehicle is located following the pursuit being abandoned?

Answer 18

If the vehicle is located
- If the offending vehicle is located during the search phase, the unit is permitted to signal the driver to stop. If the driver fails to stop and attempts to evade Police, approval from the pursuit controller to recommence the pursuit must be sought and received before the pursuit can continue.

Recommencing a pursuit
- An abandoned pursuit must not be recommenced without the approval of the pursuit controller.

Approval to recommence will only be considered if:
• the situation has changed following abandonment
• the risk assessment criteria indicates that the risks involved in the pursuit have reduced, so that the need to immediately apprehend the offender is no longer outweighed by the risks posed by recommencing the pursuit.

Question 19

What happens if a pursuit is abandoned?

Answer 19

On formal abandonment of the pursuit, Comms may authorise units to undertake a search to locate the offending vehicle.

Note: As the pursuit has been formally abandoned, there is no longer a justification for units to engage in urgent duty driving. Therefore, during the search phase units must not exceed the posted speed limit.

Question 20

What is Section 113, Land Transport Act 1998?

Answer 20

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:
(b) Regulations and rules and bylaws in force under any Acts mentioned in paragraph (a).

(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:
(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.

(3) An enforcement officer in uniform or wearing a distinctive cap, hat, or helmet, with a badge of authority affixed to it, who is for the time being engaged in the regulation of traffic on a road, may –
(a) direct a person using a vehicle or riding or driving an animal on the road to stop the vehicle or animal, as the case may be, or to cause it to proceed in or keep to a particular line of traffic or direction:
(b) direct a pedestrian not to proceed across the road in contravention of a direction to stop given by the enforcement officer (whether given to pedestrians or to pedestrians and other traffic).

(4) In paragraphs (c) and (d) of subsection (2), road includes any land vested in or under the control of the Crown or any local authority.

Question 21

What is Section 114, Land Transport Act 1998?

Answer 21

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.

Question 22

What is Section 119, Land Transport Act 1998?

Answer 22

Powers of entry

(1) An enforcement officer may exercise the powers conferred by subsection (2) if the enforcement officer –
(a) Has good cause to suspect that a person –
(i) Has contravened a request or requirement or demand made under section 114 (other than subsection (1)); and
(ii) Has also committed or is committing an offence against section 35(1)(a) or section 35(1)(b) (which relate to reckless or dangerous driving offences), or is, or has recently been, driving under the influence of drink or a drug, or both; and
(b) Is freshly pursuing that person.

(2) The enforcement officer may, without warrant, in the course of the pursuit enter, by force if necessary, any premises which the person has entered, for either or both of the following purposes:
(a) Determining whether or not a power conferred on an enforcement officer by section 68 or section 69 [ie in relation to EBA] should be exercised in respect of that person:
(b) Exercising or completing the exercise of any such power in respect of thatperson (as if the person were in a motor vehicle on a road).

(2A) The provisions of Part 4 of the Search and Surveillance Act 2012 [which sets out the general provisions regarding the exercise of search, surveillance and inspection powers] except subpart 3 [which relates to warrants] (except Subpart3) apply in respect of the power in subsection (2). [See generally “Police Rules and Obligations” and “Powers incidental to search” in Chapter 4: Search and Surveillance.]

(3) – (5) …
(7) An enforcement officer who enters any premises under this section may not exercise on those premises any power of arrest conferred by this Act other than a power of arrest conferred by any of sections 68(3), 69(6), and 120.

Question 23

What is Section 120, Land Transport Act 1998?

Answer 23

Arrest of persons for alcohol or drug-related offences, or assault on enforcement officer

(1) An enforcement officer may arrest a person without warrant if the officer has good cause to suspect that the person –
(a) Has committed an offence against any of sections 58 to 62; or
(b) Has assaulted that or any other enforcement officer while the officer was acting in the course of the officer’s official duties.

(1A) An enforcement officer may arrest a person without warrant if the person 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.

(2) A person assisting an enforcement officer may arrest without warrant a person referred to in subsection (1)(b).
(3) A person other than a sworn member of the Police who exercises any power of arrest conferred by this section must, as soon as practicable, deliver the arrested person into the custody of a sworn member of the Police.
(4) The obligation in subsection (3) does not apply until the completion of the exercise of any powers that may be exercised under this Act in respect of the arrested person or any vehicle driven by that person.
(5) The powers conferred by this section are in addition to any other powers of arrest under this Act.

Question 24

What is Section 121, Land Transport Act 1998?

Answer 24

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 person has undergone an evidential breath test and it appears to the enforcement officer that the test is positive, 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.

Question 25

What is Section 121A, Land Transport Act 1998?

Answer 25

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.

Question 26

What does the case R v Tapara (1998) relate to?

Answer 26

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.

Question 27

What does the case R v T (R v Thomas) (2001) relate to?

Answer 27

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.

Question 28

What does the case Johnston v Police (Masterton High Court, 1995) relate to?

Answer 28

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.

Question 29

What does the case Police v Duff (2010) relate to?

Answer 29

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.

Question 30

What does the case Page v Police (Auckland High Court, 2001) relate to?

Answer 30

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.

Question 31

What is Section 35, Policing Act 2008?

Answer 31

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).