Attorney-General v Jones [2001] NZCA 322; (2001) 15 PRNZ 347 (13 August 2001)

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Attorney-General v Jones [2001] NZCA 322 (13 August 2001); (2001) 15 PRNZ 347

Last Updated: 12 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA7/01

	BETWEEN	HER MAJESTY’S ATTORNEY-GENERAL SUED ON BEHALF OF NEW ZEALAND POLICE
		Appellant

	AND	ROBERT EDWARD JONES
		Respondent

Hearing:	31 July 2001
Coram:	Gault J Keith J Blanchard J
Appearances:	D J Boldt and G Stanish for the Appellant M P Reed QC and P A Morten for the Respondent
Judgment:	13 August 2001

JUDGMENT OF THE COURT DELIVERED BY KEITH J

Introduction

[1] Sir Robert Jones, the respondent in this Court, brought proceedings against the Attorney-General in respect of actions of the New Zealand Police. He was driving his partner and two sons along the Petone foreshore on his way to Wellington Airport. His sons were returning to Sydney where they lived. He was twice stopped by a police officer who had been following him in a marked police car. The statement of claim is based on the actions of the police officer during the period of the stoppings and alleges unlawful detention, false imprisonment, arbitrary detention, unreasonable search and seizure, negligence and, in an addition made in an amended statement of claim filed the day before the hearing in this Court, misfeasance in a public office.
[2] Master Thompson rejected the Attorney-General’s application for summary judgment under Rule 136(2) of the High Court Rules, essentially because he did not consider that he could resolve some critical questions of fact on the affidavits before him. The Attorney-General appeals.

The defendant’s application for summary judgment

[3] The ability of a defendant to apply for a summary judgment was added to the corresponding ability of the plaintiff by an amendment made to the rules in 1998. Rule 136 now reads as follows:

136. Judgment where there is no defence or where no cause of action can succeed

(1) The Court may give judgment against a defendant if the plaintiff satisfies the Court that the defendant has no defence to a claim in the statement of claim or to a particular part of any such claim.

(2) The Court may give judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed.

[4] This Court has considered the new power in two cases – Westpac Banking Corporation v M M Kembla (New Zealand) Ltd [2001] 2 NZLR 298 and Bernard v Space 2000 Ltd (CA232/00, 5 July 2001). We begin with the broad proposition that plaintiffs have the right to have their claims disposed of following a fair hearing by the court with jurisdiction over the claims. In the present case that principle is emphasised by s27 of the New Zealand Bill of Rights Act 1990. More generally, it is supported by the consideration that a ruling against the plaintiff on a summary judgment application creates an issue estoppel. By contrast a successful application to strike out the whole or part of a statement of claim does not have that consequence.
[5] The two earlier decisions of this Court help identify the following relevant features of the power:

1. The court may grant the defendant summary judgment only if the defendant has satisfied it that “none of the causes of action” can succeed; by contrast the plaintiff’s application may be made in respect of the defence to a particular part of the claim as well as to the claim as a whole.
2. The test is that none of the causes “can succeed” by contrast to the English rule considered for instance in Swain v Hillman [2001] 1 All ER 91 and Three Rivers District Council v Bank of England (No. 3) [2001] UKHL 16; [2001] 2 All ER 513, which requires the showing that the particular claim or the whole claim has “no real prospect” of being successful; that may however be a distinction of no practical consequence and those judgments do valuably stress the need to see whether the plaintiff has a realistic, as opposed to a fanciful, prospect of success.
3. The power was added to the existing power to strike out proceedings, a power ordinarily exercisable without any reference at all to the evidence; it was plainly intended to enable proceedings to be brought to an end by reference to compelling evidence.
4. A summary judgment application will not however succeed where the court cannot confidently resolve disputed facts; the court must be satisfied that none of the claims can succeed; it is not enough that they are shown to have weaknesses; the assessment to be made is not one to be arrived at on the fine balance of the available evidence.
5. While the plaintiff does not have to put up any evidence at all, if the defendant supplies evidence which would satisfy the court that the claim cannot succeed, the plaintiff will usually have to respond with credible evidence.

[6] The Master concluded that there were strongly contested factual matters on the affidavits which could not be resolved. Referring to the Westpac proposition that the application is not to be accepted simply on the basis that the plaintiff’s case has weaknesses and that the assessment is not to be made on a fine balance of the available evidence as is appropriate at trial, he was satisfied that the defendant had not been able to establish that none of the plaintiff’s causes of action could succeed. He accordingly dismissed the application.

The facts

[7] On a holiday afternoon a police officer, Constable Dankl, was following the plaintiff’s car. She said in her affidavit that she saw the car which was following a small truck move to the right on two occasions, on the first with the right hand wheels partly crossing the white centre line on a bridge and, on the second, fully crossing it by a few inches. Sir Robert’s evidence is that he did move to the right, but on both occasions in a part of the road where there was a concrete median barrier. He also said that he was travelling at 15 to 20 km/h (and not at 40 to 50 km/h as the police officer said) and was trying to ascertain the reason for the traffic slowing. The police officer said that she became concerned about the way the car was driving. Her immediate thought was that the driver might be intoxicated or that there might be some other problem either with the car or the truck in front. Crossing the centre line could be a sign that the driver has had too much to drink and was unlawful in itself unless the vehicle was overtaking. At the very least the driver was showing signs of impatience.
[8] Her evidence is that when the car had reached an area in which it could stop without impeding the flow of traffic she activated her flashing lights and signalled it to stop. She did that under s114 of the Land Transport Act 1998. If there was no sign of alcohol impairment and no other problem she intended to check the licence of the driver and send him on his way, a process normally completed very quickly.
[9] The plaintiff’s evidence is that when he learned of the police officer’s explanation for stopping, “namely her expressed curiosity for my slight movement to the right, I inquired of her whether this was illegal. She refused to answer, and her attitude then became one of obstructive derision”. He testifies that her attitude was calculated to further annoy him and his passengers in some form of vengeance for his daring to question her reason for stopping the vehicle. He says that her statement that his vehicle had partly crossed the white centre line into an oncoming line of traffic was “a falsehood ... invented sometime into our conversation when I persisted in seeking an answer ... whether moving slightly to the right was illegal. The suggestion of white lines was clearly an invention and an attempt to justify what Constable Dankl must have realised at that stage had been an arbitrary and frivolous stopping and an equally unnecessary detaining of my children and me”. His case is that the police officer had no traffic related reason for requiring his vehicle to stop. Accordingly the statement of claim alleges in various causes of action that the decision to stop was capricious, in bad faith and undertaken for collateral purposes. Those collateral purposes are not identified.
[10] When the car had pulled over to the lefthand side of the road the Constable gave details of the vehicle to the Central Communications Centre (CCC) and requested that a check be made on its registration. (The transcription of the record of the exchanges between the Constable and the CCC is set out in an appendix to this judgment.) She then walked towards the car and 40 seconds after making her request was advised that the car belonged to a company, in fact owned by the plaintiff. The registration had last been updated in the month of this incident and there were no items of interest outstanding. The car was in fact a brand new Jaguar Daimler.
[11] The exchanges between the plaintiff and the police officer then began. She asked the plaintiff for his driver’s licence. He said that he did not have it. In accordance with normal procedure when someone cannot produce a licence, she asked the plaintiff for his full name. He provided that name and she asked for his address. He provided his business card which appeared to her to have only his business address and she accordingly asked for his residential address. She asked for his date of birth and said that she also wanted to check his warrant of fitness and registration which she did. She told the plaintiff, according to her evidence, that she had to go and check his details out. The plaintiff denies that. “She said nothing of the sort, a fact evident from the reaction of the passengers in my vehicle when she returned after stopping me for a second time and said that she had not given me permission to leave. My female partner and elder son, Christopher, immediately said ‘you didn’t say that.’ ” His partner confirms that evidence.
[12] In any event, when the constable had got back into her car she heard the engine of the car revving, looked up and saw the plaintiff driving off down the street. She pulled out immediately behind the plaintiff’s vehicle and activated her siren. After about three hundred metres the plaintiff’s car stopped again. The constable had called for assistance from a sergeant who was the traffic sergeant on duty. When she approached the plaintiff her evidence is that he said “I thought I could go”. She says she reminded him that she had told him that she was going to check the details and would be back shortly. She went back to her vehicle to complete the process by calling the CCC and asking if she could have the plaintiff’s details confirmed so that he could go. Before she could begin to give the relevant information the plaintiff interrupted her and she told the CCC to stand by. The exchanges between the plaintiff and the constable were obviously sharp and angry. The plaintiff says that he told the police officer than unless she released him immediately he would have to abandon his children and allow his partner to drive them to the airport so that they could catch their flight home to Sydney. “Obviously I was reluctant to spend the last half hour of my time with my children standing by the side of the road in full view of the curious public. The police officer still refused to allow me to drive away and left me with no choice but to do that. Upon alighting from the car I was instantly recognised by some people who stood around calling me ‘Jonesy’ and apparently enjoying the spectacle which the police officer had created by insisting that I remain.”
[13] According to Constable Dankl, after the plaintiff had walked back to his vehicle, the CCC and the constable completed the process of checking the plaintiff’s licence. The Centre advised that the plaintiff was the holder of an expired Class 1 licence and Constable Dankl obtained the driver’s licence number and police record number for her notebook. The departure of the plaintiff’s car left him at the side of the road. As the constable was recording the last particulars in her notebook another police officer, Constable Morgan, arrived and parked his vehicle behind hers. The plaintiff approached that vehicle and was speaking to that officer and saying that he was going to the police station to make a complaint about Constable Dankl when, Sergeant Lambert, the sergeant she had called, arrived. He suggested to Constable Morgan that he take the plaintiff back to the Lower Hutt police station where he could make his complaint. Constable Morgan and the plaintiff left to go to the station.
[14] There is agreement that from the point that the plaintiff and Constable Morgan drove away, the plaintiff was no longer subject to any possible detention or imprisonment.

The competing contentions

[15] The essence of the appellant’s case is that the only relevant disputes of fact in the affidavits concern the timing of the various events. The evidence on that matter, says Mr Boldt, is compelling. No basis has been laid by the respondent for questioning the electronic record kept by the Communications Centre. Any other alleged dispute is merely fanciful and cannot prevent an application otherwise in order. Any need for judicial caution in considering a summary judgment application has to be balanced with the appropriateness of a robust and realistic judicial attitude when that is called for by the particular facts of the case (Bilbie Dymock Corporation Ltd v Patel (1987) 1 PRNZ 84, 85-86).
[16] Mr Reed QC, for the respondent, referring to the Bernard case (para [4] above), contended that we should not enter into a mini trial. He supported the Master’s reasoning and listed the following matters on which Constable Dankl’s evidence was vigorously disputed. She was wrong, according to Sir Robert, about

(a) where his car was when it was first seen by her;

(b) where his car was when it first inched to the right;

(c) the extent to which is car inched to the right;

(d) whether, and if so what type of, white lines were present where this manoeuvre took place;

(e) when, in her discussions with him, she first mentioned the presence of white lines;

(f) her demeanour throughout the time that he was detained;

(g) the manner in which she indicated her Police number;

(h) the time at which the incident started;

(i) the time she took to inspect his brand new $210,000 Jaguar car;

(j) whether she recognised him from the outset, or at least very early in the piece;

(k) whether she deliberately and improperly delayed him, once his identity had been established;

(l) whether she told him to remain in place, while she checked out his details;

(m) the duration of the whole incident; and

(n) when he was finally allowed to leave/what time he was taken to the Lower Hutt Police Station.

[17] Sir Robert and Constable Dankl differ sharply in aspects of their evidence, but, as will appear, the differences are about the tone and the precise content of their conversations rather than about the matters actually discussed, leaving aside the important matter of timing to which we return later.

The reasons for the two stoppings

[18] We consider, first, Constable Dankl’s reasons for her two exercises of the power to stop Sir Robert. In respect of the first she says that she was concerned about his two movements to the right. His evidence is consistent with hers to the extent that he agrees that he moved to the right but he denies, referring to the concrete barrier, that he could possibly have moved over any white centre line. To repeat, he said that her statement that he partly crossed the white centre line was “a falsehood ... invented sometime into our conversation when I persisted in seeking an answer ... whether moving slightly to the right was illegal”.
[19] Section 114 of the Land Transport Act reads as follows:

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.

(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 name and address and date of birth, 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.

[20] It is clear law that the power s114 confers cannot be used for non road transport purposes but that its use is not dependent on any breach of the relevant law or indeed even belief or suspicion of such a breach. Constable Dankl’s uncontradicted evidence is that she did have a traffic purpose for stopping the car : she had observed it moving to the right (a matter not in dispute), a movement which might indicate drink driving, something wrong with the car or with the truck in front, or impatience. Whether she inaccurately later elaborated those reasons (a matter on which we need not and could not make a ruling) cannot affect the initial lawfulness of the stopping. We also need not be troubled by the disagreement between Sir Robert and Constable Dankl over whether she recognised him early in their discussions. That was not relevant to her initial decision to stop the car. Once it had been stopped, even on his version of the facts it was still necessary for her to check the details of his licence given that he did not produce one.
[21] That failure to produce a licence was in breach of s5(4) of the Land Transport Act and was an offence under s31(1)(c) of that Act. Constable Dankl says that she told Sir Robert that and said that he had to wait for her to undertake the check. He denies that. If he is right, he was no longer obliged to remain and could drive off as he did. If she is right, he was obliged under s114(5) to remain as long as reasonably possible, but not longer than 15 minutes, for her to undertake the check. In the former case there was no detention, in the latter any detention (in the sense of his being obliged to remain) was lawful under the Land Transport Act, subject again to any question of timing. Accordingly we disagree with the Master’s conclusion that the uncertainties about what Constable Dankl said at the end of those first exchanges mean that summary judgment is inappropriate. Those uncertainties are not significant in any way for the claim in respect of the first stopping. On either version of the facts, no claim based on that stopping can succeed, subject to the timing point.
[22] The reason for the second stopping was of course to complete the check in respect of the driver’s licence, a check made necessary by the failure of the plaintiff to produce his licence. The process was prolonged slightly by the plaintiff interrupting Constable Dankl. The Master ruled that there was a triable issue whether the plaintiff was lawfully stopped on the second occasion because Constable Dankl did not give the checking of the licence as her reason for stopping the plaintiff the second time. She does not however have to give that reason to the driver. (No doubt that would be sensible police practice; and her evidence was indeed that she reminded him she had told him that she was going to check his details and would be back shortly.) Accordingly, at this stage it is not necessary to determine whether as a matter of fact that reason was communicated. The power plainly existed. It was lawfully exercised, subject again to the timing issue to which we turn next : it relates to items (h), (i), (k), (m) and (n) in Mr Reed’s list set out in para [16] above. We have dealt with all the other items in that list except (f) and (g) which cannot affect the legality of her actions.

The time taken

[23] If the plaintiff was stopped for longer times than were reasonably necessary to obtain the particulars about the driver and, on the facts of this case, to determine whether he had a current licence then the powers conferred by s114(3) and (5) would be no longer available. The stopping would become unlawful. Mr Reed, in his submissions, says that Constable Dankl’s evidence was wrong about

(a) the time at which the incident started;

(b) the time she took to inspect his brand new Jaguar car;

(c) whether she deliberately and improperly delayed him, once his identity had been established;

(d) the duration of the whole incident; and

(e) when he was finally allowed to leave and at what time he was taken to the Lower Hutt police station.

[24] The appellant’s essential answer to those points is that the time is determined by the accurate record provided by the CCC.
[25] Mr Reed argued that the plaintiff’s worst case scenario was that the incident began at 14:20 and ended at 14:34 and accordingly lasted at least fourteen minutes. His best case scenario was that the incident began before 14:20 and ended at 14:45 at the earliest, at least twenty-five minutes. Critical for this matter is the electronic record taken by the CCC covering the events in issue in this case and set out in the appendix to this judgment.
[26] Before we get to that record we consider the evidence relating to the time of the first stopping. The amended statement of claim begins by saying that the plaintiff was travelling along Waione Road “at approximately 2pm”. In response to Constable Dankl’s actions he pulled over and stopped. She then kept the plaintiff waiting while she contacted the Communications Centre. There was, the pleading continues, “a delay of some minutes between the time the plaintiff stopped the car, and Constable Dankl approached the plaintiff’s car on foot”. Constable Dankl, in her evidence, says that at 2.20pm she was travelling over the Waione Street bridge. Because the Jaguar had pulled to the right on two occasions she signalled it to stop. The time, she said, was 2.21pm. In accordance with normal procedure she called to CCC at 2.21.21pm and walked towards the car. Forty seconds later, at 2.22.01pm, she was advised of the ownership. She had already left the car by the time that transmission was received and obtained the information on her portable radio.
[27] Sir Robert, in his two affidavits, does not challenge that evidence of timing in any way. Also significant is that there is no evidence either from him or from the constable of any complaint about his being kept waiting. On no basis can it be said that the stopping occurred before 2.20pm.
[28] Inspector Allan, Quality Customer Service manager at the CCC, gave affidavit evidence in response to the plaintiff’s challenge to the accuracy of the recording and the timings associated with the transcript. He described the equipment used and its operation:

Every telephone call and every radio call that comes into, or is made from, the CCC is recorded, as is all radio traffic between units and Police installations. Calls and radio traffic are recorded in order to ensure that important information that may have been missed when the call was made can be retrieved, and because the content of such transmissions is required from time to time to assist in criminal investigations, internal inquiries and Court proceedings. Obviously, precision as to the time that each transmission was made is of vital importance, and the software employed by the CCC not only allows for the retrieval of transmissions many months after they are made, but is also able to indicate the timing of that transmission down to the last second.

[29] He explained the secure holding of the digital data storage (DDS) tapes which are used to archive the information and continued:

Data tapes, unlike audio tapes, cannot be “edited”, at least without a significant degree of expertise. Any attempt to manipulate the recording would be immediately apparent, because one or more gaps would appear in the continuous tracking that accompanies each recording. The only way this difficulty could be overcome would be if the time and date in the system were reprogrammed, and the faked recording played into the system. Because the timing in Police software is automatically synchronised throughout the country, such an undertaking is virtually impossible. At the very least, the fact that someone was doing this would be immediately obvious – it would require every Police computer associated with the communications centres, and every software based application across 68 software systems, to display an incorrect time and date. Numerous technical problems would arise, and every other event or transaction that occurred while the manipulation was taking place would also be wrongly recorded. Even then, the recordings either side of the falsified recording would be out of sequence.

[30] He then set out the steps taken to prepare the compact disks and transcripts for the present case. In response to the plaintiff’s affidavit:

I have re-examined the original DDS recording of the transmissions recorded between 2:20 and 2:35pm, and have personally checked the timings of each transmission against those recorded in the transcript appended to Constable Dankl’s affidavit. I can confirm firstly that there is no evidence of any interference with the data recorded on that DDS, and secondly that each of the times associated with the transcribed transmissions is correct. I have checked not only the particular recording in issue, but also the recordings either side of it. There is no gap in the tracking, or ambiguity in sequencing, such as would occur if there had been any attempt to manipulate the recording. I have also examined a copy of the compact disc produced by Constable Dankl in her affidavit. The disc was prepared by the Electronic Crime Laboratory, and I confirm that it contains an accurate “real time” copy of all radio transmissions on the relevant channel between 2:21 and 2:34pm on 24 January 2000.

[31] A primary reason the CCC maintains a continuous record, according to Inspector Allan, is that human estimates about time are frequently inaccurate : occasionally entries in police notebooks are approximate and watches can be fast, slow or misread. That is to be put in the context of the accuracy of the CCC data:

In the 12 months to 30 June 2000, the CCC received 401,728 calls, more than 90,000 of which were emergency calls. No complaint has ever been received regarding the accuracy of the data recorded on the DDS systems, despite the enormous volume of material the CCC handles.

[32] The Inspector then records that the Crown Law Office on behalf of the Police had twice invited the plaintiff or his representative to visit the Electronic Crime Laboratory so that that DDS recording system could be demonstrated and any concerns about the accuracy either of the recording or the transcript delayed. To the best of his knowledge no response to the invitation had been received. In his reply affidavit the plaintiff does not in any way question the substance of the Inspector’s evidence.
[33] We have here a clear example of the situation this Court had in mind in Kembla. The defendant’s evidence on timing over the 13 minutes covered by the electronic record is compelling. The plaintiff has not responded with credible evidence, or indeed any evidence at all. Mr Reed did however call attention to what he considered were discrepancies arising from Constable Dankl’s evidence, her notebook, two police transcripts of the electronic record (without timing details) and a police event chronology. We turn to those matters.
[34] Six of the nine times in the Constable’s affidavit are identical to the CCC record and, as she says, she has verified the timings by reference to it. The first is 14:20 for the incident start time. That was not really challenged by Mr Reed. The second is 14:21 for the stopping of the car. That is to be related to 14:21:21, the timing of the first transmission following the stopping. The final time is 14:33 or 14:34 when Constable Morgan drove the plaintiff to the Lower Hutt Police Station. There is no basis for questioning that time from which, it will be recalled, it was agreed the plaintiff was no longer subject to any possible detention or imprisonment.
[35] The only times recorded in Constable Dankl’s notebook are 14:26 for the beginning of the matter – a time which does not help the plaintiff and is probably to be explained by Inspector Alan’s evidence about the inaccuracy of human time recording – and 14:45 when she drove back over the bridge and saw the broken white lines there. The two police transcripts are headed “from 14:25 hours” but they provide no other timings. They are of no help in the determining of the period of the events. Given Inspector Allan’s unchallenged evidence they cannot put in question the electronic record. He also explains why the police event chronology has different times from those in the appended transcript:

12. ... In short, the event chronology is an electronically generated record of observations and noted manually by CCC staff. It is not, and does not purport to be, a contemporaneous record of events. In the present case, the dispatcher was monitoring the radio channel and responding to requests made by Constable Dankl. The event chronology records transactions that the dispatcher determined were worthy of note, and also includes some automatically generated transactions, such as unit alarms, which activate when a particular unit is out of contact at an event for more than a predetermined period. Alarms operate as reminders to the dispatcher to keep an eye on the situation in case any additional assistance or input is required.
13. Most importantly, the times recorded in the event chronology are the times that the particular transaction was entered by the dispatcher, and not the time that the transaction occurred. For example, the plaintiff’s Exhibit D records that at 14:23:27 information regarding the plaintiff’s vehicle was provided. The audio recording confirms that this information was actually provided at 14:22:01, and the delay of slightly more than one minute represents the time between the provision of the information and the manual entry into the computer system of the fact that the information has been supplied.

[36] We return to the electronic record. The initial stop plainly occurred before 14:21:21, the first recorded time. The statement of claim says that the plaintiff was travelling Waione Road at approximately 2pm, but Sir Robert in his evidence does not give any estimate of the time of stopping. Rather, he points to a difference between the electronic record and the notebook entry “purportedly made by Constable Dankl at the time of the incident which records 14:26 as the beginning of the incident”. We have already indicated why we do not see that note as significant. The relevant point at the moment is that no time earlier than about 14:20 can be established.
[37] According to Constable Dankl, she obtained the registration information as she was walking towards the vehicle. Having obtained the information from Sir Robert about his name, address and date of birth, she returned to her vehicle to determine the position about the licence and to verify it. By about 14:25, that is about five minutes after first stopping the vehicle, she reports that the plaintiff had driven off and was stopping again. The text indicates that she must have sent part of that message as she was driving the short distance along the foreshore and was signalling to the plaintiff to stop again. Given that Constable Dankl had power under the Land Transport Act to stop the plaintiff and that he was obliged to remain while she made the relevant inquiries, the period of about five minutes that he was stopped cannot be seen as unreasonable given her need to check the position of his licence. If there was a detention (which we doubt : see Everitt v Attorney-General (CA116/00, judgment of 26 July 2001) it was lawful. We recall that he did not consider that he had to remain in any event.
[38] The second stopping and related detention under the legislation is from about 14:25 to either 14:29 when Sir Robert’s partner drove off in the car or 14:34 which other evidence establishes was the time at which Sir Robert was driven by Constable Morgan to the Lower Hutt Police Station. In terms of the powers in s114 the plaintiff was probably free to go at 14:29 when the position about this licence was clarified and when his obligation to “remain stopped” could in any event no longer be related to his vehicle which his partner drove away. There is no evidence that Constable Dankl took any action at all in relation to Sir Robert after 14:29 and it is only her actions which he impugns. Sir Robert refers to a police job sheet prepared by Constable Morgan which shows that four minutes after he arrived he drove Sir Robert to the Lower Hutt Police Station. (The length of that period matches that in the CCC record.) It was at that time of departure that Sir Robert believed he was released. He does not however give any evidence at all of any actions by Constable Dankl during that final period of four minutes which would indicate that she was purporting to detain him then. Her evidence was that when Constable Morgan arrived, Sir Robert approached his car and told him that Constable Dankl had no right to stop him and was behaving unlawfully. He was going to the Police Station to make a complaint about her – as indeed he did.
[39] We can see no possible basis for a successful claim relating to the detention, imprisonment or search and seizure during the period following the second stopping. Given the absence of any illegality during that period as during the earlier one the claims of negligence and misfeasance must also fail.
[40] The foregoing discussion treats the overall events as involving two distinct exercises of the powers conferred by s114. Even if they are treated as a single exercise of the powers the period of stopping (of nine minutes or 14 minutes) cannot be said to be unreasonable and in breach of s114 given that:

• Sir Robert did not produce his licence and had to be checked,
• he drove off and had to be stopped,
• about nine minutes after the original stopping, the CCC reported that his licence had expired, and
• Constable Dankl was still receiving details about the expired licence up to ten seconds before the mention of the fact that his partner had already driven off.

Soon after, Sir Robert drove with Constable Morgan to the Police Station to lay his complaint. Whether the events are considered in two parts or as a whole, the claims cannot possibly be made out.

[41] We accordingly conclude that the defendant has established that none of the causes of action in the statement of claim can succeed.

Result

[42] The appeal is allowed and summary judgment is entered for the defendant. The appellant is entitled to costs in this Court of $5,000 and reasonable disbursements to be fixed by the Registrar if the parties cannot agree. The Master reserved costs in the High Court and they are to be fixed by that Court in the light of this decision.

Solicitors:
Crown Law Office, Wellington for the Appellant
Sladden Cochrane, Wellington for the Respondent

APPENDIX TO JUDGMENT CA7/01
ATTORNEY-GENERAL ON BEHALF OF NZ POLICE and ROBERT EDWARD JONES

Transcript of relevant parts of the radio conversation

14:21:21 DANKL COMMS SOUTH 2 [Dankl’s call sign]

14:21:22 COMMS Go ahead, SOUTH

14:21:24 DANKL QVR [query vehicle registration] for 3T [stopped vehicle] please

14:21:27 COMMS Go the Reg.

14:21:29 DANKL Rego Yankee Tango 8330. YT eighty eight thirty. 3T on Waione Street.

(Other units discussing unrelated matters)

14:22:01 COMMS SOUTH 2, your vehicle should be a Jaguar Daimler Saloon coloured Red. Registered to a company TIROHANGA NOMINEES, 69 Rutherford Street, January 2000 update. No VOI.

(Other units discussing unrelated matters)

14:25:23 DANKL LHV [Lambert’s call sign] from SOUTH 2. LHV from SOUTH 2

14:25:35 LAMBERT Are you calling LH VICTOR?

14:25:37 DANKL Roger. I’ve got Bob Jones who has a failed to oh, he stopped now he’s driven off and he’s just stopping again. He’s making lots of complaints. Can you swing down here please immediately?

14:25:47 LAMBERT Whereabouts?

14:25:50 DANKL I’m down on Waione Street

14:25:52 LAMBERT Sorry and 10 / 4?

14:25:54 DANKL I’m on Waione Street I just need someone here to cover my arse. He’s making lots of allegations

14:26:00 LAMBERT Roger

14:26.04 LAMBERT Waione Street Confirm?

14:26:06 DANKL Roger

(Other Police Units talking about unrelated matters)

14:27:14 LAMBERT COMMS LHV Can I have a QP [query person] please?

14:27:16 COMMS Wait one

14:27:29 DANKL COMMS SOUTH 2

14:27:30 COMMS Go ahead

14:27:31 DANKL Can I have this chap’s details confirmed please so he can go?

14:27:36 COMMS Ah, go the name

14:27:37 DANKL Surname

14:27:40 COMMS Standby one

(Other Police Units talking about unrelated matters)

14:28:14 DANKL COMMS SOUTH 2. Can we go that again?

14:28:16 COMMS Go the name

14:28:18 DANKL Surname of Jones. First name of Robert, middle name of Edward. Robert Edward Jones is a Mike, born 24/11/39. How far away are you LHV?

14:28:29 LAMBERT I’m just ah at Ludlam

14:28:39 DANKL I’ve a real scene on my hands here.

LAMBERT (Indecipherable)

14:28:48 MORGAN SOUTH S2

14:28:49 DANKL Yeah, go ahead.

14:28:50 MORGAN Whereabouts on Waione are you?

14:28:52 DANKL Down by the ah tuck shop.

14:28:56 MORGAN I’ll be with you in a minute.

14:28:58 DANKL Copy

14:29:03 COMMS SOUTH 2, ah he’s got a Wellington Master PRN, not currently wanted. In the driver index with an expired Class 1.

14:29:15 DANKL Can I have that DLIC NO and PRN Please?

14:29:39 COMMS PRN : 88815 eighty eight eight one five

14:29:45 DANKL Copy

14:29:47 COMMS DLIC NO as follows Alpha November AN025913

14:29:57 DANKL Copy. Yeah. LHS is off with me. Ah this chap’s partner has driven off in the car and he’s still here. He is extremely worked up and I still want LHV to keep coming here.

14:30:11 COMMS Roger

14:31:30 LAMBERT COMMS LH VICTOR 10 / 7 [has arrived at his destination]

14:31:33 COMMS Roger

(Other Police Units talking about unrelated matters)

14:33:56 DANKL LHN2 from SOUTH 2

14:34:02 DANKL LHN2 from SOUTH 2

14:34:08 LHN2 Go ahead

14:34:09 DANKL Can you call me on my cellphone please?

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