Police v Burdett [2021] NZDC 10126 (4 June 2021)

Last Updated: 24 November 2024

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT NORTH SHORE I TE KŌTI-Ā-ROHE KI ŌKAHUKURA

CRI-2020-044-001257

[2021] NZDC 10126

NEW ZEALAND POLICE

Prosecutor v

[IRENE BURDETT] Defendant

Judgment:

4 June 2021

RESERVED DECISION OF JUDGE C D SYGROVE

The Charges

[1] The defendant is charged with three charges relating to 20 April 2020 at Auckland. She is charged with the following offences:

• (a) Assaulting [Constable 1] acting in the execution of his duty, Summary Offences Act 1981, s 10.
  
• (b) Resisting [Constable 2], a Constable acting in the execution of his duty, Summary Offences Act 1981, s 23(a).
  
• (c) Being a person on a road having had a lawful demand by an enforcement officer to give her full name and address, failed or refused to give such information, Land Transport Act 1998, s 52(1)(c).
  

NEW ZEALAND POLICE v [IRENE BURDETT] [2021] NZDC 10126 [1 June 2021]

[2] The allegation is that on 20 April 2020, the defendant was driving her motor vehicle during the Covid level four lockdown in Auckland. The rules of the Covid level four lockdown provided generally that the public can travel for essential travel only, and the police were given powers and told that they could stop people and question them at any time. The public’s travel was restricted to travelling to their homes unless they were travelling to hospital or for other essential travel requirements. The police say they were given the power to stop vehicles and ask what the purpose of the travel was. The police further say that they were to take an effectively soft approach and if the public were not compliant, then they were to warn them in writing, and it was only if they had previously been warned that they would arrest a person and charge them with being in breach of the Covid rules.

[3] The defendant’s vehicle stopped after [Constable 2] put on his red and blue flashing lights. He walked up to her and asked her the purpose of her travel. The defendant refused to tell him the purpose and told him that he had no right to ask her about this, and the Constable replied by explaining to her that under the level four restrictions, he was legally entitled to ask her this question, but she still wouldn’t tell him. Accordingly, the Constable advised her that under s 114 of the Land Transport Act she was required to give her address, name and date of birth, and this he thought would help him work out where she was off to. The defendant again refused to provide these details. By this time the officer had checked her registration plate number and found that the vehicle belonged to a person called [Irene Burdett], and he asked her if she was in fact [Irene Burdett], but again, she refused to confirm this.

[4] Because of the defendant’s failure to comply with the officer’s request for her name and other information, he felt that he may have to arrest her and accordingly called for assistance from other police patrol cars in the area. The officer again requested her for her details and warned her that if she continued to behave in this manner, she would be arrested. He said that during the latter part of his discussion with her, the defendant was filming him on her phone. Because she would not cooperate, he told her she was under arrest and read her, her full Bill of Rights through her partly opened car window. He then asked her to open the door, but she refused to and locked it. He again asked her to open the door and told her that if she didn’t open it, he would have to smash the window to effect an arrest. She refused to be cooperative, so he

smashed the window and unlocked the door so that he could effect an arrest. By this time, [Constable 1] had arrived. He reached in to get the seat belt off her, and she reached over to her right shoulder where his hand was and scratched him. This scratch is the basis of the charge of assault on [Constable 1].

[5] The police together removed the defendant from the car and placed her in handcuffs and then in the rear of the police car. She was very offensive throughout the travel to the police station and called the police “wife bashers”, “corrupt” and “rapists”.

[6] [Constable 2] said that he had stopped at least two and a half thousand vehicles during his 14 years as a police officer and only on three other occasions did he have to smash the window to extract a person from a motor vehicle.

[7] During [Constable 2]’s interaction with the defendant, she continually told him that she wouldn’t give him her name unless he gave her his name, but he was not required to give his name, only that he be in police uniform and that he gave his QID number to her, which was clearly visible on his uniform.1 He said that although on his police equipment he had a copy of the defendant’s licence, he wasn’t sure it was the defendant because it didn’t look entirely like her. [Constable 2] saw the defendant scratch [Constable 1]’s hand, and he felt it was definitely deliberate. The defendant kept saying that he was an agent for a corrupt organisation, and she didn’t trust the organisation he was a member of.

[8] Ms [Burdett]’s lawyer then played a video that had been taken by the defendant.

[9] The next witness for the police was [Constable 1]; he was the officer who arrived to help [Constable 2]. He parked his vehicle in front of the defendant’s vehicle and saw [Constable 2] speaking to the defendant through her partly opened window. He noted that [Constable 2] was asking for her details and she was refusing to give them. He saw [Constable 2] tell her she was under arrest and gave her, her Bill of

1 Search and Surveillance Act 2012, s 129.

Rights, and ask her several times to get out of the vehicle. He saw [Constable 2] break the driver’s side window.

[10] [Constable 1] leant in to release the seat belt off the defendant and she grabbed his hand and scratched the webbing in between his thumb and forefinger. Photos of this assault were produced to the Court. It then seemed to [Constable 1] that the defendant in fact released her seat belt, and he pulled her out through the driver’s door and assisted in having her handcuffed. On a scale of one to 10, he felt the assault was at level three, and it was deliberate. He said that the defendant was uncooperative throughout and confirmed that she was insulting to the officers when in the police car. He had to have three blood tests as a result of the scratch to see whether or not he had hepatitis or HIV and, all in all, it was an unpleasant experience for him.

[11] [Constable 1] finished his evidence and the prosecution closed their case. The defence elected not to call evidence.

[12] I adjourned the case in order to receive written submissions which I summarise below.

Prosecution Submission

[13] The Police submit that [Constable 2] was entitled to stop Ms [Burdett] either under ss 20–26 of the COVID-19 Public Health Response Act 2020 or s 114 of the Land Transport Act 1998. Additionally, they submit that s 114 does not require there to be a breach of the Act for an officer to invoke the power to stop.

[14] The Police submit that Ms [Burdett] refused to provide details under the COVID-19 Order and subsequently the Land Transport Act. The Police also submit that [Constable 2] was not able to identify Ms [Burdett] with sufficient certainty to issue a summons. Therefore, they submit that the subsequent forceful arrest was lawful.

Defence Submissions

[15] The Defence submits that Ms [Burdett]’s arrest for failing to comply with the Land Transport Act was unlawful because she was not stopped for a purpose relating to the Act.

[16] The Defence submits that the Police did not have power to stop Ms [Burdett] under the COVID-19 Public Health Response Act 2020; however, the Defence acknowledge that Ms [Burdett] was stopped to “check compliance with the COVID- 19 Alert Level 4”.

[17] The Defence also submits that Ms [Burdett] did not intend to assault the constable who smashed her window, that she held an honest belief that the force used by the officers in her arrest was excessive, and that she acted in self-defence against the constables.

The Law

[18] Section 114 of the Land Transport Act 1998 states:

114 Power to require driver to stop and give name and address, etc

(1) An enforcement officer who is in uniform, or wearing a distinctive cap, hat, or helmet, with a badge of authority affixed to it, may signal or request the driver of a vehicle to stop the vehicle as soon as is practicable.

(2) An enforcement officer in a vehicle following another vehicle may, by displaying flashing blue, or blue and red, lights or sounding a siren, require the driver of the other vehicle to stop.

(2A) Subject to subsections (4) and (5), the driver of a vehicle that is stopped by an enforcement officer under this Act must remain stopped for as long as is reasonably necessary for the enforcement officer to complete the exercise of any powers conferred, or duties imposed, on an enforcement officer by this Act.

(3) An enforcement officer may require the driver of a vehicle that is stopped under this Act to—

(a) remain stopped for as long as is reasonably necessary for an enforcement officer to obtain the particulars referred to in paragraph (b), or to complete the exercise of any other power conferred on an enforcement officer by this Act; and

• (b) on demand by an enforcement officer,—

(i) give his or her full name, full address, date of birth, occupation, and telephone number, or such of those particulars as the enforcement officer may specify; and

• (ii) state whether or not he or she is the owner of the vehicle; and
  

(iii) if the driver is not the owner of the vehicle, give the name and address of the owner or such particulars within the driver’s knowledge as may lead to the identification of the owner.

(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.
  

[19] Case law has further clarified that police officers can only use s 114 for the purposes of enforcement and administration of the Land Transport Act and related regulations.2 The provision does not allow “capricious stopping”.3 In R v Bainbridge, the police stopped a driver that gave them a suspicious look and found various criminal items. The stop and search were declared unlawful because the police did not have any grounds to believe that any provision of the Land Transport Act had been breached.4 In McGarrett v R, the police pulled over a driver suspected of drug offences. The officer delayed the driver by doing a warrant check while waiting for backup. However, because the officer had no reason to suspect the driver of breaching the Land Transport Act, the evidence had been obtained improperly.5

[20] In Tapara v Police, the Defendant was charged with failing to stop as required by the Land Transport Act 1962. The Police had seen a suspect in the back of his car. He was convicted of the charge, but on appeal the High Court overturned the conviction. The Court held that the Land Transport Act does not provide a completely

2 R v Bainbridge [1999] NZCA 180; (1999) 5 HRNZ 317 (CA)

3 Tapara v Police [1990] 3 NZLR 199 (HC).

4 R v Bainbridge, above n 2.

5 McGarrett v R [2017] NZCA 204.

unrestricted right where there is no aspect of the Act which concerns the arresting officer.6

[21] A similar issue was addressed in Byfield v Police.7 In that case, the High Court granted an appeal against three convictions: failing to remain stopped, assault on a constable, and escaping lawful custody. The officer was part of the Staff Safety Tactical Training unit, and he was wearing an older pair of blue overalls when he spoke to the appellant who was stopped at a railway crossing. He asked the appellant to pull over when the barrier arms lifted. The appellant simply drove off and was pursued to his home address and arrested after a struggle. The issue was whether the blue overalls were official Police uniform or not. It turned out that the overalls in question were so old that they pre-dated the official Police uniform issued to specialist staff in 1999, so they were not official police uniform, and therefore, the officer was not in “uniform” as required by s 114. All charges were dismissed.

Discussion

[22] There is no indication that [Constable 2] thought Ms [Burdett] was in breach of the Land Transport Act or related regulations, and there is also no indication that [Constable 2] stopped Ms [Burdett] for a random check for the purposes of administering that Act. At no point did he indicate to her that he had stopped her for land transport regulatory purposes. This entails that [Constable 2] was not authorised to stop Ms [Burdett] under s 114 of the Land Transport Act 1998 as he did not suspect her committing any land transport offences.

[23] As he was not entitled to stop Ms [Burdett] under s 114, he was also not entitled to ask her for her name, address and date of birth under that provision. Even if [Constable 2] was entitled to stop Ms [Burdett] under a COVID-19 act or regulation, he could not “switch” to s 114 after stopping her. This means that the charge in relation to failing or refusing to give her full name and address cannot succeed. It also means that his actions in arresting her for failing to answer him under that provision were unlawful.

6 Tapara v Police above n 3.

7 Byfield v Police HC Christchurch CRI-2006-409-84, 26 September 2007.

[24] As in Byfield, the arrest under s 114 was illegal, so [Constable 2] and [Constable 1] were not authorised under s 114 to enter Ms [Burdett]’s car.8 If both [Constable 1] and [Constable 2] had no reason to be entering her car, Ms [Burdett] did not assault or resist them in the execution of their duty as they were not executing their duty at the time of the assault. Accordingly, these two charges also cannot succeed.

Decision

[25] Accordingly, all three charges are dismissed.

Judge CD Sygrove

District Court Judge

Date of authentication: 04/06/2021

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.

8 Byfield v Police, above n 7.