Alexander v Police [2012] NZHC 1686 (18 July 2012)

Last Updated: 15 August 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-409-000020 [2012] NZHC 1686

TREVOR JOHN ALEXANDER

Appellant

V

POLICE

Respondent

Hearing: 30 May 2012

Counsel: R Maze for Appellant

K B Bell and C D Newman for Respondent

Judgment: 18 July 2012

_{JUDGMENT OF WHATA J}

[1] Mr Alexander was caught by Constable Wardell at 154 kilometres per hour in a 100 kilometres per hour zone. As the speed was more than 40 kilometres above the limit, Constable Wardell was obliged to give Mr Alexander notice that his driver’s licence was suspended for 28 days. As Constable Wardell did not have the necessary suspension form with him, he instructed Mr Alexander to drive to Oxford. After a wait of somewhere between 30 minutes and two to three hours, Mr Alexander was given the formal notice of suspension. On 27 December 2010, Mr Alexander was again stopped by a police officer. As Mr Alexander was driving while his licence was suspended he was served with an on the spot summons to appear in Court at a

_{later date and his vehicle was impounded for 28 days.}

ALEXANDER V POLICE HC CHCH CRI 2012-409-000020 [18 July 2012]

[2] Mr Alexander now appeals against a conviction for driving while suspended. He says that the evidence of suspension was inadmissible because it was obtained in breach of ss 21 (unlawful search and seizure) and 22 (unlawful detention) of the New Zealand Bill of Rights Act 1990 (“NZBORA”).

[3] I must resolve whether or not there was a breach or breaches of the NZBORA and whether that provides a basis for excluding the evidence of suspension. More broadly I also consider that I must determine whether a breach of the NZBORA, if proven, vitiates the suspension.

District Court judgment

[4] The fact of speeding at 154 kilometres is not disputed. Salient parts of the judgment therefore relate to the giving of the notice and the suspension. The Judge observed:[1]

[6] It would seem from Mr Alexander’s evidence himself, that he does not deny exceeding the speed limit. The issue really is, I think, whether or not he was driving at such a speed that his licence could be suspended under s 95, and indeed whether in the circumstances the officer acted appropriately, although that is not a direct basis for allowing a successful defence, or not finding the charge proved beyond reasonable doubt.

And further:

[8] The second alleged offence relates to Mr Alexander driving a van on

27 December 2010. That is an offence under the Land Transport Act, and if a person knows they are suspended and drives the car, then they have committed an offence. If there are special reasons relating to that offence, the Court can step away from imposing a mandatory disqualification.

[5] In relation to what appears to be the primary concern in this Court, namely the detention of Mr Alexander and his family, the Judge has this to say:

[9] Again in this case, in a somewhat circuitous way like the speeding charge, the conduct of the constable has been challenged. In both cases Mr Alexander and his witnesses complain that they were kept waiting; first at Oxford where they had to return for the notice of suspension to be served on Mr Alexander, (incidentally, Constable Flitton saying that it was probably

a safer place to leave the car); and secondly, being left on the side of the road on 27 December when the van was impounded.

[10] Those matters, in my view, really are red herrings, but let me say this: in neither case am I satisfied that neither police constable officially acted in an inappropriate way.

[11] Mrs Alexander complains about Constable Wardell leaving them on the side of the road. It was not as if they were in the back and beyond; they were in Retreat Road on 27 December – a well known road in Christchurch, although suffering damage from the spate of earthquakes. The police are not taxies; (sic) they are not expected to taxi people around.

[6] After finding that Mr Alexander was exceeding the speed limit by more than

40 kilometres he then observes:

[24] It may be that the real reason for going to Oxford was that Constable Flitton did not have the papers on him in the car to write out the suspension notice then and there, or it may have been out of courtesy so the vehicle would not be left out in the country. To me it does not really matter one way or the other. The fact is that they went to Oxford. It was not, for example, as if Mr Alexander was driving above the legal blood or breath alcohol limit.

[25] Yes, maybe the family were kept waiting in Oxford. I do not see that as being relevant particularly to the service of the suspension notice. Maybe the constable had to take time to process this information.

[7] As to suspension, the Judge concludes:

[29] As to the driving while suspended, I am not sure what the defence is here, although the defendant does not have to prove anything. The prosecution must prove that Mr Alexander had his licence suspended and that he was driving a motor vehicle on a road. Well, the prosecution have proven both beyond reasonable doubt.

Grounds of appeal

[8] Mr Alexander contends that the evidence of suspension of his driving licence ought not to have been admitted in evidence, because it was improperly obtained. The nub of the argument is usefully summarised by Mr Maze as follows:

(a) The Constable purported to require Mr Alexander to accompany him to the police station for the purpose of serving him with a notice of suspension;

(b) No such power exists, and so the appellant was unlawfully and

arbitrarily detained, contrary to s 22 of the New Zealand Bill of

Rights Act 1990 at the time the notice of suspension was served; and

(c) The suspension notice was served in breach of s 21 of the New Zealand Bill of Rights Act 1990 in that the suspension amounts to a seizure and that seizure was carried out in an unreasonable manner;

(d) The evidence of the suspension was improperly obtained as it was obtained in consequence of a breach of the New Zealand Bill of Rights Act 1990;

(e) Exclusion of that evidence is a proportionate response to the officer’s

impropriety.

[9] In support of these primary contentions, Mr Maze highlights the following evidence given by Constable Flitton:

... As I didn’t have a suspension form with me at the time, I instructed him to drive to Oxford Police Station. I followed him there. He waited outside the police station while I got the paperwork, and I served on him a traffic offence notice and also a suspension notice.

[10] This is then combined with Mr Alexander’s evidence where he states that he was “ordered” to go to Oxford. This is further supported by Mrs Alexander’s evidence that the officer “just told us to follow him.”

[11] This evidence of instruction and orders to accompany are said to establish that Mr Alexander was detained without lawful authority, and given the nature of the detention, allegedly some hours in Oxford, it was also unreasonable.

The police response

[12] Ms Bell responds as follows:

(a) She accepts that there was no power to require Mr Alexander to accompany the officer to Oxford;

(b) The matter was not fairly put in issue before the District Court and there was not sufficient evidence to address the impropriety of the police conduct;

(c) The admissibility of the notice was not raised, although she accepts that if a prima facie case of unlawful detention was there, then the Judge should have raised it; and

(d) If I accept that there was a case of unlawful and unreasonable detention, then it should be remitted back to the Court;

(e) On the substance, the evidence that Mr Alexander was required to accompany the officer is not precise and there was further evidence that Mr Alexander and his family felt free to roam through Oxford while they were there. There was also evidence that they were heading to Oxford in any event.

[13] Mr Maze in his reply submitted that to remit now would be a waste of resources and given the evidence of the Constable was plainly a case for unlawful detention when he instructed Mr Alexander to go to Oxford and then kept him waiting for a substantial amount of time.

Assessment

[14] I propose to resolve this matter by addressing the issues raised in the order presented by Mr Maze, dealing first with the alleged arbitrary detention and then the alleged unreasonable seizure.

[15] I preface this discussion, however, with an observation as to the workings of suspension procedures of the Land Transport Act 1998. Section 95 provides:

95 Mandatory 28-day suspension of driver licence in certain circumstances

(1) An enforcement officer must give a person a notice under this section if the enforcement officer believes on reasonable grounds that the person has-

...

(c) driven a motor vehicle on a road at a speed exceeding—

...

(ii) any other speed limit by more than 50 km an hour (which speed was detected by a means other than approved vehicle surveillance equipment).

...

(3) A suspension under this section starts immediately after the notice is given to the person to whom it applies.

(4) A person whose driver licence is suspended under this section has the rights of appeal conferred by sections 101 and 109.

...

(7) The suspension of a driver licence under subsection (1) ceases to have effect if -

(a) The Police decide finally that proceedings will not be taken against the person for an offence arising out of circumstances referred to in subsection (1) or if such proceedings have been taken and the person is acquitted; and

(b) The suspension has not already been removed.

[16] Section 101 then provides:

101. Appeal to [Agency] against mandatory suspension of driver licence

(1) A person whose driver licence has been suspended under section 95 may appeal to the Agency against the suspension on the grounds that-

(a) The person was not the driver of the vehicle at the time of the act or omission to which that section applies; or

(b) The enforcement officer did not have reasonable grounds of belief as required by section 95 or did not give a notice that complied with subsection (2) of that section.

...

(3) The Agency must, within 5 working days after an appeal under this section is lodged, either-

(a) Remove the suspension immediately, if satisfied that a ground referred to in subsection (1) has been established; or

(b) Dismiss the appeal.

(4) If a suspension is removed under subsection (3)(a), the suspension ceases to have effect when that decision is made and the Agency must return the licence to the holder's last known place of residence or business or postal address, or to the holder at an office of the Agency.

...

[17] Section 109(1) also states:

101 Appeal to Agency against mandatory suspension of driver licence

(1) A person whose driver licence has been suspended under section 95 may appeal to the Agency against the suspension on the grounds that-

(a) The person was not the driver of the vehicle at the time of the act or omission to which that section applies; or

(b) The enforcement officer did not have reasonable grounds of belief as required by section 95 or did not give a notice that complied with subsection (2) of that section.

[18] It is evident from the scheme of the Land Transport Act that liability to suspension arises by operation of law on satisfying the conditions specified in s 95(1). The giving of a suspension notice is a mandatory obligation, triggering the suspension period, and with the purpose of informing an offender that his or her licence is suspended immediately for a period of 28 days. An appeal lies against suspension, and if lodged, the Agency must remove the suspension within five working days or dismiss the appeal. A second right of appeal, on the same grounds, then lies to the District Court if the Agency does not remove the suspension. The grounds of appeal include failure to give notice in accordance with s 95(2). For my part it may be presumed that the notice must be given in a manner consistent with

fundamental rights affirmed by the NZBOR.2[2] Breach of those rights is a relevant

factor in deciding whether the notice was properly given and then whether the suspension should be set aside. But in light of the careful and detailed way Parliament has framed the suspension procedures, with immediate effect on notice and two rights of appeal, it seems to me that the suspension remains valid until set aside on appeal. A corollary of this is that driving while suspended is logically a

separately actionable offence, requiring only proof of formal notice, valid on its face, and the act of driving.[3]

[19] Be that as it may, I propose to examine the merits of the stated grounds of appeal and determine whether evidence of the suspension should have been excluded from the prosecution.

Arbitrary detention

[20] I do not think it is available to the police to argue now that Mr Alexander was not detained. The constable “instructed” Mr Alexander to go to the Oxford Police Station. Presumably the constable meant what he said in his evidence and not a diluted and inconsistent proposition, namely that he merely requested Mr Alexander to accompany him. Any attempt by the constable on retrial to dilute that evidence would raise serious doubts about his credibility.

[21] It is further common ground that there was no lawful authority, express or implied, to require Mr Alexander to attend the Oxford Police Station. Rather, what should have happened is that Mr Alexander should have been given the opportunity, in an open ended way, to attend the Oxford Police Station for the purposes of receiving the notice of suspension. If Mr Alexander would not do so, the constable could have delivered notice to Mr Alexander at a subsequent time. I also accept that in the absence of some special circumstances, an unlawful detention will be arbitrary and in contravention of s 22 of the NZBORA which provides:

22 Liberty of the person

Everyone has the right not to be arbitrarily arrested or detained.

[22] But the nature of this detention needs to be put into its proper context, namely that the officer was under a mandatory duty to give notice, and secondly, that the purpose of s 95 is plainly to remove specified drivers from the road, no doubt

because they present, by their actions, a clear danger to other drivers. Given the authority of R v Goodwin (No 2),[4] I do not consider it is available to me to reach the conclusion that the detention was not arbitrary. But I observe that it is so only by a fine margin having regard to the circumstances just mentioned. This, of course, is relevant ultimately to the critical issue of whether or not, under s 30 of the Evidence Act 2006, evidence of the suspension ought to be excluded.

[23] In terms of aggravating factors, it has to be asked why Mr Alexander and his family were kept waiting for such a lengthy period in Oxford. In the ordinary course, the production of a notice in the form prescribed by the regulations would be given contemporaneously with a speeding fine, at the place of the speeding. At a minimum, they were kept waiting for half an hour. On some of the evidence they were kept waiting for as long as two to three hours. Either way, that is a substantial interference with the liberty of Mr Alexander, and his family, and one that is not contemplated by s 95 or warranted by it.

[24] On that basis, I am prepared to find that the detention was arbitrary and the impropriety of that detention sufficiently substantial to require a careful examination of whether or not, in the circumstances, the evidence about the suspension ought to come in. Ultimately I have resolved that exclusion of the evidence of suspension would be disproportionate to the impropriety in this case. A key feature in my reasoning is that the impropriety has nothing to do with the evidence of the actual offending, namely the act of driving while under suspension. I think very serious doubts about the credibility of our justice system would arise if a person such as Mr Alexander, knowing that he or she is subject to a notice of suspension, can raise a breach of the NZBORA which has nothing to do with proving the act of speeding or the act of driving while under a suspension. In addition, I consider that to the extent that there is a remedy, it should have been pursued via an appeal against the suspension pursuant to ss 101 and 109 of the Land Transport Act. Apparently Mr Alexander did not do so because when he rang a 0800 number they told him there was no evidence of his licence being suspended. But it was incumbent on

Mr Alexander, if he felt that his rights had been seriously breached, to pursue relief by way of an appeal.

[25] For those reasons, I do not consider that I am obliged to exclude the evidence and to the extent that I have any residual discretion, I do not consider that it is appropriate to do so.

Unreasonable search and seizure

[26] Mr Maze relies on s 21 of the NZBORA which provides:

21 Unreasonable search and seizure

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

[27] I will accept for present purposes, that the NZBORA contraventions mentioned above relating to unlawful detention apply to and colour the conduct of the police insofar as they searched and/or seized material belonging to Mr Alexander. I do not accept the next proposition, namely that there was a seizure because Mr Alexander’s right to drive was taken from him. It is suggested by Mr Maze that this falls within the general definition of seizure, namely:[5]

To take possession; of (property etc) forcibly, capture (a place), annex (a country), take possession of (contraband, assets, documents etc) by warrant or legal right: confiscate, impound, arrest (a person), take prisoner.

[28] At the risk of undue conservatism, I find it difficult to conceptualise the right to be free from unreasonable search and seizure as including a right to be free from having one’s licence suspended. I readily accept that intangible property, such as information, can be seized. I am also prepared to accept that suspension of a driver’s licence is a form of taking and holding of the driver’s right to use public highways. But I think that Parliament in using the everyday language of “search” and “seizure”, as opposed to broader language (such as the right to be free from unlawful infringement of personal autonomy, rights or liberties) intended the right to attach to

the person or to objects rather than rights per se. Indeed in using the words “search” and “seizure” the focus is plainly on identifiable incidents of autonomy including the person and property (whether tangible or intangible). So while personal autonomy is a key value underlying ss 21 and 22 of the NZBORA, Parliament has reified that concept in a very particular way when using the language of “search” and “seizure”.

[29] Even if I am wrong in this conceptual analysis, I consider that “search” and “seizure” mis-describe the consequences of the giving of notice under s 95. The police are not exercising a power of “search” or “seizure”. Rather the police are carrying out a mandatory duty to give notice, as demanded by Parliament, a consequence of which is the suspension of the licence.

[30] In light of my findings on this aspect, I need not enquire further as to whether or not the evidence of suspension should be excluded from consideration. But I have to say, for the same reasons noted in my discussion on arbitrary detention, that the balance favours the inclusion of the evidence of suspension. In this regard I make a further observation. While it might be said that the offending is at the lower end of the scale and not serious, and that is a factor supporting exclusion, driving with excess speed (and/or excess alcohol) are matters of significant public concern. The

Supreme Court in Aylwin v New Zealand Police[6] expressed limited tolerance for

offending of this nature, given the dangers presented by it. I therefore consider that there are significant policy reasons for taking a firm line in relation to such offending, and which firmly support the inclusion of evidence of such offending, unless the impropriety in question is serious and directly linked to the gathering of the evidence of offending. As I have said, I do not think that the impropriety should be categorised in that way for the reasons set out at [28].

Final observation: no defence

[31] This judgment should not be seen to be condoning unlawful police conduct. The rule of law has limited tolerance for unlawful exercise of the State’s coercive

powers. Also, as s 101 specifies, non-compliance with the statutory requirement to give notice will provide a basis for removing suspension. But as I have said, the statutory scheme provides for immediate suspension if an officer has reasonable grounds for believing that a driver has exceeded the speed limit by 50km/hr. That scheme and the statutory purpose of securing public safety could be seriously undermined if suspended drivers could nevertheless assert a continuing right to drive in advance of successfully exercising rights of appeal. Accordingly, the immediate effect of suspension is legislatively mandated and, in my view, is not amenable to retrospective invalidity for the purpose of defending a charge of driving while

suspended.[7]

[32] Given the above, the appeal is dismissed.

Solicitors:

R Maze, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent

---

[1] New Zealand Police v Alexander DC Christchurch CRI 2012-009-019115, 27 February 2012.

[2] By analogy see: R v Goodwin (No 2) [1993] 2 NZLR 390; cf. also R v Secretary of State of the
Home Department, ex p Pierson [1997] UKHL 37; [1998] AC 539 at 591; Wade and Forsyth at 19-20.

[3] cf R v Wicks [1997] UKHL 21; [1998] AC 92; see also Moffat v New Zealand Transport Agency HC Dunedin

CIV 2010-409-002397, 24 June 2011, at [63] and [64].

[4] R v Goodwin (No 2) [1993] 2 NZLR 390 at 394.

[5] Shorter Oxford Dictionary (6th ed , Clarendon Press, Oxford, 2007) Vol 2 page 2739 col 3.

[6] Aylwin v New Zealand Police [2008] NZSC 113 at [17].

[7] cf Birchler v New Zealand Police [2010] NZSC 109 at [17], where failure to comply with statutory procedure provided a defence to the charge of driving with excess blood alcohol.