Alexander v Police - [2012] NZHC 1686

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

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alexander v Police

Details

AGLC: Alexander v Police [2012] NZHC 1686
Case: [2012] NZHC 1686
Decision Date: 18 July 2012

CaseChat Overview and Summary

Trevor John Alexander appeals against his conviction for driving while his licence was suspended. The basis for the appeal is that the evidence of the suspension was obtained in breach of sections 21 and 22 of the New Zealand Bill of Rights Act 1990 (NZBORA) and should therefore be excluded. The court must determine whether the NZBORA was breached and whether this provides a basis for excluding the evidence of suspension. The court must also consider whether a breach of the NZBORA, if proven, vitiates the suspension.

The District Court found that Mr Alexander was speeding and that the officer acted appropriately in serving the notice of suspension. The court found that the detention and waiting time were not relevant to the service of the suspension notice. The District Court concluded that the prosecution had proven beyond reasonable doubt that Mr Alexander had his licence suspended and that he was driving a motor vehicle on a road.

The court found that the Constable did not have lawful authority to require Mr Alexander to accompany him to the police station for the purpose of serving him with a notice of suspension. The court found that the detention was arbitrary and in contravention of section 22 of the NZBORA. However, the court found that exclusion of the evidence of suspension would be disproportionate to the impropriety in this case. The court found that the impropriety had nothing to do with proving the act of speeding or the act of driving while under a suspension. The court found that the balance favoured the inclusion of the evidence of suspension.

The court found that the right to be secure against unreasonable search or seizure does not include a right to be free from having one’s licence suspended. The court found that the police were carrying out a mandatory duty to give notice, as demanded by Parliament, a consequence of which is the suspension of the licence. The court found that the balance favoured the inclusion of the evidence of suspension.

The court found that the appeal was dismissed. The court found that 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. The court found that the immediate effect of suspension is legislatively mandated and is not amenable to retrospective invalidity for the purpose of defending a charge of driving while suspended.

Orders