C v Police HC Auckland Cri-2008-404-90

[2008] NZHC 727

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-404-000090

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 May 2008

Appearances: Appellant in person

E R Harrison for Respondent

Judgment:      20 May 2008 at 11:00 am

JUDGMENT OF COURTNEY J

ON APPEAL AGAINST CONVICTION AND SENTENCE

This judgment was delivered by Justice Courtney on 20 May 2008 at 11:00 am

pursuant to r 540(4) of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

Solicitors:           Meredith Connell, P O Box 2213, Auckland

Fax: [phone] – E Harrison

Copy to:             R C 

C V NZ POLICE HC AK CRI-2008-404-000090  20 May 2008

[1]      Mr C   appeals from his conviction on a charge under s 52(1)(c) Land

Transport Act 1998 that he failed to comply with the requirements given under s

113(2)(e) Land Transport Act 1998 by an enforcement officer in that, being the driver of a motor vehicle, he drove his vehicle during a period that he had been forbidden to drive.

[2]      Mr C   had been the holder of a “lifetime licence” issued before the coming into force of s 23 Land Transport Act 1998.  Section 23 (4) required that:

All driver licences in force immediately before this subsection comes into force continue in force and expire on a date to be determined in accordance with the rules, even though they may have been valid for more than ten years when issued.

[3]      Rule 112 Land Transport Rules provides that:

(1)       A driver licence continued in force by s 23(4) of the Act and any endorsement held in accordance with clauses 107 to 110, expires when the first of the following occurs:

(a)60 days has elapsed after the date of the first birthday of the licence holder to occur on or after 3 May 1999…

[4]      It was common ground that Mr C   had not obtained a new licence after 3 May 1999.   In February 2005 he was issued with a traffic offence notice under s 113(2)(e) Land Transport Act 1998 which forbade him to drive.   Section

113(2)(e) permits an enforcement officer to:

(e)       Forbid an unlicensed driver to drive a motor vehicle…

[5]      In September 2007 Mr C   was stopped and it was ascertained that the only licence he held was the “lifetime licence” and that he was an unlicensed driver who had been forbidden to drive.   Since it had clearly been proven that Mr C    had  failed  to  comply with  the direction  forbidding  him  to  drive Justices of the Peace convicted him.

[6]      Mr  C  ’s  appeal  is  based  on  his  very  strong  view  that,  having acquired his “lifetime  licence”  in  good  faith  and  at  some  cost,  the  Crown  was

obliged to honour that license and could not treat him as unlicensed.  He argued that the Crown’s failure to honour the life time licence would put it in breach of s 242

Crimes Act 1961.  It is, however, perfectly clear that s 242 has no application to the current situation.  It is directed very specifically towards false statements made in the promotion of incorporated or unincorporated bodies, of which the Crown is not one and nor is the issuing of driver licences a promotion of the kind that might fall within s 242.

[7]      If the enforcement officer who issued the direction under s 113 in February

2005 was entitled to do so then there can be no question that Mr C   is guilty of contravening that direction and liable under s 52(1)(c).  The enforcement officer was  entitled  to  issue  the  direction  under  s  113(e)  if  Mr  C    was  an “unlicensed driver” within the meaning of that section.  Whether a person who has failed to upgrade from a “lifetime licence” following the introduction of s 23 Land Transport  Act  1998  was  specifically  considered  in  Police  v  Sinclair1    where Heron ACJ held that an “unlicensed driver” for the purposes of s 96 (which permits the seizure and impounding of vehicles driven by unlicensed drivers) included those

holders of licences that had expired as a result of s 23 Land Transport Act 1998.

[8]      The term “unlicensed driver” is not actually defined in the Land Transfer Act. However, the Judge in Police v Sinclair considered that the expression included a person whose driver licence had expired as well as one who had never held a driver’s licence.  I consider that that is the correct position.  An unlicensed driver in everyday language is one who holds no current authority to drive.  It is clear that as a result of s 23(4) previous lifetime licences would expire and therefore have no effect 60 days after the date of the first birthday of the licence holder after 3 May 1999.  A person whose licence has expired in these circumstances must be regarded as an “unlicensed driver”, since he or she no longer has any authority to drive.  It follows that a person in such a position may be the subject of a direction under s 113(2)(e).  There being no dispute as to any of the other facts the conviction was properly entered.   The appeal is therefore dismissed.

1 [2001] 1 NZLR 355

[9]      Although Mr C  ’s appeal was said to be in respect of both sentence and conviction he made no submissions to me regarding sentence and I consider that the fine of $200 was not manifestly excessive and the appeal against sentence should

also be dismissed.

P Courtney J