C v Police HC Christchurch Cri-2010-409-117

[2010] NZHC 1489

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000117

C

Appellant

v

POLICE

Respondent

Hearing:         18 August 2010

Appearances: P N Allan for Appellant

A R MacGougan for Respondent

Judgment:      18 August 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      This is an appeal against conviction.

[2]      Following a defended hearing in the District Court, the appellant, Mr C  , was convicted of driving while his licence was suspended.   The Judge fined him

$300, Court costs of $130, and disqualified him from driving or obtaining a driver’s

licence for a period of six months.

C V POLICE HC CHCH CRI-2010-409-000117  18 August 2010

The hearing in the District Court

[3]      It was common ground at the hearing that on 22 September 2009 Mr C   was served with a notice under s 90 of the Land Transport Act 1998.  It was also common ground that as that date Mr C   had accumulated 100-plus demerit points. Those were incurred as the result of a series of breaches of his learner’s licence.  The notice advised him that his licence was suspended immediately for a period of three months.

[4]      At the hearing, the prosecution called evidence from the process server who had served the suspension notice, and the arresting officer.  The latter had stopped Mr C   when he was driving on 30 November 2009.

[5]      Mr C   also gave evidence.  He testified that on 1 September 2009 (that is to say before the notice was served) he had obtained a restricted licence.   This followed a conversation in May 2009 with “the fines people”, and advice that insinuated if he kept his nose clean and got a restricted licence he would have his fines  and  demerit  points  from  his  learner’s  licence  remitted.    Mr  C    further testified that when he was served with the suspension notice he told the process server about his conversation with “the fines people” and that the process server told him not to drive until the fines and demerit points had been wiped.

[6]      Some time later, Mr C   said, he received a phone call from the Court stating that he now had all his learner licence fines remitted, so he thought he was OK to drive from there, and did so.  His belief that he was entitled to drive was, in his mind, further reinforced when he was stopped in mid-November by another police  officer  for  speeding.    Nothing,  however,  was  said  about  him  being  a suspended driver.

[7]      There was written confirmation provided to the Court that there had been a conversation with Mr C   on 15 May 2009 about remitting of fines, the obtaining of a restricted driver’s licence, and the need to avoid further offending in the Court system.  Also produced was a computer printout showing that Mr C  ’s fines had indeed been remitted by a District Court Judge on 14 October 2009, which was a

date after the suspension notice had been served, but before he was stopped for driving in November.

[8]     The prosecution evidence confirmed that Mr C   had given this same explanation for driving to the officer when he was stopped at the end of November and challenged about his licence.  The process server also confirmed that Mr C   had raised the general topic of remission or wiping of fines and demerit points with him.

[9]      In his decision, the Judge referred to a submission that the defence was one involving mens rea and that if the defence makes out an evidential foundation then it is for the prosecution to negate the suggestion that the defendant believes on reasonable grounds, or believed at all really, that his suspension did not apply.

[10]     The Judge continued:

[6]       I cannot accept that that is sufficient to raise an evidential foundation whereby he could reasonably believe that he did not have his driver’s licence suspended.  Frankly he is served by an official with a notice which is in very specific terms and that says in black and white he has lost his licence.  To then leap from the position where he knows he had lost his licence to the position where he thought it was okay to drive because fines were remitted on the basis of (a) a telephone conversation with an unknown Court staff member and (b) some evidence that indeed fines were remitted is, in my view, a leap of faith not a leap of evidence.   I do not think that he can properly claim that he had a reasonable belief.  The only concrete evidence I have before me is as unclear and unequivocal as it can be that he was told that he did not have his driver’s licence.  If he felt that somehow or another things  were at fault no  doubt  he  could have  taken  steps relating to his driver’s licence.

[7]       Driving licences are different from fines remission.  They are not the same thing and as the sergeant has pointed out Mr C   has lost his licence in the past as a result of infringements.  So I do not feel that the defendant has raised the evidential foundation.  I think he has said that he had some doubts about it but just saying that and extrapolating that into the kind of defence he wishes to run in my view is not an appropriate way to go about it. Accordingly, the defendant will be convicted.  I find the charge proved.

Grounds of appeal

[11]     On appeal, Mr Allan submits that the Judge has made an error of principle in that he wrongly considered the mistake had to be both honest and reasonable before

it could afford a defence.   Mr Allan submits that an evidential foundation for the appellant’s belief he was entitled to drive was clearly made out.  He further contends that the Judge accepted the belief had been genuinely held, and accordingly the conviction should be quashed.

Discussion

[12]     There is no question that the offence of driving while suspended is an offence requiring proof of mens rea.  That was established in the landmark Court of Appeal decision of Millar v Ministry of Transport [1986] 1 NZLR 660. It is clear from Millar that what was meant is that the prosecution must prove beyond reasonable doubt the defendant knew he or she was disqualified.  Knowledge of disqualification is to be assumed in the absence of evidence suggesting otherwise.   A defendant claiming lack of knowledge must therefore point to some evidence to raise the issue, and if there is such evidence the prosecution is required  affirmatively to prove knowledge beyond reasonable doubt.  There is no onus on a defendant to satisfy the Court he or she had reasonable grounds for the mistaken belief.

[13]     I accept that the Judge in this case does appear to have misdirected himself by importing a reasonableness requirement.

[14]     I also accept, given the facts that I have summarised above, that there was an evidential foundation.

[15]     In my view, however, the key issue is whether the mistake at issue was a mistake of law or a mistake of fact.  In my view, correctly analysed, the mistake that Mr C   made was a mistake as to the legal effect of his fines being remitted.  What Mr C   said in evidence was that he had been told the fines had been remitted, and the reason he drove was because he was labouring under the mistaken belief that the effect of the fines being remitted was that his demerit points were also remitted.

[16]     I am satisfied that properly characterised, the mistake was one of law, not fact.  It follows that the conviction must stand, because of s 25 of the Crimes Act

1961.  Section 25 provides that the fact that an offender is ignorant of the law is not

an excuse for any offence committed by him.   I consider that this case is indistinguishable from the domestic protection cases such as Skelton v Police HC Timaru AP22/97, 25 November 1997, Chisholm J; Walker v Police HC Auckland CRI-2004-404-000362,  17  August  2005,  Potter  J;  and  Alofaki  v  Police  HC Whangarei CRI-2006-488-000043, 19 March 2007, Baragwanath J.

[17]     Mr Allan asked me, if I was minded to come to that conclusion, to then go on to treat this as an appeal against sentence and consider whether the mistake could constitute special reasons as to why the six-month mandatory period of disqualification should not be imposed: see s 81(1) Land Transport Act.  Mr Allan contended, and I agree, that the District Court Judge seems to have accepted the mistake was indeed genuinely held.   In those circumstances, Mr Allan argued this was a special reason pertaining to the offence and that it was unjust for Mr C   to suffer a period of disqualification for as long as six months.

[18]     I accept that the mistake is a matter capable of qualifying as a special reason. I am prepared to take it into account.  On the other hand, I am not prepared to impose no  disqualification  period  at  all.    There  is  an  element  of  fault  in  Mr  C  ’s behaviour.   He was extraordinarily casual, and should have made greater effort to confirm that the position was indeed as he understood it.

Outcome

[19]     In all the circumstances, I have decided to quash the disqualification period of six months, and on the grounds of special reason, substitute a period of disqualification of three months.

[20]     In all other respects, the sentence imposed by the District Court Judge is confirmed, as of course is the conviction for the reasons I have given.

Solicitors:

P N Allan, Christchurch

Crown Solicitor’s Office, Christchurch