Drummond v Police

[2014] NZHC 1851

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000050 [2014] NZHC 1851

DONALD STUART DRUMMOND

v

NEW ZEALAND POLICE

Hearing:	7 August 2014
Appearances:	Appellant in person S J Jamieson for Respondent
Judgment:	7 August 2014

JUDGMENT OF DUNNINGHAM J

[1]      On 22 November 2013, the appellant, Mr Dummond, was stopped by police while driving a friend, Ms Ngaire Guest, to her home.

[2]      It transpired that Mr Drummond had, about a month before, been suspended from  driving  for accumulating excess  demerit  points  and  should  not have been driving at the time.   He was charged with, and pleaded guilty to, driving while suspended.

[3]      When Mr Drummond appeared for sentencing he applied under s 81 of the Land Transport Act 1998 for relief from the mandatory six month disqualification that would apply.   To support his approach he provided affidavit evidence to the Court about the circumstances in which he came to be driving his friend Ms Guest on  that  day.    Ms  Guest  also  provided an  affidavit  which  simply confirmed his

account of events.  The District Court Judge was somewhat critical of the lack of

DRUMMOND v NEW ZEALAND POLICE [2014] NZHC 1851 [7 August 2014]

direct affidavit evidence from Ms Guest about her reasons for needing a driver to take her home on that day.

[4]      In  the  end,  Judge  Garland  decided  that,  although  Mr  Drummond  was genuinely helping his friend out, his explanation for why he was driving did not amount to “special reasons” under s 81 to avoid a six month disqualification.  He sentenced Mr Drummond to a fine of $300 and Court costs, plus a six month period of disqualification.

The appeal

[5]      Mr Drummond appeals the mandatory disqualification period of six months imposed by Judge Garland.  The grounds of appeal essentially say that he has been let down by counsel, who should have had the matter adjourned to allow him to file a more fulsome affidavit from his friend, Ms Guest.

[6]      For completeness, I note that Mr Drummond’s appeal was filed late, although the Crown takes no issue with this.  Furthermore, the technical requirements of the Criminal Procedure Rules 2012 have not been followed when an appeal involves challenges to the conduct of a trial lawyer or the introduction of fresh evidence. However, nothing really turns on this, because, as I explain below, the affidavit evidence filed by Ms Guest does no more than put on a more firm footing the evidence which the Judge had regard to when he sentenced Mr Drummond.

The supporting affidavit

[7]      Mr Drummond has now filed an affidavit from Ms Guest.   It simply spells out in more detail the explanation that was provided by way of Mr Drummond’s affidavit at the District Court hearing.

[8]      In summary, Ms Guest says that on the day of the offence, she had been visiting her daughter in the suburb of Avonside.  Her daughter’s partner, who drove her there, was then arrested for outstanding fines and taken to the police station.  At around 2.10 pm he had still not returned to the house to take her home.

[9]      While Ms Guest only lives some two kilometres from her daughter’s place, it seems the fact she has a fused ankle makes walking this distance difficult (although that is not expressly said in the affidavit).  However, she decided to attempt to walk home because she said she needed to get home to meet her adult son who was getting home from work at about 3.00 pm and did not have a key to get in.  As soon as she began her walk she was confronted by a group of three young males who began harassing her about her gait, so she went back into her daughter’s house and telephoned several people for help.  One of the people she called was Mr Drummond who said he could not do it as he had been told he was disqualified.  Nevertheless, about 20 minutes or so later he turned up in her friend’s car to give Ms Guest a ride home.  It was on that ride home that he was stopped by police.

Legal Principles applying

[10]     The  central  issue  on  appeal  is  whether  the  circumstances  in  which Mr Drummond drove constitute “special reasons” for the purpose of s 81 of the Land Transport Act 1988 sufficient to justify not imposing a mandatory period of disqualification of at least six months.

[11]     The  approach  by  an  appellate  Court  when  considering  s  81  of  the Land Transport Act has been usefully summarised by Collins J in Morgan v Police, as follows:1

[12]      Section 250 of the Criminal Procedure Act 2011 provides that I must allow the appeal if I am satisfied that “for any reason, there is an error in the sentence imposed”, and a different sentence should be imposed”.

[13]    A decision not to waive an otherwise mandatory period of disqualification from driving can involve both:

(1)      an assessment of fact and application of law in determining

whether “special reasons” exist; and

(2)      the exercise of judicial discretion in making an order other than the mandatory disqualification.

[14]     Thus,  an  appeal  from  a  decision  that  makes  an  assessment  of whether the circumstances of the offending constitute “special reasons”  is  subject  to  the  standards  of  appeal  articulated  by  the

1      Morgan v Police [2013] NZHC 3431.

Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.  In this type of appeal:

(1)      The appellate court must reach its own view on the merits of the appeal, bearing in mind.

(2)      The appellant bears the onus of satisfying the appellate court that it should differ from the decision appealed from.

[15]     However, where the appeal focuses upon the way in which judicial discretion has been exercised, the test to be applied is that set out in May v May.9 In this type of appeal the appellant must show that the decision-maker:

(1)      made an error of principle; or

(2)      failed to consider all relevant matters or took into account irrelevant matters; or

(3) reached a decision that was plainly wrong.

Do special reasons exist?

[12]     As the District Court noted at [4]:

The Court is often faced with explanations of people not complying with orders suspending them from driving, or orders disqualifying them from driving.

I accept,  therefore,  the  Crown  submission  that  the Court  needs  to  take care  in determining whether the reason advanced constitutes a special reason.  As was said by Goddard CJ in Whittall v Kirby:2

The limited discretion must be exercised judicially.   The reasons inducing the Court to exercise it must be special, and special is the antithesis of general.

[13]     In identifying the threshold for what constitute a special reason, I am assisted by the comments of Ronald Young J in Gommans v Police,3 where he said:

A Court could hardly find there were special reasons justifying no disqualification where all reasonable alternatives to the appellant driving were not eliminated.

2      Whittall v Kirby [1974] KB 194-2000.

3      Gommans v Police HC Palmerston North, CRI-2006-454-2, 8 February 2006, Ronald J Young.

[14]     A special reason is, therefore, not simply a reason, or even a good reason, but must  be  of  a  sufficiently  compelling  nature  to  justify departing  from  the  usual consequence for disobeying a legal prohibition on driving.

[15]     In this case the appellant submitted that Ms Guest could not have availed herself of public transport, as she would need to have walked 400 metres to catch the bus and then another 500 metres from the bus stop to her home.  He also referred to her evidence that, as a beneficiary, a taxi ride was too expensive for her.

[16]     I  have  considered  these  explanations,  alongside  the  original  reasons, including her difficulty in walking the two kilometres and her encounter with the youths who harassed her.  I also take into account Mr Drummond’s acceptance that her reason for wishing to get home by 3.00 pm was that her adult son, who was a tradesman, did not have a key to get in.

[17]     Having considered all the evidence, including Ms Guest’s affidavit, I am still left in the same position as the District Court Judge, which is while Mr Drummond was genuinely endeavouring to help his friend out, this was not a situation of such urgency or importance that justified Mr Drummond driving unlawfully.

[18]     While  Mr  Drummond  sought  in  oral  submissions  to  provide  additional reasons why Ms Guest needed to be home at 3.00 pm to meet her adult son, (that he did not have a functioning cell-phone and that he would be worried that his mother would not be there), I was not prepared to accept this further hearsay evidence, particularly given the latitude already extended to Mr Drummond to file further affidavit evidence.

[19]   In conclusion, I consider Mr Drummond drove more for his friend’s convenience, and to save her the cost of alternative transport, than because there was any real urgency to get  her home.   The circumstances revealed in the affidavit evidence do not constitute special reasons under s 81, either in fact or in law.

[20]     The appeal therefore is dismissed.

Solicitors:

Raymond Donnelly & Co., Christchurch