F v Police HC Whangarei CRI-2008-488-016

[2008] NZHC 2465

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2008-488-016

F

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 July 2008

Appearances: Appellant in person

Mr M B Smith for Respondent

Judgment:      31 July 2008

JUDGMENT OF LANG J

[on appeals against conviction and sentence]

This judgment was delivered by me on 31 July 2008 at 3 pm, pursuant to Rule

540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Crown Solicitor, Whangarei
Copy to:

Mr M J F  .

F V NZ POLICE HC WHA CRI-2008-488-016  31 July 2008

[1]      On 19 February 2008 His Honour Chief Judge Johnson convicted Mr F   in the  District  Court  at  Kaitaia  on  a  charge  of  driving  after  having  earlier  been forbidden by an enforcement officer from doing so.    He fined Mr F   $400 and ordered him to pay Court costs of $130.

[2]      Mr F   now appeals to this Court against conviction and sentence.

The facts

[3]      On 16 February 2007 the police stopped Mr F   whilst he was driving a vehicle in Northland.   There is no dispute that he did not hold a valid New Zealand driver’s licence at that time.    The licence that he had held some time earlier had expired by virtue of the fact that it had not been upgraded to the current form of driver’s licence that includes a photograph of the licence holder.

[4]      The police officer who stopped Mr F   on 16 February 2007 charged him with driving without an appropriate licence and forbade him from driving until he had obtained a current driver’s licence.

[5]      Some five months later, on 15 July 2007, another police officer saw Mr F   driving in the vicinity of Coopers Beach.   Mr F   contended on this occasion that he was entitled to drive because he held a valid British driver’s licence.

The issue

[6]      During the hearing in the District Court Mr F   endeavoured to sidetrack the proceeding by raising issues that were much wider than the determination of the charge required.    These included a submission that the courts of New Zealand are now involved in money gathering and that they are thereby in breach of s 98 of the Crimes Act 1961.   That section makes it an offence to deal in slaves or induce others to engage in debt-bondage.   The Judge firmly declined to probe those issues because they were not relevant to the essential issues that he was required to determine. During the hearing before me Mr F   devoted most of his argument to the same

issues.   I, too, decline to deal with them because they are simply not relevant to the issue that this Court is required to determine.

[7]      The only issue to be determined at the original hearing, and again on appeal, is whether the prosecution had proved that Mr F   was driving whilst forbidden to do so on 15 July 2007.

The statutory provisions

[8]      Section 113(2)(e) of the Land Transport Act 1998 authorises an enforcement officer at any time to forbid an unlicensed driver to drive a motor vehicle.   Section

52(1)(c) of the Act creates an offence where any person “fails or refuses to comply with any lawful requirement or prohibition imposed on him or her by an enforcement officer …”.

The defence

[9]      In the District Court Mr F   contended that, when the police officer forbade him to drive on 16 February 2007, that action was invalid because he had a valid driver’s licence at the time.   He contended that the British licence that he produced as an exhibit was a valid licence.

Decision

[10]     As the Judge noted, the British licence appears to be valid on its face.   New Zealand is also subject to international obligations to enact legislation authorising the use  of  valid  driving  licences  issued  by  other  countries.      This  country  has endeavoured to meet its obligations in this regard by passing r 88 of the  Land Transport (Driver Licensing) Rules 1999 which provides as follows:

88       Recognition of overseas driver licence or permit

(1)       A person, on arrival in New Zealand, is deemed to hold a New Zealand driver licence of a class that entitles the person to drive the motor vehicles that the person is entitled to drive under—

(a)     A valid [and current]driver licence or permit issued [overseas]to the person, after the person has produced proof of the person's driving

competence, by an overseas authority, or an agent of that authority, authorised to issue a driver licence or permit; or

(b)A  valid  [and  current]international  driving  permit  as  specified  in Annex 10 to the United Nations Convention on Road Traffic signed at Geneva on 19 September 1949 or Annex 7 to the United Nations Convention on Road Traffic signed at Vienna on 8 November 1968 and issued [overseas] in accordance with the provisions of the appropriate convention.

…

[11]     The right to use an overseas licence in New Zealand is, however, restricted in terms of the length of time for which the right enures.   Rule 88(2) provides:

(2) A person who is deemed by subclause (1)to hold a New Zealand driver licence may continue to drive

under that driver licence until the first of the following situations occurs:

(a) the person has remained in New Zealand for a continuous period of 12 months; or]

(b) The document that enabled that person to be deemed to hold a New Zealand driver licence under subclause (1) expires, is suspended, or is revoked; or

(c) An order is made disqualifying the person from holding or obtaining a driver licence, either in New Zealand or in the jurisdiction that granted the [overseas driver] licence or permit[; or]

(d) the person obtains a New Zealand driver licence.]   (Emphasis added)

[12]     As a result of r 88(2)(a), a person who wishes to drive in New Zealand in reliance on an overseas licence may only do so for a period of 12 months after his or her arrival in New Zealand.

[13]     Mr F  ’s evidence was that he returned to New Zealand after obtaining the British licence as long ago as 1995.   This means that he became unable to rely on the protection provided by r 88(1)(a) at some stage during 1996.   He therefore did not have a valid licence to drive in New Zealand at any stage during 2007.

[14]     During the hearing before me Mr F   pointed to the fact that the District

Court has now dismissed the prosecution in which he was charged with driving on

16 February 2007 with an inappropriate licence.    He submitted that his success in

that prosecution meant that the direction or prohibition that the police officer gave on

16 February 2007 was invalid.

[15]     This is clearly not the case.   I have now obtained a copy of the judgment in which His Honour Judge de Ridder dismissed the information against Mr F  : Police v F   District Court Kaikohe CRI 2007-029-000570 9 April 2008.    The judgment reads as follows:

[1]       This matter is a charge which was originally started by way of an infringement  notice  of  driving  without  an  appropriate  licence.      The Defendant Mr F   indicated a wish to have this matter heard in a full defended  hearing  in  the  District  Court  and  on  23  January  2008  it  was allocated a fixture of 22 April 2008.     On 4 March 2008 the Defendant telephoned the Registrar and requested an adjournment and that was put in front of me today for consideration.

[2]       Mr F   has appeared today and indicated that he was ready to proceed today initially and then realised he was perhaps dealing with another matter.   The Police have now informed me that it is not likely that the Officer in Charge of this case will be present at any time in the near future to give  evidence  and  therefore  offers  no  evidence.      On  that  basis  the information is dismissed.

[16]     It is clear from the passages referred to above that the District Court has never determined that Mr F   holds a licence that entitles him to drive in New Zealand.     Rather, it dismissed the information on 9 April 2008 because the prosecution was not likely to be in a position to proceed with it in the near future.   It follows that the dismissal of that prosecution has no relevance to the present case.

[17]     I therefore agree with the conclusions that the Judge reached.    The British driver’s licence did not authorise Mr F   to drive in New Zealand in 2007.   As a result, the police officer was entitled on 16 February 2007 to forbid him from driving until such time as he obtained an appropriate licence.   In driving his motor vehicle on 15 July 2007 Mr F   breached that prohibition.     The Judge was therefore entitled to find the charge proved.

Result

[18]     The appeal against conviction is dismissed.

[19]     Mr F   did not advance any submissions in relation to the sentence that the Judge imposed upon him.    I am satisfied, however, that it is broadly in line with other sentences imposed in the District Court for like offending and that there is no basis for this Court to disturb it.

[20]     The appeals against conviction and sentence are accordingly dismissed.

Lang J