Fletcher v Police HC Invercargill CRI-2011-425-000032
[2011] NZHC 1415
•25 October 2011
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2011-425-000032
GRAHAM PETER FLETCHER
Appellant
v
POLICE
Respondent
Hearing: 27 September 2011
Appearances: A Tobeck for Appellant
S McKenzie for Respondent
Judgment: 25 October 2011
RESERVED JUDGMENT OF HON JUSTICE FRENCH
Introduction
[1] When granting limited licences to disqualified drivers, it is common practice for the District Court to impose conditions requiring the driver to keep a logbook and to identify themselves as a disqualified driver should they be stopped by an enforcement officer.
[2] The issue raised by this case stated is whether the District Court has jurisdiction to impose such conditions.
[3] It appears to be the first case in which the power to impose these particular conditions has ever been challenged.
FLETCHER V POLICE HC INV CRI-2011-425-000032 25 October 2011
Factual background
[4] Mr Fletcher was convicted in the District Court of driving with an excess breath alcohol level. He was fined $2750 and disqualified from holding or obtaining a driver licence for 15 months.
[5] Mr Fletcher is a farming contractor. He needed to be able to drive for work purposes. Following his disqualification, he accordingly applied for and was granted a limited licence.
[6] The order granting the limited licence was made on 26 November 2010.
[7] It specified the various work vehicles which Mr Fletcher would be permitted to drive, the roads on which he could drive and at what times. The order also contains the follow additional conditions:
(a) The Applicant shall be entitled to stop at any service station on route. (b) The Applicant will not drive when another driver who is licensed
and insured to drive the vehicle concerned is in the vehicle.
(c) The Applicant at all times whilst driving shall complete a logbook in the format detailed in Schedule C hereof[1] and shall prior to undertaking any journey clearly record in English all details pertaining to that trip including start times for his driving plus finish times at the conclusion of each journey. He shall also clearly record any driving under paragraph (b) herein as being driving for work purposes in a vehicle allowed by this order.
[1] The reference to Schedule C was incorrect. It should have been ‗Schedule B‘. The order was also defective in that, contrary to s 105(3)(a)(i) of the Land Transport Act 1998, it did not specify the purpose for which the limited licence was issued. Nothing turns on either error.
(d) The Applicant will whilst driving carry a sealed copy of the Order granting this Application together with the Limited Licence and his logbook. When stopped by an enforcement officer the Applicant will tell that officer forthwith that he is a disqualified driver and hand to the Officer the Order, the Limited Licence and the Logbook. The Applicant will also carry and produce all Logbook records previously completed in compliance with the conditions of this Licence.
(e) All driving is to be conducted by the shortest and most practical route.
(f) The applicant shall comply with all drivers duties as to driving hours and logbook requirements as detailed in the Transport Act [sic].
[8] On 25 January 2011, Mr Fletcher was driving one of the specified vehicles when he was stopped by an enforcement officer for not wearing his seatbelt. In breach of condition (d) of his limited licence, Mr Fletcher failed to inform the officer that he was a disqualified driver. It transpired that he had also failed to maintain his logbook, contrary to condition (c). There were several incorrect entries in the logbook and some 4396 kilometres unaccounted for.
[9] Police charged Mr Fletcher with driving contrary to the terms of his limited licence.
[10] At a status hearing, counsel advised the Judge that Mr Fletcher did not dispute the police summary of facts. However, he submitted the charge should be dismissed on the grounds that conditions (c) and (d) were unlawful, being conditions which the District Court has no jurisdiction to impose.
[11] The matter was allocated a fixture date for a defended hearing.
[12] However, it was subsequently agreed that because an appeal was inevitable, the most appropriate course of action was for the District Court to state a case for this Court.[2]
[2] Under s 78 of the Summary Proceedings Act 1957.
[13] The case stated is expressed as follows:[3]
[3] R v Fletcher, minute of Judge Whitehead, 4 July 2011.
1. Does the District Court have authority under the Land Transport Act
1998 to impose conditions such as in this case in terms of paragraph (c)
additional conditions of the limited licence order of the District Court dated
26 November 2010 and specifically, does the Court have authority to direct that the applicant at all times whilst driving shall complete a logbook in the
format detailed in schedule [B] of that order?
2. Further, in terms of paragraph (d) of the additional conditions, does the District Court have authority to impose a condition that the applicant will whilst driving carry a sealed copy of the order granting this application, together with the limited licence and his notebook, and when stopped by an enforcement officer for the applicant to tell that officer forthwith that he is a disqualified driver and hand the officer the order, the limited licence and the logbook?
Discussion
[14] The power to grant limited licences is conferred by s 105 of the Land
Transport Act 1998. Section 105 states:
105 Court may make order authorising grant of limited licence
(1) A court may at any time make an order under this section authorising the applicant to obtain… a driver licence (―a limited licence‖) authorising the applicant to drive to such extent (being the least extent that it is necessary to alleviate extreme or undue hardship) as the court specifies in the order.
(2) The court may make an order under this section if satisfied that—
(a) The disqualification or suspension has resulted or will result in—
(i) Extreme hardship to the applicant (whether in relation to employment or otherwise); or
(ii) Undue hardship to a person other than the applicant (whether in relation to employment or otherwise); and
(ab) the applicant meets the criteria specified in sections 103 and
104; and
(b) An order under this section is not contrary to the interests of public safety.
(3) In making an order under this section, the court—
(a) Must specify—
(i) The purpose for which the limited licence is issued;
and
(ii) The particular vehicle or the type of vehicle which may be driven; and
(iii) The days of the week and times at which that vehicle may be driven; and
(iv) Such other matters as may be necessary to limit the order to alleviating the hardship which was alleged and proved; and
(b) May specify in the order such other matters as the court thinks fit.
…
[15] It was common ground that if there was jurisdiction to impose conditions (c)
and (d) then it could only be derived from either s 105(3)(a)(iv) or s 105(3)(b).
Section 105(3)(a)(iv): “such other matters as may be necessary to limit the order to alleviating the hardship which was alleged and proved”
[16] For the police, Ms McKenzie pointed out that conditions (c) and (d) were both part of Mr Fletcher‘s own application. She argued that both conditions were what Mr Fletcher was willing to do to alleviate the hardship to him in being disqualified and were necessary for an officer to check it was being used for alleviating hardship. In her submission, they were therefore matters that came within s 105(3)(a)(iv).
[17] I disagree. In my view, s 105(3)(a)(iv) is concerned with limiting the scope of the permitted driving so as to ensure the licence does not give benefits that go beyond alleviating the hardship that justified the grant of the order in the first place. That construction follows from the preceding subsections and the natural and ordinary meaning of the words. The licence must be to the least extent necessary to alleviate the hardship in question.
[18] Thus, for example in this case, because the hardship which was alleged and proved was the hardship to Mr Fletcher in not being able to earn a living as a farming contractor, s 105(3)(a)(iv) authorised the condition limiting driving to and from the farms on which he is working. It would also authorise the condition that if he had a licensed driver with him while travelling to and from those farms, that person was to do the driving.
[19] In my view, it strains the language and purpose of s 105(3)(a)(iv) to hold that keeping a logbook and disclosing your status are matters necessary to limit the order to alleviating the hardship of disqualification. They may be matters without which the Judge would not have been prepared to make the order – which is why Mr Fletcher presumably proposed them – but that is a different thing.
Section 105(3)(b): In making the order, the Court may specify such other matters as the Court thinks fit
[20] On the face of it, s 105(3)(b) confers an unfettered discretion.
[21] However, as Harrison J pointed out in Wynn,[4] the discretion must be exercised for a statutory purpose. That meant, in Harrison J‘s view, that any additional matters specified in the limited licence order under s 105(3)(b) must relate to the interests of public safety.
[4] Police v Wynn HC Gisborne CRI-2009-416-000031, 8 March 2010.
[22] Mr Tobeck argued that unlike conditions concerning the manner of driving or the condition of the driver (such as the condition at issue in Wynn which prohibited speeding, or a condition prohibiting the consumption of any alcohol), the keeping of a logbook and disclosing your status to a police officer were not matters that related to public safety. Rather, in his submission, they related to enforcement, with public safety only incidental.
[23] Mr Tobeck acknowledged that conditions (c) and (d) are sanctioned by a practice note issued by the Chief District Court Judge.[5] However, he submitted that the practice note was issued before the Wynn decision, and in any event a practice note could not confer jurisdiction on the District Court if such jurisdiction did not exist.
[5] Memorandum – Limited Licence Applications, Chief District Court Judge, September 2005.
[24] I accept a practice note cannot confer jurisdiction which is outside the scope of the empowering statute.
[25] I also accept that conditions (c) and (d) of Mr Fletcher‘s limited licence were imposed to ensure that he complied with the terms of it, and to assist the police in enforcing its terms.
[26] However, in my view, to suggest that enforcement and public safety are somehow mutually exclusive is misconceived. It is very much in the interests of
public safety for the conditions of limited licences to be observed.
[27] To adopt the language of Harrison J in Wynn, conditions (c) and (d) operated to remind Mr Fletcher that the licence was an indulgence and that he must not abuse it by driving outside its terms. The sanction of termination in the event he breached either condition was appropriate and lawful in the interests of road safety. Mr Fletcher, after all, had driven his vehicle after he had been drinking alcohol over the legal limit. His driving constituted an unacceptable risk to road safety. Mandatory disqualification followed both as a deterrent and, importantly, to protect other road users. Conditions upholding the integrity of an order, designed to ensure that Mr Fletcher did not drive any more than absolutely necessary during the period of the disqualification must, in my view, relate to road safety.
[28] It follows that in my judgment it was entirely lawful for the District Court to impose conditions requiring Mr Fletcher to keep a logbook and to identify himself as a disqualified driver to an enforcement officer.
[29] I am reinforced in that conclusion by consideration of the facts in Wynn. While the focus of Harrison J‘s decision was on a condition purporting to restrict speed, the licence under scrutiny also contained other conditions identical to those at issue in this case. Yet there is no suggestion of there being any question mark over the lawfulness of those conditions.
[30] For completeness, I should add that I have considered the authorities which have characterised the offence of driving while disqualified as an administration of justice offence rather than as a road safety offence.[6] However, the context in which that distinction is drawn is the very different context of sentencing, and the issue of cumulative sentences. Moreover, even in those cases, there are dicta which support the view I have taken. As noted in Collins at [20]:
[6] Collins v Police HC Hamilton AP100/02, 16 December 2002; Moon v Police HC Whangarei
To keep the roads safe… there is a need to ensure that the orders of the Court are properly enforced. Enforceability of such orders brings about the social order which is needed in the community.
Outcome
[31] The answer to both questions posed in the case stated is ‗Yes‘.
[32] This matter should now return to the District Court.
Solicitors:
John K Fraser Law Limited, Invercargill
Crown Solicitor‘s Office, Invercargill
CRI-2010-488-000007, 9 July 2010; Sykes v Police HC Dunedin CRI-2006-412-000004, 15
March 2006.
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