Fletcher v The Queen
[2012] NZCA 37
•24 February 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA776/2011 [2012] NZCA 37 |
| BETWEEN GRAHAM PETER FLETCHER |
| AND THE QUEEN |
| Hearing: 20 February 2012 |
| Court: Wild, Ronald Young and Andrews JJ |
| Counsel: A S P Tobeck for Applicant |
| Judgment: 24 February 2012 at 10 am |
JUDGMENT OF THE COURT
Special leave to appeal is refused.
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REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
Mr Fletcher was disqualified from driving in October 2010 after he pleaded guilty to driving with an excess breath alcohol. He applied for and was granted a limited licence allowing him to drive under certain conditions. Those conditions included the completion of a log book detailing any journey to be undertaken (condition (c)) and that if he was stopped by an enforcement officer he was obliged to tell the officer he was a disqualified driver and to hand the officer a copy of the Court order granting the limited licence (condition (d)).
In late January 2011 Mr Fletcher was stopped by an enforcement officer for not wearing a seatbelt. He failed to tell the officer he was a disqualified driver and he did not have a completed log book for the journey. He was charged with driving contrary to the terms of his limited licence.[1]
[1] Land Transport Act 1998, ss 32(1)(b) and s 32(3).
Without deciding the prosecution, the District Court stated a case for the High Court.[2] The essence of the case stated was whether the District Court had power to impose these particular conditions when granting a limited licence.
[2] R v Fletcher DC Invercargill CRI-2011-25-304, 4 July 2011.
French J in the High Court concluded the District Court Judge did have the authority to impose the particular conditions.[3] The applicant now seeks special leave to appeal this judgment.
[3] Police v Fletcher HC Invercargill CRI‑2011‑425‑32, 25 October 2011.
The two questions of law identified in the District Court,[4] which French J answered, are as follows:
(a)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?
(b)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?
High Court judgment
[4] At [2].
In the High Court the parties agreed that if there was jurisdiction to impose these conditions then it could only be derived from either s 105(3)(a)(iv) or s 105(3)(b) of the Land Transport Act. The Judge concluded that s 105(3)(a)(iv), which authorised the Judge to take into account “such other matters as may be necessary to limit the order to alleviating the hardship which was alleged and proved”, did not apply to the conditions imposed.
As to s 105(3)(b), which enabled the Court when making the order to specify such other matters as it saw fit, French J followed the approach of Harrison J in Police v Wynn.[5] French J said:
[21] However, as Harrison J pointed out in Wynn, 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.
[5] Police v Wynn HC Gisborne CRI‑2009‑416‑31, 8 March 2010.
The Judge concluded that the two conditions did relate to public safety and were therefore lawfully imposed. She said:
[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.
This application
The applicant must establish a question of law of public importance.[6] The point must be reasonably arguable. Before us the applicant accepted the Judge had identified the correct law. The applicant agreed the conditions imposed pursuant to s 105(3)(b) must relate to road safety as the Judge said. Secondly, there was no dispute about the relevant facts; the content of conditions (c) and (d) was known, and the fact the applicant drove in breach of those conditions was accepted.
[6] Summary Proceedings Act 1957, s 144(3).
The applicant’s real complaint was in the Judge’s application of the facts to the law. The applicant disputed whether these two conditions did relate to road safety.
First, such a complaint is not a question of law. The Judge identified the relevant law, and correctly identified the facts. The function of the Judge is to weigh the relevant facts in light of the applicable law.[7]
[7] Bryson v Three Foot Six Ltd [2005] NZSC 34; [2005] 3 NZLR 721 at [25].
Here, as acknowledged by the applicant, there was no error in the identification of the relevant law or the relevant facts. And so no error of law was identified.
Secondly, an error of law can arise where an ultimate conclusion is clearly untenable.[8] The conditions imposed, as the Judge observed, ensured Mr Fletcher did not drive any more than was necessary. Given his driving record this restriction clearly related to road safety. We are satisfied the conclusion by the Judge could not be described as untenable.
[8] Bryson v Three Foot Six Ltd at [26].
We refuse leave to appeal.
Solicitors:
John K Fraser Law Limited, Invercargill for Applicant
Crown Law Office, Wellington for Respondent
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