K v Police HC Christchurch Cri-2009-409-94

[2009] NZHC 2065

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2009-409-000094

K

v

POLICE

Hearing:         14 October 2009

Appearances: M A Corlett for Appellant

C J Lange for Respondent

Judgment:      5 November 2009

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      On 16 May 2008, the appellant, Mr K  , made a mistake.  His driver  licence  had  been  suspended  for  three  months  because  of  excess  demerit points.  His personal assistant told him the three months would be over by 16 May

2008, and so Mr K   drove his vehicle.  He was wrong.  The three months still had time to run.   Mr K   was charged with an offence under s 32(1)(c) of the Land Transport Act 1998 of driving while his licence was suspended.

[2]      Following a defended hearing, the District Court Judge accepted Mr K   had made a genuine mistake about the expiry date of the suspension.  However, the

KEUNG V POLICE HC CHCH CRI-2009-409-000094  5 November 2009

Judge held the mistake was a mistake of law, not fact, and that ignorance of the law was no excuse.  Mr K   was duly convicted.

[3]      On appeal, the issue is whether Mr K  ’s mistake was a mistake of law or a mistake of fact.

[4]      Counsel agree that if it was a mistake of law then the conviction must stand because of s 25 of the Crimes Act 1961.   Section 25 provides that the fact an offender is ignorant of the law is not an excuse for any offence committed by him.

[5]      Counsel also agree that the offence of driving while a licence is suspended is an offence requiring proof of mens rea, and that if the mistake should have been classified as a mistake of fact then the conviction must be quashed.

Discussion

[6]      As the District Court Judge recognised, the starting point for consideration of the issue is the Court of Appeal decision in Millar v Ministry of Transport [1986] 1

NZLR 660.

[7]      In  Millar,  the  Court  of  Appeal  held  that  the  offence  of  driving  while disqualified was an offence requiring proof of mens rea.  It is clear what was meant by that is that the prosecution must prove beyond reasonable doubt the defendant knew he or she was disqualified.   According to the decision, 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.

[8]      The  mistake  made  by  Mr  Millar  was  that  he  misunderstood  what  the sentencing Judge had said about the date the disqualification period started.   The Court of Appeal did not discuss whether this was a mistake of law or a mistake of

fact, but it clearly accepted the sort of mistake claimed to have been made was one that would negative mens rea.

[9]      At first blush, the mistake made by Mr Millar would seem identical to that made by Mr K  .  Like Mr Millar, Mr K   made a mistake about the fact of his disqualification due to a mistake about its expiry date.   Significantly for present purposes, one of the five Court of Appeal Judges in Millar, McMullin J, expressly states at 673:

Mens rea in this context is the absence of an honest belief in the existence of facts (the expiry of the disqualification period) which, if true, would make the act innocent.

[10]     Counsel for the police, Mr Lange, however sought to distinguish Millar on the grounds that, whereas in driving whilst disqualified cases the commencement and period of disqualification are determined by what is said at sentencing, the commencement and the expiry of suspension is determined by a statutory provision, namely s 90(1) of the Land Transport Act.

[11]     Section 90(1) provides:

(1)If, in any 2-year period, a total of 100 or more demerit points have effect against a person, the Agency must, by notice in writing given to that person, either—

(a)      suspend that person's current driver licence for 3 months; or

(b)if the person does not hold a current driver licence on the date of the giving of the notice, disqualify the person from holding or obtaining a driver licence for 3 months.

[12]     Mr Lange submitted that where the prohibition arises from a statutory order or notice, any mistake about its terms, conditions, effect and consequences is a mistake as to statutory terms and is therefore properly characterised as a mistake of law.

[13]     In support of that argument, Mr Lange referred me to a number of decisions involving breaches of domestic protection orders.  In Skelton v Police HC Timaru AP22/97, 25 November 1997, Chisholm J held a mistaken belief that telephoning the protected person would not be a breach of the order was a mistake of law and hence

no defence.  Skelton was followed in Walker v Police HC Auckland CRI-2004-404-

000362, 17 August 2005, where Potter J held that if the defendant has knowledge of the protection order, then he or she is deemed to have knowledge of its terms and conditions.

[14]     In another decision, Alofaki v Police HC Whangarei CRI-2006-488-000043,

19 March 2007, Baragwanath J, the defendant claimed he believed the temporary protection order had expired. The correct legal position however was that because he had taken no steps to defend the temporary order, it had automatically become final by operation of law: (s 13(3) of the Domestic Violence Act 1995). That this was the effect  of  a  temporary order  was  stated  in  the  copy of  the  order  served  on  the defendant.

[15]      Baragwanath J held the mistake made was a mistake of law, saying:

[27]     The answer to this appeal is that the relevant characteristic of the temporary protection order, that it becomes a final order, is a legal result. Knowledge by the defendant of the fact that a temporary order has been made  imputes  to  that  person  a  knowledge  of  those  legal  consequences because of the stipulation by s 25 of the Crimes Act that ignorance of the law is no excuse. Since he knew of the fact of the temporary order he is deemed to know its legal consequences.

[16]     Mr  Lange  contended  that  a  suspension  order  is  similar  in  effect  to  a protection order.   In both cases, once an order is enforced and served, the order prohibits various conduct.  Thus, in his submission, Mr K  ’s case is more akin to the domestic protection order cases than it is to Millar and other decisions involving driving while disqualified such as Booth v Ministry of Transport [1988] 2 NZLR 217 and Sullivan v Police HC Christchurch AP 352/92, 5 March 1993, Holland J.

[17]     Mr Lange also referred me to a decision of the Court of Appeal in R v Cave CA393/04, 1 August 2005.  In Cave the Court of Appeal considered the issue of a mistake of law in the context of driving with excess breath alcohol.  Mr Cave moved his car in a farm paddock being used as a carpark at an A&P show, believing that he was not thereby driving on a road:

[19]      … That mistake of law cannot be transmogrified into a mistake of fact or of mixed fact and law simply because the drafter chose “road” as the definitional shorthand as opposed to “place to which the public have access”.

…

[21]      The present case is no different in principle from R v Foox [2000] 1

NZLR 641 (CA), in which the defendant was charged with possessing restricted  weapons  contrary  to  s  50(1)(b)  of  the  Arms  Act  1983.  The

weapons were airguns from which pellets were shot under the power of

compressed air. Mr Foox argued that he honestly believed that the airguns were not restricted weapons. This court held that Mr Foox’s mistake did not afford him as a defence, as he was pleading ignorance of the law rather than mistake of fact…

[22]      So here, it would be otherwise if Mr Cave had genuinely believed that the paddock on which he was driving was not open to the public. But he did know it was open to the public. His mistaken belief that the carpark was not a place to which the drink drive laws extended was simply ignorance of the law.

[18]     Mr  Lange’s  analysis  echoes  the  reasoning  adopted  by the  District  Court

Judge, who said the defendant’s mistake is as to the law applicable to him:

By the application of law (i.e. the suspension order) he was not entitled to drive on 16 May 2008.  His erroneous opinion is about a legal requirement (i.e. that the suspension order did not cease until 2 June 2008) of the order itself.  He is substituting his erroneous opinion for that legal requirement.  I classify his mistake as one of law.

Decision

[19]     I have carefully considered the submissions made by counsel.  The question as to whether  a mistake is a mistake of law or fact or a mixture of both  is  a notoriously vexed issue.  As the District Court Judge noted in this case, all human mistakes will, to a greater or lesser extent, have factual elements.   The difference between mistakes of law and mistakes of fact is often a fine one, and unfortunately the case law provides no definitive touchstone or guiding principle.

[20]     In my view, it is important to consider why Mr K   believed his licence was no longer suspended.

[21]     Unlike  the  offenders  in  the  domestic  protection  order  cases,  it  was  not because he was mistaken about the terms and conditions of the suspension order.  He knew he had been suspended, he knew it was for three months, and he knew the three months started the day the order was served on him.  His discussion with his personal assistant was not about the length of the period that had been imposed, but rather about when the three months was up.  The mistake was not occasioned by a mistake about the legal effect of service (which triggers the start date), but simply by faulty counting of days.  In those circumstances, such a mistake must in my view be a purely factual mistake.  It is a different kind of mistake to that made in Alofaki, which was a mistake about the legal characteristics or consequences of the order.  It is also a different kind of mistake to the mistake made in Cave.  Mr Cave thought it was okay for him to drive because he was labouring under a mistake about the legal definition of a road.

[22]     Like Mr Millar, Mr K   made a mistake about the fact of his suspension, not because of any misinterpretation or ignorance of the statute, the terms of the order or his obligations as a suspended person, but simply because his personal assistant got his maths wrong, just as Mr Millar misheard the sentencing Judge.

[23]     It follows that in my view this was a mistake of fact and the prosecution failed to prove beyond reasonable doubt that Mr K   had the requisite knowledge.

[24]     The appeal is accordingly allowed and the conviction quashed.

[25]     Finally, I would like to record my thanks to both counsel for their excellent submissions.

Solicitors:

Russell McVeagh, Christchurch

Crown Solicitor, Christchurch