Kim v Police
[2017] NZHC 2413
•3 October 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-254 [2017] NZHC 2413
BETWEEN WEON CHEOL KIM
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 2 October 2017 Counsel:
NC Baier for appellant
AE Minogue for respondentJudgment:
3 October 2017
JUDGMENT OF FITZGERALD J [As to appeal against conviction]
This judgment was delivered by me on 3 October 2017 at 12:30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Public Defence Service, Auckland
Meredith Connell, Auckland
Kim v New Zealand Police [2017] NZHC 2413 [3 October 2017]
[1] Weon Choel Kim was found guilty of driving while disqualified following a judge-alone trial in the Auckland District Court.1 Mr Kim’s defence at trial was that he did not know he was disqualified at the time he was caught driving, and so he therefore lacked the necessary mens rea for the offence. He now appeals his conviction on the same basis.
[2] I must allow Mr Kim’s appeal if satisfied that the District Court Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred.2
Facts
[3] At 1.55 am on 25 October 2016, Mr Kim was driving his car down Great North Rd, Auckland. The police stopped his car because its warrant of fitness and registration were expired. At the roadside, Mr Kim identified himself and produced his licence on request. After conducting checks, the police learned Mr Kim was an indefinitely disqualified driver.
[4] The officer asked Mr Kim about that status of his driver licence. Mr Kim responded “I was caught drink driving and I was disqualified for one year”. He later told the officer he did not know that he was indefinitely disqualified.
[5] Mr Kim now accepts that on 8 March 2013, he was convicted and sentenced in the North Shore District Court on a charge of refusing an officer’s request for a blood specimen, for which he was indefinitely disqualified from driving.3 But Mr Kim says he believed that this disqualification period had come to an end. This belief is said be as a result of an unknown female officer telling him, while he was in police cells at the North Shore District Court, that he was disqualified for only one-year-and-
a-day.
1 Police v Kim [2017] NZDC 15308. Land Transport Act 1998, ss 5(1) and 32; maximum penalty, three months’ imprisonment or a $4,500 fine.
2 Criminal Procedure Act 2011, s 232(2)(b).
3 As is mandatory under s 65 of the Land Transport Act (Mr Kim having been convicted of another drink-driving offence within the previous five years).
Law
[6] In Millar v Ministry of Transport, the Court of Appeal held that driving while disqualified was an offence for which mens rea is an ingredient (i.e. it is not a strict liability offence).4 However, the Court said the defendant’s knowledge of the disqualification is to be normally presumed in the absence of evidence suggesting otherwise. A defendant wishing to claim lack of knowledge must point to some evidential foundation putting the matter in issue (but need not satisfy the court there was a reasonable basis for the lack of knowledge). If that occurs, the prosecution must then prove guilty knowledge beyond all reasonable doubt:
District Court decision
[7] At trial, Mr Kim gave evidence that he genuinely and honestly believed he was not disqualified from driving on 25 October 2016. Through an interpreter, Mr Kim said this belief was due to his reliance on what he was told by a female officer in the District Court cells on 8 March 2013:
Q. So Mr Kim we’re talking about you previously being disqualified in
2013?
A. Yes.
Q Can you tell the Court what you remember happening on that day in
Court?
A. I went to Court and met with a lawyer and in the courtroom the Judge gave me – I think it is sentence – gave me a sentence and what the result…I remember what Judge said to me, that was because I pleaded not guilty there was no discount and then after that I was taken to the cell downstairs and I waited there for about an hour and then a person came to me and said I could go and gave me a paper.
Q. When you were in Court and the Judge was speaking to you, were you assisted by an interpreter?
A. Yes.
Q. And do you remember anything that the Judge said to you about your driver’s licence being disqualified?
A. No I can’t recall.
4 Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) at 669.
Q. And do you remember anyone explaining to you what the word
“indefinitely” disqualified meant?
A. No.
Q. So when you were downstairs in the cells and somebody came to speak to you to sign the paper, what happened at that point?
A. In my memory, there was a female officer came to me and ask me to sign on the paper and that said that I couldn’t drive for one year and one day.
…
Q. And what was your understanding of when you could drive next? A. After one year and one day from the sentence.
Q. Is that when you understood you could drive? A. Yes.
…
Q. So on the 25th October 2016, you believed at that time that you could drive?
A. Yes.
…
Q. And can you just explain once more to the Court why you believed you could drive on the 25th October 2016?
A. The sentence for refusing blood sample, I was punished with community work and one year and one day disqualification, so I served all that and finished, the punishment finished, so I thought I could drive.
[8] Judge Henwood, however, found this explanation was “implausible and not truthful”. She noted Mr Kim was represented by a lawyer at the 8 March 2013 hearing, and an interpreter was present at the hearing also. Further, she noted Mr Kim was later served with a Court notice as to his sentence. Under questioning from the Judge, Mr Kim accepted that he had been served with this notice, but said he had not read it thoroughly. The Judge considered that Kim was, at best, “extremely casual about remembering his sentence”.
[9] Having rejected Mr Kim’s evidence, the Judge concluded as follows:
[13] The Court is satisfied that the prosecution has proven beyond any reasonable doubt that Mr Kim was driving whilst disqualified on 21 October
2016. As previously stated he had been served with a notice setting out his sentence which he says he has or has not read. He has it in his possession at
this house. He was at the sentencing and his explanation is not accepted as plausible after listening to his evidence on this occasion. He has taken no steps to have his licence reinstated. The case is proven.
Discussion
[10] Ms Baier says Mr Kim had laid an evidential foundation to put knowledge in issue, meaning it was necessary for the prosecution to prove Mr Kim’s knowledge beyond all reasonable doubt. Ms Baier submits the prosecution failed to produce any evidence to prove that Mr Kim actually knew he was disqualified, such that the Judge had no evidence to support her conclusion that the prosecution had proved Mr Kim’s charge beyond all reasonable doubt. It is therefore submitted that a miscarriage of justice occurred.
[11] Ms Minogue for the Crown says Mr Kim’s appeal is without merit and should be dismissed. She submits that given the Judge’s rejection of Mr Kim’s evidence as to his state of mind on 25 October 2016, no evidential foundation was laid to “shift” the burden to the prosecution. Further, even if a sufficient evidential foundation as to Mr Kim’s honest belief had been laid, Ms Minogue submits that there was sufficient material before the Judge from which inferences can be drawn, which in combination, proved Mr Kim’s guilty state of mind beyond reasonable doubt.
Discussion on mens rea
[12] Ms Baier referred in her written submissions to Ngu v Police for the proposition that all a defendant need do in a case such as this to meet the presumed knowledge is to lay an evidential foundation of an honest belief, rather than an honest belief based on reasonable grounds.5 That is clear from the decision in Ngu, as well as the majority judgments in Millar.
[13] In her written submissions, Ms Baier suggested that the Judge wrongly applied the test for such an evidential foundation (i.e. she applied a test of honest belief on
5 Ngu v Police [2015] NZHC 1199.
reasonable grounds, rather than simply an honest belief). I disagree. The Judge correctly set out what a defendant must establish in a case such as this, and at no point referred to the test as being “an honest belief on reasonable grounds”.6 Rather, my reading of the Judge’s reasons for judgment is that the facts referred to by her (some of which I accept are directed at objective matters, rather than Mr Kim’s subjective belief) reinforced her view that Mr Kim’s evidence was simply implausible and not truthful. McMullin J in Millar expressly noted that whether or not there were reasonable grounds for a defendant to believe that he was not disqualified may nevertheless be relevant in testing the honesty of that belief in the first place.7
[14] Ms Baier also placed particular reliance on Yates v Police.8 There, the defendant faced a charge of driving while disqualified, third and subsequent. At the roadside, he told police he did not know he was disqualified. But the District Court Judge held that documentary evidence of prior information detailing the defendant’s disqualifications rebutted his contention that he did not know about his disqualified. In allowing the appeal Heath J in the High Court said:
[16] The learned District Court Judge has, effectively, relied upon knowledge at [the dates of the earlier offending] (which pre-date the driving incident in this particular case by over 12 months) to demonstrate that the guilty knowledge required by Millar existed. In my respectful view the learned District Court Judge was not entitled to do that as it was unsafe to assume such knowledge from that evidence. The information was in documentary form only and was not capable of being tested to ascertain whether the requisite knowledge was or was not present.
[15] Yates might suggest that the only evidence needed to put guilty knowledge in issue is a bare assertion by the defendant that they did not know they were disqualified. However, a careful reading of that decision indicates that there had been no suggestion that the necessary evidential foundation had not been laid in that case; the essence of Heath J’s judgment was an inquiry whether, the evidential foundation having been laid, the evidence before the District Court judge was sufficient to support proof of the elements of the offence beyond reasonable doubt.9 Ultimately Heath J found that it
did not. Obviously whether or not material before a court will be sufficient to draw
6 See [7], [8], [10].
7 Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) at 674.
8 Yates v Police HC Auckland AP23/01, 21 May 2002.
9 At [9], [16].
an inference of knowledge to the requisite standard will need to be determined on a case-by-case basis. I note that in Yates, the defendant did not give evidence, so it was not possible, for example, to put to him the documentary evidence that the prosecution had advanced in support of its case.
[16] I also refer to Austin v Police, where Rodney Hansen J said “credible evidence” is required to displace the presumption of knowledge in a case such as this.10 His Honour agreed with the District Court Judge that the defendant’s evidence was “not plausible” and “not honest evidence”. In this context, Rodney Hansen J observed:
[14] Mr Haskett presses, however, for the appeal to be allowed on the basis that the prosecution failed to prove beyond reasonable doubt that Mr Austin did not know[11] that he was disqualified at the time of driving. This is an ambitious submission in circumstances where, as the Court said in Millar, knowledge of the disqualification is to be assumed in the absence of evidence suggesting otherwise. Credible evidence is required and the Judge made a clear finding that on that issue he did not find Mr Austin's evidence to be plausible. This Court on appeal will defer to a Judge on credibility findings unless it appears that, having regard to the evidence overall, the Judge has fallen into error. There is nothing to suggest that to have been the case.
[17] I agree with the approach adopted by Rodney Hansen J. In my view, the evidence that a defendant did not know about their disqualification must be sufficient to actually lay an evidential foundation. This approach is consistent with statements in Millar that a “real foundation” is needed to put guilty knowledge in issue, similar to certain defences in criminal law such as self defence:12
Seen in this way absence of guilty knowledge is like the defences of provocation, automatism, self-defence and compulsion. There must be some evidence or material, either from the prosecution case or called by the defence, to raise the issue. In the absence of a foundation for a contrary view the offence will be inferred to have been committed unprovoked, knowingly, not in self- defence, free from compulsion. A trial Judge should not put a possibility for which there is no foundation in the evidence to the jury. A Judge sitting alone should not take it into account. But if there is a real foundation the Judge's duty is to direct the jury accordingly or to consider it himself when he is the tribunal of fact; and the prosecution will fail if a reasonable doubt remains.
[Emphasis added]
10 Austin v Police [2013] NZHC 54.
11 I presume the Judge meant to say “that Mr Austin did know that he was disqualified”
12 Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) at 667-668.
[18] On the evidential foundation needed to put self defence in issue, the Court of Appeal has spoken of the need for the defendant to raise “a credible and plausible narrative”,13 and that judges are entitled to have regard to the fact “it is not every facile mouthing of some easy phrases of excuse that can amount to an explanation”.14 Given Millar has suggested the foundation for the absence of guilty knowledge and self defence are to be raised in similar ways,15 it makes sense that these statements about self defence should also apply to a defendant putting guilty knowledge in issue.
[19] Ultimately, the Judge, having heard and seen Mr Kim give evidence, formed a clear view that his narrative of events was not plausible or truthful. Her scepticism of Mr Kim’s version of events is evident in the questions her Honour put to Mr Kim.16
While it is of course open to me to differ from the trial Judge where I consider it right to do so, I am also conscious of the particular advantage the Judge had in assessing Mr Kim’s evidence and his credibility. The Court of Appeal has recently reinforced the customary need for caution when factual findings, including findings of credibility are being challenged on appeal. 17
[20] I have considered all of the evidence as to Mr Kim’s belief that his disqualification period had finished. Keeping in mind the advantages Judge Henwood possessed in hearing that evidence and assessing its credibility, I cannot discern any basis upon which the Judge fell into error in her consideration of the evidence, leading her to reject Mr Kim’s claim that he had an honest belief that he was not disqualified. In particular:
(a) Mr Kim accepted that he was legally represented when he was tried on the 2013 charge and also when sentenced on 8 May 2013. On the face
of the evidence there is no reason to doubt that his lawyer would have
13 Te Tomo v R [2017] NZCA 338 at [27], referring to R v Tavete [1998] 1 NZLR 428 (CA) at 430, where the Court referred to a “sufficient evidential foundation”.
14 Bratty v Attorney-General for Northern Ireland [1963] AC 386 (HL) at 417, adopted in R v Kerr
[1976] 1 NZLR 335 (CA) at 340 and Te Tomo v R [2017] NZCA 338 at [28].
15 Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) at 677.
16 See in particular, NOE, page 22, lines 18-23.
17 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [31]-[32]; Fonterra Co-Op Group Ltd v
McIntyre and Williamson Partnership [2016] NZCA 538 at [153]-[158].
explained the effects of the (mandatory) indefinite disqualification order in the event of a conviction and in the context of sentencing.
(b)There was an interpreter assisting the Court when Mr Kim was sentenced in 2013. While there was no evidence before Judge Henwood of what the interpreter said, nor was there any suggestion in the evidence that there had been any issues with the interpretation at the earlier hearing. I consider it is permissible to infer that the interpreter did translate what the Judge said to Mr Kim in sentencing.
(c) It is notable that Mr Kim’s evidence was that he could recall being told something by an unnamed officer in the cells to the effect of his disqualification being only one year and one day, but disclaimed any memory of what the Judge told him when sentencing him on the same day (an indefinite disqualification being, as noted, a mandatory part of the sentence imposed).
(d)Mr Kim accepted that he was served with a written court notice about his sentence and that he tried to read it. In the absence of any evidence to the contrary, I consider is it legitimate to infer that the court document as to Mr Kim’s sentence correctly stated what his sentence was.
(e) When interviewed by police on 25 October 2016, Mr Kim was able to recite other parts of his sentence imposed on 8 May 2013, as well as the charge he faced and the court he was in, yet again disclaimed any knowledge of that aspect of his sentence dealing with an indefinite disqualification.
[21] Given the trial Judge’s rejection of Mr Kim’s evidence as to his honest belief, in respect of which I have no reason to take a different view, I agree that Mr Kim had not laid the necessary evidential foundation to displace the presumption of knowledge.
[22] Further, even if Mr Kim had laid a sufficient evidential foundation to put guilty knowledge in issue, I accept that the material before the District Court Judge (summarised at [20](a) to (e) above) was sufficient to prove beyond reasonable doubt that Mr Kim knew about his indefinite disqualification when he was stopped on
25 October 2016. Ms Baier submitted that the material simply requires too many guesses to be made in relation to Mr Kim’s knowledge on 25 October 2016. I accept that any one of those facts on its own would not have been sufficient. But like in many, if not most, cases where knowledge is to be proved through inferences, it is the combination of all of the facts which establishes the knowledge beyond reasonable doubt. When all of the evidence is taken into account as a whole, I consider the material does establish Mr Kim’s knowledge beyond reasonable doubt.
[23] Accordingly, given Mr Kim’s acceptance that he was driving and that he had had in fact been disqualified indefinitely, the Judge was correct to enter a conviction.
[24] I therefore dismiss the appeal.
S Fitzgerald J
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