Kim v Police - [2017] NZHC 2413

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 respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kim v Police

Details

AGLC: Kim v Police [2017] NZHC 2413
Case: [2017] NZHC 2413
Decision Date: 3 October 2017

CaseChat Overview and Summary

Weon Choel Kim was found guilty of driving while disqualified in the Auckland District Court. The basis of his appeal was that he did not know he was disqualified at the time he was caught driving, and therefore lacked the necessary mens rea for the offence. The High Court was required to decide whether the District Court Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice had occurred. The court found that the District Court Judge had correctly applied the law and was not in error in finding that Mr Kim had laid an evidential foundation of an honest belief. The court found that the evidence before the District Court Judge was sufficient to prove beyond reasonable doubt that Mr Kim knew about his indefinite disqualification when he was stopped on 25 October 2016. The court dismissed the appeal and upheld the conviction.

Orders