M v Police HC Christchurch CRI 2007-409-146

[2007] NZHC 1012

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000146

M

Appellants

v

POLICE

Respondent

Hearing:         5 October 2007

Appearances: Appellant in person

C E Butchard for Respondent

Judgment:      5 October 2007

JUDGMENT OF FOGARTY J

[1]      This is an appeal against three convictions entered by the District Court on 21

June last.   The appellant has been convicted on the following charges of driving while  forbidden  (2),  driving  without  a  valid  driver’s  licence  and  unlawfully removing an impounded vehicle.

[2]      The appellant, whose preference is to be called “Denis”, has the following world view which I put, probably inadequately, in my own words.  He lives in the Kingdom of God and under the common law that is common to God and man.

Under that law he is a free man only to be called to account if he causes harm to

M V POLICE  HC CHCH CRI 2007-409-000146  5 October 2007

anyone.  The statutes of the New Zealand Parliament which presume to govern him whether or not he has caused harm do not apply.

[3]      He is not the Denis Lloyd M   recorded in the births, deaths and marriages register.   The definition of birth under that Act does not include living births.  He interprets the word “includes” as being comprehensive and the definition of birth includes still birth.  That is a subsidiary argument as I appreciate it, but for that reason he prefers to be called Denis.

[4]      Denis  lives  in  the  area  of  Oxford  in  Canterbury  and  obviously  lives peacefully in the community without causing harm.  There is no suggestion in the facts of this case that he has caused harm.  As part of his beliefs Denis did not want to have a lifetime driver’s licence because of the numbers system that it entailed.

[5]      His  New  Zealand  driving  licence  had  expired  in  1985.    On  the  27th   of November 2002 he was stopped by police who were conducting a random check for drivers who might be driving in excess of blood alcohol and from this point on there are two competing versions of what happened.  The police case, given by a former police constable, was that upon stopping Denis checks showed that Denis had an expired New Zealand driver’s licence.  Denis produced to him an overseas driving licence.

[6]      Mr Nolet read his typed brief which he later said was not prepared by him, saying:

It was explained to him that as he had been out of the country for over 12 months he needed to have a New Zealand driver licence.  (Emphasis added)

The police prosecutor contradicted that brief which the witness had just read out by putting this question to the constable:

Q.        Mr Nolet, do you confirm that in your brief of evidence at the top of page two it refers to Mr M   having been in the country not out of the country.  (Emphasis added)

A.        Yes he would have been out of the country for over 12 months.  The brief was written by someone else, that would be that he was out of the country for over 12 months.

At  this  point  we  pause  and  note  that  having  been  asked  by  the  prosecutor  to contradict the brief the witness has now just reconfirmed it saying that Denis had been out of the country the previous 12 months.

[7]      Probably  for  that  reason,  the  police  prosecutor  persevered  and  took  the constable to the law and put it to him in these terms:

Q.       Do you recall when a person may use an overseas driver’s licence in

New Zealand.

A.        As I recall a driver’s licence is valid in New Zealand for a period, for less than a, if an overseas person arrives in New Zealand from that date until 12 months later they can use an overseas licence, if they exceed that date as in exceed 12 month period they must have a New Zealand licence.

Q.        So if a person remains in the country for a period in excess of 12 months they must obtain a New Zealand licence.

A.       Correct.

Then the police prosecutor asked a leading question:

Q.       And is that the situation with Mr M  ?

[8]      For the benefit of the audience in Court following this, the police prosecutor has just led a proposition contrary to the sworn evidence of Mr Nolet which he has just previously reconfirmed and a question which is inadmissible under the laws of evidence in New Zealand.

[9]      That question produced the answer the prosecutor wanted which was:

A.       Mr M   had a New Zealand licence which expired in July

2001.   He then produced a licence, sorry an overseas licence.   He had been in the country for more than one year when he produced that licence.

[10]     Mr Nolet was then cross-examined by Denis.   He was challenged by Denis that he had produced a driving licence:

Q.       Did I present you a driving licence at the time (interrupted). A.     You produced an overseas driver’s licence yes.

Q.        I put it to you that I had no licence at all in Manchester Street on that day and that I had seven days to present a licence and I went to the

THE COURT

Q.        Take these propositions one by one.   The first proposition is that Mr M   did not have a licence at when you talked to him on Manchester Street, what do you say to that.

A.Well in the brief I do say that he did that he did produce an overseas driver’s licence.

Q.       Never mind the brief, what is your recollection.

A.        Well I believe it was a driver’s licence, I have dealt with many, many people, if it’s correct then it was a licence from an island like Fiji or something.

Q.        Hang on Mr Nolet I do not want you to speculate or guess, what do you recall.

A.       I honestly can’t recall.

Q.       You cannot recall now whether he produced a licence at all.

A.Well I don’t want to put forward in a manner where people can say well he’s just guessing so I don’t want to say 100% yes or 100% no. As I do recall though he did produce a licence, I would say he produced a licence and it was from an overseas country, that’s what I would say.

CROSS-EXAMINATION CONTINUES

Q.        I will ask the question again did I produce a licence to you on that night.

A.       Yes.

Q.        I say that I didn’t because I didn’t have any licence with me.  You gave  me  seven  days  to  produce  a  licence  at  the  Central  Police Station and I went to the Central Police Station (interrupted)

THE COURT:

Q.       What do you say to that proposition Mr Nolet.

A.        At the time in 2002 I had been employed by the police for four years, I left in December 06, during those eight and a half years I have never told anyone to produce a driver’s licence within seven days.

CROSS-EXAMINATION CONTINUES:

Q.       You referred me to a senior constable at the booze bus.  I was told

(interrupted)

THE COURT

Q.        Get answers to these single questions.  Did you refer Mr M   to a senior constable.

A.       I can’t recall.

CROSS-EXAMINATION CONTINUES

Q.        I presented two licences to the Central Police Station within the seven days.

THE COURT

I do not want a speech Mr M  , ask the witness whether he knows that.

CROSS-EXAMINATION CONTINUES

Q.       Did you get your information that I had supplied a licence to the

Central Police Station after the events in Manchester Street.

A.        No,  no  information  came  through  to  me  about  you  producing a driver’s licence.

Q.       Was I out of the country for over 12 months or had I had said that.

A.        As part of the questioning for me to establish that you had been out of the country you had produced a driver’s licence, it was then asked how long you had been out of the country for and you would have stated a period.

[11]     The Judge was clearly concerned about the “would have” quality of this evidence by Mr Nolet. The Judge then asked a question:

QUESTIONS FROM THE COURT:

Q.        Mr Nolet, this brief of evidence that you have read when did you prepare that.

A.       It was prepared by the officer in charge.

Q.        Right.    Did  you  refer  to  any  primary  documentation  when  you accepted that that’s your brief.

A.       Are you referring to a notebook entry or. Q.        Yes.

A.       No, no, only required to keep notebooks for about two years.

Q.        I want to be fair, is it fair to say that you are relying totally on your memory here.

A.       That is correct, I have dealt with many, many people in a similar situation and I have a normal process which I go through.

[12]     Denis did not give evidence in this case but it is very plain that he was putting a completely different proposition to Constable Nolet.   On appeal he submitted in his written submissions that he had been stopped on the 27th of November, so that is an agreed fact.  He then went on to say:

I had  just  arrived  back  from Fiji,  on  the  17th   of  November  2002.    He [Constable Nolet} ushered me into a senior officer in the booze bus, and he said that I could Present a licence and proof that I just come into the country within seven days.  I did that at the Christchurch Central police Station.  On Monday the second of December 2002, a senior police officer took my tickets and said I would hear nothing more of this …

[13]     In Court this afternoon Denis told me that during the previous year, about that time he had been working on missions overseas moving between New Zealand, Fiji, Vanuatu and Rarotonga.  He was not able to tell me in any detail his movements in the previous 12 months.

[14]     Rule 88 of the Land Transport (Driver Licensing) Rule 1999 provides that if a person does have an international driver’s licence or driving permit they can drive using that for a maximum of 12 months from the date they arrived in New Zealand.

[15]     Denis has been charged under s 52(1)(c) of the Land Transport Act 1998 that he drove a motor vehicle during the period that he had been forbidden to drive.  The Judge interpreted that information as depending on a lawful order by Constable Nolet in 2002 that he had forbidden him to drive.  In paragraph [14] of the judgment the Judge said:

[14]      I want to turn now to the matters at hand.  To a large extent the facts of the case were not contested.  On 27 November 2002 Mr Nolet, who was then a  New Zealand Police  constable, forbade him to  drive.    That  was because when he was stopped on Manchester Street in Christchurch  driving a Ford Falcon stationwagon he could produce only an international licence. He had been in New Zealand for 12 months and the international licence no longer applied.  He needed a New Zealand licence and did not have one.  I find firstly that he was driving on a road, namely Manchester Street, and that he was the driver of a Ford Falcon stationwagon.  I find secondly that he did not have a valid New Zealand driver’s licence of any class and was therefore an unlicensed driver.  I find also that he was served with a traffic offence notice forbidding him to drive by an appropriately qualified enforcement officer,  namely  Constable  Nolet  as  he  then  was.    I  therefore  find  that

Constable Nolet forbade him to drive pursuant to s113 (2) (e) of the Land

Transport Act.  (Emphasis added)

The sentence: “He had been in New Zealand for 12 months and the international licence no longer applied” could only have been proved by the evidence of Mr Nolet.

[16]     Although Denis did not give evidence there was plainly a conflict between him and Constable Nolet.

[17]     In paragraph [2] of the judgment the Judge said:

[2]       I  acknowledge  at  the  outset  that  this  case  has  shown  that  the defendant, the person who is in court here today, has strongly, and I believe, honestly held beliefs. …

I am sure that the District Court Judge, like me, after hearing the case, was quite convinced that Denis is not a man to tell lies, and certainly not in Court.

[18]     In my view the correct perspective for the trial Judge and on appeal is what we have here is a direct conflict between Mr Nolet and Denis as to what happened on

27 November.    It should be abundantly plain from the evidence that I have read that Mr Nolet’s evidence is internally unreliable, starting with the fact that it is internally inconsistent.  At no stage did Mr Nolet actually recall the conversation.

[19]     As   I  have   previously  discussed   in   Thomas   v   Police   HC   Auckland CRI 2006-404-000220 24 November 2006 where there is a conflict of credibility all Courts need to give reasons for resolving the conflict.  In this respect then I do not think the Judge has adequately addressed the conflict.   I am not satisfied that the finding that I have just quoted that he had been in New Zealand for 12 months, is safe.   As a result, I cannot find, with confidence, that Constable Nolet was justified to forbid him to drive and as a result the conviction of driving while being forbidden to drive is unsafe and is quashed.

[20]     The case in respect of the other charges was that when stopped by the police in November 2006 and February 2007 he was a driver of a vehicle, while he was still under the forbidden to drive notice that had been served to him on November 2002. That police case continues to depend therefore that he was still not complying with

the requirement, namely he was driving while still forbidden to drive.  Accordingly, the police case on informations 07061000012 and 07061000282 is also unsafe and those two convictions are quashed.

[21]     I now come to the charge that he drove without an appropriate licence on 22

February 2007.  Denis, on this last charge, accepts that he does not have a licence at the present time.   To obtain a licence would require him to agree to propositions about his identity which are contrary to his honestly held beliefs.  However, as I have explained to him, on the basis of the judicial oath taken by me as a Judge of the High Court, as I interpret it, I am obliged to do right to all manner of people after the laws and usages of New Zealand and that includes applying the Land Transport Act 1998. There is no doubt in my mind that the charge and information 07061000283 was proved and the appeal in respect of that conviction is dismissed.

[22]     In respect of the convictions that I have quashed there is an option in the Court to send the matter back for retrial.  But in my view Mr Nolet is no longer a police constable.   Without any notebooks or records he plainly cannot remember what actually happened and there is no prospect of a safe trial on those charges.

[23]     In respect of all four charges that Judge thought that justice was done if Denis was convicted and ordered to pay Court costs of $130 and in respect information ending 7324 ordered to pay reparation of $396.   In the light of Denis’ success in this appeal and the trouble he has been put to on this matter I think justice would be done if the order to pay Court costs is set aside as well as the order for reparation in respect of information ending 7324.

[24]     I omitted to add that this information 7324 turned on removing from storage the vehicle that had been impounded.  Ms Butchard has confirmed that that charge depends also on the forbidden to drive charge.   For the reasons given above that charge is quashed and accordingly the order to pay reparation is also quashed.

[25]     In summary, the appeal is successful in respect of all the convictions bar one. As a result of that substantial success the order for costs imposed in the District Court have been quashed.

[26]     I have given consideration as to whether or not an  alternative remedy would be to convict and discharge.  There are numerous communities in New Zealand and elsewhere in the common law world of persons who with honest beliefs do not subscribe to the bureaucratic and number driven world that we live in and yet on the other hand are of strong moral character and lead blameless lives.  However, if the police do in their discretion decide to prosecute, as here, the Court is obliged to respect that.   Such communities as these, while normally they are to some extent being tolerated by the authorities, because of their personal beliefs, nonetheless have to accept that if they are brought before the Courts, that while we do our best to respect their personal integrity and beliefs, the Courts are ultimately obliged to treat “all manner of people” equally.  That means that the law has to be applied to them. For that reason I do not convict and discharge.

Solicitors:

Raymond Donnelly & Co, Christchurch

cc: D L M