M v Police HC Rotorua CRI 2006-463-17

[2006] NZHC 212

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-463-17

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 March 2006

Appearances: J M McCleary for the appellant

S A Christensen for the respondent

Judgment:      10 March 2006

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

J McCleary, Buddle Bentley Tweed, P O Box 43, Whakatane

S A Christensen, Crown Solicitors, P O Box 13063, Tauranga

M V N Z POLICE HC ROT CRI 2006-463-17  10 March 2006

[1]      This is an unusual appeal.  The appellant seeks to challenge the terms of a limited licence granted in the Whakatane District Court on 27 January 2006 by Rollo DCJ.

[2]      The appellant was disqualified for six months as a result of driving with excess blood alcohol on 19 December 2005.  There was evidence before the Court that this disqualification impacted quite severely on family and in particular on the appellant’s two children, her 11 year old son Taylor, who was about to start intermediate school in Whakatane, and her 5 year old daughter Jessica, who was starting primary school at Ohope.

[3]      That particular hardship, and Mr McCleary responsibly concedes the Judge did not err in the application of relevant principles, led the Judge to granting a limited licence which had two aspects to it.   The first aspect was permitting the appellant to drive her motor vehicle for the purpose of taking both children to school. It was stressed, in a supporting affidavit, that for both children (they were starting new schools) there could be difficulties with them encountering both a new school and also the dynamics of having to travel on a school bus.

[4]      The second aspect of the limited licence was to allow the appellant to drive to Whakatane town on Wednesday’s, she having to return home by 11 am to attend to domestic errands and chores and in particular it seems re provisions.  She lives in a rural area and Whakatane is the nearest shopping centre.

[5]      I have got some sympathy with the appellant’s plight.  There was evidence before the Court that she was a solo parent.  Her own parents reside in Auckland and Te Kaha respectively.  Her estranged husband lives in Hong Kong.  She has minimal support in the Wainui area where she lives.

[6]      The application before the District Court sought extensive licence terms.  In addition to the ability to drive her children to and from school for the entire six months of the disqualification period, permission was sought to drive to Whakatane on five days per week to carry out domestic errands.  Permission was also sought on

Wednesdays to permit the appellant to take Taylor to the Whakatane Aquatic Centre for the purposes of swimming lessons.

[7]      The way the  Judge  dealt  with  the  application  was  to  limit  the  domestic errands to one day a week (Wednesdays) on the basis the appellant had to return home by 11 am, as I have said.  He was not prepared to accede to the requests to extend the terms of the limited licence to accommodate a swimming lesson on Wednesday.  So far as the permitted licence and school trips was concerned he said this:

[3]       I consider it is appropriate to grant the application on particular terms to enable her to transport the children for a period of two months.  I would be prepared to entertain an extension of that period if evidence were produced that not to extend it would be significantly adverse to either or both the children.

[8]      In his impassioned submissions before me today Mr McCleary has sought a modification of the limited licence in three areas.  The first area was to extend the licence to permit the appellant to take her children to and from school for the entire period of the disqualification.   The second was to extend the limited licence effectively to revisit the Wednesday afternoon school swimming lessons aspect.

[9]      The third area related to domestic errands.   Mr Cleary, with some force, submitted that the appellant’s position is really akin to that of any other employee. In this particular case, however, this appellant’s employment was running her household and caring for her two children.  This she has done without any tangible means of support from other adults.  In counsel’s submission the appellant had had “her wings clipped” in a way which would not normally occur with somebody employed for wages.  I see some force in that submission although, with respect, it does not really take this particular matter very far.

[10]     The major difficulty with the appellant’s case, both in this Court and the District Court, was, with respect, the evidence was not sufficiently compelling to convince the Judge in the Court below that a limited licence, more or less in terms of what was sought, was justified and complied with the undue hardship criterion.

[11]     I have, however, after discussion with counsel, identified one particular area where undue hardship is being caused.  That is in the area of the appellant’s inability at the moment to run domestic errands and to reprovision her household more than once a week.  In a short affidavit filed in this Court she has deposed that she does not have sufficient refrigerator storage capacity for perishables to last an entire week.

[12]     As a matter of judicial comity I am not prepared to interfere with the two month trial period which Rollo DCJ extended to the appellant to enable her to transport her two children to school.  He has specifically reserved that issue and has strongly indicated  he  would  be  prepared  to  entertain  an  extension  if  there  was satisfactory evidence before him suggesting the terms of the limited licence being restricted to a two month period was going to be adverse to the children’s interests. I, with respect, do not think it is appropriate for this Court to be interfering in an area which the District Court has quite properly reserved to itself.   After discussion counsel accepts that.

[13]     So far as the required extension for Wednesdays for swimming lessons is concerned again there is an evidentiary void here.  There is absolutely no evidence at all dealing with such obvious matters as to why undue hardship may be occurring so far as Taylor is concerned, whether alternative transport is available, and matters of that sort.  So far as that aspect of the District Court Judge’s decision is concerned I consider grounds for appeal have not been made out.

[14]     Ms Christensen sees some force, however, in her learned friend’s argument, particularly as it relates to reprovisioning.   I am thus, for that reason prepared to allow the appeal in part, and extend the terms of the limited licence granted so that in addition to being permitted to drive in and around Whakatane township on Wednesdays to undertake domestic errands and chores and to be home by 11 am, the appellant is similarly permitted to drive in and around the Whakatane town for the same purposes, returning home by 11 am on Friday of every week.  Had Rollo DCJ been provided with more evidence than he was, an appeal in this manner even would almost certainly have been unnecessary.

[15]     To assist the parties I can indicate that subject to the appellant providing sufficiently cogent evidence in the District Court, particularly so far as the child Jessica is concerned, there could well be a case to extend the terms of the limited licence so far as the school transport aspect is concerned beyond the two month period envisaged by Rollo DCJ.   Ultimately that will be a matter for the District Court if and when such an application for extension is made and of course on consideration of whatever the supporting evidence is.

.......................................… Priestley J