Martin v Police - [2021] NZHC 1356

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2021-454-000015

[2021] NZHC 1356

BETWEEN
WINDSOR MARTIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 June 2021

Counsel:

T E Hesketh for the Appellant

E R Pairman for the Respondent

Judgment:

9 June 2021

ORAL JUDGMENT OF PALMER J

Solicitors:
Tim Hesketh Law Ltd, Palmerston North BVA The Practice, Palmerston North

MARTIN v NEW ZEALAND POLICE [2021] NZHC 1356 [9 June 2021]

What happened?

[1] On 5 May 2019, Mr Windsor Martin, aged 32, failed to stop when followed by Police using red and blue flashing lights. Among other charges, he was charged with the offence of failing to stop when followed by red and blue flashing lights under ss 114(2) and 52A(1) of the Land Transport Act 1998 (the Act). He pleaded guilty. He had previously been convicted of failing to stop in 2006 and 2016.

[2] Section 52A was inserted by the Land Transport Amendment Act 2017. It provides that a person who is the driver of a vehicle that fails to stop when required to stop under s 114(2) (by police displaying flashing blue and red lights), commits an offence. Under s 52A(2), the maximum penalty is a fine of up to $10,000. Under s 52A(5):

If a person is convicted for a third or subsequent offence against subsection (1),—

(a)the maximum penalty is imprisonment for a term not exceeding 3 months; and

(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 2 years.

[3] Under s 52A(6), the disqualification is cumulative or additional to any other disqualification the Court orders in respect of the facts giving rise to the conviction.

[4] Judge L C Rowe, in the Palmerston North District Court, convicted Mr Martin and sentenced him to three months’ home detention subject to special conditions, with disqualification for six months and then the two years. Mr Martin appeals the conviction.

Submissions

[5] Mr Hesketh, for Mr Martin, submits leave to appeal out of time should be granted because the legal issue was only recently brought to Mr Martin’s attention, the Crown is not prejudiced and it is in the interests of justice to clarify the scope of s 52A. Ms Pairman, for the Crown, does not oppose leave being granted to appeal out of time. By consent, and in the interests of justice for both Mr Martin and the public generally, I grant leave to appeal out of time.

[6] Mr Hesketh, for Mr Martin, submits that it was not open for the charge to have been laid for the third or subsequent occasion because Mr Martin’s previous convictions for the offence pre-date the enactment of s 52A of the Act and should not have been taken into account. He submits that Parliament would have specifically provided for pre-section 52A convictions to be captured if it had intended to do so, as do other provisions of the Act…

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.

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Details

Case: [2021] NZHC 1356
Decision Date: 9 June 2021

CaseChat Overview and Summary

The High Court was asked to determine whether the appeal of Windsor Martin should be heard out of time and if the appeal should be upheld. Mr Martin was charged with failing to stop when followed by police using red and blue flashing lights under s 114(2) and 52A(1) of the Land Transport Act 1998. Mr Martin pleaded guilty but appeals the conviction on the basis that his previous convictions for the offence pre-date the enactment of s 52A of the Act and should not have been taken into account. The legal issue is whether s 52A should be interpreted to include pre-enactment convictions. The Crown submits that the Court should interpret s 52A to contain an implied "carry-over" provision under s 22 of the Interpretation Act 1999. However, the Court holds that the plain meaning of s 52A(5) is that a person has to be convicted "of a third or subsequent offence against subsection (1)" for the section to apply. The absence of a deeming provision reinforces the plain meaning of s 52A. The Court holds that Parliament intended to increase penalties on those who repeatedly offend against s 52A, prospectively. The appeal is upheld and the conviction and corresponding sentence are quashed.

The Court orders that the conviction and corresponding sentence are quashed, and the Police will need to pursue any modified charge in the District Court.

Orders