Martin v Police
[2021] NZHC 1356
•9 June 2021
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 such as ss 32(5) and 56(5) and s 129 of the Sentencing Act 2002. He submits Parliament did not intend the new harsher penalty to have retrospective effect and the overall purpose of the Act is maintained because the harsher punishment for fleeing drivers from now on is clear. He submits it is the role of the Court to apply the law as it is written by Parliament, which does not mention in the section pre-2017 convictions despite Parliament’s wisdom and resources. He submits it is not open to the Court to correct Parliament’s oversight. He relies on the High Court’s judgment in Kesseler v Police.1 He submits this case is distinguishable from the application of s 22 of the Interpretation Act 1999 in De Montalk, relied upon by the Police, because of the consequences for the offender. He relies on Ministry of Transport v Hamilton, which he says held that the predecessor to s 22 applied only to completely repealed Acts, not individual sections.2 He also relies on Beckham v R where the Supreme Court specifically noted that if Parliament intended to carry over a previous provision it should have been expressly provided for.3
[7] Ms Pairman, for the Police, does not dispute the plain reading of s 52A articulated by Mr Hesketh and that there is no explicit “carry-over” provision which has been left out. But she submits that the Court should interpret s 52A to contain an implied “carry-over” provision under s 22 of the Interpretation Act 1999. She submits this is a general deeming provision that distinguishes Kesseler v Police. She submits it was logical for Parliament to separate ss 52 and 52A and the carry-over provision was simply overlooked. She submits the Court should take a wide view of “enactment”. She submits Parliament’s intention was to address the problem of drivers fleeing from Police and Parliament did not intend to give them a clean slate for pre-2017 offending. She submits the Court should give effect to Parliament’s purpose to increase the penalty on fleeing drivers by reading in a carry-over provision through
1 Kesseler v Police HC Auckland CRI 2010-4040-430, 8 February 2011.
2 Ministry of Transport v Hamilton HC Wanganui, M73/84, 4 April 1985.
3 Beckham v R [2015] NZSC 98, [2016] 1 NZLR 505 at [98].
an expansive view of purposive interpretation where it is clear what Parliament’s intention is. She submits there would be significant effects if the interpretation advocated for by Mr Hesketh were adopted.
Should the appeal be upheld?
[8] Section 232(2)(c) of the Criminal Procedure Act 2011 provides that the High Court must allow an appeal if the Court is satisfied that a “miscarriage of justice has occurred for any reason”. Section 232(4) defines “miscarriage of justice” to mean:
any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[9] Section 232(5) provides that “trial” includes a proceeding in which the appellant pleaded guilty. A miscarriage of justice “is more than an inconsequential or immaterial mistake or irregularity”.4 A miscarriage of justice will occur where the appellant did not appreciate the nature of a particular charge, or on the admitted facts the appellant could not in law have been convicted of the offence charged.5 An appellant “does not have to establish a miscarriage in the sense that the verdict is actually unsafe” but that there has been a real possibility the verdict would be unsafe.6
[10] As Ms Pairman responsibly concedes, 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. Mr Martin has not.
[11]Ms Pairman relies on s 22 of the Interpretation Act 1999 which states:
22 References to repealed enactment
(1)The repeal of an enactment does not affect an enactment in which the repealed enactment is applied, incorporated, or referred to.
4 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
5 R v Le Page [2005] 2 NZLR 845 (CA) at [13]; R v Merrilees [2009] NZCA 59 at [24]; and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70].
6 R v Sungsuwan, above n 5, at [110].
(2)A reference in an enactment to a repealed enactment is a reference to an enactment that, with or without modification, replaces, or that corresponds to, the enactment repealed.
(3)Subsection (1) is subject to subsection (2).
[12] Section 52A(5) does not “apply” or “refer” to its repealed predecessor, s 52(4). Section 52A may “incorporate” s 52 in the sense that the wording of the offence is unchanged. But that just means that, under s 22(1), the repeal of s 52(4) does not affect s 52A. And s 52A is clear on its face and does not include a carry-over provision.
[13] In De Montalk v R, the Court of Appeal held that s 22(2) applied to s 34(1) of the Act which replaced another section, notwithstanding small changes to the form of the legislation.7 The Court considered that it should apply s 22 to an offence provision that referred to offences under regulations. That meant the offence provision would now refer to a new statutory offence that replaced a previous offence under a regulation.8 The Court noted that was semantically awkward but right, because it was “simply not credible to attribute to Parliament an intention that the relevant offence no longer be a stationary vehicle offence”.9
[14] I do not consider the same applies here. There is no reference to a repealed or replaced enactment here or to a category of enactments which include that replaced here. The text of s 52A is very clear in referring to a person “convicted for a third or subsequent offence against subsection (1) [of s 52A]”. Unlike the situation in De Montalk, the resulting Parliamentary intention is credible: that Parliament intended to increase penalties on those who repeatedly offend against s 52A, prospectively.
[15] I accept Mr Hesketh’s submission that the situation is similar to that in Kesseler v Police.10 There, Keane J in the High Court held that, in the absence of a specific or general deeming provision capturing convictions under the Land Transport Act 1962, Mr Kessler’s earlier convictions could not qualify as “third or subsequent” offences.11
7 De Montalk v R CA 157/03, 7 March 2005 at [14].
8 At [16].
9 At [17].
10 Kesseler v Police, above n 1.
11 At [12].
[16] Sections 32(5) and 56(5) of the Act, referred to by Mr Hesketh, are explicit in providing that specific offences against predecessor enactments are “to be treated as a conviction” for the corresponding offence. So is s 129(5) of the Sentencing Act 2002, relating to confiscation of a motor vehicle after a subsequent offence. Section 52A(5) does not. I do not consider the fact it is a successor section makes a difference. If Parliament had wished to provide for the meaning advocated by the Police, it could have done so. Interpreted in the context of the Kesseler decision in relation to the predecessor section of the same Act, the absence of a deeming provision reinforces the plain meaning of s 52A. That is not inconsistent with the purpose of increasing penalties on repeat offenders against s 52A.
[17] I uphold the appeal and quash the conviction and corresponding sentence. The Police will need to pursue any modified charge in the District Court.
Palmer J
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