McLachlan v Police
[2016] NZHC 731
•19 April 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-130
CRI-2014-409-132
CRI-2014-409-133 [2016] NZHC 731
BETWEEN DENIS-LLOYD MCLACHLAN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 19 April 2016 Appearances:
Appellant in person
A C Trinder for RespondentJudgment:
19 April 2016
JUDGMENT OF DUNNINGHAM J
[1] On 9 July 2015, I issued a decision on appeals against the decision of the District Court convicting the appellant on five charges of failing to comply with a notice forbidding him from driving issued by an enforcement officer and one charge of failing to give details requested by an enforcement officer.1 He now seeks leave to appeal my decision to the Court of Appeal.
The proceedings to date
[2] I will not rehearse the somewhat convoluted previous history of these prosecutions except to note that four of the charges of failing to comply with a prohibition order were in fact the subject of a rehearing in the District Court as a
consequence of an appeal heard by Fogarty J in late 2013.
1 McLachlan v New Zealand Police [2015] NZHC 1608.
MCLACHLAN v NEW ZEALAND POLICE [2016] NZHC 731 [19 April 2016]
[3] Mr McLachlan’s primary defence to the charges of failing to comply with the notice forbidding him from driving was that such a notice should not have been issued because he had, at the relevant times, valid overseas licences issued in Vanuatu and the Cook Islands. That, Mr McLachlan argued, meant he had a deemed licence in terms of r 88(1)(a) of the Land Transport (Driver Licensing) Rule 1999, which provides:
88 Recognition of overseas driver licence or permit
(1) A person, on arrival in New Zealand, is deemed to hold a New Zealand driver licence of a class that entitles the person to drive the motor vehicles that the person is entitled to drive under—
(a) a valid and current driver licence or permit issued overseas to the person, after the person has produced proof of the person’s driving competence, by an overseas authority, or an agent of that authority, authorised to issue a driver licence or permit; or
…
[4] In those circumstances the notice forbidding him from driving issued under s 113 of the Land Transport Act 1998 should not have been issued and the resulting charges of breaching it would not succeed.
[5] The key issue which arose on appeal was whether Mr McLachlan could claim a deemed licence under s 88(1)(a) because:
(a) he held a valid overseas licence; and
(b) at the time he was charged with each offence, he was within the
12 month period from returning from overseas.
[6] That issue was complicated by the fact that there is no official record of Mr McLachlan’s travel (which was by boat and he did not go through normal customs checks), and Mr McLachlan’s position was that he would not provide to the Court any evidence of his travel as he was in fear of being prosecuted for failing to comply with immigration requirements when travelling overseas.2
[7] On appeal, I found that neither Vanuatu licence he held was valid at the time of the relevant offences. In terms of his Cook Island licence, it appears to have been valid at the time of the first forbidden to drive offence, but not at the time of the subsequent charges. However, as the first charge was brought under the Summary Proceedings Act, the onus was on Mr McLachlan to establish, on the balance of probabilities, that he was within 12 months of returning from overseas
and he had not satisfied that onus.3
[8] In short, on the facts, I decided that there had been no error in convicting Mr McLachlan on all charges of driving while prohibited and his appeal on those convictions failed.
The application for leave to appeal
[9] The next step Mr McLachlan took was to file a notice of application for leave to appeal to the Court of Appeal against the decision of the High Court. That application was filed in the High Court on 14 December 2015, although it was not brought to my attention until the beginning of March 2016.
[10] When I received Mr McLachlan’s application for leave to appeal I issued a minute on 7 March 2016 explaining that the application was filed four months outside the time limit in s 144(2) of the Summary Proceedings Act 1957, and there was no explanation for the late filing of the application for leave to appeal. I directed Mr McLachlan to file and serve any further information in support of his application, including for an extension of time to file it, by 24 March 2016.
The explanation for late filing of the application
[11] The Court subsequently received a document described as “response to the minute of Dunningham J” dated 23 March 2016. In it, the explanation for the late filing of the application is as follows:
I asked for the application papers on 9 July 2015. I was told and was given an address to apply for them at the Court of Appeal corner of Molesworth
and Aitken Streets Wellington. I received a letter back from them on
8 October 2015 suggesting I should apply to the High Court Christchurch which I did. The High Court in Christchurch wrote to me on
28 October 2015. This mail was returned to the District Court
20th November 2015. I have no understanding why as I have had this property since 1972. It wasn’t til I approached Karen Ayling to find out what was going on that I was informed of this. The five – months delay was a
sequence of events beyond my control. Largely due to misinformation at the
Court desk.
[12] This explanation, which is not given in affidavit form, did not in my view adequately explain the delay. While Mr McLachlan says the letter of 8 October 2015 told him to apply to the High Court at Christchurch, and that he then did so, that is incorrect. It seems, from oral explanation today, that all Mr McLachlan did on receipt of this letter was to ask the High Court for a copy of the appropriate form to use to file the relevant application. The High Court sent out a copy of the form but it appears that posting did not reach Mr McLachlan, and he made no further enquiries until December.
[13] As a consequence, the application for leave to appeal was not filed until mid-December 2015.
[14] While I accept the process for seeking leave to appeal is not easy for a litigant in person to understand, and he or she will rely on guidance from Court staff, I still consider that such a person has an obligation to actively pursue his or her appeal rights. They can not simply passively wait to be informed when and how to do this as seems to have been the position with Mr McLachlan.
Is there a relevant question of law?
[15] However, even if I were willing to accept his explanation as sufficient to excuse the delay, I think the application must be declined on the more fundamental ground that it does not disclose a question of law which, by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of
Appeal for decision.4
4 As is required by s 144(2) of the Summary Proceedings Act 1957.
[16] The question of law Mr McLachlan sought to argue was expressed as follows: “misinterpretation of Land Transport Act by police – sec 113 and driver’s licensing rule 23.02 (see attached supplement)”.
[17] The grounds supporting the application for leave to argue this question were: (a) the case should have been returned to the District Court for rehearing; (b) the purpose of Justice Fogarty’s instruction was not adhered to;
(c) the question of law was not considered.
None of these grounds shed light on the question of law Mr McLachlan sought to raise.
[18] Attached to his application for leave was a six and a half page document described as a “supplement” to the form applying for leave to appeal. The gist of that document is that Mr McLachlan considers that the Land Transport Act 1998 is not intended to empower the police for the purpose of “the collection of what could be considered trifling matters”, going on to give, by way of example, that “failing to pay a $30-60 in licensing fee” is “not within the understanding and the intent of the Act”.
[19] Mr McLachlan also complains that s 113 of the Land Transport Act (which gives various powers to enforcement officers, including to forbid an unlicensed driver from driving a motor vehicle), and the driver licensing rule providing for the
10 year licence, do not distinguish between a “competent driver” and an unlicensed driver. He considers that there is a “clear distinction between an unlicensed driver who has never sat a driving test to prove their competency” and an experienced driver who has “allowed his or her license to expire”. He says that he does not understand why the police do not exercise the discretion when they are exercising their powers under s 113, to recognise the difference between competent, albeit unlicensed drivers, and drivers who have not demonstrated competence.
[20] In summary, Mr McLachlan explains that he is “looking for caselaw to make a change, or if necessary appeal for a law change … to limit police powers to forbid a competent driver as they are not unsafe or a danger to our road users”.
[21] I accept that this encapsulates the nub of Mr McLachlan’s complaint. However, it is not a question of law which arises within the scope of his appeal. The Court is confined to determining whether the law, as it currently stands, has been correctly applied. It cannot allow an appeal on the basis that the legislation being enforced should be altered.
[22] Mr McLachlan’s complaint is that, when he was initially forbidden to drive under s 113, the police should not have issued that notice to forbid because it should have interpreted “unlicensed driver” as a driver who has not demonstrated driving competency. However, that is to ignore the definition of “licensed” in the Land Transport Act, which expressly refers to the driver being licensed “by or under this Act to drive vehicles of a specified class or classes”, and which, by extension, includes a deemed licence under s 88(1)(a). The factual findings of the Court were that he did not hold the requisite licence at the time, and was properly charged with being in breach of the order forbidding him from driving.
[23] For these reasons, I am satisfied that there is no question of law of general or public importance which arises on appeal the application for leave to appeal is declined.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy to Appellant
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