N v Police HC Wellington CRI 2007 481 1
[2007] NZHC 1903
•22 June 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2007 481 1
N
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 19 June 2007
Counsel: D Ewen for Appellant
C A Patterson for Respondent
Judgment: 22 June 2007 at 10.00amat 10.00 a.m.
RESERVED JUDGMENT OF RONALD YOUNG J
[1] On 26 August Mr N was stopped by Constable Pollock when driving on State Highway 1. When the constable checked his details, he found that Mr N was liable to suspension of his drivers licence because he had accumulated more than 100 demerit points. The constable issued Mr N with a notice which told him his licence was suspended. The constable offered to escort Mr N in his vehicle to a safe place but Mr N turned him down. Shortly afterwards the constable saw Mr N driving again. He stopped him, arrested him and charged him with driving while his licence was suspended. At hearing in the District Court
before Judge Ellis he was convicted.
N V NEW ZEALAND POLICE HC WN CRI 2007 481 1 22 June 2007
[2] Mr Ewen, in support of this appeal against conviction submits:
(i)The delegated authority to the police officer to issue suspension notices under s 90 of the Land Transport Act 1998 was legally invalid.
(ii)The informant was required to produce in evidence the original suspension notice issued by the Director of Land Transport Safety under s 90 of the Land Transport Act 1998 in order to prove the power to suspend had in fact arisen. The failure to do so was fatal to the informant’s case.
(iii) The District Court Judge misunderstood the “defence” of honest
(if mistaken) belief that the appellant thought he was entitled to drive.
[3] I deal with any additional factual material that might be necessary to resolve each appeal point as I consider the appeal point itself.
(i) Delegated authority – s 90
[4] The appellant submits that s 90 permits the Director to give notice in writing of suspension of a driver’s licence. The appellant says the function of giving notice of suspension is not able to be delegated by the Director to members of the police.
[5] The appellant was prosecuted pursuant to s 32(1)(c) of the Land Transport
Act 1998. This section, as relevant, provides as follows:
32 Contravention of section 5(1)(c)
(1)A person commits an offence if the person drives a motor vehicle on a road—
. . .
(c) while his or her driver licence is suspended or revoked.
[6] Thus, the prosecution needed to prove:
(i) That the appellant was driving the car. (ii) That he was driving on a road.
(iii) That at the time of driving his licence was suspended.
The only issue was whether or not at the time of driving the appellant’s licence was suspended.
[7] Section 90 of the Land Transport Act 1998 sets out the statutory circumstances under which a licence may be suspended as a result of the accumulation of demerit points. It provides as follows:
90Suspension of licence or disqualification from driving under demerit points system
(1)If, in any 2-year period, a total of 100 or more demerit points have effect against a person, the Director must, by notice in writing given to that person, either—
(a) suspend that person's current driver licence for 3 months; or
(b)if the person does not hold a current driver licence on the date of the giving of the notice, disqualify the person from holding or obtaining a driver licence for
3 months.
(2)If the Director has been unsuccessful in giving notice to a person under subsection (1), an enforcement officer may, by notice in writing given to that person, either—
(a) suspend that person's current driver licence for 3 months; or
(b)if the person does not hold a current driver licence on the date of the giving of the notice, disqualify the person from holding or obtaining a driver licence for
3 months.
(3)A suspension or disqualification under subsection (1) or subsection (2) starts on the date the notice is given to the person.
(2)A person whose driver licence has been suspended under subsection (1) or subsection (2) may not hold or obtain a driver licence while the suspension is in force.
[8] At the hearing, therefore, the prosecution needed to prove that Mr N had accumulated 100 or more demerit points within the two year period and that he drove after his licence was suspended as a result of these demerit points. To prove both matters the prosecution produced, through the constable who had issued it, a copy of the suspension notice handed to Mr N . It is headed “Notice of Driver Licence Suspension and Disqualification for Excess Demerit Points”. The prosecution case was that by the constable producing as an exhibit a true copy of the suspension notice given to Mr N then (pursuant to s 150 of the Land Transport Act 1998) he was producing a certified true copy of the notice issued under s 90 of the Land Transport Act 1998. This document therefore proved both the accumulated demerit points and the fact of the appellant’s licence suspension.
[9] Section 90(1) authorises the Director to give to errant drivers who have accumulated 100 demerit points a suspension notice. Section 90(2) authorises enforcement officers to give such notice in certain circumstances. The Crown case is that even if subs (2) does not apply the Act authorises delegation of the Director’s powers in subs (1).
[10] Section 205 of the Land Transport Act 1998 is the primary statutory authorisation for delegation of functions of the Director to those persons who work outside of the Land Transport Authority, such as the constable in the present case. Section 205(2), (3) and (4) provide as follows:
205 Director may delegate functions or powers to persons outside
Authority
. . .
(2)The Director may from time to time, either generally or particularly, delegate to a person who is not an employee of the Authority any of the Director’s functions and powers.
(3)A person who exercises a function or power under a delegation made under this section may charge the person in respect of whom the function or power is exercised a reasonable fee in respect of the exercise of that function or power.
(4)The Director may not delegate under this section the power to amend or revoke land transport documents.
[11] Section 2 of the Land Transport Act 1998 defines “land transport documents” (s 205(4)) (referred to in subsection (4)) as follows:
land transport documents means licences, permits, approvals, authorisations, exemptions, certificates, and similar documents issued under the Transport Act 1962, the Road User Charges Act 1977, the Transport (Vehicle and Driver Registration and Licensing) Act 1986, the Transit New Zealand Act 1989, the Transport Services Licensing Act 1989, or this Act.
[12] The appellant’s submission is that:
(i) a drivers licence is a document for the purpose of s 205;
(ii)the act of suspending a licence is the “revocation of a licence” and therefore is not able to be delegated by the Director pursuant to s 205(4).
[13] Thus the appellant submits the constable was not authorised to serve the suspension notice on Mr N . Accordingly, the appellant submits Mr N had not had his licence validly suspended pursuant to s 90 and therefore could not be convicted of driving while his licence was suspended.
[14] I agree with the District Court Judge that the power to suspend a driver’s licence is neither an amendment or revocation of that licence. In such circumstances the meaning of “amend” relates to a change of a continuing operative document. “Revoke” clearly involves the end of the entitlement that the land transport document provided. “Suspension” is demonstrably different than either “amendment” or “revocation”. I am satisfied therefore that the prohibition against delegation in s 205(4) has no application to suspension of driving licenses.
[15] In my view, therefore, “suspension” comes within those powers of permissible delegation identified in s 205(2) of the Act. In this case it was accepted that there was in existence a delegation pursuant to s 205(2) of the Land Transport Act 1998 delegating to sworn members of the police the s 90(1) functions. I therefore reject the first argument of the appellant relating to the interpretation of s 205 of the Land Transport Act 1998. The delegation given by the Director to police officers to carry out the s 90(1) function was valid.
(ii) Proof of suspension
[16] I turn secondly to consider whether the evidence by the prosecution proved that the appellant had 100 demerit points or more and was therefore vulnerable to licence suspension.
[17] The appellant’s submission can be shortly summarised. The appellant says that the informant purported to use s 150 of the Land Transport Act 1998 to establish that the 100 demerit points had been incurred by the appellant in the previous two years. The appellant submits s 150(1) and (2) provides that only the Director or an Authority employee was entitled to certify, by true copy, that the appellant had accumulated the necessary demerit points entitling suspension. In this case the certification was by the police constable who gave the appellant the notice. This submission, therefore, requires consideration of the meaning of s 150.
[18] Section 150 provides as follows:
150 Evidence of certain documents
(1)In proceedings for an offence against this Act, a document purporting to be issued by the Director, or an employee of the Authority authorised by the Director for the purpose, and certified by that person to be a true copy of a certificate or other document issued under this Act or the regulations or the rules is, in the absence of evidence to the contrary, sufficient evidence of the facts stated in the copy.
(2)An employee of the Authority who certifies such a copy as a true copy is, in the absence of evidence to the contrary, to be presumed to be authorised to certify it.
[19] The notice of driver licence suspension and disqualification for excess demerit points produced as exhibit 1 in this case is a document issued under “this Act” (s 150(1)). I have already concluded that it is a document issued under s 90(1) of the Land Transport Act 1998 and entitled to be issued by a police constable if proper delegation (as here) has been given. The question is therefore whether or not this notice is sufficient to prove its contents, that the recipient has accumulated 100 demerit points and has been given notice of licence suspension.
[20] The appellant submits that the correct reading of s 150(1) prohibits the delegation of the certifying procedure by the Director to anyone other than an employee of the Authority specifically authorised by the Director for that particular purpose. The appellant says that the use of the words “Director” and the use of the phrase “or an employee of the Authority authorised by the Director for the purpose” illustrate that what was intended by Parliament was to exclude anyone other than an employee of the Authority as able to be delegated to this task by the Director. The appellant submits that if that interpretation is not correct then the words “or an employee of the Authority authorised by the Director for the purpose” are superfluous because such persons already have delegated authority from the Director. The appellant submits that if unrestricted delegation is permitted then subs (2) would be superfluous.
[21] I reject the appellant’s submissions. I agree that there is some uncertainty in the correct interpretation of subsection (1), but when one looks at the purpose of the section overall then I consider the meaning is clear. The purpose of s 150, as exhibited by the heading of the section and its overall thrust, relates to how evidence of particular documents can be given in Court. The concern of this section is, in my view, to ensure that where a document is issued by a particular person that that person should be the one required to certify any copy to be a true copy of the document. That has a logic to it. This is an exception to the hearsay rule and probably to the documentary hearsay rule. The provision avoids prosecutorial need to call evidence to prove each individual occasion which gave rise to demerit points in a prosecution for breach of a suspension of a licence arising from those demerit points. The safeguard provided is that the person who actually completed the notice of suspension and provided it to the suspended driver, either by service of the notice by the Director or employees of the Authority, or alternatively by the constable (who happens upon an individual who has 100 plus demerit points), completes the notification and the certificate of the true copy themselves.
[22] Given this purpose it is clear that the section does not intend to limit the delegatory powers given under s 205(2) by limiting delegation in s 150 to the Director to Authority employees. The notice of suspension is, as I have found, a document which the Director may validly delegate responsibility to police officers to
complete and serve on a suspended driver. Therefore, where s 150(1) provides for a document purporting to be issued by the Director that will include a document purporting to be issued by a person to whom the Director has validly delegated authority to issue. Here, the Director has validly authorised police constables to issue suspension notices. Section 150 provides that the person who issues the notice, here the police constable, must certify the document to be proved in evidence as a true copy, as happened here. I note s 205 is concerned solely with delegation to persons outside the Authority. Thus where s 150(1) refers to employees of the Authority and in s 150(2) to employees of the Authority these provisions are not superfluous.
[23] I am satisfied, therefore that the prosecution properly proved by admissible evidence the fact of accumulation of demerit points and the fact of service of the notice of suspension prior to the appellant’s arrest for driving while his licence was suspended.
(iii) Honest (if mistaken) belief
[24] The third ground of appeal relates to the way in which the Judge considered whether sufficient evidence existed requiring the Crown to establish that the appellant did not have an honest (if mistaken) belief in an entitlement to drive notwithstanding the service of the suspension notice on him: Millar v Ministry of Transport [1986] 1 NZLR 660.
[25] To consider this aspect of the case requires a further consideration of relevant evidence.
[26] Constable Pollock, who gave evidence at the hearing was the constable who stopped Mr N , served him with the suspension notice and then later that day stopped him again when he saw him driving subsequent to the service of notice of suspension. After Mr N had been stopped on the first occasion, and the constable had advised Mr N that the police dispatcher had double checked and confirmed that he had over 100 demerit points in a two year period, the constable
told Mr N he proposed to serve him with a notice of suspension. At that stage it seems that Mr N said that he had been told “that the system was flawed and that he was allowed to drive”. The constable then asked Mr N if he wanted to make a phone call or have someone come and collect him from his car. Alternatively the constable offered to “escort him to a place of safety” which he suggested was the 24 hour Mobil Service Station in Paraparaumu. At the time the appellant had been stopped on State Highway 1 near Paekakariki. Mr N , however, declined the constable’s offer. The constable said that he warned Mr N at that point that if he chose to stay and then drive away he would be arrested and the vehicle would be impounded. Again the appellant refused the offer to get him and his vehicle to “a place of safety”. What the police officer had in mind, he said, was that prior to serving the suspension notice on Mr N he would allow Mr N to drive to the safety of the service station under the police constable’s escort.
[27] Shortly afterwards, confirming the police constable’s suspicions, Mr N ’s car appeared with him driving. He was stopped. The constable said that Mr N then told him that he
was entitled to drive because he had spoken to his lawyer and his lawyer advised him as I had left him on the roadside in an unsafe area he was allowed to drive his car home.
[28] The constable arrested him . At that point Mr N said that he could not be arrested because as the constable said “his lawyer told him it was okay to drive and that there was an error in the paperwork that I had given him so it was invalid”. The error suggested was an incorrect spelling of Mr N ’s name.
[29] The appellant’s submission is that the District Court Judge found that there was an evidential foundation for honest belief based on the advice that the appellant had received from a lawyer, however, the Judge failed to recognise that this finding in turn triggered an obligation on the prosecution to prove that there was not an honest (if mistaken) belief by the appellant in an entitlement to drive.
[30] As to this, the District Court Judge said:
[55]I have had regard to the evidence indirectly put before me by the officer himself, who said that when stopped for the second time, the defendant had told him that he had spoken to a lawyer and had been told that he was entitled to drive. The reason offered, as I recorded it, being that he had been left in an unsafe place. Whether or not that was the advice given, I do not know, I only have the Constable’s record of that and nothing further from the defendant.
[56]Of course, that has to be coloured by the officer’s own unchallenged evidence that he had, in fact more than once, offered to escort the defendant to a place that might have been regarded as more suitable. I have also had in regard to the officer’s evidence that the defendant himself took some time to stop, notwithstanding the fact that he was being pursued by a police car with lights flashing and siren blaring and I inferred from that, giving the defendant the benefit of the doubt, that he had proceeded until he considered he could stop at an appropriately safe place.
[57]In any event, I have considered that indirect evidence. That does not, in my view, amount to a matter of defence, although it might feasibly go to mitigation or explanation.
[31] The Crown submitted that the Judge in fact had concluded that he did not consider that the appellant had an honest belief he was entitled to drive and that was a conclusion open to him. Once such a conclusion was reached they submitted then in the absence of any other evidence, the prosecution would have proved beyond reasonable doubt absence of honest yet mistaken belief.
[32] I do not read [55] [56] or [57] of the Judge’s decision as recognising that the evidence given by the constable of what the appellant had said to him potentially raised the honest yet mistaken belief “defence”.
[33] Firstly, it is well established that in such a situation the appellant has to point to sufficient evidence to raise the issue to overcome the threshold. Here, while the accused did not give evidence, the police officer reported the appellant claimed he was entitled to drive as a result of advice from a lawyer. At [57] the Judge appeared to accept that what Mr N said to the constable could have been true, in that, he had spoken to a lawyer and that he did honestly believe he was entitled to drive. If that was the case then the Judge needed to shift his attention as to whether or not the prosecution could prove beyond reasonable doubt that Mr N did not hold such an honest belief. The matters mentioned by the Judge in [56] are of course relevant to whether or not the appellant did have an honest belief.
[34] However, reading [55], [56] and [57] as a whole I am left in considerable doubt as to whether or not the Judge recognised the potential “defence” available to the appellant. The Judge regretfully was not provided with any assistance by counsel for the appellant (not counsel before me) nor the prosecution. The Judge, therefore, dealt with the issue as it was presented to him. In doing so, however, I am satisfied he fell into error. On his own finding there was sufficient threshold evidence which required him to consider whether or not the Crown had proved beyond reasonable doubt absence of honest (if mistaken) belief in an entitlement to drive.
[35] When considering that question the Judge would have been entitled to take into account that the relevant evidence was not sworn evidence by the appellant but effectively came to him by way of an unsworn and untested statement through the police constable. This was relevant to both the reliability and credibility of Mr N ’s assertion of honest belief.
[36] Secondly, the Judge would have been entitled to take into account the fact that the police constable had offered to take the appellant to a place of safety himself prior to Mr N claiming he had received the advice from a lawyer.
[37] These matters, however, were not dealt with as relevant to the question of credibility or reliability of honest belief in the context of the prosecution having to prove this aspect beyond reasonable doubt. In those circumstances, the proper course for me is to allow the appeal on this ground and remit the matter back for the evidence to be heard again. It will be for the Judge in the District Court to decide, firstly, if there is in fact sufficient evidence such that the appellant crosses the threshold to raise this issue and then, secondly, if so, whether or not the prosecution have disproved it beyond reasonable doubt.
[38] For the reasons given, the appeal is allowed and the case remitted back to the
District Court for rehearing.
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Ronald Young J
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