N v Police HC Wellington CRI 2007-485-1
[2007] NZHC 992
•3 October 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2007-485-1
N
Applicant
v
NEW ZEALAND POLICE
Respondent
Hearing: 25 September 2007
Appearances: D Ewen for the Appellant
M Snape for the Respondent
Judgment: 3 October 2007
JUDGMENT OF SIMON FRANCE J
[1] This is an application for leave to appeal to the Court of Appeal. It concerns the powers of the Director of Land Transport New Zealand to delegate his functions under the Land Transport Act 1998.
[2] Mr N was stopped for a driving offence. The officer was advised by “Comms” when he contacted them that Mr N was liable to suspension because he had acquired 100 demerit points. Acting under s90 of the Act, the officer himself issued a suspension notice. The officer’s powers to issue the suspension notice come pursuant to a delegation by the Director of Land Transport Safety (as the Director’s
position was then termed).
N V NEW ZEALAND POLICE HC WN CRI 2007-485-1 3 October 2007
[3] At trial the officer produced a copy of the suspension notice he had served on Mr N . The trial Judge accepted the correctness of the prosecution submissions that the particular charge – driving while suspended – did not involve any inquiry into the legitimacy of the suspension notice. What had to be proved was whether the Notice was served, not whether the basis for the Notice was verified.
[4] The Judge next dealt with a submission that the power to issue the Notice could not be delegated. The Act makes it clear that the Director’s delegation powers do not extend to any power to “amend or revoke Land Transport documents”. Accordingly the issue was whether the act of suspending a licence fell within the term “amend or revoke”. The Judge held it did not. Accordingly the power could be delegated. A conviction was entered.
(b) High Court Appeal
[5] Before Ronald Young J three grounds of appeal were advanced:
a) the delegation was invalid;
b)the informant was required to produce the original suspension notice issued by Land Transport Safety Authority which had not been able to be served on Mr N . It could not rely on the notice issued by the officer;
c) an error concerning the defence of mistaken belief.
[6] Because the present application involves only the first two grounds I do not consider c) further.
[7] Ronald Young J considered s205 of the Act which is the primary power to delegate. It is s205(4) that limits the delegation authority by excluding powers to amend or revoke. Ronald Young J agreed with the District Court that “amend” involves the changing of a continuing operative document. “Revoke” involves the
ending of an entitlement. Neither status occurred by reason of suspending a licence, and accordingly s205(4) did not prevent the delegation of the power to suspend.
[8] The second issue was seen as being whether the prosecution had proved that the appellant had 100 demerit points and so was liable to suspension. It seems to have been assumed, without dispute, that it was necessary for the prosecution to prove this. The written submissions for the Police in this Court do not seem to take the point made originally in the District Court that the validity of the suspension was not a relevant issue.
[9] The appellant’s submission was that the informant had purported to prove the suspension by producing a copy of the officer’s notice, and then relying on s150 of the Act, which provides:
“50 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.
[10] In the appellant’s submission the only document that can meet the requirements of the section is the original unserved notice issued by the Land Transport Safety Authority. An enforcement officer is in no position to check and certify the underlying information concerning the 100 demerit points, so accordingly a copy of his or her notice adds nothing.
[11] Ronald Young J held that since the Director could and had delegated the issuing of the notice, the person who issued it can certify it as the document that was issued. The purpose of the section is to prevent the need to reprove each demerit incident. The certification must be done by the person who issued the notice.
Issue One – No power to delegate suspension powers
[12] I consider this point is at least arguable, but with a different focus from the appellant’s. “Revoke” is defined in the New Zealand Oxford Dictionary as “rescind, withdraw or cancel”. Suspension does exactly that, albeit for a temporary period. It is in my view arguable that suspension is therefore an example of revocation, albeit for a limited time frame. On the other hand had Parliament wished to include suspension powers within the ambit of s205(4), it was a relatively obvious and straight-forward inclusion to have made. The fact that it did not expressly do so tells against the applicant’s submission.
[13] Further, s90 has been subsequently amended to expressly authorise an enforcement officer to exercise these powers. The Amendment expressly authorising delegation came into force at the end of 2003, meaning that there will now not be any extant prosecutions affected by this issue. In the circumstances I do not consider it a point of general or public importance, nor does there exist any other reason to justify a grant of leave.
[14] The question does involve the interpretation of s205 of the Act, which is of wider application. However, a power to delegate such as that contained in s205 cannot be considered in a vacuum and must be analysed in light of the specific power that it is sought to delegate. The power to suspend no longer being a live issue, I decline leave.
Issue Two – the requirements of s150 of the Act
[15] In this case the officer who issued the demerit notice produced what appears to be a carbon copy of the original. On its face the Notice records that:
“Records indicate that you have accumulated 100 or more demerit points in a period of less than two years …
Your driver’s licence is suspended for a period of three (3) months from the time this notice is given to you.”
a) Is a document purporting to be issued by the Director. The Notice says it is issued by the officer “acting pursuant to an authority delegated by the Director of Land Transport Safety”;
b) It has been certified by “that person” (ie the person issuing it);
c) To be a true copy of the document issued under the Act.
[17] The strongest argument for the applicant is that the expression “issued by the Director, or an employee of the Authority authorised by the Director for that purpose…” does not include a s205 delegate of the Director. However, I respectfully agree with Ronald Young J that such an interpretation is inconsistent with the purposes of s150. Section 150 is designed to allow the Notice to be sufficient proof of its contents, unless there is contrary evidence. It remains open to a recipient of the Notice to put in issue his status, in the sense in this case of whether he has acquired 100 demerit points.
[18] I accept that the interpretation of s150 is of some general importance given its day to day applicability. However, I do not consider the applicant’s position to be
sufficiently arguable to merit a grant of leave. The application is declined.
Simon France J
Solicitors:
D Ewen, Wellington for the Appellant
Crown Solicitor’s Office, Wellington for the Respondent
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