Ngu v Police - [2015] NZHC 1199

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2015-476-000001 [2015] NZHC 1199

BETWEEN
ELONI FETAIAKI TUAKOI NGU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 May 2015

Appearances:

T A McRae and P A Bradford for Appellant
N N Willcocks for Respondent

Judgment:

29 May 2015

ORAL JUDGMENT OF GENDALL J

Introduction

[1] On 24 February 2015 the appellant, Mr Ngu was convicted by Judge Kellar in the District Court at Timaru of driving while having a suspended licence, third and subsequent.1 Previously, Mr Ngu had been suspended from driving for three months, from 15 April 2014 until 15 July 2014 as he had incurred over 100 demerit points within a two year period. However, on 3 July 2014 while the suspension period still applied, Mr Ngu was pulled over by a police officer while driving his car.

[2] Mr Ngu now appeals his conviction on the basis that although he was mistaken, he had thought at the time that the period of suspension had come to an end. Although the District Court Judge agreed that Mr Ngu was honest when he said he had simply made a mistake here, nevertheless, he convicted Mr Ngu on the charge. He did so effectively as he had imposed a further objective element on
Mr Ngu’s mistaken belief, which he said had not been met here.

1 Land Transport Act 1998, s 32(1)(c) and (4).

NGU v NEW ZEALAND POLICE [2015] NZHC 1199 [29 May 2015]

Circumstances of the mistake

[3] Turning to consider the circumstances of the mistake, Mr Ngu is Tongan and speaks English as a second language. As a result, his English is not strong as indicated by the oral evidence he gave at the hearing. Although it seems he was able to comprehend the majority of the questions put to him on examination, many of his answers were rudimentary and it appears clear that he did not understand the more complicated words.

[4] Mr Ngu, when called to give evidence, gave the following explanation to the

Court of how he arrived at his mistaken belief:

Q. Did you ask the man who visited you about that?

A. Yeah, I asked before, I asked him when did I suspended and he said to me, just start from today’s, April from April, and I did get from that date, from that month that’s how I count.

Q. So when did you think you would be able to drive again? A. And I thought myself, I’m be able to drive on July.

[5] When cross examined on the point Mr Ngu, as I see it, reinforced his mistaken belief:

Q. I put it to you Mr Ngu that in fact you knew you were still suspended and that’s why your friend was driving you to and from work in July, isn’t that right?

A. Pardon.

Q. That you knew that you were still suspended in July when you were stopped because your friend was still taking you to and from work?

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.

Continue reading Ngu v Police

Details

AGLC: Ngu v Police [2015] NZHC 1199
Case: [2015] NZHC 1199
Decision Date: 29 May 2015

CaseChat Overview and Summary

The case of Ngu v Police involved an appeal against a conviction for driving while having a suspended licence. The appellant, Mr Ngu, was convicted by Judge Kellar in the District Court at Timaru for driving while his licence was suspended for a third or subsequent offence. Mr Ngu had been suspended from driving for three months, from April to July 2014, due to accumulating over 100 demerit points within a two-year period. However, he was pulled over by a police officer while driving on 3 July 2014, during the period of suspension. Mr Ngu appealed his conviction, arguing that he was mistaken about the end of his suspension period.

The court was required to determine whether Mr Ngu's mistaken belief about the end of his suspension period was sufficient to negate the mens rea element of the offence under the Land Transport Act 1998. The District Court Judge had convicted Mr Ngu despite acknowledging that he was an honest witness who had made a mistake about the end of his suspension period. The court had to assess whether the imposition of an objective reasonableness standard on Mr Ngu's mistake was appropriate.

The court found that the District Court Judge was correct in determining that Mr Ngu had made an honest mistake about the end of his suspension period. However, the court held that the District Court Judge had erred in applying an objective reasonableness standard to the mistake, which was not required under New Zealand law. The Court of Appeal in Millar v Ministry of Transport had established that an honest belief, rather than an honest and reasonable belief, was sufficient to negate the mens rea for the offence of driving while disqualified. Therefore, the court concluded that Mr Ngu did not have the necessary mens rea at the time of the offending, and his conviction should be quashed.

In conclusion, the appeal was allowed, and Mr Ngu's conviction was quashed. The court held that an honest belief in the mistake was sufficient to negate the mens rea for the offence, and the District Court Judge should not have applied an objective reasonableness standard to the mistake. The case highlighted the importance of correctly applying the legal principles regarding the defence of mistake of fact in criminal cases.

Orders