Ngu v Police
[2015] NZHC 1199
•29 May 2015
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 RespondentJudgment:
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?
A. No. I thought all right, my suspended is over.
Q. But you’ve agreed here in Court today that on the 15th of April Mr Kenmare gave you documents saying you weren’t able to drive for three months from that date?
A. Yeah, I count yeah, that my mistake. That’s why I borrow (inaudible
10:57:45) I thought I’m all right be drive because I can’t do it from
April, May and June.
District Court decision
[6] Turning now to the District Court decision, in the District Court hearing, Judge Kellar had to determine whether Mr Ngu was actually mistaken as to the fact of his driving suspension. On this issue, Judge Kellar stated:
[13] Mr Ngu struck me as an honest witness. The key point in his evidence, however, came when he conceded that he had counted the duration of the period of suspension as from April. He conceded that in so doing he made a mistake.
[14] It seems that although Mr Ngu received the various forms from Mr Kenmare informing him of the suspension and the duration of it, he may not have kept those forms, hence when he was driving to have his car repaired on 3 July he may have simply been mistaken as to the period on which the suspension began. That may afford him a defence in law. However, he clearly was aware on 15 April 2014 that he was suspended from driving for a period of three months as from that date.
[15] The position is somewhat reinforced when one considers Constable Livesey’s evidence. The constable pulled Mr Ngu over and carried out a driver licence check, only to discover that Mr Ngu had been suspended as from 15 April 2014.
[16] Mr Ngu’s response to the constable was not challenged in evidence. He said, “I thought it had ended.” That confirms to me that Mr Ngu was aware that a period of suspension applied to him. It also confirms that he appears to have made the mistake as to when the suspension period came to an end. The fact remains that Mr Ngu should have been under no misapprehension as to the duration of the period of suspension.
[7] Mr Ngu was subsequently convicted of the offence at issue here.
Jurisdiction
[8] Turning now to jurisdiction issues, Mr Ngu is able to appeal his conviction as of right.2 As first appeal Court, this Court must allow the appeal if it is satisfied that Judge Kellar erred in his assessment of the evidence to such an extent that there is an error or irregularity which has created a real risk that the outcome of the trial was affected or that it has resulted in a trial that is unfair or a nullity.3 Essentially,
Mr Ngu is required to establish that there was a miscarriage of justice.
2 Criminal Procedure Act 2011, s 229.
3 Section 232(2)(b) and (4).
Submissions
Submissions for the appellant
[9] Turning now to the submissions advanced for the appellant, counsel for the appellant has submitted that Judge Kellar was correct in arriving at his conclusion that a mistake took place, however, he was wrong in finding that “Mr Ngu should have been under no misapprehension as to the duration of the period of the suspension”. This is not a required element of a mistake necessary to negate the element of mens rea. Consequently, Mr Ngu should not have been convicted of the offence as he did not possess the required mens rea.
Submissions for the respondent
[10] Turning now to the submissions for the respondent, counsel has chosen to focus broadly on the appellate procedure and the inherent advantage the hearing judge has in determining the facts of the offending.4 It was also submitted that there was ample evidence available to the Judge to be able to arrive at the finding he did that the appellant possessed the appropriate mens rea at the time of the offending.
Discussion
[11] Turning now to a discussion of these matters, an appropriate place to start the discussion, in my view, is to consider the law on mistake of fact. On this, Simester and Brookbanks set out the following:5
Since Wood, the matter has been regarded as settled in New Zealand law. Wherever an offence requires proof of a subjective mens rea element, the absence of that mens rea element due to an honest mistake will lead to an acquittal. This rule applies, for example, where the defendant honestly, albeit mistakenly, believes that the constable she is charged with resisting is not “acting in the execution of his duty”.
[12] Section 32 of the Land Transport Act 1998 does not expressly set out a mens rea element for the offence of driving while suspended. However, the Court of
Appeal case Millar v Ministry of Transport, establishes that mens rea is a necessary
4 Rae v Police HC Hamilton CRI-2006-419-162, 2 May 2007.
5 AP Simester and WJ Brookbanks Principles of Criminal Law (4th ed, Brookers, Wellington,
2012) at 472.
element of the offence of driving while disqualified.6 The case is particularly helpful due to its similarity with the facts of the present case. Usefully, His Honour McMullin J sets out the circumstances in which the case came to be heard in the Court of Appeal:7
In the District Court Willy DCJ said that, having seen and heard the appellant, he was satisfied that he did have an honest belief that he was not disqualified at the time that he drove; he accepted that the appellant had misheard or misunderstood what the Judge had said when disqualifying him and that there was room for such a misunderstanding. And he accepted that the appellant's subsequent behaviour was consistent with his honest belief that his disqualification had expired before he drove. He went on, however, to find that the appellant's honest belief was not founded on reasonable grounds; that the appellant was not entitled to rest his belief on what he thought he heard the Judge say in open Court; that the appellant had been guilty of wilfully closing his eyes to facts which were readily ascertainable.
[13] The Court of Appeal, hearing the issue as a full court, came to the unanimous verdict that there was a mens rea element to the offence. Consequently, a mistake of fact was only required to be honest rather than honest and reasonable.
[14] His Honour McMullin J provides a particularly useful summary of the law relating to a mistake of fact and disqualification from driving:8
It would be unreasonable to regard a disqualified driver as having no defence to the charge when he had an honest belief that the disqualification period had expired or that none had ever been imposed….
… For these reasons I would regard disqualified driving as being an offence for which the absence of mens rea is a defence. Mens rea in this context is the absence of an honest belief in the existence of facts (the expiry of the disqualification period) which, if true, would make the act innocent.
[15] As the Crown in the present case before me has not endeavoured to challenge the findings of the District Court Judge, this appeal can be dealt with, in my view, reasonably briefly. The applicable, and telling, aspect of the District Court judgment is that found at the end of paragraph [16] which I now repeat. There Judge Kellar states:
Mr Ngu’s response to the constable also confirms that he [Mr Ngu] appears to have made the mistake as to when the suspension period came to an end.
6 Millar v Ministry of Transport [1986] 1 NZLR 660.
7 At 673 – 674.
8 At 673.
The fact remains that Mr Ngu should have been under no misapprehension as to the duration of the period of suspension.
[16] By these particular comments Judge Kellar appears to have introduced an objective standard of reasonableness to the defence of mistake of fact. However, in the decision in Millar the Court of Appeal unanimously determined that driving while disqualified is an offence that requires a mens rea element and, as such, all that is required to satisfy the defence is an honest belief. That appears to be a finding that the Judge had already arrived at here.
[17] Counsel for the respondent, in my view, is correct in citing the proposition that the hearing judge is in a better position to determine the facts of the case than an appellant court judge who does not have the benefit of hearing oral evidence. On that basis, a certain level of deference is required. Before me, Ms Willcocks for the respondent submitted that Judge Kellar, on the evidence before him, was satisfied that the appellant knew he was suspended from driving at the time of the offence. As I understand the position, however, this is not actually the finding that the Judge made. Judge Kellar in his decision stated on a number of occasions that the appellant was mistaken at the time of the offending. Also Judge Kellar confirmed that he believed the appellant to be an honest witness.
[18] Therefore, the issue here is not that a finding of mens rea was not available to Judge Kellar on the facts. Rather, it is that the Judge in fact found that the appellant did not possess the required mens rea, but he proceeded however to read an element of reasonability into the mistake that was made, and that is not what the section requires.
[19] I repeat that Judge Kellar had the benefit of hearing the oral evidence here. It is appropriate, as has been submitted by the respondent, in the circumstances prevailing in this case, to defer to the District Court Judge’s finding that an honest mistake was made by Mr Ngu. This is a significant finding in the circumstances of this case. For that reason it is my view that this appeal needs to be allowed. The appellant did not have the appropriate mens rea at the time of the offending.
Outcome
[20] As to outcome, the appeal before me is allowed. Mr Ngu’s conviction is quashed.
...................................................
Gendall J
Solicitors:
Russell, Moon & Fail, Ashburton
Gresson Dorman & Co, Timaru
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