Read v Police - [2020] NZHC 340

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000518

[2020] NZHC 340

IN THE MATTER OF an appeal against conviction and sentence

BETWEEN

DAVID OMEGA READ

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 February 2020

Appearances:

D O Read (Self-represented Appellant) in Person B J Hamilton for the Respondent

Judgment:

2 March 2020

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 2 March 2020 at 10.30 am.

Registrar/Deputy Registrar

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland

Copy To: D O Read, Tauranga

READ v POLICE [2020] NZHC 340 [2 March 2020]

[1] On 7 November 2018, Mr Read was convicted of one charge of driving a motor vehicle while suspended (third or subsequent).1 He was sentenced on 4 March 2019 to disqualification from driving for one year.2 That disqualification expired on 7 November 2019.3 Mr Read now appeals his conviction and his sentence.

[2] The appeal is well out of time. Mr Read explains that the delay is due to personal difficulties in his life and the fact that he was overseas. The appeal was progressed expeditiously on his return. The respondent does not oppose leave to bring the appeal out of time, and I grant leave accordingly.

The offending

[3] On 18 August 2017, Mr Read’s driver licence was endorsed with 50 demerit points. That brought his total demerit points to over 100, making him liable to be suspended (the demerit suspension) under s 90 of the Land Transport Act 1998 (the Act).

[4] Subsequently, on 27 September 2017, Mr Read was convicted of driving with excess alcohol. He was disqualified from driving for three months under s 65A of the Act. Mr Read says that he was anxious to ensure that the demerit suspension was served at the same time as his disqualification. He says he contacted the New Zealand Transport Agency (NZTA) and was advised that the demerit points remained active until the notice of the demerit suspension was served. Mr Read was told to contact police to trigger the demerit suspension process and arrange service of the notice.

[5] Mr Read says that he then contacted police and he was told that the demerit points would be cancelled as a result of his disqualification. If he was told this, then it was in error as demerit points are only cancelled where the disqualification period is six months or more.4 Mr Read says he relied on this advice and did not take any further steps to trigger the demerit notice suspension process at that time.

1      Police v Read [2019] NZDC 3562.
2      Police v Read [2019] NZDC 26409.
3      Land Transport Act 1998, ss 32(1)(c) and 32(4).
4      Section 91(3).

[6] On 2 January 2018, Mr Read was served with the demerit suspension notice. The demerit suspension was operative immediately and ended on 1 April 2018. Mr Read contacted NZTA again and was told that as the disqualification…

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.

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Details

Case: [2020] NZHC 340
Decision Date: 2 March 2020

CaseChat Overview and Summary

The High Court considered an appeal against conviction and sentence by David Omega Read, who was convicted of driving a motor vehicle while suspended. The appeal was dismissed as it was well out of time, however, leave to bring the appeal out of time was granted. The offending occurred when Mr Read was driving on 27 March 2018, while his driver’s licence was suspended due to demerit points and a previous conviction of driving with excess alcohol. Mr Read had contacted the New Zealand Transport Agency and the police about the demerit suspension, but believed he had been incorrectly advised that his demerit points would be cancelled as a result of his disqualification. Despite this, he knew that he was suspended from driving at the time of the offence. The District Court found Mr Read guilty of the charge and imposed a one-year disqualification period. The High Court found that there was no miscarriage of justice in the conviction, as Mr Read knew he was suspended from driving at the time of the offence, and dismissed the appeal against conviction and sentence. The mandatory one-year disqualification period was upheld.

Orders