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 was only three months, it did not clear the demerit points. Mr Read was referred back to police to address the demerit suspensions notice. Mr Read says he did not take any steps to challenge the suspension notice at this time as he did not have the funds to do so.

[7]                 Mr Read was stopped by police on 27 March 2018. When he saw the police patrol vehicle with its lights activated, he turned into an address on the road that he was travelling along, exited his vehicle and ran around the back of the address, jumping over a fence in order to evade police. He was apprehended a short time later.

District Court conviction and sentence

[8]                 Judge Down presided over the trial in a Judge-alone trial in the North Shore District Court. In an oral decision delivered on the same day, the Judge recounted the alleged offending and referred to Mr Read’s police interview in which he said:5

I drove myself there and on the way home, I saw some lights behind me and thinking the dire situation I was in, getting my licence back next week and what position I would be in after if I was charged with it, so I jumped the fence and put the keys in the letterbox. I did not know what to do. I started ringing people.

[9]                 Later in the interview, Mr Read told police that he was not sure about his licence status but “… I thought I was disqualified or suspended or something” and later still he said, “I’m not supposed to drive”.

[10]              The Judge then had regard to the evidence Mr Read gave at trial. Mr Read told the Court about contacting police and the NZTA and the advice he had received from police. The Judge observed that as far as he was aware, there was no requirement in law for the police or the NZTA to have a suspension notice served at a particular time or after a particular period once a person had amassed at least 100 demerit points. In any respect, Mr Read had repeated what he said to police when he gave evidence in Court, that is that he knew that the suspension was current at the time he was driving.

5      Police v Read, above n 1, at [7].

[11]              The defence advanced by Mr Read’s counsel before Judge Down was that  Mr Read’s offending was de minimus and should not result in a conviction. The Judge recorded that Mr Read’s counsel was not advancing a Miller v Police defence, that is, that the person must know that they are suspended at the time of the offence.6 That is because Mr Read accepted both in his police interview and in evidence that he did know that he was suspended when he drove home that day. Accordingly, the Judge found the charge proved beyond reasonable doubt and a guilty verdict was entered.

[12]              In sentencing Mr Read, the Judge imposed the mandatory one-year disqualification period under s 32(4) of the Act, but considered that no additional penalty was warranted. The disqualification period expired on 7 November 2019.7

Should the appeals be allowed?

[13]              A court must allow an appeal from conviction following a Judge-alone trial if it is satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred or in any case a miscarriage of justice has occurred for any reason.8

[14]              Miscarriage of justice means any error, irregularity, or occurrence in relation to affecting a trial it has created a real risk that the outcome of the trial was affected, or that it has resulted in an unfair trial or a trial that was a nullity.

[15]              Mr Read’s central complaint is that the police erroneously informed him that his demerit points would be cancelled as a result of the disqualification period. He says that if he had known the correct position then he would have taken steps to trigger the demerit suspension at that time, and as a consequence, he would not have been suspended from driving as at 27 March 2018.

[16]              There are several difficulties with this argument. First, there is no evidence that this is what police told Mr Read. The Judge ruled Mr Read’s evidence regarding what police had told him to be inadmissible hearsay evidence. In the absence of any

6      Miller v Police [2012] NZHC 3237.

7      Police v Read, above n 2.

8      Criminal Procedure Act 2011, s 232(4)(b).

direct evidence from police about these conversations, Mr Read could not say what police had told him.

[17]              Second, even if such evidence was available and admissible, it would not advance the case for Mr Read. There was no argument advanced in either  the District Court or on appeal that the erroneous advice from police meant that the demerit suspension notice was unfairly obtained and should be excluded. It is far from clear that such an argument would have been successful even if advanced. That is because Mr Read received the correct advice from NZTA at the time the demerit suspension notice was issued, and he did not take any steps to challenge it at this or any subsequent time.

[18]              Third, and most significantly, as a result of contacting the NZTA, Mr Read knew that the suspension was in place at the time he was driving on 27 March 2018. So, whatever he believed as a result  of the erroneous advice earlier received, as at  27 March 2018, he knew he was suspended from driving and that meant he should not be driving. This is what he told police in his interview, and he repeated that position when he gave evidence. That is all that is required to prove the offence beyond reasonable doubt. There was no miscarriage of justice in finding Mr Read guilty on the charge and the appeal from the conviction must be dismissed.

[19]              Mr Read does not advance any particular grounds in relation to the sentence imposed – his focus was on the conviction appeal. The one-year disqualification period imposed is a mandatory sentence prescribed by statute. There is no basis to interfere with this sentence.

Result

[20]The appeal against conviction and the appeal against sentence are dismissed.

Edwards J