S v Police HC Auckland CRI 2006-404-282

[2006] NZHC 1407

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-000282

BETWEEN  S

Appellant

ANDPOLICE Respondent

Hearing:         10 November 2006

Appearances: I F West for Appellant

K E Latimer for Respondent

Judgment:      10 November 2006

JUDGMENT OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.

Copy to:

I F West, PO Box 76-049, Manukau

S V POLICE HC AK CRI 2006-404-000282  10 November 2006

[1]      The appellant appeals against his conviction in the Manukau District Court on a charge of driving a motor vehicle on a road whilst his driver licence was suspended.

[2]      At the hearing in the District Court the defence run was based on the decision of the Court of Appeal in Millar v Ministry of Transport (1986) 2 CRNZ 216.  In that case it was held in the case of the offence of driving whilst disqualified, that the prosecution must affirmatively prove mens rea to the standard of beyond reasonable doubt.

[3]      In this case the appellant contended that because of a Court appearance a few days prior to the occasion of driving on which the present charge was based, when a charge of driving whilst suspended had been withdrawn, he had thought that he was no longer subject to suspension.   In fact the suspension was based on a different notice from any events related to the withdrawn prosecution and when apprehended on the current occasion, his licence was indeed, still suspended.

[4]      From the point of view of the defence being run, however, the question in the circumstances was whether the prosecution had met its obligation to establish mens rea as an essential ingredient of the offence.

[5]      The reasoning that the Judge adopted  appears from paragraph [3] of his decision which reads as follows:

So credibility is the issue.   What does the Court make of the defendant’s credibility when he gives that evidence?  I regret to say that he did not create a convincing impression at all.   He started somewhat from behind scratch because on the occasion that he was apprehended in relation to this case by Constable Benneti [sic] on the 20th of June he at first told a lie giving false particulars by giving his brother'’ name, and he concedes that he did that and when challenged about that, enquiries having been made and his being asked to identify himself by means of a distinctive tattoo, he confessed that he wasn’t who he claimed he was but was in fact Ollie S  .

[6]      Now it is common ground that in that passage the Judge has made a mistake. The evidence about the appellant being stopped and giving a false name, related to an earlier event than the one on which the prosecution was based.  In paragraph [3] of the decision the Judge continued:

Well I am afraid that lie is capable of use in two ways in this case, first it goes to the issue of his overall credibility in the case and so it doesn’t help him in that regard, and secondly it suggests that he had something to hide at the time he was driving and there is more than a reasonable suspicion that what he had to hide was the fact that he knew very well, notwithstanding the withdrawal of the other charge, not the suspension but the charge, that he was in fact a suspended driver.   So I am not at all persuaded by the defendant’s evidence.  I reject his explanation in Court.  Having rejected it, I put it to one side.   I return to the prosecution evidence.   I find the unchallenged evidence to be convincing and I find the charge proved.

[7]      So it can be seen that the lie that the Judge perceived the defendant had told when apprehended in respect of the current charge effectively led to the conclusion by the  Judge  that  the  appellant  was  not  a  witness  of  the  truth.    In  fact,  when apprehended on the current occasion, the appellant had not told any lie about who he was and in response to a question put to him by Constable Evans, namely, “Is your licence currently suspended?” he had answered, “I thought it was not suspended any more”.

[8]      The Judge has, in the circumstances, rejected the appellant’s contention as to his belief on the basis of an adverse credibility finding which itself is incorrect.  On the basis expressed there was no proper basis for rejecting the appellant’s account as to his belief at the time.

[9]      In  the  circumstances  the  conviction  should  not  have  been  entered.    The appeal is allowed and the conviction quashed.