Smith v Police HC Auckland CRI-2010-404-000398

[2011] NZHC 203

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000398

HAYDEN JAMIE SMITH

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 March 2011

Counsel:         T Clee for Applicant

K Wendt for Respondent

Judgment:      11 March 2011

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 11 March 2011 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

T D Clee, Private Bag 92185, Victoria Street West, Auckland 1142. Email: [email protected]

Crown Solicitor, DX CP24063, Shortland Street, Auckland 1140. Email:  [email protected]

HAYDEN JAMIE SMITH V NEW ZEALAND POLICE HC AK CRI-2010-404-000398 11 March 2011

Introduction

[1]      The appellant, Hayden Smith, has been convicted on one charge of driving while suspended.  He applied for a limited licence under s 103 of the Land Transport Act 1998.  His application was declined by Judge G Davis on 5 October 2010 on the basis that there was no jurisdiction to grant a limited licence.   It is that decision which is appealed by Mr Smith.

Background

[2]      On 16 February 2010 Mr Smith was apprehended driving a motor vehicle in Auckland while his licence was suspended.  On 18 March 2010 he pleaded guilty to a charge of driving while his licence was suspended.   He applied for a limited licence.  That limited licence application was opposed by the New Zealand Police. The application was declined on jurisdictional grounds.

The decision

[3]      It was argued for Mr Smith in the District Court, as it was in this appeal, that the Court has jurisdiction to grant a limited licence.   However, the District Court Judge concluded that s 103(2)(c) of the Land Transport Act specifically excludes jurisdiction to grant a limited licence in relation to persons convicted of driving while their licence is suspended.

[4]      The District Court Judge followed two earlier District Court decisions, Yu v Police[1]   and  Misa  v  New  Zealand  Police[2]   where  the  Courts  had  rejected  the proposition that the prohibition on granting a limited licence in s 103 applied only to persons driving while disqualified and not to persons driving while suspended.

[1] Yu v Police DC Manukau CRN-08092000294, 25 June 2008.

[2] Misa v New Zealand Police DC Manukau CRI-2010-092-1725, 19 August 2010.

[5]      In viewing the legislation and the words of the section, the Judge concluded that a natural reading of s 103 in the light of its background indicated that Parliament

did not contend to exclude a person driving while suspended from s 103(2)(c), and that such a person who is suspended cannot apply for a limited licence.  He held:

[19]  Having reviewed the submissions and the legislation, I too concur with my brother and sister Judges that the words in the brackets in s 103 are general in nature and the specific reference to the section itself is what guides the Court.  Had Parliament intended to exclude specific offences from the ambit of those who are empowered to obtain a limited licence, then in my view the specific offences of those who were prevented from obtaining a limited licence, would have been referred to directly by Parliament. Parliament has not chosen to refer to specific offences and that is because the words Parliament adopted are general in their nature and not intended to be specific.  The intention is to provide general guidance to the reader without having  to  inconvenience  the  reader  by  winding  their  way  through  the section.

Appellant’s argument

[6]      Section 103 of the Land Transport Act  provides:

103 Persons who may apply to court for limited licence

(1)   Unless prevented by subsection (2), the following persons may apply for an order under section 105 authorising the grant of a limited licence:

(a)   Persons who are disqualified by an order made under this Act from holding or obtaining a driver licence:

(b)   Persons who are subject to a licence suspension under section 90 (as a result of demerit points).

(2)   The following persons may not apply under this section for an order under section 105 authorising the grant of a limited licence:

(a)   A person who is disqualified from holding or obtaining a driver licence by an order made under section 65 (which relates to repeat offences involving alcohol or drugs):

(b)   A person who is disqualified from driving a vehicle being used in a transport service (other than a rental service) by virtue of section

63, if the limited licence would authorise the person to drive a vehicle  being  used  in  a  transport  service  (other  than  a  rental

service):

(c)   A person who is disqualified from holding or obtaining a driver licence by an order made on his or her conviction for an offence against section 32(1) (which relates to driving while disqualified or contrary to a limited licence):

(d)   A person  who  is  disqualified  by  an  order  made  on  his  or  her conviction—

(i)   for an  offence  against  any of  sections  35,  36,  38, and  39 (which relate  to  reckless or  dangerous  driving,  careless  or inconsiderate driving causing injury or death, and failing to stop after an accident); or

(ii)  for an offence against any of sections 56, 58, 60, 61, and 62 (which relate to offences involving alcohol or drugs); or

(iii) for an offence against section 33(1) (which relates to applying for or obtaining a driver licence while disqualified from doing so); or

(iv) for an offence against a provision of the Transport Act 1962 that corresponds to an offence specified in any of subparagraphs (i) to (iii)

—

committed within 5 years after the commission of any other offence specified  in  this  paragraph  and  arising  from  a  different  incident (whether or not both offences are of the same kind, regardless of when convictions were entered for those offences).

(Emphasis added.)

[7]      It  is  Mr  Clee’s  submission  that  s  103(2)(c)  only  applies  to  the  charges specified within the brackets in that paragraph, namely, driving while disqualified or contrary to a limited licence.  It does not apply to those driving while suspended.  He submits that the words within the brackets are specific and that the pattern in s

103(2) is to specify with precision the circumstances where persons may not apply. A lack of any reference to driving while suspended is, he submits, fatal to the Police opposition to the limited licence.

[8]      Mr   Clee   also   submits   that   there   is   a   further   distinction   between disqualification  and  suspension  and  that  a person is  disqualified  “by an  order”, effectively an order of the Court, while a person is suspended by an administrative act whereby a police officer imposes the suspension.  He points to the fact that under s 129(1)(a) of the Sentencing Act 2002, there can be confiscation of a motor vehicle for offences against s 32(1)(a) of the Land Transport Act (driving while disqualified) and s 32(1)(b) (driving contrary to a limited licence), but not for an offence against s 32(1)(c) (driving while licence suspended or revoked).

Plain reading of s 103

[9]      Section 32(1) provides:

32   Contravention of section 5(1)(c)

(1)   A person commits an offence if the person drives a motor vehicle on a road—

(a)   while disqualified from holding or obtaining a driver licence; or

(b)   contrary to a limited licence; or

(c)   while his or her driver licence is suspended or revoked.

[10]     Before the parenthesis the words of s 103(2)(c) are quite clear.  Any person who is disqualified from holding or obtaining a driver’s licence by an order made on his or her conviction for an offence against s 32(1) is disqualified.

[11]     The  words  in  parentheses  include  driving  while  disqualified  and  driving contrary to a limited licence, but do not include driving while suspended.  However, what is the purpose of those words?  Is it to provide a summary explanation of what s 32(1) says, or is it to specify and limit the types of s 32(1) offences to which a subsection applies?

[12]     On a natural reading of the words it applies to the former.   The words in s 103(2)(c) up to the parentheses state without ambiguity that all persons convicted for an offence against s 32(1) cannot apply.   This would include a person who is suspended from driving.

[13]     The  words  in  parentheses,  when  compared  to  the  peremptory  and  clear wording of the preceding lines, appear to be by way of explanation for the reader who is not familiar with what s 32(1) covers.  They are not the operative part of the subsection.

[14]     This  plain  reading  is  confirmed  by  a  reading  of  the  other  similarly constructed subsections.   The words  in  parentheses  in  those  subsections  do  not accurately summarise  the contents  of  the relevant  sections,  and  can  be seen  as additions designed to explain in a general way the offence sections referred to, rather

than to qualify and limit the prohibition against limited licence applications.  Thus, in s 103(2)(d)(i) there is reference to offences under ss 35, 36, 38 and 39 “(which relate to reckless or dangerous driving, (careless or inconsiderate driving causing injury or death), and failing to stop after an accident)”.   In fact the words in parentheses  do  not  accurately  summarise  the  offences  in  those  sections.    For instance, s 36 refers to the offence of driving a vehicle recklessly or at a dangerous speed in a manner which causes injury or death.  Section 103(2)(d)(i) does not refer to this charge, but rather to the different offences of reckless or dangerous driving, or careless or inconsiderate driving causing injury or death.  Section 103(d)(ii) refers to ss 56, 58, 60, 61 and 62 “(which relate to offences involving alcohol or drugs)”. However, s 60 involves a failure or refusal to permit a blood specimen to be taken.

[15]     While those inaccuracies are not as blatant as the failure to mention driving while suspended, they show that the words in parentheses are loose attempts to summarise the content of the sections for the information of the reader, rather than limit  the  ambit  of  preceding  clear  words.    The  words  are  intended  to  provide guidance for the reader, rather than to qualify the plain meaning of the preceding words.

Further background

[16]     There is in fact an explanation for the lack of reference in s 103(2)(c) to driving while suspended.  A person who was suspended from driving was deemed to be disqualified.  This position was originally in the 1998 Act.  Under s 90(2) it was provided:

(2)   A person whose driver licence has been suspended under subsection (1) is disqualified from holding or  obtaining a driver licence while the suspension is in force.

[17]     Thus, under the then s 90 a person who was suspended was also a person who was disqualified from driving.   There was no need to refer separately to driving while suspended in s 103(2)(c).

[18]     In 2005 s 90 was amended and s 90(2) was removed.   Thus a suspended driver ceased to be also a disqualified driver.  Therefore, it had not been necessary in the summary in s 103(2)(c) to refer to driving while suspended when s 103(2) was originally drafted in 1998, as driving while disqualified included driving while suspended.   But from 2005 onwards, the position had changed and a person who drove while disqualified became different to a person who drove while suspended. Disqualification did not include suspension.    The explanatory summary in parentheses was not, however, changed to reflect the repeal of s 90(2).  It is likely that this was just an oversight.

Purposive of interpretation

[19]     Section 5 of the Interpretation Act 1999 provides:

5     Ascertaining meaning of legislation

(1)   The meaning of an enactment must be ascertained from its text and in the light of its purpose.

(2)   The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.

(3)   Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment.

[20]     The long title of the Land Transport Act states that it is an Act:

(a)   to promote safe road user behaviour and vehicle safety; and

(b)   to provide for a system of rules governing road user behaviour, the licensing of  drivers,  and technical  aspects  of land transport, and to recognise reciprocal obligations of persons involved[.]

[21]     Mr Clee argued that there was a logical basis for distinguishing between suspended drivers and disqualified drivers.  I accept Mr Clee’s submission that there is a distinction between disqualification and suspension.   Suspension is a penalty involving no exercise of judicial power.  As was stated by Miller J in Keleher v New

Zealand Police: [3]

There is no proceeding. The necessary steps are administrative in nature. The Director, who has no discretion in the matter, writes to the person concerned advising that his or her licence has been suspended by operation of s.90.

[3] Keleher v New Zealand Police HC Rotorua CRI-2004-470-13, 30 April 2004 at [18].

[22]     I accept also that a distinction is made in s 129 of the Sentencing Act 2002 in relation to confiscation of a motor vehicle between ss 32(1)(a) or (b) and 32(1)(c). There is no confiscation in relation to a person who commits an offence under s

32(1)(c) (although this may have been because the Sentencing Act was enacted before the 2005 amendment).

[23]     However, the penalties for both driving while disqualified and driving while suspended are the same.   There is no obvious reason why the difference in the process leading up to disqualification from that leading up to suspension should lead to a difference in the ability to get a limited licence.  There is nothing in the long title or elsewhere in the Act to indicate that a distinction should be made.  There is no obvious reason why the legislature would have sought to distinguish between disqualification and suspension for limited licence purposes, and it did not do so prior to 2005.   If it had been intended to make the distinction, it could have been expected that this would have been done so explicitly.   Thus, a purposive of interpretation does not lead to the result sought by Mr Clee.

Conclusion

[24]     I agree with the reasoning of the District Court Judge.   The intention of parentheses in s 103(2)(c) was to provide assistance to the reader, rather than to add to the substantive meaning of the subsection.  The plain words that “all those who are disqualified for an offence under s 32(1) are not able to obtain a limited licence” must  be  given  their  natural  meaning.    Suspended  drivers  cannot  seek  limited licences.

Result

[25]     The appeal is dismissed.

……………………………..

Asher J