Solicitor-General's Reference (No 1 of 2016) - [2017] NZSC 58

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IN THE SUPREME COURT OF NEW ZEALAND

SC 118/2016
[2017] NZSC 58

IN THE MATTER OF	SOLICITOR-GENERALʼS REFERENCE (NO 1 OF 2016) FROM CRI-2015-485-52, HIGH COURT AT CHRISTCHURCH
Hearing:	28 March 2017
Court:	Elias CJ, William Young, Glazebrook, OʼRegan and Ellen France JJ
Counsel:	U R Jagose and Z R Johnston for Referrer A N Isac and T Mijatov as Counsel Assisting
Judgment:	3 May 2017

JUDGMENT OF THE COURT

AThe appeal is allowed. The answers given by the Court of Appeal to the questions on the Solicitor-General’s reference are set aside.
BIn substitution, the questions of law are answered as follows:

(a)Question One: Was the High Court correct to conclude that the requirements of s 90 of the Land Transport Act 1998 had not been met in this case?
Answer: No.

(b)Question Two: If the requirements of s 90 were not met, was the correct remedy the quashing of the defendant’s conviction?
Answer: Does not arise for determination.

____________________________________________________________________

REASONS
(Given by Elias CJ)

When a driver accumulates 100 or more demerit points in any two‑year period, the New Zealand Transport Agency is required by s 90 of the Land Transport Act 1998 to “give notice in writing” to the person of that fact and that the penalty of three months’ suspension or disqualification imposed by the section applies with immediate effect. Suspension is the penalty where the driver has a driver’s licence. Disqualification is the penalty if the driver has no driver’s licence. There is no discretion as to the suspension or disqualification. It is a penalty imposed by the statute. But it cannot take effect until notice in writing has been given to the driver advising both that the required number of demerit points has been incurred and that the penalty of suspension or disqualification takes effect immediately. The notice advising the driver may be served by the Agency itself, by a person approved for that purpose by the Agency, or by “an enforcement officer”. The definition of an “enforcement officer” in s 2 includes a police officer.
The text of s 90 is:
90Suspension of licence or disqualification from driving under demerit points system
(1) If, in any 2-year period, a person has accumulated a total of 100 or more demerit points, the Agency must give notice in writing advising the person that—
(a)   the person has accumulated 100 or more demerit points; and
(b) the penalty specified in subsection (3) or (5) has been imposed and takes effect immediately.
(2) The notice given under subsection (1) may be served by—
(a)   the Agency; or
(b)   a person approved for the purpose by the Agency; or
(c)   an enforcement officer.
(3) If the person holds a current driver licence, the effect of a notice given under subsection (1) is that the licence—
(a)   is suspended for a period of 3 months or, if longer than 3 months, the period calculated under section 90A;^[[1]] and

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: [2017] NZSC 58
Decision Date: 3 May 2017

CaseChat Overview and Summary

In the case of Solicitor-General's Reference (No 1 of 2016), the Supreme Court of New Zealand reviewed the interpretation of section 90 of the Land Transport Act 1998, which mandates the New Zealand Transport Agency to give notice in writing to drivers who have accumulated 100 or more demerit points, triggering an immediate penalty of suspension or disqualification. The appeal arose from two drivers who were served notices of suspension by police officers and challenged the validity of the notices on the basis that they were not given by the Agency as required by the statute. The drivers argued that the notices were invalid because they were not generated by the Agency but by the police officers, who merely completed the template. Both the High Court and the Court of Appeal found in favour of the drivers, holding that the notices were invalid because the Agency had not given the notices itself. The Court of Appeal rejected the Solicitor-General's argument that the requirement was one of process rather than substance and that the notices should be saved from invalidity by section 379 of the Criminal Procedure Act 2011.

The Supreme Court, however, allowed the appeal and set aside the answers given by the Court of Appeal. The Court held that the interpretation of section 90, which required the Agency to generate the notice itself, was incorrect. The Court found that the giving of notice is fulfilled when the driver is served with the required information in writing, whether by the Agency or by an enforcement officer. The Court concluded that the statutory duty imposed on the Agency was to ensure that the driver is served with notice in writing, not to generate the physical notice itself. The Court found that the notice was validly given when the driver was served with the required information, regardless of who completed the notice form. The Court's decision aligned with the policy behind section 90, which is to notify the driver before suspension takes effect, and rejected the overly refined interpretation that separated the composition of the notice from its service.

Orders