The Queen v Savage

[2006] NZCA 132

IN THE COURT OF APPEAL OF NEW ZEALAND

CA83/06

THE QUEEN

v

GEORGE SAVAGE

Hearing:30 May 2006

Court:O'Regan, John Hansen and Gendall JJ

Counsel:A M Powell and A J Bennett for Crown

T M Saseve for Respondent

Judgment:19 June 2006 

JUDGMENT OF THE COURT

A        LEAVE TO APPEAL IS GRANTED.

B        THE APPEAL IS ALLOWED.

C        The evidence relating to previous convictions is admissible.

REASONS

(Given by John Hansen J)

Introduction

[1]       The Crown seeks leave to appeal against the decision of Judge Epati delivered on 27 February 2006 in the District Court at Manukau. 

Background facts

[2]       On 9 December 2004 the respondent was stopped at Great South Road, Takanini and subjected to a breath screening test.  As a consequence he was required to undergo an evidential breath test which produced a reading of 1107 micrograms of alcohol per litre of breath.

[3]       He was charged under s 56(1) of the 1998 Act, but the charge was laid indictably because the respondent has five previous convictions, one under the Land Transport Act 1998 of driving with excess blood alcohol, and the other four under the Transport Act 1962.  The offences under the 1962 Act all involve driving without a licence with excess breath alcohol contrary to s 58(1)(b). 

[4]       The respondent elected trial by jury and has been committed for trial. 

[5]       The Crown indicated it would, if necessary, lead evidence of the four convictions against s 58(1)(b) of the 1962 Act in order to prove the current offence was a third or subsequent offence.

[6]       Section 56(4) of the 1998 Act provides that a person commits an indictable offence, on a third or subsequent offence against:

·s 56(1) or (2) (excess breath or blood alcohol); or

·s 58(1) (driving under the influence); or

·s 60(1) (failing or refusing to permit a blood specimen); or 

·s 61(1) or (2) (causing death or injury under the influence of drink or drug).

For the purposes of s 56(4) it does not matter whether the qualifying offence is the same kind as the person’s first or second offence.  On conviction the maximum penalty is a term of imprisonment not exceeding two years or a fine not exceeding $6,000.  The Court is also required to order the person to be disqualified from holding or obtaining a driver’s licence for more than one year.

[7]       Under subs (5) a conviction for an offence against a provision of the 1962 Act corresponding to an offence specified in subs (4) is to be treated as a conviction for an offence specified in subs (4), i.e. a qualifying offence.

[8]       At the appellant’s request the Crown applied under s 344A of the Crimes Act for determination of the admissibility of the evidence of convictions under the 1962 Act.  We are not convinced that the issue was, in truth, an admissibility issue: rather the parties really seemed to be seeking a ruling about the proper construction of s 58(4), which is outside the scope of s 344A.  Nevertheless it was dealt with as an admissibility issue in the District Court and the Judge ruled that evidence of the convictions for offences under s 58(1)(b) of the 1962 Act was inadmissible, which it would be if those offences were not corresponding offences for the purposes of s 56 of the 1998 Act.  The Crown is entitled to challenge that ruling in this Court, and we deal with the issue on that basis.  But we should not be taken to be endorsing the use of the s 344A procedure for an issue of this kind. 

The District Court decision

[9]       The Judge concluded that the purposive approach to statutory interpretation did not apply to criminal statutes.  He found that the provisions of s 56(4) were quite specific and it was not possible to conclude the offences against s 58(1)(b) of the 1962 Act corresponded with those set out in s 58(4) of the 1998 Act.   

Submissions

[10]     The Crown submitted that the offences under the 1962 Act are corresponding offences.

[11]     Mr Powell submitted that under the 1998 Act the respondent is charged under s 56(2) with driving with excess breath alcohol.  He submitted they corresponded with the three convictions the respondent had under the 1962 Act pursuant to s 58(1)(b) of that Act of “being unlicensed drove with excess breath or blood alcohol”. 

[12]     Mr Powell accepted that between 11 December 1988 and 31 March 1993 there was a difference between the triggering alcohol per litre of breath level as between licensed and unlicensed drivers.  With an unlicensed driver the level was 150 micrograms of alcohol per litre of breath; while for a licensed driver it was 400 micrograms.  After 31 March 1993 there was no difference in the specified breath alcohol limit for unlicensed drivers.  The offence became neutral as to the status of the driver. 

[13]     Mr Powell submitted that in all but one of the appellant’s previous offences there was a breath alcohol level in excess of 400.  He submitted that in those circumstances it is clear the police could have charged the appellant with offences under s 58(1)(b).

[14]     He accepted there was no replica of s 58(1)(b) of the 1962 Act in the 1998 Act.  He also submitted that it was plain that the offending for which the respondent was convicted under the 1962 Act, with the possible exception of the 28 April 1991 conviction, would have been offences under s 56(1) of the 1998 Act. 

[15]     Mr Powell submitted that the Judge appears to have overlooked s 5 of the Interpretation Act 1999 when he found that the purposive approach was not preferred in penal interpretation.

[16]     Mr Powell accepted that that there were two possible constructions of the phrase “an offence against a provision of the 1962 Act corresponding to an offence specified in subs (4)” (s 56(5)).  The one most favourable to the respondent means an offence that directly correlates with one of the current specified offences.  However, he submitted the meaning preferred by the Crown was that the corresponding offence did not need to be identical.  He submitted that a corresponding offence to an offence under the 1998 Act is an offence under the 1962 Act to which the appellant would have, rather than could have, been convicted for the same conduct. 

[17]     He turned to the purpose of the Act and referred to the report of the Transport and Environment Select Committee, Land Transport Bill, no. 87-2.  He submitted the Act was focused on serious and repeat offenders who should receive a much harsher penalty.

[18]     He submitted that at the time of its enactment the danger caused by repeat offenders already existed.  He said if the legislation was limited to new offences created under new legislation, repeat offenders would be given the opportunity to offend twice more before becoming eligible for this specific deterrent penalty.  Given the emphasis on road safety, this could not have been the intention of Parliament.  He submitted that Judge Epati’s interpretation is irreconcilable with the purposes of the enactment.

[19]     On the other hand, Mr Saseve, while accepting the Judge was wrong to say the purposive approach did not apply to criminal statues, submitted that the Judge’s conclusion was correct.  He said that because the charges involving an unlicensed driver were triggered by a breath alcohol level of 150 micrograms per litre of breath they cannot be corresponding convictions.  He agreed with the Judge’s reasoning that the sections created a specific offence of being unlicensed and driving with excess breath or blood alcohol, and a purposive approach can not justify any change to the plain and ordinary meaning of the specific provisions of the Act.

Discussion

[20]     As the respondent conceded, the Judge was wrong to find that the purposive approach to interpretation did not apply to criminal statutes. 

[21]     In R v Karpavicius [2004] 1 NZLR 156 the Privy Council said at [15]:

[15]      Their Lordships are content to assume that linguistically the arguments are finely balanced. It may be right to conclude that on a purely textual view the words “in any other case” are capable of bearing either the interpretation put forward by counsel for the appellant or the interpretation adopted by the Court of Appeal, which before the Privy Council was supported by the prosecution. In a more literalist age it may have been said that the words of s 6(2A)(c) are capable of bearing either a wide or narrow meaning and that the fact that a criminal statute is involved requires the narrower interpretation to be adopted. Nowadays an approach concentrating on the purpose of the statutory provision is generally to be preferred: Cross, Statutory Interpretation (3^rd ed, 1995), pp 172 – 175; Ashworth, Principles of Criminal Law (3^rd ed, 1999), pp 80 – 81. This is reinforced by s 5(1) of the Interpretation Act 1999 (New Zealand) which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose.

[22]     Further, as Professor Burrows noted in Statute Law in New Zealand (3ed 2003) at 201:

One is no longer confined to the words of the statute, but one is confined by them. 

[23]     It is also clear that the words cannot defeat a sufficiently clear purpose:  McKenzie v Attorney General [1992] 2 NZLR 14. We are satisfied a purposive approach to the interpretation of s 56(5) is required.

[24]     In this case we are satisfied the intention of Parliament is clear.  As the Transport and Environment Select Committee on the Land Transport Bill, no. 87-2 said at xiii:

Targeting of serious and repeat offenders

As introduced, this bill does not lower the legal limits for blood and breath alcohol levels or increase penalties for exceeding these limits in the first instance.  The bill focuses primarily on serious and repeat offenders.  For example, a person who is convicted of drinking and driving for the third time (or a subsequent time) may receive a much harsher penalty.  …

This passage makes the intention of Parliament clear.

[25]     Although dealing with the term “corresponding former provision” in s 20A of the Acts Interpretation Act 1924, assistance can be derived from the decision of Winter v Ministry of Transport [1972] NZLR 539. Turner J, in delivering the decision of the Court, said at 541:

…  We read “corresponding” in s 20A as including a new section dealing with the same subject matter as the old one, in a manner or with a result not so far different from the old as to strain the accepted meaning of the word “corresponding” as given in the Shorter Oxford English Dictionary – “answering to in character and function; similar to”.  The new s 58A(6) answers to the old one (the second part of old s 59B(1)) in character and function; it is similar in purpose, prescribes the same thing to be done, and is designed to produce the same result.  We hold it to be a “corresponding section”.  (Our emphasis)

[26]     To like effect, in the context of tax legislation, is the decision of this Court in Vela Fishing Ltd v Commissioner of Inland Revenue [2002] 1 NZLR 49 at [26], confirmed by the Privy Council [2004] 1 NZLR 313 at [17]. We are satisfied that a similar interpretation should be applied to the term “corresponding offence”. A corresponding offence for the purposes of s 56(5) will be one that deals with the same subject matter as the offences set out in s 56(4). That will be so as long as the difference from the offences set out in s 56(4) do not strain the accepted meaning of the word “corresponding” as set out in Winter.

[27]     The history of the 1962 Act reveals that for the period between 1988 and 1993 there was a specific provision dealing with excess breath alcohol for unlicensed drivers.  The triggering point for the relevant section was 150 millilitres of alcohol per litre of breath.  This can be contrasted with s 58(1) which was triggered by a level of 400 millilitres per litre of breath or more.  We note that all but one of the appellant’s offences under the 1962 Act had breath alcohol levels of 400 millilitres or above, although this is irrelevant.  It is apparent that the police could have charged the appellant with offences against s 58(1).

[28]     Importantly the penalty for contravention of s 58(1)(b) was imprisonment for a term of not more than three years and/or a fine not exceeding $4,500.  The person could be disqualified from holding or obtaining a driver’s licence for a period of six months or more.  This was the same penalty for an offence contrary to s 58(1)(a).

[29]     In a report to a Select Committee in 1987 there is some discussion about the effect of alcohol on novice drivers at all levels, but this was not explicitly stated as a reason for the provision. 

[30]     However, during the debate on the 1988 amendments there was no discussion as to the reason for the enactment of s 58(1)(b).  There was considerable discussion in relation to whether or not there should be separate provisions dealing with youth offending for driving under the influence of alcohol.  The Government’s view, expressed by the Hon W P Jeffries at (25 August 1988) 491 NZPD 6381, was:

To drink and drive is wrong regardless of age.  There will be no divisions between age groups.  It is immoral as well as illegal for people to endanger themselves and their fellow New Zealanders.  So the arguments about differentiation on age are rejected …

[31]     In a later debate Dr Lockwood Smith responded for the opposition, at 6 December 1988 495 NZPD 8543:

… they [the provisions of the Bill] do not deal with the tremendous problem of young people  who are desperately over-represented in alcohol-related accidents, and are clearly impaired at alcohol levels of less than 80 mg percent.  All the scientific evidence shows that to be so, yet the Bill does nothing to deal with the matter.  Young people are left out in society, seriously at risk of injury and death, and the Bill does nothing about it. 

[32]     When the amendments were introduced in 1992 by the then National government, there was an introduction into the legislation of youth alcohol limits for the first time.  The Communications and Road Safety Select Committee noted that youths were over represented as road casualties, and recognised that some form of affirmative action was necessary to stem the trend.

[33]     The then Acting Minister of Transport (Hon Maurice McTigue) noted at 19 November 1992 531 NZPD 12438:

New Zealand’s record in this area [young people as road casualties] is significantly worse than that of many other Western Nations.  The Government recognises that urgent action is needed to address that imbalance in the statistics, and is determined to take the necessary corrective action.  The imposition of alcohol limits for youth drivers will go a long way towards solving the problem.  This legislation will introduce the requirement for a very low alcohol level for all young people who are driving up to the age of 25 years.  That is effectively a zero limit.

The Policy will dramatically alter the required behaviour patterns of young people.  In future the young driver will have only two choices; to drink, or to drive.  There is no margin for error with a zero limit.  Any alcohol consumption by a young person who then drives will mean prosecution of that person and an inevitable loss of licence.

[34]     On this particular issue the opposition were given a conscience vote, and it would appear there was by this time bipartisan support for the youth provisions.  The 25 years was reduced to 20 at committee level. 

[35]     We have set out the history of the youth provisions to demonstrate their genesis was not in the previous s 58(1)(b) dealing with unlicensed drivers.  This is reinforced by the reference to the enforcement provisions that show the penalty for the contravention of the youth provisions was set significantly lower than those for offenders with the higher alcohol level.  It also follows that if young people exceeded the adult level they can be charged with the more serious offence, carrying sterner penalties.

[36]     This history, coupled with the fact that the penalty for s 58(1)(b) was the same as for s 58(1)(a), satisfies us that the offence of being an unlicensed driver with excess breath alcohol under the 1962 Act is a corresponding offence to those found in s 56(4).  It answers to the offences in s 54 “in character and function, it is similar in purpose, prescribes the same thing to be done, and is designed to produce the same result”:  see Winter.  Accordingly, we hold the offences under s 58(1)(b) of the 1962 Act to be corresponding offences with s 56(4) of the 1998 Act.

[37]     We do accept that this is yet again infelicitous drafting in drink driving legislation, but at the time the 1998 Act was drafted the danger created by repeat offenders was already well known.  We agree with the Crown submission that the interpretation preferred by Judge Epati is irreconcilable with the purposes of s 56.  While parliament clearly intended to differentiate between adult and youth offences, by prescribing a different scale of penalties under s 57, and excluding them from the “third or subsequent offence” regime, there is nothing to suggest it was intended to differentiate between repeat offenders who had obtained a driver’s licence and those who did not.  It is likely that there was no special mention made of drivers without licences simply because since 1993 there has been no such differentiation in the legislation. 

[38]     We are satisfied that the appellant’s previous breath alcohol offences under the 1962 Act are corresponding offences for the purposes of s 56(5) of the 1998 Act.  It follows that Judge Epati was wrong to rule that they were not. 

[39]     Accordingly, leave to appeal is granted, the Crown’s appeal is allowed and the evidence of the previous convictions may be led. 

Solicitors:
Crown Law Office, Wellington
Saseve Solicitors, Papatoetoe for Respondent