W v Police HC Hamilton CRI 2006-419-34

[2006] NZHC 704

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-419-34

W

Appellant

v

THE POLICE

Respondent

Hearing:         13 June 2006

Appearances: Appellant in person

J Mackie for respondent

Judgment:      20 June 2006

JUDGMENT OF ALLAN J

In accordance with r 540(4) I direct that the Registrar endorse this judgment with the delivery time of 4pm on Tuesday 20 June 2006

Solicitors:

Crown Solicitor, Hamilton

Appellant

B W W  , 12 Burrows Plaintiff, Hamilton Fax [phone]

W V THE POLICE HC HAM CRI 2006-419-34  20 June 2006

[1]      On  6  March  2006  the  appellant  was  convicted  in  the  District  Court  at Hamilton, following a defended hearing, on a charge of driving whilst disqualified. He was fined $400, ordered to pay Court costs of $130, and disqualified for driving for six months from 20 March 2006.  He now appeals against conviction.

[2]      There are no points on appeal.   Mr Mackie for the respondent invited the Court to decline to hear the appeal because the appellant had not complied with the relevant practice note with respect to the filing and service of points on appeal.   I ruled that the appeal should nevertheless proceed.  The appellant is self-represented, the notice of appeal provided reasonably extensive grounds and the true basis of the appeal emerged fairly rapidly once the hearing commenced.  There was no prejudice to the respondent.

[3]      Initially, Mr W   sought to challenge the Judge’s factual findings.  His second argument focused upon the fact that he lacked legal representation in the District Court.   In essence the appellant says that there has been a miscarriage of justice because he ought to have had an opportunity to consult a lawyer for the District Court hearing.  He was denied that opportunity.  As a result, he did not call two witnesses who may have strengthened the defence case.  A lawyer would have done that and may have secured an acquittal.

Background

[4]      Before Judge J E MacDonald in the District Court, there was undisputed evidence that the appellant was stopped by a police Constable while driving a motor vehicle  in Hamilton on 12  April 2005.    Neither  is  it  disputed that  on that  day Mr W   was a disqualified driver.  However, he contended that he was unaware at the time of his apprehension that he was in fact disqualified, and so alleged that the Crown was unable to prove the mens rea element, which is an ingredient of the offence of driving a vehicle while disqualified:   Millar v Ministry of  Transport [1986] 1 NZLR 660 (CA).

[5]      The appellant’s uncertainty arose by reason of the somewhat complicated history of disqualifications to which he had been subject.  For present purposes the narrative commences on 15 July 2004 when the  appellant  was convicted  in the Hamilton District Court of driving with excess breath alcohol and failing to remain for the conduct of an evidential breath test.  On that date he was disqualified from holding or obtaining a driver licence for nine months, commencing 15 July 2004.  In the ordinary course, that period of disqualification would expire at midnight on 14

April 2005.

[6]      The appellant appealed against that conviction and applied for a suspension of the period of disqualification until the outcome of the appeal was known.   On

5 August 2004, the order for disqualification was suspended pursuant to s 107(2) of the Land Transport Act 1998 pending the appeal.

[7]      On 6  October  2004, the  appeal was heard  by Salmon  J.    The  appellant appeared in person.  The appeal against conviction and sentence was dismissed in a decision delivered that same day.

[8]      Section 107(6) of the Land Transport Act provides that:

(6)       In determining the period for which a person is disqualified from holding or obtaining a licence, any time during which the operation of the disqualification order is deferred ... must be disregarded.

[9]      In this case the relevant period of suspension commenced on 5 August 2004 and concluded on 6 October 2004 when the decision of this Court was delivered. Accordingly, Mr W  ’s period of disqualification ought to have continued until mid-June 2005, but all concerned, including the respondent, appear to have taken the view that the period of disqualification ended at midnight on 14 April 2005, nine months after the date of disqualification on 15 July 2004.

[10]     Mr  W    maintained  that  he  was  unaware  that  the appeal had  been dismissed, and that the suspension of his disqualification had thereby come to an end.  Having regard to the fact that he appeared on his own behalf before Salmon J on 6 October 2004, and that the Judge’s decision was delivered on the same day, that is a little difficult to understand.  But the respondent has been content to assume that

the appellant was unaware of the dismissal of the appeal for some considerable period after the date of the appeal hearing.

[11]     On 30 March 2005 the appellant was apprehended by the police while driving a vehicle which proved to belong to his wife.  The vehicle was initially impounded. The following day, the appellant and his wife met Snr Sergeant Davy at the Waikato Highway Patrol Base at Te Rapa.  The appellant told Snr Sergeant Davy that he had been unaware the previous day that  he was a disqualified driver,  but  that  same morning (31 March) he had received written confirmation that the appeal had been dismissed on 6 October 2004, and that he was indeed disqualified.  Snr Sgt Davy in evidence said that during the course of that meeting he checked the respondent’s computer records and found that the appellant was disqualified up to and including

14  April 2005.    He  further  said  in evidence  that  he made  it  quite  clear  to  the appellant and his wife that that was the position.

[12]     The police took no action against the appellant in respect of his driving on 30

March 2005, because there was a  doubt  as to  the  appellant’s knowledge  of his disqualified status.

[13]     The  appellant  was  apprehended  a  fortnight  later  when  driving  another vehicle.  That was the incident upon which the charge which has led to this appeal was based.

District Court hearing

[14]     The outcome of the District Court hearing turned upon the appellant’s state of mind on 12 April 2005 as to his entitlement to drive.   The appellant’s wife gave evidence in the District Court, and said that she had made inquiries prior to 31 March about the date upon which the period of disqualification terminated.  Those inquiries seem to have been made at either the District Court or the Land Transport Safety Authority, or possibly both.  Her evidence was somewhat vague.  She said she got mixed  information as a result of those inquiries.   She understood the period  of disqualification came to an end on either 9 or 12 April, but she was not sure which.

[15]     Those dates conflicted with the result of Snr Sgt Davy’s inquiries.  He said that, having checked the respondent’s computerised records, he told the appellant that he remained disqualified until the end of 14 April 2005.

[16]     In evidence, Mrs W   was cross-examined about the inquiries she had made.  She accepted those inquiries were made prior to 31 March, and it was put to her that if she believed the disqualification terminated on either 9 or 12 April, then she would have challenged Sgt Davy’s advice to the effect that the disqualification was in force until 14 April.   Her response was somewhat  inconclusive, possibly because the appellant and his wife did not accept that they had been advised by Snr Sgt Davy that the disqualification continued until 14 April.  Indeed, on their account of matters, the Senior Sergeant did not address the period of current disqualification at all;   rather, according to them, he advised them that a further period of disqualification, arising from a conviction for driving while disqualified imposed in the District Court on 22 February 2005, was to commence with effect from 14 April

2005 (that conviction was over turned in this Court on 13 March 2005 following an appeal at which the appellant appeared in person).

[17]     According to the appellant and his wife, Snr Sgt Davy’s concern was not with the immediate period between 31 March and 14 April, but rather about the next period of disqualification and the need for the appellant to obtain a suspension of that period of disqualification pending the outcome of his appeal, if he proposed to drive after 14 April.

[18]     Judge MacDonald was therefore required to resolve two conflicting accounts. Snr Sgt Davy said that he was focused on ensuring that the appellant and his wife knew that the appellant could not drive until 14 April, but that he did, in passing, refer also to a further period of disqualification due to take effect immediately after the current term finished.  He accepted there may have been brief discussion about the appellant’s entitlement  to drive after that.   On the other  hand,  Mr  and  Mrs W   gave evidence to the effect that Snr Sgt Davy did not advise them at all about the current position; instead, he focused upon the period after 14 April.

[19]     The  Judge  resolved  that  conflict  in  favour  of  Snr  Sgt  Davy.    He  was impressed by the evidence the Senior Sergeant gave, and clearly accepted that the appellant was plainly advised that he was not entitled to drive until midnight on 14

April 2005.   He was unable to determine precisely what Mrs W   had ascertained as the result of her inquiries but said that “What she might have been told before really had no relevance at all”  Mrs W   was uncertain about her dates, and uncertain even about the identity of the persons who had provided those dates.

[20]     At [13] of his decision the Judge concluded that to a degree the appellant and Mrs W   “did not want to accept the advice they were given ... there was a reluctance to listen to what the true position was”.

[21]     Mr W   was inclined to suggest at the hearing before me, that his wife had become confused by reason of the course taken in cross-examination, but the Judge was entitled to rely upon the evidence as it was given before him, and I am in no position to revisit factual findings which were plainly open to him.

Right to counsel

[22]     Acknowledging the difficulties inherent in a challenge to the Judge’s factual findings, the appellant submitted that the hearing had been unfair because he was denied the right to legal counsel.  He was unable to afford his own lawyer by reason of his circumstances.  He is in poor health, on a sickness benefit, and bankrupt.  He told me that he had been advised by Court staff that legal aid was not available on a disqualified driving charge, and so appeared on his own behalf.  He further told me that at the outset of the hearing he was asked by the Judge whether he had legal representation.   He said he responded to the effect that he proposed to represent himself, and although he would have liked to have a legal aid lawyer, he understood legal aid was not available for such an offence.

[23]     According  to  the  appellant,  the  Judge  disagreed  that  legal  aid  was  not available, but following objection from the prosecution, he nevertheless insisted that the case proceed.   There is no record of the exchange which Mr W   says occurred between him and the Judge with respect to representation.

[24]     Mr Mackie submitted that, on his instructions, some care would need to be taken over whether matters did indeed develop in the way Mr W   described. However, because I have a clear view of the matter, the appropriate course is to assume that Mr W  ’s account is broadly correct  and to  consider the legal consequences.

[25]     Where a person facing criminal charges appears without counsel, but seeks an adjournment  in order to  instruct counsel, the trial Judge  is charged  with the responsibility of examining the particular circumstances and making an informed discretionary judgment.  The exercise of that discretion will not be interfered with on appeal unless it proceeds on an erroneous basis, or is wholly wrong, thereby risking injustice.  An accused person is entitled to a fair trial and his or her interests must be a primary factor in the exercise of the Court’s discretion.  But the public interest in the due administration of justice is likewise an important matter to be taken into account:  see generally the discussion in McKinnon v R CA240/04 4 May 2005.  An over-arching consideration will be whether the defendant, in all the circumstances, obtained a fair trial:  R v Hill [2004] 2 NZLR 145 [62].

[26]     I am satisfied that in this case the appellant was not prejudiced by reason of the absence of counsel.  At a general level Mr W   has considerable experience at representing himself at Court.   He has done so on a number of occasions when facing breath alcohol and disqualified driving charges.  He has also appeared in this Court on three occasions on appeal.   More particularly, the notes of evidence demonstrate an ability to focus on relevant issues and to cross-examine effectively.

[27]     Mr  W  ’s  case  is  however,  that  whatever  his  degree  of  general competence might have been, he was prejudiced in that his lack of legal knowledge resulted in a deficiency in the defence case.  He proposed to call evidence from his wife  as  to  the  inquiries  she  had  made  of the  Court,  and  possibly  of the  Land Transport Safety Authority, regarding the date of cessation of his period of disqualification.   Indeed, Mrs W   did give such evidence, but the Judge indicated that,  because  it  was hearsay,  he could  not  take evidence of the  dates provided by Court or LTSA officers to Mrs W  .  Mr W   submitted that,

had he known of the hearsay rule, he would have ensured that the officers concerned were summoned to give evidence.

[28]     I  am  satisfied  that  it  is  extremely  unlikely  that,  had  the  officers  been identified and summoned to give evidence, the outcome would have been any different.   For a start, Mrs W  ’s evidence about dates was in fact let in and considered by the Judge.  It was not hearsay insofar as it concerned her state of mind and that of Mr W  .

[29]     Second,  evidence  from  such  witnesses  would  be  most  unlikely  to  have swayed the Judge.  He found as a fact that Snr Sgt Davy had told the appellant and his wife in the clearest of terms, that Mr W   was disqualified until 14 April. That occurred after Mrs W   said she was given earlier termination dates, and must have corrected any misapprehension under which the appellant and his wife might have been labouring.

[30]     Third, it is most unlikely that any witness called from either the Court or the LTSA would have been able to give any worthwhile evidence at all.  Had the case been  adjourned  and  a  legal  aid  lawyer  been  instructed,  the  case  would  have proceeded to trial more than a year after Mrs W   had made her inquiries.  The possibility of any staff member being able to remember an oral inquiry made so long ago about a matter of detail such as a disqualification date, is minimal.  Indeed, it is highly unlikely that the persons to whom Mrs W   spoke could have been identified.  She was unable to indicate to the Court who she spoke to or even whether the persons concerned were employed by the Court or by the LTSA.

[31]     Accordingly,  even  if  counsel  had  been  instructed,  it  is  unlikely  that appropriate witnesses could have been identified and if they were, it is highly improbable that any worthwhile evidence would have resulted.

[32]     There is no discernible basis upon which it could properly be argued that the fact the appellant was self-represented in the District Court has resulted in a trial that was less than fair.

Result

[33]     I am satisfied that there are no grounds upon which this appeal can succeed. It is accordingly dismissed.

C J Allan J