The Queen v Cave [2005] NZCA 190; [2011] NZAR 498 (1 August 2005)

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The Queen v Cave [2005] NZCA 190 (1 August 2005); [2011] NZAR 498

Last Updated: 19 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA393/04THE QUEEN

v

PHILLIP ROGER CAVE

Hearing: 27 July 2005

Court: Glazebrook, Chambers and O'Regan JJ

Counsel: T W Fournier for Appellant
M F Laracy for Crown

Judgment: 1 August 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Chambers J)

Drink driving

[1] Phillip Cave was convicted in the District Court at Christchurch of driving with an excess breath alcohol concentration in contravention of s 56(1) of the Land Transport Act 1998. His driving took place on a privately owned farm paddock which, on the day in question, was used as a carpark for persons attending an agricultural show. Judge J E Ryan, the trial judge, accepted that Mr Cave was simply moving his car to a different part of the carpark and that he intended to leave the car there overnight. That was because Mr Cave had been drinking all afternoon at the agricultural show and did not consider he was in a fit state to drive to the local hotel, where he intended to imbibe further with friends. Mr Cave’s defence was that he did not realise that the drink drive laws applied to him in the carpark and, more particularly, he did not realise that what he had driven on was “a road” for the purposes of the Land Transport Act. He made a mistake of fact, he said, which should afford him a defence at law.
[2] This alleged defence did not avail him before Judge Ryan, who convicted him and fined him $300. On appeal, he fared no better: Cave v The Police HC CHCH CRI-2004-409-000024 4 August 2004. Mr Cave now appeals, by leave, to this court.

Issue on the appeal

[3] Panckhurst J, in his judgment granting leave, posed the question of law which he considered arose. Before coming to that question, however, we need to set out its context. This requires us briefly to set out what Judge Ryan and Panckhurst J held.
[4] Judge Ryan identified two questions for determination. The first was whether the paddock was a road at the relevant time. After reference to authority and consideration of the evidence, the judge concluded that the paddock was a road, albeit only for that particular day of the year.
[5] The second question was whether Mr Cave’s mistaken belief that the paddock was not a road afforded him a defence. The judge accepted Mr Cave’s evidence that he had turned his mind to the question of whether he was fit to drive on the road and had concluded he was probably over the limit and should not drive to the hotel. Judge Ryan also accepted that Mr Cave “would not have had the faintest idea that the law would regard [the carpark] as a road”: Police v Cave DC CHCH CRN2009047489 15 January 2004 at [20].
[6] The judge held, however, that Mr Cave’s mistake was essentially one of law in not understanding the scope of the Land Transport Act. Thus Mr Cave was convicted on the basis that a mistake of law is no excuse to the commission of an offence: s 25 of the Crimes Act 1961. Because of Mr Cave’s genuine mistake and his clean record, the judge imposed a relatively light fine and no disqualification.
[7] Panckhurst J considered the same two questions on appeal: was the paddock a road, and did Mr Cave’s mistaken belief that he was not on a road found a defence of total absence of fault?
[8] Panckhurst J concluded for the same reasons as Judge Ryan that the paddock was a road, although only for one day each year. The judge then deliberated on the significance of Mr Cave’s mistaken belief that he was entitled to drive in the paddock because it was not a road. Judge Ryan had dismissed the error as a mistake of law. However, Panckhurst J queried whether it could be said that Mr Cave’s mistaken belief was ignorance of the law, or whether “the better view is that his mistake was one of fact, or at least of mixed law and fact”. If Mr Cave’s mistake was one of fact or mixed fact and law, he could come within the absence of fault defence as expounded by the Supreme Court of Canada in R v City of Sault Ste Marie [1978] 2 SCR 1299 at 1326:

[T]he doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.

[9] Despite his concerns as to the fineness of the distinction between mistake of fact and mistake of law in this case, Panckhurst J found that the mistake was a belief in a fact that related to a matter of criminal law and thus a mistake of law: see the High Court judgment at [32]. He found that Mr Cave’s mistake was not of a kind to avail him of the total absence of fault defence.
[10] In his later leave judgment, Panckhurst J framed the question for determination as: did the appellant reasonably but mistakenly believe in a set of facts which, if true, rendered his act of driving innocent (in terms of the test in R v City of Sault Ste Marie (1978) 85 DLR (3d) 161), so that he did establish a total absence of fault defence?

Did Mr Cave make a mistake of fact?

[11] We see this case in rather simpler terms than did Panckhurst J.
[12] Section 56(1) of the Land Transport Act reads as follows:

A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.

[13] Section 2 of that Act contains the definition of “road”:

Road includes –

(a) a street; and
(b) a motorway; and
(c) a beach; and
(d) a place to which the public have access, whether as of right or not; and
(e) all bridges, culverts, ferries and fords forming part of a road or street or motorway, or a place referred to in paragraph (d); and
(f) all sites at which vehicles may be weighed for the purposes of this Act or any other enactment.
[14] It was definition (d) on which the police relied in this case. Judge Ryan found as a fact that the paddock was, on the particular day, a place to which the public had access. Mr Cave does not challenge that finding.
[15] The offence created by s 56(1) would, if compendiously set out, read as follows:

• (1) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road or a street or a motorway or a beach or a place to which the public have access, whether as of right or not, or a bridge, culvert, ferry, or ford forming part of a road or street or motorway or a place to which the public have access, or a site at which vehicles may be weighed for the purposes of this Act or any other enactment, while the proportion of alcohol in the person’s breath, is ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath. [Emphasis added.]

[16] As is well known to any lawyer, it is not the practice of the Parliamentary drafter to set out the law in such an indigestible form. But that is nonetheless the meaning of s 56(1). Once the subsection is set out in full, it immediately becomes obvious that it is no part of the offence or what the police have to prove that the defendant knew that what he was driving on was “a road”. What the police here had to prove was that Mr Cave was driving on “a place to which the public have access, whether as of right or not”. There is now no dispute that the paddock was, at the relevant time, such a place. It was still being used as a carpark when Mr Cave drove: Judge Ryan accepted the police officer’s evidence that there were still about a dozen cars left and even Mr Cave acknowledged that there were at least some cars still there. There is also no dispute that Mr Cave knew that the place was one to which the public had access. He himself, as a member of the public, had used the paddock as a carpark that day, as had numerous other people, all with the consent of the paddock’s owner. So there cannot be any question of Mr Cave being mistaken about the place where he chose to drive or about its characteristics as a place to which, that day, the public had access. Mr Cave’s only mistake was one of law: he did not appreciate that the drink drive laws applied other than on roads, as normally conceived. His mistake of law affords him no defence.
[17] Section 56(1) could have been drafted to read as follows:

A person commits an offence if the person drives or attempts to drive a motor vehicle on a place to which the public have access while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.

[18] There could then have been a definition of “a place to which the public have access” as follows:

Place to which the public have access includes –

(a) a place to which the public have access, whether as of right or not; and
(b) a road; and
(c) a street; and
(d) a motorway; and
(e) a beach; and
(f) all bridges, culverts, ferries and fords forming part of a road or street or motorway, or a place referred to in paragraph (a); and
(g) all sites at which vehicles may be weighed for the purposes of this Act or any other enactment.
[19] The meaning of s 56(1) as redrafted would be identical to its meaning as currently drafted. We have done this redrafting exercise to illustrate the error in approaching this case as if it threw up an issue as to whether Mr Cave had to know that the place on which he drove was “a road” or as to whether he had a defence if he reasonably, but mistakenly, believed that the place was not a road. There could be no doubt that he knew that the place on which he drove was a place to which, that day, the public had access. The suggested defence could clearly not have been run had the drafter drafted the subsection as we have redrafted it in [17] and [18]: Mr Cave’s mistake would obviously have been a mistake of law. That mistake of law cannot be transmogrified into a mistake of fact or of mixed fact and law simply because the drafter chose “road” as the definitional shorthand as opposed to “place to which the public have access”.
[20] It is well established that the defence of total absence of fault cannot extend to pure mistakes of law: Waaka v Police [1987] 1 NZLR 754 at 759 (CA).
[21] The present case is no different in principle from R v Foox [2000] 1 NZLR 641 (CA), in which the defendant was charged with possessing restricted weapons contrary to s 50(1)(b) of the Arms Act 1983. The weapons were airguns from which pellets were shot under the power of compressed air. Mr Foox argued that he honestly believed that the airguns were not restricted weapons. This court held that Mr Foox’s mistake did not afford him as a defence, as he was pleading ignorance of the law rather than mistake of fact:

[34] For the reasons we have given we consider that it is clear that the knowledge required for the purposes of an offence under s 50(1) of the Arms Act is knowledge that the weapon possesses the characteristics described in the appropriate paragraph of the Order in Council. The requisite intent is an intention to possess a weapon of that character. It is no defence for the accused to assert that he or she did not know that it was a restricted weapon in the schedule to the order in Council.

[35] This view accords with common sense. Having regard to the purpose of the Arms Act, it would be remiss to accept that a person who had possession of, say, an incendiary grenade (such as a Molotov cocktail) could advance as a defence that, for one or other reason, he or she did not know that such grenades were restricted weapons under the Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1984. It would be otherwise if the person genuinely believed that the device he or she possessed was a firework. But ignorance that it is a restricted weapon as such is simply ignorance of the law and it is not open to the Court to diminish the statutory prescription contained in s 25 of the Crimes Act 1961.

[22] So here, it would be otherwise if Mr Cave had genuinely believed that the paddock on which he was driving was not open to the public. But he did know it was open to the public. His mistaken belief that the carpark was not a place to which the drink drive laws extended was simply ignorance of the law.
[23] Another comparable case to which Ms Laracy, for the Crown, referred us was R v Jones and Pamajewon [1991] 3 SCR 110. In that case, the accused had been charged with unlawfully conducting gaming operations contrary to the Criminal Code. The accused argued that they did not believe that the offence provision applied to their activities since they were carried out on a reserve, which they believed was not subject to Canadian gaming laws. The Supreme Court held that the accused were mistaken in their belief that the gaming laws did not apply to the reserve, and that this was a mistake of law:

[16] They argued that mistake of fact is a constitutionally mandated defence to criminal charges. Even assuming that proposition is correct, it can only apply to the facts which constitute the offence. There is no suggestion of any mistake relating to those facts here; the mistake is in believing that the law does not apply because it is inoperative on reserves.

[17] Section 19 of the Code expresses the long-recognized principle that a mistake about the law is no defence to a charge of breaching it. No attack was made on the validity of that section. The argument here is that this legal mistake should be characterized as a mistake of fact, and I find it impossible to characterize the mistaken belief put forward here as embracing any mistake of fact. [Emphasis in original.]

Result

[24] The answer to Panckhurst J’s question is, therefore, that Mr Cave made no mistake of fact, only a mistake of law. That mistake of law affords him no defence.
[25] It follows that Judge Ryan correctly convicted him of the offence with which he was charged. The appeal must be dismissed.

Solicitors:
Crown Law Office, Wellington