Edwards v Police [2012] NZHC 1350 (15 June 2012)

High Court of New Zealand

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Edwards v Police [2012] NZHC 1350 (15 June 2012)

Last Updated: 21 June 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2011-470-000016 [2012] NZHC 1350

BETWEEN LISA CATHERINE EDWARDS Applicant

AND NEW ZEALAND POLICE Respondent

Hearing: 14 June 2012

Appearances: P Winkler, R Mulgan and A Simpson for Applicant

H A Wrigley for Respondent

Judgment: 15 June 2012

JUDGMENT OF VENNING J on

(1) Application to recall and

_{(2) Application for leave to appeal}

This judgment was delivered by me on 15 June 2012 at 11 am, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Crown Solicitor, Tauranga

Copy to: P Winkler, Auckland

R Mulgan, Auckland

A Simpson, North Shore, Auckland

EDWARDS V NEW ZEALAND POLICE HC TAU CRI-2011-470-000016 [15 June 2012]

Introduction

[1] On 18 April 2012 this Court allowed the applicant’s appeal against conviction for driving with excess breath alcohol and directed that the case be reheard in the District Court.

[2] The applicant seeks leave to recall that judgment and, in the alternative, seeks leave to appeal to the Court of Appeal.

Background

[3] The applicant was convicted of a charge of driving with excess breath alcohol following a defended hearing in the District Court at Tauranga. The Judge declined her application for a discharge without conviction, convicted her, fined her $900 plus costs and disqualified her from driving for six months. The appellant then appealed to this Court. In the meantime she paid the fine and served the period of disqualification.

[4] When the appeal came before this Court, the respondent conceded the appeal had to be allowed because the record of the notes of evidence, which were crucial to the grounds of appeal, were not available. The appellant wanted to argue that the Judge was wrong in his findings that:

(i) she was not denied the right to speak to a lawyer; and

(ii) she was given the time prescribed by s 70A of the Land Transport Act 1998 (the Act) to consider her options after failing the breath test.

Both points turned on the evidence given in the District Court. The evidence had unfortunately not been recorded by the District Court. In the absence of the record of evidence the appeal had to be allowed.

[5] However, while allowing the appeal this Court directed that the case was to be reheard in the District Court at Tauranga because, for the reasons set out in the judgment, the interests of justice required that there be a rehearing.

The application for recall

[6] Mr Winkler submitted that the second of the three categories recognised in Horowhenua County v Nash (No. 2), justifying a recall applied, because counsel had failed to direct the Court’s attention to a relevant legislative provision, namely s 56(3)(b) of the Act.[1]

[7] Mr Winkler submitted that if the Court had had argument addressed to it on that section then it would not have directed a rehearing.

[8] Mr Winkler submitted that as a consequence of s 56(3)(b) if the appellant was convicted following the rehearing in the District Court, the Court would be bound to impose a further period of disqualification, notwithstanding the fact that the appellant had already served the original disqualification.

[9] He submitted that as the appellant has already served the period of disqualification (she not having sought a deferment of the disqualification pending the hearing of the appeal under s 107(2)) she would be exposed to an unavoidable double punishment in the event of a conviction at the rehearing. In other words, the District Court Judge would have to impose a further period of disqualification.

[10] Mr Winkler is correct that s 56(3)(b) of the Act was not expressly drawn to the Court’s attention during the course of the appeal hearing and did not feature in argument, even though the focus of the hearing was on whether the case should be remitted to the District Court for a rehearing.

[11] However, I consider that the answer to the submissions Mr Winkler makes on the section is the point made by Ms Wrigley for the Police. Section 85(1) of the Act

_{provides the solution. Section 85(1) provides:}

If an order is made by a court under any Act disqualifying a person from holding or obtaining a driver licence, the period of disqualification starts on the day the order is made unless the court otherwise directs or that Act otherwise provides.

[12] In the event of a conviction following the rehearing s 85(1) would enable the District Court Judge to backdate the mandatory period of disqualification to start on the day that the disqualification had previously commenced. The wording of the section enables the District Court Judge to order the disqualification to commence on any date fixed by the Court.

[13] In the extremely unlikely event that the District Court Judge declined to do so then the appellant could appeal to this Court (and seek deferment of the disqualification in the meantime).

[14] It follows that, even if counsel had referred to s 56(3)(b) at the hearing before me, it would not have made any difference to my decision to direct a rehearing in this case.

[15] For the reasons set out in the judgment of 18 April I consider the circumstances of the offending in this case were such that, if the applicant is convicted at a rehearing, it is appropriate that a conviction be recorded. The interests of justice would not be served if, because of an administrative error within the District Court, an offence of this nature was effectively removed from a person’s record as is the situation at present.

[16] I decline the application for leave to recall the judgment.

Application for leave to appeal

[17] In the event the application for recall was unsuccessful, Mr Winkler submitted that the Court should grant leave to appeal to the Court of Appeal on the following question of law:

Where an appellant has already served a mandatory period of disqualification should their case be remitted for a rehearing notwithstanding the risk of double jeopardy that this will create and if it should be remitted, is

it proper to interpret s 85(1) of the Land Transport Act 1998 as being available to avoid the imposition of further disqualification.

[18] The relevant considerations that apply when considering whether leave to appeal should be granted are settled.[2] Before leave can be granted there must be:

a question of law;

the question must be one which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of

_{Appeal; and}

_{the Court must be of the opinion that it ought to be so submitted.}

[19] The question of law Mr Winkler proposes really raises two issues, first, given the provisions of s 56(3)(b) of the Act should a Court remit a case for rehearing in the District Court where the appellant has served his or her period of disqualification and second, does s 85(1) of the Act permit the Court to backdate the period of disqualification?

[20] Ms Wrigley conceded a question of law could arise relating to the application of s 85(1). Accepting for present purposes that the propositions raise a question(s) of law the next issue is whether, by reason of their general and public importance, or for any other reason, they ought to be submitted to the Court of Appeal.

[21] Mr Winkler (and his supporting counsel) submitted that the circumstances similar to the present could arise quite often and so the case was of general importance. Mr Winkler made the point that an appellant will not always seek deferment of disqualification and, even if sought, it was not always granted. He submitted that there could be a number of appellants who would face the prospect of a second period of disqualification if their appeal was allowed and the matter

_{remitted back to the District Court for a rehearing.}

[22] In my judgment Mr Winkler overstates the likelihood of such circumstances occurring. I note that, at the appeal hearing, when the focus of the appeal was on whether this Court should direct a rehearing, counsel were not able to locate any case where the issue of the loss of District Court record (and its consequences) had been considered on a drink driving appeal.

[23] But more relevantly, where an appeal against a conviction for drink driving is allowed on its merits the issue will not arise. If, for instance in this case, the Court record had been available and this Court had differed from the findings of the District Court Judge and concluded that the applicant had been denied her right to speak to a lawyer or had not been given the time allotted under s 70A of the Act then there would be no question of a rehearing. The conviction would simply have been quashed and that would have been an end of the matter. That will ordinarily be the position where appeals on drink driving convictions are allowed on their merits.

[24] The issue Mr Winkler has identified is only likely to arise in circumstances where not only has an appellant not had their disqualification deferred, but also an appeal is allowed on a technical point or, in a case such as this, where there has been an administrative error within the District Court leading to a loss of the record. Such occasions will be relatively rare.

[25] Relevant to the significance of the first issue is the point that, because of s 85(1) the potential for a second mandatory disqualification under s 56(3)(b) would at most be a factor the Court would take into account, along with all of the other relevant factors, in determining whether to direct a rehearing.

[26] That leads to consideration of the second issue, namely whether s 85(1) permits the Court to backdate the period of disqualification. The wording of the section is plain. It is that:

the period of disqualification starts on the day the order is made unless the court otherwise directs ...

The wording is unambiguous. The Court has an unfettered discretion as to the date the disqualification is to run from. The Court may “otherwise direct” the period of

disqualification be backdated or commence on a future date. I note that the previous section that provided for the commencement of the period of disqualification, s 36 of the Transport Act 1962 was more restrictive. It provided:

36 Commencement of period of disqualification

...

(2) Notwithstanding anything in subsection (1) of this section, the Court by which an order is made disqualifying a person from holding or obtaining a driver's licence may direct that the period of disqualification so ordered shall commence on a date later than the date of the order.

[27] The former section provided that the disqualification could only be postponed or directed to apply from a date later than the date of the order. By s 85(1) of the

1998 Act, Parliament has chosen to remove that constraint. The only reason can have been to provide the Court with flexibility and to enable the disqualification period to run from a date preceding the date of the order as well as from a later date.

[28] I do not consider the point of interpretation of s 85(1) to be seriously arguable or at least not sufficiently arguable to provide a basis for submission to the Court of Appeal for determination.

[29] It follows that I am not satisfied that the question that Mr Winkler proposes to raise is one which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal. Nor am I satisfied that the question should, in any event, be submitted to the Court.

_{[30] The application for leave to appeal is dismissed.}

Venning J

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[1] Horowhenua County v Nash (No. 2) [1968] NZLR 632.

[2] R v Slater [1997] 1 NZLR 211 at 215.