Davies v Police [2014] NZHC 2891 (20 November 2014)

Last Updated: 27 November 2014

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2014-454-13 [2014] NZHC 2891

BETWEEN	KANE QUENTIN DAVIES Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 November 2014
Counsel:	A P Dye for appellant M J R Blaschke for respondent
Judgment:	20 November 2014

_{RESERVED JUDGMENT OF DOBSON J}

Introduction

[1] On 17 July 2014, Mr Davies was convicted of one charge of driving while disqualified and received 80 hours’ community work and a further disqualification of one year.¹ The convictions followed a summary trial before Judge G M Ross in the District Court at Levin on 4 July 2014. This was Mr Davies’ third charge of driving while disqualified. He has appealed his conviction on the basis that the District Court Judge was wrong in fact and law.

Facts

[2] Mr Davies had been convicted and sentenced on 23 January 2013 to a disqualification period of one year and one day. Immediately following that sentencing, Mr Davies was presented with a “notice of disqualification with order for

_{zero alcohol licence”. The standard form notice stated at the outset:}

¹ Land Transport Act 1998, s 32(4).

On 23 January 2013 ... you were disqualified from holding or obtaining a drivers licence for 1 year and 1 day from 23 January 2013 ...

[3] In the body of the single page notice, it further advised:

Whether handed in or not, your licence card will be cancelled and will remain cancelled after your disqualification ends until a new licence is issued.

At the end of your disqualification you will remain unlicensed, and not entitled to drive, until you have applied to the New Zealand Transport Agency for a zero alcohol licence and a licence has been issued to you ...

[4] Mr Davies signed the back of the notice.

[5] On 21 January 2014, Mr Davies was caught driving by Police. He claims that he incorrectly thought that he was sentenced on 20 January 2013 (rather than

23 January) and that the period of disqualification was one year (rather than one year and one day).

The District Court Decision

[6] Judge Ross considered the so-called Millar test that while knowledge of disqualification is to be assumed in the absence of evidence suggesting otherwise, if there is such evidence then the prosecution must affirmatively prove beyond reasonable doubt that the defendant knew he or she was disqualified from driving at

the time to which the charge relates.² The Judge found that Mr Davies had not

credibly raised sufficient evidence to place the onus on the prosecution. His Honour reasoned that because Mr Davies had admitted he knew he had to re-sit his licence following the disqualification period (a fact contained in the notice that he signed on the day of the sentencing), he had no credible basis to contend that he was not aware of the other information contained in the notice.

[7] It is accepted that the Judge made two errors in his reasoning. First, the

Judge found that Mr Davies’ mistake as to the duration of the disqualification was a

_{mistake of law not fact. At [14] of his judgment, Judge Ross stated:}

² Millar v Ministry of Transport [1986] 1 NZLR 660.

... But Mr Davies deposed that he believed that (another mistake) that his disqualification was for a period of one year only. That mistake is a mistake of law, as his period of driver licence disqualification could not be limited to one year. By s 54(4)(b) Land Transport Act, a period of driver licence disqualification in his case must be for more than one year. And it was. ...

[8] The relevant mistake was not Mr Davies’ belief as to the law on a mandatory period for disqualification that applied to his conviction, but rather his mistake as to the date on which the disqualification began, and the length of the period for which he had been disqualified. Whilst there can be scope for debate as to the boundary between mistakes as to the law and mistakes as to facts,³ the mistake Mr Davies claimed he made here was inarguably a mistake of fact.

[9] Secondly, the Judge misunderstood Mr Davies’ evidence on what he thought he had to do after the period of disqualification ended, before he could drive again. At [18] of his judgment, Judge Ross held:

The other significance to these consequences is the defendant’s own admission in evidence that he knew he would be required to re-sit the licence test and pass the examination to be permitted to drive after the disqualification period ended.

[10] That construction was not reasonably open on the evidence before the Judge. Rather, the effect of Mr Davies’ evidence in a number of the answers he gave in cross-examination was that he learned from his discussion with the officer when apprehended that he would have to re-sit the licence test after the period of disqualification ended.

Arguments on the appeal

[11] The essence of Mr Dye’s arguments on the appeal relied on the Judge’s rejection of Mr Davies’ defence that he was unaware that he was still disqualified from driving on the day he was apprehended. Arguably, that adverse credibility finding must have been influenced by the two acknowledged errors in the Judge’s reasoning so that the conviction was unsafe and a miscarriage of justice had occurred. Mr Dye urged that the errors created a real risk that the outcome of the

_{trial was affected.}

³ See, for example, R v Cave CA393/04, 1 August 2005 and Keung v Police HC Christchurch

CRI-2009-409-94, 5 November 2009 at [19].

[12] In opposing the appeal, Mr Blaschke argued that the Judge found the charge proven on two alternative bases, and that the second of those applied independently of, or irrespective of, the two acknowledged errors in the Judge’s reasoning. That alternative basis for the decision was set out in [19] of the judgment as follows:

In these respects, combined with those I have set out above, the prosecution

onus to prove the defendant’s guilty knowledge of his status as at 21 January

2014 is established and I am left in no reasonable doubt about this at all. The prosecution has discharged the onus required of it in this case. No issue was taken with the previous convictions.

[13] Both counsel relied on Keung v Police for definition of the issue. Justice

French put it in the following terms:⁴

[7] In Millar, the Court of Appeal held that the offence of driving while disqualified was an offence requiring proof of mens rea. It is clear what was meant by that is that the prosecution must prove beyond reasonable doubt the defendant knew he or she was disqualified. According to the decision, knowledge of disqualification is to be assumed in the absence of evidence suggesting otherwise. A defendant claiming lack of knowledge must therefore point to some evidence to raise the issue, and if there is such evidence the prosecution is required affirmatively to prove knowledge beyond reasonable doubt. There is no onus on a defendant to satisfy the Court he or she had reasonable grounds for the mistaken belief.

[14] Service of a written notice at the time of sentencing, such as Mr Davies acknowledged receiving in this case, must, in the generality of cases, strengthen the grounds for assuming knowledge of the terms and effect of disqualification, in the absence of evidence suggesting the contrary. That leaves open a prospect of a disqualified driver providing credible evidence that, despite clear notice at the time the disqualification was imposed of its duration, other matters had occurred since that time which gave rise to an honest belief that the disqualification had come to an end in circumstances entitling the person to drive again.

[15] The credibility of Mr Davies’ claim to that effect depended on his mistaken apprehension at the time he drove on the day in question on three factual propositions. First, that the disqualification ran from 20 January 2013 (when it is accepted that it ran instead from 23 January 2013). Secondly, that the

_{disqualification was for a period of one year (instead of one year and one day).}

⁴ Keung v Police, above n 3, at [7].

Thirdly, that the disqualification had been imposed on terms that would permit him to start driving again the day after the period of disqualification ended. As to the third of these propositions, the Judge assessed Mr Davies’ credibility on the mistaken premise that he had been aware when he elected to drive on the day in question that he would not be permitted to drive until he had applied to be re-licensed and passed the requisite test. Irrespective of the Judge’s view on the first two components of the defence stance, that error is likely to have been material to the adverse credibility finding, and constitutes an error that creates a real risk of the outcome of the trial having been affected.

[16] I am not satisfied that it would be safe to put the potential relevance of this error to one side, and rely instead on the other strands of the Police case as sufficient to prove beyond reasonable doubt that Mr Davies did not have an honestly held belief that he was entitled to drive on the day in question.

[17] Accordingly, the appeal is allowed. The conviction is quashed.

Dobson J

Solicitors:

Crown Solicitor, Palmerston North