READ v POLICE [2020] NZHC 340

READ v POLICE [2020] NZHC 340 [2 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000518[2020] NZHC 340IN THE MATTER OF an appeal against conviction and sentenceBETWEEN DAVID OMEGA READAppellantAND NEW ZEALAND POLICERespondentHearing: 24 February 2020Appearances: D O Read (Self-represented Appellant) in PersonB J Hamilton for the RespondentJudgment: 2 March 2020JUDGMENT OF EDWARDS JThis judgment was delivered by me on 2 March 2020 at 10.30 am.Registrar/Deputy RegistrarSolicitors: Meredith Connell (Office of the Crown Solicitor), AucklandCopy To: D O Read, Tauranga[1] On 7 November 2018, Mr Read was convicted of one charge of driving a motorvehicle while suspended (third or subsequent).1 He was sentenced on 4 March 2019to disqualification from driving for one year.2 That disqualification expired on7 November 2019.3 Mr Read now appeals his conviction and his sentence.[2] The appeal is well out of time. Mr Read explains that the delay is due topersonal difficulties in his life and the fact that he was overseas. The appeal wasprogressed expeditiously on his return. The respondent does not oppose leave to bringthe appeal out of time, and I grant leave accordingly.The offending[3] On 18 August 2017, Mr Read's driver licence was endorsed with 50 demeritpoints. That brought his total demerit points to over 100, making him liable to besuspended (the demerit suspension) under s 90 of the Land Transport Act 1998 (theAct).[4] Subsequently, on 27 September 2017, Mr Read was convicted of driving withexcess alcohol. He was disqualified from driving for three months under s 65A of theAct. Mr Read says that he was anxious to ensure that the demerit suspension wasserved at the same time as his disqualification. He says he contacted the New ZealandTransport Agency (NZTA) and was advised that the demerit points remained activeuntil the notice of the demerit suspension was served. Mr Read was told to contactpolice to trigger the demerit suspension process and arrange service of the notice.[5] Mr Read says that he then contacted police and he was told that the demeritpoints would be cancelled as a result of his disqualification. If he was told this, thenit was in error as demerit points are only cancelled where the disqualification periodis six months or more.4 Mr Read says he relied on this advice and did not take anyfurther steps to trigger the demerit notice suspension process at that time.1 Police v Read [2019] NZDC 3562.2 Police v Read [2019] NZDC 26409.3 Land Transport Act 1998, ss 32(1)(c) and 32(4).4 Section 91(3).[6] On 2 January 2018, Mr Read was served with the demerit suspension notice.The demerit suspension was operative immediately and ended on 1 April 2018.Mr Read contacted NZTA again and was told that as the disqualification was onlythree months, it did not clear the demerit points. Mr Read was referred back to policeto address the demerit suspensions notice. Mr Read says he did not take any steps tochallenge the suspension notice at this time as he did not have the funds to do so.[7] Mr Read was stopped by police on 27 March 2018. When he saw the policepatrol vehicle with its lights activated, he turned into an address on the road that hewas travelling along, exited his vehicle and ran around the back of the address,jumping over a fence in order to evade police. He was apprehended a short time later.District Court conviction and sentence[8] Judge Down presided over the trial in a Judge-alone trial in the North ShoreDistrict Court. In an oral decision delivered on the same day, the Judge recounted thealleged offending and referred to Mr Read's police interview in which he said:5I drove myself there and on the way home, I saw some lights behind me andthinking the dire situation I was in, getting my licence back next week andwhat position I would be in after if I was charged with it, so I jumped the fenceand put the keys in the letterbox. I did not know what to do. I started ringingpeople.[9] Later in the interview, Mr Read told police that he was not sure about hislicence status but " I thought I was disqualified or suspended or something" andlater still he said, "I'm not supposed to drive".[10] The Judge then had regard to the evidence Mr Read gave at trial. Mr Read toldthe Court about contacting police and the NZTA and the advice he had received frompolice. The Judge observed that as far as he was aware, there was no requirement inlaw for the police or the NZTA to have a suspension notice served at a particular timeor after a particular period once a person had amassed at least 100 demerit points. Inany respect, Mr Read had repeated what he said to police when he gave evidence inCourt, that is that he knew that the suspension was current at the time he was driving.5 Police v Read, above n 1, at [7].[11] The defence advanced by Mr Read's counsel before Judge Down was thatMr Read's offending was de minimus and should not result in a conviction. The Judgerecorded that Mr Read's counsel was not advancing a Miller v Police defence, that is,that the person must know that they are suspended at the time of the offence.6 That isbecause Mr Read accepted both in his police interview and in evidence that he didknow that he was suspended when he drove home that day. Accordingly, the Judgefound the charge proved beyond reasonable doubt and a guilty verdict was entered.[12] In sentencing Mr Read, the Judge imposed the mandatory one-yeardisqualification period under s 32(4) of the Act, but considered that no additionalpenalty was warranted. The disqualification period expired on 7 November 2019.7Should the appeals be allowed?[13] A court must allow an appeal from conviction following a Judge-alone trial ifit is satisfied that the Judge erred in his or her assessment of the evidence to such anextent that a miscarriage of justice has occurred or in any case a miscarriage of justicehas occurred for any reason.8[14] Miscarriage of justice means any error, irregularity, or occurrence in relationto affecting a trial it has created a real risk that the outcome of the trial was affected,or that it has resulted in an unfair trial or a trial that was a nullity.[15] Mr Read's central complaint is that the police erroneously informed him thathis demerit points would be cancelled as a result of the disqualification period. Hesays that if he had known the correct position then he would have taken steps to triggerthe demerit suspension at that time, and as a consequence, he would not have beensuspended from driving as at 27 March 2018.[16] There are several difficulties with this argument. First, there is no evidencethat this is what police told Mr Read. The Judge ruled Mr Read's evidence regardingwhat police had told him to be inadmissible hearsay evidence. In the absence of any6 Miller v Police [2012] NZHC 3237.7 Police v Read, above n 2.8 Criminal Procedure Act 2011, s 232(4)(b).direct evidence from police about these conversations, Mr Read could not say whatpolice had told him.[17] Second, even if such evidence was available and admissible, it would notadvance the case for Mr Read. There was no argument advanced in either theDistrict Court or on appeal that the erroneous advice from police meant that thedemerit suspension notice was unfairly obtained and should be excluded. It is far fromclear that such an argument would have been successful even if advanced. That isbecause Mr Read received the correct advice from NZTA at the time the demeritsuspension notice was issued, and he did not take any steps to challenge it at this orany subsequent time.[18] Third, and most significantly, as a result of contacting the NZTA, Mr Readknew that the suspension was in place at the time he was driving on 27 March 2018.So, whatever he believed as a result of the erroneous advice earlier received, as at27 March 2018, he knew he was suspended from driving and that meant he should notbe driving. This is what he told police in his interview, and he repeated that positionwhen he gave evidence. That is all that is required to prove the offence beyondreasonable doubt. There was no miscarriage of justice in finding Mr Read guilty onthe charge and the appeal from the conviction must be dismissed.[19] Mr Read does not advance any particular grounds in relation to the sentenceimposed – his focus was on the conviction appeal. The one-year disqualificationperiod imposed is a mandatory sentence prescribed by statute. There is no basis tointerfere with this sentence.Result[20] The appeal against conviction and the appeal against sentence are dismissed.___________________Edwards J