BOURKE v NEW ZEALAND POLICE [2022] NZHC 1210

BOURKE v NEW ZEALAND POLICE [2022] NZHC 1210 [27 May 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-50[2022] NZHC 1210BETWEEN SAMUEL JASON BOURKEAppellantAND NEW ZEALAND POLICERespondentHearing: 26 May 2022Counsel: K Paima for the Appellant C M Hallaway for the RespondentJudgment: 27 May 2022JUDGMENT OF GWYN JSolicitors:K Paima, Barrister, ChristchurchPolice Prosecutions, ChristchurchIntroduction[1] The appellant, Samuel Jason Bourke, appeals against his conviction for driving while suspended.1 In the alternative, the appellant seeks leave to appeal against his sentence.Background[2] On 8 August 2021 the appellant was stopped by a police officer while driving a motor vehicle because the officer observed a sustained loss of traction by the appellant's vehicle. The incident was attended by a second officer, Constable Khalandi, who approached the appellant and gave him a Notice of Driver Licence Suspension because the appellant had at that point earned 100 demerit points, making him liable to have his driver's licence suspended.[3] The notice given to the appellant by Constable Khalandi reads:Your driver licence is suspended for a period of three (3) months starting from the time this notice is given to you and you will be unlicensed when the period of suspension ends.[4] The notice further states that the appellant is required under s 30 of the Land Transport Act 1998 to "surrender your driver licence to the officer serving this notice".[5] Constable Khalandi then explained the suspension to the appellant and read out parts of the notice. A photo was taken of the appellant holding the notice. The appellant then phoned his friend, who drove the car away.[6] On 31 August 2021 the appellant was stopped again, this time by a Constable Palmer. Constable Palmer carried out a quick check that revealed the appellant's licence was suspended. When this was raised with the appellant, he said that he did not know he was suspended and thought that the suspension would not occur until he received a letter from the New Zealand Transport Authority (NZTA). The appellant was questioned on whether he had received a piece of paper when he was suspended; the appellant agreed he had. Constable Palmer also asked whether the appellant1 Land Transport Act 1998, s 32(1)(c) – maximum penalty three months' imprisonment or $4,500 fine and minimum disqualification of six months.understood that he was suspended from driving on the 8th of August for three months. The appellant said that he did not, that he must have heard it wrong, and that he thought he could drive until he received the letter, however that since he was shown the photo of himself holding the suspension notice, it made sense.[7] These events gave rise to the charge and conviction the appellant now appeals.District Court decision[8] In a Judge-alone trial before Judge Couch in the District Court at Christchurch2the appellant explained that he was confused by the events and did not understand he was suspended from 8 August 2021. He explained that he believed he would lose his licence from a future date, when he received a letter from the NZTA.[9] The Judge found that it had been established beyond reasonable doubt that the defendant did actually understand the suspension.3 The Judge noted that Constable Khalandi had read out the part of the suspension notice that said the appellant's licence was suspended "starting from the time this notice is given to you".4 Further, the Judge recorded that Constable Khalandi had not, to his recollection, referred to the NZTA. Lastly, the Judge said:5The third point that really drives this home is that, following the explanation to him of this notice by Constable Khalandi, the defendant called his friend and got his friend to come and take his car away. If the defendant genuinely believed that he was entitled to drive at that point or, put it another way, if the defendant did not understand that he could not drive, there would have been no sense or reason for him to call his friend or ask his friend to drive the vehicle.I am entirely satisfied by the evidence that the defendant knew on 8 August that his driver licence was suspended from that date. I therefore find the charge as a whole proved beyond reasonable doubt and the defendant will be convicted.2 New Zealand Police v Samuel Jason Bourke [2022] NZDC 1464 [31 January 2022].3 At [17].4 At [17].5 At [19]-[20].[10] The appellant was subsequently convicted, fined $300, and disqualified from holding or obtaining a driver licence for six months.6Arguments on appeal[11] The appellant says that, when he was stopped on 31 August 2021, he believed that the suspension was not yet in effect and would not be until he received a letter from the NZTA. Mr Paima for the appellant argued two grounds of appeal: that the Judge failed to consider the appellant's evidence as to that mistaken belief and gave inadequate reasons for setting it aside, and made an implicit finding that the appellant was not credible. In doing so the Judge misstated the defence case and the defendant's evidence. The Judge was accordingly wrong to exclude a finding that the appellant was operating under a mistake of fact (or alternatively, a mistake of law). In doing so, the Judge in effect introduced a requirement that Mr Bourke's belief was reasonable.[12] Mr Paima says that the prosecution's case was largely accepted and not in issue. The case turned on the integrity of the defence's evidence as given by the appellant. Mr Paima submits that there was no basis for setting aside the appellant's evidence, and that the prosecution had not discharged the onus to establish knowledge to a standard beyond reasonable doubt.[13] The appellant argues for an acquittal or, in the alternative, invocation of s 81 of the Land Transport Act 1998 (Act), to impose a period of disqualification less than the mandatory period.[14] In response, Ms Hallaway on behalf of the respondent, submits that the Judge did consider the appellant's evidence and gave three distinct reasons for rejecting that evidence. Those reasons were, first, that Constable Khalandi had explained the notice to Mr Bourke and read out parts of it to him. Second, Constable Khalandi had given evidence that he did not mention a letter from NZTA when he was explaining the notice to Mr Bourke.7 Third, after Constable Khalandi had explained the notice, the6 New Zealand Police v Samuel Jason Bourke [2022] NZDC 5219 [31 January 2022] (sentencing notes).7 At [18].appellant called his friend to come and take his car away. That supported a conclusion that the appellant understood that the suspension took effect immediately.[15] The respondent says the Judge was entitled to accept the evidence of the police officers and the concessions made by the appellant in his own evidence and was correct to exclude a ruling of mistake of law or mistake of fact.[16] The respondent says that there are no special reasons relating to the offence that would allow the court to invoke s 81 of the Act.Appeal[17] This appeal is brought under s 232 of the Criminal Procedure Act 2011. Under s 232(2)(b) in the case of a Judge-alone trial the court must allow the appeal if it is satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice occurred.8 Section 232(4) relevantly provides:miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[18] An appeal under s 232(2)(b) is an appeal by way of rehearing.9 If the appeal court comes to a different view than the trial judge, then the trial judge will have erred, and the appeal must be allowed.10 It is for the appellant to show there has been an error made.11[19] This appeal is brought out of time. Leave is sought to bring the appeal as the appellant has an issue in the provision of legal aid. The respondent does not oppose leave being granted. Accordingly, I grant leave to appeal.8 Criminal Procedure Act 2011, s 232(2)(b).9 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [29]; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.10 Austin, Nichols & Co Inc v Stichting Lodestar, above n 9, at [38].11 At [38].Discussion[20] The offence of driving while suspended is an offence requiring proof of mens rea.12 That means that the prosecution must prove beyond reasonable doubt the defendant knew he or she was disqualified. Knowledge of disqualification is to be assumed in the absence of evidence suggesting otherwise. As French J said in Cone v Police:13A 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 the defendant to satisfy the Court he or she had reasonable grounds for the mistaken belief.[21] Having regard to those requirements, it is necessary to consider the appellant's evidence before the District Court. There are a number of aspects to that evidence. First, the appellant's evidence was that when he was stopped on 8 August he was stressed – he had just finished a full day of work and was worried about losing his job. He focused on the police officer's statement that his car would not be impounded and was relieved about that because he was trying to sell it at the time. He did not read the notice but put it in the glovebox of the car and forgot about it. He sold the car the next day. He said that his understanding at the time was that, because he was losing his licence for demerit points, he would receive a letter from the NZTA and that would contain the date on which the suspension took effect. The appellant said he had friends who had previously lost their licence for demerit points and he thought that is what had happened to them.14 Further, he was not given a court date, unlike a friend who had lost his licence and had been given a court date and was not allowed to drive from the spot. In addition, the appellant did not have his driver licence with him at the time, so he was not required to surrender it.[22] The appellant said he called his friend, asking him to come as he had just been pulled over. He did not drive the car home himself because he thought that, since the car had not been impounded, the police did not want it on the road or him driving it, but he did not understand that he had lost his licence with immediate effect.12 Millar v Ministry of Transport [1986] 1 NZLR 660.13 Cone v Police HC Christchurch CRI 2010-409-000117, 18 August 2010, at [12].14 Contrary to the Judge's statement, it was not the appellant's evidence that Constable Khalandi had mentioned a letter from the NZTA.[23] Consistent with the appellant's evidence that he did not understand on 8 August that he was immediately suspended, when he was stopped on 31 August 2021 he said to Constable Palmer that he did not know he was suspended and thought his suspension would start when NZTA sent him a letter. The appellant had not, at that point received the letter from NZTA which did ultimately arrive in September, so it cannot be said that that letter influenced his version of events.15[24] I accept Mr Paima's submission that the appellant's credibility is bolstered by his willingness when giving evidence to make concessions where appropriate. For example, under cross-examination Mr Bourke said he did not recall Constable Khalandi explaining the notice to him, but accepted that he must have done so. He also candidly acknowledged that if he had read the notice at the time the whole situation could have been averted.[25] I therefore accept that the appellant had established an evidential foundation for his assertion that he mistakenly thought that the suspension did not take effect immediately, but would do so from the point at which he received a letter from NZTA.[26] In conclusion, I am satisfied that the appellant was under an honest, though mistaken, belief that his suspension had not yet taken effect. That mistake might arguably be characterised as a mistake of fact or law (the effect of being served with a notice of suspension). I am satisfied that is properly characterised as a mistake of fact – that is, a mistake about the date on which the suspension would take effect.[27] In light of that, the prosecution did not affirmatively prove the defendant's knowledge of the disqualification beyond reasonable doubt. I conclude that the Judge was in error in finding that the prosecution had done so.Result[28] The appeal is allowed and Mr Bourke's conviction is quashed.15 The NZTA letter said that Mr Bourke was suspended from driving for three months, starting on 30 September 2021.Gwyn J