MARTIN v NEW ZEALAND POLICE [2021] NZHC 1356

MARTIN v NEW ZEALAND POLICE [2021] NZHC 1356 [9 June 2021]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2021-454-000015[2021] NZHC 1356BETWEEN WINDSOR MARTINAppellantAND NEW ZEALAND POLICERespondentHearing: 9 June 2021Counsel: T E Hesketh for the AppellantE R Pairman for the RespondentJudgment: 9 June 2021ORAL JUDGMENT OF PALMER JSolicitors:Tim Hesketh Law Ltd, Palmerston NorthBVA The Practice, Palmerston NorthWhat happened?[1] On 5 May 2019, Mr Windsor Martin, aged 32, failed to stop when followed byPolice using red and blue flashing lights. Among other charges, he was charged withthe offence of failing to stop when followed by red and blue flashing lights underss 114(2) and 52A(1) of the Land Transport Act 1998 (the Act). He pleaded guilty.He had previously been convicted of failing to stop in 2006 and 2016.[2] Section 52A was inserted by the Land Transport Amendment Act 2017. Itprovides that a person who is the driver of a vehicle that fails to stop when required tostop under s 114(2) (by police displaying flashing blue and red lights), commits anoffence. Under s 52A(2), the maximum penalty is a fine of up to $10,000. Unders 52A(5):If a person is convicted for a third or subsequent offence against subsection(1),—(a) the maximum penalty is imprisonment for a term not exceeding3 months; and(b) the court must order the person to be disqualified from holding orobtaining a driver licence for 2 years.[3] Under s 52A(6), the disqualification is cumulative or additional to any otherdisqualification the Court orders in respect of the facts giving rise to the conviction.[4] Judge L C Rowe, in the Palmerston North District Court, convicted Mr Martinand sentenced him to three months' home detention subject to special conditions, withdisqualification for six months and then the two years. Mr Martin appeals theconviction.Submissions[5] Mr Hesketh, for Mr Martin, submits leave to appeal out of time should begranted because the legal issue was only recently brought to Mr Martin's attention, theCrown is not prejudiced and it is in the interests of justice to clarify the scope of s 52A.Ms Pairman, for the Crown, does not oppose leave being granted to appeal out of time.By consent, and in the interests of justice for both Mr Martin and the public generally,I grant leave to appeal out of time.[6] Mr Hesketh, for Mr Martin, submits that it was not open for the charge to havebeen laid for the third or subsequent occasion because Mr Martin's previousconvictions for the offence pre-date the enactment of s 52A of the Act and should nothave been taken into account. He submits that Parliament would have specificallyprovided for pre-section 52A convictions to be captured if it had intended to do so, asdo other provisions of the Act such as ss 32(5) and 56(5) and s 129 of the SentencingAct 2002. He submits Parliament did not intend the new harsher penalty to haveretrospective effect and the overall purpose of the Act is maintained because theharsher punishment for fleeing drivers from now on is clear. He submits it is the roleof the Court to apply the law as it is written by Parliament, which does not mention inthe section pre-2017 convictions despite Parliament's wisdom and resources. Hesubmits it is not open to the Court to correct Parliament's oversight. He relies on theHigh Court's judgment in Kesseler v Police.1 He submits this case is distinguishablefrom the application of s 22 of the Interpretation Act 1999 in De Montalk, relied uponby the Police, because of the consequences for the offender. He relies on Ministry ofTransport v Hamilton, which he says held that the predecessor to s 22 applied only tocompletely repealed Acts, not individual sections.2 He also relies on Beckham v Rwhere the Supreme Court specifically noted that if Parliament intended to carry overa previous provision it should have been expressly provided for.3[7] Ms Pairman, for the Police, does not dispute the plain reading of s 52Aarticulated by Mr Hesketh and that there is no explicit "carry-over" provision whichhas been left out. But she submits that the Court should interpret s 52A to contain animplied "carry-over" provision under s 22 of the Interpretation Act 1999. She submitsthis is a general deeming provision that distinguishes Kesseler v Police. She submitsit was logical for Parliament to separate ss 52 and 52A and the carry-over provisionwas simply overlooked. She submits the Court should take a wide view of"enactment". She submits Parliament's intention was to address the problem ofdrivers fleeing from Police and Parliament did not intend to give them a clean slate forpre-2017 offending. She submits the Court should give effect to Parliament's purposeto increase the penalty on fleeing drivers by reading in a carry-over provision through1 Kesseler v Police HC Auckland CRI 2010-4040-430, 8 February 2011.2 Ministry of Transport v Hamilton HC Wanganui, M73/84, 4 April 1985.3 Beckham v R [2015] NZSC 98, [2016] 1 NZLR 505 at [98].an expansive view of purposive interpretation where it is clear what Parliament'sintention is. She submits there would be significant effects if the interpretationadvocated for by Mr Hesketh were adopted.Should the appeal be upheld?[8] Section 232(2)(c) of the Criminal Procedure Act 2011 provides that theHigh Court must allow an appeal if the Court is satisfied that a "miscarriage of justicehas occurred for any reason". Section 232(4) defines "miscarriage of justice" to mean:any error, irregularity, or occurrence in or in relation to or affecting the trialthat—(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.[9] Section 232(5) provides that "trial" includes a proceeding in which theappellant pleaded guilty. A miscarriage of justice "is more than an inconsequential orimmaterial mistake or irregularity".4 A miscarriage of justice will occur where theappellant did not appreciate the nature of a particular charge, or on the admitted factsthe appellant could not in law have been convicted of the offence charged.5 Anappellant "does not have to establish a miscarriage in the sense that the verdict isactually unsafe" but that there has been a real possibility the verdict would be unsafe.6[10] As Ms Pairman responsibly concedes, the plain meaning of s 52A(5) is that aperson has to be convicted "of a third or subsequent offence against subsection (1)"for the section to apply. Mr Martin has not.[11] Ms Pairman relies on s 22 of the Interpretation Act 1999 which states:22 References to repealed enactment(1) The repeal of an enactment does not affect an enactment in which therepealed enactment is applied, incorporated, or referred to.4 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].5 R v Le Page [2005] 2 NZLR 845 (CA) at [13]; R v Merrilees [2009] NZCA 59 at [24]; and R vSungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70].6 R v Sungsuwan, above n 5, at [110].(2) A reference in an enactment to a repealed enactment is a reference toan enactment that, with or without modification, replaces, or thatcorresponds to, the enactment repealed.(3) Subsection (1) is subject to subsection (2).[12] Section 52A(5) does not "apply" or "refer" to its repealed predecessor, s 52(4).Section 52A may "incorporate" s 52 in the sense that the wording of the offence isunchanged. But that just means that, under s 22(1), the repeal of s 52(4) does notaffect s 52A. And s 52A is clear on its face and does not include a carry-over provision.[13] In De Montalk v R, the Court of Appeal held that s 22(2) applied to s 34(1) ofthe Act which replaced another section, notwithstanding small changes to the form ofthe legislation.7 The Court considered that it should apply s 22 to an offence provisionthat referred to offences under regulations. That meant the offence provision wouldnow refer to a new statutory offence that replaced a previous offence under aregulation.8 The Court noted that was semantically awkward but right, because it was"simply not credible to attribute to Parliament an intention that the relevant offence nolonger be a stationary vehicle offence".9[14] I do not consider the same applies here. There is no reference to a repealed orreplaced enactment here or to a category of enactments which include that replacedhere. The text of s 52A is very clear in referring to a person "convicted for a third orsubsequent offence against subsection (1) [of s 52A]". Unlike the situation inDe Montalk, the resulting Parliamentary intention is credible: that Parliament intendedto increase penalties on those who repeatedly offend against s 52A, prospectively.[15] I accept Mr Hesketh's submission that the situation is similar to that inKesseler v Police.10 There, Keane J in the High Court held that, in the absence of aspecific or general deeming provision capturing convictions under the Land TransportAct 1962, Mr Kessler's earlier convictions could not qualify as "third or subsequent"offences.117 De Montalk v R CA 157/03, 7 March 2005 at [14].8 At [16].9 At [17].10 Kesseler v Police, above n 1.11 At [12].[16] Sections 32(5) and 56(5) of the Act, referred to by Mr Hesketh, are explicit inproviding that specific offences against predecessor enactments are "to be treated as aconviction" for the corresponding offence. So is s 129(5) of the Sentencing Act 2002,relating to confiscation of a motor vehicle after a subsequent offence. Section 52A(5)does not. I do not consider the fact it is a successor section makes a difference. IfParliament had wished to provide for the meaning advocated by the Police, it couldhave done so. Interpreted in the context of the Kesseler decision in relation to thepredecessor section of the same Act, the absence of a deeming provision reinforces theplain meaning of s 52A. That is not inconsistent with the purpose of increasingpenalties on repeat offenders against s 52A.[17] I uphold the appeal and quash the conviction and corresponding sentence. ThePolice will need to pursue any modified charge in the District Court.Palmer J