Ngu v New Zealand Police

JurisdictionNew Zealand
CourtHigh Court
JudgeGendall J
Judgment Date29 May 2015
Neutral Citation[2015] NZHC 1199
Docket NumberCRI-2015-476-000001

[2015] NZHC 1199

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2015-476-000001

BETWEEN
Eloni Fetaiaki Tuakoi Ngu
Appellant
and
New Zealand Police
Respondent
Appearances:

T A McRae and P A Bradford for Appellant

N N Willcocks for Respondent

Appeals against conviction for driving while having a suspended licence, third and subsequent — the appellant said that although he was mistaken, he had thought at the time of the offence that the period of suspension had come to an end — the District Court Judge agreed that the appellant was honest whenhe said he had simply made a mistake but he said that the appellant should have been under no misapprehension as to the duration of the period of the suspension — appellant argued that the offence required a mens rea element and that an honest belief was sufficient for a mistake of fact defence — whether the Judge had erred by reading into the defence a requirement for reasonability of the defendant's belief

The issue was: whether the Judge had erred by reading into the defence a requirement for reasonability of the defendant's belief.

Held: Section 32 TA did not expressly set out a mens rea element for the offence of driving while suspended. However, the Court of Appeal in Millar v Ministry of Transport held that mens rea was a necessary element of the offence.

A mistake of fact was only required to be honest rather than honest and reasonable. By commenting that N should have been under no misapprehension as to the duration of the period of suspension, the Judge appeared to have introduced an objective standard of reasonableness to the defence of mistake of fact. Driving while disqualified was an offence that required a mens rea element and, as such, all that was required to satisfy the defence was an honest belief.

The hearing judge was in a better position to determine the facts of the case than an appellant court judge who does not have the benefit of hearing oral evidence. The Crown submitted that the Judge, on the evidence before him, was satisfied that the appellant knew he was suspended from driving at the time of the offence. However, this was not actually the finding that the Judge made. The Judge stated on a number of occasions that the appellant was mistaken at the time of the offending. Also the Judge confirmed that he believed the appellant to be an honest witness.

Therefore, the issue here was not that a finding of mens rea was not available to the Judge on the facts. Rather, it was that the Judge in fact found that the appellant did not possess the required mens rea, but he proceeded however to read an element of reasonability into the mistake that was made, and that was not what the section required.

The appellant did not have the appropriate mens rea at the time of the offending.

Appeal allowed. Conviction quashed.

ORAL JUDGMENT OF Gendall J

Introduction
1

On 24 February 2015 the appellant, Mr Ngu was convicted by Judge Kellar in the District Court at Timaru of driving while having a suspended licence, third and subsequent. 1 Previously, Mr Ngu had been suspended from driving for three months, from 15 April 2014 until 15 July 2014 as he had incurred over 100 demerit points within a two year period. However, on 3 July 2014 while the suspension period still applied, Mr Ngu was pulled over by a police officer while driving his car.

2

Mr Ngu now appeals his conviction on the basis that although he was mistaken, he had thought at the time that the period of suspension had come to an end. Although the District Court Judge agreed that Mr Ngu was honest when he said he had simply made a mistake here, nevertheless, he convicted Mr Ngu on the charge. He did so effectively as he had imposed a further objective element on Mr Ngu's mistaken belief, which he said had not been met here.

Circumstances of the mistake
3

Turning to consider the circumstances of the mistake, Mr Ngu is Tongan and speaks English as a second language. As a result, his English is not strong as indicated by the oral evidence he gave at the hearing. Although it seems he was able to comprehend the majority of the questions put to him on examination, many of his answers were rudimentary and it appears clear that he did not understand the more complicated words.

4

Mr Ngu, when called to give evidence, gave the following explanation to the Court of how he arrived at his mistaken belief:

  • Q. Did you ask the man who visited you about that?

  • A. Yeah, I asked before, I asked him when did I suspended and he said to me, just start from today's, April from April, and I did get from that date, from that month that's how I count.

  • Q. So when did you think you would be able to drive again?

  • A. And I thought myself, I'm be able to drive on July.

5

When cross examined on the point Mr Ngu, as I see it, reinforced his mistaken belief:

  • Q. I put it to you Mr Ngu that in fact you knew you were still suspended and that's why your friend was driving you to and from work in July, isn't that right?

  • A. Pardon.

  • Q. That you knew that you were still suspended in July when you were stopped because your friend was still taking you to and from work?

  • A. No. I thought all right, my suspended is over.

  • Q. But you've agreed here in Court today that on the 15th of April Mr Kenmare gave you documents saying you weren't able to drive for three months from that date?

  • A. Yeah, I count yeah, that my mistake. That's why I borrow (inaudible 10:57:45) I thought I'm all right be drive because I can't do it from April, May and June.

District Court decision
6

Turning now to the District Court decision, in the District Court hearing, Judge Kellar had to determine whether Mr Ngu was actually mistaken as to the fact of his driving suspension. On this issue, Judge Kellar stated:

13
    Mr Ngu struck me as an honest witness. The key point in his evidence, however, came when he conceded that he had counted the duration of the period of suspension as from April. He conceded that in so doing he made a mistake. [14] It seems that although Mr Ngu received the various forms from Mr Kenmare informing him of the suspension and the duration of it, he may not have kept those forms, hence when he was driving to have his car repaired on 3 July he may have simply been mistaken as to the period on which the suspension began. That may afford him a defence in law. However, he clearly was aware on 15 April 2014 that he was suspended from driving for a period...

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