Solicitor-General's Reference (No 1 of 2016) From Cri-2015-485-52, High Court At Christchurch)

• Jurisdiction: New Zealand
• Judge: Kós J
• Judgment Date: 05 September 2016
• Neutral Citation: [2016] NZCA 417
• Docket Number: CA663/2015
• Court: Court of Appeal
• Date: 05 September 2016

In the Matter of Solicitor-General's Reference (No 1 of 2016) From CRI-2015-485-52, High Court at Christchurch)

[2016] NZCA 417

Court:

Wild, Cooper and K's JJ

CA663/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

Reference by the Solicitor-General on two questions of law as to whether the High Court (HC) had correctly held that the practice used to give notice of suspension of the licences of drivers who had accrued 100 or more demerit points in a two-year period, did not meet the requirements of s90(1) Land Transport Act 1998 (LTA) — s 90(1) LTA required that the Land Transport Agency _give_ notice in writing advising the person (ie the driver) of the accumulation of those demerit points and the suspension consequences — the practice was that a police officer checking the licence of such a driver would be alerted by electronic notification by the Land Transport Agency, and automatically requested to issue the notice on the Agency_s behalf — the notice was a standard form police template — it was common ground that until 2015 the delegation by the Agency of its role to the police had been invalid — whether the police template form fulfilled the requirement of the Agency giving notice under s90(1) LTA — if not, whether s379 Criminal Procedure Act 20911 (Proceedings not to be questioned for want of form) deemed the notice valid when a driver was subsequently prosecuted for driving while his or her licence was suspended.

Counsel:

Solicitor-General U R Jagose QC and Z R Johnston for Referrer

A N Isac and T Mijatov as Counsel assisting

The questions of law referred are answered:

• (a) Question One: Was the High Court correct to conclude that the requirements of s 90 of the Land Transport Act 1998 had not been met in this case?

  Answer: Yes.

• (b) Question Two: If the requirements of s 90 were not met, was the correct remedy the quashing of the defendant's conviction?

  Answer: Yes.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Kós J)

1 When a licenced driver accrues 100 or more demerit points in a two-year period, the Land Transport Agency must give the driver notice of that fact and that their licence is suspended with immediate effect. In practice what happens is that a police officer checking the licence of such a driver will be alerted by electronic notification by the Agency, and automatically requested to issue the notice on the Agency's behalf. The police officer then fills in a standard paper notice kept in the patrol car and gives it to the driver.

2 Does this procedure meet the requirements of s 90(1) of the Land Transport Act 1998 (the Act), that “the Agency must give notice in writing advising the person” (ie the driver) of the accumulation of those demerit points and the suspension consequences? That is the first question in this appeal.

3 And if it does not, does s 379 of the Criminal Procedure Act 2011 deem the notice valid when a driver is subsequently prosecuted for driving while his or her licence is suspended? That is the second question.

4 It is common ground that until mid-2015 the delegations given by the Agency to the police to perform the Agency's notification duty were defective. So the first question turns on whether the Agency itself has performed its notification duty.

5 On appeal from two inconsistent District Court decisions on this question, Williams J in the High Court held the procedure adopted did not meet the requirements of s 90(1) of the Act. The notice given was invalid and the conviction for driving while suspended was set aside. 1

6 The Solicitor-General sought and obtained leave to refer two questions of law to this Court: 2

• (a) Was the High Court correct to conclude that the requirements of s 90 of the Act had not been met in this case?

• (b) If the requirements of s 90 were not met, was the correct remedy the quashing of the defendant's conviction?

7 This is a Solicitor-General's reference. 3 The outcome is moot for the two drivers concerned. The Crown does not and cannot seek to reinstate their convictions. Neither participated in the hearing. Accordingly this Court appointed Mr Andru Isac as counsel to assist.

Statutory framework

8 Section 90 of the Act provides:

90 Suspension of licence or disqualification from driving under demerit points system

• (1) If, in any 2-year period, a person has accumulated a total of 100 or more demerit points, the Agency must give notice in writing advising the person that—

  • (a) the person has accumulated 100 or more demerit points; and

  • (b) the penalty specified in subsection ( 3) or (5) has been imposed and takes effect immediately.

• (2) The notice given under subsection (1) may be served by—

  • (a) the Agency; or

  • (b) a person approved for the purpose by the Agency; or

  • (c) an enforcement officer.

• (3) If the person holds a current driver licence, the effect of a notice given under subsection (1) is that the licence—

  • (a) is suspended for a period of 3 months or, if longer than 3 months, the period calculated under section 90A; and

  • (b) remains of no effect when the period of suspension ends until the person applies to the Agency to have the licence reinstated and the Agency reinstates the licence.

• (4) A person whose driver licence has been suspended under subsection (3) may not hold or obtain a driver licence while the suspension is in force.

• (5) If the person does not hold a current driver licence, the person is disqualified from holding or obtaining a driver licence for a period of 3 months or, if longer than 3 months, the period calculated under section 90A.

• (6) A suspension or disqualification under this section begins on the date specified in the notice, which may not be earlier than the date on which the notice is served on the person.

9 We note four things about this provision.

10 The first is that the provision uses the words “give” and “serve” in different places. For instance, by s 90(1) the Agency must “give” the notice (“advising” the driver of the 100-plus demerit points accumulation, that the statutory penalty, (suspension or disqualification) has been imposed, and that it takes effect immediately). That terminology is reflected in s 90(3). But s 90(2) refers to the notice being “served”. And s 90(6) also reflects that terminology.

11 Secondly, the notice may be “served” in three ways, under s 90(2): by the Agency; by a person approved for that purpose by the Agency; or by an enforcement officer. By virtue of s 2 of the Act, the last includes a constable. As we note later, it is distinctive that Parliament has given responsibility for giving the notice to the Agency, not to the police. The Agency may delegate that responsibility, pursuant to ss 73 and 74 of the Crown Entities Act 2004. 4 As noted already, it is common ground that it had not done so effectively in this case. 5 Defects in the original delegation have since been rectified.

12 Thirdly, we note the immediate legislative history. Prior to 19 December 2005, s 90 read as follows:

90 Suspension of licence or disqualification from driving under demerit points system

• (1) If, in any 2-year period, a total of 100 or more demerit points is recorded against a person, the Director must, by notice in writing given to that person, either—

  • (a) suspend that person's current driver licence for 3 months; or

  • (b) if the person does not hold a current licence on the date of the giving of the notice, disqualify the person from holding or obtaining a driver licence for 3 months,—

  • and the suspension or disqualification starts on the date the notice is given to that person.

• (2) A person whose driver licence has been suspended under subsection (1) is disqualified from holding or obtaining a driver licence while the suspension is in force.

It will be noted that the subsequent formula of the Agency “giving” notice in writing was there then, but with the specific words “given to that person” — ie the driver. So it was for the Agency to give the notice to the driver. It was this version of s 90 that this Court considered in Henderson v Director of Land Transport New Zealand. 6

13 Then from 19 December 2005 to 9 May 2011 the provision read:

90 Suspension of licence or disqualification from driving under demerit points system

• (1) If, in any 2-year period, a total of 100 or more demerit points have effect against a person, the [Agency] must, by notice in writing given to that person, either —

  • (a) suspend that person's current driver licence for 3 months; or

  • (b) if the person does not hold a current licence on the date of the giving of the notice, disqualify the person from holding or obtaining a driver licence for 3 months.

• (2) If the [Agency] has been unsuccessful in giving notice to a person under subsection (1), an enforcement officer may, by notice in writing given to that person, either —

  • (a) suspend that person's current driver licence for 3 months; or

• (b) if the person does not hold a current driver licence on the date of the giving of the notice, disqualify the person from holding or obtaining a driver licence for 3 months.

• (3) A suspension or disqualification under subsection (1) or subjection (2) starts on the date the notice is given to the person.

• (4) A person whose driver licence has been suspended under subsection (1) or subsection (2) may not hold or obtain a driver licence while the suspension is in force.

14 This repeated the formula of the Agency having the duty to give notice in writing to the driver. But it then enabled an enforcement officer to perform that duty where the Agency had been unsuccessful in giving notice. As Williams J noted: 7

In those earlier iterations “give notice” referred to the physical act of communicating to the driver, in written form, the information required by s 90(1).

15 Section 90 was then amended to its present form, with effect from 10 May 2011. The rationale for...