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

CourtCourt of Appeal
Docket NumberCA663/2015
JudgeKós J
Judgment Date05 Sep 2016
JurisdictionNew Zealand
Neutral Citation[2016] NZCA 417

[2016] NZCA 417

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Wild, Cooper and K's JJ

CA663/2015

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

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

A N Isac and T Mijatov as Counsel assisting

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.

The issues were whether the police template form fulfilled the requirement of the Agency giving notice under s90(1) LTA; if not, whether s379 CPA deemed the notice valid when a driver was subsequently prosecuted for driving while his or her licence was suspended.

Held: The Solicitor-General's submission was not accepted. The legislation did not expressly anticipate that the giving of notice was done only when the driver fell into the Agency's net (for instance, when pulled over by a police officer). Section 90(1) anticipated that when 100 demerit points were accumulated, notice would then be given, and served.

The HC was correct that the Act distinguished between composition of the notice and its communication to the driver. The composition (giving) of the notice was and always had been the Agency's duty. The notice had to also be served, but that was now expressly delegated in s 90(2). It did not suffice, without delegation, for the Agency simply to “cause” the notice to be given by someone else, as a result of automated data sharing.

Finally, the 2011 amendments bypassed technicalities of service only to the extent of averting challenges to the efforts made by the Agency to serve the notice given. It did not alter the fact that it remained for the Agency to give the notice. Both before and after the amendment it lay within the power of the Agency also to delegate the giving of the notice. The only “technical difficulty” was that it attempted to do so, and got the delegation process wrong. That did not justify judicial subversion of the plain meaning of the statutory provision.

The HC was correct to conclude that the requirements of s90 LTA had not been met.

Section 379 CPA did not seem to have been referred to the HC Judge and was not considered. The Solicitor-General's submission on this issue was not accepted. The error in this case was not, as she put it, one of “process or form, rather than substance”. Rather, it related to the power to issue the notice in the first place. The notice was composed (or given) by the police. Absent effective delegation, they had no power to do so. Their power was confined to service once the Agency had given notice to it for service purposes.

That rendered the notice a nullity, rather than a “defect, irregularity, omission or want of form”. The defect was that the wrong authority generated the notice. The Agency had failed to give notice to the driver at all. That defect went beyond the sort of cases which might be saved by s379 CPA. It was of fundamental importance that notices issued by agents of the Executive, and intended to have effect under statutory provisions, emanated from the agency empowered by Parliament for the purpose.

The notice served by the police officer was a nullity.

JUDGMENT OF THE COURT

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.

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...

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