IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CRI [2015] NZHC Appellant. DENNIS MAX HAUNUI Respondent.

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1 IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CRI [2015] NZHC 2456 BETWEEN AND NEW ZEALAND POLICE Appellant DENNIS MAX HAUNUI Respondent CRI BETWEEN AND PATRICK MILLER Appellant NEW ZEALAND POLICE Respondent Hearing: 22 September 2015 Counsel: D R LaHood for Appellant (CRI ), and for Respondent (CRI ) D A Ewen for Respondent (CRI ), and for Appellant (CRI ) Judgment: 7 October 2015 JUDGMENT OF WILLIAMS J Introduction [1] These appeals were consolidated and heard together because they raise the same question of law. Both Mr Miller and Mr Haunui had, it was alleged by the police, accumulated 100 demerit points or more under the Land Transport Act 1989 (LTA). The police served demerit point suspension notices. The notices must be served before they are effective. Both individuals were subsequently charged with driving while suspended. NEW ZEALAND POLICE v DENNIS MAX HAUNUI [2015] NZHC 2456 [7 October 2015]

2 [2] Mr Miller and Mr Haunui defended their respective charges on the ground that the suspension notices were invalid. Mr Miller advanced the further but related ground that the evidence adduced by the police to prove the charge was inadmissible hearsay. Mr Miller s defence was unsuccessful and now he appeals against his conviction. Mr Haunui was successful and the police seek leave to appeal on a question of law against his acquittal. Background [3] At issue in both appeals is the meaning of s 90 of the LTA. Section 90 provides as follows: 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) (b) the person has accumulated 100 or more demerit points; and 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) (b) (c) the Agency; or a person approved for the purpose by the Agency; or 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

3 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. [4] The Land Transport Agency s (Agency) task is thus to give notice in writing. That notice must advise the driver that she or he (a) has accumulated 100 or more demerit points; and (b) the consequential suspension 1, or disqualification 2 will take effect immediately. [5] The suspension begins on the date specified in the notice, but that date cannot be earlier than the date on which the notice is served on the driver. The notice may be served by an enforcement officer (as it was in this case), the Agency itself, or a person specifically approved by the Agency for the purposes of effecting service. [6] These appeals primarily relate to the relationship between the Agency s giving of notice advising the driver of the matters covered in s 90(1), and the enforcement officer s service of it on the driver. That relationship is the focus because of the modern information systems and technology utilised by the Agency and the police to discharge their respective giving and serving functions under the Act. [7] As the position stands currently, the Agency enters information in relation to demerit points accumulated by drivers into its database and the Agency maintains an interface between its data management system and the independently run police National Intelligence Application (NIA) database. Through this interface, the NIA receives automatic alerts for all drivers recorded in the Agency database as having accumulated 100 or more demerit points. These show up in the NIA as an alert on the system wanted for service of a demerit point suspension. 1 2 If a licensed driver, s 90(3). If not currently a licensed driver, s 90(5).

4 [8] The police then have an automatic number plate recognition (ANPR) alert system which, as I understand it, operates from certain specialised vehicles. These ANPR vehicles are linked to the NIA database. These vehicles automatically recognise the number plates of passing cars, particularly those whose owners are liable to service of a demerit point suspension notice. It is through this technology that Mr Miller s and Mr Haunui s vehicles were picked up as owned by drivers liable to service of such notices. [9] The notice itself is a police generated standard form (POL 1006). It is for the most part a template based on s 90 with blanks to be filled in by the serving officer. The details of the recipient driver, date, place and time of service and the officer who effected service are all handwritten into those blank spaces. This was done in the case of both Mr Miller and Mr Haunui by Constable Murrell and Constable Ross respectively. [10] Relevant excerpts from the template section of the form are as follows: New Zealand Transport Agency records indicate that you have accumulated 100 or more demerit points within a two-year period and that you are wanted for service of a driver licence suspension notice. Under the provisions of Section 90 of the Land Transport Act 1998 (Tick appropriate box) (a) 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. (b) Because you do not hold a driver licence you are disqualified from holding or obtaining a driver licence for a period of three (3) months starting from the time this notice is given to you. You are required under section 30 of the Land Transport Act 1998 to surrender your driver licence to the officer serving this notice. [11] In both of the appeals before me, box (a) is ticked in pen to indicate the relevant consequence from the time this notice is given to you (i.e. the driver). And in both cases, the drivers, having been served, were subsequently stopped while driving during the currency of the suspension period.

5 Decisions appeal from [12] In the case of Mr Haunui, Judge Callaghan in the District Court in Christchurch concluded that the POL 1006 notice was invalid. His key reasoning was as follows: 3 In my assessment s 90(1) is quite clear that the Agency has to be responsible for giving the notice. However, another person or Agency may serve it. This is evidenced from the fact that s 90(2) provides that the notice that is given can be served by another person. Importantly, I read the words advising the person to mean that as between the Agency and the subject person there must be in existence, a notice to that subject person, and not as is suggested by the evidence here to a third party namely, the Police. Take for example if the Agency engaged a process server to serve the notice including the details of suspension (which used to happen regularly), the Agency could not actually delegate to the process server the power to actually issue or generate the notice. So I ask myself in the absence of specific authority, how can it be so for the Police? That is in effect what occurred here. The notice was prepared by Constable Ross, not the Agency and was prepared from information contained on the NIA system. The Agency had given notice to the Police but I cannot see how that can be said to be giving notice in writing advising the person that they have in fact accumulated the demerit points and are subject to the penalties set out in ss 90(3) or (5). In my assessment there has been no notice prepared by the Agency in terms of s 90(1) advising Mr Haunui. There has been a notice served upon him but that notice was not a notice from the Agency. [13] In the case of Mr Miller, Judge Mill in the District Court in Wellington concluded that the notice was valid. Judge Mill dealt with Mr Miller s case in two parts. [14] In a reserved judgment dated 25 February, the Judge found that the Agency could comply with s 90(1) by giving the necessary notice to an enforcement officer (whose task it then would be to serve it) and the Agency had done this. 4 The Judge concluded further that even if that was wrong, the Agency had validly delegated the giving of notice to the police, 5 and the police should be given an opportunity to prove such delegation in evidence should they wish to do so. 6 The matter was New Zealand Police v Haunui [2015] NZDC 9975 at [14]-[15]. New Zealand Police v Miller DC Wellington CRI , 25 February At [23]-[25]. At [34].

6 adjourned accordingly for the police to marshal such evidence as they considered necessary. [15] It then came back before Judge Mill in June 2015 and he confirmed his earlier view of the result in a second reserved decision dated 16 July By this time it had become clear that no effective delegation had been given by the Agency to the police authorising the police to give notice to the driver. The question of delegation was therefore set to one side and the decision focused solely and in more detail on whether the Agency had validly given notice. In that respect, the Judge concluded: 7 However, as the Agency has directed Constable Murrell to serve a DPSN [Demerit Point Suspension Notice], a specific notice that is created by combining the electronic information provided to the APNR vehicle and a POL 1006 template form, in my view, for the purposes of s 90(1) the POL 1006 template form can be treated as being given to Constable Murrell by the Agency. 1 This is a more efficient way to structure a suspension notice regime from an operational perspective in that Constable Murrell, on discovering that Mr Miller was driving with 100 or more demerit points, did not have to physically retrieve the POL 1006 template from the Agency which would be the ordinary sense of the word give. The impracticality of both preventing Mr Miller from driving further and collecting the POL 1006 form is axiomatic. Therefore, both the electronic alert in Constable Murrell s APNR vehicle and the POL 1006 template form need to be read together to determine whether there has been compliance with s 90(1) or using the language of the LTA, whether the Agency has given notice in writing advising the person that they have accumulated 100 or more demerit points, that a penalty in subsection 90(3) or (5) will apply and that a penalty will take effect immediately. Returning to the four requisite elements identified 2, both the electronic notification and the POL 1006 form are in writing. The first paragraph of the POL 1006 template form expressly states that you, being Mr Miller as the intended recipient of the notice, have accumulated 100 or more demerit points within a two year period. This satisfies the second element or more technically, s 90(1)(a). The second element could also be said to be satisfied impliedly from the electronic notification as Ms Handcock seemed to be suggesting. In my view, the third element is satisfied when reading the second paragraph of the POL 1006 template form in conjunction with the electronic information given by the Agency. After the words Under the provisions of Section 90 of the Land Transport Act 1998 there are two paragraphs adjacent to tick-boxes. Additionally, the tick boxes are also captioned by the 7 New Zealand Police v Miller [2015] NZDC 13044, at [24]-[27]. (I have included the Judge s own footnotes as they are relevant).

7 words Tick appropriate box indicating that only one applies. An inference can be drawn that the electronic information must have included whether or not Mr Miller had a driver licence otherwise how would Constable Murrell know which box to tick. Footnotes: 1. I do not overlook the fact that Constable Murrell already had possession of the POL 1006 template. 2. See [judgment] paras [13] and [14]. [16] When Judge Callaghan issued his decision in relation to Mr Haunui, he was aware of the first of Judge Mill s two judgments and expressly disagreed with it, giving reasons. When Judge Mill wrote his second decision, he was then aware of Judge Callaghan s view, and Judge Mill rejected that reasoning. It is this difference of opinion that falls to be resolved in the appeals before me. [17] As already noted, the question of delegation figured prominently in Mr Ewen s initial argument before Judge Mill but that question has now fallen away. As the matter was argued, two questions arose for consideration: (a) Has the Agency validly given notice under s 90(1)? (b) Have the police proved with admissible evidence that notice was given? [18] My answer to the first question makes answering the second question not just unnecessary, but irrelevant. I nonetheless address it briefly. Submissions [19] Because the two appeals before me are (in effect) cross-appeals in substance, I will summarise the Crown perspective first before turning to that of Mr Miller and Mr Haunui. [20] For the police, Mr LaHood followed Judge Mill s reasoning: the notice had been validly given and served in accordance with the requirements of s 90. Those requirements were:

8 (a) The Agency must give notice in writing: Mr LaHood submitted that notice was given by a combination of the information in the police NIA and the details provided by Constables Murrell and Ross as they filled out the POL 1006 form. The information in the NIA, Mr LaHood said, was in writing albeit electronically so; and POL 1006 is addressed directly to the driver you. (b) The notice must advise of demerit points accumulation and applicable penalty: Mr LaHood submitted that the POL 1006 template wording is directed at the driver ( you ) and enforcement officers each ticked the appropriate box. (c) Immediate effect of penalty: Once again, Mr LaHood submitted, POL 1006 stated that suspension would effect immediately. Notice is thus given to the recipient thereby. [21] Mr LaHood submitted that s 90 does not require that the Agency physically give notice to the driver. In fact that had been the requirement prior to 2011 in which s 90(1) provided the Agency must, by notice in writing given to that person, [22] By the terms of s 90(2) of the pre-2011 regime, an enforcement officer could give notice to the driver as an alternative procedure, but only if the Agency had been unsuccessful in its own attempts to do so. The current legislation dispensed with this multiple attempt formulation. Now, Mr LaHood said, notice was given by the Agency but served by (among others) an enforcement officer. The giving of notice therefore did not require an actual transaction with the driver. Giving notice and serving it were intended by the new legislation to be different functions. [23] For Mr Miller (and Mr Haunui in support) 8, Mr Ewen submitted that this analysis was incorrect. He supported the reasoning of Judge Callaghan the Agency must generate the notice itself and had not done so. It was an insufficient discharge of the Agency s responsibilities to simply provide the data to the police so that a police notice could be generated and then served on the correct recipient. 8 Counsel for Mr Haunui, Mr Rollo, adopted the submissions of Mr Ewen for Mr Haunui.

9 [24] Mr Ewen submitted that in the absence of an effective delegation 9 by the Agency to the police of the requirement to give notice (as I have said, the police now concede that there had been no lawful delegation), the notice had to be generated by the Agency itself and these notices were not. [25] The crucial point, Mr Ewen submitted, was that giving notice and serving notice were different acts and without a lawful delegation to the police to effect the giving of notice, the police could serve but not give notice. [26] As I have said, Mr Ewen also argued that the police had failed to prove the original giving of notice by the Agency by providing evidence of the Agency s database entry for the relevant driver. The notice written out by the respective enforcement officers were hearsay evidence of those entries and therefore inadmissible. It is strictly unnecessary for me to resolve that issue and the point is a particularly oblique one, but I will address it briefly at the end of this judgment. Analysis [27] In my view, the appeal is resolvable on a relatively narrow point. [28] Section 90 of the Act has been the subject of significant amendment in recent years. Prior to 18 December 2005 the section provided: 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. 9 Pursuant to ss 73 and 74 of the Crown Entities Act 2004.

10 [29] Between 19 December 2005 and 9 May 2011 the section provided: 10 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 92) may not hold or obtain a driver licence while the suspension is in force.] [30] The section now provides for that same process in the terms I have already set out earlier in this judgment. [31] Under the first iteration of s 90, it was the director s responsibility to give the suspension notice to the driver. There was a power to make express delegations under s 205 of the LTA, but the first responsibility was the Director s. Under the second iteration, responsibility could be transferred to an enforcement officer if the Agency (by this time) had failed in its attempts to do so. 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). [32] The current provision splits the giving of notice and service of it on the driver. Service can be effected by the Agency if it chooses to do so; by a person 10 From 31 July 2008 Agency replaced the word Director.

11 approved by the Agency; or by an enforcement officer. As Mr LaHood submitted, this shift in wording must mean that the Agency is no longer solely responsible for physically delivering the suspension notice to the driver. And that must in turn mean that giving notice no longer means effecting such physical delivery. [33] Taking these changes to their logical conclusion, giving notice must therefore mean giving notice to members of one or other of the three classes authorised to serve it. Thus far, I agree with Mr LaHood. [34] But the notice must be in writing advising the person (i.e. the driver). That means the notice given by the Agency to the party effecting service must itself advise the driver of the matters set out in s 90(1). The only way for the Agency to avoid that responsibility is to lawfully delegate the giving of notice pursuant to ss 73 and 74 of the Crown Entities Act. In other words, it is the Agency s job to compose the advice and the enforcement officer s job to ensure it is handed to the driver. [35] It follows that I do not agree with Judge Mill that the Agency s responsibility under s 90(1) is discharged when an enforcement officer fills in the details of the notice s addressee on a template form not created by the Agency. The Agency has failed thereby to advise the driver. Rather, I agree with Mr Ewen, that it is the enforcement officer who has performed the task of advising. [36] The Agency NIA/ANPR transfer of data containing (according to the evidence of Constable Murrell) a list of names and demerit points totals cannot, in my view, amount to notice advising the driver of all of the required matters in s 90(1). It gives notice of the name of the person and their demerit points total. But it is not notice of the penalty specified in subsection (3) or (5) of s 90. Nor is it notice that the penalty will take effect immediately. In these appeals, the enforcement officer gave those details, not the Agency. Of course the Constables could have given notice of all these maters if there had been a valid delegation of that function, but, as I have said, it is common ground that there had not.

12 [37] Judge Mill sought to rely in the Court of Appeal authority in Henderson v Director of Land Transport New Zealand 11 in support of the proposition that the POL 1006 form and NIA information could be taken as a whole. But that case has no application to these facts: it related to s 90 in its pre-2011 form and did not address the question of whether a composite notice with aspects of the content required by s 90 provided exclusively by the police, could comply with s 90(1). [38] Mr LaHood referred me to the statutory purpose including to promote safe road user behaviour and vehicle safety. 12 He submitted the permissive interpretation he favoured was most consistent with that purpose. [39] Mr LaHood also pointed to the supporting Regulatory Impact Statement (RIS) in relation to the 2011 amendment to s 90. The RIS provided that the purposes of the amendments to s 90 were to: clarify some interpretations in the Act or the intent of the legislation; improve its operation or to enable it to operate as originally intended; remove inconsistencies. [40] The RIS noted that changes were necessary because the legislation governing service of demerit points suspensions was unduly prescriptive in terms of allowing enforcement officer service only after the Agency has failed in effecting service. This meant, according to the RIS, where the police encountered a driver liable for suspension before the Agency had attempted to give notice, the police were powerless to give notice themselves. This needed fixing. [41] One must of course be cautious about utilising material prepared by officials when divining legislative intent, but even if I accepted that the RIS accurately reflects Parliament s objective, it is clear that the changes to s 90 were designed to deal with a specific shortcoming in the operation of s 90. It did not purport to adjust responsibility for preparing the advice comprising the notice. That responsibility remained with the Agency Henderson v Director of Land Transport New Zealand [2006] NZAR 629 (CA), at [60]. Land Transport Act 1998, Long title (a).

13 [42] What is more, the Act s overall objective is perfectly well served by the Agency executing a valid delegation of its function under s 90(1). If that seems a technical interpretation of s 90(1), it is one the Agency itself adopted after 2011 when it attempted to delegate the relevant function. The problem is that its numerous attempts at delegation were defective. [43] I conclude therefore that notice was invalidly given in the case both of Mr Miller and Mr Haunui. [44] As I have said, Mr Ewen also raised the admissibility of the evidence upon which the police relied to show that notice had been given. Mr Ewen argued that only evidence of the data entries held by the Agency itself was admissible on that point. The evidence of Constables Murrell and Ross about what they saw on the NIA/ANPR system was inadmissible hearsay, he argued. [45] I propose to deal with this question briefly. Mr Ewen made no challenge to the accuracy of the Agency s information regarding demerit points totals attributable to Mr Miller and Mr Haunui. His challenge was more technical: there was no direct evidence of the content of the notice the Agency gave to the police. [46] I agree with Mr LaHood that obvious and irresistible inferences were available for the Judges to draw on the evidence before them. In my view, the Constables were able to give evidence about the notices they received from their own NIA/ANPR system: not to establish the substantive truth of the content (i.e. that the demerit points tallies were accurate), but to establish what was conveyed in the notices. [47] Section 137(1) of the Evidence Act 2006 does the rest of the necessary work, in my view. It provides that in the absence of evidence to the contrary, a machine, device or technical process will be presumed to produce the evidence it is ordinarily designed to produce on the occasion in question when so asserted by a party. In this case, the NIA/ANPR system was designed to convey to the police, correctly, the information contained on the Agency database. There was no evidence to suggest this had not happened. It could therefore be inferred, in the absence of evidence to

14 the contrary, that the NIA/ANPR system had done on this occasion what it was designed to do. [48] There was therefore admissible evidence upon which the necessary inferences could be drawn about the content of the notice given by the Agency. [49] In light of my answer to the first question, Mr Miller s appeal must nonetheless be allowed accordingly. Mr Miller s conviction is set aside accordingly and an acquittal is entered. [50] The police application for leave to appeal in respect of Mr Haunui s acquittal is granted and that appeal is dismissed. Solicitors: Crown Solicitor s Office, Christchurch Williams J