Demerit point suspension notices must be properly served

Monday, December 26, 2016

If there is anyone out there who was served with a demerit point suspension notice by the police prior to 10 December 2015 and was subsequently charged with driving whilst suspended, then I have some good news for you. The latest Court of Appeal decision regarding the service of demerit point suspension notices has confirmed that that if the requirements of section 90 of the Land Transport Act 1998 (‘the Act’) have not been met, then the proper remedy is to quash a defendant’s conviction for driving whilst suspended.

Section 90 of the Act provides:

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

(1) If, in any two-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 three months or, if longer than three 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 three months or, if longer than thee 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.

What happens in practice is that a police officer checking the licence of a driver who has accrued 100 or more demerit points within a two-year period would be alerted by electronic notification by the New Zealand Transport Agency ("the NZTA"). The police are automatically requested to issue a demerit point suspension notice on the NZTA's behalf, which results in a standard paper notice being completed and given to the driver.

The problem was that the delegations given by the NZTA to the police to perform the NZTA’s notification duty were defective. However, on 9 December 2015 the chief executive of the Ministry of Transport created a fresh sub-delegation of power to police and corrected this, which meant that any police suspension notices issued from 10 December 2015 onwards are kosher.

The Court of Appeal held that as the notices given prior to 10 December 2015 were defective, the convictions for driving whilst suspended, where notices had been served by the police before that date, should be set aside. The error was not one of “process or form, rather than substance”. It related to the power to the 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 NZTA had given notice to it for service purposes. The learned justices concluded that due to the fact that the wrong authority had generated the notice, this rendered the demerit point suspension notice a nullity and the NZTA had failed to give notice to the driver of his or her suspension at all.

Not surprisingly, the New Zealand Police have advised me that before they withdraw such charges which are currently before the court, they are waiting to see whether the SolicitorGeneral decides to appeal this decision to the Supreme Court. So watch this space!

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