New Zealand Police v Pomana [2018] NZDC 11873

Published 21 August 2018

Driving while suspended — default rural speed limit — permanent posted speed limit — Land Transport Act 1998 ss 32 and 95 — Land Transport Rule: Setting of Speed Limits 2017 — Alexander v Police [2012] NZHC 1686 — Meyer v Land Transport Safety Authority [1999] DCR 715. In 2017 the defendant drove his motor vehicle at 149km per hour on State Highway 1. The speed was checked by a Sergeant who stopped the defendant, issuing him with an infringement notice and a Notice of Mandatory Suspension of Driver Licence as he considered the defendant had driven at a speed exceeding the posted speed limit by more than 40 km per hour. A few weeks later the defendant was caught driving again; he stated that he thought his suspension had ended. As a result he was charged with driving while his licence was suspended. The defendant argued that, the part of the road that he was driving on was subject to a "default rural speed limit" rather than a "permanent posted speed limit", so while the police officer who issued him with notice for exceeding the "posted speed limit" in 2017 no doubt believed he was justified in doing so, he was not entitled to do so, and therefore the suspension was invalid. The two issues for the court to determine were: 1. Having regard to the status of the road, was there a lawful basis for the sergeant to issue the suspension notice?; and if not 2. does this provide a defence to the charge, in circumstances where the Sergeant believed on reasonable grounds that he was required to give the defendant a suspension notice? The starting point in analysing the issue was the provision under which the sergeant purported to give a valid suspension notice, s 95. Paragraph 95(1)(c)(i) relates to permanent posted speed limits where a suspension notice must be given where a driver exceeds the limit by over 40 km; para (ii) relates to default rural speed limits where a suspension notice must be given if the driver speeds in excess of 50 km over the limit. The court found that s 95(1)(c)(i) had to be satisfied in order for the notice to be valid. It was accepted by the prosecution that the default rural speed limit did apply. However, after analysis of both paras (i) and (ii) it was concluded that the default rural speed limit is a permanent speed limit for the purposes of the Act and s 95(1)(c)(i). Having found that the section of the road had a posted speed limit of 100km per hour, and that the defendant drove at a speed exceeding the applicable permanent posted speed limit by more than 40 km an hour, therefore there was a basis for the sergeant to give the defendant the suspension notice. The court further found that the sergeant believed on reasonable grounds that he was justified in handing the defendant the suspension notice and where there are reasonable grounds that a driver who does not exercise the rights of appeal in s 95, and drives within the proscribed period they are committing the offense of driving while suspended regardless of any retrospective finding of invalidity. The charge was found to be proved beyond reasonable doubt and the defendant was convicted. Judgment Date: 23 July 2018