Tahau v New Zealand Police - [2025] NZCA 278

CRIMINAL LAW — contravention of specified breath or blood-alcohol limit — special reasons relating to the offence — miscarriage of justice — Criminal Procedure Act 2011, s 246 — Land Transport Act 1998, ss 56, 81 and 85 

The appellants were each convicted of driving with excess breath or blood-alcohol.  For Mr Keepa it was his thirteenth such conviction, for Ms Tahau it was her sixth, and for Mr Piripi it was his fourth.  Section 56(4) of the Land Transport Act 1998 (LTA) requires a person convicted of a third or subsequent drink driving offence to be disqualified for more than a year.  Despite that, the District Court Judge applied s 81 of the LTA to treat each of the appellants as first offenders based on a time gap of over ten years since their last drink driving convictions.  She considered that a time gap was a “special reason relating to the offence” for the purposes of s 81.  As a result, she did not impose the mandatory disqualification period. 

The Police then brought an appeal against sentence to the High Court under s 246 of the Criminal Procedure Act 2011 (CPA).  The High Court rejected the Police’s principal submission that a gap in offending was not, as a matter of law, a special reason relating to the offence under s 81, but held that the invocation of s 81 was not justified on the facts.  The District Court orders were thus set aside, and the appellants were each disqualified for one year and one day.   

By the time the High Court issued its judgment, the District Court’s disqualification orders had expired. 

The appellants applied for leave to appeal. 

Did the District Court Judge purport to apply s 81 of the LTA in Ms Tahau’s case?
Held:  Yes

Despite submissions from Ms Tahau to the contrary, the Court considered that the disqualification order imposed on her in the District Court did not involve any backdating under s 85 of the LTA.  

On the assumption that backdating had occurred, did the District Court Judge err in backdating Ms Tahau’s disqualification?  
Held:  Yes 

Although unnecessary to decide, the Court would have considered it a misuse of the s 85 power to backdate Ms Tahau’s disqualification order for reasons relating to her general personal circumstances.  There had to be a rational connection between the circumstances the defendant was relying on, and the backdating. 

As a further aside, the Court considered that it also seemed wrong to use s 85 for the purpose of allowing a defendant disqualified under s 56 to apply immediately for a limited licence. 

Did the High Court have jurisdiction to hear the Police’s appeals?
Held: Yes

Contrary to the submissions of Ms Tahau and Mr Keepa, the Court considered that the Police’s appeals were properly brought under s 246 of the CPA.  That was because an appeal against a disqualification order was an appeal against a sentence that was not fixed by law. 

Is a temporal gap between qualifying offences capable of amounting to a special reason relating to the offence for the purposes of s 81 of the LTA?  
Held:  No 

Noting the conflicting authorities on the point, the Court began its analysis of s 81 by stating that no matter how special the reasons, if they relate to the offender, as opposed to the “offence”, they will not qualify.  The distinction between “offence” and offender could not be rendered mere surplusage.  The Court observed that previous convictions are, under general sentencing principles, regarded as a personal factor relating to the offender and that to displace that general principle it would be necessary for the appellants to prove that their previous convictions for drink driving were an element of their charges.  The Court, however, held that previous convictions were, in the context of s 56, relevant only to the penalty for the subsequent offending, and did not form part of its actus reus.   

The Court held, therefore, that a gap in offending was not, as a matter of law, capable of being a special reason relating to the offence. 

Does the imposition of a second longer disqualification period for the same offence after the first has expired constitute a miscarriage of justice?  
Held:  No 

The Court considered that the High Court’s imposition on appeal of a second longer disqualification period for the same offence, after the first period had expired, did not constitute a miscarriage of justice.  In particular, the Court reasoned that no issue of double punishment arose, and that any prejudice arising was an inherent part of the mandatory disqualification.  

The Court granted the appellants leave, but dismissed their appeals, and confirmed the disqualification orders of the High Court which would resume from midnight on 27 June 2025.