New Zealand Transport Agency v Minakshi [2017] NZDC 23413

Published 14 June 2018

Application to enter special plea of previous conviction — application to dismiss charge — whether special plea applies where a defendant has received an infringement notice — driving without an appropriate driver licence — driving without a P endorsement — double jeopardy — Uber — Criminal Procedure Act 2011, s 46 — Land Transport Act 1998, ss 30J, 31 & 79A. The defendants sought to enter a special plea under s 46 of the Criminal Procedure Act; they had received and paid fines following receipt of infringement notices issued on the same day that charges were filed for offending. Both the infringement notice and the charges were based on the same act of driving. The court was required to determine whether a special plea could be entered as the section related to a "previous conviction", specifically referenced a "charging document" and did not reference infringement notices. The court found that in order to raise a special plea three elements must be met, namely: 1. there is a common punishable act central to each charge; 2. the previous offence has reached the point of final adjudication and; 3. the defendant had been "convicted" of the same offence or any other offence arising from the same facts. The court found that the substance of the facts giving rise to the charge was different as the infringement notice related to operating a passenger service without a passenger service licence, whilst the charge related to the carriage of passengers without a P endorsement licence. As the legislative requirements that governed each offence were found to be distinct, the court found that the defendants had not been convicted of the same offence arising from the same facts, and the application to dismiss the charges could not succeed. Judgment Date: 16 October 2017.