B v Police HC Christchurch CRI 2008 409 136
[2008] NZHC 1545
•2 October 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2008 409 136
B
Appellant
v
POLICE
Respondent
Hearing: 2 October 2008
Appearances: B J Dawson for Appellant
D L Elsmore and K J Basire for Respondent
Judgment: 2 October 2008
ORAL JUDGMENT OF CHISHOLM J
[1] On 14 May 2008 two Justices of the Peace concluded that a charge against the appellant of operating a vehicle carelessly had been proved. He was convicted and ordered to pay a fine of $250 and Court costs of $130. There was no order for disqualification. He now appeals against conviction.
[2] This appeal raises the narrow issue whether the Justices were entitled to enter a conviction. Essentially Mr Dawson’s argument is that in terms of s2 of the Land Transport Act 1998 the offence of careless driving faced by the appellant was an “infringement offence”. Under those circumstances, he submitted, s78A of the
Summary Proceedings Act 1957 directs the Court not to enter a conviction. All the
B V POLICE HC CHCH CRI 2008 409 136 2 October 2008
Court can do is to order payment of a fine or costs or make such other order that it may be authorised to make.
[3] Mr Dawson developed his argument by reference to the legislation, which I will consider in a moment. He also relied on information that had been supplied by the police in response to his request under the Official Information Act 1982. On the face of this information Mr Dawson had reached the conclusion that there had in the past been a huge number of prosecutions for careless driving under the infringement offence procedure.
[4] For the respondent Ms Basire challenged Mr Dawson’s interpretation of the relevant statutory provisions. She also provided an email which purports to clarify the information provided by the police. The thrust of the email is that it has been misinterpreted and that, contrary to Mr Dawson’s understanding, careless driving offences have not been processed under the infringement offence procedure.
[5] Regardless of the meaning of the information supplied by the police, this appeal revolves around the interpretation of the relevant statutory provisions. The starting point is that the appellant was charged with careless driving under s37(1) of the Land Transport Act. The maximum penalty for that offence is a fine not exceeding $3,000 and disqualification. The issue is whether that offence is an infringement offence.
[6] Section 2 of the Land Transport Act defines “infringement offence” as follows:
“infringement offence means— (a) a moving vehicle offence: (b) an overloading offence:
[(ba) an offence against this Act concerning logbooks that is committed by a transport service driver:]
(c) an infringement offence specified in the Schedule 2 of the Transport Act 1962:
[(ca) a toll offence:]
(d) any other offence against this Act or any other enactment that is specified as an infringement offence against this Act (other than an offence that carries a penalty of imprisonment or mandatory disqualification from holding or obtaining a driver licence)”.
It is common ground that (a) to (ca) do not apply. Paragraph (d) is the focal component of the definition.
[7] In support of his interpretation Mr Dawson submitted that the requirement in paragraph (d) that the offence be “specified as an infringement offence against this Act” relates only to offences under any other enactment and not to offences under the Land Transport Act. He noted that no offences were specified as infringement offences against the Land Transport Act and argued that it is only possible to make sense of the words in brackets (if they make any sense at all) by adopting the interpretation he advocated. On Mr Dawson’s interpretation there would be 21 offences under the Land Transport Act, including careless driving, that would qualify as infringement offences.
[8] In response Ms Basire argued that paragraph (d) should be read as it stands. In other words, before paragraph (d) applies to an offence, that offence must be specified as an infringement offence under either the Land Transport Act or under another enactment. She submitted that the infringement offence procedure is designed for fixed penalty offences and that the statutory procedure would be unworkable in the case of offences, such as careless driving, where there was only a maximum penalty, not a fixed penalty. Ms Basire said that even though there were no infringement offences specified under the Land Transport Act at the moment, paragraph (d) contemplated the possibility of such offences being added in the future.
[9] It is perfectly true that paragraph (d) can be read in both ways that have been advocated and that on either interpretation the words in brackets appear to be redundant. However, once the text and purpose of the infringement offence process is taken into account it becomes clear that Ms Basire is right.
[10] The infringement offence process is described in s138 et seq. Of particular significance is s139(4)(a) which provides:
“(4) Every infringement notice must be in the prescribed form and must inform the person to whom it is issued that:
(a) no proceedings in respect of the infringement offence will be taken if the infringement fee (including any towage fees) is paid, within 28 days after the date of issue of the notice, to the enforcement authority at the address shown in the notice; …”.
Given that careless driving does not specify an infringement fee, it would be impossible for the process contemplated by this subsection to operate. There would be no infringement fee in the notice and no ability to on the part of the offender to avoid further action by making payment.
[11] It follows that, despite the interesting issues that have been raised by Mr
Dawson, this appeal cannot succeed. It is dismissed. The conviction stands.
Solicitors: Community Law Canterbury, Christchurch
Crown Solicitor, Christchurch
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