Ciurlionis v Auckland Transport
[2017] NZHC 780
•27 April 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2017-404-000052 [2017] NZHC 780
BETWEEN EDWARD WILLIAM JOHN
CIURLIONIS Appellant
AND
AUCKLAND TRANSPORT Respondent
Hearing: 26 April 2017 Appearances:
Appellant in person
KC England for RespondentJudgment:
27 April 2017
JUDGMENT OF DOWNS J
This judgment was delivered by me on Thursday, 27 April 2017 at 3 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
KC England, Auckland.
Copy to: Appellant
CIURLIONIS v AUCKLAND TRANSPORT [2017] NZHC 780 [27 April 2017]
The issue
[1] Mr Ciurlionis applies for leave to bring a second appeal. The proposed appeal concerns the validity of a fine imposed for failing to affix a current licence to a parked car.1 The Court must refuse leave unless the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.2
Background
[2] The facts are not difficult. On the morning of 11 June 2015 a parking warden encountered a Honda Accord parked in Bute Road in Browns Bay. Its licence had expired in February that year. The warden issued the standard fine of $200. On
29 June 2015 Mr Ciurlionis wrote to Auckland Transport contesting the fine. The matter went to court on 8 December 2015.3
[3] The Justices of the Peace referred to the letter Mr Ciurlionis sent to Auckland Transport. In the letter, Mr Ciurlionis referred to the Honda as “my car” and admitted parking it on Bute Street. The Justices found the charge proved, describing the case as “straightforward”. After characterising Mr Ciurlionis’ arguments as meritless, their Worships ordered Mr Ciurlionis to pay $500 and Court costs of $30.
[4] Mr Ciurlionis appealed. He contended the decision was wrong and the
Justices biased. Judge Maude disagreed. His Honour dismissed the appeal on 4 July
2016.4
Grounds of appeal
[5] Mr Ciurlionis proposed grounds of appeal reduce to three:
(a) Judge Maude incorrectly referred to r 77(1)(b) of the Land Transport
(Motor Vehicle Registration and Licensing) Regulations 2011 (the
Regulations). Mr Ciurlionis was charged under subs (2)(b).
1 Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011, r 77(2)(b).
2 Criminal Procedure Act 2011, s 237.
3 Auckland Transport v Ciurlionis [2015] NZDC 25551.
4 Ciurlionis v Auckland Transport [2016] NZDC 5446.
(b)The Judge relied on strict liability which only applies to the registered owner of the vehicle or the person in charge of the vehicle at the time of the offence. Mr Ciurlionis was neither.
(c) The offence under r 77 of the Regulations required the prosecution to prove the vehicle lacked both a registration plate and a current licence. Auckland Transport failed to do so.
[6] As counsel for Auckland Transport observes, only the third of these grounds was raised before Judge Maude.
Application filed out of time
[7] There is a preliminary issue. The notice of application for leave to appeal should have been filed within 20 working days after the date of Judge Maude’s decision.5 Or, 1 August 2016. Mr Ciurlionis’ appeal was commenced in the High Court on 21 February 2017.
[8] Mr Ciurlionis, who is self-represented, has explained the delay. The District Court did not notify the parties of Judge Maude’s judgment until 24 November 2016. Mr Ciurlionis filed a notice of appeal on 29 November 2016—but in the District Court. On 21 February 2017 Mr Ciurlionis enquired at the High Court as to the state of the appeal. He was advised that court had not received any appeal documents from the District Court. On the same day, Mr Ciurlionis produced a photocopy of his notice of appeal to the High Court.
[9] I am satisfied the Court should exercise its discretion to extend time.
Should leave be granted?
[10] Mr Ciurlionis must show his case has general or public importance or that he has suffered a miscarriage of justice.
5 Criminal Procedure Act 2011, s 239.
[11] It is convenient to start with the third proposed ground of appeal. Mr Ciurlionis contends the prosecution had to prove beyond reasonable the absence of a registration plate and a current licence. He draws particular attention to the “and” in r 77(2)(b):
A person commits a stationary vehicle offence if the person operates a motor vehicle in contravention of section 242(1) of the Act by causing or permitting it to be on a road or driven on a road if the motor vehicle—
…
(b) does not have affixed to it and displayed in the manner prescribed by these regulations—
(i) the registration plates issued for it; and
(ii) a current licence issued for it and appropriate for its use. (Emphasis added)
[12] He submits Auckland Transport failed to prove what he describes as the two elements of the offence. This argument is unsustainable. The provision does not create two elements for the prosecution to prove beyond reasonable doubt. Rather, it creates two obligations: the first to affix a registration plate, and a second to display a current licence. Failure to observe either gives rise to an offence.
[13] Mr Ciurlionis’ first ground of appeal identifies an error on the part of the Judge. The Judge referred to and reproduced the wrong section. His Honour referred to r 77(1) of the Regulations which creates the offence of driving or using a motor vehicle on a road without a valid registration plate and current licence. The correct provision in Mr Ciurlionis’ case was r 77(2)—the stationary vehicle offence. However, the Judge’s error has no wider or public importance. In fact, it has no application beyond this case.
[14] To obtain leave, Mr Ciurlionis must show the error occasioned a miscarriage of justice. It did not. The error was relevant only to Mr Ciurlionis’ argument Auckland Transport was required to prove the absence of both a registration plate and a current licence. Regulation 77(1) is perfectly symmetrical with r 77(2) in terms of what must be affixed and displayed. The Judge rejected Mr Ciurlionis’ argument for the same reasons I have given. The error did not affect the judgment.
[15] Now Mr Ciurlionis’ final ground of appeal. This is essentially a question of fact. It is accepted Mr Ciurlionis is not the registered owner of the Honda; his wife is. The question is whether he caused or committed the Honda to be parked on the road in the unlicensed state it was found in on 11 June 2015.6 Being a question of fact, this ground of appeal does not raise any issue of wider or public importance. Again, the question is whether a miscarriage of justice has occurred or may occur if
leave to appeal is declined.
[16] I am satisfied, essentially for the reasons given by Ms England, no miscarriage of justice has occurred. It was proved on the evidence before the Justices, Mr Ciurlionis caused or permitted the Honda to be parked on Bute Road without a current licence:
(a) Mr Ciurlionis referred to the car as his in his correspondence to
Auckland Transport;
(b)Mr Ciurlionis said he parked it on the road on 8 June 2015 after attending to various repairs and obtaining a warrant of fitness;
(c) Mr Ciurlionis also said he had not been using the car so had not
“bothered to get the rego”;
(d) Mr Ciurlionis signed a “Request for a court hearing”. And in so
doing, he ticked the box to indicate he was the driver;
[17] Mr Ciurlionis did not give evidence at the hearing. So, the points above went uncontested. In any event, Mr Ciurlionis volunteered in oral argument he did write the letter. And to answer his question posed at the hearing: yes, the prosecution could rely on it to establish the charge. It is not arguable the Justices erred.7
[18] In oral argument, Mr Ciurlionis said it was “slightly ridiculous” he had been
found guilty when the registered owner (his wife), could have moved the car in the
6 Pursuant to s 133A of the Land Transport Act 1998, proceedings for a stationary vehicle offence may be taken against any person who allegedly committed the offence, the registered owner of the vehicle, or any person lawfully entitled to possession at the time of the offending.
7 Criminal Procedure Act 2011, s 240 citing to s 232 of the same Act.
three-day period before it was ticketed. This argument wrongly presupposes only the registered owner can be liable. The regulation is broader. In law, Mr Ciurlionis could be—and was—liable.
[19] I thank Mr Ciurlionis for his courteousness at the hearing. But leave must be declined.
……………………………..
Downs J
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