D v Police HC Auckland Cri-2006-404-7

[2006] NZHC 840

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-404-07

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 July 2006

Counsel:        No appearance for Appellant

K E Hogan for Crown

Judgment:      20 July 2006

[ORAL] JUDGMENT OF BARAGWANATH J

Solicitors:

Crown Solicitor, Auckland

D V NEW ZEALAND POLICE HC AK CRI-2006-404-07  20 July 2006

[1]      The appellant Mr D   advised the Court at the time of filing his appeal of his inability to accept a fixture before the end of April or after the end of May because of the need to care for a sick relation overseas.   He advised the Crown that his mail would be forwarded to him but there is no appearance this morning by him or on his behalf.

[2]      Miss Hogan advised that the Crown would not oppose the enlargement of the hearing until a later date.

[3]      I have, however, concluded in the light of Miss Hogan’s helpful written and oral submissions that the appeal must in any event be allowed and proceed to deal with it.

[4]      The appeal is against the finding of Justices of the Peace that the appellant infringed Reg 4 of the Land Transport (Fines and Penalties) Regulations 1999 and thus s 40 of the Land Transport Act 1998 by failing to conform to r 2.3(1) of the Land Transport Rule 32013 (Tyres and Wheels) 2001 which under the heading:

2.3 General Safety Requirements for Tyres provides:

2.3(1)   Tyres on the same exhaust must be of the same size designation and construction and of the same tread pattern type …

Certain exceptions are immaterial.

[5]      The file is incomplete and does not  include the brief of evidence of the prosecution witness Mr Hornsby.  For present purposes I am prepared to infer that on

13  July 2005  he saw  the  appellant’s vehicle  fitted  with the  tyres shown  in the photograph (Exhibit 1) on its front axle, one being a “Triangle TR248” model and the other lacking that label, being a different type.  The witness gave evidence that the presence of mixed tyres affects the handling of the vehicle especially on wet roads or  when  cornering  or  braking  heavily,  because  each  tyre  has  a  different handling characteristic.   The result can be an uncontrolled skid, or other drastic consequences.   The witness deposed that the vehicle was being used as a small passenger service vehicle or a taxi.

[6]      It was established that the appellant’s vehicle was declined a certificate of fitness on 4 April 2005 because of wear on its left front tyre.  So the appellant went to  West  Auckland  Tyres,  which  did  not  have  matching  tyres;  he  then  went  to Allen Tyres and was quoted $150 for a matching new tyre.  It seems that he regarded the price as on the high side so went to a third tyre supplier, New Lynn & Tyres Repair Limited.

[7]      I am prepared to infer that he showed the staff member the Testing Station form recording the reason  for  failure  of the  warrant  and  sought  an  appropriate replacement tyre.   The staff member said that they had a matching (or perhaps an appropriate) tyre and he gave instructions for such tyre to be fitted.  That was done and the appellant paid the price recorded in the company’s invoice in respect of “brand new tyre 205/65/15…”.  He returned to the Vehicle Testing Station where the vehicle received its certificate of fitness.

[8]      The   alleged    infringement    occurred   just    over   three   months    later. The appellant  returned  to  the  New  Lynn  service  station  which  replaced  the previously supplied  tyre  free  of charge; the  appellant  paid  for  a  matching  tyre. The appellant said that he returned to the Testing Station and was told by a staff member that it should have checked that the tyres matched when he returned to received his certificate of fitness.

[9]      In their decision the Justices accepted that the appellant thought he had the correct tyres fitted.  They found that the appellant believed that it was the tyre shop’s responsibility to ensure that the two tyres were the same.  They determined that the law takes a different view and as the owner of the vehicle it was the appellant’s responsibility to ensure that the tyres matched.  Finding the case proved they ordered him to pay $150 and $30 costs.

[10]     For the Crown Miss Hogan cited the judgment of this Court delivered by Chisholm J Aldwell v Police HC Christchurch CRI 2006-409-011 28 April 2006, to support his submission that the offence is one of strict liability.  That case concerned a challenge to an infringement notice alleging breach of r 2.7(3) of Land Transport Rule: Vehicle Equipment 2004 in that the appellant operated the vehicle on a road

without ensuring that the exhaust was not noticeably and significantly louder than the vehicle’s original exhaust system.

[11]     I respectfully follow Chisholm J’s analysis that offences of the kind which he was  considering,  and  this  one,  constitute  the  type  of  public  welfare  regulatory offence that, imposed on the defendant an obligation of establishing that he had done everything a reasonably careful and competent driver could reasonably be expected to have done in the circumstances: Civil Aviation Department v MacKenzie [1983] NZLR 78, 85.

[12]     The appellant is also faced with s 25 of the Crimes Act 1961 which provides:

25  Ignorance of Law

The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.

[13]     If the case turned on the MacKenzie test I would find that the appellant had discharged the onus upon him.  While it seems that at the first service station he was told the need for the tyres to match, at the third station he was told that the station was providing the appropriate tyre and it proceeded to fit the tyre.  Moreover, when he went back to the Vehicle Testing Station he received a certificate of fitness.

[14]     Miss Hogan and I debated the question of the function of the Vehicle Testing Station, a matter not traversed in evidence.  The certificate of fitness form recording that the vehicle had passed all checks other than that of the left front tyre, bears on it the logo “LAND Transport Safety AUTHORITY”.  It is reasonable to infer that the Testing Station was acting as the delegate of the Authority.  That authority is vested with the Crown’s responsibility for discharging the public function of testing and certifying fitness.  The certificate of fitness which the appellant received was, in my view, a certificate to him, as well as to others, that the regulatory requirements had been satisfied.

[15]     There  remains  however,  the  clear  language  of  s 25  giving  effect  to  the long-standing principle stated in Brooms Legal Maxims 10th Edition, p180:

… every man is presumed to be cognisant of the statute law of this realm, and to construe it a right;  and if an individual infringed through ignorance, he must, never the less, abide by the consequences of his error:   it is not competent to him, to aver, in a Court of justice, that he has mistaken the law, this being a plea which no Court of justice is at liberty to receive …

The proposition was accurately and succinctly stated by the Justices.

[16]     In a thoughtful essay “Officially Induced Error of Law” (1995) 16 NZULR

403 Margaret Briggs argues in effect for an exception to s 25 where the citizen’s infringement results from an official assertion.  At pp 405-6 she argues:

The issue is not whether the mistake was unavoidable in a strict physical sense,  but  rather  whether  it  was  unavoidable  in  a  normative  sense. The assessment would depend upon whether the individual could fairly and reasonably be expected to have been more conscientious or dutiful.  Such an assessment would reflect the normative standpoint that the individual ought not to be blamed for making a good-faith mistake in reliance on the pronouncement of those whom the state has permitted to speak on its behalf.

Aside from being unfair to the individual, to deny the excusatory effect of a mistake in such a case would also run counter to the general expectation that the criminal law is based on an ‘incontrovertible minimum of political decency’.  Political decency demands that when the state chooses to advise its citizens about the law, it should do so accurately.  Viewed practically, to deny responsibility for such pronouncements would also undermine social confidence in the authority of those whom the state has designated to speak for it, and whose pronouncements it must wish to be respected.  The risk is that  ‘the  law abiding  attitude of  the good  citizen  would  weaken  as  the notion of settled law upon which his attitude depends is eroded’.   These considerations of individual justice and fair play suggest an exception to the criminal law’s general embargo on mistake of law in cases  of officially induced error.

[17]     Ms Briggs points out the problem with recognising officially induced error as an excuse.  To do so would not only fly in the face of the clear language of s 25, but would  run  counter  to  a  clear  line  of  authority  in  New  Zealand,  England  and Australia, which she cites at p 407.   Without argument on the appellant’s side I do not comment further on this topic, as justice can be done by another route.

[18]     It does not appear that the Justices were invited to exercise jurisdiction under s 106 of the Sentencing Act 2001.  Compliance with r 2.3(1) is clearly, as one now knows from the evidence in this case, of considerable importance in the interests of public safety.  It is to be hoped that its existence and significance may come more prominently to public attention.   While natural justice prevents comment upon the

conduct of either the supplier or the Testing Station, on the facts of the present case the responsibility of such bodies for the due enforcement of the law and thus public safety, is self-evident.

[19]     I have nevertheless concluded that the combination of the advice given to the appellant by the New Lynn service station and the issue of the certificate of fitness, taken together, would make it oppressive to add to the worry the appellant has had of facing trial and the prospect of appeal.   In these circumstances I propose to exercise jurisdiction under s 106.  The appeal is allowed and the order for payment of penalty

and costs is set aside.

W D Baragwanath J