D v Police HC Wellington CRI-2008-485-151

[2010] NZHC 948

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-151

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 June 2010

Appearances: The appellant in person

J Murdoch for the respondent

Judgment:      9 June 2010

JUDGMENT OF CLIFFORD J

Introduction

[1]      Mr D   applies out of time for leave to appeal to the Court of Appeal against that part of my judgment of 27 April 2009 in which I dismissed his appeal against a conviction for failing to produce a driver’s licence when required to do so.

Background

[2]      On 16 May 2007 Mr D   was stopped whilst driving a Subaru motor vehicle.  The police officer had noticed that the warrant of fitness on the vehicle was

D V POLICE HC WN CRI-2008-485-151  9 June 2010

expired because it was an orange (2006) sticker, as opposed to the then current green stickers.  Once the vehicle was stopped, the officer ascertained that the registration of the vehicle had also expired.  Mr D   was asked to produce his licence, but was unable to do so because it was in another vehicle.  Mr D   explained to the police officer who stopped him that he was driving the vehicle because he was getting it re-registered and warranted that day, and that he had been to a testing station.  He had been unable to get a warrant at the testing station and was returning home.

[3]      Mr  D    was  issued  with  three  infringement  notices:  for  operating  a vehicle on a road when that vehicle was not displaying current evidence of vehicle inspection, for using an unlicensed motor vehicle and for failing to produce his driver’s licence on request.

[4]      Following an infringement offence hearing, Justices of the Peace found the infringement offences proved, and ordered Mr D   to pay fines totalling $250 and Court costs of $130.

[5]      Mr D   appealed those findings to this Court and in my judgment of

27 April 2009 I upheld Mr D  ’s appeal against the Justices’ finding that the infringement notices had been proved as regards the offences of operating a vehicle without displaying current evidence of inspection and using an unlicensed motor vehicle.     I  did  so  by  reference  to  Regulation  3A  of  the  Transport  (Vehicle Registration and Licensing Regulations 1994) and clause 10.2(2) of the Land Transport  Rule:  Vehicle  Standards  Compliance  2002.    In  essence,  the  fact  that Mr D   was only operating the vehicle for the purposes of obtaining a warrant of fitness provided his defence.  In dismissing Mr D  ’s appeal against the finding as regards failure to produce his licence, I found as follows:

[19]     As to the last charge – failure to produce a driver’s licence when required to do so by an enforcement officer, without delay (s 31(1)(c) LTA)

– I am satisfied that Mr D   was asked by the Constable to produce his licence and that he failed to do so.  That he may have had a current licence,

which was unavailable to him because it was locked away in another vehicle, provides no justification for that failure.

[6]      Mr D   now applies for leave to appeal to the Court of Appeal against that decision, on the basis of the technical error which he said is to be found in the prosecution   case,   namely  that   the   officer-in-charge   referred   in   evidence   to Mr D   as driving a white motor vehicle, when Mr D  ’s position is that the colour of the vehicle was gun metal grey.

Discussion

[7]      Section 144(1) of the Summary Proceedings Act 1957 provides that either party to proceedings may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in any general appeal.

[8]      Section 144(2) of that Act further provides that this Court may grant leave if in its opinion the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[9]      Mr D   applies out of time for leave.  The question of whether an out of time leave application should be granted is to be determined with a view to avoiding a miscarriage of justice.  A strong case for leave to appeal will necessitate a grant of leave, notwithstanding even a lengthy delay.

[10]     In my view, however, no question of law is raised by Mr D  , nor is the matter one of general or public importance.

[11]     I do not consider Mr D  ’s assertion, that there is a technical flaw in the Crown’s case because the Subaru vehicle he was driving was not white, but was in fact gun metal grey, provides any basis for an appeal now on a point of law.  The colour of the car being driven on the day was not an element of any of the offences with which Mr D   was charged.  Furthermore, and as is evident from the notes of the hearing before the Justices, and as I recorded in my decision, Mr D   accepted – when he cross-examined the Police witness – that he was the driver of the vehicle in question.   Furthermore, and by his own admission, he was unable to

produce his licence.  As I said in my judgment of 29 April 2009, the fact that he may have had a current licence, which was unavailable to him because it was locked away in  another  vehicle,  provides  no  justification for  that  failure.    Nor,  in  my judgment, does the fact that I subsequently allowed his appeal against convictions for the other two summary offence notices provide any basis for allowing leave now. The officer-in-charge quite properly stopped the vehicle, after having observed it displayed an out of date registration sticker.

[12]     Mr D  ’s  application  for  leave  to  appeal  to  the  Court  of  Appeal  is therefore declined.

“Clifford J”

Solicitors:  Crown Solicitor, Wellington for the respondent ([email protected]) Copy to:       Mr N D  , 15-17 Merton Street, Upper Hutt, the appellant