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

[2009] NZHC 454

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:         21 April 2009

Appearances: The appellant in person

J M Webber for the respondent

Judgment:      27 April 2009

JUDGMENT OF CLIFFORD J

[1]      Mr D   appeals out of time against summary convictions for operating a vehicle without current evidence of vehicle inspection, using an unlicensed motor vehicle and failing to produce his driver’s licence when required to do so.

Background

[2]      In his notice of appeal Mr D   set out some eight matters, relating in general terms to the facts that he had been driving the vehicle in question to a vehicle

testing station in order to obtain a warrant of fitness and that he did have a current

D V POLICE HC WN CRI-2008-485-151  27 April 2009

driver’s licence, but it was locked away in another car.  In those circumstances, he says that the convictions should not have been entered.

[3]      Before  me,  Mr  D    relied  on  the  single  fact  that  the  officer  giving evidence at his prosecution referred to him driving a white Subaru.  Although at his hearing   before   the   Justices   on   15   January   2008   Mr   D     had   clearly acknowledged being the driver of the car stopped by the officer, he now said that the car was not white in colour and that the convictions therefore could not stand.  He also stated that the Court processes were vexatious.

Discussion

[4]      Mr D   appeals out of time.   As is well established, the question of whether leave should be given to bring an appeal out of time under s 123 of the Summary Proceedings Act 1957 is to be exercised with a view to avoiding a miscarriage of justice.    A strong case will necessitate a grant of leave, notwithstanding even a lengthy delay.

[5]      Turning to the merits of this appeal, I do not consider Mr D  ’s assertion that  his  Subaru  was  not  white  provides  an  appropriate  basis,  in  terms  of  the necessary assessment of the strength of his case, either to allow an appeal to proceed out of time or to grant that appeal.   As Mr Webber for the Crown submitted, the colour of the car being driven is 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,  Mr  D    accepted,  when  he  cross-examined  the  Police witness, that he was the driver of the vehicle in question.  His argument was, rather, that the vehicle was not his and that in the circumstances of his only driving the vehicle for the purposes of obtaining a warrant, he should not have been convicted of these charges.

[6]      I therefore turn to the other general issue, that is whether the circumstances in which Mr D   was driving this vehicle afford him a defence.

[7]      As responsibly acknowledged by Mr Webber for the Crown, had Mr D   been represented it is likely that his counsel would have specifically advanced reg

3A of the Transport (Vehicle Registration and Licensing) Regulations 1994 (“the TVRL Regulations”) and clause 10.2(2) of the Land Transport Rule: Vehicle Standards Compliance 2002 (“the LT Rule”) in his defence.  Mr Webber did indicate that that was a conclusion he had reached having only had limited time to consider the matter.  In those circumstances, I reserved leave for Mr Webber to file further submissions by 24 April 2009 if there were other matters that he wished to draw to my attention.  As no submissions were filed, I have concluded that Mr Webber was content to rest the Crown’s position in the way he had expressed it to me at the hearing of this appeal.

[8]      During the hearing Mr D   had himself referred to his contention that he had a defence of the type acknowledged by Mr Webber:

“the only time you can use your vehicle on the road while on exemption from licensing is for the purpose of obtaining a warrant of fitness or Certificate of Fitness”[citing a land Transport New Zealand source] and so I do endeavour Your Honour to do the best I can. …  I do admit to driving the vehicle, but I did it for the purposes of trying to obtain a warrant of fitness to get the registration.

And later:

The LTSA in conjunction with the police, there are certain situations and circumstances where unlicensed vehicles may be driven on the road.  I didn’t attempt just to go for a drive …

[9]      It  would  appear  that  the  Justices  did  not  recognise  the  possible  legal significance of those remarks.

[10]     As a matter of law:

a)       The charge Mr D   faced under s 5(1)(b) and (2) of the Transport (Vehicle and Driver Registration and Licensing) Act 1986 (“TVDRL Act”)  –  using  a  motor  vehicle  on  any  road  without  displaying  a current licence – is subject to any regulation granting an exemption which is made under s 35A(1)(a)(i) of the TVDRL Act.  Regulation

3A of the TVRL Regulations provides:

Any motor vehicle that is being used on any road solely for the purposes of obtaining evidence of vehicle inspection issued  under  the  Land  Transport  Act  1998  is  hereby exempted from the licensing requirements of section 5 of the Act.

b)The charge Mr D   faced under s 34(1)(b) of the Land Transport Act 1998 (“the LTA”) – operating a vehicle on a road without displaying current evidence of vehicle inspection – is subject to the defence provided by clause 10.2(2) of the LT Rules, that a person may operate a vehicle after the expiry of a warrant of fitness or certificate of fitness if the vehicle is being operated solely for the purpose of bringing it  into  compliance and  it  is  safe  to  be  operated  for  that purpose.

[11]     Whilst the Notes of  Evidence  record  the  Justices  telling Mr  D  ,  in response to his remarks referred to at [10], that they understood all that, and that he had been through all that before, their decision does not refer in any way to the possible relevance of the defences provided by reg 3A and clause 10.2(2).

[12]     Here, the effect of Mr D  ’s evidence (using the term broadly) in the District Court – and indeed what he told the Constable at the time – was that he had driven the vehicle to a testing station to obtain a warrant.  He had been turned down and was therefore driving the vehicle back to his home – some 2½ kilometres down the road.

[13]     As regards the defence provided by reg 3A, the use of the word “solely” indicates that the user of the vehicle must be driving directly to the vehicle testing point to obtain evidence of vehicle inspection: see Kelly v Police HC TIM CRI-

2008-476-000002  23  May  2008,  and  Prescott  v  Police  HC  AK  CRI-2005-404-

000082 4 July 2005 at [10]. I am of the view that this must cover a driver who has driven directly to obtain evidence, has been unsuccessful in doing so, and is then driving directly home – ie. the driver is still operating the vehicle for the sole purpose of obtaining evidence of vehicle inspection at the point he or she is driving directly home.  I note that, as a matter of practical reality, the driver will typically need  to  remove  his  or  her  vehicle  from  the  testing station  and  cannot  park  an

uncertified vehicle on a public street.   Therefore, he or she must take the vehicle home.  In my view, doing so is part of a continuing course of action which is solely for the purpose of obtaining evidence of vehicle inspection.

[14]     On  the  basis  of  Mr  D  ’s  evidence  before  the  District  Court,  I  am satisfied that this was the situation here and that Mr D   therefore had a defence to the charge under s 5(1)(b) and (2) of the TVDRL Act under reg 3A.

[15]     In  these  circumstances,  I  am  satisfied  that  a  miscarriage  of  justice  has occurred in respect of this charge and leave should be given to appeal and the appeal allowed.

[16]     As regards the defence to s 34(1)(b) provided by clause 10.2(2), the operator of the vehicle must prove, on the balance of probabilities, both that the vehicle was being operated solely for the purpose of bringing it into compliance, and that the vehicle was safe to be operated for that purpose: s 67(8) Summary Proceedings Act; Prescott at [13]; Ware v Police HC HAM CRI-2008-419-000081 17 December 2008 at [13].

[17]     For  the  same  reasons  as  given  above,  it  is  my  view  that  although  the exemption in clause 10.2(2) is to be interpreted strictly, it should nevertheless cover a person who has driven directly to a testing station, has been declined and then is driving straight home again.

[18]     Mr D   did not, however, adduce any evidence to establish that the vehicle was safe for that purpose.   His evidence was only that the vehicle testing station had declined to inspect the car because a previous owner had terminated the licence plates.   On the other hand, Mr D   raised – albeit in lay and general terms – the factual underpinning for this defence but the Justices did not, in my judgment, appreciate the significance of that or provide Mr D   with an opportunity to develop further his contentions in that regard.  In these circumstances, I am satisfied that upholding the conviction would entail a miscarriage of justice, that leave to appeal should be granted and the appeal on this charge allowed.

[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.

Result

[20]     Leave to appeal is granted and Mr D  ’s appeal against his conviction under s 34(1)(b) of the LTA and s 5(1)(b) and (2) of the TDVRL Act is allowed. Given the relatively minor nature of the offending at issue, as well as the time that has passed, I am of the view that justice is best done by simply quashing these convictions without ordering a rehearing.

[21]     Mr  D  ’s  appeal  against  the  conviction  under  s  31  of  the  LTA  is dismissed.

“Clifford J”

Solicitors:      N D  , Flat 15, 17 Merton Street, Trentham, Upper Hutt 5018, the appellant.

Crown Solicitor, Wellington for the respondent ([email protected])