Deliu v Police
[2022] NZHC 2732
•21 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-252
[2022] NZHC 2732
BETWEEN FRANCISCO CATALIN DELIU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 October 2022 Appearances:
Appellant in person
W N Fotherby and F J McKechnie for Respondent
Judgment:
21 October 2022
JUDGMENT OF LANG J
[on application for leave to bring second appeal against conviction]
This judgment was delivered by me on 21 October 2022 at 10.30 am.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Auckland
DELIU v NEW ZEALAND POLICE [2022] NZHC 2732 [21 October 2022]
[1] Mr Deliu was found guilty by Justices of the Peace on a charge laid under cl 7.9 of the Land Transport (Road User) Rule 2004 (the Rule).1 He was ordered to pay a fine of $200 and court costs of $30.2
[2] Mr Deliu filed an appeal against the Justices’ decision but failed to appear when the appeal was scheduled to be heard. This prompted Judge A-M J Bouchier to dismiss Mr Deliu’s appeal.3
[3]Mr Deliu now seeks leave to advance a second appeal against conviction.
Background
[4] The charge was laid after a police officer stopped Mr Deliu whilst he was driving on the northern motorway on 30 January 2017. Mr Deliu was driving a McLaren two-door sports car. His wife was in the passenger seat with a child sitting between her legs. She and the child were restrained by a single seatbelt.
[5] Mr Deliu was originally charged under cl 7.6 of the Rule, which requires a driver to ensure that, whilst a vehicle is in motion on a road, every passenger under the age of seven years is properly restrained by an approved child restraint appropriate for that passenger. During the hearing before the Justices the prosecution encountered difficulties in proving the age of the child in Mr Deliu’s vehicle. At the close of the Police case the prosecutor sought leave to amend the charge to one under cl 7.9, which provides as follows:
7.9Driver must not permit passengers under 15 years to sit in front seat without child restraint or seat belt
A driver must not, while the vehicle is in motion on a road, permit a passenger under the age of 15 years who is not properly restrained by an approved child restraint or seat belt appropriate for that passenger to be alongside the driver unless –
(a)the vehicle is not provided with sitting positions behind the driver’s seat or,
1 Police v Deliu [2017] NZDC 22482.
2 At [32].
3 Police v Deliu [2018] NZDC 4631.
(b)all the sitting positions behind the driver’s seat are occupied by passengers under the age of 15 years.
[6] The Justices granted the amendment after Mr Deliu filed a memorandum advising that he did not object to it because he had a complete defence to the amended charge.
The Justices’ decision
[7] The Justices found Mr Deliu guilty of the amended charge for the following reasons:4
[25] Turning to Mr Deliu’s argument that he did not have a back seat to his car, he believed the charge must fail. The law creates a general obligation for drivers carrying passengers under the age of 15 years not to permit those passengers in the front seat if not properly restrained by an approved child restraint or seat belt unless the back seats are unavailable. The two situations in which the back seats are unavailable are set out in subs (a) and (b). Either there are no back seats or all of the back seats occupy passengers under the age of 15. It is not permissible to have an adult in the back seat and a person under the age of 15 in the front. The obligation in clause 7.9 operates alongside the obligations in clauses 7.6 and 7.8.
…
[30] Mr Deliu’s McLaren two door convertible vehicle contained only two seats and clearly there were three occupants in the vehicle when the police constable ordered the vehicle to stop on a public highway. The photographs provided in evidence clearly show three occupants even though Mr Deliu is seen attempting to conceal the car’s occupants form the photographing by the constable.
[31] The law is clear, each person in a car must have, “A seatbelt appropriate for that passenger.” In this case, the child and the female were sharing one seat belt for one seat. A seat belt that is shared is not appropriate for a child as they would not be properly restrained. Accordingly, we find the amended charge proven.
[8] Mr Deliu contends the Justices failed to engage with the legal argument he had advanced in relation to the amended charge. Judge Bouchier was not required to consider that issue because Mr Deliu did not appear when his appeal against the Justices’ decision was called.
4 Police v Deliu, above n 1.
Jurisdiction for second appeal
[9] The principles that apply in the present context are well-established. Section 237 of the Criminal Procedure Act 2011 prohibits the Court from granting leave to bring a second appeal against conviction 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.
[10] For the reasons that follow I am satisfied the proposed appeal raises an issue of general or public importance. Leave to bring a second appeal is accordingly justified.
The issue
[11] Mr Deliu acknowledges that the first segment of cl 7.9 imposes restrictions that apply to passengers in moving vehicles who are under the age of 15 years. However, he points out that this ends with the word “unless”. Mr Deliu contends the use of this word creates two exceptions to the restrictions imposed by the preceding segment. These are set out in cls 7.9(a) and (b). The exception created by cl 7.9(a) is where the vehicle in question has no rear seat. During the hearing before the Justices there was no dispute that Mr Deliu’s vehicle had no rear seat. Mr Deliu therefore says his vehicle falls within the exception created by cl 7.9(a), and this provides a complete defence to the charge.
[12] For the respondent, Mr Fotherby acknowledges Mr Deliu’s argument is available if cl 7.9 is given its literal meaning. He contends, however, that the rule must be interpreted with regard to the purpose of the Rule and in the context of the regime of which cl 7.9 forms part. The purpose of the Rule is in part to “[promote] the safe and efficient operation of roads by providing a legal framework to support consistent and predictable responses by road users”.5
[13] Mr Fotherby submits that Parliament intended cl 7.9 to limit the situations in which persons under the age of 15 years could travel in the front seat of a moving
5 Land Transport (Road User) Rule 2004, sch 1 cl 1(3).
vehicle, and to impose seat belt requirements for when that occurred. It did so by prohibiting such persons from travelling in the front seat of a vehicle unless the vehicle has no rear seat (cl 7.9(a)) or the rear seat is occupied by other children or young persons (cl 7.9(b)). In either of those situations a person under 15 years of age may travel in the front seat alongside the driver but only if he or she is properly restrained by an approved child restraint or a seat belt appropriate for that passenger.
Analysis
[14] I accept that cl 7.9 cannot be viewed in isolation. It forms part of a suite of provisions that govern the wearing of seat belts in a motor vehicle whilst it is in motion. These are to be found in cls 7.6 to 7.10, which provide as follows:
7.6Driver must ensure passengers under 7 years use child restraint
A driver must ensure that, while the vehicle is in motion on a road, every passenger under the age of 7 years is properly restrained by an approved child restraint appropriate for that passenger.
7.7Driver must ensure passengers aged 7 use child restraint or seat belt
A driver must ensure that, while the motor vehicle is in motion on a road, every passenger aged 7—
(a)is properly restrained by an approved child restraint appropriate for that passenger, if such a restraint is available in the vehicle; or
(b)if such a restraint is not available in the vehicle, is restrained as securely as practicable in the circumstances using any child restraint or seat belt that is available (whether or not that child restraint or seat belt is approved).
7.8Driver must ensure passengers of 8 to 14 years wear seat belts
(1)Subclause (2) applies when a person—
(a)is a passenger in a motor vehicle; and
(b)occupies a seat fitted with a seat belt, whether or not the seat belt is an approved seat belt; and
(c)is aged from 8 to 14 years.
(2)The driver of the vehicle must ensure that, while the vehicle is in motion on the road, the person—
(a)wears the seat belt correctly so that he or she is properly restrained; and
(b)keeps the seat belt securely fastened.
7.9Driver must not permit passengers under 15 years to sit in front seat without child restraint or seat belt
A driver must not, while the motor vehicle is in motion on a road, permit a passenger under the age of 15 years who is not properly restrained by an approved child restraint or seat belt appropriate for that passenger to be alongside the driver unless—
(a)the vehicle is not provided with sitting positions behind the driver's seat; or
(b)all the sitting positions behind the driver's seat are occupied by passengers under the age of 15 years.
7.10Persons of or over 15 years must wear seat belts and keep them fastened
(1)Subclause (2) applies when a person—
(a)is in a motor vehicle; and
(b)is occupying a seat fitted with a seat belt, whether or not the seat belt is an approved seat belt; and
(c)is aged 15 years or more.
(2)While the vehicle is in motion on the road, the person must—
(a)wear the seat belt correctly so that he or she is properly restrained; and
(b)keep the seat belt securely fastened.
[15] These rules obviously provide a graduating series of requirements depending on the age of the passenger. For the most part they are clearly worded and it is not difficult to determine the restrictions they impose. The same cannot be said for cl 7.9.
[16] I accept that cl 7.9 is designed to produce the outcome for which Mr Fotherby contends. The heading to the section confirms this is so. However, the word “unless” plainly creates a general exception to the requirements imposed by the preceding words. In other words, those requirements will not apply when the vehicle in question has no rear seat or where the rear seat is occupied by other young passengers.
[17] Mr Fotherby referred me to two cases in support of his submission that I should apply a purposive approach. In Karpavicius v R the Privy Council was required to determine the meaning of the term “in any other case” as it appears in s 6(2A)(c) of the Misuse of Drugs Act 1975.6 Section 6(2A) provides as follows:
6 Dealing with controlled drugs
…
(2A) Every person who conspires with any other person to commit an offence against subsection (1) of this section commits an offence against this Act and is liable on conviction ... to imprisonment for a term—
(a)Not exceeding 14 years where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(b)Not exceeding 10 years where paragraph (a) of this subsection does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(c)Not exceeding 7 years in any other case.
…
[18] The issue before the Privy Council was whether the words “in any other case” in s 6(2A)(c) referred only to cases involving Class C controlled drugs or whether it also included situations where the offender could not be prosecuted under s 6(2A)(a) or (b) because the Crown was unable to establish whether the drugs in question were Class A or Class B drugs.
[19] Their Lordships proceeded on the basis that, from a linguistic perspective, the arguments were finely balanced.7 However, they were satisfied a purposive approach was appropriate for the following reasons:
[16] The reasoning of the Court of Appeal has the virtue that it inquires into the circumstances in which the legislature used the words “in any other case”, and what the object was which the legislature had in mind. Given the scheme and structure of the legislation it is to be inferred that the legislature aimed to create a comprehensive system of control of drugs with no obvious gap. But, as already pointed out, on the appellant’s interpretation there are significant gaps, resulting in the spectre of the acquittal of criminals who
6 Karpavicius v R [2004] 1 NZLR 156, (2002) 19 CRNZ 609 (PC).
7 At [15].
undoubtedly dealt in controlled drugs. An interpretation which requires the guilty to go free tends to bring the law into disrepute and to undermine public confidence in the administration of justice. Such a result is avoidable in this case by interpreting the words “in any other case” in a sense which enables s 6(2A)(c) to operate additionally as a residual category. Such an interpretation ascribes to the words, in their context, a perfectly natural meaning. And it is better suited to the purposes and policies underlying the legislation than the narrower interpretation.
[20] In the second case to which Mr Fotherby referred, Ministry of Fisheries v Vu, the respondent had been convicted of aiding and encouraging the illegal purchase of paua from an undercover fisheries officer.8 On appeal, Duffy J quashed the conviction because the fisheries officer was an agent of the Crown. Section 192(5) of the Fisheries Act 1996, which makes it unlawful for a person to purchase paua from anyone other than a licensed seller, does not apply to “any transaction with the Crown”.9 Duffy J acknowledged her conclusion would lead to unworkable and impracticable outcomes but did not consider there was any scope for interpretation of the section other than in accordance with its literal meaning.
[21] The Court of Appeal disagreed. It held that s 192(10), which exempts transactions involving the Crown from being an offence under s 192(5), should only apply to situations in which the person seeking to rely on it knew or believed on reasonable grounds that he or she was transacting lawfully with the Crown.10 The Court considered the literal interpretation adopted in the High Court ignored the underlying purpose of s 195(10).
[22] The courts will always endeavour to interpret legislative provisions in a manner that gives effect to the underlying purpose of the legislation. This is particularly so where a literal interpretation would undermine that purpose and/or create an unworkable or impracticable outcome. Karpivicius and Vu are examples of this.
[23] However, unlike those cases, the present case does not require the Court to interpret the meaning of a word or phrase. The meaning of the words used in cl 7.9 is clear and does not give rise to any issues of interpretation. The problem arises because
8 Ministry of Fisheries v Vu [2010] NZCA 469, [2011] NZAR 114.
9 Fisheries Act 1983, s 192(10).
10 Above n 8, at [26].
of the manner in which the rule has been constructed. It would have been a simple matter for cl 7.9 to have been structured in a manner similar to cls 7.7, 7.8 or 7.10. Had that been done there could be no argument. However, the structure used in cl 7.9 creates a problem that the courts cannot solve without effectively rewriting the clause.
[24] The consequences of the loophole created by cl 7.9 are not significant in the present case, but may well be in another involving injury to, or even the death of, a child under 15 who is not properly restrained in the front seat of a moving vehicle. Legislative amendment is necessary to ensure cl 7.9 accurately reflects the intention of Parliament and the purpose of the clause. Until that occurs, however, effect must be given to the clear meaning of cl 7.9. It follows that Mr Deliu’s argument succeeds, and the appeal must be allowed.
Result
[25] Leave to bring a second appeal is granted. The appeal is allowed and the conviction and fine are set aside.
Lang J
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