G v Police HC Wellington CRI 2010-485-34

[2010] NZHC 1034

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-34

BETWEEN  G

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         18 May 2010

Appearances: Appellant appears in person

K E Salmond for Respondent

Judgment:      19 May 2010

JUDGMENT OF MILLER J

[1]      Mr G   was convicted in the District Court of driving a motor vehicle on a road when the reading on the distance recorder exceeded the maximum reading specified on the licence for that vehicle.   It is an offence under ss 5(1)(d) and

23(1)(a) of the Road User Chargers Act 1977.  He appeals against conviction.

[2]      The vehicle is was described in evidence as a diesel-engined Nissan utility registration BHU255.  Mr G   was driving it at Ngauranga when he was stopped by Sergeant Berg, who found that the vehicle carried no road user charges sticker. Mr G   suggested that it bore no number plates either; he stated that the registration had been allowed to lapse.  The officer’s evidence was that as the vehicle was diesel-engined it must carry a sticker specifying the kilometres for which road user charges had been paid.

[3]      Mr G  ’s case was that the vehicle was not liable for road user charges because it was exempt, as a farm vehicle.  He said he had bought the vehicle some

G V NEW ZEALAND POLICE HC WN CRI 2010-485-34  19 May 2010

time earlier for off-road use and de-registered it, but later re-registered it, believing that he no longer needed to pay road user charges.

[4]      The police responded that if the vehicle was indeed exempt it had to carry an exemption sticker.  It did not.  The Justices accepted that submission, holding:

[8]       The  bottom line,  Mr  G  ,  is  that  this  is  an  offence  of  strict liability, and that on the day in question your vehicle was being driven, by you, on a public road, and given those circumstances, a displayed sticker of exemption or an appropriate road user charges sticker is required.  Neither were  on  your  windscreen  or  were  produced  to  Sergeant  Berg  or  later produced to the authorities, so we must find the case for the prosecution proven.

[5]      It will be seen that the Justices proceeded on the assumption that the offence of driving when the reading of the distance recorder exceeds the maximum reading specified in the licence for the vehicle was proved if the vehicle was exempt but did not carry an exemption sticker.

[6]      Mr G   was ordered to pay a fine of $2,164.00 and Court costs of $30.

[7]      I deal first with the question of exemption.   It is necessary to hack a path through a regulatory thicket.   Under the Road User Charges Act, vehicles may be exempted from the requirement for distance licences by regulations made under the Act.   Regulation 3 of the Road-User Charges Regulations 1978 provides, in reg

3(1)(a), that motor vehicles are exempted if they are defined as exempted vehicles in reg 3(1) of the Land Transport Management (Apportionment and Refund of Excise Duty  and  Excise-Equivalent  Duty)  Regulations  2004.     The  latter  regulations establish two categories of exempted vehicle.  The first is a motor vehicle that is of a kind described in the Schedule to those Regulations.  Clause 1 of the Schedule deals with motor vehicles used on a road only for or solely in connection with agricultural operations:

A motor vehicle (not being a trailer) designed only or mainly for agricultural operations and used on a road only for agricultural operations, including mobile or moveable huts, galleys, and similar motor vehicles used on a road solely in connection with such operations.

[8]      The other category is a motor vehicle that is not required to be registered under s 5 of the Transport (Vehicle and Driver Registration and Licensing) Act 1986 and is used for commercial purposes.   Section 5 of that Act states that except as otherwise provided in the Act, no person shall use any motor vehicle on any road unless it is registered and licensed.   There was formerly an exemption from registration and licensing in related fees, but that has been repealed.

[9]      Accordingly, it appears that the Nissan is exempt if it is designed only or mainly for agricultural operations and used on a road solely for agricultural operations.   A utility is not a specialist agricultural vehicle.   And in this case, Mr G  ’s case was that he used it to tow and launch a boat.   There was no evidence of any agricultural purpose requiring that he drive it down the Ngauranga Gorge.   On the contrary, he explained to me that he had to drive it to meet his workmate.  He thought that its previous use as a farm vehicle made it exempt, and that once exempt it remained so, and he also believed that he could use it freely on roads within a 30km radius of, presumably, his farm.

[10]     The police argued before the Justices that an exempt vehicle must carry a sticker to that effect.  I can find no such obligation in the legislation and regulations, nor could Ms Salmond point me to one.

[11]     However, there can be no doubt on the evidence that the vehicle was not exempt.  It was neither designed mainly for agricultural use nor used on a road solely in connection with such use.

[12]     I note in passing that there is also an exemption for off-road vehicles under s

5 of the Road User Charges Act, but the term “off-road vehicle” is defined by reference to classes of specialised vehicles, such as trailer scrapers, road rollers, and diggers.

[13]     The  remaining  question  is  whether  the  evidence  before  the  Justices established  the  infringement  that  was  found  proved  against  Mr  G  ,  that  of driving when the odometer reading was more than the maximum specified for the vehicle.  He submitted before the Justices that the vehicle had been off the road for

around three years and there was no proof that the odometer had not been tampered with, that he was refused the right to cross-examine prosecution witnesses at the hearing, and that the fine would cripple him and his partner financially as he is currently unemployed.

[14]     Section 23 of the Road-User Charges Act 1977 states that a person commits and offence if he:

operates a motor vehicle on a road in contravention of section 5 or section 6 of this Act.

And s 5(1)(d) states:

(1)Subject to section 7 of this Act, no person shall operate a motor vehicle (other than an off-road motor vehicle, as defined in section 2 of this Act) on a road unless—

(d)       The  reading  of  the  distance  recorder  is  more  than  the minimum reading, and not more than the maximum reading, specified in that licence.

[15]     It is a question of fact whether the reading on the distance recorder is outside the  parameters  set  by s  5(1)(d).    The  question  whether  the  odometer  had  been tampered with was raised in evidence; Mr G   suggested that the dashboard on the vehicle may have been altered before he owned it.  That is the most that can be said.  He had not replaced the dashboard himself.  The odometer reading is evidence of the distance travelled, it was clearly proved, and the Justices were entitled to accept it.  The Police are not required to further prove that the reading is accurate, and no question arises of complete absence of fault.  It is immaterial that Mr G   may have misunderstood the law.

[16]     Nor was Mr G   refused the right to cross-examine Sergeant Berg.   He did   cross-examine,   but   his   behaviour   was   argumentative   and   sometimes inappropriate.  The Justices required him to move on from time to time.  They did not prevent him from putting any relevant questions to the officer.

[17]     No fine was imposed.  Mr G   was merely required to pay the outstanding road user charges.  There was no suggestion that this Court lacks jurisdiction to set the charges aside.

[18]     Mr G  ’s point was that the penalty deprives him of the opportunity to negotiate a rebate with Land Transport NZ.  The vehicle had been used off-road by the previous owner, and its registration allowed to lapse.  A rebate may be obtained under s 16 of the Road User Charges Act where the owner satisfies Land Transport NZ that the vehicle has recorded distance travelled off-road and a distance licence was current at the time.  The last distance licence was purchased on 13 November

2006, and a rebate must be sought within two years of that date, unless Land Transport determines otherwise in any particular case.   I have hesitated over this point, because it may be that there is merit in Mr G  ’s position, if he can show that the vehicle was indeed dedicated to off-road use for much of the intervening period.  However, the legislation contemplates a rebate of charges already paid, and it is Land Transport NZ whom Mr G   must persuade.  It is open to Mr G  , having paid the charges, to seek a rebate from Land Transport NZ in the exercise of its discretion.

[19]     Mr G   also complained that he is unable to pay.  There is no evidence of that and he has assets, in the form of the Nissan and apparently a boat, that he could sell if necessary.  He may have worked hard to buy these items, as he protested, but road-user charges are part of the cost of ownership.  I am not prepared to adjust the penalty on this ground.

[20]     The Justices found the offence proved for the wrong reasons, but it was in fact proved on the evidence.  The appeal is dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Wellington for Respondent