Garnham v Police

[2012] NZHC 3447

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000098 [2012] NZHC 3447

BETWEEN  TIMOTHY KYLE GARNHAM Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         18 December 2012

Counsel:         D A Ewen for Appellant

E M Light for Respondent

Judgment:      18 December 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.00pm on the 18th day of December 2012.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1]      On 2 October 2012 Mr Garnham was convicted by Justices of the Peace of failing to give information about the driver of his vehicle.  This is an offence under ss 52(6) and 118 of the Land Transport Act 1998 (the Act).   Mr Garnham was disqualified from driving for three months, fined $600 and ordered to pay court costs of  $132.89.    He  appeals  against  both  his  conviction  and  the  penalty  that  was imposed.

Background

[2]      Mr  Garnham  was  at  all  material  times  the  owner  of  a  Nissan  Skyline registration FJJ103.

GARNHAM V NEW ZEALAND POLICE HC WN CRI-2012-485-000098 [18 December 2012]

[3]      At about 3.40pm on 14 September 2011, passers-by observed a vehicle with that registration number doing a “burnout” on a road in Waikanae.

[4]      On  21  October  2011,  a  police  officer  spoke  to  Mr  Garnham  about  the incident.  He accepted that he was the owner of the vehicle but said that he was not the driver at the time, because he was suspended from driving.  He said that he had lent the car to another person for a test-drive.  Later the same day, the police gave Mr Garnham a notice pursuant to s 52(6)1  and s 1182  of the Act requiring him to provide them with information about the identity of the driver.  This notice required a response within 14 days.

[5]      Mr Garnham failed to provide police with the information that was sought. He was accordingly charged under ss 52(6) and 118 of the Act.

[6]      When his case was called in the Porirua District Court on 20 June 2012 it was noted on the information that he was entering a not guilty plea and that the case was adjourned until 4 July 2012 “to allow driver info to be provided to police ...  If this complied with police will withdraw charge”.

[7]      In her written submissions, Ms Light, counsel for the police explained:

There is some  information  on the police file that appears to  have  been provided to police in July 2012 [the specific date is not recorded]. There is a list of phone numbers.  The appellant told police when he was spoken to in

2011 that he was selling his car and someone who was test-driving it must have been driving.  The list of numbers has no names and was in any case

1      52 Contravening notices, requirements, etc, given or imposed by enforcement officers

...

(6) A person commits an offence if the person fails or refuses to provide information or provides false information with respect to any request for information made by an enforcement officer under section 118.

...

2      118 Owner or hirer or licence holder to give information as to identity of driver or passenger

(1) If an enforcement officer has reasonable cause to believe that the driver of a vehicle has

committed an offence while in charge of the vehicle, the officer may request the owner or hirer of the vehicle to give all information in his or her possession or obtainable by him or her which may lead to the identification and apprehension of the driver of the vehicle.

...

(3) A request under subsection (1) or subsection (2) [or subsection (6)] may be made orally or in writing and the owner or hirer or licence holder (as the case may be) must comply with the request within 14 days.

provided well outside the 14 day period and outside of the six month limitation  period  for  laying an  information  for  the  suspected  offence  of sustained loss of traction.

[8]      Unfortunately, this information was not made available to the Justices of the Peace hearing Mr Garnham’s case.   They were accordingly deprived of the opportunity of determining whether in fact Mr Garnham gave all information in his possession or obtainable by him which may have led to the identification of the driver of the vehicle.

Mr Garnham’s appeal

[9]      Mr Garnham’s notice of appeal appeared to be confined to an appeal against sentence. The notice of appeal suggested that:

(1)although his appeal has been filed out of time it is just and reasonable for his appeal to be heard;

(2)      that the disqualification was unlawful;  and

(3)      the fine was wrong in fact and law.

However, the appeal was conducted as an appeal against both conviction and sentence.  I will address the issues raised by the appeal in the following order:

(1)      Appeal out of time;

(2)      Appeal against sentence;  and

(3)      Appeal against conviction.

Appeal out of time

[10]     The jurisdiction to allow the hearing of an appeal out of time is governed by s 123 of the Summary Proceedings Act 1957.

[11]     The criteria for allowing the hearing of an appeal out of time were helpfully explained by Thorp J in Clegg’s Ltd v Department of Internal Affairs3 and subsequently reaffirmed many other cases.4’

[12]     Having considered all the relevant circumstances I have decided to allow Mr Garnham  the  opportunity  to  argue  his  appeal  out  of  time  because  in  my assessment there is a real risk that a miscarriage of justice may arise if Mr Garnham is denied the opportunity to advance his grounds of appeal.

Appeal against sentence

Was the disqualification lawful?

[13]     Mr Garnham argues that as he was convicted under ss 52 and 118 of the Act and  that  only  those  provisions  govern  the  penalty  which  can  be  imposed. Section 52(7) states that the maximum penalty for an offence under s 52 is a fine not exceeding $20,000.

[14]     However, s 80 of the Act also provides:

80       General penalty of disqualification may be imposed if offence involves road safety

(1)       If a person is convicted of an offence against this Act, and the court is satisfied that the offence relates to road safety, the court may order that the person be disqualified from holding or obtaining a driver licence for such period as the court thinks fit.

(2)       The power conferred by subsection (1) is in addition to, and does not limit, any other powers of the court.

[15]     The  question,  then,  is  whether  offending  under  s  52(6)  “relates  to  road

safety”.  The leading case on that seems still to be Husband v Napier City Council.5

3      Clegg’s Ltd v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984.

4      See, for example, Hill v Ministry of Fisheries [2012] NZHC 511, Te Rito v Ministry of Social

Development [2012] NZHC 1872, Ravelich v Police HC Auckland CRI-2010-404-471, 21 July

2011 and Virendra v Police HC Wellington CRI-2011-485-74, 27 September 2011 at [5]-[6].

5      Husband v Napier City Council [1979] 1 NZLR 317 (CA).

The offence in that case was refusing to accompany a Police officer after having refused a breath-alcohol test. The Court of Appeal said:6

In broad terms the test [for whether an offence “relates to road safety”] must depend  upon  an  examination  of  all  the  circumstances  surrounding  a particular offence in order to discover whether in a practical way the conduct giving rise to that offence did relate to road safety and to the legislative effort which is reflected in the Act and the regulations designed to support that objective.  In saying that it needs to be emphasised on the one hand that actual and present conditions of safety on the particular occasion are not essential.  On the other there must be a clear relation between the conduct itself and road safety in the sense that the one can be or is affected by the other.

[16]     In Eskdale v Ministry of Transport,7  Doogue J found that offences under s 68B(1) and (3) of the Transport Act 1962 (failing to give information leading to the identification of a driver of a vehicle) “relate to road safety”. The Judge found:8

In the present case a check of drivers was being carried out in relation to the pursuit of road safety in respect of the apprehension of drivers who might be under the influence of alcohol.  The Appellant, by failing to make known the identity of the driver, failed to enable the enforcement officers to take steps to ensure that the driver was apprehended.  This apprehension appears to me to have related directly to road safety at that time.  It also relates to the wider issue of road safety.  I can see no distinguishing features between the present case and Dixon's case, supra, even although the facts are slightly different. Accordingly, so far as the issue of principle is concerned, I must find against Mr Roose.

...

In my view of the matter, whilst the relationship between the offence and the issue of road safety may not be a relationship between a driving offence and road safety as was discussed in Willis’s case, supra, it comes within the broad middle ground discussed in Husband’s case, supra.   And exemplified in Dixon’s case and the appeal must be dismissed for the reasons given, both in respect of the matter of principle raised and on the issue of whether the sentence imposed was excessive.

[17]     In Schultz v Ministry of Transport, Thomas J affirmed the result in Eskdale.9

The offences under consideration in Schultz were the appellant failing to give his name and address to a Police officer, and failing to accompany him to the Police

6      At 319.

7      Eskdale v Ministry of Transport HC Hamilton AP14.88, 1 March 1988.

8      At 5.

9      Schultz v Ministry of Transport HC Auckland AP261/90, 19 December 1990.

station for an evidential breath or blood test.  The relevant parts of the judgment are as follows:10

Mr Singh’s key submission was that, as he was not driving, Mr Schultz did not represent a danger to the public and should not have been disqualified. He contended that the sentence was harsh and excessive because once it is accepted that Mr Schultz had not driven the car, then ipso facto he was not a danger on the road. As a matter of discretion, Mr Singh explained, the Court cannot disqualify a person if a road safety offence is not involved.

I must reject this submission.

No specific penalties are provided in respect of an offence under s 58B(1). Section 30 relating to general penalties therefore applies.   It provides that every person who commits an offence for which no penalty is provided elsewhere in the Act or any regulations made under the Act is liable to a fine not exceeding $500.00, and “if in the opinion of the Court the offence relates to  road  safety,  the  Court  may  order  the  person  to  be  disqualified  from holding or obtaining a drivers licence for such period as the Court thinks fit”. (Emphasis added.)

It can be seen at once that before the Court may exercise its discretion to order that a person be disqualified from holding or obtaining a licence it must be of the opinion that the offence relates to road safety.  I do not accept that these words are to be given a restricted meaning, and this view is reinforced by reference to the  Court of Appeal's decision in  Husband v Napier City Council [1979] 1 NZLR 317. In that case it was held that the requirement that the offender accompany a Traffic Officer to a Police Station for the purpose of supplying a specimen of blood is part of a process for protecting road users from drivers who might turn out to be incapable of driving through being under the influence of alcohol. The offender’s refusal to accompany the Traffic Officer when required to do so was therefore an offence relating to road safety. The decision has been followed by Doogue J in Eskdale v MOT (AP14/88, Hamilton Registry; [1988] VCL 542).

To my mind this principle makes good sense, particularly in the context of a charge of failing to accompany a Traffic officer for any of the purposes in s 58B(1) of the Transport Act.   An enforcement officer is empowered to require a person to accompany him in order to undergo an evidential breath test or blood test or both.  This is necessary to render the breath and blood alcohol provisions effective.  The same penalties apply in respect of a breach of that section as apply to an offence of driving with an excess alcohol level in the breath or blood.   The reasoning is readily apparent.   Clearly, the Legislature could see no good reason why someone who avoids a blood test or who refuses to undergo a breath screening test, having been lawfully required to do so, should receive a lesser penalty than that which would be appropriate if the offender had in fact accompanied the enforcement officer and the tests had been carried out.  In such circumstances, therefore, it is not inappropriate to have regard to the range of penalties which apply where an offender acts in breach of s 58B(1).  Otherwise, of course, the offender will obtain an advantage by refusing to do what the Act requires, and the purpose of the Act will be thwarted.

10     At 2-4.

[18]     While I accept the type of offence that Mr Garnham was suspected to have committed might only relate to road safety in an indirect way, I still think it relates to road safety.  I would adopt the reasoning of Doogue J in Eskdale and Thomas J in Schultz.

[19]     I am reassured that my conclusion on this issue is correct by the judgment of Cooke J (as he then was) in Police v Dixon,11  where his Honour held that the discretion to impose disqualification for a road safety offence in the predecessor section to s 80 of the Act could be exercised in the case of a person convicted of being in charge of a vehicle and failing to provide all information leading to the identification of a driver.  In the case the appellant was the passenger in a car which

had been involved in a crash.  The driver went to hospital with injuries.  When the police arrived on the crash scene the appellant told police he had been the driver.  He subsequently admitted that he had given misleading information.  Cooke J concluded that the offence was encompassed within the concept of a road safety issue.   His Honour said:12

In considering whether the facts of the present offence relate it to road safety no help can be obtained from the decision under appeal.  The Magistrate’s attention was evidently not drawn to this requirement. An attempt to defraud an insurance company, on which he based his order of disqualification, has no nexus with road safety.  In the circumstances this Court has to look at the facts afresh.

It was pointed out that the car was wrecked and out of action and that there was no material before the Court on which it would be right to infer that consumption of alcohol by the driver was involved.  On this footing it was argued that the offence did not relate to actual driving.  But that is not the criterion.   The  constable knew  that  an  accident  had  happened  in  which people were injured and a car damaged; there was a suggestion that the cause was excessive speed.  These circumstances are enough, in my opinion on the facts of this case, to relate to road safety his direction to disclose the identity of the driver, and consequently to relate to road safety the defendant’s failure to comply with that direction.   The giving of untrue information was not compliance.

11     Police v Dixon [1973] 2 NZLR 225 (SC).

12     At 229.

Was the fine excessive?

[20]     I am not persuaded the fine was clearly excessive.  The maximum penalty for offending under s 52(6) is $20,000.  The fine here was only $600.  The car involved has not yet been found by police.   In these circumstances I would not disturb the fine.

Appeal against conviction

[21]     The aspect of this case which causes me concern is that the police appear to have failed to have informed the Justices of the Peace of the fact that Mr Garnham did make available to the police a list of telephone numbers.   It is possible that information was the only information in Mr Garnham’s possession or which was obtainable by him which could have led to the identification of the driver of the vehicle.

[22]     I am also concerned that the Court record plainly suggests that on 20 June

2012 some arrangement appears to have been made which could have resulted in the information being withdrawn if Mr Garnham provided the police with information about the driver of the vehicle.

[23]     In her written submissions, Ms Light endeavoured to suggest that the officer in charge denies making any representations about withdrawing the charges in exchange for  information  about  the identity of  the driver.    The police officer’s explanation to Ms Light is not consistent with the court record and in any event is a hearsay statement which has not been tendered as evidence or tested.  I cannot place any weight on what the police officer has told Ms Light about this issue.

[24]     I am concerned that the Justices of the Peace should have been provided with an opportunity to determine if in fact Mr Garnham had adhered to what appears to have been a fair arrangement made with the police when his case was called in the Porirua District Court on 20 June 2012.

[25]     In my assessment, whilst ultimately the merits of Mr Garnham’s case may be weak, I believe that it is more important that the integrity of the prosecution system not be impugned.  If an error in the prosecution system has deprived the Justices of the Peace from considering fully the merits of the case against Mr Garnham then it behoves this Court to ensure that any miscarriage of justice is not perpetuated.

Conclusion

[26]     I will allow the appeal, quash Mr Garnham’s conviction and direct that his case be reheard in the Porirua District Court.

D B Collins J

Solicitors:

Crown Solicitor, Wellington for Respondent