Green Transport Limited v Police
[2023] NZHC 3282
•20 November 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2022-419-000085
[2023] NZHC 3282
BETWEEN GREEN TRANSPORT LIMITED
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 November 2023 Counsel:
J Ding for Appellant
JT Lewis for Respondent
Judgment:
20 November 2023
ORAL JUDGMENT OF DOWNS J
Solicitors/Counsel:
Crown Solicitor, Hamilton. J Ding, Auckland.
GREEN TRANSPORT LTD v POLICE [2023] NZHC 3282 [20 November 2023]
[1] This is an appeal, out of time, in relation to two infringement offences. The offending goes back to 6 October 2021.
[2] Green Transport Ltd is, as its name implies, a transport company. On 6 October 2021, Daniel Huntley, a company employee, was driving a truck and trailer. He was stopped by Police at Manunui, just south of Taumarunui. The truck and trailer were weighed. They weighed 51,090 kilograms. The maximum permissible weight was 50,000 kilograms, albeit there is a tolerance of 500 kilograms. The weigh-in occurred at 3.20 pm.
[3] Mr Huntley then drove to a weigh station in Taumarunui. He arrived there at approximately 3.44 pm, that is, within half an hour of being weighed by Police at Manunui. His truck and trailer were weighed at the Taumarunui weigh station also. This weigh-in gave a result of 50,460 kilograms, which is still over the maximum permissible weight, but within the 500-kilogram tolerance.
[4]On behalf of the company Mr Green wrote to Police on 1 November 2021:
On the 6th October my truck was pulled up and issue a ticket for being overweight. Your officer at the time weighted this in at 51090Kg, please see attached Weighcert for this load that was weighed showing that the weight of the load was 50460kg which is still within the 500kg tolerance offered. Any questions feel free to contact me.
Mr Green attached the certificate from the Taumarunui weigh bridge.
[5] Shortly thereafter, Police charged the company with two infringement offences: exceeding the maximum gross mass limit for a high productivity vehicle; and breaching the critical condition of an overweight permit.
[6] The company engaged a barrister, Mr Gotlieb. Not guilty pleas were entered to the two charges.
[7] On 1 August 2022, the District Court sent an email to Mr Gotlieb advising of a hearing date of 18 August 2022. While the email reached Mr Gotlieb, he was not aware of it until after the hearing. So, the hearing (on 18 August 2022) proceeded in the company’s absence.
[8]Judge B Northwood found both charges proved.1
[9] The company then sought a rehearing pursuant to s 126 of the Criminal Procedure Act 2011. The same Judge dealt with the application, albeit on the papers.
[10] The Judge concluded the company had notice of the hearing by virtue of the email to Mr Gotlieb. The Judge also considered the interests of justice. He concluded the later weigh-in at the Taumarunui weigh bridge did not raise any doubt about the accuracy of the earlier weigh-in. That said, the Judge did not have an affidavit on behalf of the company before him, he had only the weigh-in receipts. The Judge dismissed the application.2
[11] The company then sought to appeal that determination. On 1 May 2023, Venning J dismissed the appeal for want of jurisdiction.3 Necessarily, the Judge did not consider the merit of the case.
[12] The company now appeals out of time. It contends time should be extended as procedural misadventure is the reason for the delay, rather than the company not pursuing its appeal rights in a timely fashion.
[13] On behalf of the appellant, Ms Ding contends the company has suffered a miscarriage of justice given the affidavit on behalf of the company from Mr Green, which outlines the described history and second weigh-in. Ms Ding invites me to receive the affidavit as fresh evidence.
[14] On behalf of the respondent, Mr Lewis contends justice has not miscarried. He observes it was open to the District Court to proceed in the company’s absence as the offences were infringement offences only. Mr Lewis also contends that the mere fact of the later weigh-in—with a different result—does not undermine the earlier weigh-in as Police adduced a certificate of accuracy in relation to it.
1 Police v Green Transport Ltd [2022] NZDC 16641.
2 Green Transport Ltd v Police [2022] NZDC 21386.
3 Green Transport Ltd v Police [2023] NZHC 990.
[15] I am satisfied the company has suffered a miscarriage of justice. While it was open to the District Court to proceed in the company’s absence, and no criticism attaches to the Court for doing so, it is now clear the company wished to offer a defence to the charges, and this defence has not been considered. I say this because Judge Northwood did not have the benefit of the affidavit from Mr Green when he addressed the application for a rehearing on the papers (through no fault of the company).
[16] I make one thing clear. The mere fact of the later weigh-in (with a lower weight) would not ordinarily be sufficient to warrant this outcome. What merits it is that the company protested its position from the earliest opportunity, identified the circumstances to Police, and wished to advance that defence in the District Court. I should add that a certificate of accuracy was obtained in relation to the later weigh-in. It therefore follows there is a serious issue for the District Court to consider.
[17] This leaves one matter. Mr Green’s affidavit does not expressly say that the driver, Mr Huntley, did not stop between the two weigh-ins and remove anything from the truck or trailer. Though it is a matter for the District Court, it may be thought Mr Huntley would need to testify to make explicit what it is currently implicit in Mr Green’s affidavit.
Result
[18] Time is extended for the appeal and the evidence of Mr Green is received on appeal.
[19]The appeal is allowed. The convictions and fines are quashed.
[20]A rehearing is ordered.
……………………………..
Downs J
0