H v Police HC Auckland CRI 2008-404-192
[2009] NZHC 1671
•24 April 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2008-404-000192
H
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 20 April 2009
Appearances: Appellant in person
D Dufty for the respondent
Judgment: 24 April 2009
JUDGMENT OF STEVENS J
This judgment was delivered by me on Friday, 24 April 2009 at 10.20am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140
Copy to:
J H , PO Box 109624, Newmarket, Auckland 1149
H V NEW ZEALAND POLICE HC AK CRI 2008-404-000192 24 April 2009
[1] This is an appeal in respect of orders made against Joseph Gregory H (the appellant) regarding one fine under the Land Transport Act 1998 (the Act) and one fine under the Transport Act 1962.
[2] On 23 August 2002, the appellant was issued with an infringement notice for failing to comply with a “no left turn” traffic sign. A reminder notice was served on
27 September 2002 and he was later fined $150. The appellant contends that he has paid this fine and seeks to have it quashed or set aside.
[3] The second infringement notice related to alleged driving to the right of the centre line on 15 September 2006. The appellant was fined following his failure to attend a hearing before two Justices of the Peace on 27 March 2007. For this offence, the appellant was fined $150 and charged $30 costs.
[4] The appellant has advanced various grounds for contending that the fines should not have been imposed. The same material as was advanced in a related appeal of H v Auckland City Council CRI 2008-404-379/380 24 April 2009 (the Auckland City Council appeal) and was relied upon to support the appeal. The relevant material in such affidavits has been considered. But for the reasons discussed in the Minute dealing with the content of the affidavits, much of the material is irrelevant and has not been considered.
[5] For the reasons set out below, the appeal in respect of the fine for failing to comply with a traffic sign must be dismissed. The Court has no jurisdiction to entertain such an appeal. With respect to the offence of driving to the right of the centre line, there will be an order that the fine and costs be quashed and set aside.
Offences
[6] In relation to the 2002 infringement notice, it is an offence to fail to comply with a traffic sign: see r 136(f) of the Traffic Regulations 1976. The maximum infringement fee or fine is $150 as described in Schedule 2 of the Act.
[7] Section 40 of the Act provides:
40 Contravention of ordinary rules
(1) A person commits an offence if the person contravenes a provision of an ordinary rule and the contravention of that provision is for the time being prescribed as an offence by regulations made under section 167.
(2) If a person is convicted of an offence referred to in subsection (1), the person is liable to the applicable penalty set out in the regulations.
[8] In relation to the 2006 incident, the Land Transport (Road User) Rule 2004 (the Rules), r 2.3(1)(b) provides:
Use of lanes
(1) A driver, when driving, must not use—
…
(b) on a two-way roadway marked in 2 or more lanes, a lane on the right side of the centre line unless the driver is passing another vehicle travelling in the same direction; or
…
[9] Rule 2.6 provides:
General requirements about passing other vehicles
(1) A driver must not pass or attempt to pass another vehicle moving in the same direction unless—
(a) the movement can be made with safety; and
(b)the movement is made with due consideration for other users of the road; and
(c) sufficient clear road is visible to the driver for the passing movement to be completed without impeding or being likely to impede any possible opposing traffic; and
(c) until the passing movement is completed, the driver has a clear view of the road and any traffic on the road for at least 100 m in the direction in which the driver is travelling.
[10] Rule 2.7 provides:
Passing on right
A driver must not pass or attempt to pass on the right of another vehicle moving in the same direction when—
…
(b) approaching or passing a flush median, unless the driver—
(i) intends to turn right from the road marked with the flush median into another road or vehicle entrance; or
(ii) has turned right onto the road marked with the flush median; or
(iii) can make the entire movement without encroaching on the flush median.
Infringement notice procedure
[11] Infringement notices are governed by s 21 of the Summary Proceedings Act
1957. The relevant statutory provisions are set out in the Auckland City Council
appeal at [5]-[9].
[12] Section 78B of the Summary Proceedings Act sets out a procedure to correct irregularities in proceedings for infringement notices. The relevant statutory provisions were outlined in the Auckland City Council appeal at [11].
Factual background
Failing to comply with traffic sign
[13] On 23 August 2002, the appellant failed to comply with a “no left turn” sign. He was issued with an infringement notice on that day showing an infringement fee of $150. A reminder notice was sent to the appellant on 27 September 2002. He did
not respond to either the infringement notice or the reminder notice within 28 days. He did not invoke the hearing procedure in s 21 of the Summary Proceedings Act. Accordingly, an order was deemed to have been made that he pay a fine of $150.
Driving to right of centre line
[14] The New Zealand Police (the respondent) alleged that on 15 September 2006 the appellant drove in the right hand lane of a two-lane road in Parnell, Auckland. The respondent served an infringement notice on the appellant on 18 September
2006 in respect of an offence against r 2.3(1)(b) of the Rules and showing an infringement fee of $150. The appellant requested a hearing and a hearing was set down for 24 November 2006. On that date, the appellant appeared and pleaded not guilty. A defended hearing was set down for 23 March 2007.
[15] When the case was called before two Justices of the Peace, Messrs B Smith and A Siu, on 23 March 2007 the appellant did not appear. The hearing then proceeded by way of formal proof. Sergeant Mays gave evidence as to the driving of the appellant that he had observed. The transcript of evidence records the Sergeant’s evidence as follows:
…a black Mercedes car, registration CBK129 moved from the lane into the flush median and passed four stationary vehicles, my car and the reversing camper van. As he completed that passing manoeuvre he was on the opposing side of the flush median in the opposing lane and when he pulled it back into the correct lane there were cars about 50 metres away coming in the other direction.
[16] Sergeant Mays then activated his siren and lights, pulled the Mercedes car over and spoke to the driver, who identified himself as the appellant. The Sergeant said that he told the appellant that he would post him a ticket. He did so when he returned to the station.
[17] At the formal proof hearing, the Justices found the charge proved and ordered a fine of $150 and costs of $30.
[18] On 10 May 2007, the appellant made an application under s 78B of the
Summary Proceedings Act alleging irregularities in the 2006 infringement notice.
The grounds included a statement that “Officer David Mayer/Mayes created a crime (sic) as did Constable James Matawhina Cassin … live in fear of Police corruption”. The appellant attached a letter detailing his concerns. The application was denied on
19 July 2007.
[19] On 17 June 2008, the appellant submitted four further applications under s 78B of the Summary Proceedings Act (two of which related to this appeal and two which relate to the appeal in which the Auckland City Council is respondent). On
19 June 2008, the Deputy Registrar declined these applications on the basis that one application had already been declined on 19 July 2007 and in any event no irregularity had been demonstrated.
Appellant’s claims
[20] The appellant seeks to appeal against both orders for fines made against him. The grounds advanced lacked clarity and raised irrelevant matters.
[21] The appellant has submitted four affidavits. These were intended to constitute evidence in this appeal and the Auckland City Council appeal. These affidavits contain very little relevant material. The bulk of two of the affidavits comprise attachments and marked exhibits which purport to prove various extraneous and irrelevant allegations made by the appellant.
[22] The appellant has made no written legal submissions. He developed his concerns by way of oral argument at the hearing.
Respondent’s submissions
[23] Counsel for the respondent correctly found great difficulty in identifying the basis upon which the appellant is appealing. Thus, the respondent’s written submissions addressed a general appeal under the Summary Proceedings Act and the decision of the Deputy Registrar declining the s 78B applications. In addition, at the
hearing counsel relied on the lack of jurisdiction argument advanced by the
Auckland City Council in the related appeal brought by the appellant.
Discussion
Failure to comply with traffic sign
[24] In respect of the offence of failing to comply with a traffic sign in 2002, the critical issue is whether the Court has any jurisdiction to hear this appeal. For the reasons given in the Auckland City Council appeal, I am satisfied that the High Court has no jurisdiction to entertain an appeal. There is no need to repeat the discussion on this point at [23]-[31]. Suffice to say that the appellant on this part of the appeal has failed to make out any grounds which would justify intervention by the High Court.
Driving to right of centre line
[25] This alleged offence raises different considerations. During the oral argument, I invited Mr Dufty for the respondent to comment on whether the offence under r 2.3(1)(b) of the Rules dealing with use of lanes was appropriate in the circumstances of this case. Counsel’s attention was drawn to the content of r 2.6 dealing with general requirements about passing other vehicles and r 2.7 dealing with passing on the right when approaching a flush median. Counsel very fairly acknowledged that the offence under r 2.3(1)(b) of the Rules was not the appropriate one in the circumstances of this case.
[26] The question then arose as to how the case should be dealt with in the interests of justice, given the jurisdictional difficulties faced by the appellant in respect of an appeal, either against the infringement notice or the decision of the Deputy Registrar under s 78B of the Summary Proceedings Act. Counsel for the respondent indicated that there would be no basis for objecting were the Court, of its own motion, to convert the appeal into an application for review. In this regard, I drew counsel’s attention to the decision of Harrison J in Reekie v Attorney-General
& Ors HC AK CIV 2008-404-005757 7 April 2009 and my decision in Hines v The
Manager of Custodial Services, Auckland Prison [2007] NZAR 297.
[27] In the light of these authorities, the parties accepted that the just course was to proceed on the basis of an application for review.
[28] In that regard, the appropriate focus of the case fell on the decision of the Registrar on the appellant’s application under s 78B of the Summary Proceedings Act to correct irregularities in the proceedings for the infringement offence dated 19
June 2008. Under s 78B(2) the Deputy Registrar exercising the powers of the Registrar had available a range of options including granting a rehearing or setting aside or modifying the order in relation to the infringement fee.
[29] Counsel for the respondent correctly submitted that the driving of the appellant on 15 September 2006 was almost certainly in breach of r 2.6 and r 2.7 of the Rules. But the question was whether, if a rehearing had been granted, it would have been appropriate to grant leave to the prosecution to amend the alleged offence to either or both of r 2.6 or r 2.7. Counsel for the respondent again fairly acknowledged that this would not be appropriate in the circumstances of this case, particularly given the delays since the alleged offence occurred.
[30] Accordingly, the interests of justice require that, treating this matter as an application for review, an order should be made setting aside and quashing the infringement fee and fine. This means that, whilst the appellant could not succeed on an appeal, he has been able to achieve what he has sought by way of review.
Result
[31] The appeal in respect of failing to comply with a traffic sign is dismissed for want of jurisdiction. The appeal in respect of driving to the right of the centre line is treated as an application for review. The appellant has succeeded in demonstrating that the offence alleged was not the appropriate one in all the circumstances. The respondent ought to have charged the appellant with a different offence or offences. The infringement fee and fine cannot stand.
[32] Accordingly, there will be an order that the infringement fee and fine imposed by the Justices on 27 March 2007 be quashed and is set aside.
Costs
[33] In view of the limited success on the one matter, and the failure of the appellant on the other matter, counsel for the respondent accepted that costs should
lie where they fall. There will be no order for costs.
Stevens J
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