H v Police HC Napier CRI-2010-441-31

[2010] NZHC 2099

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2010-441-31

BETWEEN  H

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 November 2010

Appearances: P Ross for Appellant

F E Cleary for Respondent

Judgment:      23 November 2010

JUDGMENT OF BREWER J

SOLICITORS

Alan Cressey (Napier) for Appellant

Elvidge & Partners (Napier) for Respondent

COUNSEL Philip Ross

H V POLICE HC NAP CRI-2010-441-31  23 November 2010

[1]      On  30  April  2010  the  appellant  was  issued  with  an  infringement  notice alleging that he had committed an offence against s 34(1)(b) of the Land Transport Act 1998 in that he had operated a vehicle (being a heavy motor vehicle) on a road when that vehicle was not displaying current evidence of vehicle inspection.

[2]      The appellant defended the infringement notice and the hearing occurred in the District Court at Napier before Justices of the Peace on 13 August 2010.  The Justices of the Peace found against the appellant and he was fined $600 and ordered to pay court costs of $30.

[3]      The appellant appeals against that finding.  The reason he does so is because he claims the benefit of rule 10.2(2) of the Land Transport Rule: Vehicle Standards Compliance 2002.  This rule provides a defence to the infringement notice offence. In brief, the defence applies when a vehicle is being operated solely for the purpose of bringing it into compliance and the vehicle is safe to be operated for that purpose. The manifest intention of the rule is to allow a person who operates a heavy motor vehicle to drive it to the place where it can be brought into compliance without committing an offence so long as the vehicle is safe at the time.  Mr Ross for the appellant points out the onus was on the appellant to prove on the balance of probabilities that the defence applied.

[4]      The  appellant  did  call  evidence  before  the  Justices  of  the  Peace.    The evidence was uncontradicted that the appellant had taken the vehicle from his home on the Takapau Plains to the Napier VTNZ testing station the previous day; he had just two things to rectify on the vehicle to bring it into compliance; at the time of the apprehension he was driving to obtain a welder to rectify the sole remaining problem as he had already rectified the other.  The vehicle was safe.

[5]      The Justices of the Peace did not address the rule correctly, if at all.   It appears the Justices of the Peace had regard instead to a police operation policy which could not have the effect of contradicting the effect of rule 10.2(2).   The respondent concedes this.

[6]      In written submissions filed on behalf of the respondent there is a formal concession that in the absence of any factual finding on the applicability of rule

10.2(2) the appeal must succeed.  I agree.  At the very least the Justices of the Peace should have considered the evidence put before them as to the applicability of the rule and if it were found not to apply to have given reasons for that.  They did not and so the appeal must succeed.

[7]      In the circumstances I decline to remit the matter back to the District Court for reconsideration.

[8]      I accordingly quash the finding with the result that the $600 fine and the $30 in court costs are remitted.

Brewer J