Hua v Police

[2024] NZHC 328

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-138

[2024] NZHC 328

BETWEEN

ANH DUY HUA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

22 February 2024

Appearances:

A M S Williams for Appellant

W J S Mohammed for Respondent

Judgment:

27 February 2024

Reissued:

18 March 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 27 February 2024 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

HUA v NEW ZEALAND POLICE [2024] NZHC 328 [27 February 2024]

Introduction

[1]    The appellant, Anh Duy Hua, appeals the decision of Judge Callaghan in the District Court dated 7 July 2023 convicting him of one charge of failing to give information contrary to s 118 of the Land Transport Act 1998 (LTA).1

[2]At issue on appeal is whether:

(a)the issuer of a s 118 notice is obliged to give details of the offence which is believed to have been committed; and

(b)if so, whether a reference to the “Animal Offences Act”, when no such Act exists, was sufficient.

Facts

[3]    Just after midday on 3  March 2022  a gold Nissan Note car  registered  to  Mr Hua’s name was seen parked on Sparks Road, Christchurch. When it drove away, a member of the public found a sack containing an abandoned kitten. Another member of the public reported it to a police constable nearby. The constable rang the telephone number linked to the car. The phone was answered by Mr Hua, who told the constable that he was the owner of the car and he gave his address as a motel at Christchurch.

[4]    The constable located the car parked up at the motel at about 12.40 pm that day. He said that the car engine was still warm. Around 1.03 pm the constable spoke with Mr Hua who was in the office of the motel. When the constable asked Mr Hua who had been driving it, he stated that he had been cleaning rooms in the motel and had no idea. Mr Hua continued to deny anyone having the vehicle, even after the constable told him the vehicle had been seen at the location in question.

[5]    At 1.15 pm on the same day, the constable served a s 118 notice on Mr Hua and advised him that he had 14 days to reply to the police with the identity of the driver. The s 118 notice stated:

1      Police v Hua [2023] NZDC 14346.

I have reasonable cause to believe that the driver of (make) Nissan vehicle, registered number LMY158, has committed an offence (offence details) Animal Offence Act on (street and location) Sparks Road at (time) 12.20 pm on (date) 3/3/22 while in charge of the vehicle.

[6]    Mr Hua was also given  a police email contact  to reply to.  On 16 March,   Mr Hua sent an email advising he had checked with his family, no one was driving the car that afternoon, and he was in the motel cleaning and attending to guests all morning until he saw the constable. The constable again put to him that the vehicle was seen on CCTV footage travelling to Sparks Road and noted the timings. Mr Hua replied: “Again, I do not recall driving to Sparks Road on that day, nor anyone that I know of.”

[7]    By 21 March, details had not been given about the driver, and Mr Hua was then summonsed in the District Court for the offence of failing to provide “all information in your possession or obtainable by you which might have led to the identification of the driver.”

Principles on appeal

[8]    Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.2 In this section, a trial includes a proceeding in which the appellant pleaded guilty.3

[9]    The appeal proceeds by way of rehearing and this Court is required to form a view of the facts.4 If this Court reaches a different view on the evidence, it follows that the trial judge necessarily will have erred, and the appeal must be allowed.5 The onus is on the appellant to show that an error occurred.

2      Criminal Procedure Act 2011, s 232(4).

3      Section 232(5).

4      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].

5 At [38].

District Court decision

[10]   The defendant pleaded not guilty in the District Court and the charge proceeded as a Judge-alone trial before Judge Callaghan. The facts of what occurred were not disputed so all the evidence was admitted by consent. What was disputed was whether the s 118 notice was defective meaning Mr Hua was not required to comply with it. Specifically, counsel for Mr Hua submitted:

(a)The notice was flawed in that it required details under the “Animal Offences Act”,- but there is no such legislation and, therefore, cannot be valid;

(b)The purported Offence was not concerning the Land Transport Act or even motoring in general; and

(c)The privilege against self-incrimination/right to silence overrides the statutory requirement.

[11]   Judge Callaghan considered that the evidence established that Mr Hua was evasive and failed to give all information to the constable that was either in his possession or that he could have reasonably obtained that might have led to the identification and apprehension of the driver. He therefore was in breach of his obligations under the s 118 notice.

[12]   The Judge noted that it was Mr Hua’s vehicle that was seen on CCTV footage leaving the motel at 11:55am, at Sparks Road at 12:01pm and departing Sparks Road at 12:07pm going back to the motel which matched with when the cat was discovered. Judge Callaghan stated that it was “inconceivable”, “unrealistic”, and “beyond belief” that the defendant could not or did not know who was driving it.6

[13] Judge Callagahan noted that the finding of the breach of s 118 was subject to the matters raised by counsel. The first was that the s 118 notice was flawed because of the reference to the “Animal Offences Act” that supposedly contained the offence the driver was believed to have committed. The Animal Offences Act however does not exist. The Judge noted that there is, however, an Animal Welfare Act 1999, and it creates offences relating to deserting or abandoning animals. The reference to the

6 At [17].

non-existent Act was clearly a mistake and it was submitted in the District Court that the error vitiated the s 118 notice.

[14]   The Judge identified that the essence of the issue is whether the offence had to be specified in the notice for it to be valid. The Judge referred to the decisions of Auckland City Corporation v Hillyer7 and Pulton v Leader.8 The Judge stated that both those cases are authority for the view that an owner has no right to be satisfied about, or decide for himself or herself, whether or not an offence has been committed before giving the information. Therefore, there did not have to be a specific offence detailed in a s 118 notice and the notice was not rendered deficient because it had an erroneous statutory reference.

[15]   The Judge also noted that even if there was a requirement for some form of notice to be given regarding the nature of the offence, the reference to an “Animal Offence Act” clearly refers to some offence involving an animal and would be sufficient to meet such a requirement.

[16] The next issue the Judge considered was whether s 118 could apply to all offences, or just those under the LTA. The Judge pointed out that s 118 merely states that the authority for the issue of a s 118 request is that an enforcement officer has reasonable cause to believe that the driver of the vehicle has committed an offence. In the Judges’ view it did not have to be an offence under the LTA and could be any offence as long as it is committed whilst in charge of a vehicle. The Judge noted that this is slightly different from an offence committed whilst using a vehicle. The Judge held that the means to commit the alleged offence under the Animal Welfare Act was a vehicle. The offence was, therefore, connected with the use of a vehicle.

[17]   The final matter for the Judge to consider was whether the privilege against self-incrimination or the right to silence overrides the statutory requirement in s 118 for Mr Hua to give all information in his possession or obtainable by him which might have led to the identification and apprehension of the driver, to the Constable. The Judge held that it did not, making the observation that the ground has shifted over the

7      Auckland City Corporation v Hillyer [1953] 8 MCD 143.

8      Pulton v Leader [1949] 2 All ER 747.

years in favour of defendants’ rights, but not in respect of s 118, regardless of whether that breaches the New Zealand Bill of Rights Act 1990.

[18]   The Judge relied on Adams v Police, a decision that was specific to s 118. In that case, Young J stated:9

I am satisfied that Parliament at least implicitly intended to remove the right to silence and self-incrimination in s 60(3) in the circumstances applying to

118. The wording used in s 118 and the fact that a sanction applies for a failure to comply with a request under s 118(1) convinces me. This case is analogous with R v Sew Hoy. In Sew Hoy there was a statutory power to require answers coupled with a sanction for a refusal to do so. The purpose of s 118 would be wholly frustrated if the privilege against self-incrimination was to apply. Self-evidently it will often be the case that the driver of the motor vehicle is the registered owner of the motor vehicle. If the self incrimination principle applied then then the thrust of s 118 would be seriously undermined. I am satisfied that s 118(1) does, therefore, by necessary implication remove the privilege against self incrimination.

[19]   Judge Callaghan concluded that the s 118  notice was valid and required     Mr Hua to provide details. The Judge was satisfied beyond reasonable  doubt that  Mr Hua had been evasive and had not fully complied by giving all information that he had in his position or that which was obtainable by him.

Submissions

[20]   The only issue pursued on appeal was the first issue, being whether the s 118 notice was deficient because it failed to identify the offence which it was believed had been  committed.  Counsel  confirmed  in   written   submissions   that  the   other two defences argued in the District Court were not pursued.

Appellant’s submissions

[21]   Mr Williams for the appellant appeals on the basis that a miscarriage of justice has occurred. Mr Williams submits that the constable was required to inform Mr Hua of the allegation against the driver of his vehicle. The notice Mr Hua was served with under s 118 of the LTA was inadequate as the legislation referred to does not exist, and it did not inform him of the offence which the driver of the vehicle was alleged to have committed. It follows that the Judge erred in holding that Mr Hua was obliged to

9      Adams v Police [2012] NZHC 3516 at [26].

comply with the notice. Given s 118 potentially overrides an individual’s right to silence, the section should be construed strictly and any non-compliance should invalidate the notice.

[22]   Finally, Mr Williams submits that the error in the notice cannot be remedied by reliance on s 379 Criminal Procedure Act 2011 (CPA). Section 379 CPA states:

No charging document, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding may be dismissed, set aside, or held invalid by any court by reason only of any defect, irregularity, omission, or want of form unless the court is satisfied that there has been a miscarriage of justice.

That provision only applies to documents which are generated during the criminal process from the point of charging onwards. The s 118 notice is generated prior to that process so is not able to be remedied by s 379.

Respondent’s submissions

[23]   Mr Mohammed, for the respondent, submits there is no obligation to provide details of the offence. It is settled law that the allegation of an offence is sufficient to allow an enforcement officer to ask for details of the driver. The legislation is not prescriptive. It only requires the officer to advise the vehicle owner that he or she has a reasonable belief that an offence has been committed. That was done here and the fact the name of the Act was incorrect does not vitiate the notice.

Analysis

Is there an obligation to inform the owner of the offence alleged against the driver of the vehicle?

[24]   It is appropriate to start with the wording of s 118(1) of the LTA, the provision that forms the basis of the charge that Mr Hua faces. Section 118(1) states the following:

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.

[25]   On a plain reading of s 118(1), the provision does not impose a positive obligation on an enforcement officer such as the constable to inform the owner of a vehicle of the particular offence that the officer believes that the driver has committed. What it does say is that an enforcement officer can request information of an owner of a vehicle if he or she has reasonable cause to suspect that a driver has committed an offence while in charge of a vehicle. Whether the constable had reasonable cause is not disputed on appeal.

[26]   Mr Williams submits that the requirement to be informed of the offence is clear based on the wording of the predecessor of s 118, s 67(1) of the Transport Act 1962, which provided:

On being informed of any offence or of any parking infringement within the meaning of section 194A of this Act alleged to have been committed by a driver of a motor vehicle while in charge thereof (whether in the case of an offence the offence is an offence against this Act or any other enactment or any bylaw), and on being requested so to do by a constable or traffic officer, whether orally or in writing, the owner of that vehicle, and also in the case of a vehicle let on hire, the person to whom it is let on hire, shall, within 14 days after the receipt of the request, give all information in his possession or obtainable by him which may lead to the identification and apprehension of the driver.

(emphasis added)

[27]   Section 49 of the Transport Act 1949 similarly required the owner of a motor vehicle to be informed of any offence alleged to have been committed by the driver of the motor-vehicle while in charge thereof. It reads:

The owner of any motor-vehicle shall, on being informed of any offence alleged to have been committed by the driver of the motor-vehicle while in charge thereof (whether the offence is an offence against this Act or any other Act, or against any regulation or by-law), and on being requested so to do by any constable or Traffic Officer, give all information in his possession or obtainable by him which may lead to the identification and apprehension of the driver.

[28]   Mr Williams submits that there is no indication in the wording of s 118 of the LTA that it was intended to change the requirement in the previous Transport Act legislation that a person subject to a notice under s 118 be informed of what the notice relates to.

[29]   I do not agree. The fact that the predecessor Acts contained a positive obligation to inform of the offence alleged to have been committed and the current provision does not, is a strong indication of Parliament’s intention that it no longer considered that an obligation to inform was necessary. Otherwise, it would have retained the wording of the predecessor Acts.

[30]   Mr Williams further submits that it is important that people who have been served a s 118 notice know what offence the person driving the car is alleged to have committed. Mr Williams says that this is for two reasons which I deal with separately.

[31]   First, a person subject to a notice must have enough information to make proper inquiries. Mr Williams relies on Scott v Police, a decision of the Timaru High Court under the Transport Act 1962.10 In that case the Court held that the information required to be supplied relates to the offence alleged to be committed and not the time when the vehicle was driven.11 In Scott, the appellant supplied information as to who was driving the car at the time that was written on the notice but denied the vehicle being near Caroline Bay, the place where the offence was alleged. The Court held that the appellant did not provide all the information required, as he was required to provide all information linked to the offence and not to the time included on the notice. Williamson J stated:

It appears to me from a reading of that section that the obligation on a driver is to give all information in his possession and not just the name and address of the driver of the vehicle. Clearly the section relates to and refers to an offence and not a time. In this case the offence was that committed at Caroline Bay. Consequently Mr Scott was obliged to tell the constables the correct position concerning the presence of the car at Caroline Bay as well as the name and address of the owner.

It is submitted by Mr Williams that the notice must properly inform the person subject to it what the alleged offence is in order for them to comply with it.

[32]   I do not accept this submission. It is important to remember that the Transport Act 1962 laid down a positive obligation for a constable or traffic officer to inform the

10     Scott v Police HC Timaru AP49/93, 28 July 1993.

11     At 3.

owner of a motor vehicle of an offence alleged to have been committed by the driver. As discussed, that obligation is absent from the current legislation.

[33]   Furthermore, Mr Hua, in complying with s 118(1), needed to supply all information in his possession or obtainable by him which may lead to the identification and apprehension of the driver of the vehicle.12 He was inevitably able to do so by being told in the s 118 notice when and where the offence allegedly occurred, namely on Sparks Road on 3 March 2022 at 12:20pm. In other words, the absence of details of the offence does not affect his ability to comply with s 118(1). It is sufficient to give the owner details of the time and place the offence was believed to have been committed to enable the owner to make enquiries as to who the driver was.

[34]   Secondly, Mr Williams submits that a person must have sufficient information so they can determine whether they should comply with the notice. Mr Williams argues that while the person is not entitled to a view as to whether or not an offence has been committed in determining whether to comply with the notice, they must be entitled to enough information to determine if the notice itself was valid in case they wished to challenge it.

[35]   I do not accept this argument. It is contrary to my conclusion that, in enacting the current section, Parliament no longer envisaged a need for owners subject to a     s 118 notice to know what offence that a driver is alleged to have committed. In any event, the owner cannot assess the likelihood of the offence being committed, nor is he or she in a position to assess the reasonableness of the officer’s belief. It is logical, therefore, that there is no longer a requirement to provide details of the offence which is believed to have been committed.

[36]   This is consistent with the reasoning in the English decision in Pulton v Leader, where the recipient of an equivalent notice was told that an offence was alleged to have been committed under the Road Traffic Act 1930, but sought details of the nature of the offence before giving the details required.13 The Court held that the relevant statute “only requires the police to allege that an offence under the Road Traffic Act

12     Burling v Police HC Whangarei CRI-2004-488-64, 18 November 2004 at [15](c).

13     Pulton v Leader, above n 8.

had been committed by a driver.” Once that was done the obligation to assist the police identify the driver arose. The defendant did not need to know the nature of the offence.

[37]   While Mr Williams sought to distinguish that decision as from a different jurisdiction, I note that it was expressly adopted in the New Zealand decision of Auckland City Corporation v Hillyer.14 In that decision, while there was, under the relevant Transport legislation, an obligation to inform that an offence had been committed, the owner had no right to be satisfied, or to decide for themselves whether or not an offence had been committed before they were obliged to give the information sought. It follows that where the statute does not even require that the offence be communicated to the vehicle owner, a failure to specify the offence believed to have been committed, or an error in describing it, could not be fatal to the notice. As long as the officer’s reasonable belief that an offence had been committed was communicated to the vehicle owner, that was sufficient.

[38]   Accordingly, I find that there is no obligation to inform the owner of a vehicle of the offence alleged against the person in charge of the vehicle. This means that the fact the s 118 notice failed to identify the nature of the offence to Mr Hua because it referred to a non-existent Act is of no consequence and I do not need to consider whether it could be saved by reliance on s 379 CPA.

Conclusion

[39]   Section 118(1) does not pose an obligation for an enforcement officer to inform an owner of a vehicle of the offence that a driver is alleged to have committed.

Result

[40]The appeal is dismissed.

Solicitors:
Crown Solicitor, Christchurch

Copy to:
A M S Williams, Barrister, Christchurch

14     Auckland City Corporation v Hillyer [1953] 8 MCD 143.