Humphrey v Police

[2013] NZHC 942

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-0087 [2013] NZHC 942

BETWEEN  THOMAS GEORGE REX HUMPHREY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         29 April 2013

Appearances: Appellant in person

W N Fotherby for Respondent

Judgment:      1 May 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 1 May 2013 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:

Meredith Connell, Crown Solicitor, Auckland:  [email protected]

Copy for:

T G R Humphrey

HUMPHREY V POLICE HC AK CRI-2013-404-0087 [1 May 2013]

Introduction

[1]      On 12 February 2013, in the District Court at Auckland, the Appellant was convicted of operating a private vehicle on a road when that vehicle was not displaying current evidence of vehicle inspection.   This is an offence pursuant to s 34(1)(b) Land Transport Act 1998 (“Act”).

[2]      The Appellant was convicted following a defended hearing before Justices of the Peace. The Appellant was fined $100 and ordered to pay Court costs of $132.89.

[3]      The Appellant does not dispute that at the material time he was operating a vehicle without displaying current evidence of vehicle inspection, that he was required to display that evidence and that his failure to do so meant that, on the face of it, he was in breach of s 34(1)(b) of the Act.  However, the Appellant’s case on appeal is that he was permitted to operate the vehicle as he did by virtue of r 10.2(2) Land Transport Rule: Vehicle Standards Compliance 2002 (“Rules”).

[4]      As the Appellant submitted, the decision in the District Court is focused on a different provision, namely reg 77 Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011.  Regulation 77 is concerned with the operation of an unregistered or unlicensed motor vehicle and reg 77(4) provides that it may be a defence to proceedings for such an offence if the defendant proves, amongst other things, that:

77       Operation of unregistered or unlicensed motor vehicle

...

(4)      ...

(a)       the motor vehicle was operated on a road only while being taken  directly  to  a  place  of  repair  or  inspection  for  the purpose   of   repair   or   obtaining   evidence   of   vehicle inspection; and

[5]      Because their Worships did not consider r 10.2(2) of the Rules, I propose to address the matter now.

Rule 10.2(2) Land Transport Rule: Vehicle Standards Compliance 2002

[6]      Rule 10.2(2) provides as follows:

10.2Operation of vehicles with evidence of vehicle inspection or certificates of loading

...

10.2(2) ... a person may operate a vehicle in service after the expiry of a warrant of fitness, a certificate of fitness or an alternative fuel inspection certificate if the vehicle is being operated solely for the purpose of bringing it into compliance and it is safe to be operated for that purpose.

[7]      Nothing in this case turns on when a person may be said to “operate a vehicle in service”, as referred to in r 10.21(2).

Evidence

[8]      The Appellant submits that the evidence establishes that he was operating the vehicle solely for the purpose of bringing it into compliance and that at the time the vehicle was safe for such operation.  It is for the Appellant to establish both matters on the balance of probabilities.[1]

[1] Prescott v Police HC Auckland CRI-2005-404-82, 4 July 2005 at [13]; and Ware v Police HC Hamilton CRI-2008-419-81, 17 December 2008 at [13].

[9]      The evidence called at the hearing before their Worships was to the following effect.

[10]     Constable  Simon  Jeffrey  Cattins  gave evidence  that,  whilst  on  duty  on Sunday, 8 April 2012, he was asked to attend at a location near a new subdivision where a person in a white four door sedan was said to be dumping rubbish illegally. This complaint was made by telephone and the caller remained on the telephone to give  directions  to  Constable  Cattins  as  he  drove  to  the  location.    On  arrival, Constable Cattins saw that the Appellant was driving the vehicle slowly along the side of the road and that he appeared to be walking a dog at the same time.  The

Constable spoke to the Appellant who said he was collecting items that had been left

by the side of the road, not dumping them.  Constable Cattins also gave evidence that the vehicle’s warrant of fitness had expired on 17 January 2010, more than two years earlier.

[11]     The Appellant’s evidence  at  the  hearing  was  that  he  was  en  route  to  a panel beater who was to attend to some part of the vehicle when he, the Appellant, had to stop to go to the toilet.  The Appellant’s evidence was that, whilst doing so, he saw and retrieved items that had been left on the side of the road, including a bottle of oil and a car battery.

[12]     Crown counsel submits that this evidence precludes a case that at the material time the Appellant was operating the vehicle “solely” for the purpose of bringing it into compliance.  Crown counsel submits that, at least at the time he was picking up the items left by others, the vehicle was being operated for another purpose.

[13]     Crown counsel referred me to the decision of Keane J in Ware v Police.[2]   In that case, the appellant had travelled from Whangarei to Palmerston North to collect a vehicle.  Having collected the vehicle, the appellant started on a journey back to Whangarei.  The appellant did so knowing that the vehicle did not have a warrant of fitness and knowing that the state of one of the tyres was such that it did not comply with the relevant standard.  The appellant intended to get the vehicle into a state of compliance on his return to Whangarei.

[2] Ware v Police, above n 1.

[14]     In the course of his journey the appellant was stopped and issued with an infringement notice.  The Judge found that the appellant was operating a vehicle for two purposes during the course of his journey.  The first was to take the vehicle to a place where it could be brought into a state of compliance.  The second was to get the appellant himself home to Whangarei.  The fact that the vehicle was being driven for two purposes meant that it was not being operated solely for the purpose of bringing it into compliance.

[15]     On the basis of that authority, Crown counsel submits that at the time the

Appellant was picking up the items of rubbish, he too had a  dual purpose.   In

response, the Appellant submits that this was only a relatively brief stop.  That may be so, however I accept the submission of Crown counsel.

Result

[16]     For the reasons  referred  to  in  [15]  above,  I am  not  satisfied  that  at the material  time  the Appellant  was  operating  the  vehicle  “solely”  for  the  purpose referred to in r 10.2(2).  If I were satisfied that the Appellant was operating a vehicle solely for that purpose, there does not appear to me to be satisfactory evidence as to two other matters.  Those are whether the purpose of the operation was to bring the vehicle “into a state of compliance” as referred to in r 10.2(2) and whether the vehicle was safe to be operated.   As to the former it is not clear to me what the panel beater was to do vis-à-vis bringing the vehicle into a state of compliance and nor am I satisfied having reviewed the transcript that there was sufficient evidence as to  the  vehicle’s safety.    There  were  no  submissions  of  any  consequence  to  me regarding these matters, which it is for the Appellant to establish.

[17]     The Appellant has not taken issue with the fine that was imposed and I see no reason to interfere with it.

[18]     I dismiss this appeal for the reasons given.

..................................................................

M Peters J