K v Police HC New Plymouth CRI-2006-443-7

[2006] NZHC 444

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2006-443-7

BETWEEN  K

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 May 2006

Appearances: No appearance by or on behalf of Appellant

James Gurnick for Respondent

Judgment:      2 May 2006

JUDGMENT OF HARRISON J

SOLICITORS

Auld Brewer Mazengarb & McEwen (New Plymouth) for Respondent

(copy to Appellant in person)

K V POLICE HC NWP CRI-2006-443-7  2 May 2006

[1]      On 10 February 2006 Mr K   was convicted in the District Court at New Plymouth on a charge of failing to exhibit an appropriate vehicle inspection document.  He was apprehended by the police on 31 August 2005 at New Plymouth when driving a Bedford truck which failed to display a current certificate of fitness. That certificate had in fact expired in 2003.   Mr K   was acting in breach of s 34(1)(b) Land Transport Act 1998.

[2]      On 8 March 2006 Mr K   filed a notice of appeal in this Court.   His specified ground of appeal was that the Justices of the Peace, who gave a commendably  full  decision,  failed  to  take  into  consideration  the  validity  of  an exempt Class A registration for his vehicle.   His notice claims that the Class A exemption enables a person to drive a vehicle for the purpose of performing its repair.

[3]      On 27 April 2006 the registry gave Mr K   notice that his appeal would be heard at 10 a.m. today.  Yesterday Mr K   advised a member of the Court staff that he was unable to be present today on medical grounds.   He said that he was suffering a damaged spine and was unable to walk.  He said he had an appointment with his doctor tomorrow.

[4]      I  do  not  accept  this  explanation.    An  injury  of  the  severity  advised  by Mr K   would have required urgent medical assistance.  In any event, even if he was incapacitated, he could have either briefed counsel or arranged for a representative  to  appear  today.    The  case  was  called  at  10 a.m.  and  again  at

10.45 a.m. but neither Mr K   nor a represented appeared.  Accordingly, I dismiss his appeal.

[5]      I should add that I have had the benefit of a very constructive synopsis of submissions  filed  by  Mr James  Gurnick  for  the  Crown.     I  am  satisfied  that Mr Gurnick is correct that the existence of an exempt Class A registration does not excuse Mr K   from displaying a current warrant or certificate of fitness as of right.   Its exemption is limited to payment of certain licensing fees when using a motor vehicle “only in connection with the inspection, servicing or repair of the vehicle…”.

[6]      In the circumstances Mr K   was under a legal duty to establish on the balance of probabilities that he was operating the vehicle on 31 August 2005 solely for the purpose of bringing it into compliance; that is, to enable it to obtain a warrant or certificate of fitness.  Additionally, he had to establish that the vehicle was safe to be operated for that purpose.

[7]      Having reviewed the notes of evidence I am satisfied that Mr K   failed to discharge his evidential onus.  Indeed, he did not attempt to do so.  The essence of his defence was that he was transporting a Mercedes motor vehicle on the back of the truck to another address.  That explanation could never approach the standard of proof required to make out his defence.

[8]      I have added my endorsement of Mr Gurnick’s argument so that Mr K   is aware that his appeal had no prospects of success even if he had pursued it today.

He is fortunate that there will be no order as to costs.

Rhys Harrison J