K v Police HC Timaru Cri-2008-476-2

[2008] NZHC 755

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2008-476-000002

K

Appellant

v

POLICE

Respondent

Hearing:         9 May 2008

Appearances: Appellant in person

AR MacGougan for Crown

Judgment:      23 May 2008

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against conviction.

[2]      On 7 May 2007, Justices of the Peace sitting in the Timaru District Court convicted the appellant on two charges, one of operating a motor vehicle on a road when the vehicle was not displaying current evidence of inspection, and a second charge of operating an unlicensed motor vehicle.  Both charges related to a Jaguar vehicle the appellant was driving at Makikihi on 23 November 2006.   On each

charge, the appellant was fined $200 and $30 court costs.

K V POLICE HC TIM CRI-2008-476-000002  23 May 2008

[3]      The evidence before the Justices of the Peace was that the Jaguar had been imported from Germany by a friend of the appellant.   The vehicle was in a very damaged condition and the friend had asked the appellant to restore it.  Before the vehicle could obtain a vehicle inspection certificate and be licensed in New Zealand, the appellant was required to follow a repair process which involved several visits to the closest authorised repair certifier in Timaru, the obtaining of a repair certificate and then a final inspection by a Land Transport NZ agency authorised to issue vehicle inspection certificates, also based in Timaru.

[4]      On the day in question,  Mr K   was driving the Jaguar from Palmerston to Timaru for it to undergo work by a certified wheel aligner, this being one of the requirements imposed by the repair certifier as a condition precedent to obtaining the repair certificate.   It was the second time Mr K   had driven the vehicle to the wheel aligner, the first occasion being on 15 November.  The work that needed to be done on the second occasion was of a relatively minor nature.   Prior to the two visits to the wheel aligner, Mr K   had been transporting the vehicle for its other inspections in a trailer.  Although he had no formal qualifications, he considered he had sufficient practical experience to know that by the time of the wheel alignment visits,  the repairs had reached a sufficiently advanced stage for the vehicle to be safe to drive on the road.

[5]      At the hearing before the Justices, the appellant admitted the motor vehicle was not licensed.   He also admitted it was not displaying evidence of vehicle inspection (a warrant of fitness).   However, he sought to rely on reg 3A of the Transport (Vehicle Registration and Licensing) Regulations 1994 which states:

Any motor vehicle that is being used on any road solely for the purpose of obtaining evidence of vehicle inspection issued under the Land Transport Act 1998 is hereby exempted from the licensing requirements of section 5 of the Act.

[6]       The Justices of the Peace however held the appellant could not bring himself within the terms of that exemption because the purpose of his journey was to have further work undertaken, as opposed to obtaining evidence of vehicle inspection.

[7]      In appealing that decision, the appellant advanced two grounds of appeal:

1.  Justices of the Peace in Oamaru had reached a different conclusion  on  identical  facts  in  relation  to  an  earlier journey  he  had  undertaken  in  the  same  vehicle  on  15

November 2006.

2.  The Justices’ decision was based on a misinterpretation of reg 3A.

Inconsistent decisions

[8]      The appellant believed the Oamaru Justices had dismissed the charges against him.  This belief was reinforced by a letter from the Registrar of the Oamaru Court to that effect.   However, the decision itself and the criminal record shows quite clearly that in fact the Oamaru Justices convicted the appellant on both charges.  He was fined $200 plus Court costs of $20 on the lack of registration charge, and convicted and discharged on the charge of operating without a warrant of fitness.

[9]      At the hearing before me, the appellant submitted the decisions were still inconsistent because the Oamaru Justices only fined him on one charge, while the Timaru Justices fined him on both.   However, sentencing is by its  very nature discretionary and an inconsistency of that nature cannot be grounds for an appeal.

Interpretation of Regulation 3A

[10]     Mr K   submitted the Justices’ application of reg 3A was flawed because they had applied it as though this were the common situation of a vehicle going for its warrant of fitness at a local garage.   However, the situation at issue was quite different,  involving  as  it  did  a  series  of  mandatory  inspections  by  a  specialist certifier, which could not all be done on the one day.  Mr K   submitted it was not as though he was going to the supermarket.  All he was doing was trying to obtain the warrant and registration. That was the sole purpose of his journey.  In order to obtain the warrant, he had no choice but to go to the wheel aligner.  Mr K   also pointed out the Regulation does not specifically say the only exempted journey is the final journey.

[11]     As to the last point, the mere fact the Regulation does not specifically say it must be the final journey is not of itself conclusive if the underlying purpose and natural meaning of the words point to that interpretation.

[12]     There appears to be no previous decision which has considered the meaning of reg 3A.

[13]      In Brookers Law of Transportation, the commentary at page 9-255 suggests the purpose of the exemption is to allow an unlicensed vehicle to be driven to the inspection point in order to obtain the vehicle inspection certificate.

[14]     Mr K   was not of course on his way to the inspection point but rather to a wheel aligner.   The wheel aligner could not provide him with evidence of vehicle inspection issued under the Transport Act.  That could only be provided at the final inspection.

[15]     The Brookers commentary would accord with what would seem to be the common sense interpretation of the Regulation and the words “sole purpose” which indicate the exemption must be narrowly construed.   If Mr K  ’s interpretation were correct, it would mean the exemption applied in respect of every single one of his trips to the repair certifier, including those at the very beginning.  As counsel for the Crown pointed out, Mr K  ’s interpretation effectively makes him the arbiter of whether the vehicle is safe to be driven.

[16]     In my judgment, Mr K   is only entitled to the exemption when, having first obtained the repairer’s certificate, he drives to the final inspection point.

[17]     I am fortified in that conclusion by a decision of Randerson J in Lane v Whakatane  District  Court  HC  Rotorua  AP63/98,  6  August  1998.  That  case concerned the wording of now repealed reg 85 of the Traffic Regulations 1976. Under reg 85 it was a defence to a charge of failing to display a warrant of fitness if the defendant “proves that the motor vehicle was being operated solely for  the purpose of obtaining a current warrant of fitness…”.  In Lane the defendant was on his way to the library to meet a friend from whom he proposed to borrow money for

the purpose of having some electrical work carried out on the car so that it could obtain a warrant.  Randerson J held the proviso did not apply, adding:

The matter may have been different if the appellant was travelling directly to a vehicle testing station or other authorised issuer of warrants of fitness solely for the purpose of obtaining the warrant.

[18]   Mr K   referred me to the decision of Pankhurst J in Williamson v Christchurch City Council HC Christchurch CRI-2006-409-18, 30 March 2006. However, the Regulation at issue in that case has different wording: “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”, and even more importantly relates to vehicles which once had warrants but which have now expired.  As Ms MacGougan pointed out, the vehicle at issue in the present case never had a warrant in New Zealand and arrived in this country in a substantially damaged condition.

[19]     I am satisfied the decision of the Timaru Justices of the Peace was correct

Accordingly,  the appeal is dismissed and the convictions confirmed.

Solicitors:

Crown Solicitor, Timaru