K v Police HC Timaru Cri-2008-476-3

[2008] NZHC 1033

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2008-476-000003

K

Appellant

v

POLICE

Respondent

Hearing:         3 July 2008

Appearances: Appellant in Person

K B Bell for Crown

Judgment:      3 July 2008

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      On  11  February  2008,  the  appellant,  Mr  K  ,  was  convicted  of  an infringement offence of operating a heavy motor vehicle on a road at a speed in excess of 90 kilometres per hour.

[2]      The conviction followed a defended hearing before two Justices of the Peace. Mr K   was fined $170 and ordered to pay Court costs of $30.  He now appeals that conviction.

[3]      The undisputed facts are that on 23 September 2006 Mr K   was driving a heavy motor vehicle along State Highway 1 just south of Waimate when he was

K V POLICE HC TIM CRI-2008-476-000003  3 July 2008

stopped by a police officer.  The officer was operating a Stalker radio, which is an approved speed detection device.  According to the officer, he checked Mr K  ’s speed at 111 kilometres per hour.

[4]      An infringement notice was subsequently posted to Mr K  ’s address, but his first name and surname were inadvertently transposed so the infringement notice was issued to K   Steven Paul.

[5]      In evidence at the hearing, Mr K   stated he received a letter from the police addressed to Mr K Paul.  He did not open the letter, but returned it to the sender.  It seems likely this was the infringement notice.

[6]      Subsequently, Mr K   received a reminder notice, which was correctly addressed to him.   He then made contact with the Court.   Then followed lengthy delays, and eventually the hearing before the two JPs on 11 February 2008.

[7]      At the hearing before the JPs, Mr K   admitted he was the driver who had been stopped by the officer, but disputed he was speeding.

[8]      In  appealing  his  conviction  to  this  Court,  Mr  K    raised  a  number  of grounds.  In so far as most of them involved challenges to findings of fact for which there  was  sufficient  evidence,  the  arguments  were  without  merit.    However,  it became apparent when the matter was first called that there were issues requiring further legal submissions relating to service of infringement notices and the legal effect of the infringement notice in this case being addressed to Paul, and not K  .

[9]      The hearing was therefore adjourned to enable further submissions to be filed.  This has now been done and the hearing reconvened today.

[10]     Infringement proceedings are subject to a six-month time limitation period, and the Crown accept if I find there was not proper service then that does create a nullity and invalidate what happened thereafter.

[11]     The relevant provision is s139(1), (2) and (3) of the Land Transport Act:

139      Issue of infringement notice

(1)      If an enforcement officer has reasonable cause to believe an infringement offence is being or has been committed by a person, an infringement notice in respect of that offence may be issued to that person by an enforcement officer.

(2)       An infringement notice may be served—

(a)By attaching it, or a copy of it, to the vehicle to which the notice relates; or

(b)By delivering it, or a copy of it, personally to the person who appears to have committed the infringement offence; or

(c)By sending it, or a copy of it, by post addressed to him or her at his or her last known place of residence or business or postal address; or

(d)If the person is a holder of a land transport document, by serving it, or a copy of it, by post on that person at his or her last address for service provided for the purposes of that document.

(3)       For the purposes of the Summary Proceedings Act 1957,—

(a)An   infringement   notice   attached   to   a   vehicle   under paragraph (a) of subsection (2) is to be treated as having been served when it is attached to the vehicle:

(b)An  infringement  notice  sent  to  a  person  by  post  under paragraph (c) or paragraph (d) of that subsection is to be treated as having been served on the person when it would have been delivered in the ordinary course of post.

[12]     The effect of s139(2) is that if the infringement notice is being served by post it must be sent by post addressed to the person who appears to have committed the infringement offence.

[13]     In this case, the notice was not addressed to Mr K   – it was addressed to

Mr Paul.

[14]     It follows it was not addressed to the person who appeared to have committed the infringement offence, as required by s139.

[15]     The Crown submits Mr K   is relying on a technicality.  That may well be, but  technicality  or  not,  in  my  opinion  it  is  clear  service  was  not  effected  in compliance with s139.  It follows the conviction cannot stand.

[16]     The appeal is therefore allowed and the conviction quashed.

Solicitors:

Crown Solicitor, Christchurch

Copy to Appellant