L v Police HC Christchurch CRI 2007 409 6

[2008] NZHC 324

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007 409 006

L

Appellant

v

POLICE

Respondent

Hearing:         13 March 2008

Appearances: Appellant in Person

C E Butchard  for Respondent

Judgment:      13 March 2008

ORAL JUDGMENT OF CHISHOLM J

[1]      On 7 September 2007 Justices of the Peace found proved an allegation that Mr L   had operated a vehicle on a road when no warrant was displayed.  He was ordered to pay an infringement fee of $200 plus Court costs.  This is an appeal against that decision.

[2]      Mr L   defended himself and the hearing was lengthy.   The Justices displayed considerable patience.

[3]      For  the  prosecution  evidence  was  given  in  the  District  Court  by  Senior

Constable Smith.   It is not disputed that the evidence established that Mr L 

L V POLICE HC CHCH CRI 2007 409 006  13 March 2008

was the owner of the vehicle in question and that it did not display a warrant at the relevant time.  In essence the defence advanced by Mr L   was that he was asked by his daughter if her then partner could use the vehicle.   At the time he was recovering from a serious accident and was confined to “his chair”.  He agreed to the vehicle being used on the strict understanding that his daughter was to attend to all  “legalities”,  and  she  agreed  to  do  so.    The  vehicle  was  then  used  by  his daughter’s then partner.  Unfortunately neither of them checked the warrant.

[4]      Mr L   defended himself and the hearing was lengthy.  Evidence for the defence was given by Mr L  , his daughter, Amanda, the driver of the vehicle, Mr Mackie, and  a  passenger  in  the  vehicle,  Mr  Connolly.    Understandably the Justices  of  the  Peace  focussed  on  the  question  of  whether  or  not  the  vehicle displayed a warrant at the relevant time and whether Mr L   was the owner of the vehicle.   This reflected the relevant statutory provisions and the definition of “operated” which catches a person who permits a vehicle to be used on the road, whether or not the person is present with the vehicle.

[5]      Obviously  Mr  L    is  deeply  concerned  about  the  blemish  to  his reputation and he has gone to considerable lengths to have the decision in the District Court overturned.   In essence he contends that there was insufficient evidence to prove the infringement and that the order for payment of the infringement fee and Court costs was not justified.

[6]      In a carefully developed argument Mr L   questioned whether there had been any breach of s34(1)(b) of the Land Transport Act 1998.  In addition, drawing on matters referred to in Ms Butchard’s submissions, he argued that he was,  in all the circumstances, totally without fault in terms of MacKenzie v Minister of Civil Aviation [1983] NZLR 78. Despite my impression that Mr L was unlikely, as a matter of law, to succeed on either of those points, I nevertheless formed the clear impression that he should be discharged without penalty. Understandably this possibility was not addressed by the Justices. If they had had the benefit of the argument that I have heard, they may well have arrived at the same conclusion.

[7]      The factors that have persuaded me that this Court should intervene and quash the District Court decision are:  First, Mr L   had suffered an extremely serious accident before the events giving rise to the allegation against him and at the relevant time he was not in a position to address the warrant issue.  Second, but for that accident he would have obtained a warrant.   Third, he specifically asked his daughter to make sure that all legalities were attended to before the vehicle was used. Although it emerged during cross-examination that he had not specifically referred to a warrant, this was implicit in the direction to attend to “all legalities” or , as it was put by Mr L  ’s daughter, to attend to “all stickers”.   Fourth, this requirement was passed on to the driver of the vehicle.  Fifth, it is not disputed that the vehicle was in excellent condition.  Sixth, both the driver of the vehicle and Mr L  ’s daughter unreservedly accepted responsibility when they gave evidence. Indeed, Mr Mackie asked the police officer to issue him with the ticket for no warrant  of  fitness.    Finally,  in  their  decision  the  Justices  actually  raised  the possibility of Mr L  ’s daughter and Mr Mackie paying the penalty and Court costs.

[8]      Given  this  extremely  unusual  set  of  circumstances  a  finding  that  the infringement was proved, coupled with the penalty, is out of all proportion to Mr L  ’s culpability.  The appeal is allowed and the decision of the Justices is set aside.   The order for payment of an infringement fee and costs is quashed.   This outcome does not imply any criticism of the Justices.  Rather, it reflects an entirely different perspective arising from the opportunity provided by the appeal to take a second look at the matter.

Solicitors:         Crown Solicitor, Christchurch

Copy to:           The Appellant