Lambert v Police

[2012] NZHC 3514

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-441-22 [2012] NZHC 3514

PHILIP JOHN LAMBERT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 December 2012

Counsel:         B Webby for Appellant

N M Graham for Respondent

Judgment:      17 December 2012

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against conviction)

Introduction

[1]      Mr Lambert was convicted after a defended hearing of using a document for pecuniary advantage; removing a vehicle identification number (VIN), contrary to s 40 of the Land Transport Act 1998; and affixing an unauthorised VIN in breach of r 11.8(3) of the Land Transport Rule: Vehicle Compliance 2002.  In the end he was sentenced  to  75 hours community work  on  the  using a document  for  pecuniary advantage charge and convicted and discharged on the other two charges.  He now

appeals against those three convictions.

PHILIP JOHN LAMBERT V NEW ZEALAND POLICE HC NAP CRI 2012-441-22 [17 December 2012]

[2]      The  appellant  says  that  there  was  confusion  between  VIN  numbers  and chassis numbers in the evidence and that the prosecution had not proved that he had removed the VIN number nor that he had fixed an unauthorised VIN number to the vehicle.    Further,  that  the  Judge  treated  the  two VIN  charges  as  strict  liability offences when they were not.

[3]      As far as the using a document for pecuniary advantage was concerned, the appellant says there was no evidence to establish beyond reasonable doubt that what Mr Lambert had done was for the purpose of obtaining a pecuniary advantage and, therefore, that charge had not been established.

[4]      Unfortunately the evidence in the transcript is somewhat difficult to follow but with the assistance of counsel for the respondent, the following appears to be the facts.

Background facts and District Court decision

[5]      On 15 September 2011, Mr Lambert was stopped by Constable Ferrera who conducted an inspection of his vehicle, a green Isuzu Bighorn.  The Constable who was also qualified as a mechanic believed the vehicle was a diesel vehicle and, therefore, subject to road user charges.  The appellant, however, told the Constable that the vehicle had been modified to a petrol vehicle.   It turned out that the registration plates on the vehicle belonged to a red Isuzu petrol motor vehicle and not the green Isuzu Bighorn.  The Constable gave Mr Lambert a ticket for failing to pay road user charges.

[6]      The Police officer noted that the manufacturer’s plate, which was secured to the vehicle inside the engine compartment, had a chassis number relating to the green Isuzu Bighorn.  This chassis number was the true number for the vehicle and indicated the vehicle was a diesel vehicle.

[7]      In late October 2011, Mr Lambert took his green Isuzu vehicle to AA for a compliance check.  At that stage he had a new manufacturer ’s plate on the vehicle. That manufacturer’s plate was different from the one that Constable Ferrera had seen six weeks earlier.  That particular number plate related to a blue Isuzu petrol vehicle. The AA inspector became suspicious about that chassis number and ultimately the matter was referred to the Police.

The VIN charges

[8]      The  prosecution  alleged  that  Mr Lambert  had  removed  the  proper  VIN number from the Isuzu vehicle and that he had put an unauthorised VIN number on that vehicle.   It was alleged that his purpose in doing so was to avoid road user charges by trying to disguise the vehicle as a petrol rather than a diesel vehicle.

[9]      The prosecution accept in this appeal that the convictions with respect to the VIN numbers cannot now be sustained in the form they appear in the two Informations.  Both Informations allege VIN numbered changes or removals by the appellant when in fact the evidence established that what was affixed and removed were chassis numbers.   I would not be prepared at this late stage to amend those Informations by alleging chassis numbers were affixed and removed.  The appeal is allowed with respect to the two VIN charges there being no evidence of any tampering or removal of VIN numbers.

Pecuniary advantages

[10]     With  respect  to  the  third  charge,  obtaining  a  pecuniary  advantage,  the respondent seeks an amendment to that Information.   The Information currently alleges an attempt to use a document, namely a vehicle identification number.   In fact the prosecution alleged the attempt was to use a document being a chassis number.   In the circumstances I am prepared to amend the Information.   Such an amendment  does  not  prejudice  Mr Lambert.     The  same  document,  being  the manufacturers label is alleged, in the Information.  The description of the number that is different, here a chassis number rather than a VIN number. The Information is

amended by deleting the words “vehicle identification number” and substituting

“chassis number”.

[11]     To turn, therefore, to this appeal against conviction.   The allegation of the Crown was relatively simple.  They said that what Mr Lambert did when he changed the manufacturer’s plate (from when he was stopped by the Police to the inspection by the AA) was designed, as the final bit of the jigsaw puzzle, to convince those who looked at the vehicle that this was a petrol vehicle and not a diesel vehicle.  He had previously changed the registration plate in an attempt to disguise the vehicle as a petrol Isuzu but as the Police officer who stopped him back in September identified, the manufacturer’s plate still identified the vehicle as diesel.  This evidence, in my view,   overwhelmingly   carries   the   inference   that   Mr Lambert   changed   the manufacturer’s plate to convince the enforcement authorities the vehicle was petrol. This was for pecuniary gain, that is, to avoid having to pay road user charges.

[12]     He untruthfully asserted to the Police officer when discussing the Isuzu that the vehicle had a diesel engine.  I accept the evidence of the Police officer, who was a qualified mechanic that it was a diesel rather than a petrol vehicle as Mr Lambert had asserted.

[13]     Secondly, Mr Lambert must have known that he was driving a vehicle that had a number plate belonging to a petrol motor vehicle.

[14]     Thirdly, there was the change in the manufacturer’s plate.   I am satisfied Mr Lambert recognised, from the discussion with the Police officer, that he would not be able to carry out his plan of disguising the vehicle as a petrol vehicle unless the manufacturer’s plate was changed.  Shortly after his discussion with the Police officer, his Isuzu vehicle appeared with a new plate. All of those factors point, in my view, overwhelmingly to the inference that Mr Lambert changed the plate for the purpose of obtaining a pecuniary advantage I have identified.

[15]     For the reasons given, therefore, the appeal will be dismissed.  I am satisfied the prosecution proved beyond reasonable doubt the appellant dishonestly changed the manufacturer’s plate for financial advantage.   No change to the sentence is required for my dismissal of the other Informations given the penalty imposed for

75 hours community work with respect to the pecuniary advantage charge.

Ronald Young J

Solicitors:

B Webby, Barrister, Hastings, email:  [email protected]
N M Graham, Elvidge & Partners, Napier, email:  [email protected]