M v Police HC Hamilton CRI 2006-419-22

[2006] NZHC 558

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-419-22

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 May 2006

Appearances: G O'Brien and G J X McCoy for the appellant

J Mackie for the respondent

Judgment:      24 May 2006

JUDGMENT OF ELLEN FRANCE J

[1]      The appellant was convicted of operating a motor vehicle in a manner that caused the vehicle to undergo sustained loss of traction in contravention of s 22A(3) of the Land Transport Act 1998.  This is an offence under s 36A(1)(c) of the Land Transport Act.  The appellant was disqualified from driving for six months.  A fine of $150 plus court costs of $130 was imposed.

[2]      The appellant appeals against his conviction and sentence.

M   V NZ POLICE HC HAM CRI 2006-419-22  24 May 2006

Factual background

[3]      The  incident  giving  rise  to  the  conviction  took  place  about  9.15pm  on

14 September 2005.   Two Police Officers observed a Mitsubishi van in a carpark. Constable Strongman said he observed the van start up.  He said it accelerated and then did a “violent” right-hand turn.   There was a loss of traction, squealing of wheels and the van completed a 360 degree turn before leaving the carpark.   The Constable described this as a “wheelie”.

[4]      The other Police Officer, Senior Constable Warren, also saw the van start up. He said what happened next was “rev, rev, the clutch dropping and turning in a donut.”   The Senior Constable said the vehicle had “careened” to the right.   His evidence was it was clear that it had done a 360 degree turn, or slightly more than that, before leaving the carpark area.

[5]      The appellant called no evidence although there was some cross-examination of the two Police Officers.

Statutory scheme

[6]      Section 36A is headed “Contravention of section 22A”.  In terms of s 36A, a person commits an offence if the person operates a motor vehicle in a race, or in an unnecessary  exhibition  of  speed  or  acceleration,  on  a  road  in  contravention  of s 22A(1); or if the person,

(1)(c)  without reasonable excuse, operates a motor vehicle on a road in a manner  that  causes  the vehicle to  undergo  sustained  loss  of  traction  in contravention of section 22A(3).

[7]      Section 22A reads as follows:

Persons not to engage in unauthorised street or drag racing, or other related prohibited activities on roads.

(1)   A  person  must  not  operate  a  motor  vehicle  in  a  race,  or  in  an unnecessary exhibition of speed or acceleration, on a road unless the operation of the vehicle in that manner is authorised by law.

(2)   A person must not, without reasonable excuse, intentionally pour onto, place on, or allow to spill onto a road –

(a) Any petrol, oil, or diesel fuel; or

(b) Any other substance likely to cause a vehicle to undergo loss of traction

(3)   A person must not, without reasonable excuse, operate a motor vehicle on a road in a manner that causes the vehicle to undergo sustained loss of  traction  unless  the  operation  of  the  vehicle  in  that  manner  is authorised by law.

(4)   In this section and in section 96(9), the operation of a motor vehicle in a particular manner is authorised by law if,

(a) in the case of a race or an exhibition of speed or acceleration,

(i)  the speed of the vehicle is within the applicable speed limit or speed limits; and

(ii) the  vehicle  operator  does  not  contravene  any  enactment other  than  this  section  that  applies  in  relation  to  the operation of the vehicle; or

(b) the  operation  is  conducted  on  a  road  that  is  closed  for  the purpose under section 319(h) or section 342 of the Local Government Act 1974, and is conducted in accordance with the conditions (if any) imposed under the Schedule 10 of that Act; or

(c)  the operation is otherwise authorised by or under an enactment other than this section.

The District Court Judge’s decision

[8]      The District Court Judge dealt first with the statutory provisions noting that s 36A(1)(c) indicates the offence is committed where, without reasonable excuse, a person operates a motor vehicle on a road in a way that causes the vehicle to undergo a sustained loss of traction in contravention of s 22A(3).

[9]      The Judge noted that s 22A “imposes obligations” on persons not to engage in what are known as boy racer activities.  The Judge observed that the appellant was not charged with an offence relating to s 22A(1) which relates to unnecessary exhibition of speed.  Rather, he was charged with an offence under s 36A(1)(c) and is subject to s 22A(3).   The Judge took the view that the available defences were those set out in s 22A(4)(b) and (c) which deal with where the road is closed or

where the operation of the vehicle is authorised under any other enactment, but neither of those defences applied to the appellant’s driving situation.   The Judge rejected the appellant’s submission that the defence in s 22A(4)(a) was available to him.

[10]     The Judge then went on to determine whether the driving observed by the two Police Officers involved a sustained loss of traction.  The Judge continued:

That phrase was considered in Whitburn v NZ Police (unreported, CRN2088020930, High Court Whangarei, 29 June 2004, Laurenson J).   In that case Laurenson J concluded that a sustained loss of traction as used in s

22A and s 36A is driving which was being consciously maintained by the

driver either by allowing or causing loss of traction to continue.  The driving observed by both Constables is clearly driving that falls within the ambit of that definition in that  colloquially both officers  described  the driving as being a wheelie or a donut, the very type of driving behaviour which this legislation is aimed at.

[11]     Accordingly, the Judge was satisfied that, objectively, the driving fell within the  sustained  loss  of  traction  definition.     The  Judge  was  also  satisfied  that ss 36A(1)(c) and 22A(3) had been contravened and the defences in s 22A(4) had no application in relation to this driving incident.

[12]     In terms of sentencing, the Judge took into account that the appellant had not previously appeared in Court and was still relatively young.   The Judge also took into account the fact the “wheelie” was done in an area where there was no risk to anyone else at that particular point in time.  The evidence was that this was a very well lit area, a large carpark, with no pedestrians or any other vehicles around at the time.  Hence it was seen as an offence at the lower end of the scale for this type of offending.

[13]     The  mandatory period  of disqualification was  imposed,  that  is  6  months disqualification from driving.   A fine was imposed but reduced to take account of where the incident had taken place.   A fine of $150 plus Court costs of $130 was imposed.

Appellant’s submissions

[14]     There is no dispute about the factual situation.  The only issue is whether the Judge was right to exclude the defence in s 22A(4)(a).  The appellant’s argument is based, first, on the fact s 22A(3) prohibits the “wheelie” type driving unless that form of driving is “authorised by law”.  The only way to make sense of the exception for matters “authorised by law” is for s 22A(4)(a) to (c) to apply.  Otherwise, there is nothing in the Act about what it means to be “authorised  by law”  in s 22A(3). Second, the appellant says this argument is supported by the fact the phrase “authorised  by  law”  is  used  in  s  22A(1).    Finally,  s  22A(4)  provides  that  the definition of “authorised by law” applies “in this section”, i.e. to the whole of s 22A.

Respondent’s submissions

[15]     The respondent says the Judge was right and s 22A(4)(a) can only apply to s 22A(1), i.e. where a vehicle is being operated in a manner of “an exhibition of speed or acceleration”.  The words “authorised by law” in s 22A(3) cannot apply to a defence under s 22A(4)(a) and that interpretation is consistent with the legislative purpose.    Even  if that  is  not  so, the  appellant’s  driving  does  not  come  within s 22A(4)(a).

Discussion

[16]     The respondent relies on the decision of John Hansen J in Police v Whelan (2005) 21 CRNZ 799 which dealt with an appeal by way of case stated following an acquittal on  a  charge  of driving  with  an  unnecessary  exhibition  of acceleration contrary to ss 36A(1)(a) and 22A(1).

[17]     John Hansen J set out a number of passages from the report of the select committee considering the “boy racer”  legislation.    Those passages are usefully reproduced here as taken from His Honour’s judgment:

[13] The Select Committee report on the Bill stated at p 2:

There are obvious safety concerns due to the nature of the activity, the large number of spectators, and the likelihood of loss of control of the road, given that  the  vehicles  often  have  dangerous   modifications  to  brakes  and suspensions  and that  participants  may pour  oil  and  diesel  on  the roads. Other associated problems include petty crime, intimidation, vandalism, graffiti, drunkenness and litter.

The report also stated at p 6:

The main amendment specifies that street racing and related activities are illegal  if  not  “authorised  by  law”.     This  will  ensure  that  legitimate competitive events such as motorkhanas, time trials, fuel runs, navigational exercises, charity runs and treasure hunts are not captured by the bill if they are authorised under existing law.

[14]  During the debate in the House the Minister of Transport on 1 April

2003 (Hansard p 4548):

The select committee has recommended certain changes in order to address concerns that the bill might unintentionally apply to legitimate motoring competitions.  In particular, the committee has recommended that where the activity is authorised by law,  it  is  not  an offence.  In the case of races, “authorised by law” can mean that the vehicle complies with the speed limit and is operated in accordance with all other aspects of traffic law.   It also includes a race on a road where it has been closed by the council for that purpose.    Acknowledging  that  some racing  activities  may  be authorised under the bill, the committee has also recommended the bill be renamed the Land Transport (Unauthorised Street and Drag Racing) Amendment Bill.

[18]     Whelan  was  addressing  the  correctness  of  a  decision  to  dismiss  the prosecution on the ground that the spinning of the front wheels (an unnecessary exhibition of acceleration) had occurred in the period of acceleration prior to the speed  limit  being  exceeded  and  so  availing  the  defendant  of  the  defence  in s 22A(4)(a).

[19]     John Hansen J took the view the defence was not available.  For there to be an “unnecessary exhibition of acceleration” did not necessarily require wheel- spinning as had occurred in that case.   In reaching this conclusion, John Hansen J said the Act had to be interpreted on a purposive basis and the driving “viewed as one continuum”.  The District Court Judge had interpreted the Act in the same way Stephen Franks, MP, had done in the debates on the Bill.  His Honour said that the interpretation captured in the passage below from Mr Franks’ speech was wrong:

So, in other words, it will be perfectly permissible to continue wheelspinning away from the lights as long as one does not do it at over 50 kilometres an hour.  People can wheelspin all the way to 50 kilometres an hour, or all the

way to 100 kilometres an hour on the open road, and they can do a doughnut, if it does not endanger others, if it is not careless driving, and if it does not break one of the other existing laws.  [Hansard P 4581]

[20]     Given the stated purpose of the Act, namely, to include provisions intended to address the problem of (amongst other things), “wheel spinning”, the Act could not be “viewed in isolation”.  John Hansen J continued:

[23]  There will be many circumstances where the driving commences with spectacular acceleration, as here, and continues with hard acceleration.   If the wheel-spinning is the only part of the offence to be considered normally it will be concluded before the speed limit is exceeded.  In my view that is not the intention of Parliament.

[24]  I am quite satisfied that in cases like this, where the driving is over a relatively short distance, it must be looked at as a continuum.   If it is, the defence available under s 22A(4) disappears.   It would be different if the acceleration had been hard to 50 kph as here, and there then followed a distance of driving within the lawful speed limit, followed by new acceleration to excess of the speed limit.  But that is not the situation here. The driving, from start to exceeding the speeding limit, was one act and should have been viewed as such.

[21]     The issue in Whelan was different  from that  in the present  case but  the discussion is helpful in capturing some of the policy concerns underlying the legislation.   The point in this case is, in my view, straightforward.   The language used in s 22A(4)(a) makes it plain this defence is linked to s 22A(1).   Why else would the phrase “in a race or an exhibition of speed or  acceleration” used  in describing the offence in s 22A(1) be repeated in s 22A(4)(a)?

[22]     As  to  the  appellant’s  argument  that  there  is  otherwise  no  meaning  for “authorised by law” in s 22A(3), the Judge was right that the defences in s 22A(4)(b) and (c) are available where the charge relates to the contravention of s 22A(3).  That means there is no need to adopt the interpretation advanced by the appellant.   As neither (b) nor (c) apply to the appellant’s case, the charge against him was proven.

[23]     The appellant accepts the sentence imposed is not manifestly excessive.

Result

[24]     The appeal against conviction and sentence is accordingly dismissed.

Ellen France J

Delivery time:    24 May 2006 at 2.15pm

Solicitors/Counsel:

Crown Solicitor, PO Box 19173, Hamilton

G O’Brien, PO Box 79, Te Awamutu