M v Police HC Wellington CRI-2008-485-133
[2008] NZHC 1836
•24 November 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2008-485-133
M
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 18 November 2008
Appearances: Appellant in person
G Kelly for the Respondent
Judgment: 24 November 2008
RESERVED JUDGMENT OF CLIFFORD J
Introduction
[1] Mr M , the appellant, was found guilty after a defended hearing before Justices of the Peace on 5 September 2008 of the offence of driving a motor vehicle at a speed exceeding the applicable speed limit, that offence having been detected by a speed camera. Mr M was fined $80 and was ordered to pay Court costs of
$30. Mr M now appeals against his conviction.
[2] Section 133 of the Land Transport Act 1998 (“the Land Transport Act”)
provides that not only may the person driving the vehicle involved be convicted of such an offence, but also a registered owner or a person lawfully entitled to
M V POLICE HC WN CRI-2008-485-133 24 November 2008
possession of that vehicle. It was as the registered owner – and not the driver – of that vehicle that Mr M was convicted. Mr M appeals on the ground that the Justices were wrong to convict him on that basis.
[3] Mr M considers that a fundamental principle is involved in this appeal, namely that a person should be fairly informed by a prosecuting authority of the basis of the charge against him.
Facts
[4] On 5 January 2008, a vehicle registered in the Mr M ’s name was detected by speed camera travelling on State Highway 2 at 85 kilometres per hour,
15 kilometres per hour in excess of the speed limit, contrary to s 40 of the Land Transport Act and r 5.1 of the Land Transport (Road User Rule) Regulations 2004. An infringement notice was issued and served on 21 January 2008 alleging that offence. This was followed by a reminder notice in respect of that alleged offence (“the Reminder Notice”). Mr M then denied that alleged offence and requested a hearing pursuant to s 21 of the Summary Proceedings Act 1957. A notice of hearing was subsequently issued on 27 February 2008 (“the Notice of Hearing”) and the substantive hearing took place on 5 September 2008.
[5] At the hearing, the prosecution proceeded against Mr M as the registered owner of the vehicle, as provided by s 133(1)(b) of the Land Transport Act. Mr M , in his defence, briefly cross examined the responsible police traffic camera operator. Mr M showed the speed camera photograph on which the prosecution was based to the camera operator and asked him to identify the driver. The operator was unable to do that. Mr M asked no further questions. Mr M then submitted that:
(a) As the only police witness had been unable to identify the driver; and
(b)As the infringement notice alleged Mr M had been driving the vehicle,
the essential element of the offence had not been proven by the prosecution, who carry the burden of proof.
[6] Notwithstanding that submission, the Justices found Mr M guilty. They did so, as the prosecution had argued they should, in reliance on s 133(2) of the Land Transport Act.
Grounds of appeal
[7] Mr M advanced four grounds of appeal:
(a) The Police did not prove the charge against him beyond reasonable doubt, as the identity of the driver was not proven.
(b)The Police were on notice that he would defend the charge on the basis of s 133(1)(a) Land Transport Act, but instead prosecuted on the basis of s 133(1)(b).
(c) The information did not contain sufficient particulars insofar as he did not know that the Police intended to prosecute on the basis of s 133(1)(b) of the Land Transport Act, instead of s 133(1)(a).
(d)The Justices of the Peace erred in applying s 133(2)(a), as the Police did not prosecute on the basis of s 133(1)(b), therefore rendering s 133(2) inapplicable.
Discussion
[8] I think it is fair to say that each of Mr M ’s individual grounds of appeal reflect the same central proposition. That is, Mr M points to the fact that the Reminder Notice and the subsequent Notice of Hearing were both addressed to him in terms that he “drove a motor vehicle on State Highway 2 at a speed exceeding 70 kph being an offence detected by an approved vehicle surveillance equipment”. On that basis, Mr M argued:
(a) That he was being prosecuted under s 133(1)(a) of the Land Transport Act as the person “who allegedly committed the offence”. The wording of both the Reminder Notice and the Notice of Hearing “fitted neatly” with a prosecution under s 133(1)(a).
(b)That he was not being prosecuted under either of s 133(1)(b) or (c) of that Act.
(c) That his entry of a plea of not guilty could only, in effect, be a response to proceedings against him under s 133(1)(a).
(d)That, therefore, it was not open to the Justices to convict him on the basis of the conclusive presumption contained in s 133(2), namely that where proceedings are taken against a person under (b) or (c) of subs (1), it is to be conclusively presumed that the defendant was the driver or person in control of the vehicle at the time of the alleged offence and accordingly that the acts or omissions of the driver or person in charge of the vehicle at that time were the acts or omissions of the defendant.
[9] In order to consider these central propositions it is necessary to set out the relevant statutory provisions in detail.
[10] The offence with which Mr M was charged is created by a combination of s 40 of the Land Transport Act, reg 4 of the Land Transport (Offences and Penalties) Regulations 1999 (“the Offences and Penalties Regulations) and r 5.1 of the Land Transport (Road User) Rules 2004 (“the Road User Rules”).
[11] Section 40 of the Land Transport Act provides:
Contravention of ordinary rules
(1)A person commits an offence if the person contravenes a provision of an ordinary rule and the contravention of that provision is for the time being prescribed as an offence by regulations made under section 167.
(2)If a person is convicted of an offence referred to in subsection (1), the person is liable to the applicable penalty set out in the regulations.
[12] Rule 5.1 of the Road User Rules (an ordinary rule as referred in s 40 of the
Land Transport Act) provides:
Drivers must not exceed speed limits
(1)A driver must not drive a vehicle at a speed exceeding the applicable speed limit (being a permanent, variable, holiday, urban, rural, temporary, or other speed limit).
[13] Regulation 4 of the Offences and Penalties Regulations provides:
Infringement offences
(1)A breach of a provision specified in the first column of Schedule 1 for which an infringement fee is specified in Schedule 1 is an infringement offence against the Act.
[14] Rule 5.1 of the Road User Rules is listed in Schedule 1 of the Offences and
Penalties Regulations, and an infringement fee is specified as required.
[15] In terms, therefore, of s 40 of the Land Transport Act, a breach of r 5.1 of Road User Rules is an offence, being a breach of an ordinary rule that is prescribed to be so by reg 4 of the Offences and Penalties Regulations.
[16] Fundamental to the resolution of this appeal, it is to be noted that the offence itself is that of a driver driving a vehicle at a speed exceeding the applicable speed limit. Therefore, where a vehicle is detected by a speed camera travelling in excess of the speed limit, the only offence is respect of which an infringement notice can be issued, and the only offence that can be alleged, is the offence of a person driving a motor vehicle at a speed exceeding the applicable speed limit.
[17] When, as in Mr M ’s case, detected by approved vehicle surveillance equipment, the offence of breaching r 5.1 is what is known as a “moving vehicle offence”, as defined in s 2 of the Land Transport Act. The status of this offence, as a moving vehicle offence, has an important consequence. As a moving vehicle offence, the special regime of owner liability established by s 133 of the Land Transport Act applies.
[18] Section 133 provides as follows:
Owner liability for moving vehicle offences
(1) Proceedings for a moving vehicle offence may be taken against any
1 or more of the following persons:
(a) The person who allegedly committed the offence:
(b)A person who, at the time of the alleged offence, was registered as the owner, or 1 of the owners, of the vehicle involved in the offence in a register kept under section 18 of the Transport (Vehicle and Driver Registration and Licensing) Act 1986:
(c)A person who, at the time of the alleged offence, was lawfully entitled to possession of the vehicle involved in the offence (whether jointly with any other person or not);—
whether or not (in the case of a person referred to in paragraph (b) or paragraph (c)) the person is an individual or was the driver or person in charge of the vehicle at the time the alleged offence was committed.
(2)In proceedings taken against a person under paragraph (b) or paragraph (c) of subsection (1), it is to be conclusively presumed that—
(a)The defendant was the driver or person in charge of the vehicle at the time of the alleged offence (whether or not the person is an individual); and accordingly
(b)The acts or omissions of the driver or person in charge of the vehicle at that time were the acts or omissions of the defendant.
(3)It is a defence to proceedings against a person for a moving vehicle offence if another person has, by virtue of an order under the Summary Proceedings Act 1957, become liable to pay a fine or costs, or both, in respect of the offence.
(4)It is a defence to proceedings against a person under paragraph (b) or paragraph (c) of subsection (1) if,—
(a) At the time the alleged offence was committed,—
(i)The person was not lawfully entitled to possession of the vehicle (either jointly with any other person or severally); or
(ii) Another person was driving the vehicle; and
(b)Immediately after becoming aware of the alleged offence, the person advised the enforcement authority in writing that, at the time the offence was committed, he or she was not
lawfully entitled to possession of the vehicle or another person was driving the vehicle (as the case may be); and
(c)The person has given the enforcement authority a statutory declaration—
(i)Identifying the driver, by giving the name and address of the driver or such other particulars within the person's knowledge as may lead to the identification of the driver; or
(ii) Establishing that the person could not identify the driver, after taking all reasonable steps to do so.
(5)In proceedings for a moving vehicle offence, a statutory declaration given under subsection (4) is, in the absence of proof to the contrary, sufficient evidence of the matters stated in the declaration; and it is admissible for all purposes of any proceedings under this section.
[19] Section 133, as can be seen, does not itself create any offence. Rather, it provides that proceedings for a moving vehicle offence may be taken against any one or more of the persons:
(a) who allegedly committed the offence; or
(b)who at the time of the alleged offence was the registered owner of the vehicle; or
(c) who at the time of the offence was lawfully entitled to possession of the vehicle.
[20] Such proceedings may be taken whether or not the person who was registered as the owner, or was lawfully entitled to possession, of the vehicle was an individual or was the driver or person in charge of the vehicle at the time the alleged offence was committed.
[21] Mr M ’s principal contention, that each of the Reminder Notice and the Notice of Hearing were effectively referring to a prosecution under s 133(1)(a), falls to be considered against that background.
[22] In my judgment, the Reminder Notice and the Notice of Hearing correctly refer to the offence in question. That is, and as noted above, the offence in question is that of driving a motor vehicle in excess of the relevant speed limit.
[23] Both the Reminder Notice and Notice of Hearing also stipulate that that is an offence against “s 40 and s 133 of the Land Transport Act, reg 4 of the Offences and Penalties Regulations, and r 5.1 of the Road User Rules 2004”. The reference to s 133 of the Land Transport Act further indicates that the proceedings are being brought under that section, including therefore that they are being taken against “any one or more” of the persons who allegedly committed the offence and the registered owner, or the lawful possessor, of the vehicle, whether or not the registered owner or lawful possessor was the driver or person in charge of the vehicle at the time the alleged offence was committed.
[24] In essence, I do not consider it necessary for either of the Reminder Notice or the Notice of Hearing to refer extensively to subs (a), (b), and (c) of subs (1) for any of those prosecution options to be available.
[25] In support of his appeal, Mr M relies on s 17 of the Summary Proceedings Act 1957. He also refers to his rights under s 24 of the New Zealand Bill of Rights Act 1990, as a person charged with an offence to be informed promptly and in detail of the nature and cause of the charge.
[26] Technically, s 17 of the Summary Proceedings Act only applies to informations, not notices of hearing, but there are obvious parallels and it provides a useful guide:
17 Information to contain sufficient particulars
Every information shall contain such particulars as will fairly inform the defendant of the substances of the offence with which he is charged.
[27] This requirement was elucidated in Police v Wyatt [1966] NZLR 1118 at
1133 (CA). McCarthy J stated:
What s. 17 sets out to do, I believe, is to make two things clear: 1. That it is not obligatory to state an offence in the ipsissima verba of the section creating the offence; and 2. That sufficient particulars must be given reasonably to inform the person charged of the act or omission alleged and to identify the transaction. A requirement stated in the general terms of s. 17 cannot be reduced to a mere list of particulars which is to be common in all charges. Obviously the degree of particularity needed to inform a person adequately of the substance of a charge must vary according to the nature of the offence. I point out that it is the substance, the essence or pith, of the charge which must be revealed by the particulars, not the details relied upon to establish the charge. It will, I think, be readily apparent that in some cases only a few particulars will be necessary to convey the substance. In others, especially where the offence is a complex one … more will be required.
[28] The Court of Appeal again turned its mind to the issue in R v Terry
CA460/03 6 April 2004:
[13]Section 17 of the Summary Proceedings Act 1957 provides that "every information shall contain such particulars as will fairly inform the defendant of the substance of the offence with which he is charged". (Emphasis added) That provision was fully canvassed by this Court in Police v Wyatt [1966] NZLR 1118 (CA). The Court there pointed out that the substance of the charge must vary according to the nature of the offence, and it is the essence or pith of the charge which must be revealed by the particulars, not the details relied upon to establish the charge.
[14]As to the inclusion of the statutory provision creating the offence in an information, in R v Cahill [1956] NZLR 383, Cooke J noted that the Court may have regard to any reference in the information to the section or subsection of any enactment creating the offence in considering whether the substance of the offence has been adequately stated. That said, s17 does not in terms require reference to a section as a particular which will fairly inform a defendant of the charge, although this Court has observed that it is better practice for an information to include such a reference (see R v Latu, CA262/01, 18 October 2001).
[29] In this instance, the Reminder Notice and the Notice of Hearing both refer to each of the relevant statutory provisions. Furthermore, the reverse side of the Reminder Notice effectively summarises the provisions of s 133. I do not think, therefore, that either of those documents was defective in terms of the possible applicability of s 17 of the Summary Proceedings Act or of s 24 of the New Zealand Bill of Rights Act, as the basis for a prosecution against Mr M that relied on Mr M ’s status as the registered owner of the vehicle. The wording of the Reminder Notice and the Notice of Hearing accurately reflect the charge faced by Mr M . This is perhaps not surprising, given they are standard forms provided
for by the Land Transport (Infringement and Reminder Notices) Regulations 1998. The reference to s 133, and the extended explanation provided on the reverse side of the Reminder Notice, put a person in Mr M ’s position on notice as to the alternative bases upon which the registered owner of the vehicle in question can be found guilty of that charge, notwithstanding the fact that they were not driving the vehicle at the relevant time.
[30] Mr M ’s further argument, based on the wording of s 130(2), was that the Reminder Notice and the Notice of Hearing were defective because as the Reminder Notice and the Notice of Hearing did not specifically mention s 133(1)(b) or (c), it could not be said that the proceedings had – as required for s 130(2) to apply – been brought against him “under (b) or (c)”. Therefore, the conclusive presumption did not apply, and it was not open to the Justices to find him guilty.
[31] For similar reasons as I have set out above, I do not accept that submission. In my judgment, the proceeding was brought against Mr M in reliance on s 133, including subs (b) and (c).
[32] More generally, Mr M argued that he had made it clear, both by his not guilty plea and by the way he approached his defended hearing, that he intended to defend the charge on the basis that he was not the driver. He argued that, given that the statutory defences that exist as regards the establishment of liability under subs (b) and (c) depend on the provision of a statutory declaration in the first instance, a not guilty plea was obviously directed at charges laid specifically against the person actually driving the vehicle. His submission was, I understood, that a not guilty plea only made sense in that context.
[33] I accept that it may have been Mr M ’s intention to defend the charge on the basis that it would not be possible for the prosecution to prove that he was the driver. By his assessment (as he confirmed to the Court), the photographic evidence showed that the person driving the vehicle was not him. That, however, does not in my view mean that the Police were therefore bound to prosecute him under s 133(1)(a) only.
[34] I think it has to be accepted that, in the great majority of cases, prosecutions for infringement offences detected by approved vehicle surveillance equipment will, in the first instance, be sent to registered owners and prosecuted on the basis that either the registered owner was the driver or on the alternative bases available under subs (b) and (c). When prosecutions are commenced it is unlikely that the agency which issues the infringement notice, and subsequently the prosecuting authority, will know whether or not the owner was the driver. That a person intends to plead not guilty, and argue that they were not the driver, cannot therefore preclude the prosecution from proceeding on the basis of subs (b) or (c). Rather, it tends to underscore the reason why subs (b) (and (c) exist in the first place.
[35] Finally, in terms of Mr M ’s argument that the Police did not prove the case against him, because the identity of the driver was not proven, that argument is answered by the analysis I have set out of the relevant statutory provisions, and how they provide a basis for the prosecution of the offence. Put simply, the Police did not need to prove the identity of the driver, as they relied on the alternative mode of proceeding.
[36] Mr M also considered that the prosecutor on the day of his defended hearing had acted unfairly. As Mr M described matters, there had been two previous appearances by him in Court. The first was to answer the Notice of Hearing on a preliminary basis. The second had been intended to be the substantive hearing, but he had sought an adjournment because he had not received disclosure of the prosecution case. On neither occasion, he indicated, was the basis upon which the prosecution would proceed made clear. Therefore when, at the start of the defended hearing, the transcript records that the prosecutor indicated it was the Crown’s intention to proceed against Mr M on the basis of subs (b) and (c), Mr M contends that the prosecution was acting unfairly. It was unfair, because the only sensible inference from Mr M ’s plea of not guilty was that he did not intend to rely on the defences provided to the conclusive presumption, but that he intended to argue that he was not the actual driver.
[37] I do not consider that to be “unfair”. As noted above, the conclusive presumption created by s 133(2) operates to facilitate a prosecution in that very
circumstance. Furthermore, it is possible that an actual driver would plead not guilty, and advance his case on the basis of some technical defence to the prosecution. Therefore the prosecution may not know, in advance of a hearing, whether they will in reality need to rely on the extended liability created by subs 133(b) and (c), and the conclusive presumption created by s 133(2).
[38] In my judgment, and having regard to each of the four grounds of appeal Mr
M advanced, this appeal does not succeed. In summary:
(a) It was not necessary for the Police to prove the identity of the driver. (b) The Police were not, in any way that limited their prosecutorial
discretion, on notice that Mr M would defend the charge on the basis of s 133(1)(a) so as to preclude their reliance on s 133(1)(b).
(c) Both the Reminder Notice and the Notice of Hearing did contain sufficient particulars to support a prosecution on the basis of s 133(1)(b).
(d) The Justices of the Peace therefore did not err in applying s 133(2)(a).
[39] The difficulty Mr M ’s appeal faced was the result of the unusual legal situation created by the combination of r 5.1 and s 133. Whilst the r 5.1 offence is that of being a driver who exceeds the speed limit s 133 provides, quite clearly, that a person who is not the driver may nevertheless be convicted of that offence. The wording of the Reminder Notice and the Notice of Hearing, rather than “fitting neatly” into s 133(1)(a), reflect the wording of the relevant statutory offence. That is the only offence wording that is available to be used. At the same time, the reference to s 133, and the extended explanation of the significance of that contained in the Reminder Notice, clearly puts a defendant on notice of the various ways in which they can be proceeded against in respect of that offence.
[40] I therefore dismiss Mr M ’s appeal against his conviction. In so doing, however, I record that Mr M advanced his arguments with a considerable
degree of skill, both in terms of his analysis of the legal issues involved and in terms of his advocacy of his case.
“Clifford J”
Solicitors: Duncan M , 47 Hohirira RD, Hataitai, Wellington, appellant (Fax 389 6751) The Crown Solicitor, Wellington for respondent ([email protected])
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