Matten v Police

[2012] NZHC 1893

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-442-14

CRI-2012-442-15 [2012] NZHC 1893

JOHN WILLIAM MATTEN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 July 2012

Counsel:         Appellant in person

J M Webber for Respondent

Judgment:      31 July 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 4.30pm on the 31st day of July 2012.

RESERVED JUDGMENT OF MACKENZIE J

[1]      Mr Matten appeals against his conviction following a defended hearing on two speeding infringement offences.

[2]      Mr Matten’s vehicle was, on 16 March 2011, checked by a speed camera, travelling at 56 kilometres per hour in Tahunanui.  On 10 August 2011, his vehicle was  again  checked  by  a  speed  camera,  travelling  at  61 kilometres  per  hour  in

Wakefield.

MATTEN V NEW ZEALAND POLICE HC NEL CRI-2012-442-14 [31 July 2012]

[3]      Infringement notices for both matters were apparently sent to Mr Matten at the address recorded in relation to his driver’s licence.  That was out of date, because it pre-dated his move to Nelson and he had not lived at the address for some years. The statutory processes for an infringement notice in respect of which no steps are taken were accordingly followed and led to the imposition of penalties of $30 and

$80 respectively.

[4]      The fact of the penalty in respect of the second infringement notice came to Mr Matten’s attention and he wrote on 17 October 2011 expressing his displeasure at the situation. The first infringement notice also appears to have come to his attention about   that   time   and   he   wrote   an   undated   letter,   noted   as   received   on

18 November 2011 protesting about that also.

[5]      To  address  the  issue  of  the  penalties  to  which  he  had  been  subjected, Mr Matten made application under s 79B of the Summary Proceedings Act 1957 through the District Court at Nelson, applying for a correction of irregularities in the procedure leading up to the order made against him.  The stated ground was that he did not receive the reminder notice or a copy of the notice of hearing.   That application was granted and the prosecutor was authorised to serve another copy of the reminder notices on the applicant at his address in Nelson.   That was done. Mr Matten defended the proceedings at hearing before two Justices of the Peace on

13 April 2012.   The Court found both infringements proven and imposed fines of

$30 and $80 respectively, and Court costs of $30.67.

[6]      Mr Matten appeals against his conviction, essentially on the grounds that, in the light of the procedures followed in this case, the case against him should not have proceeded.   He also disputes the statement in the infringement notices, and referred to by the Justices, that he was the driver of the vehicle.

[7]      I deal first with the second point.  Each of the notices of hearing alleged that Mr Matten drove a vehicle at a speed exceeding 50 kilometres per hour.   Because these were speed camera offences, there was no evidence that Mr Matten was the driver at the time.   Mr Matten as owner of the vehicle was however liable under s 133 of the Land Transport Act 1998 (the Act) which provides as relevant:

(1)Proceedings for a moving vehicle offence [or a special vehicle lane offence]  may  be  taken  against  any  1  or  more  of  the  following persons:

(a)       The person who allegedly committed the offence:

[(b)      the  person who, at  the  time  of  the  alleged offence, was registered under Part 17 in respect of the vehicle involved in the offence (or, if the offence is alleged to have been committed before the commencement of section 242, a person  who,  at  the  time  of  the  alleged  offence,  was registered as the owner, or 1 of the owners, of that vehicle 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),  [in  the  absence of  proof to the contrary, it must be 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 …

(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.

[8]      By virtue of subs (1)(b), it was unnecessary for the prosecution to prove that

Mr Matten was the driver of the vehicle at the time.  That ground of appeal must fail.

[9]      The fact that Mr Matten was proceeded against as the owner, rather than the driver, is however relevant to the ground of appeal which is based on the fact that Mr Matten did not receive the original infringement notices.

[10]     It was necessary that Mr Matten be served.  An infringement notice may be served by any of the methods prescribed in s 139(2) of the Act.  That provides:

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.

[11]     It is common ground that the address to which the notices were sent was an address held in relation to Mr Matten’s driver’s licence.  For reasons which were not explained to me, the prosecutor did not use the address shown in the register for Mr Matten’s vehicle, which was his current residential address.

[12]     Mr Webber submits that service has been validly effected under s 139(2)(d). He submits that Mr Matten is the holder of a driver’s licence, which is a Land Transport document as defined in s 2 of the Act.

[13]     I am not satisfied that service has been validly effected.   While a driver’s licence is a Land Transport document, so too is a certificate of registration for a motor vehicle.  In this case, there were two different addresses on those documents. The address on the certificate of registration was up-to-date, the address on the driver’s licence records was not.

[14]     As I have described in dealing with the first ground of appeal, the relevant capacity  in  which  Mr Matten  incurred  liability  was  as  registered  owner  of  the vehicle.   It was not his capacity as the driver.   The prosecution had to prove that Mr Matten was the registered owner of the vehicle in the photographs.  A certificate under s 234 of the Act was produced by the prosecutor at the hearing.   In those circumstances, the appropriate address was that on the certificate of registration, not on the driver’s licence.

[15]     There is a difficulty with the use of the address on the driver’s licence records in this case.   There is no obligation under the Land Transport (Driver Licensing) Rule 1999 for the holder of a driver’s licence to notify a change of address.  There is

such an obligation in the Land Transport Motor Vehicle Registration and Licensing Regulations 2011.    Because  different  addresses  were  recorded,  and because the address on the more appropriate document was not used, I do not consider that the infringement notices can be treated as having been validly served on Mr Matten.

[16]     In Kane v Police French J held that an infringement notice which had not been properly addressed and served was a nullity and that invalidated the subsequent proceedings.1     I respectfully agree.   The subsequent application to correct irregularities under s 78B of the Summary Proceedings Act 1957 cannot cure that defect.

[17]     For these reasons, the appeal is allowed.  The fines and costs are quashed.

“A D MacKenzie J”

Solicitors:         O’Donoghue Webber, Nelson, for Respondent

Copy to:           Mr Matten

1      Kane v Police HC Timaru CRI-2008-476-3, 3 July 2008.