McLean v Police HC Invercargill CRI-2011-425-000016

[2011] NZHC 638

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2011-425-000016

BETWEEN  COREY MALCOLM MCLEAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 June 2011

Appearances: Appellant in Person

E Riddell for Crown

Judgment:      14 June 2011 at 9:30 AM

JUDGMENT OF VENNING J

This judgment was delivered by me on 14 June 2011 at 9.30 am, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Invercargill

Copy to:            C M McLean, 78 Kakapo Street, Invercargill

MCLEAN V NEW ZEALAND POLICE HC INV CRI-2011-425-000016 14 June 2011

Introduction

[1]      The appellant appeals to this Court against a fine imposed in the District Court for breach of s 5(1)(d) of the Road User Charges Act 1977.  He was found to have operated a motor vehicle on a road where the reading of the distance recorder on his vehicle was more than the maximum reading specified in the distance licence carried.

[2]      He was fined $476 and ordered to pay Court costs of $132.89.

The appeal

[3]      The appellant represented himself.  His appeal was directed at the quantum of the fine and the complaint that the Court had failed to take into account his personal financial position.

[4]      However, during the course of the appeal the appellant also suggested the process may have been unlawful because his case was initially heard by Justices of the Peace.  He also raised the issue of whether he may have had a defence under s 23 of the Road User Charges Act.

The process

[5]      The process in this case miscued but it is not an invalidity and nor has it caused any prejudice to the appellant.  The offence the appellant was charged with is specified in Schedule 4 of the Road User Charges Act as a distance recorder offence. The schedule provides for the calculation of infringement fees (capped at $3,000). Section 23(6) of the Road User Charges Act provides that distance recorder offences may be proceeded  with  as  an  infringement  office in  accordance  with  the  Land Transport Act 1998.

[6]      In this case an infringement notice was issued.  There then followed a letter from the appellant admitting liability but making a submission as to penalty.  In his letter the appellant said:

I wish to, on s 2.(a), of the rights on the back of this ticket I have received, to admit liability.  To admit liability and have my economic situ[i]ation taken into consideration.

[7]      He then went on to provide details of his financial position.  The appellant’s response was effectively a notice requesting a hearing or at least was treated as such in terms of s 21 of the Summary Proceedings Act 1957.  Section 21(8)(d) of that Act provides the provisions of the Summary Proceedings Act apply in relation to the notice of hearing as if it were an information with the notice of hearing served on the defendant treated as a summons.   The notice requesting a hearing but admitting liability is treated as if it were a notice of the defendant pleading guilty to the offence.

[8]      The matter was dealt with before two Justices of the Peace on 25 November

2010 on that basis. They imposed a fine calculated in accordance with the Schedule.

[9]      An  issue  was  then  raised  as  to  whether  the  Justices  of  the  Peace  had jurisdiction.  A rehearing was granted.  On 6 April 2011 the matter was reheard by District Court Judge Flatley.  The appellant did not appear.  The Judge imposed the same penalty imposed by the Justices, namely a fine of $476 together with Court costs of $132.89.

Decision

[10]     It is not immediately apparent why it was considered the Justices of the Peace did not have jurisdiction in this matter.  Section 9A(1) of the summary Proceedings Act 1957 provides:

A Court presided over by 2 or more Justices has jurisdiction in respect of a summary offence in the following cases, and in no other case, namely:

...

(c)      In any case where the offence is an infringement offence.

Prima facie the offence was an infringement offence.  It appears to have been dealt with by two Justices rather than one.

[11]     On that basis there was no need for a rehearing on the ground of want of jurisdiction.

[12]     However, a rehearing was granted and presided over by Judge Flatley.  The appellant cannot have been prejudiced by the grant of the rehearing.

[13]     The  appellant  did  not  appear  at  that  rehearing.    During  the  course  of submissions he confirmed that he had received notice of the date of the rehearing on

6 April.   He said he misjudged the date.   He had obligations at work as a safety representative and it was only after the date had passed that he saw the notice of hearing again  and  realised  he had  missed it.   The  appellant,  however,  was  not prejudiced by his non appearance because the same fine was imposed by the Judge.

[14]     Although Mr McLean suggested he had a defence, on the basis he could not comply, I am satisfied that on the basis of the material before the Court the offence was made out.

[15]     As the Court confirmed in Dobson v Ministry of Transport1 this is an offence of absolute liability save for the defences under s 23(3) and 23(3A) of the Act:

(3)       It shall be a defence in proceedings for an offence of operating a motor vehicle on a road without the appropriate distance licence or supplementary licence if the defendant proves that—

(a)       It was not possible to obtain the licence at any time during the period between the time when the need for the licence was   reasonably   foreseeable   by   the   defendant   or   any employee or agent thereof, and the time when the alleged offence was committed; and

(b)       An appropriate licence covering the distance for which the motor vehicle was on a road in contravention of this Act was obtained   for   the   motor   vehicle   forthwith   after   the commission of the alleged offence.

(3A)     It shall be a defence in proceedings for an offence of operating a motor vehicle on a road when the reading of the distance recorder is more than the maximum reading specified in the licence displayed in the vehicle at the time of the offence, if the Court is satisfied that—

(a)       The reading of the distance recorder did not exceed by more than 500 kilometres that maximum reading; and

1      Dobson v Ministry of Transport HC Christchurch AP159/91, 1 August 1991.

(b)       The gross weight of the motor vehicle was not more than the maximum gross weight specified in that licence; and

(c)       As soon as reasonably practical after the offence was drawn to the attention of the defendant, a further licence was purchased  specifying  not  less  than  the  maximum  gross weight of the motor vehicle and for a distance of not less than  the  amount  by  which  the  reading  of  the  distance recorder exceeded the maximum reading of the licence displayed in the vehicle at the time of the offence.

[16]     Neither of those defences apply in the present case.  The requirements under s 23(3)  are  conjunctive.    There  is  no  evidence  that  it  was  not  possible  for  the appellant to obtain the distance licence during the period between the time when the need for the licence was reasonably foreseeable by him and the time when the offence was committed.  In that regard I note that the vehicle had travelled in excess of 3,200 kilometres since the breach.   The appellant’s financial position does not provide a reasonable excuse or suggest that it was impossible for him to obtain the distance licence.  Further, and in any event, a purchase made four days after the date of the offence can hardly be regarded as being obtained forthwith.

[17]     The defence under s 23(3A) is excluded as the distance reading was exceeded by more than 500 kilometres.

[18]     That leaves the appeal in relation to the fine.  The fine itself is unexceptional. As the Court noted in Transport (Nelson) Ltd v MOT2 first offenders can expect fines in the vicinity of $400 depending on other mitigating circumstances.

[19]     The appellant’s case was the fine was a harsh one because of his personal financial circumstances.   He submitted the Court failed to take into account his personal circumstances.

[20]     Mr McLean’s case is that he had only just commenced work on 15 August and was without funds to pay the road user charges before his first pay.  But he had made the same point, although not in as much detail, in his submissions to the District Court.

[21]     It  is  apparent  from  the  information  Mr  McLean  has  provided  on  appeal (which he did not put in as much detail before the District Court) that he is in financial difficulty.   Notwithstanding that, he is still able to maintain and use his vehicle.  He was also able to travel to Australia to obtain work in the off-season as he explained to the Court.

[22]     The appellant relied heavily on a previous decision of McLean v Police3 when John Hansen J allowed the appellant’s appeal against a fine of $471.   It is apparent from that case that Mr McLean was well aware of the likely level of fine to be imposed and his obligations in relation to the Act.  In the circumstances and for a second offence the fine imposed of $476 might be seen as light.

[23]     The appeal is dismissed.

Venning J