Montalk v The Queen

[2005] NZCA 30

IN THE COURT OF APPEAL OF NEW ZEALAND

CA157/03

THE QUEEN

v

MYLES JAMES DE MONTALK

Hearing:22 February 2005

Court:Glazebrook, Hammond and William Young JJ

Counsel:A G Speed for Appellant

F E Guy for Crown

Judgment:7 March 2005 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by William Young J)

[1]       On 14 November 2000, a constable observed a Ford motor vehicle parked on Spring Street, Onehunga.  The vehicle did not have a current warrant of fitness, the previous warrant having expired in September 1999.  The appellant was the registered owner of the vehicle.

[2]       The result was that the appellant faced a charge laid under s 34(1)(b) of the Land Transport Act 1998 which alleged that he had operated a motor vehicle on a road without displaying current evidence of vehicle inspection (ie a current warrant of fitness). 

[3]       The case against the appellant came on for hearing in the District Court at Auckland on 19 June 2002.  The appellant’s ownership of the motor vehicle was proved before the Justices of the Peace who were hearing the case.  However, no evidence was led to prove that he had operated the vehicle on the day in question.  In their reasons for decision, the Justices held (although perhaps assumed might be more accurate) that the offence was one of “strict liability” and they found the appellant guilty.

[4]       On 6 September 2002, the appellant’s appeal against conviction to the High Court was dismissed by Rodney Hansen J.  He noted that the offence was a “stationary vehicle offence” by reason of s 41A of the Transport Act 1962 and thus of strict liability.  This point does not appear to have been contested in front of him.

[5]       An application for leave to appeal to this Court was dismissed by Venning J on 4 April 2003.  There is nothing in the reasons for his decision to suggest that the applicability of s 41A to the offence with which the appellant was charged was in issue.

[6]       The appellant, sought leave to appeal from this Court and, at the leave hearing, was represented by counsel.  This Court in a decision of 18 October 2004 found that the case raised a question of general importance.  Accordingly, special leave to appeal was granted in respect of the following question of law: were the Justices correct in law to hold that s 34(1)(b) of the Land Transport Act 1998 creates an offence of strict liability?  This turns on whether the offence is a stationary vehicle offence for the purposes of s 41A(1) of the Transport Act. If the offence is indeed a stationary vehicle offence then, on the evidence adduced, the appellant was properly convicted.

[7]       Section 34(1)(b) of the Land Transport Act provides:

(1)       A person commits an offence if the person –

…

(b)      Operates a vehicle on a road without displaying current evidence of vehicle inspection … (as may be required by the regulations or the rules)

[8]       The Land Transport Rule: Vehicle Standards Compliance 1998 required the display of a current warrant of fitness. 

[9]       Section 41A(1) was introduced into the Transport Act 1962 with effect from 1 July 1993 by s 8 of the Transport Amendment Act (No 3) 1992. At that time, the offence of using a vehicle without displaying a warrant of fitness was provided for by reg 85 of the Traffic Regulations 1976 and s 41A(1)(b)(iv), as first enacted, specifically declared that offence to be a stationary vehicle offence.

[10]     Section 41A was amended in 1997 so as to take out the references to specific offences created by regulations but to provide by what is now s 41A(1)(c) that the expression “stationary vehicle offence” included:

Any offence against any regulations made under this Act or the Transport (Vehicle and Driver Registration and Licensing) Act 1986 that is declared by such regulations to be a stationary vehicle offence for the purposes of this definition.

[11]     This amendment was accompanied by the introduction of reg 136A of the Traffic Regulations 1976 which provides:

136A   Stationary vehicle offences

The following offences are stationary vehicle offences for the purposes of the definition of that term in section 41A of the Act:

…

(d)      An offence against regulation 85(1) (which relates to operating a vehicle without a current warrant of fitness or certificate of fitness or permit).

[12]     On 1 March 1999, the Land Transport Act came into effect and with it the new offence created by s 34(1)(b) and the repeal of reg 85(1) of the Traffic Regulations.  Regulation 136A has not been repealed.

[13] Before us, the Crown relied on s 22 of the Interpretation Act 1999 which provides:

22       References to repealed enactment –

(1)       The repeal of an enactment does not affect an enactment in which the repealed enactment is applied, incorporated, or referred to.

(2)       A reference in an enactment to a repealed enactment is a reference to an enactment that, with or without notification replaces, or that corresponds to, the enactment repealed.

(3)       Subsection (1) is subject to subsection (2).

[14] It is clear that s 34(1)(b) of the 1998 Act is an enactment which replaces reg 85(1) and that s 22(2) of the Interpretation Act is accordingly applicable; this notwithstanding the slight changes to the form of the legislation. This was the approach taken by Goddard J in Car Plant Leasing Ltd v Wellington City Council HC Wellington AP 246/99 20 October 1999 and we agree with her. 

[15]     This conclusion in itself, does not avail the Crown because the new offence is against the Land Transport Act and therefore is not an “offence against any regulations”.  So if reg 136A is simply to be treated as declaring that the offence against s 34(1)(b) of the 1998 Act is a stationary vehicle offence, it would appear to be ultra vires (or ineffective) as there is no power to declare by regulation that offences against the 1998 Act are stationary vehicle offences.

[16] This difficulty led Ms Guy to advance the argument that we should apply s 22 of the Interpretation Act directly to s 41A(1)(c). On this argument the reference in s 41A(1)(c) to an offence “against regulations … that is declared by such regulations to be a stationary vehicle offence” should be treated as a reference (for present purposes) to the offence against reg 85(1) of the Traffic Regulations which, given s 22(2) of the Interpretation Act, can now be treated as a reference to an offence against s 34(1)(b) of the 1998 Act.

[17] The approach required by this argument is semantically a little awkward but we think, nonetheless, that it is right. It is consistent with s 22 of the Interpretation Act and, importantly, with what must have been the overall legislative intent when the Land Transport Act 1998 replaced the former offence under reg 85(1) with the new offence under s 34(1)(b). It is simply not credible to attribute to Parliament an intention that the relevant offence no longer be a stationary vehicle offence. In situations such as this, it is important where possible to construe legislation in a way consistent with, and not destructive of, the overall scheme.

[18]     Accordingly we are satisfied that the offence in question was a stationary vehicle offence and that there was therefore no need for the prosecution to prove that the appellant was actually operating the vehicle at the relevant time.

[19]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington