Naresh v New Zealand Transport Agency

[2012] NZHC 2278

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-403

CRI-2011-404-444 [2012] NZHC 2278

RAJ NARESH

Appellant

v

NEW ZEALAND TRANSPORT AGENCY

Respondent

Hearing:         5 June 2012

Appearances: Appellant in person

B Hamlin for Respondent

Judgment:      5 September 2012

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 5 September 2012 at 12:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

R Naresh, 20 Mickle Street, Te Atatu South, Auckland

B Hamlin, Meredith Connell, Auckland:  [email protected]

NARESH V NEW ZEALAND TRANSPORT AGENCY HC AK CRI-2011-404-403 [5 September 2012]

Introduction

[1]      Raj Naresh has appealed to this Court following his conviction by the District Court, on two separate occasions, of charges under the Land Transport Act 1998 (“the Act”) which arise from his operation of a taxi van.

[2]      The first appeals are against findings of breach and sentences imposed by Judge Adams in the District Court at Waitakere on 1 November 2011, on one charge of driving on a public road contrary to an order under s 52(1)(b) of the Act that the taxi was not to be operated (“the driving charge”), and one charge under s 52(1)(a) of the Act of removing a notice that the taxi was not to be operated (“the removing charge”).  The second appeal is against a fine of $1,000 and an order to pay Court costs imposed upon the appellant by Justices of the Peace in respect of a charge that Mr Naresh had failed to comply with the requirements made of him under s 198 of the Act in relation to an audit or inspection (“the audit charge”).

The first appeals

[3]      The offences under the Act dealt with by Judge Adams included three on which Mr Naresh was convicted but ultimately discharged.  It appears, on the basis of information provided to me by Mr Hamlin after the hearing of argument on these appeals, that the attention of Judge Adams was drawn to an apparent failure by the informant to comply with the procedure for the prosecution of “minor offences” under s 20A of the Summary Proceedings Act 1957.  Minor offences are generally defined as offences where the maximum penalty is a fine of not more than $500 and imprisonment is not an option.  However, s 20A(12)(a) raises the penalty limit for minor  offences  under  the  Land  Transport Act  to  $2,000  where  the  prosecution proceeds by way of summons.   Proceeding by way of summons requires the informant to satisfy the Registrar or a District Court Judge that, for special reasons, a summons should be issued.  If the Registrar is not so satisfied, any prosecution must proceed by way of a notice of prosecution instead.  Since Mr Naresh had not been given the opportunity for the matter to have been dealt with in that way, Judge

Adams  considered  there  had  been  a  miscarriage  of  justice  and  the  convictions previously entered were quashed.

The driving charge

[4]      The facts found by the Judge which were relevant to the conviction on the driving charge were these:[1]

[1] Ministry of Land Transport v Naresh DC Wait CRI-2010-090-0006041, 27 September 2011, at

[3]-[7].

[3]       For reasons unrelated to this case, Mr Naresh’s taxi vehicle which is a white Toyota Hiace van registered SO936 found itself parked in the yard of Turners Auctions on 9 August 2010.

[4]       On  that  day  a  transport  officer  from  New  Zealand  Transport Authority, Mr Richard Lee, inspected the vehicle and issued a non- operational order for it.   He issued a notice to the driver or owner of the vehicle.  Mr Naresh was not personally present at the Turners Car Auction yard at the time so Mr Lee gave the documentation including the notice to driver or owner to Kirsty McAllister who was an employee of Turners at the time.

[5]       Mr Lee also affixed a pink sticky notice to the windscreen of the vehicle which is an excitingly bright notice stating, “Notice ordering unsafe vehicle off road”.  I accept the evidence of Mr Lee that he affixed this to the windscreen  of the vehicle and  that  he also affixed on the inside of the windscreen in approximately at the same position.   The white form that accompanies  the  pink  form  is  called,  “Notice  to  be  affixed  to  unsafe vehicle”, and it sets out, in plain language, that the vehicle is not to be driven on any road until certain things occur.

[6]       I  find  that  Mr  Naresh  spoke  with  Ms  McAllister.    I  find  that Ms McAllister gave him the notices and in addition that she impressed upon him the importance that he not drive the vehicle but that it be either towed away or transported away.  I find that Mr Naresh had the documentation to which I have referred, I find that he must have seen the pink sticker on the windscreen and that he must have seen the notice on the inside.   I find pursuant to the evidence of Mr Dickey that the vehicle was driven out of the yard and a couple of metres along the public road and parked.

[7]       I find that Mr Naresh drove the vehicle not only because that is the clear inference from the surrounding descriptions of events but also because he acknowledges that he did remove it there.   He was concerned that the vehicle would incur additional storage fees if left within the yard of Turners Car Auctions and I find that he made the choice to drive it out notwithstanding the lawful directions to the contrary.

[5]      As the Judge recorded,[2]  it was not disputed by Mr Naresh that he removed the taxi from the auction yard and parked it on the street.  Mr Naresh told me, as he

apparently told the District Court, that he did so to avoid the payment of additional storage fees overnight while he made arrangements for the vehicle to be towed to his home.  He said that the exercise would have involved him in driving the vehicle only a few metres on the roadway in order to park it.

[2] At [7].

[6]      In sentencing Mr Naresh on this charge, the Judge regarded the offending as knowing and disobedient but “quite minor”.[3]    He did not find any significant road safety issue to exist and considered a fine of $300 and Court costs to be appropriate. This was of the order of 75 percent in total of the applicable infringement fee of

$600.

Decision on the driving charge

[3] At [6].

[7]      The evidence in relation to the driving charge, which included Mr Naresh’s admissions, supported the Judge’s findings.  Although the Judge was right that this was a minor and almost technical offence, the Judge was entitled to find it proved. The sentence properly took the nature of the offending into account and there is no basis on which to overturn it.   The level of the fine was well within the range available to the Judge. The appeals on the driving charge are dismissed.

The removing charge

[8]      The Judge’s findings in respect of the removing charge were as follows:

[9]       On 11 August 2010, just two days later another transport officer, Mr William Mudaliar, called to the home of Mr Naresh in order to serve upon him a document on behalf of Mr Vevers, who is the transport officer in charge of this particular case.  Mr Mudaliar found Mr Naresh working on the vehicle in question in front of the house.  He engaged in conversation with Mr Naresh and served Mr Naresh with the document and he observed that there  was  no  pink  sticker,  the  non-operational  order,  affixed  to  the defendant’s vehicle.

[10]      Mr Naresh   disputes   that   the   non-operational   order   had   been removed.  He suggests that Mr Mudaliar would not have been in a position to see the windscreen because in a sketch drawn by Mr Mudaliar in the course of his evidence placed himself towards the front left of the vehicle

and placed Mr Naresh at the side of the vehicle where Mr Naresh had been working on the engine accordingly to Mr Mudaliar.

[11]      I am satisfied that Mr Mudaliar was accurate in his evidence and I disbelieve Mr Naresh in relation to his assertion that the pink sticker was still affixed to the vehicle.  This was down to a simple issue of credibility and again I find that the charge proven convict the defendant.

[9]      Mr Naresh’s  attack  on  this  finding  was  a  challenge  to  Judge  Adams’s conclusion that Mr Naresh’s evidence was not to be believed and that the evidence of Mr Mudaliar was accurate. The Judge did not explain why he preferred the evidence of one witness to that of the other, but it is apparent from the remainder of the judgment, in which the Judge deals with the alleged offences on which the appellant was  subsequently discharged,  that  he  did  not  regard  Mr Naresh  as  a  believable witness.

[10]     The  conviction  depended  on  the  evidence  of  Mr Mudaliar  that  he  was standing slightly forward of the front left or passenger side of the vehicle with a clear view of the windscreen.  Although the appellant represented himself and may not have been aware of the desirability of cross-examining Mr Mudaliar directly on his evidence, given that he was about to give evidence to the contrary, the Judge himself intervened  on  the  point.    The  following  exchange  is  recorded  in  the  notes  of

evidence:[4]

[4] Notes of evidence, pages 23/lines 16 – 24/line 5.

THE COURT ADDRESSES MR NARESH – QUESTION THE COURT:

Q.        Mr Mudaliar, do you think it is possible that you may have had limited vision of the windscreen?

A.        No, Your Honour.   I had a clear vision, because I was standing outside of the vehicle, right in front, where he was working, so I had a clear view of the whole windscreen.

THE COURT ADDRESSES MR NARESH – PINK STICKER THE COURT

Q.        Mr Mudaliar, Mr Naresh may give evidence that there was a pink sticker  on  the  vehicle.   Are  you  quite  sure  of  your  evidence  in relation to this matter?

A.       I’m quite sure, Your Honour.

Q.       Okay.

A.       That there was no sticker at all.

Q.       and you were in front of the vehicle?

A.       Yes, I was just right on the front of the vehicle, where the vehicle is, because he had opened the left door.

Q.       Yes.

A.       And he’s standing there and I’m just standing there beside him.

[11]     The  witness  confirmed  this  evidence  in  further  cross-examination  by Mr Naresh.  He then drew a sketch map, a copy of which is on the Court file.  While it is only a sketch and not to scale I am satisfied, as the Judge must have been, that Mr Mudaliar had a sufficiently clear view of the entire windscreen to be able to determine  whether  or  not  a  pink  “non-operational  order”  was  not  fixed  to  the vehicle.

[12]     Mr Mudaliar was not challenged by Mr Naresh as to the relative positions of the appellant, the witness and the motor vehicle and the Judge was entitled to take the view that the prosecution witness had no reason to deliberately mislead the Court.

Decision on the removing charge

[13]     In  those  circumstances,  there  was  evidence  upon  which  the  Judge  was entitled to find the offence proved and the appeal against that finding is dismissed. The maximum fine to which the appellant was liable was $10,000.   The Judge regarded the removal of the notice as wilful disobedience.  He took an appropriate starting point to be a fine of $2,000 but considered the amount should be uplifted by

$500 to reflect that the charges fell into a pattern of offending which the appellant had demonstrated since 1985.  While this was a substantial fine, the breach was not one which was merely technical.  I do not detect any error of principle in the Judge’s approach and the appeal against the sentence is also dismissed.

The audit charge

[14]     Mr Naresh’s appeal against the decision of the Justices on the charge of failing or refusing to comply with a requirement in relation to an audit was affected by  the  lack  of  a  transcript  of  the  evidence  given  at  the  defended  hearing  on

2 November 2011 and of the Justices’ decision.  However, a month after the hearing, the Justices provided three memoranda setting out how the case unfolded, basing them upon their recollections and notes which they took at the time.

[15]     Mr Naresh  did  not  challenge  the  accuracy  of  the  memoranda  as  to  the evidence and the reasons for decision but argued that the Justices erred in finding that he had not provided all of the relevant information which was required.  He said that he had confirmed in evidence that, on 25 November 2010, he had given NZTA all of the records available, bearing in mind that he had driven his taxi only sporadically during the 12-month period concerned and that he had been a driver only from time to time between 17 June and 6 November 2010.  Mr Naresh said that there was no basis for the decision of the Justices to disbelieve his evidence that fuel documents and fare receipts for periods when he had admitted he was driving had gone missing from his vehicle at the time it was stored at the Turners car yard.

[16]     The Justices accepted that the offence was one of strict liability, a proposition which quite properly Mr Naresh did not seek to challenge.  They recorded, however, that they had found his evidence inconsistent and contradictory and considered him to be unreliable.  Further, they made a finding that the log book documents produced by Mr Naresh to NZTA were “clearly false” and intended to deceive.

[17]     The Justices did not explain this latter conclusion and Mr Naresh is entitled to complain that they should have done so.

[18]     On this point, it is convenient and sufficient for me to adopt respectfully what

Winkelmann J said in Police v Taiatini[5]:

[5] Police v Taiatini5 CIV 2005-463-59 HC Rotorua, 7 October 2005, at [12].

[12]     Where credibility is in issue, the presiding Judge should ordinarily give  reasons  for  rejecting  the  evidence  of  a  witness  whose  evidence  is

material  to  the  outcome:   Takarei  v  Police  (HC  Hamilton  AP77/02, Randerson J).  The extent of reasoning required will vary between cases, but the reasons given should be “adequate to the occasion”: R v Awatere [1982]

1 NZLR 644, 649 (CA). It must not be overlooked that Judges, in particular

District Court Judges operate under time constraints and in circumstances which usually require oral decisions to be given at the conclusion of the evidence:  Kapa v Police (1989) 4 CRNZ 306.  Further, there are difficulties in articulating reasons for a credibility finding “which is based principally upon an exercise in judgment borne of experience, knowledge of human behaviours, and the evaluative process” (Jai Ram Sharma v New Zealand Police, HC Auckland, CRI 2005-404-0235).  Nevertheless, as Randerson J said in Takarei at [14]:

… some brief reasons for rejecting the evidence of a key witness

should be given.

...

[15]      ...  where  the  essential  issue  for  the  Court  is  whether  the  Judge accepts defence evidence as establishing a reasonable doubt, then reasons should be given for the credibility or reliability findings made in rejecting that evidence. I do not accept the Crown’s submission that because of the nature of the charge and because this matter proceeded in the summary jurisdiction, it was not incumbent upon the Judge to give reasons for his factual finding.

In that case, Winkelmann J was satisfied that that the findings of fact made by the Judge recorded sufficient reasons for rejecting the defence evidence on the key point at issue.

[19]     In  relation  to  the  removing  charge,  Judge  Adams  also  did  not  explain expressly why he preferred the evidence of Mr Mudaliar against that of Mr Naresh in the case he was dealing with.  Nevertheless, I was able to determine the basis for his decision from the transcript of the evidence and the contemporaneous transcript of the Judge’s oral decision.  I do not have the same assistance in respect of the appeal on the audit charge.  While it has been helpful for the Justices to recreate the record, there is a risk that their genuine efforts at doing so may have been affected inadvertently by hindsight.  Further, no explanation was given by the Justices for the amount of the fine imposed.

[20]     In the absence of an accurate contemporaneous record of the evidence and a reasoned explanation for the credibility finding, Mr Naresh is deprived of a proper opportunity to challenge the findings.   In the circumstances, and without implying any criticism at all of the manner in which the Justices conscientiously performed

their duties, I regard it to be unfair to uphold the findings of the District Court in this case.

[21]     It is not reasonable to send this case back to the District Court for rehearing. I allow the appeal on the audit charge and quash the conviction and sentence.

........................................

Toogood J