O v Police HC Auckland CRI 2008-404-127

[2009] NZHC 2362

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-127

O

Applicant

v

THE POLICE

Respondent

Hearing:         18 November 2009

Appearances: Applicant in person

J Donkin for respondent

Judgment:      20 November 2009

JUDGMENT NO.2 OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of  pm on Friday 20 November 2009

Solicitors/Party:

D G O  , 22 Patey Street, Remuera Auckland 1051

Crown Solicitor Auckland ja[email protected]

O V  POLICE HC AK CRI 2008-404-127  20 November 2009

[1]      On 11 April 2008 Mr O   was convicted in the Auckland District

Court on the following charges:

(a)  Exceeding the permitted mass on a combination of vehicles, pursuant to s 43 of the Land Transport Act 1998 (LTA) (and ss 4.5 and 8.1 of the Land  Transport  Rule:     Vehicle  Dimensions  and  Mass  2002  and regulation 4(6) of the Land Transport (Offences and Penalties) Regulations 1999).

(b) Exceeding the permitted mass limit on two axles in a tandem axle set, pursuant to s 43 of the LTA (and ss 4.5 and 8.1 of the Land Transport Rule:   Vehicle Dimensions and Mass 2002 and regulation 4(6) of the Land Transport (Offences and Penalties) Regulations 1999).

(c)  Owner exceeding a gross weight distance licence, pursuant to s 5(1)(b)

and s 23 of the Road User Charges Act 1977 (two charges).

[2]      On 8 July 2009 I dismissed his appeal.  He now seeks leave to appeal to the

Court of Appeal.

[3]      Pursuant to s 144(1) of the Summary Proceedings Act 1957, either party may with the leave of this Court, appeal to the Court of Appeal against any determination of this Court on a question of law arising in any general appeal.  The High Court may grant leave accordingly:

…if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[4]      The proper approach to applications for leave was discussed by the Court of Appeal in R v Slater [1997] 1 NZLR 211, where at 215 Thomas J, delivering the judgment of the Court said:

Section 144 was not intended to provide a second tier of appeal from decisions   of   the   District   Court   in   proceedings   under   the   Summary Proceedings Act. … Neither the determination of what comprises a question of law, nor the question of whether that point of law raises a question of general or public importance, are to be diluted.

[5]      There is a preliminary point.  Mr O  ’s application is arguably out of time in that, on the last day for the filing of an application for leave he filed instead an ex parte application for further time within which to make an application for leave

to appeal to the Court of Appeal.  Mr O   considered that he needed more time than the statutory 21 days within which to formulate his application for leave in order to carry out further research and to consult with the Ministry of Transport.

[6]      The respondent adopts a neutral position in respect of the application for leave to appeal out of time.   In fact, the initial document filed by Mr O   contained some detail of the ground upon which he sought leave to appeal.  It is not suggested that the respondent would be prejudiced in any way by the grant of leave to make the application out of time.  It is granted accordingly.

[7]      It is fair to say that Mr O  , although intelligent and articulate, has found it difficult to formulate a question of law sufficiently precise to justify consideration for referral to the Court of Appeal.  His application for leave concerns his  convictions  on  the  overloading  charges,  and  in  particular  the  respondent’s reliance on the accuracy of the weighing device used to weigh the applicant’s truck and semi-trailer unit.

[8]      Section 147 of the Land Transport Act 1988 provides:

147      Evidence of accuracy of weighing devices and sites

(1)       In proceedings for an offence against this Act or an offence against the Road User Charges Act 1977, the production of a certificate (or a document purporting to be a copy of a certificate) purporting to be signed by a sworn or non-sworn member of the Police authorised by the Commissioner in that behalf (either generally or in a particular case) to the effect described in subsection (2) is, in the absence of evidence to the contrary, sufficient evidence that the device or site to which the certificate relates has been tested and was accurate on the date of the alleged offence.

(2)      A certificate referred to in subsection (1) may be to the effect that,— (a)    On a specified date, being a date not more than 12 months

earlier  than  the  date  of  the  alleged  offence,  a  weighing  device referred to in the certificate was tested and found to be accurate by—

(i)       An Inspector of Weights and Measures; or

(ii)      An  accredited  person  (within  the  meaning  of  the

Weights and Measures Act 1987); or

(iii)     An employee of a laboratory for the time being approved for the purpose by the Science Minister, by notice in the Gazette; or

(iv)      Any other person who is approved for the purpose by the Minister, by notice in the Gazette; or

(b)       On a specified date, being a date not more than 5 years earlier than the date of the alleged offence, a site referred to in the certificate was tested or surveyed, and found to be accurate, by—

(i)       An employee of the Agency; or

(ii)      A sworn or non-sworn member of the Police; or

(iii)      An employee or contractor of a laboratory for the time being approved for the purpose by the Science Minister, by notice in the Gazette.

(3)       A notice given by the Science Minister or the Minister in the Gazette for  the  purposes  of  subsection  (2)  may  be  in  like  manner  amended  or revoked at any time.

(4)       A certificate issued under subsection (1) sufficiently identifies the weighing  device  to  which  it  refers  if  (in  the  case  of  a  portable  wheel weigher) it contains the serial number of the wheel weigher or if (in the case of a weighbridge or site) it refers to the location of the weighbridge or site.

(5)       Every document purporting to be a copy of a certificate issued under this section is, in the absence of evidence to the contrary, to be presumed to be a true copy.

(6)       Every  certificate  issued  under  this  section  is,  in  the  absence  of evidence to the contrary, to be presumed to have been signed by a person duly authorised to sign it; and it is not necessary for any such certificate to show on its face that the person signing it was so authorised.

(7)       In proceedings for an offence against this Act or an offence against the Road User Charges Act 1977, evidence that—

(a)A weighing device bore the stamp of a mark of verification under the Weights and Measures Act 1987 indicating that the weighing device had been so stamped; or

(b)At the time of the alleged offence, there was in force in respect of a weighing device a certificate of accuracy issued under the Weights and Measures Act 1987—

is, in the absence of evidence to the contrary, sufficient evidence that the weighing device was accurate on the date of the alleged offence.

[9]      In the District Court the prosecutor tendered to the Judge a certificate as to the accuracy of the weigh bridge that complied with s 147.   The learned District Court Judge found (correctly as I held on appeal), that the Court was therefore bound to accept that the weigh bridge was accurate.  Mr O   does not challenge that finding as such.

[10]     But he is concerned about the degree of accuracy with which the relevant weighing device in this case purported to carry out its weighing functions.  He told me that the device purported to produce results that were accurate to the nearest

10kg.  But, he told the Court, material obtained by him suggested that the device was incapable of producing a reliable result that approached that degree of accuracy.  So there must be doubts about the reliability of the actual figures produced by the respondent.

[11]     Mr O   says that regulations under the Weights and Measures Act, (not explained or produced by him in Court), required the device to produce a reading which properly took account of the device’s actual degree of accuracy.  Had that requirement been observed in the present case, he argues, the result might have been a somewhat lower reading and a lower infringement fee.

[12]     There are two answers to Mr O  ’s argument.  The first is to be found in the significant tolerances built into infringement fee calculations by clause 5 Part

3 Schedule 1B to the Land Transport (Offences and Penalties) Regulations 1999.  Mr Knight,  who  gave  evidence  for  the  prosecution,  indicated  that  the  permitted tolerances  are  designed,  at  least  in  part,  to  take  into  account  variations  in  the accuracy of the weigh bridge, and to avoid disputes such as now arises.   In other words the Court is bound to accept the accuracy of the weigh bridge device, but in order to recognise the possibility of actual inaccuracy, truck operators are entitled to the benefit of the tolerances prescribed by the Schedule.

[13]     In my opinion, Mr O  ’s concerns, and in particular his complaints about inherent weighing device inaccuracy, are subsumed by the tolerance regime prescribed by the relevant regulations.  The Legislature has plainly anticipated the possibility of unfairness arising by reason of the deeming provisions of s 147, and has prescribed a system of tolerances which are designed to produce a broadly fair result.

[14]     The second answer to Mr O  ’s argument is that he has simply failed to lay a proper evidential framework for the argument he seeks to run.  In the District Court he endeavoured to refer to hearsay material, and to certain documents, but

such evidence was properly ruled inadmissible by the trial Judge.   There is accordingly no evidence to support the outcome which he seeks to achieve in the Court of Appeal.

[15]     Mr O   was unable to articulate in precise language a question of law suitable for referral to the Court of Appeal.  Neither has he been able to persuade me that his dissatisfaction is grounded in an issue which requires the attention of that Court.    On  the  contrary,  his  concern  about  inaccuracy  of  traffic  enforcement weighing devices, while genuine, is answered by the tolerance protocols built into the regulations to which I have referred.

[16]     I am satisfied that it is not appropriate to grant leave.   The application is accordingly dismissed.

C J Allan J