O v R HC Auckland CRI 2008-404-127

[2009] NZHC 1911

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-127

O

Appellant

v

THE QUEEN

Respondent

Hearing:         4 May 2009

Appearances: Appellant in person

J G Donkin for respondent

Judgment:      8 July 2009

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 1 pm on Wednesday 8 July 2009

Solicitors/Party

D G O  , 22 Patey Street, Remuera, Auckland

Crown Solicitor Auckland

O V R HC AK CRI 2008-404-127  8 July 2009

[1]      Mr O   appeals against his conviction in the Auckland District Court on 11 April 2008 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]      The  first  two  charges  concern  the  weight  of  the  appellant’s  truck.    The remainder are concerned with the fact that the appellant was driving his vehicle without being in possession of an appropriate gross weight distance licence.

Factual background

[3]      On the evening of 17 January 2007, the appellant was at Ferguson Wharf in the Port of Auckland with his truck and semi-trailer unit.  Just prior to 9 pm he was asked to carry a container that he knew to be over-weight to the Metroport at Neilsen Street in Onehunga.  There was an element of urgency in that there was commercial pressure to deliver the container to Neilsen Street by 9.30 pm in order to make a connection there.

[4]      The appellant did not get very far.  He was stopped on Fanshawe Street by an enforcement officer, Mr Philip Knight, and redirected to the Stanley Street weighbridge.  The gross weight of the truck and semi-trailer combined was found to be 43,670 kg, the truck itself weighing 22,690 kg and the semi-trailer 20,980 kg. The legal weight for the combined truck and trailer was 39,000 kg.

[5]      A statutory tolerance of 1,500 kg is permitted by the relevant legislation, so that the applicable excess weight was 3,170 kg.   Axles 2 and 3 had a combined

weight of 17,070 kg.   The permitted statutory maximum is 15,000 kg.   After deduction of the statutory tolerance of 1,000 kg, the excess weight was 1,070 kg.

[6]      The appellant was issued with a record of the relevant weights, and was served with an off-load demand which obliged him to unload the container. Infringement notices were later served on the appellant by post.

[7]      The appellant was not carrying an appropriate distance licence for his load. The legislation permits a driver, who is not in possession of an appropriate licence, to procure a supplementary licence before transporting an overweight load.   The appellant did not do that.   Accordingly, he was charged with exceeding his gross weight distance licence.

[8]      Upon receipt of the infringement notices, the appellant gave notice of his desire to have his responsibility for the alleged offences determined in the District Court.  Following the hearing of 11 April 2008, Judge Bouchier was satisfied that the informant had established the ingredients of each offence charged and imposed fines and costs equivalent to the infringement fees on the two charges relating to the weight of the vehicles.

[9]      On the remaining two charges of driving without an appropriate gross weight distance licence, the Judge imposed fines totalling $900, together with Court costs in each case of $35.

The excess weight charges

[10]     Mr O  ’s appeal is based upon the proposition that the District Court ought not to have accepted the certificate of accuracy tendered to the Court in respect of the Stanley Street weighbridge.   In order to place this submission in its proper context, it is necessary to refer to relevant statutory and regulatory provisions.

[11]     Section 43 of the LTA provides:

43       Overloading offences

(1)       A  person  operating  a  heavy  motor  vehicle  or  combination  of vehicles commits an infringement offence if the person operates the vehicle or combination of vehicles in breach of the applicable prescribed maximum gross weight limits for motor vehicles or prescribed maximum weight limits for axles or groups of axles of motor vehicles.

(2)       Separate offences  are committed  in  respect  of  every  axle,  every group of axles, and the total number of axles of a heavy motor vehicle or combination of vehicles, if the weight on that axle or axles exceeds the relevant prescribed maximum gross weight limit or prescribed maximum weight limit.

(3)       If a person commits an infringement offence against this section, the person must pay the penalty prescribed by the regulations or (if no such penalty is prescribed) the appropriate penalty specified in or under the Transport Act 1962.

[12]     Section 4.5 of the Land Transport Rule: Vehicle Dimensions and Mass 2002, requires that heavy motor vehicles must not exceed the mass limits applicable to axles, axle sets and gross mass as set out in the relevant tables in Schedule 2 of the Rule.  Section 8.1 of the Land Transport Rule imposes upon operators an obligation to ensure compliance with the relevant Rules.  Regulation 4.6 of the Land Transport (Offences and Penalties) Regulations 1999 provides that it is an offence to infringe against the foregoing provisions.

[13]     At the heart of this aspect of Mr O  ’s appeal is s 147 of the LTA

which 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—

…

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

[14]     In the present case, the prosecutor tendered to the District Court a certificate as to the accuracy of the weighbridge that complied with s 147.  Accordingly, as the learned District Court Judge found, the Court was bound to accept the accuracy of the weighbridge.

[15]     However, Mr O   relies upon documentary material made available to the District Court to support the proposition that the Court ought nevertheless to have rejected the certificate.  In his written submissions he said:

The certificate of accuracy itself, albeit signed as accurate by a technician, displays a significant inaccuracy on the first test result.   It records an inaccuracy of 0.1 tonnes when testing an applied weight of 3.89 tonnes, or

2.57%, or 1 tonne in every 38.9 tonnes.

The second and third tests resulted in acceptable accuracy of 0.2%  and

0.23% respectively.

To be used in a Court the results would have to be consistent to a much higher standard that 2 out of 3.  The standard is ‘beyond reasonable doubt’ and a chance of 66.7% of obtaining an accurate reading is not reasonable.

The weighing method of driving a vehicle over a weighing machine that has one weighing bar that only reads one axle at a time as the vehicle rolls over it  (dynamic  method)  has  inherent  inaccuracy  which  is  internationally accepted as 1% for commercial weighbridges.

[16]     Mr O   takes the point because a mere 70 kg separates him from a lower infringement fee band.  He argues that there can be no confidence as to the accuracy of the weighing device in the light of the result of the first test, and that in such circumstances the Court ought to make a further allowance in his favour.

[17]     The simple answer to that contention is that the Court has no jurisdiction to adopt the approach advocated by the appellant.   Section 147 obliges the Court to accept and act upon the certificate: “ … in the absence of evidence to the contrary

…”.

[18]     In the present case there was a certificate as to accuracy;  it complied with s 147.  Mr O   produced no evidence to rebut the presumption.  Significant

tolerances are built into infringement fee calculations by clause 5 Part 3 Schedule 1B

to the Land Transport (Offences and Penalties) Regulations 1999.

[19]     I accept Mr Knight’s evidence that the permitted tolerance is designed, at least in part, to take into account variations in the accuracy of the weighbridge, and to avoid disputes such as the present.  In other words, the Court is bound to accept the accuracy of the weighbridge, but, in order to recognise the possibility of actual inaccuracy, truck operators are entitled to the benefit of the tolerances prescribed by the Schedule.

[20]     It is open to a defendant to challenge the accuracy of a weighing device by adducing evidence to the contrary.  Unless and until that occurs, the Court is bound by s 147 to accept the weighing device, in this case the weighbridge, as accurate.

[21]     Mr O   submits that the document purporting to be a certificate of accuracy, is not, and cannot be, such a certificate unless the author states what the degree of accuracy is, or can refer to some other document containing the figure that is acceptable for the weighing method and equipment.  In other words, he submits:

…     to  claim  something  is  accurate  without  providing  some  form  of benchmark is meaningless.

[22]     Section 147 is couched in such terms as to avoid the need to grapple with submissions of that type.   The Court must accept the certificate in the absence of evidence to the contrary.

[23]     Even after the permitted tolerances were deducted, Mr O  ’s truck and semi-trailer were significantly over-weight.   He was therefore accordingly in breach of s 43 of the LTA.  His conviction and the consequential fines were both inevitable.

Licence charges

[24]     The appellant was also convicted of exceeding the gross weight distance licence  under  ss  5(1)(b)  and  s  23  of  the  Road  User  Charges  Act  1977.    The

legislative purpose underpinning s 23 was discussed by Hardie Boys J in Taieri

Dynes Haulage Ltd v Ministry of Transport [1981] 2 NZLR 354:

The Road User Charges Act … provides a scheme for the taxation of operators of heavy motor vehicles by requiring licence fees to be paid in respect of distances to be travelled, the amount of the fees being calculated with reference to the gross weight of the vehicle in multiples of one tonne. Distance licences are issued in multiples of 1000 km, and by reference to a distance recorder which is required to be fitted to the vehicle, it can be ascertained at any time whether or not the distance authorised by the licence or licences being carried has been exceeded.   Thus on every journey the vehicle must carry its own licence or licences which at all times meet two requirements.    First,  they  must  specify  a  distance  which  exceeds  that disclosed by the distance recorder.  Secondly, they must specify a weight not less than the gross weight of the vehicle.

When it happens that a load is unexpectedly heavier than the current licence permits, a supplementary licence may be obtained, to cover the additional weight over whatever distance, in multiples of 50 km, is required. Supplementary  licences  are  apparently  quite  readily  obtainable  at  post offices and other places along the way. To provide for emergencies or other unexpected contingencies, and perhaps in a more general way for the unavailability of a licence in a particular case, s 23(3) provides a defence where the vehicle does not have the appropriate licence, if the Court is satisfied (the onus thus being on the defendant) 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 and the time when the alleged offence was committed; and

(b)      An appropriate licence . . has subsequently been obtained..’. This defence was considered by Speight J in Stan Williamson Transport Ltd

v Ministry of Transport (Rotorua, M 54/79, 7 August 1979). The vehicle there was carrying logs which had been loaded at a milling site. In such

circumstances,  actual  weighing  may  be  impossible,  and  there  is  an

acknowledged difficulty in estimating weight because of the great variations that  can occur  due  particularly to  moisture content. The Magistrate  had found that in these circumstances, the driver concerned may well have believed the load was not overweight. Mr Christiansen argued that appeal too, and contended that because of this difficulty, up to the time the traffic officer ascertained the actual weight, the need for the licence had not become reasonably foreseeable: and the defence under the section was thus available.

Speight J responded to this argument thus:

‘It appears from a practical point of view that licensed operators could cynically take the risk of having over-weight loads and then protest when this is detected that they had no prior need to have anticipated  the  call  for  an  additional  licence.  If  this  can  be established and if the fee is subsequently paid, then there will be great encouragement to operators to take the risk. Well the answer to that, of course, must be that the Act has been so drawn to permit this

but each case will depend upon its circumstances. In the present shape of the provision, if in given cases operators can make out in defence that they had no real anticipation that loads would be or are in excess, then persons operating just over the limit will probably be able to avail themselves from time to time of such defence.’

However, Speight J held that the defence was not available to that appellant, because it had not discharged the evidentiary onus the subsection placed on it: for it was well aware of the likelihood of overweight, but had taken no steps to guard against it.

A vehicle operator may thus not just trust to luck. He has a duty to ensure compliance. But the Act provides that the duty is not absolute. It is a duty to exercise reasonable foresight. There is thus introduced the familiar concept of the reasonable man. He, whose thoughts and actions are the measure of the duty, will wish to comply with the law, and will take due steps to ensure that he does.

[25]     Mr O   accepts that he became aware at Ferguson Wharf, and before his  driving commenced,  that  his  load  was  overweight.    Although  there  was  no available weighing device on the wharf, he knew of the weight by reference to documents accompanying the container.  He accepts that he knew he was therefore required to procure a supplementary licence, or to “supp up”, as it is apparently known in industry jargon.

[26]     Mr O   explained that during normal business hours there is a facility at Ferguson Wharf by virtue of which supplementary licences can be obtained by telephone, but this was after 9 pm, and the facility did not operate at that time. Nevertheless, it is common ground that supplementary licences could be procured from 24 hour BP service stations, the nearest of which was situated in Fanshawe Street just a few minutes away.

[27]     Section 23 of the Road User Charges Act 1977 creates offences for breaches of the Act.  Mr O   does not contest the breach, but submits that the statutory defence set out in s 23(3) was available to him.  That subsection provides:

(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.

[28]     Mr O   says that it was not possible to obtain a supplementary licence between the time at which he became aware of the weight of the proposed load and the time of his apprehension.

[29]     I reject that submission.  The unchallenged evidence is that it was “possible” to obtain a supplementary licence from the BP service station in Fanshawe Street.  It may not have been commercially viable for him to do so because he accepted the load  upon  the  basis  that  he  would  endeavour  to  deliver  it  to  Neilsen  Street, Onehunga by 9.30 pm.   That would entail an immediate departure from Ferguson Wharf.

[30]     In order to comply with the law, the appellant would have been obliged to drive to the BP service station without his load, procure a supplementary licence, and return to pick the load up.   That would have eaten into the available time and rendered the exercise commercially futile.  The load was offered to him in the first place on the basis that he would endeavour to deliver it by 9.30 pm.

[31]     The inescapable inference therefore, is that the appellant simply took the risk of non-compliance.

[32]     That is sufficient to dispose of this aspect of the appeal, although I would if necessary have upheld Mr Donkin’s submission to the effect that the appellant did not comply with s 23(3)(b) either.   He procured a supplementary licence on the following morning, but that is not in my view a purchase “ … forthwith after the commission of the alleged offence”.  The BP service station in Fanshawe Street was just a short distance away from the Stanley Street weighbridge where off-loading occurred.      Mr O     chose   to   drive   home   rather   than   to   procure   a supplementary licence that evening for a load not ultimately carried by him beyond Stanley Street.  The purchase next morning was not a purchase “forthwith after the commission of the alleged offence”.

[33]     Judge Bouchier was right, in my view, to convict the appellant on the two charges laid under the Road User Charges Act.

Result

[34]     For the foregoing reasons the appeal fails and is accordingly dismissed.

C J Allan J