Overington v Police

[2014] NZHC 3261

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000291 [2014] NZHC 3261

DENNIS GIBSON OVERINGTON Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	2 December 2014
Appearances:	Appellant in Person Sarah Wilson for the Respondent
Judgment:	16 December 2014

RESERVED JUDGMENT OF MOORE J [Appeal against conviction and sentence]

This judgment was delivered by  on 16 December 2014 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

OVERINGTON v NEW ZEALAND POLICE [2014] NZHC 3261 [16 December 2014]

Introduction

[1]      The appellant, Dennis Gibson Overington was charged with two offences under the Land Transport Act 1988 (“the LTA”) in relation to his use of a truck.  One of the charges was a driving offence and the other related to his failure to fill out a logbook.   After a defended hearing in the District Court he was convicted.   In relation to the driving offence he was fined $200 with Court costs of $130 and in relation to the logbook offence a fine of $150 and Court costs of $130.

[2]      The  essence  of  Mr  Overington’s  appeal  is  that  he  was  not  required  to maintain a logbook under the Land Transport Rules, that the summons was not validly issued and that the substance of the driving charge was overly technical.

[3]      Although the notice of appeal records that Mr Overington appeals both his conviction and sentence the argument before me was focused entirely on his convictions and, given the modesty of the penalties imposed and the fact that the sentencing Judge commented that the fines were the least he could impose, any sentence appeal would necessarily fail.  Accordingly, I proceed on the basis that this is a conviction appeal and, to the extent the sentence is appealed it must fail and is dismissed.

Background

[4]      Early on the morning of 2 May 2013 Mr Overington was driving a large truck and trailer unit in Parnell.  He was stopped by a Police vehicle safety officer who directed Mr Overington to drive the truck to the nearby Stanley Street commercial vehicle weigh bridge for an inspection.  The inspection revealed there was a missing windscreen wiper, the reflector on the right front head lamp was damaged and the drive shaft between the second and third axles appeared loose.

[5]      As a result the safety officer placed a green non-operation order sticker on the windscreen.   The non-operation order included numerous conditions requiring the truck to be removed from the road and not to be driven until the defects had been eliminated and a vehicle inspector had inspected the vehicle and was satisfied it was no longer defective and had issued evidence of a new vehicle inspection displayed

on the vehicle.  Furthermore, in accordance with s 115(2A) of the LTA the notice was to remain in force until the safety officer who issued the notice was notified that the vehicle was compliant.  The notice did, however, expressly permit the vehicle to be driven at a speed not more than 80 kph to a place for repair and to a testing station for the issuing of a new Certificate of Fitness.

[6]      Five days later, on 7 May 2013, at a little after 9:30pm, the safety officer was on patrol in the Onehunga area with another officer in an unmarked Police car.  They recognised the same truck parked in the Onehunga Mall.   It had the green non- operation order sticker on the front window.  Not far away they saw Mr Overington sitting outside a local café having a meal with another man.

[7]      They stopped and waited for nearly an hour and a quarter.  At 10:50pm they saw Mr Overington get into the truck and start to drive it away.  They stopped the truck and spoke to Mr Overington about why he was driving it.  Mr Overington said that he was going from his home to the place where he was going to fix the truck which he could not do during the day.  When asked where he intended to repair the truck he said the council carpark on Waller Street.  He was then asked if he could explain why he had driven it to a Turkish café and sat outside having a meal and then driven it away.  Mr Overington said that that was where he had his meal.  It was then put to him that he had knowingly used a vehicle with a non-operation order, no current Certificate of Fitness or registration and the road user charge overrun.  He was asked if he had any explanation.  Mr Overington said he was not using the truck.

[8]      The truck was then re-inspected and the same faults, still unrepaired, were evident.  Mr Overington was asked for his logbook which had no entries in it for that day.  Mr Overington was charged with driving a vehicle that was subject to a non- operation order contrary to s 52(1)(c) of LTA (“the driving offence”) and producing a logbook that omits a material particular contrary to s 79R(2)(c)(i) of the LTA (“the logbook offence”).

[9]      Mr Overington, who acted for himself at his trial and on this appeal gave evidence at his trial.  He said that after the non-operation order was placed on the truck on 2 May 2013 it was towed to Turners.  Mr Overington said he picked it up

from Turners and drove it to his home.  However it was raining and the conditions were not suitable for him to repair it.   He was also concerned that with the truck parked outside his home he would liable for a substantial parking fine and so decided he needed to take it somewhere else to repair but could not take it to the yard he had been using, apparently because there were other trucks parked there and they were behind in rent.  He said his only option was to use the council carpark in Onehunga which he said was convenient because he could also get a meal nearby and the facilities to wash his hands.  He said he did not think to take the truck around the back until the restaurant was closing.  He said he was unaware at that time that there was a sign on the carpark saying, “No trucks or trailers”.

[10]     Mr Overington was cross-examined and it was put to him that he was not taking the truck to a place of repair but was, instead, using the truck as his transport. He denied this.

District Court decision

[11]     After reviewing the facts on the driving charge the Judge determined that Mr Overington was driving the truck on 7 May 2013 contrary to the prohibition.  His Honour also concluded that the timing and circumstances of the driving led him to the conclusion that Mr Overington, in driving the truck, was not doing so for the purpose of moving it for the purposes of repair.  Instead, he was in Onehunga having a meal.  In relation to the logbook offence the Judge concluded that Mr Overington was well aware of his obligations to maintain the logbook with the necessary particulars.   He found both charges proved to the required standard and entered convictions.

Grounds of appeal

[12]     Mr Overington appeals to this Court on the following grounds:

(a)       he was not required to maintain a logbook as the exemption under r 4.6(5)(a) of the Land Transport Rule:  Work Time and Logbooks

2007 (the “LTR”) applied;

(b)the summons was not validly issued as a summons issued under s 20A of the Summary Proceedings Act 1957 (“the SPA”) requires there to be “special reasons” before it may be issued;

(c)      the substance of the driving charge was overly technical and did not warrant a charge or conviction; and

(d)the   trial   Judge   did   not   understand   how   unfair   it   was   for Mr Overington’s friend to have to stay late in order to drive him after the vehicle inspection was conducted on 7 May 2013.

[13]     The fourth ground of appeal is not an appeal ground.  It is not addressed in this judgment.

Approach on appeal

[14]     The offending took place prior to the Criminal Procedure Act 2011 coming into force.  As such the appellant’s right to appeal is derived from s 115 of the SPA. An appeal against conviction is by way of rehearing under s 119.   Section 121(2) allows this Court to confirm the conviction, set it aside, or amend it.

[15]     According to Elias CJ in Austin, Nichols & Co Inc v Stichting Lodestar:1

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment.   If the appellate Court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances, it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[16]     In O’Neill v Police,2 this Court observed that in coming to its own judgment, the appeal Court should pay appropriate deference to findings made by a Judge who had the advantage of hearing the witnesses on questions of credibility, but it must

nevertheless review the evidential basis for factual findings carefully.

1 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at [16].

2 O’Neill v Police HC Auckland CRI-2007-404-405, 9 October 2008 at [5].

Ground 1: Was Mr Overington required to maintain a logbook?

[17]     Section  30ZF  of  the  LTA  requires  drivers  to  maintain  logbooks  unless exempted.  Mr Overington does not challenge that s 30Z applied to him.

[18]     However, he submits he was exempted through the operation of r 4.6(5)(a) of the LTR and as a result he was not required to maintain a logbook when stopped on

7 May.  Rule 4.6(5)(a) of the LTR provides:

A driver does not have to maintain a logbook if the driving occurs within a

50-km radius of the enterprise’s usual business location and a load is not

being carried for hire or reward; and

(a)       The vehicle is under mechanical repair or is solely being used for

road testing …

[19]     Ms Wilson, for the Police, concedes that the other elements of the LTR are met by Mr Overington.  For the purposes of this appeal the only issue is thus whether the vehicle was “under mechanical repair”.

[20]     Relying on the natural and plain meaning of the words, Ms Wilson submits that  emphasis  must  be  placed  on  the  word  “under”  in  the  phrase  “…  under mechanical repair”.  She submits that this must necessarily mean that the repair has already commenced and is in the course of being carried out.  She submits that there is an important practical and policy basis for this interpretation because it would apply to a situation where a mechanic may be test driving a vehicle.  She submits that  this  narrow  approach  to  the  LTR’s  interpretation  is  justified  because  this approach is consistent with the purpose of the relevant logbook provisions which are to assist enforcement officers in monitoring the operation of heavy vehicles and to ensure that they are driven and operated safely.

[21]     Mr Overington submits that a broader interpretation is justified.  He accepts the logbook was not completed but he submits that because the vehicle was in need of repair and he was driving it for the purpose of taking the truck to somewhere where it could be repaired such conduct would be permitted under r 4.6(5)(a) and thus a logbook would not be required to be filled out.

[22]     I accept Ms Wilson’s submission.  The term “under mechanical repair” must mean what the composite words say, and should not be extended to apply to a vehicle which has been identified as being in need of repair.   Such a wide interpretation would attract an unacceptable level of ambiguity and uncertainty and does not fit within the very specific exemptions detailed in the LTR.

[23]     This interpretation is consistent with other relevant provisions of the LTA as they relate to logbooks.  These provisions are expansive and require logbooks to be maintained at all times subject to specified exemptions.   The promotion and maintenance  of  safety  is  the  core  purpose  behind  requiring  logbooks  to  be maintained which is why both the statutory provisions and the LTR deal with other safety issues relevant to logbook maintenance such as ensuring drivers take breaks.

[24]     If Mr Overington’s interpretation was to be preferred then any heavy vehicle in need of mechanical repair could be driven without a logbook provided there was some intention to take it to a place for repair.  The potential for there to be periods when  the  truck  was  being  driven  when  no  logbook  would  be  required  would introduce a level of uncertainty around the limits of the exemption and begs the question, in particular, of how proximate to the repair does the driving have to be for the exemption to apply.  Furthermore, this conduct would compromise safety in the use of heavy vehicles which may have been identified as being unsafe and requiring repair before being permitted to return to the road.

[25]     On Ms Wilson’s interpretation, which I accept, even on Mr Overington’s account, the appeal must fail.  However, the Judge did not accept Mr Overington’s evidence that when he was driving the truck after his meal he was intending to take it to the council carpark where repairs would be undertaken.   Mr Overington’s explanation to the officer that he was not using the truck was not accepted by the Judge who summarised Mr Overington’s defence in the following way:

The timing and circumstances of the driving take me to the conclusion that Mr Overington was not, while in the Onehunga Mall, having a meal at a restaurant, having any purpose of moving the vehicle for the purpose of repair at all.  He was, as he said in relation to the logbook offences, not using the vehicle for work purposes.

[26]     Mr Overington submits there was no proper evidential basis for the Judge to draw the inference that he was not driving the truck for the purposes taking it to somewhere it could be repaired.

[27]     In my view this was an inference which was open to the Judge to draw from the facts before him. The vehicle was parked outside the café for at least an hour and a quarter while Mr Overington had a meal with his friend.  It was late in the evening. Mr Overington’s explanation that he moved the truck from his home because of the inclement weather conditions and his concerns about attracting a fine does not lie comfortably with his stated intention of parking the truck in a council carpark for the repairs to be done.   The truck would still be exposed to the weather and liable to parking fines.  Furthermore, the time of night and the circumstances of the late night meal support the inference that Mr Overington was using the truck for personal use rather than taking it to a place of repair.

[28]     In Mr Overington’s additional submissions he refers to the fact that he had all the necessary tools in the boot of the vehicle whilst at the cafe which supports his argument that he was going to take the truck to a place of repair. However there is no evidence to support this submission.

[29]     This ground of appeal fails.

Ground 2: Was the summons validly issued?

[30]     The logbook offence is defined as an infringement offence.3    I briefly note, and accept, Mr Overington’s submission that the driving offence could also have been an infringement offence.4 However the Police were entitled to proceed as they

did.

3 Land Transport Act 1996, s 2.

4 Land Transport (Offences and Penalties) Regulations 1999, Schedule 1, provides for an infringement free of $600.

[31]     Because the logbook offence carries a maximum penalty of a fine of $2,000 the procedure is prescribed by s 20A of the SPA.  Sections 12(1) and 20A(1) provide as follows:

12       Commencement of proceedings

(1)       Except  where  the  defendant  has  been  arrested  without warrant, all proceedings brought under this Part shall, subject to sections 20A and 21, be commenced by the laying of an information or the making of a complaint.

20A      Summary procedure for minor offences

(1)       Where a charge is brought by any informant of the kind described  in  subsection  (10)  against  any  person  for  any  minor offence (as defined in subsection (12)) a summons to the defendant shall not be issued in the first instance, unless the informant satisfies the Registrar that for special reasons a summons should be issued or a District Court Judge or Community Magistrate so directs.

[32]     Thus the proper procedure for the logbook offence was by way of notice of minor offence.   If a summons was to be issued special reasons must exist to the satisfaction of the Registrar or on the direction of one of the nominated judicial officers must direct.

[33]     Mr Overington submits that there were no special reasons which existed to permit a summons to be issued in the first instance.  He accepts that in relation to the driving charge where the maximum penalty is a fine of $10,000, s 20A does not apply.  However, his argument is that the logbook offence required the minor offence procedure to be followed.   He submits that in the absence of special reasons the incorrect procedure was followed and is thus fatal to the prosecution.

[34]     Mr Overington raised this challenge in the District Court.  The Judge dealt with it in the following way:

It is not for me to review the decision of some other person who made a discretionary ruling.   Accordingly, the fact of the issue of the summons inclines me to believe the prosecution has reached the standard that was required and are entitled to proceed by way of summons.

[35]     There is no evidence to explain why it was that a summons for the logbook offence was issued in the first instance in lieu of the matter proceeding by way of notice of minor offence.  In the circumstances it seems likely that because the two offences were so closely linked in time, place and circumstance the prosecution was of the view that the charges should be heard together rather than proceed separately and thus satisfied the Registrar that a summons should be issued.  However, in the absence of evidence, it is unhelpful to speculate.  Nor is it necessary to do so.

[36]     Issuing a summons is a procedural step in compelling a defendant to attend Court.  It does not go to the substance of the charge or its proof.  It was not the task of the Judge to review the decision of the Registrar as to whether there existed special reasons to issue a summons.

[37]     Mr Overington answered both summonses.  In argument before me he was unable to point to any particular prejudice arising out of the summons being issued for the logbook offence.  In his additional submissions he argues that if the minor offence procedure had been complied with there would have been a copy of the written explanation available.

[38]     However Mr Overington conducted his defence on both charges.  His defence on both charges was centred around his claim that the truck was being driven by him for the purpose of being taken to a place where the repairs could be carried out.

[39]      Had a summons not been issued on the logbook charge Mr Overington’s

options were as follows:

(a)       to deny the charge or to appear before the Court for that purpose or any other puropse;5

(b)      to plead guilty and in writing:

(i)       state matters he wishes the Court to take into consideration;

(ii)      make submissions with regard to the appropriate penalty; and

(iii)put  forward  reasons  why  he  shoudl  be  discharged  without conviction under s 106 of the Sentencing Act 2002.6

[40]     In the event he wished to deny the charge, a summons was required to be issued.7 It is obvious that given the history of this matter Mr Overington would have defended the logbook offence on the same basis he did in the District Court and on this appeal.  He might, considerably, have advanced his defence in writing only, in terms of s 20A(6) of the SPA.  But for this defence to have any prospect of success evidence  needed  to  be  adduced  on  the  question  of  the  circumstances  which Mr Overington claims justified him in driving the truck and thus relieving him of the obligation to maintain the logbook.  A hearing was necessary.  Thus Mr Overington

would have to have appeared in Court to deny the logbook offence and for that reason the Registrar would have been required to issue a summons.   I can see no basis for Mr Overington to claim any prejudice arising out of the issuing of  a summons.

Does s 204 apply?

[41]     Ms Wilson submits that s 204 of the SPA does, in any event, operate to validate the process even if the summons was invalidly issued.

[42]     Section 204 provides:

No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any District Court or by any other court by reason only of any defect, irregularity, omission, or want of form unless the court is satisfied that there has been a miscarriage of justice.

[43]     I do not accept that s 204 operates to cure a defect of the sort Mr Overington relies on.

6 SPA, s 20A(6).

[44]     The  authorities  which  have  discussed  s  204  almost  exclusively relate  to defects and errors in informations.8

[45]     The question here is not a defect or want of form in the summons itself. Mr Overington’s argument relates to the procedure adopted.  I am not satisfied that procedural defects of this kind are capable of being cured by resort to s 204.

[46]     However, what the authorities do illustrate is that defects in an information are more likely to be fatal to the prosecution than defects in a summons.   This is because the contents of the information put the defendant on notice as to the nature of the allegations being made against him.  The information is required to fully and fairly inform the defendant of the substance of the allegation they face.  There is no question that Mr Overington understood the nature and substance of the allegations being made against him.  There has been no suggestion that the informations failed to disclose a defence or amounted to a nullity.

[47]     For these reasons I am satisfied that this ground of appeal must fail.

Ground 3:   Was the charge minor and technical and should the prosecution have been commenced?

[48]     Mr Overington did not directly or specifically address this issue in argument on the appeal although he did make various references to the minor nature of the charges.

[49]     The charges carry maximum penalties in the form of fines of $10,000 and

$2,000 respectively.  It is plain from the judgment in the District Court that the Judge took into account the level of offending in the relatively modest fines he imposed.

[50]     Mr Overington’s complaint under this ground is that the prosecuting authority should not have laid the logbook charge.   This is essentially a challenge to the Police’s decision to prosecute.  It is well settled that the extent to which this Court

may review the decision to prosecute is very limited.9     In any event, the present appeal is not the appropriate forum to make such a challenge. This ground, too, must fail.

Result

[51]     The appeal is dismissed.

Moore J

Solicitors:

Crown Solicitor, Auckland

Copy to:

Mr Overington