Phillips v Police

[2012] NZHC 1677

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-488-13 [2012] NZHC 1677

GRAY ANDREW PHILLIPS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 July 2012

Appearances: Appellant in Person

TR Nicholls for Crown

Judgment:      13 July 2012

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 13 July 2012 at 2:50 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

GA Phillips:  [email protected]

TR Nicholls, Crown Solicitor, Whangarei:  [email protected]

PHILLIPS V NEW ZEALAND POLICE HC WHA CRI-2012-488-13 [13 July 2012]

[1]      Mr Phillips appeals to this Court after having been found guilty, by Justices of the Peace in the District Court at Kaikohe on 15 July 2011, of an infringement offence.  He had been charged that on 10 February 2011 at Paihia, he had committed an offence against the Road User Charges Act 1977,[1]  in that he was the owner of a motor vehicle which  was  operated  on  a road  when  the reading of the distance recorder was more than the maximum reading specified in the appropriate licence for

that vehicle. The appellant represented himself at a defended hearing of the charge.

[1] Road User Charges Act 1977, ss 5(1)(d) and 23.

[2]      Evidence for the prosecution was given by Senior Constable Graham.   He said  that  he  inspected  the  appellant’s  diesel  powered  vehicle  at  11:24 am  on

10 February 2011 and he saw that the odometer reading was 195,515 kilometres and that the maximum reading on the road user licence displayed on the vehicle was

193,500 kilometres.   On the basis of the differential of 2,014 kilometres the infringement fee was calculated at $373.32.

[3]      The evidence established that the appellant was the owner of the vehicle and, further, that the appellant had renewed his road user charges licence later that day.

[4]      The appellant  gave  evidence  at the hearing.   He complained  that Senior Constable Graham had not told him at the time of his inspection that the distance recorder showed a distance exceeding that in the licence.  He says he noticed that himself at the time of the inspection and then went later that day and paid for an additional licence.   He says he did not know was going to be prosecuted until he received the infringement offence notice sometime later.

[5]      The appellant told the Court that he had previously had a similar charge withdrawn by the prosecution once he had brought payment of his charges up to date and he expected the same thing to happen in this case.  He was concerned about the conviction because it meant he would incur demerit points.

[6]      The Justices were satisfied that the charge was proved, not least because the appellant admitted in evidence that his vehicle had exceeded the licensed distance at

the time of the inspection and that he had paid the additional charges later that day to put himself back in credit.

[7]      In support of the appeal, the appellant submits that the infringement notice was incorrect.  It contains the following particulars:

Hubo reading  195514

Licence maximum              193500

Excess kilometres               2014 kms

[8]      Mr Phillips says the vehicle is a light van and that it has no hubodometer.

[9]      The offence is one which occurs when the reading of the “distance recorder” on the vehicle exceeds the maximum reading specified in the licence.  In some cases the distance recorder may be a hubodometer, but for the purposes of the charge on which the appellant was convicted, there being no hubodometer, it was the odometer reading which was relevant.

[10]     The particulars in the notice are plainly in error in referring to a hubodometer, but  what  is  important  is  the  evidence  given  at  the  defended  hearing.    Senior Constable  Graham  gave  evidence  as  to  the  “odometer”  reading;  he  was  not challenged on that evidence.  Accordingly, the Justices were entitled to be satisfied beyond reasonable doubt that the distance recorder reading on the vehicle exceeded that of the maximum shown in the licence.

[11]     The alternative ground for appeal was that, in fact, no road user licence was required for the vehicle at the time it was inspected by Senior Constable Graham because it was exempt from road user charges, from 14 December 2010, as a Class B vehicle.  The appellant’s argument is that the vehicle was classified for farm use and that, even though it is diesel-powered, it was exempt from road user charges if driven for farm purposes no more than 21 kilometres from the farm on which it was used.

[12]     No evidence of such exemption was given at the hearing and I assume that the point was one which Mr Phillips had overlooked at that time.  Nevertheless, he has now produced an email from New Zealand Transport Agency confirming that the

details held on the Motor Vehicle Register for the Toyota vehicle showed that the usage for the vehicle changed from Taxi, Commercial Passenger, to Exempt Class B (EB) on 14 December 2010.   The usage was changed back to Taxi, Commercial Passenger,  on  10 February 2011,  but  it  is  common  ground  that  that  was  after Constable Graham’s inspection earlier that day.

[13]     The email confirms that under EB usage, the vehicle is exempt from the payment of some levies and charges such as ACC levies, road user charges and fuel excise, and excise equivalent duty.

[14]     Mr  Nicholls,  who  appeared  for  the  respondent,  had  undertaken  his  own inquiries and confirmed that the factual and legal position was as set out in the email produced to the Court by Mr Phillips.  He pointed out, however, that there was no evidence at the hearing that, at the time of Senior Constable Graham’s inspection, the vehicle was being used for a purpose and within the distance which would have maintained the exemption.

[15]     Under s 119(3) Summary Proceedings Act 1957 (“the Act”), the Court has a discretion to hear and receive further evidence, if that further evidence could not in the circumstances have reasonably been adduced at the hearing.  It is questionable whether the circumstances relating to the evidence now adduced by Mr Phillips meets that test, but the evidence is undoubtedly credible and would have afforded a basis for a defence if led at the hearing before the Justices.  On the basis of the new evidence, Mr Phillips may have been entitled to a rehearing under s 75 of the Act.

[16]     The overriding consideration is the interests of justice.   Mr Nicholls very fairly conceded that, in all of the particular circumstances, it would be unjust to deprive  Mr Phillips,  on  a  technicality,  of  an  argument  which  appears  to  have substance.

[17]     Mr Phillips’s explanation for his vehicle “going in and out of exemption” was that he used the vehicle as a taxi for commercial passenger purposes when there were cruise ships in the Bay of Islands, but reserved it solely for farm use during the off- season.  His intention in paying the road user charges on 10 February 2011 was to

use the vehicle for cruise ship-related purposes for a period from that time.   I am satisfied that, in those circumstances, whether the exemption might technically have lapsed when he drove more than 21 kilometres into town to pay the charges, is of insufficient moment to justify engaging the criminal law.

[18]     Mr Phillips explained that he does not have access to the Internet and so he is not able to pay his road user charges on line.  He acknowledged, however, that he was able to keep the charges paid up to date, whenever required, by means other than risking operating the vehicle outside the exemption.

[19]     On the basis of the evidence put before them, the Justices were entitled to confirm the infringement fee and order the payment of costs. In light of the circumstances put before this Court, and without objection from counsel for the respondent, it is appropriate to set those orders aside.

[20]     The appeal is allowed, the infringement fee is cancelled and the order for costs set aside.

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

Toogood J