Prescott v Police
[2020] NZHC 2191
•27 August 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000163
[2020] NZHC 2191
BETWEEN PETER PRESCOTT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 June 2020 (further submissions received on 14 and 22 July and
7 August 2020
Appearances:
Appellant in person
K Fitzgibbon for Respondent
Judgment:
27 August 2020
JUDGMENT OF LANG J
[on appeal against conviction]
This judgment was delivered by me on 27 August 2020 at 3.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Auckland
PRESCOTT v NEW ZEALAND POLICE [2020] NZHC 2191 [27 August 2020]
[1] Mr Prescott was charged with exceeding the speed limit after a motor vehicle registered in his name was captured by a speed camera travelling above the posted speed limit on 20 July 2016.
[2] Mr Prescott denied the charge and the matter was set down for hearing before Justices of the Peace on 27 October 2016. Mr Prescott failed to appear at that hearing and the Justices of the Peace found the charge proved in his absence. They ordered Mr Prescott to pay a fine of $80 and court costs of $30.
[3] Mr Prescott appealed against the decision, but in a decision delivered on 21 March 2018 Judge Tremewan dismissed the appeal.1
[4] Mr Prescott appeals against the Judge’s decision. Leave to appeal out of time was granted by Whata J on 5 June 2020.
Leave to bring a second appeal
[5] Leave is also required because this would be a second appeal.2 Justice Whata did not address this issue in his decision granting leave to appeal out of time so I am required to determine whether leave should be granted. Leave to bring a second appeal may only be granted where the proposed appeal raises an issue of general or public importance or where there is a risk a miscarriage of justice may have occurred (or may occur) if leave is not granted.3
Background
[6] A speed camera captured a vehicle registered in Mr Prescott’s name travelling along Triangle Road in West Auckland at a speed of 64 kilometres per hour on 20 July 2016. The posted speed limit in that area is 50 kilometres per hour.
[7] The police issued an infringement notice against Mr Prescott and served it on him on 2 August 2016. Mr Prescott contested the infringement notice and requested
1 Police v Prescott [2018] NZDC 5372.
2 Criminal Procedure Act 2011, s 237(1).
3 Section 237(2).
a hearing. As previously recorded, he failed to appear at the hearing so the prosecution obtained a conviction in his absence.
The proposed appeal
Jurisdiction
[8] In the District Court Mr Prescott contended neither the Justices of the Peace nor the Judge had jurisdiction to deal with the infringement. He advanced an array of arguments under this head, contending that the police failed to establish the jurisdiction of the Court and that the District Court acted without jurisdiction. Mr Prescott did not advance this argument in support of the proposed second appeal and he was wise not to do so. It is plainly without merit and would not justify leave to appeal being granted.
Failure to provide adequate particulars of the offence in the infringement notice
[9] Mr Prescott now advances an argument he did not rely upon in the District Court. This is based on the fact that the infringement notice he received did not specify the statutory provision he allegedly contravened by travelling in excess of the posted speed limit. Mr Prescott submits this meant the infringement notice was fatally flawed and the conviction could not stand on that basis.
[10] As Ms Fitzgibbon for the respondent points out, however, s 140 of the Land Transport Act 1998 (the Act) provides that an infringement notice “must be in the form prescribed by regulations under [the] Act”, and it must contain information about specified matters. These include such details of the alleged infringement offence that are sufficient to fairly inform the recipient of the “time, place and nature” of the alleged offence.4 Notably, however, s 140 does not require an infringement notice to set out the statutory provision the recipient of the notice is alleged to have breached. Section 140(1)(h) requires only that the notice must include “a summary of the provisions of s 133”.
4 Land Transport Act 1998, s 140(1)(a).
[11] The prescribed form for moving vehicle offence infringement notices is set out in Schedule 2 to the Land Transport (Infringement and Reminder Notices) Regulations 2012. This contains all the information required by s 140 but does not advise the recipient of the statutory section that has allegedly been contravened. The prescribed form also contains the following information in a section headed “Information” on the reverse side of the form:
Information about moving vehicle offences and special vehicle lane offences
5Section 133 of the Land Transport Act 1998 provides that proceedings for a moving vehicle offence or a special vehicle lane offence may be taken against 1 or more of the following persons:
(i)the person who allegedly committed the offence:
(ii)the person who, at the time of the alleged offence, was registered under section 18 of the Transport (Vehicle and Driver Registration and Licensing) Act 1986 or Part 17 of the Land Transport Act 1998 in respect of the vehicle involved in the offence:
(iii)a person who, at the time of the alleged offence, was lawfully entitled to possession of the vehicle involved in the offence (whether jointly with any other person or not), —
whether or not, if item (b) or (c) applies, the person is an individual or was the driver or person in charge of the vehicle at the time the alleged offence was committed.
6Where proceedings in respect of a moving vehicle or a special vehicle lane offence are taken against you not as the person who allegedly committed the offence but as a person referred to in paragraph 5(b) or (c), the acts or omissions of the driver or person in charge of the vehicle at the time of the alleged offence are presumed to be your acts or omissions unless you establish the defence described in paragraph 8.
The Court file does not contain a copy of the reverse side of the infringement notice issued to Mr Prescott and the police do not hold a copy on their file. Following the hearing, and at my request, Mr Prescott filed a copy of the reverse side of the infringement notice he received. This is headed “Information” and one section contains advice about s 133 in the same terms as that in the prescribed form set out above. The infringement notice that Mr Prescott received therefore complied with the requirements of s 140(1)(h) of the Act.
[12] I am satisfied there is no legal requirement for an infringement notice to specify the statutory provision the recipient has allegedly contravened. It will be sufficient for the reverse side of the notice to contain the information set out under the section headed “Information” as prescribed in the regulations.
[13] This proposed ground of appeal therefore has no merit and would not justify the granting of leave.
Proof of identity
[14] Mr Prescott next seeks to argue, as he did before the Judge, that the prosecution failed to identify him as the person who was driving the vehicle. I deal with this argument on the assumption that the prosecution was able to prove he was the owner of the vehicle captured in the photograph taken by the speed camera.
[15] The problem Mr Prescott faces in relation to this issue arises from s 133 of the Act, which provides as follows:
133 Owner liability for moving vehicle offences and special vehicle lane offences
(1)Proceedings for a moving vehicle offence or a special vehicle lane offence may be taken against any 1 or more of the following persons:
(a)the person who allegedly committed the offence:
(b)the person who, at the time of the alleged offence, was registered under Part 17 in respect of the vehicle involved in the offence (or, if the offence is alleged to have been committed before the commencement of section 242, a person who, at the time of the alleged offence, was registered as the owner, or 1 of the owners, of that vehicle in a register kept under section 18 of the Transport (Vehicle and Driver Registration and Licensing) Act 1986):
(c)a person who, at the time of the alleged offence, was lawfully entitled to possession of the vehicle involved in the offence (whether jointly with any other person or not);—
whether or not (in the case of a person referred to in paragraph (b) or paragraph (c)) the person is an individual or was the driver or person in charge of the vehicle at the time the alleged offence was committed.
(2)In proceedings taken against a person under paragraph (b) or paragraph (c) of subsection (1), in the absence of proof to the contrary, it must be presumed that—
(a)the defendant was the driver or person in charge of the vehicle at the time of the alleged offence (whether or not the person is an individual); and
(b)the acts or omissions of the driver or person in charge of the vehicle at that time were the acts or omissions of the defendant.
(3)It is a defence to proceedings against a person for a moving vehicle offence or a special vehicle lane offence if another person has, by virtue of an order under the Criminal Procedure Act 2011 or the Summary Proceedings Act 1957, become liable to pay a fine or costs, or both, in respect of the offence.
(4)It is a defence to proceedings against a person under paragraph (b) or paragraph (c) of subsection (1) if,—
(a)At the time the alleged offence was committed,—
(i) the person was not lawfully entitled to possession of the vehicle (either jointly with any other person or severally); or
another person was driving the vehicle; and
(b)Immediately after becoming aware of the alleged offence, the person advised the enforcement authority in writing that, at the time the offence was committed, he or she was not lawfully entitled to possession of the vehicle or another person was driving the vehicle (as the case may be); and
(c)The person has given the enforcement authority a statutory declaration—
(i) identifying the driver, by giving—
(A)the full name and full address of the driver; and
(B)any other identifying particulars, so far as they are within the person’s knowledge, such as the driver’s date of birth, occupation, telephone number; or
(ii) Establishing that the person could not identify the driver, after taking all reasonable steps to do so.
(5)In proceedings for a moving vehicle offence … a statutory declaration given under subsection (4) is, in the absence of proof to the contrary, sufficient evidence of the matters stated in the declaration; and it is admissible for all purposes of any proceedings under this section.
[16] The definition of “moving vehicle offence” in s 2 of the Land Transport Act 1998 is as follows:
moving vehicle offence means an offence detected by approved vehicle surveillance equipment that is—
(i)a speeding offence; or
(ii)an offence in respect of the failure to comply with the directions given by a traffic signal or a traffic sign that is a variable traffic or lane control sign; or
(iii)any offence against regulations made under this Act or the Transport (Vehicle and Driver Registration and Licensing) Act 1986 … that is declared by regulations under this Act to be a moving vehicle offence for the purposes of this definition ; or
(iv)a toll offence:
[17] As will be plain from the wording of s 133, there is a presumption that the registered owner of a vehicle was driving the vehicle at the time it is involved in the commission of a moving vehicle offence. In order to escape conviction for that offence the owner must prove two things. First, that he or she was not driving the vehicle at the time the offence was committed. Secondly, the identity of the person who was driving the vehicle at that time.
[18] Mr Prescott failed to attend the hearing before the Justices of the Peace and provide proof to rebut the statutory presumption. The prosecution was therefore not required to prove he was the driver of the vehicle at the relevant time.
[19]The Judge disposed of this argument as follows:
[24] This point can also be disposed of quickly. Mr Prescott was the registered owner of the vehicle at the relevant time. He was therefore liable under s 133 of the Land Transport Act. That provision permits proceedings to be taken against the registered owner of the vehicle. In the absence of proof to the contrary, it must be presumed that the defendant was the driver and that acts or omissions of the driver or person in charge of the vehicle at the time were the defendant’s actions. Mr Prescott failed to attend and provide proof to the contrary. Accordingly, it was unnecessary for the prosecution to prove that Mr Prescott was the driver of the vehicle at the relevant time.
[20] I agree with the Judge’s assessment. Mr Prescott’s argument under this head is untenable and leave to appeal on this ground could not be justified.
The manner in which the prosecution proved the offence
[21] This is a new argument and was not considered in the District Court. It flows from Mr Prescott’s previous argument relating to proof of identity. Mr Prescott contends the process used at the hearing before the Justices was flawed and the conviction should not stand for that reason.
[22]The Justices’ decision was brief to say the least:
[1] In the case of Mr Peter Prescott, non-appearance at 11.50 am. Information given by way of formal statement. He will be ordered to pay a fine of $80 and Court costs $30.
[23] Mr Prescott originally sought judicial review of the process that led to his conviction. Ms Fitzgibbon relies on an affidavit sworn and filed in that proceeding by Sergeant Garth Coffey, a police prosecutor based in Wellington, to explain the procedure used at the hearing before the Justices. Sergeant Coffey deposes:
6.The hearing was before two Justices of the Peace, where the matter proceeded to formal proof as Mr Prescott did not appear. Formal proof for an infringement offence of this nature generally involves the prosecutor providing a sworn statement to the Court from the traffic camera operator and the Police summary of facts, which I attach as Exhibit GMC-2. My search of the Police file indicates it appears to no longer contain a copy of the operator’s sworn statement. If required, it may be able to be obtained from the District Court’s records.
7.The Justices of the Peace found the offence proved and ordered Mr Prescott to pay a fine of $80 and court costs of $30. I attach the oral judgment as Exhibit GMC-3.
[24] Sergeant Coffey was not the prosecutor at the hearing before the Justices so he can only speak to the general practice followed when a defendant does not appear in cases of this type. The District Court file has now been searched and the sworn statement from the traffic camera operator cannot be located on it. Notwithstanding this deficiency Ms Fitzgibbon submits the Court can be confident the prosecution provided sworn evidence to the Justices that Mr Prescott was the owner of the vehicle captured in the photograph taken by the speed camera. She therefore submits this ground of appeal has no merit.
[25] I would have accepted Ms Fitzgibbon’s argument if the Justices had described the information contained in the formal statement to which they referred and confirmed it was sworn or affirmed so as to be admissible. It would not have been sufficient, for example, for the prosecutor to tender a summary of facts unaccompanied by evidence from a witness. I would also have accepted Ms Fitzgibbon’s submission if the police had been able to locate a copy of the witness’s evidence on their file. Unfortunately, however, neither form of confirmation is available. The Justices’ decision does not even go so far as to confirm they received evidence in an admissible form.
[26] The prosecution bore the onus of proving beyond reasonable doubt that Mr Prescott was the owner of the vehicle photographed by the speed camera. The absence of any evidence to establish how it discharged that onus leaves me in a position where I cannot be sure how or whether the prosecution proved the charge. Conviction in those circumstances would amount to a miscarriage of justice. Mr Prescott has therefore established the necessary basis on which to bring a second appeal.
Result
[27] Leave to bring a second appeal against conviction is granted. The appeal against conviction is allowed and the sentence and costs order imposed by the District Court are quashed.
Lang J
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