Prescott v Police
[2013] NZHC 3441
•18 December 2013 at 12.30pm
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2013-404-000266 [2013] NZHC 3441
BETWEEN SCOTT KEVIN PRESCOTT
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 2 December 2013 Appearances:
Appellant in person
L Mills for RespondentJudgment:
18 December 2013 at 12.30pm
(RESERVED) JUDGMENT OF ANDREWS J [Appeal against conviction]
This judgment is delivered by me on 18 December 2013 at 12.30pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors:
Meredith Connell, Auckland
Copy to: Appellant
PRESCOTT v NEW ZEALAND POLICE [2013] NZHC 3441 [18 December 2013]
Introduction
[1] The appellant was convicted by two Justices of the Peace in the District Court at Auckland on 6 August 2013 on infringement notices relating to a charge of failing to produce his driver’s licence for inspection without delay, after having been required to do so by an enforcement officer, and a charge of operating a heavy motor vehicle on a road when the vehicle was not displaying current evidence of vehicle inspection.
[2] The Justices of the Peace, having found both charges proved, ordered the appellant to pay, $200 on each charge, together with court costs of $130.
[3] The appellant has appealed against conviction on a number of grounds, which may be summarised as being that the proceeding is a nullity (apparently relating to whether he entered a plea), the Police failed to prove the case beyond reasonable doubt (in that an “annex C” conditional permit was, the appellant says, displayed on the front of the vehicle), the appellant produced his licence the next day so did not fail to produce his licence without delay, and the Police failed to disclose relevant information thus breaching the appellant’s right to present a defence.
[4] At the appeal hearing, the only matters pursued were whether the Police had proved the two charges beyond reasonable doubt. He submitted, first, that as the appellant had produced his driver licence the following day, he should not have been found guilty on the charge of failing to produce his licence without delay, and secondly, that as he had an annex C conditional permit, he should not have been found guilty of operating a heavy motor vehicle while not displaying current evidence of vehicle inspection.
Relevant Facts
[5] The appellant was observed in a recreational vehicle in the Point Erin Pools car park at 9:10 pm on 12 January 2013. The vehicle is a motor home, imported from the United States (hence, with left-hand drive). The Police Officer, Constable Ainsworth, conducted a search of the vehicle on the police computer system which showed the vehicle did not have a current certificate of fitness. The appellant drove
the vehicle from the car park through Sarsfield Street before being stopped by Constable Ainsworth in Argyle Street. Constable Ainsworth asked the appellant to produce his driver licence, but the appellant did not do so. The appellant also did not hand over documentation showing that the vehicle had a certificate of fitness or a compliance permit.
[6] The Police officer issued two infringement notices. The first was under s
31(1)(c) of the Land Transport Act 1998 for failing to produce the appellant’s driver licence for inspection without delay after being required to do so by an enforcement officer. The second was under s 34(1)(b) of the Land Transport Act 1998 for operating a heavy motor vehicle on a road without displaying current evidence of vehicle inspection. The Police officer did not personally sight any documentation on the front of the vehicle and relied on the appellant’s failure to produce the documentation.
[7] The appellant went to the North Shore Policing Centre the following day, 13
February 2013, and produced his licence.
District Court
[8] At the hearing in the District Court, the appellant gave evidence, saying the vehicle was roadworthy and had all the required documentation displayed on the front of the vehicle. The Justices of the Peace accepted that the Police officer had admitted that he did not, at the time, personally sight whatever documentation was on the front of the vehicle. Instead, the Police officer had checked the appellant’s vehicle on the police computer system and noted it did not have a current certificate of fitness.
[9] The Justices noted that the appellant had claimed that the Police officer could not see who was driving, but then later the appellant admitted that he was the only person in the vehicle and so must have been driving the vehicle. On this basis, it was valid for the Police officer to ask the appellant to produce his licence.
[10] After considering the evidence, the Justices of the Peace found that the appellant had failed to produce his licence promptly and also failed to provide documentation proving the vehicle was road worthy. On this basis, the Justices of the Peace found the two charges proven.
Approach on Appeal
[11] This is a general appeal and proceeds by way of rehearing.1 The approach to be taken on a general appeal is set out by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.2 The appellant bears the onus of satisfying this Court that it should differ from the original decision,3 but this Court must come to its own views of the merits.4 The weight this Court gives to the original decision is a matter of judgment.5 Deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment.6 If the appellate court’s opinion is different from the conclusion of the original decision-maker, then
the original decision is wrong, even if the conclusion is one on which reasonable minds may differ.7 If the appellate court considers that the original decision is wrong, it must act on that opinion.8
[12] However, the Supreme Court held that where the original decision-maker (in this case the Justices of the Peace) had the benefit of assessing credibility, an appellate court “may rightly hesitate to conclude that findings of fact or fact and degree are wrong.”9
Did the Police prove the two offences beyond reasonable doubt?
[13] I turn now to the question whether the Police proved the two offences beyond reasonable doubt. The appellant submits that the Police could not have done so.
1 Summary Proceedings Act 1957, s 119.
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141; restated in Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]–[32] per Tipping J.
3 Austin Nichols, above n 2, at [4]
4 At [3] and [5].
5 At [3] and [5].
6 At [16].
7 At [16].
8 At [16].
9 At [5].
Failing to produce licence without delay (s 31(1) of the Land Transport Act 1998)
[14] First, in relation to the failure to produce the driver licence without delay, the appellant accepted that he did not have his licence with him, so did not produce it when he was asked to. However, he submitted that on the following day, 13
February 2013, he drove to the North Shore Policing Centre and produced his licence. He said that the Police did not accept the licence, as the Police officer had not given him the option of producing the licence the following day.
[15] Mr Prescott submitted that the requirement to produce his licence “without delay” meant that he was required to produce it “as soon as feasible”, and that he had produced it as soon as feasible. He further submitted that if that were not the meaning of “without delay”, and the Act required that he produce his licence “immediately upon request”, then the charge was ambiguous and should be struck out on that ground.
[16] Section 31(1) of the Land Transport Act 1998 provides, as relevant:
31 Contravention of sections 5(1)(a), 5(1)(b), 5(4), 30(2), 30(3), or
30(4A)
(1) A person commits an offence if the person—
...
(c) is the driver of a motor vehicle and fails to produce his or her driver licence for inspection without delay after being required to do so by
an enforcement officer; or ...
[17] For the Police, it was submitted that producing the licence without delay does not mean at such time as is convenient to the driver. In Dawson v Police, Clifford J held that it was no justification for failing to produce the licence when requested to say that the defendant had a current licence, which was unavailable to him because it
was locked away in another vehicle.10
[18] The appellant seems to rely on there being an option to provide the licence at the police station within seven days. No such option is provided in the Act. Without delay does not mean within seven days. It means immediately, albeit taking into
account circumstances. For example, searching through one’s wallet or within a bag
10 Dawson v Police HC Wellington CRI-2008-485-151, 27 April 2009 at [19].
to locate the driver licence would not amount to an infringement. Further in some cases a Police Officer may give a driver the opportunity to produce the licence at a later time – for example, the next day. That did not happen in this case.
[19] In the circumstances of this case, the appellant did not have his licence on him. He did not produce it when asked to. Providing it the next day was a delay and hence an infringement. There are no grounds on which it can be said that the Justices were wrong to accept that this charge was proved. The Police proved beyond reasonable doubt that the appellant failed to produce his driver licence without delay when the Police officer requested it.
Operating a heavy motor vehicle on a road without displaying current evidence of vehicle inspection (s 34(1)(b) of the Land transport Act 1998)
[20] This aspect of the appeal focussed on the documentation required for the appellant’s vehicle. Mr Prescott provided the Court with a copy of document headed “Sample Annex C conditional permit” dated 16 December 2012, referring to the vehicle, which he submitted enabled him to operate it legally up until 16 April 2013 (and thus at the time he was charged). He also produced a copy of a “Safety Inspection” which notes that the vehicle as having “failed”, and that it is to be converted to right-hand drive, the tare weight docket is to be supplied, and that the vehicle is to be “complied” after conversion.
[21] The nub of Mr Prescott’s argument was that the vehicle had an annex C conditional permit, and was thus legally on the road. Mr Mills submitted for the respondent that Mr Prescott could not use the vehicle with an annex C conditional permit, as he had not complied with the terms on which such certificates may be used.
[22] An annex C conditional permit may be issued pursuant to rule 5.2 of the Land
Transport Rule: Vehicle Standards Compliance 2002:
5.2 Inspection requirements and conditions
5.2(1) An operator to whom a valid trade plate has been issued may inspect a vehicle for operating under 10.3(1) on an annex B conditional
permit, in accordance with requirements imposed by the Agency by notice in the Gazette.11
5.2(2) A vehicle inspector or inspecting organisation appointed under
2.2(1)(b), (d), (e), or (f) may inspect a vehicle for operation under
10.3(2) on an annex C conditional permit, in accordance with requirements and conditions imposed by the Agency under 2.3.
In the present case, the annex C certificate was given by an inspector at VINZ, Mt
Wellington, Auckland. Accordingly, r 5.2(2) applies.
[23] Before turning to r 10.3, it is necessary to refer to r 10.2. Under r 10.2(1), a heavy motor vehicle (as is the appellant’s vehicle) can only be operated if it has a “warrant of fitness or certificate of fitness, as applicable, and, if appropriate, an alternative fuel inspection certificate”. The only exceptions to having a current certificate of fitness are set out in rr 10.2(2), (3) and (4). These are:
(a) If the vehicle, having an expired certificate, is being operated solely for the purpose of bring it into compliance and it is safe to be operated for that purpose (r 10.2(2));
(b)If the vehicle has a conditional permit issued in accordance with r 9.4 (which refers to annex B, annex C, or in-service conditional permits), the permit is carried in the vehicle, and the vehicle is being operated in accordance with rr 10.3, 10.4, 10.5 (r 10.2(3)); or
(c) If the person is operating the vehicle on Matakana Island or on the
Chatham Islands (r 10.2(4)).
[24] It was not contended that the vehicle had a certificate of fitness and was being “operated solely for the purpose of bringing it into compliance”. Nor was it contended that the vehicle had an annex B permit, or an in-service permit. Similarly it is apparent that the exception in r 10.2(4) does not apply. The only question is whether or not the vehicle had a conditional permit and was being operated in
accordance with r 10.3, 10.4, or 10.5.
11 “Agency” refers to the New Zealand Transport Agency.
[25] Rules 10.3, 10.4, and 10.5 provide:
10.3 Operation on annex B or annex C conditional permits
10.3(1) A person may not operate a vehicle before it enters or re-enters service on an annex B conditional permit unless:
(a) the vehicle's operator has fitted a valid trade plate to the
vehicle; and
(b) the vehicle is being operated solely for one or more of the purposes in 10.4; and
(c) the distance travelled is not more than 50 km from a location specified by the Agency by notice in the Gazette, in relation
to an annex A form.
10.3(2) A person may not operate a vehicle before it enters or re-enters service on an annex C conditional permit unless:
(a) the vehicle's operator has fitted a valid trade plate to the vehicle; and
(b)the vehicle is being operated solely for one or more of the purposes in 10.4.
10.4Purposes for conditional operation of a vehicle before entering or re-entering service
The purposes referred to in 5.1(1), 5.3, 10.3 and 10.5 are: (a) demonstration of a vehicle;
(b) delivery of a vehicle;
(c) completion of construction of a vehicle; (d) repair or modification of a vehicle;
(e) road-testing of a vehicle in connection with inspection and
certification;
(f) evaluation or testing of a vehicle.
10.5 Conditional operation of vehicles in service
10.5(1) A person may operate a partially completed heavy vehicle on an annex C conditional permit solely for one or more of the purposes in
10.4.
10.5(2) A person may operate a vehicle in Schedule 2 on an in-service conditional permit only in accordance with any conditions specified under 7.8(1).
[26] Mr Prescott did not submit that his vehicle was covered by r 10.5. There was no evidence that the annex C conditional permit had been issued pursuant to r 10.5, and subject to the conditions specified in r 7.8. Further, it was common ground that provisions relating to annex B conditional permits were not relevant.
[27] Mr Prescott’s vehicle does not carry a trade plate. It is registered in New
Zealand and carries “normal” registration plates. Notwithstanding that r 10.3(2)(a)
provides that a vehicle operating under an annex C conditional permit must carry trade plates, Mr Prescott submitted that his vehicle was not required to. He submitted that his vehicle was compliant under a different procedure. This submission relied on condition (b) of the conditions set out in the annex C conditional permit. The annex C conditional permit records:
Description
This conditional permit applies to a vehicle to which section 6 of the Land Transport Rule: Vehicle Standards Compliance (2002) (“the rule”) applies, that has not been certified for entry or re-entry into service (“an uncertified vehicle”) and is to be operated on a trade plate under the conditions in
10.3(2) and for one or more of the purposes in 10.4 of the rule. It is only rarely that an Annex C conditional permit will be issued to a light vehicle
(GVM <3500 kg).
This conditional permit also applies to a vehicle that has been registered as a partially completed heavy vehicle that is to be operated under the conditions in 10.5(1) and for one or more of the purposes in 10.4 of the rule.
[28] The conditions of use are as follows:
Conditions
The above vehicle may be operated on the road subject to the following conditions:
a)The vehicle must have a vehicle identification number (VIN) issued/decoded by an inspector or inspecting organisation appointed under the rule;
b) The vehicle must be registered or have a valid trade plate fitted;
c)This conditional permit must be current and must be carried in the vehicle whenever it is operated;
d) The vehicle must be operated only by the company or the company’s
employees or other authorised personnel;
e)The vehicle must be operated only for one or more of the purposes of demonstration, delivery, construction, repair, modification or gaining certification;
f) The statement below must be completed by the inspector following inspection of the vehicle according to requirements and conditions imposed by the NZTA under 2.3 of the rule.
[29] I cannot see any basis for Mr Prescott’s submission. Rule 10.3(2) makes it clear that a vehicle can only operate on an annex C conditional permit if it has a
valid trade plate fitted. Mr Prescott’s vehicle did not have a valid trade plate fitted. The reference in condition (b) of the annex C conditional permit to a vehicle “being registered or having a valid trade plate fitted” cannot establish a separate regime under r 10.3(2), where trade plates are not required.
[30] Separately from the issue as to whether Mr Prescott’s vehicle was required to have a valid trade plate fitted, it was also required to be operated only in accordance with the conditions set out in r 10.4. The appellant had the burden of proving, on the balance of probabilities, that the vehicle was being operated “solely” for one of the specified purposes.12 The appellant did not meet that burden.
[31] Accordingly, I am not satisfied that the Justices of the Peace erred in finding that Mr Prescott was operating his vehicle on the road without having a current certificate of fitness, and not in accordance with the limited exception. To the contrary, I find that the Justices of the Peace were correct to find the infringement offence proved.
Result
[32] Mr Prescott’s appeal is dismissed.
Andrews J
12 Prescott v Police HC Auckland CRI-2005-404-82, 4 July 2005 at [13]; Prescott v Auckland
Transport [2012] NZHC 2637 at [28].
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