R v De Montalk CA157/03

[2004] NZCA 352

IN THE COURT OF APPEAL OF NEW ZEALAND

CA157/03

THE QUEEN

v

MYLES JAMES DE MONTALK

Hearing:         18 October 2004 Coram:  Anderson P

Hammond J William Young J

Appearances: A G Speed for Appellant

A M Powell for Crown Judgment:  18 October 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

[1]    Mr de Montalk applies for special leave to appeal to this Court against his conviction for failing to display a warrant of fitness, contrary to s 34(1)(b) of the Land Transport Act 1998.

[2]    At first blush, the application appeared doomed to failure, on the standard principles for the grant of special leave. And the application is not assisted by the inappropriate language to which Mr de Montalk resorted in his leave application, which was prepared by him in person.

[3]    Fortunately, on the hearing of the application, we  have  been  assisted  by  Mr Speed. We are of the view that he has raised a point of law of general public importance, for which leave ought to be, and is granted, in these terms:

R V DE MONTALK CA CA157/03 [18 October 2004]

•     Were the Justices correct in law to hold that s 34(1)(b) of the Land Transport Act 1998 creates an offence of strict liability?

[4]    The question is raised in these circumstances. The vehicle in question was parked on a road in Onehunga. It did not have a current warrant of fitness. The  police produced a certificate of ownership in Mr de Montalk’s name, which showed that Mr de Montalk had acquired the vehicle on a date prior to the parking incident. Mr de Montalk said he was not the owner, nor had he driven the vehicle, on the day in question.

[5]The Justices held:

Evidence has been produced  by  the  prosecution  that  you,  Myles  James de Montalk, were the owner of the vehicle at the time of the alleged offence As this offence is that of strict liability, the registered owner is deemed to be responsible for such infringement notices unless evidence to the contrary regarding ownership is given. No evidence has been presented to the Court that you were not the registered owner.

[6]    Mr de Montalk appealed to the High Court. His appeal was dismissed. He applied for leave to appeal. That application was dismissed by Venning J in the  High Court.

[7]    The point sought to be taken on the appeal is that “operation” of the vehicle is required to be proved for a conviction under the section in terms of which the information was laid. We note that there is conflicting authority on this question in the High Court. We note the decision of Blanchard J in McDonald v Taupo District Council   (HC,   ROT,   AP58/93,   30 June 1993);   that   of   Neazor J   in   Carter   v Palmerston North City Council (HC, PN, AP304/90, 2 May 1991); and that of Holland J in Kelly v Dunedin City Council (HC, DUN, AP109/91, 13 December 1991). There is no authority in this Court.

[8]    There is here plainly a question of law, and it is one which the Crown rightly agreed affects a large number of people, and is  of general  importance.  The test  in R v Slater [1997] 1 NZLR 211, is therefore satisfied.

[9]    Accordingly, special leave to appeal will be granted, but it is confined to the question we have already noted.

Solicitors:

Crown Law Office, Wellington