R v De Montalk CA157/03

Myles James de Montalk has applied for special leave to appeal against his conviction for failing to display a warrant of fitness, as required by section 34(1)(b) of the Land Transport Act 1998. The application was initially unlikely to succeed due to the nature of the language used by de Montalk in his application, which was prepared by him personally. However, the court granted leave to appeal based on the argument raised by counsel that the Justices were incorrect in holding that the provision creates an offence of strict liability. The vehicle in question was parked on a road in Onehunga without a current warrant of fitness. The police produced a certificate of ownership in de Montalk's name, indicating that he had acquired the vehicle before the parking incident. De Montalk claimed that he was not the owner of the vehicle on the day in question.

The legal issue that the Court of Appeal needed to decide was whether the operation of the vehicle needed to be proved for a conviction under the section. The court noted that there is conflicting authority on this question in the High Court. The Court of Appeal held that there is plainly a question of law, and it affects a large number of people, and is of general importance. Therefore, the test in R v Slater [1997] 1 NZLR 211 was satisfied.

The Court of Appeal granted special leave to appeal but confined it to the question of whether the operation of the vehicle needed to be proved for a conviction under the section. The court acknowledged that there is conflicting authority on this question in the High Court, and it is a matter of general importance. The Court of Appeal held that the appeal was not likely to succeed on the standard principles for the grant of special leave, but the point raised by counsel was of general public importance, and leave ought to be granted.