R v Grace

[2020] NZHC 687

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-68

[2020] NZHC 687

BETWEEN

THE QUEEN

Appellant

AND

RUTENE ETHAN GRACE

Respondent

Hearing:	17 December 2019
Counsel:	M L Wong for Appellant D A Ewen for Respondent
Judgment:	3 April 2020
Reissued:	21 May 2020

JUDGMENT OF ELLIS J

[1]    Mr Grace, during a police chase, drunkenly drove down the wrong side of State Highway 1 (SH1) in Porirua. No-one was hurt. Mr Grace was subsequently charged with endangering transport under s 270 Crimes Act 1961 (the 1961 Act).1 The maximum penalty under s 270 is 14 years’ imprisonment. In the District Court, Judge Hastings amended the charge to one of reckless driving.2 The maximum penalty for reckless driving is three months’ imprisonment or a fine not exceeding $4,500.

[2]    The Judge gave comprehensive reasons for his view that the endangering transport offence elements were not met in Mr Grace’s case. But there is a divergence

1      Mr Grace was also charged with—and pleaded guilty to—a charge of aggravated failing to stop under s 52A(1)(a)(ii) and (3) of the Land Transport Act 1998 [LTA] and to a charge of driving without an appropriate driver licence under s 31(1)(a)(ii) of that Act.

2      R v Grace [2019] NZDC 19070; and ss 7(1) and 35(1)(a) LTA.

R v GRACE [2020] NZHC 687 [3 April 2020]

of views on this issue in the District Court. The Solicitor-General has therefore sought to appeal the decision on two questions of law:3

(a)Did Judge Hastings err in law by determining that driving the wrong way down a motorway could not constitute endangering transport under s 270 of the 1961 Act?

(b)As a result, was the Judge mistaken in allowing Mr Grace’s application to amend the charge from endangering transport to reckless driving?

[3]    There is no dispute that there is a wider public interest in this matter and no opposition to the Solicitor-General bringing the appeal. Leave to appeal is granted accordingly.

THE DECISION IN THE DISTRICT COURT

[4]It is convenient to set out s 270 at the start:

270     Endangering transport

(1)Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause danger to persons or property or with reckless disregard for the safety of persons or property,—

(a)interferes with any transport facility; or

(b)does anything to any transport facility that is likely to cause danger to persons or property.

(2)For the purposes of this section, transport facility means any vehicle, ship, or aircraft, and any property used in connection with the transportation of persons or goods; and includes equipment of any kind used in navigation or for the guidance of any vehicle, ship, or aircraft.

[5]Mr Grace was charged under subs (1)(a). The charge was that he:

With reckless disregard for the safety of persons or property, did interfere with a transport facility, namely SH1.

3      Section 296 of the Criminal Procedure Act 2011 provides that the prosecutor or a defendant may, with leave, appeal on a question of law against a ruling by the trial court. The question of law must arise “in proceedings that relate to or follow to the determination of the charge” or “in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under s 147, or a stay of prosecution).”

[6]    The Judge began by recording his analysis of the relevant elements of the offence created by s 270. Next, he referred to the relevant case-law. He noted that:

(a)In Worthy Redeemed v R, the Court of Appeal proceeded on the basis that grabbing  the  steering  wheel  of  a  moving  car  was  caught  by s 270(1)(b): doing something to a transport facility—a car—with reckless disregard for the safety of persons or property.4

(b)In R v Galvin Higgins J in the ACT Supreme Court held that the act of grabbing the steering wheel of a moving car was not caught by the words “interferes with any conveyance or transport facility” in s 27(3)(g) of the Crimes Act 1900 (ACT) because it related to the act of driving the car—the conveyance—rather than interfering with, altering, or attacking the car’s physical integrity.5

(c)In the context of an appeal against sentence, this Court in Waenga v R had proceeded on the basis that driving the wrong way down a motorway was an offence under s 270(1)(b).6 Although not expressly noted by Judge Hastings, Hinton J’s decision does not record what the relevant transport facility was—presumably it was the motorway. There was no discussion of the ambit of “interference”.

(d)In R v Karanga the District Court refused an application under s 147 in relation to a s 270(1)(a) charge for driving the wrong way down a motorway.7 The Judge accepted that a motorway was a “transport facility” and said:

I am satisfied the driving the wrong way on a motorway at speed is both interfering with a transport facility, or could be characterised as doing something to a transport facility which is likely to cause damage to persons or property.

4      Worthy Redeemed v R [2013] NZCA 61 at [30]. Mr Worthy Redeemed was not charged with an offence under s 270; the Court there was concerned with identifying the relevant “unlawful act” upon which a manslaughter charge was based.

5      R v Galvin (1998) 102 A Crim R 568 at [48].

6      Waenga v R [2018] NZHC 865.

7      R v Karanga DC Auckland CRI 2017-090-5340, 8 March 2018 at [23].

(e)In R v Thompson, another s 147 application was similarly declined before trial in relation to s 270(1) charge for driving the wrong way down a motorway. 8 But at the trial itself (before another District Court Judge), the charge was dismissed on the basis that the act of driving on a motorway could not be an interference with it. The Judge held that some form of physical impact on the road was required.

(f)In R v Ellis the District Court relied on Thompson, Karanga, and Waenga when declining an application under s 147 in relation to a charge under s 270(1)(b) for driving the wrong way down SH1.

[7]    After observing that these decisions expressed valid concerns about the enormous risks of grabbing a steering wheel or driving the wrong way on a motorway, the Judge noted that he was not bound by them and so would consider the issue afresh.

[8]    The Judge turned to consider the legislative history, which made it clear that the enactment of s 270 in 2003 was intended merely to consolidate and simplify what had formerly been ss 203 and 300 of the 1961 Act, which provided:9

203 Endangering transport

(1)Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to injure or to endanger the safety of any person,

(a)Removes anything from or places anything on, in, over, or under any place, or any area of water, that is used for or in connection with the carriage of persons or of goods by land, water, or air; or

(b)Does anything to any property that is used for or in connection with the carriage of persons or of goods by land, water, or air; or

(c)Shoots or throws anything at, into, or upon any vehicle, ship or aircraft; or

(d)Causes anything to come in contact with any vehicle, ship, or aircraft; or

(e)Does any other unlawful act, or wilfully omits to do any act which it is his duty to do, in respect of any such place, area of

8      R v Thompson [2018] NZDC 18874.

9      (Emphases added.)

water, or property as aforesaid, or in respect of any vehicle, ship, or aircraft.

(2)Every one is liable to imprisonment for a term not exceeding 5 years who, intentionally and in a manner likely to injure or endanger the safety of any person, does any of the acts referred to in subsection (1) of this section.

…

300     Interfering with means of transport

(1)Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to cause danger to property, ––

(a)Removes anything from or places anything on, in, over, or under any place, or any area of water, that is used for or in connection with the carriage of persons or of goods by land, water, or air; or

(b)Does anything to any property that is used for or in connection with the carriage of persons or of goods by land, water, or air; or

(c)Shoots or throws anything at, into, or upon any vehicle, ship or aircraft; or

(d)Causes anything to come in contact with any vehicle, ship, or aircraft; or

(e)Does any other unlawful act, or wilfully omits to do any act which it is his duty to do, in respect of any such place, area of water, or property as aforesaid, or in respect of any vehicle, ship, or aircraft.

(2)Every one is liable to imprisonment for a term not exceeding 5 years, who, intentionally and in a manner likely to cause danger to property, does any of the acts referred to in subsection (1) of this section.

[9]    The Judge said there was nothing to indicate that Parliament intended to broaden the scope of these earlier provisions. In particular, he did not consider that the words “interferes with” were intended to encompass any more than the specific actions (remove from, places on …) proscribed by those earlier provisions.

[10]   The Judge then referred to the dictionary definition of “interfere” and referred again to the Galvin decision, where Higgins J had said:

The question is whether the reference to “interferes with any conveyance” in s 27(3)(g) is intended to focus on the activity of driving the conveyance or its physical integrity and associated infrastructure. That is, whether the purpose

of s 27(3)(g) is the protection of the conveyance from external threat, rather than the protection of those conveyed from the culpable driving or operation of the conveyance …

Thus, allowing for the expressed intention behind s 27 (and s 28) of the Crimes Act, and the scope of the sections they replaced, it is apparent that the nature of the protection afforded by them to railways and those conveyed thereon was intended to be extended to other means of transport. The scope and nature of the proscribed acts was not, however, intended to be extended beyond the threat to the safe operation of the vehicle in question posed by some external threat, whether by means of tampering or the application of external force or obstruction. It does not encompass the malicious or negligent act of a person in charge of the “conveyance” who does not in some way alter or attack the vehicle, its progress or dedicated environment so as to endanger it.

[11]   Judge Hastings noted that, although the object of the prohibited activity in  Mr Grace’s case was not a “conveyance” but a transport facility, he had little difficulty in accepting that SH1 fell within the statutory definition of that term. Then, he said that in light of the legislative history of the provision—particularly, its focus on crimes against property—the words “interferes with” must be interpreted as requiring some sort of external threat, force, or obstruction that changes the relevant transport facility in some way.10

[12]   The Judge concluded that it would be wrong to “force a square peg in a round hole” by applying s 270 to facts it did not fit. Although he accepted that the consequences of driving the wrong way down a motorway were very serious, the absence of an appropriate offence provision (a provision with a sufficiently severe penalty) was a problem for Parliament to fix, not the judiciary. The Judge held that Mr Grace’s offending was not caught by s 270.11

THE CROWN APPEAL

[13]   Ms Wong submitted that Mr Grace’s conduct properly falls within s 270(1)(a) because:

(a)SH1, being property used in connection with the transportation of goods or persons, is a “transport facility” as defined in s 270(2); and

10     Grace, above n 2, at [32].

11     At [36] and [38].

(b)driving down SH1 the wrong way constitutes interference with that highway because it hinders, interrupts and obstructs the usual (and safe) functioning and use of that transport facility.

DISCUSSION

[14] Before turning to consider the two propositions at [13] above, it is, I think, useful to say something more about the legislative history, which (as Judge Hastings rightly held) informs and assists with the answer to both.

Legislative history

[15]   Historically, provisions such as s 270 derive from the common law offence of criminal damage and thus are, at their heart, crimes against property. In cases where life was endangered (or intended to be endangered) by the property damage, then the offence was still regarded as criminal damage, but of an aggravated kind.

[16]   It appears the criminalisation of causing damage to certain types of property— rather than leaving such damage to be dealt with through civil proceedings— developed rather randomly, in response to specific perceived threats over time.12 One example is the response to those who vandalised property as a protest against industrialisation—such as the Luddites. By 1721 this had led to the enactment in England of a statute specifically concerned with machine-breaking.13

[17] Railways, tramways and mechanised forms of transportation also have an obvious connection to industrialisation. And so it was that by the time of the enactment in 1861 of the Malicious Damage Act 186114 (the MDA) and Offences Against the Person Act 186115 (the OAP), which consolidated a number of earlier statutes, the direct forebears of ss 203 and 300 (set out at [8] above) had already been established.

12     Causing damage to more “ordinary” personal property was left to be dealt with by the civil law.

13     A number of statutory provisions creating offences of damaging specific types of property were consolidated by 7 & 8 Geo 4 c 30 (1827) (Malicious injuries to property).

14     Malicious Damage Act 1861 (UK) 24 & 25 Vict c 97. An Act to consolidate and amend the Statute of Law of England and Ireland relating to Malicious Injuries to Property.

15     Offences Against the Person Act 1861 (UK) 24 & 25 Vict c 100. An Act to consolidate and amend the Statute Law of England and Ireland relating to Offences against the Person.

[18]More particularly, ss 35 and 36 of the MDA provided:

Whosoever shall unlawfully and maliciously put, place, cast, or throw upon or across any railway, any wood, stone, or other matter or thing, or shall unlawfully and maliciously take up, remove, or displace any rail, sleeper, or other matter or thing belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points or other machinery belonging to any railway, or shall unlawfully and maliciously make or show, hide or remove, any signal or light upon or near to any railway, or shall unlawfully and maliciously do or cause to be done, any other matter or thing, with intent, in any of the cases aforesaid, to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage, or truck using such railway, shall be guilty of felony, …

Whosoever, by any unlawful act, or by any wilful omission or neglect, shall obstruct or cause to be obstructed any engine or carriage using any railway, or shall aid or assist therein, shall be guilty of a misdemeanor, …

[19]And ss 32 – 34 of the OAP provided:

Whosoever shall unlawfully and maliciously put or throw upon or across any railway any wood, stone, or other matter or thing, or shall unlawfully and maliciously take up remove, or displace any rail, sleeper, or other matter or thing belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points or other machinery belonging to any railway, or shall unlawfully and maliciously make or show, hide or remove, any signal or light upon or near to any railway, or shall unlawfully and maliciously do or cause to be done any other matter or thing, with intent, in any of the cases aforesaid, to endanger the safety of any person travelling or being upon such railway, shall be guilty of felony, …

Whosoever shall unlawfully and maliciously throw, or cause to fall or strike, at, against, into, or upon any engine, tender, carriage, or truck used upon any railway any wood, stone, or other matter or thing, with intent to injure or endanger the safety of any person being in or upon such engine, tender, carriage, or truck, or in or upon any other engine, tender, carriage, or truck of any train of which such first-mentioned engine, tender, carriage, or truck shall form part, shall be guilty of felony, …

Whosoever, by any unlawful act, or by any wilful omission or neglect, shall endanger or cause to be endangered the safety of any person conveyed or being in or upon a railway, or shall aid or assist therein, shall be guilty of a misdemeanor, …

[20]   It will be observed that endangerment of, rather than actual injury to, persons is the focus of these provisions. This can be contrasted with the discrete (and limited) “driving” offence contained in the OAP (s 35):

Whosoever, having the charge of any carriage or vehicle, shall, by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm to any person whatsoever, shall be guilty

of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour.

[21]   Even from this early stage, only the “malicious injury to property” offences involving railways and rail engines had aggravated counterparts included in the legislation as “offences against the person”.16 It can, I think, be reasonably assumed that it was the fact that railways were used for mass transportation—and so putting the public at risk in the event of damage to railway property—which was seen to warrant these measures.

[22]   Very similar provisions (but extended to tramways) first found legislative form in New Zealand in the Criminal Code Act 1893 (the 1893 Act) and then the Crimes Act 1908 (the 1908 Act).17 These eventually became ss 203 and 300 of the 1961 Act.

[23]For present purposes it suffices to note that s 199 of the 1908 Act provided:18

199       Intentionally endangering persons on railways, tramways, aircraft, etc.

Every one is liable to imprisonment with hard labour for life, and if under sixteen years to be once whipped, who, with intent to injure or endanger the safety of any person on any railway or tramway, -

(a)Places anything upon or across any railway or tramway; or

(b)Does any act likely to interfere with, injure, endanger, or obstruct any engine, carriage, or other vehicle on any railway or tramway;

(c)Shoots or throws anything at, into, or upon, or causes anything to come in contact with, any such engine, carriage, or other vehicle, or any person; or

(d)Does anything whatever to any part of any railway or tramway, or to any points, machinery, or signal belonging to or near to such railway or tramway, or to any engine, carriage, or other vehicle on any railway or tramway; or

(e)Deals in any way with any signal or light on or near to any railway or tramway, or makes or shows any false signal or light, or makes any sign whatever on or near to any railway or tramway; or

(f)Wilfully omits to do any act which it is his duty to do.

16     For example, the property offences involving damage to machinery, mines, dams, and bridges have no such equivalents.

17     Sections 179, 180, 312, and 313; and ss 199, 200, 333, and 334.

18     Section 199 was in materially identical terms to s 179 of the Criminal Code Act 1893.

[24]   The Acts of 1893 and 1908 also included a lesser offence with a lesser mens rea: ss 180 and 200, respectively. Thus, s 200 of the 1908 Act provided:19

200Wantonly endangering persons on railways, tramways, etc

Every one is liable to two years’ imprisonment with hard labour, and if under sixteen years to be once whipped, who unlawfully and wilfully, in a manner likely to injure or endanger the safety of any person on any railway or tramway,—

(a)By any act, omission, or neglect endangers or obstructs any engine, carriage, or other vehicle on any railway or tramway; or

(b)Does any act likely to interfere with or to cause injury to any engine, carriage, or other vehicle on any railway or tramway; or

(c)Shoots or throws anything at, into, or upon, or causes anything to come in contact with, any engine, carriage, or other vehicle, or any person; or

(d)Does anything whatever to any part of any railway or tramway, or to any points, machinery, or signal belonging to or near to any railway or tramway, or to any engine, carriage, or other vehicle thereon; or

(e)Deals in any way with any signal or light on or near to any railway or tramway, or makes or shows any false signal or light, or makes any sign whatever on or near to any railway or tramway; or

(f)By any culpable neglect of duty endangers the safety of any person conveyed or being upon any railway or tramway.

[25]   The text of these provisions makes it clear that the “property” that is endangered need not be the same as the “property” that is interfered with. It is not hard to think of examples: the placement of an obstruction on a railway line thereby putting at risk not the line itself, but any train which then happens to travel along it.

[26]   Although these early provisions were focused on railways and tramways, in 1941 and 1950 the relevant transport-related property was expanded to include both aerodromes and aircraft. There was a further ( limited) extension to “vehicles” in 1952 with the enactment of s 200A, which provided:

200A Endangering persons in vehicles

19   Apart from the differences in mens rea, the main distinction between s 199 and s 200 is that para (a) of the lesser s 200 offence does not refer to placing “anything upon or across any railway or tramway” but, rather, to endangering or obstructing any engine, carriage, or other vehicle, or any railway or tramway.

(1)        Everyone is liable to seven years’ imprisonment who, with intent to injure or endanger the safety of any person in any vehicle, shoots or throws anything at, into, or upon, or causes anything to come in contact with, any vehicle, or shoots or throws anything at any person in any vehicle.

(2)        Everyone is liable to two years’ imprisonment who unlawfully and wilfully, in a manner likely to injure or endanger the safety of any person in any vehicle, shoots or throws anything at, into, or upon, or causes anything to come in contact with, any vehicle, or shoots or throws anything at any person in any vehicle.

[27]   Then the 1961 Act replaced these three provisions (ss 199, 200, and 200A) with s 203, the explanatory note to which said:20

Clause 203 replaces sections 199, 200, and 200A of the 1908 Act, which contain detailed provisions relating to acts likely to injure or endanger the safety of persons on railways, tramways, or aircraft. Paragraphs (a), (b), and

(e) of subclause (1) are now drafted in more general terms relating to acts done in respect of any property used for the carriage of persons or goods by land, water, or air, and will thus apply to all forms of public transport.

[28]For ease of reference, I set out the text of s 203 again. It provided:

203 Endangering transport

(1)        Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to injure or to endanger the safety of any person,

(a)Removes anything from or places anything on, in, over, or under any place, or any area of water, that is used for or in connection with the carriage of persons or of goods by land, water, or air; or

(b)Does anything to any property that is used for or in connection with the carriage of persons or of goods by land, water, or air; or

(c)Shoots or throws anything at, into, or upon any vehicle, ship or aircraft; or

(d)Causes anything to come in contact with any vehicle, ship, or aircraft; or

(e)Does any other unlawful act, or wilfully omits to do any act which it is his duty to do, in respect of any such place, area of

20 The non-aggravated form of the offence previously found in ss 333 and 334 of the 1908 Act was replaced with s 300: “Interfering with means of transport”. This was contained in Part 10 (“Crimes Against Rights of Property”) in the subpart headed “Criminal Damage”. Sections 203 and 300 were identical except for the different objects of the mens rea component (intent to injure or to endanger the safety of any person, as opposed to an intent to cause danger to property) and their respective penalties (maximum of 14 years’ imprisonment for the aggravated offence, as against seven years’ imprisonment for the property-only offence).

water, or property as aforesaid, or in respect of any vehicle, ship, or aircraft.

(2)        Every one is liable to imprisonment for a term not exceeding 5 years who, intentionally and in a manner likely to injure or endanger the safety of any person, does any of the acts referred to in subsection (1) of this section.

…

[29]   For present purposes it is most relevant to note that the more general act described in s 203(1)(b)—“doing anything to” any property used in connection with transportation—appears to have replaced the more specific acts previously referred to in ss 199(b) and 200(b) of the 1908 Act: doing “any act likely to interfere with, injure, endanger, or obstruct any engine, carriage, or other vehicle on any railway or tramway”.

[30] As noted by the Judge at first instance, s 270 came into force on 1 October 2003 as part of the Crimes Amendment Act 2003. That Act repealed Part 10 of the Crimes Act 1961, replacing it with a new Part 10, in order to simplify and consolidate the definitions of various crimes against rights of property. Section 270 combined the aggravated (endangering persons) form of the offence (s 203) with the non-aggravated (endangering property) forms (ss 300–302). The new s 270 is contained in Part 10 of the 1961 Act, which is entitled “Crimes against rights of property” (in a subpart entitled “criminal damage”).

[31] As Judge Hastings footnoted, the Explanatory Note to the Crimes Amendment Act 2003 (at ii) stated:

This part of the Bill takes as its starting point the Crimes Bill 1989, which proposed a completely revised Crimes Act. The Crimes Bill would have resulted in a major restructuring of Part X of the Act, including the replacement of more than 90 offences with 45, mainly by consolidating a large number of discrete offences. The drafting was also greatly simplified for most offences.

[32]   It is against this legislative background that the Crown’s two questions of law fall to be considered. I address each in turn.

Is SH1 a transport facility?

[33]   Although Mr Ewen did not contend that the Judge was wrong to hold that SH1 constituted a transport facility it is necessary to address this issue briefly, in light of one of the recent cases to which Ms Wong referred me.

[34]   In R v Savigny the District Court Judge dismissed a charge under s 270 on the basis that it was not available on the (rather unclear) facts. Although it seems that the charge related to Mr Savigny’s manner of driving on SH1 (and other roads) no further detail appears to have been before the Judge.

[35]   While the Judge accepted that, in the context of s 270, “interfering” included the direct or indirect interruption of the normal functioning of the relevant transport facility, she rejected the proposition that a road was such a facility. She said:

[13]      In the absence of a definition for “property” in that phrase, again, I am required to apply the usual or commonplace meaning. Property in the commonplace understanding is something which is capable of being owned by a person or persons. Mr Lange submits then that s 270(2) is confined to vehicles, ships and aircraft, and any other (similar type of) property which is in effect a vehicle for transporting persons or goods. That is logical as all the words used (vehicle, ship, aircraft and property) then have the same specified use (transporting persons or goods).

[14]      Mr Lange also argues that, if a road is “property” for s 270(2), because, like vehicles, ships and aircraft, it can be owned (by a territorial authority etc), and things transporting persons or goods can use it, that automatically means (if the Crown is correct) that s 270 cannot apply to an act of endangerment conducted on water or in the air (notwithstanding the inclusion of ships and aircraft in the definition of transport facility). On that interpretation, doing an endangering act directly to the body of the aircraft itself (for example putting a bomb inside it) would be an offence, but putting something in the air in its flight path would not, because the atmosphere is not owned, and therefore cannot be a transport facility. Plainly that is an odd outcome, if the Crown is correct. But if Mr Lange’s submissions are correct as to the natural and intended interpretation of the words used in s 270, then it is a misuse of s 270 to prosecute, as endangering transport, dangerous or reckless driving simply to meet what is seen as an increasing problem of reckless or dangerous driving.

[15]      I am forced to conclude that, in the absence of any clear binding authority to the contrary, the words ‘property used in connection with the transportation of persons or goods” must mean something similar to vehicles, ships and aircraft, and not the road itself. That is because all other members of the list are vehicles of one kind or another, and all share the same identifying purpose, the transportation of persons or goods. The extension “and any property used in connection with the transportation of persons or goods” is

merely an extension of those specified means of transportation. That is the direct and inevitable result of a purposive approach to interpretation of the section. The fact a prosecutor wants to use the section for a purpose other than that expressed by Parliament cannot then justify a different “purposive” interpretation.

[16]      That interpretation seems to be fortified by the history and position in the Act of s 270. The explanatory note to the Bill states that what became s 270 in 2003 was a “simplified version of sections 203 and 300 to 303 of the principal Act …” The earlier provisions did differentiate between places used for carriage of persons and goods, a differentiation which has not been specifically continued into s 270. More importantly, s 270 is included in Part 10 of the Crimes Act, which is headed by, and relates to, “Crimes against rights of property”. I accept Mr Lange’s argument those sections all relate to protection of “property” using the term in the commonly understood way, and cannot be stretched to meet the interpretation sought by the Crown.

[36]   I agree with Ms Wong that the Judge in Savigny was in error here. In my view, both the term “transport facility”21 itself and the legislative history make it quite clear that the “property” which is the object of s 270 includes a structure (historically, a railway or tramway) used for the conveyance or carriage of persons or goods. Whatever may be the position with air and water—and I suspect it may not be straightforward—a road such as SH1 is property that is both capable of ownership and that is, in fact, owned. And it is precisely the kind of property that the predecessors to s 270 were clearly aimed at protecting.

[37]   So the short point is that I agree with Judge Hastings that SH1 is one possible qualifying transport facility here, for the purposes of s 270.

Does driving the wrong way down SH1 constitute “interference” with it?

[38]   Before turning directly to consider this issue, it is useful to mention the other cases to which Ms Wong referred me.

Other cases

[39]   As noted earlier, some were decided under the pre-2003 provisions and others were decided under s 270. They are not of great assistance but do, in my view, suggest a need for greater legislative clarity in this area. As well, they indicate that there are

21 Putting the statutory definition to one side, the ordinary meaning of “transport facility” would be something like a place or piece of equipment created and used for the purpose of (or to “facilitate”) transport.

no examples of a charge being laid under either the predecessors to s 270 (most recently ss 203 of the 1961 Act as originally enacted) for conduct of the kind at issue in Mr Grace’s case.

[40]The cases under the earlier provision are:

(a)R v Bryce where a charge was laid under s 203(1)(c) (shooting or throwing anything at, into, or upon any vehicle) after Mr Bryce had thrown Molotov cocktails onto the motorway from a bridge, causing the cars below to drive through fire and disrupting other traffic.22

(b)Police v Palmer and Woods  v Police, where charges were laid under  s 203(2) after a crane had been parked on a public road at a “moderately sweeping corner” and allowed to remain there for a number of days.23 The relevant actus reus was that contained in s 203(1)(e), namely that the defendants had “wilfully omitted to do an act which it was [their] duty to do in respect of a place used for the carriage of persons by land, namely allowing a crane to remain on such a place being Makino Road, Feilding.”24    The relevant duty relied on was the duty referred to in    s 157 of the Act, “which creates a duty in certain circumstances to avoid an omission that is dangerous to life”.25

[41]   And the further cases relating to s 270 to which Ms Wong drew my attention were:

(a)R v Coxhead, which involved an appeal against sentence where the lead charge had been laid under s 270.26 Two brothers had been involved in a high-speed chase with police which involved dangerous manoeuvres at high speeds and ramming police cars. It is unclear, however, from

22 R v Bryce (1992) 8 CRNZ 325 (CA).

23 Police v Palmer HC Palmerston North CIV-2004-454-01, 3 August 2004 and Woods v Police HC Palmerston North CRI-2006-454-11, 7 August 2006. Both men were eventually acquitted on the grounds that they lacked the necessary mens rea.

24 At [2].

25 At [6]. Section 157 provides “Every one who undertakes to do any act the omission to do which is or may be dangerous to life is under a legal duty to do that act”.

26 R v Coxhead [2018] NZHC 2871.

the  Judge’s  decision  whether   the   brothers   were  charged   under s 270(1)(a) or (b), or what the “transport facility” was said to be.

(b)R v Broughton, where the defendant had engaged in a prolonged course of dangerous driving, which included crossing the centre line and driving  on  the  wrong  side  of  the  road.27   He  was  charged  under s 270(1)(b) with “doing something” to a transport facility, (particularised as the car he was driving) which was likely to cause danger to persons or property. Judge Sygrove said there was “overwhelming evidence” to support the charge and declined the defence application for amendment of the charge to reckless driving.

The “interference” question

[42]   The meaning of s 270 and, more particularly, of the words “interferes with” must be ascertained from their text and in light of their purpose.

[43]   As to purpose, it seems to me quite clear that the focus of s 270 and its predecessors is, and always has been, to criminalise the endangerment of persons or property caused by physical interference with, or acts likely to cause physical interference with, specific kinds of (public transport related) property. The thinking must be that causing damage to certain kinds of property—property integral to public or mass transportation—poses a particular risk because of:

(a)the potential to cause serious harm to large numbers of people; and

(b)the potential to disrupt the operation of mass transport systems in a serious way.

[44]   The ancillary purposive point is that in amending the relevant provisions in 1961, and then in 2003, Parliament’s object was to consolidate and clarify the law— not to change or expand it.

27     R v Broughton [2018] NZDC 21490.

[45]Turning to Mr Grace’s case, the following more specific points arise.

[46]   First, I am unable to accept the Crown submission that interfering with traffic flow (which Mr Grace undoubtedly did) is, without more, interference with a transport facility, because traffic flow is not “property” and is not a “transport facility”.

[47] Next, and given the point made at [44] above, I agree with Judge Hastings that it is useful to consider whether Mr Grace’s conduct would have constituted an offence under the predecessors to s 270. If it would, then that might be seen as a strong indicator that the same conduct should be caught by s 270.

[48]Thus:

(a)If s 200 of the 1908 Act had applied to motorways,28 Mr Grace’s conduct would constitute:

(i)endangering any  other  vehicle  on  such  a  motorway  under  s 200(a); or

(ii)doing an act likely to interfere with or cause injury to any other

vehicle on a motorway under s 200(b).

(b)And on the assumption that s 203 of the 1961 Act was not intended to narrow the scope of the earlier provisions, including s 200, Mr Grace’s conduct would also constitute “doing” something to (endangering or doing an act likely to interfere with) “property used for or in connection with the carriage of persons”—that is, vehicles—under subs (1)(b).

(c)So, operating on the same assumption in relation to s 270, his conduct would also constitute “doing” something to (endangering or doing an act likely to interfere with) a transport facility, namely other vehicles, under s 270(1)(b).

28     As it surely would, by logical extension, once motorways came into existence.

[49]   Of course, the difficulty is that Mr Grace was not charged with doing something to the other vehicles on SH1—he was charged with interfering with SH1 itself. And on my analysis, driving down a motorway against the flow of traffic would not have constituted an offence under s 199 of the 1908 Act or s 203 of the 1961 Act, for the reasons that follow.

[50] First, I do not think it could be said that driving a vehicle on a railway or a tramway (or a motorway) is “placing” something upon it.29 The very point of a railway or a tramway (or a motorway) is to have vehicles driving on them. It is implicit in the purpose of s 199(a) and s 203(1)(a) that in order to have been a qualifying “placement”, the object concerned must, in some sense, be foreign to the location of its placement. There is at least tangential support for that view in the fact that Messrs Palmer and Woods were not charged with “placing” their crane on the road (as discussed at [40](b) above).

[51]   Secondly, s 200(a) and (b) of the 1908 Act were focused on endangering, obstructing, or interfering with engines, carriages, and vehicles—they did not apply to tramways or railways (or roadways).

[52]   Thirdly, as I think Ms Wong accepted, it could not be said that Mr Grace would have breached ss 200(d) or 203(1)(b) by doing something to SH1—namely driving on it.  By contrast  with  the  physical  endangerment  of  other  vehicles  referred  to  in s 200(b), the physical integrity of the highway is not affected or potentially affected by driving badly on it. In any event, that is clearly not the allegation here because otherwise the charge would have been laid under s 270(1)(b), which is in materially identical terms to ss 203(1)(b).30

[53]   Nor can it be suggested that Mr Grace’s conduct would have met any of the other actus reus options contained in earlier legislation. In particular, Mr Grace did not:

(a)remove anything from SH1;31

29     Section 199(a) of the 1908 Act; and s 203(1)(a) of the 1961 Act.

30     See also s 199(d) of the 1908 Act.

31     Section 203(1)(a).

(b)shoot or throw anything at, into, or upon any vehicle;32

(c)cause anything to come in contact with any vehicle;33 or

(d)do any other unlawful act, or wilfully omit to do any act which it was his duty to do, in respect of SH1 or in respect of any vehicle.34

[54]   While I acknowledge that it would be possible to “interfere” with a motorway by obstructing it—by blocking it with a foreign object, for example—I cannot accept that driving a car on the motorway constitutes such an obstruction or, indeed, that a moving car is (in this context) a foreign object. To submit (as the Crown did) that driving the wrong way down SH1 constitutes interference with it because it hinders, interrupts, and obstructs the usual and safe functioning and use of that road is the same as saying that it hinders, interrupts and obstructs the other cars using the road.

[55]   In my view that is what Mr Grace did. He neither did something to, nor interfered with, the physical highway itself.

[56]   It follows that I agree with Judge Hastings that Mr Grace cannot be said to have interfered with the physical property that is SH1 by driving on it, albeit in the wrong direction.

[57]   Importantly, however, that does not mean that Mr Grace’s conduct does not fall within s 270 at all. In my view the error here was not the Judge’s. It lay in not specifying that the relevant property with which Mr Grace’s driving interfered—did something to or put at risk—was the other vehicles on the road as well, of course, as their occupants. Although it does not ultimately matter, had the relevant “property” been identified, the charge could probably have been laid under either s 270(1)(a) or (in light of the legislative history) (b).

32     Section 203(1)(c).

33     Section 203(1)(d).

34     Section 203(a)(e). This was the relevant actus reus in the Palmer case, as discussed at [40](b) above. There is no suggestion that the circumstances of Mr Grace’s case engage such a duty.

Conclusion and disposition

[58] Ultimately, the questions of law posed by the Crown and recorded by me at [2] above are framed too broadly and so are not capable of a straightforward yes or no answer. Rather, I reach more nuanced conclusions, as follows:

(a)Judge Hastings was right in his conclusion that driving the wrong way down SH1 could not constitute an offence of interfering with SH1 (which is a transport facility) under s 270(1)(a) of the 1961 Act and, accordingly, that the charge laid against Mr Grace could not stand and the Judge was right to amend it;

(b)driving the wrong way down SH1 is, however, capable of constituting:

(i)interfering with (endangering or obstructing) other vehicles contrary to s 270(1)(a); and

(ii)doing something to—endangering or doing an act likely to interfere with—other vehicles under s 270(1)(b).

[59]   These conclusions seem consistent with the legislative history and the purpose of the provision. They underscore the need to focus clearly on the property which is put at risk by the dangerous activity.

[60]   In terms of final disposition, the signal point is that there was no error in the District Court Judge’s decision and so the obvious and in my view appropriate course is to confirm it, which I do.

Rebecca Ellis J

Solicitors:

Crown Law Office, Wellington for Appellant C Smith, Porirua for Respondent