R v Police HC Christchurch Cri-2008-409-207

[2009] NZHC 369

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2008-409-000207

R

v

POLICE

Hearing:         25 February 2009

Appearances: B Dawson for Appellant

K Basire for Police

Judgment:      30 March 2009

JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      This  is  an  appeal  against  an  order  of  the  District  Court  finding  an infringement offence proved.

[2]      The appellant was charged with a breach of 2.7(3) Vehicle Equipment Rule

2004, that on 20 May 2008 he operated on a road a motor vehicle without ensuring its exhaust was not significantly louder than the vehicle’s original exhaust system

[3]      After a defended hearing before two Justices of the Peace, the offence was found proven and the appellant was ordered to pay the original infringement fee of

$150 with court costs of $130.

R V POLICE HC CHCH CRI-2008-409-000207  30 March 2009

[4]      As noted in Aldwell & Ors v Police [2006] DCR 618, Land Transport Rule: Vehicle Equipment 2004 is one of a series of rules made under the Land Transport Act 1998 for the purpose of setting safety requirements and standards for motor vehicle systems and components.  It came into force on 27 February 2005.

[5]      At the time of the alleged offence, Rule 2.7 (3) provided

Noise from an  exhaust  system must  not  be  noticeably  and  significantly louder than it would have been when the motor vehicle was manufactured with its original exhaust system.

[6]      The rule was changed as from June 2008 to provide what counsel for the appellant Mr Dawson described as a more objective standard.  The replacement rule rule 2.7(8)  reads

2.7(8)   The noise output from the exhaust system of a motor vehicle that is operated in service:

(a)       must, in the case of a Class LC, LD, LE, MA, MB, MC, MD1, MD2 or NA vehicle:

(i)        be less than, or similar to, the noise output from the vehicle's original exhaust system at the time of the vehicle's manufacture; or

(ii)      not exceed the maximum decibel level prescribed in Schedule  3,  when  tested  in  accordance  with  the  Low Volume Vehicle Code;

(b)       must  not,  in  the  case  of  any  other  motor  vehicle,  be noticeably and significantly louder than the noise output from the vehicle's original exhaust system at the time of the vehicle's manufacture.

The hearing before the Justices of the Peace

[7]      At the hearing ,which was held in October 2008, the only witness called by the prosecution was a police officer attached to the Strategic Traffic Unit.

[8]       The officer testified that on 20 May 2008 his attention was drawn to the noise of a vehicle coming behind him which had a significantly loud exhaust.  He pulled out as soon as it was possible to follow and stopped the vehicle, which he identified as a Mitsubishi Evo being driven by the appellant.   According to the

officer’s evidence, during the time he was waiting, three or four other cars passed as well as a delivery truck with no more than the sound of rubber on the road.   The officer also testified that the noise emitted from the appellant’s vehicle was significantly louder than any other Mitsubishi Evo he had ever stopped before.  The noise was so loud when the car was idling that he had to  shout for the appellant to hear him

[9]      In cross examination, the officer stated he could tell from its appearance that the  exhaust  had  been  modified  and  then  asked  whether  he could  say that  with certainty responded “A Mitsubishi Evo does not make that much noise.”

[10]     The appellant also gave evidence.  He testified that the vehicle was not noisy, and that he had never modified the exhaust although he also acknowledged there was a three year gap between manufacture and his acquiring the vehicle.

[11]     The appellant also stated that on 28 May 2008 (ie eight days after the alleged offence) he took the vehicle to be tested for noise levels. He told the Justices that the vehicle, which he had not altered in any way since being stopped by the police, was found to comply with the new low volume codes.  He sought to produce in evidence a copy of a certificate of compliance which he said he had obtained from the testing agency.

[12]     In finding that the infringement offence was proved, the Justices of the Peace made the following comments about the certificate of compliance:

The form that we have before us in the Court today whilst it may be a certificate of compliance appears not to be in the form that is an approved form by the Land Transport Association and has no indication of the decibel rating on it at all.

[13]     The Justices went on to say:

The question for us to decide and we have to decide it based on the law as it was at the time.  Was the vehicle stopped on that day noisy?  We accept that Constable Wallace is a very experienced officer in regards to noisy exhausts detection and that in his opinion the defendant’s vehicle was excessively louder both when passing and stopped and significantly louder than a similar vehicle with an original exhaust.  On that basis we find the charge proven.

Grounds of appeal

[14]     In appealing this decision, the appellant advanced the following grounds of appeal

i)The  Justices  were  wrong  to  exclude  the  evidence  of  the certificate. The certificate was a valid certificate (the original was in the possession of the police) and it did indicate that when the exhaust was tested at 4000rpm, its noise did not exceed 95 decibels.

ii)Had the certificate been admitted, it would have supported the credibility of the appellant’s evidence his car was not noisy on the day and raised a reasonable doubt

iii)Alternatively compliance with the objective standard was a defence the appellant should have been able to invoke, even although it came into law after the date of the alleged offence.

iv)      There was no jurisdiction to make a costs award.

Discussion

[15]      Following Aldwell, there is no question that the evidence of the police officer about  his  observations  and  assessment  of  noise  levels  was  admissible  and  in principle sufficient to justify a finding the charge had been proven.

Observations of the kind made by these officers did not call for any special knowledge or expertise. It did not require fine distinctions, sophisticated analysis  or  decibel  readings.  Essentially  a  comparison  had  to  be  made between the vehicle’s exhaust noise on the day in question and the exhaust noise that would have been emitted from the same vehicle fitted with its original exhaust system. It was for the Court to determine whether the noise arising on the day in question was “noticeably and significantly louder” than it would have been if the original exhaust system had been fitted. The words used in Rule 2.7(3) reflect that it is not a situation requiring fine distinctions. To the contrary, it is the type of observation that people are able to make and then report by way of evidence. (Aldwell at [28] per Chisholm J)

[16]     In Aldwell at [47], it was also held that evidence a warrant of fitness had been issued and was current could be placed before the Court along with all other relevant evidence, Chisholm J going on to state  “ But evidence that a warrant has been issued by a vehicle inspector and is current will not automatically trump the evidence of a police officer.”

[17]      It appears that in Aldwell, one of the warrants, like the certificate in this case, post dated the date of the alleged offence.  Yet, Chisholm J clearly considered it was admissible and relevant, despite it being hearsay and after the event.

[18]     On the particular facts of Aldwell, the evidence of the police officer was preferred and the appeal was accordingly dismissed

[19]     There are two important differences between Aldwell and this case. The first and most fundamental difference is that the Justices in Aldwell did turn their mind to the warrant and consider it as part of the evidence, whereas in this case the Justices held the certificate inadmissible and had no regard to it at all.

[20]     Secondly, in Aldwell, there was no evidence that at the time the warrant had been issued, the exhaust system was exactly the same as it had been at the time of the alleged offence. In the present case however, there was evidence to that effect from the appellant.

[21]     After hearing submissions from both parties, I indicated that I would allow the appeal on the grounds that the Justices had wrongly excluded from consideration an item of evidence, namely the certificate of compliance.

[22]     That raised the issue of whether the appropriate order was simply to quash the Justices’ findings, or direct a rehearing.    None of the other statutory options were applicable.

[23]     The respondent expressed a strong wish for there to be a rehearing  because of the fact of there being two such starkly conflicting stories and because noisy vehicles are a significant social problem  in Christchurch

[24]     The appellant opposed a re-hearing, and raised the issue of whether there was even power to order a re-hearing in the case of an infringement proceeding.

[25]     Counsel for the appellant Mr Dawson requested further time in which to research the jurisdictional issue.

[26]     I accordingly granted an adjournment.  It was agreed any further submissions as to jurisdiction and the appropriateness of a re-hearing could be made in writing without the need for further oral argument.

[27]     Having had an opportunity to research the legal position, Mr Dawson now accepts that because of the combined effect of s 21(8)(d)(i), s115 and s131 of the Summary Proceedings Act, I do have jurisdiction to direct a re-hearing. The concession is well made.  Section 115, which creates the right of appeal, only refers to appeals from determinations on any information or complaint.   Previously, Mr Dawson had argued that an infringement notice was neither an information nor a complaint. However, s21(8)(d)(i) expressly provides that an infringement notice is to be treated as if it were an information.  S115 therefore applies as does s131.

[28]     Section 131(1) states:

131     Power  of  High  Court  to  direct  rehearing  of  information  or complaint

(1)On any appeal the High Court may remit the determination appealed against to the District Court with a direction that the information or complaint to which it relates be reheard.

[29]     As the appellant also accepts, the discretion conferred by s131 is unfettered.

[30]     However, Mr Dawson submits that the over-riding consideration must be the interests of fairness and justice and that, in the circumstances of this case, a re- hearing would be unjust because

(a) it is unusual for the High Court to remit a matter for rehearing in the District Court

(b) the matter is a trivial one, not involving a serious criminal offence

(c) it would be unfair to subject the appellant to another hearing, and the inevitable costs, delay , stress and time that would be involved especially when it was not his fault the error occurred.

(d) re-hearings should be limited to remedying innocent oversights.

(e) a  re-hearing  would  place  an  undue  economic  burden  on  the Community  Law  Centre  which  to  date  has  represented  Mr Dawson.

(f) Given the passage of time, a fair  re-hearing may now  not  be possible.

(g) The grounds of appeal raised other legal issues which should be more appropriately dealt with in this court and which may result in the case returning to this court anyway.

[31]     I have carefully considered all of the submissions and the cases to which I have  been  referred  including  the  Court  of  Appeal  decision  of  R  v  Jefferies CA190/99, 22 July 1999.

[32]     I accept that the seriousness of the charge is a significant factor to be taken into account and that generally as stated at [51] in Scott v Otago Regional Council HC Dunedin CRI-2008-412-000020, 3 November 2008, “the less serious the charge, the less likely it is that a rehearing is desirable and should be ordered.”

[33]     On the other hand while significant, the seriousness of the charge is not a conclusive factor. Ultimately, each case turns on its facts, with the over-riding consideration being which of the statutory courses is feasible and best calculated to meet the interests of justice in the particular circumstances.

[34]     It  seems  clear  there  are  a  number  of  outstanding  factual  issues  to  be determined in respect of compliance certificates generally and the weight that can properly attach to any of them as well as issues of credibility in this particular case. Those are matters for the fact finder, not this court. While delay is certainly a matter to be taken into account, I do not agree that the delay in this case is such as would

render it impossible for there to be a fair re-hearing as is suggested.     There is undoubtedly inconvenience to the appellant but on the other there are also public interest considerations at force.

[35]     All in all, looking at all the circumstances and having carefully considered the factors which Mr Dawson asked me to take into account, I have decided on balance that the most appropriate course of action is to direct a re-hearing.

Outcome of appeal

[36]     The appeal is accordingly allowed.  The finding that the offence was proven is set aside as is the order to pay a fine of $150 and court costs. The infringement notice proceeding is remitted to the District Court for a re-hearing

Solicitors:

Community Law, Christchurch

Crown Solicitor, Christchurch