Road Runner Trucking Ltd v Police HC Hamilton CRI-2010-419-97
[2011] NZHC 640
•14 June 2011
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2010-419-97
ROAD RUNNER TRUCKING LTD
Appellant
v
NEW ZEALAND POLICE
Respondent
CRI-2010-419-98
ERIC MITCHELL GERRITSEN
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 14 June 2011
(Heard at Hamilton)
Counsel: No appearance for Appellants
J O'Sullivan for Respondent
Judgment: 14 June 2011 at 4:00 PM
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 14 June 2011 at 4:00 pm
Pursuant to Rule 11.5 High Court Rules
ROAD RUNNER TRUCKING LTD V NEW ZEALAND POLICE HC HAM CRI-2010-419-97 14 June 2011
Registrar/Deputy Registrar
[1] Drivers of heavy road transport vehicles habitually work long hours, day and night. It is an important element of road safety enforcement that these drivers and their employers are required to maintain and retain log books and other relevant records, and to produce them for inspection upon demand.
[2] On 30 November 2010, following a defended hearing, Road Runner Trucking Ltd was convicted of one charge of being an employer who failed to make relevant records available as required by s 30ZD(1) Land Transport Act 1998. The company was fined $4,000 and ordered to pay $130 in Court costs.
[3] On the same day, Mr Gerritsen, a manager of the company, was also convicted on a similar charge, of being an employer who failed to make relevant records available as required. He was also convicted of being a driver who failed to make a log book and all relevant records available. On the charge as an employer, Mr Gerritsen was fined $2,000, and on the other charge $750; (he was also ordered to pay $130 Court costs on each charge).
[4] Mr Gerritsen and the company have appealed against their convictions and sentence. The ground set out on the notices of appeal is that the defended hearing was not held in the proper manner.
[5] The Court files show that, on 1 March 2011, a Deputy Registrar of the Court sent to the appellants copies of the notice of filing an appeal, indicating that the appeal would be heard in the High Court on a date to be fixed by the Registrar.
[6] It appears that the envelopes were subsequently returned to the Court, possibly unopened. On each envelope, across the original name and address of the intended recipient, a piece of paper has been sellotaped, bearing the following:
N C R T S
NO CONTRACT Returned by a Sovereign of the Sovereign State of Aotearoa/Nu Tireni. All Rights Reserved
RETURN TO SENDER
[7] The Court files also contain copies of a notice of hearing for the two appeals, containing the correct particulars and indicating that 14 June 2011 at 11:45 am had been appointed as the time and the High Court at Hamilton as the place for the hearing of the appeals. There is nothing on the file to indicate that the hearing notices were returned to the Court.
[8] There was no appearance by either appellant at the appointed time. Neither appellant has filed any points on appeal or submissions as required by the High Court Practice Note dated 19 December 2003 concerning criminal appeals to this Court. The Practice Note provides that the failure to file and serve submissions on appeal as required by the Practice Note “may constitute grounds upon which the appeal may be dismissed for want of prosecution.”
[9] Since the appellants were not represented by counsel at the hearing in the
District Court, I would be reluctant to dismiss the appeal on that basis alone.
[10] However, it is a reasonable inference that the appellants do not wish to engage with the Court in this matter, at least since the date of filing the notices of appeal.
[11] The attitude of the appellants which may be inferred from the return of the notices, and their non-appearance today, is consistent with the attitude displayed in the District Court. The Judge’s notes indicate that the appellants did not accept the charges or enter pleas and did not want to plead. Mr Gerritsen attended the hearing and the company was apparently represented by a Ms Simpson, but they did not cross-examine the prosecution witnesses nor give evidence.
[12] Section 133(1) Summary Proceedings Act 1957 provides that if an appellant does not appear at the hearing of an appeal the Court may, if it thinks fit, dismiss the appeal for non-prosecution. Ms O’Sullivan who appeared for the Crown, after having filed helpful background submissions, invited me to do so and I propose to follow that course.
[13] Given the circumstances, however, I have considered the notes of the evidence given at the District Court hearing. I am satisfied that the hearing was properly conducted and the convictions properly entered.
[14] Bearing in mind the substantial maximum penalties provided for breaches of the relevant provisions of the Land Transport Act 1998, I am also satisfied that the penalties imposed by the District Court Judge were well within the range properly available to him.
[15] I noted that Mr Gerritsen had been charged in respect of Information No. CRN 10019003452 with “being a person who employed a person to drive a vehicle”. It seemed to me on the evidence that the actual employer of the drivers whose records were not adequately kept was, in fact, Road Runner Trucking Limited, which had also been prosecuted. I assume, however, that Mr Gerritsen, being a manager of the company and a person who appears to have been actively involved in its operations, was charged as a party to the company’s offending. On the evidence, it was open to the Judge to convict him on that basis.
[16] The appellants not having appeared at the hearing of the appeals, and being satisfied that the convictions were properly entered, in any event, I dismiss the appeals for non-prosecution under s 133(1) Summary Proceedings Act 1957.
..........................................
Toogood J
Parties:
Road Runner Trucking Ltd, EM Gerritsen, 16-20 Dalgety Drive, Manukau ([email protected] )
J O’Sullivan, Almao Douch, Hamilton ([email protected] )
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