S v Police HC Christchurch CRI 2009-409-52

[2009] NZHC 909

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2009-409-000052

S

Appellant

v

POLICE

Respondent

Hearing:         29 July 2009

Appearances: Appellant in person

S Jamieson for Respondent

Judgment:      29 July 2009

JUDGMENT OF FOGARTY J

[1]      Mr S   appeals against a conviction that in breach of ss 40 and 133 of the  Land Transport Act 1998 and  Regs  3  and  4  of  the  Offences  and  Penalties Regulations 1999 and 5.1 of the Road User Rules he drove a motor vehicle on Retreat Road at a speed exceeding 50 kilometres per hour being an offence detected by approved vehicle surveillance equipment.

[2]      At the hearing on 1 April 2009 he did not appear.  The Justices of the Peace heard evidence from an employee of the New Zealand Police who operated the speed

camera and who produced an exhibit of the record of the camera.  That appears to be

S V POLICE  HC CHCH CRI 2009-409-000052  29 July 2009

the only evidence that the Court considered.   On the Court file at the time was a letter from Mr S  ’s employer which advised:

On  29  September  2009  James  was  working  for  our  company  at  a construction site; 4 Sealy Place, Burnside Christchurch.   He was on site between the hours of 8.42 am and 4.12 pm.

Attached is a copy of his timesheet for that day.

[3]      That letter was placed on the file because it was attached to a completed form in which Mr S   pleaded not guilty.  He says that he received advice from someone, and it is not clear whether it was a member of the District Court staff or of the Ministry of Transport or the police, to the effect that this information would clear the matter up and that he need not come to Court.  The context is that he was also telling this official that he had sold the motor vehicle concerned, which is a Yamaha motor bike, well before this event and accordingly although he may still have been registered as the owner, or appear on the records as the owner, it simply was not his bike and he was not riding it.   He had some other delay in getting the notice of hearing because of shifting address but I do not need to go into that.

[4]      Ms Jamieson for the respondent pointed out that under s 133 the registered owner as well as the driver of the vehicle can be liable for the speeding.  She drew my attention to a decision of Ronald Young J, Willis v New Zealand Police HC Palmerston North CRI 2005-454-64, 8 February 2006, where Mr Willis was convicted of driving a motor vehicle at  excess speed.     In that  case Mr Willis accepted the car was his but always said he was not driving at the time.  However, the Justices of the Peace concluded he was responsible and convicted him.

[5]      As it happens, the information in that case, like here, does not plead in the alternative that he was a registered owner or drove but simply that he drove.  The Judge said it was not clear whether in fact the prosecution was charging Mr Willis as being the actual driver or the registered owner.  This remark may have been made because Mr Willis gave evidence at the hearing.  In the end Ronald Young J did set aside the conviction mainly because it appeared that the Justices of the Peace did not deal at all with Mr Willis’ defence.

[6]      In this case I think it is quite clear that the summons was charging that Mr S   drove the motor bike on that occasion.   He did not appear at the hearing and there can be no question as to whether the charge might have been amended or treated as amended to include his position as owner.

[7]      Again, regretfully, there is no appearance from the very brief reasoning of the Justices of the Peace that they had regard to the letter from the employer on the file. Certainly, the fact that there was a typographical error as to the year is of no matter. The letter on the face of it looks absolutely genuine and is backed up by a timesheet.

[8]      As a result of these facts I cannot have any confidence that the charge was proved, let alone, proved beyond a reasonable doubt, and the conviction is set aside. The question then becomes as to whether or not it should be sent back to be tried again.  I am satisfied from the evidence on the file and from hearing Mr S   that he has a very strong defence.   He has struck me as being honest.   I think, therefore, sending the matter back for rehearing would be a waste of time and a further waste of Mr Willis’ time, he having attended here today.

[9]      For these reasons the appeal will be allowed.  The conviction will be quashed and the matter will not be sent back for a rehearing.  The disqualification is set aside. That is the end of the matter.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Respondent