Samuel v Auckland City Council HC Auckland CRI-2010-404-000469

[2011] NZHC 535

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000469

REGINALD SAMUEL

Appellant

v

AUCKLAND CITY COUNCIL

Respondent

Hearing:         18 April 2011

Appearances: Appellant Self-Represented

H Hargraves for the Respondent

Judgment:      2 June 2011

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 2 June 2011 at 12.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:   Auckland Council Legal Services Private Bag 92300 Auckland 1142 for the

Respondent

Copy To:     R  Samuel  369  Sandringham  Road  Mt  Albert  Auckland  (Self-Represented

Appellant)

SAMUEL v AUCKLAND CITY COUNCIL HC AK CRI-2010-404-000469 2 June 2011

[1]      Following a defended hearing in the Auckland District Court, Mr Samuel was convicted of the offence of exceeding the maximum parking time.   He was then ordered to pay a fine and Court costs.   Mr Samuel believed that his case was not properly dealt with, and so he applied for a rehearing.  The application was declined. Hence, the appeal to this Court. The appeal is opposed.

[2]      A parking infringement notice was issued against Mr Samuel; and was served on 7 January 2010 by attaching it to his vehicle. The notice alleged that on 7 January

2010, Mr Samuel had parked his vehicle in excess of the maximum authorised time

(but not exceeding 30 minutes); which breached s 41A(2) of the Land Transport Act

1962, cl 6.4(1) of the Land Transport (Road User) Rules 2004, and reg 4(1) and schedule 1b of the Land Transport (Offences and Penalties) Regulations 1999.

[3]      In the District Court, Mr Samuel’s defence was focused on challenging the prosecution evidence of the whereabouts of his vehicle at the time of the infringement.  The vehicle was parked in St James Street, a no exit street off Hopetoun Street in central Auckland.   A map of St James Street, which the prosecution produced in the District Court, shows that vehicles park on an angle and have the choice of a number of delineated pay and display parks, as well as two

15 minute parks, which are free.  Apart from the delineations, there is nothing that individually identifies any of the parks.

[4]      The parking officer gave evidence that Mr Samuel’s vehicle was parked in

one of the two 15 minute park zones for a period that exceeded the permitted time.

[5]      Mr Samuel gave evidence that his vehicle was parked in one of the pay and display parks.   He produced a pay and display ticket for the day of the alleged infringement, which was obtained from one of the pay and display parking meters on St James Street.   That the ticket was obtained from one of those meters was not disputed in the District Court, and it was confirmed by counsel for the respondent in this Court.  The ticket shows that it was obtained at 2.00 pm on 7 January 2010 and ran until 3.00 pm.  The infringement notice was issued at 14:18:33 pm on that day, thus it was issued during the currency of the park and display ticket, and at a time when Mr Samuel’s vehicle had been parked at the site for more than 15 minutes.

[6]      Mr Samuel’s defence was that he had parked his vehicle in one of the pay and

display  bays  and  that  the  parking  officer  must  have  confused  this  bay  with  a

15 minute parking zone, which had led him to wrongly issue a parking infringement notice.

[7]      Mr Samuel was adamant that he had not parked in the 15 minute park zone. He was of the view that he would not have paid $4.00 for a pay and display ticket if he had parked in the 15 minute zone, as it allows for free parking up to that period of time.  He said that he regularly parks in St James Street and so he is aware of the two types of parking zones that are available.

[8]      The parking officer gave evidence that the vehicle was parked in one of the two 15 minute parks. As they are not numbered, he did not identify which of the two parks was occupied by Mr Samuel’s vehicle.   He was unshaken in this evidence when cross-examined by Mr Samuel.

[9]      The District Court preferred the evidence of the parking officer.  Regarding the existence of the pay and display receipt for the relevant day, time and place, the District Court found (at [5]) that because these receipts are not personalised, it could have come from anyone on the day at that time.

[10]     On the day of the alleged infringement, Mr Samuel encountered the parking officer and there was some discussion between them about the issue of the infringement  notice.   At  no  time did  Mr  Samuel  bring to  the parking officer’s attention the existence of the pay and display receipt.  The District Court considered that had the pay and display ticket been in Mr Samuel’s possession when he encountered the parking officer, he would have brought it to the attention of the parking officer. The District Court said, at [6]:

[H]ad that ticket been in your possesion at the time of the dispute, when you met the parking officer, we find it very difficult to believe that you would not have shown that ticket to the officer at the time.  In our view, that would be behaviour which we would expect any person in those circumstances to do. You did not do that. That is not in dispute.

[11]     This line of reasoning of the District Court was reflected in questions that were put to Mr Samuel in the course of the prosecution’s cross-examination.  There

was evidence that Mr Samuel had raised an issue with the parking officer regarding chalk marking on the vehicle’s tyre.  Mr Samuel explained that he did not want to “interrupt” the parking officer.  When it was pointed out to him that he had already done that, he then explained that he was in his car when he stopped to query the parking officer about whether he had chalked the tyre of the vehicle.   This led to further questions about chalking the vehicle’s tyre.

[12]     It is significant that prosecution counsel did not put to Mr Samuel that his reliance on the park and display ticket was a fabrication.   Whilst querying why Mr Samuel  had  not  shown  the  ticket  to  the  parking  officer  was  a  means  of introducing that idea, the cross-examination was never pursued to that final point.

[13]     The  District  Court  recognised  that  the  pay  and  display  parking  receipt required careful consideration.  It was right to do so, as this was a material piece of circumstantial evidence that inferentially supported more than one possible scenario. The District Court needed to work its way through each possibility before it could reach a conclusion on whether the prosecution had proved its case.

[14]     One possible scenario was that the parking officer was mistaken as to where the vehicle was parked and that the vehicle was parked in a pay and display zone, not in the 15 minute park zone.   As the two zones are contiguous, this was possible. Secondly, Mr Samuel was mistaken as to where he had parked the vehicle; so that it was in a 15 minute zone, but he thought it was in a park and display zone.  Hence the purchase of the pay and display ticket.  Thirdly, Mr Samuel had knowingly parked the vehicle in a 15 minute zone and then when he found the infringement notice, he obtained the park and display ticket from someone else in order to support the defence he was now running.  Allied to this possibility is the view that Mr Samuel was someone who had fabricated evidence to advance his defence.

[15]     The District Court preferred the evidence of the parking officer.   The only reason it gave for this finding was the conclusion it had reached that anyone who had paid for a park and display receipt and then received an infringement notice for another type of park could be expected to show the receipt to the parking officer.  To reach this finding, the District Court must have either excluded the possibility that

Mr Samuel had paid for the park and display ticket in circumstances where he had mistakenly parked in a 15 minute zone, or it did not occur to the Court.  In any event, this scenario does not fit with the disbelief conveyed at [6] when Mr Samuel’s failure to draw the park and display ticket to the parking officer’s attention is compared with the postulated behaviour of other persons who find themselves in the same position.

[16]     This means that the District Court was choosing between the first and the third possibility.   However, it had never been suggested as part of the prosecution case that Mr Samuel had actually fabricated evidence by falsely claiming that a pay and display ticket belonging to someone else was actually his.   Whether in such circumstances it was open to the District Court to reject his evidence on this basis involves   legal   questions   of   the   type   which   were   raised   in   Re   Erebus Royal Commission [1983] NZLR 662. There was no probative evidence before the District Court to suggest that Mr Samuel had fabricated a defence. Thus, there was nothing to support that conclusion. To reach that conclusion in such circumstances was a breach of natural justice: see Re Erebus Royal Commission at 671. The issue had not been squarely put to Mr Samuel in cross-examination, so he was unable to comment on it, which is also a breach of natural justice: again see Re Erebus Royal Commission at 671. The absence of any cross-examination on the topic of fabrication of defence evidence undermines the conclusion that this is what has occurred: see s 92 of the Evidence Act 2006, and R v Dewar [2008] NZCA 344.

[17]     Furthermore,  the  idea  that  the  pay  and  display  ticket  was  not  originally obtained by Mr Samuel when he parked the vehicle entails imagining that after he received the infringement notice, he was able to approach someone who had parked in the pay and display area at the relevant time and obtain his or her pay and display ticket. This seems more unlikely than any of the other possible scenarios.  It requires attaching to Mr Samuel not only a willingness to give knowingly false evidence in Court, but also the presence of mind to concoct such a defence at a time when the opportunity to obtain someone else’s pay and display ticket was still available.

[18]     The District Court was faced with two opposing witnesses, each of whom was adamant that his version of events was a true account of what had occurred. When judges preside at jury trials, it is common to direct juries on the topic of

reliability and credibility of witnesses.  Judges do this by advising juries that they need  to  take  account  of  the  fact  that  an  honest  witness  may  nonetheless  be  a mistaken witness, and that his or her evidence will be unreliable.  The District Court does not appear to have gone through this exercise when it came to assessing the evidence of the parking officer or that of Mr Samuel.

[19]     Allied to the assessment of a witness’s reliability is the burden and standard of proof.   This was a summary prosecution.   The standard of proof was beyond reasonable doubt.  Mr Samuel was entitled to the presumption of innocence; and the prosecution carried the burden of proving he had infringed the parking restrictions. The  park  and  display ticket  was  a  piece  of  circumstantial  evidence  which  was capable of supporting the inference that Mr Samuel had legally parked in the pay and display area, and the parking officer was mistaken about the vehicle being in the

15 minute parking zone (the first possibility).   If that inference were drawn, the prosecution would have failed to prove its case.  I have already said why the third possibility was not open to the District Court (the fabrication of defence evidence). There was still, in principle, the second possibility; namely, that the park and display ticket was legitimately paid for by Mr Samuel, but, unbeknown to him, at the time he had mistakenly parked in a 15 minute parking zone.  If this inference was drawn, he had no defence to the infringement notice.

[20]     In R v Wanhalla [2007] 2 NZLR 573, the Court of Appeal explained the concept of proof beyond reasonable doubt. First, proof beyond reasonable doubt was defined as being when a juror is sure that the defendant is guilty: see Wanhalla at [49]. Secondly, when it came to defences, the Court of Appeal used the expression “reasonable possibility” and said that juries should be directed that if they thought a defence was reasonably possible, they cannot be sure the defendant is guilty, and should acquit: see Wanhalla at [50]. Unless the District Court could conclude there was no reasonable possibility that the parking officer was mistaken, it could not be sure that the prosecution had proved Mr Samuel had committed the parking infringement. As the evidence stood, that conclusion was not open to the District Court. On the evidence before the District Court, inferences to support either the first possibility (a mistaken parking officer), or the second possibility (a mistaken Mr Samuel) were equally possible. In such circumstances, judges direct

juries  that  where  two  inferences  are  equally  possible,  they  should  accept  the inference in favour of the defence.  This is because triers of fact should never guess or speculate when it comes to choosing between competing inferences  of equal weight. And when faced with such circumstances, they cannot be sure the defendant is guilty.

[21]     I consider that in its approach to determining this case, the District Court has erred in law.  It did not consider the difference between the reliability of a witness and his or her credibility.  It did not turn its mind to the possibility of the parking officer being an honest but a mistaken witness.   It did not turn its mind to the possible inferences that could be drawn from the park and display receipt.  It did not consider whether it was reasonably possible that Mr Samuel had parked in the pay and display zone.   Thus, its rejection of Mr Samuel’s evidence was based on a procedural irregularity, and the appeal should be allowed.

[22]     Since the evidence is insufficient to  prove  beyond  reasonable doubt  that Mr Samuel did infringe the parking restrictions in St James Street, this is not a case where it would be appropriate to send it back to the District Court for rehearing. Accordingly, the infringement is set aside.  The prosecution case against Mr Samuel is dismissed.

Duffy J