T v Police HC Gisborne CRI 2008-416-13
[2008] NZHC 2010
•15 December 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI 2008-416-0013
T
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 15 December 2008
Appearances: M Sceats for the appellant
R Collins for the respondent
Judgment: 15 December 2008
(ORAL) JUDGMENT OF STEVENS J
Solicitors/Counsel:
Crown Solicitor, PO Box 609, Napier 4140
M Sceats, PO Box 435, Gisborne 4040
T V NZ POLICE HC GIS CRI 2008-416-0013 15 December 2008
[1] T (the appellant), was charged that on 15 March 2008 he operated a motor vehicle on a roundabout at Waipoua, on State Highway 2 near Gisborne, in a manner which caused the vehicle to undergo sustained loss of traction in contravention of s 22A of the Land Transport Act 1998 (the Act).
[2] The case came before Judge Connell, who heard evidence from prosecution witnesses and was then required to make a ruling on a submission of no case to answer. The defence contention was that there had been no loss of traction because what occurred here was a slide caused by the application of the handbrake to the rear wheels and there was no spinning of the rear wheels. The Judge considered both the interpretation of the relevant section and the evidence of the prosecution and ruled that there was a case to answer.
[3] This is an appeal from that determination. In essence there is only one issue: does the appellant have to cause the wheels that drive a vehicle to “spin” in order to cause a sustained loss of traction and thereby infringe the provisions of s 22A(3) and s 36A(1)(c) of the Act?
Factual background
[4] The facts are conveniently set out in the decision under appeal. A large group of cars travelled out to the roundabout in question where one of the occupants of a car, not the appellant, spilt fuel on the roundabout. A number of cars then went around the roundabout effectively performing what was described as a “handbrake skid” or slide.
[5] The appellant’s vehicle was identified as one of those involved. He was observed driving the vehicle in a way which the Judge found was “more of a handbrake turn style of driving, which might be called “drifting”.” The evidence revealed that there was a sliding of the vehicle for a period of time in the vicinity of the roundabout. The Judge noted that there was no dispute that effectively the sliding that occurred was sustained.
[6] The Judge carefully considered the question of interpretation of the relevant provisions of the Act and then examined the evidence. The Judge was required to assess a submission that the purpose of s 36A(1)(c) of the Act, which incorporates s 22A(3), was to curb practice of spinning the wheels of a motor vehicle under acceleration in order to cause the car to lose traction. That was the basis of the no case to answer submission. It was accepted that there was no evidence of spinning wheels or smoke pouring from the tyres. In effect, the question was: did the behaviour in the case, namely, a sideways sliding of the vehicle following application of the handbrake by the driver, amount to a breach of s 22A(3) of the Act?
[7] The Judge in considering the no case to answer submission concluded at [18]
and [19]:
…it seems to me that as a matter of common sense, the act is silent on the meaning of loss of traction. Common sense would tell me that a loss of traction means that the wheels of the vehicle at some point are unable to gain traction because of what is happening to the car, which is caused by the driver and what he is doing with it. I do not consider that it matters, whether or not the wheels are spinning and causing smoke to emanate from them. What matters is a loss of traction and the loss of traction seems to be the emphasis of s 36A(1)(c). Common sense again, seems to me to suggest, that no matter which way it is done, once there is a loss of traction the next question is, who caused that loss of traction? In this case that is not in dispute. And then, was it a sustained loss of traction? That too, is a fact that effectively is not challenged. Nor is it in dispute as Mr T was seen spinning, or perhaps a better way of putting it “drifting”, for some time at least sufficient to fulfil the requirements of that Act.
I cannot hold that this restrictive interpretation as submitted by Mr Sceats is to be the right interpretation of this section. My view of it is that once there is that loss of traction, once the vehicle is in a position of moving, where there is no traction provided by the wheels of the car, that in itself must mean that it is a sustained loss of traction in that sense and as I have heard the evidence in the case.
[8] In the result, the Judge found that there was a case to answer.
[9] The section under which the appellant was charged was s 22A(3) of the Act. This was introduced by the Legislature in 2003. Section 3A of the Land Transport (Unauthorised Street and Drag Racing) Amendment Act 2003 provides:
Purpose
The purpose of this Act is to amend the principal Act-
to include in that Act additional provisions aimed at combating the problem of unauthorised street racing, drag racing, wheel spinning, and other stunts involving motor vehicles on roads, and the spillage of lubricants on roads without reasonable excuse;
[10] Section 22A provides:
Persons not to engage in unauthorised street or drag racing, or other related prohibited activities on roads
(1) A person must not operate a motor vehicle in a race, or in an unnecessary exhibition of speed or acceleration, on a road unless the operation of the vehicle in that manner is authorised by law.
(2) A person must not, without reasonable excuse, intentionally pour onto, place on, or allow to spill onto a road—
(a) any petrol, oil, or diesel fuel; or
(b)any other substance likely to cause a vehicle to undergo loss of traction.
(3) A person must not, without reasonable excuse, operate a motor vehicle on a road in a manner that causes the vehicle to undergo sustained loss of traction unless the operation of the vehicle in that manner is authorised by law.
Appellant’s submissions
[11] In helpful written submissions, Mr Sceats contended that there was no direct authority on the point. He submitted that the real gravamen of this amended legislation was to stop the behaviour of drivers who engaged in activities which caused both the wheels to spin and smoke to issue as a result. Mr Sceats helpfully referred to a number of earlier authorities. But he submitted that none of these dealt with precisely the same activity as in the present case, namely, what I will describe
as the sliding of a vehicle sideways after the rear wheels are locked by the application of the handbrake.
[12] Mr Sceats submitted that the loss of traction referred to in s 22A(3) should be restricted to an interpretation which is consistent with that part of the purpose provision referring to “wheel spinning”.
Respondent’s submissions
[13] Mr Collins submitted that such an interpretation was too narrow and was not consistent with a purposive interpretation of what was clearly remedial legislation.
[14] Mr Collins referred to the case of Gaudion v Police HC ROT CRI 2003-463-000055 27 February 2004, Venning J. That was a decision primarily concerned with the quality of the evidence upon which the appellant had been convicted. Mr Collins cited from that judgment as follows:
[9] Counsel for the Crown and Mr McCleary both referred to the background materials of the legislation. I do not consider it necessary to go into that background material. In my view the answer must be found in the legislation itself which is clear. Section 36A provides three categories of offence:
(I) A person commits an offence if the person -
(a) operates a motor vehicle in a race, or in an unnecessary exhibition of speed or acceleration, on a road in contravention of section 22A (1); or
(b)without reasonable excuse, intentionally pours onto, places on, or allows to spill onto a road –
(i) any petrol, oil, or diesel fuel; or
(ii) any other substance likely to cause a vehicle to undergo loss of traction; or
(c)without reasonable excuse, operates a motor vehicle on a road in a manner that causes the vehicle to undergo sustained loss of traction in contravention of section 22A(3).
[10] Section 36A(1)(c) incorporates s 22A(3) which provides that a person must not without reasonable excuse operate a motor vehicle on a road in a manner that causes the vehicle to undergo sustained loss of traction unless the operation of the vehicle in that manner is authorised by law.
[11] The subsection does not require a congregation of large groups of young people involving high speeds, smoke or burning rubber, popping tyres or anything of that kind as elements of the offence.
(emphasis added)
[15] Mr Collins also cited Police v Whelan (2005) 21 CRNZ 799. There, John Hansen J referred to the Select Committee report on the Bill at the time of introduction and quoted from Hansard. John Hansen J stated at [16]:
Essentially, the learned District Court Judge has interpreted the Act in the way Mr Franks did. However, it must be interpreted on a purposive basis. For there to be an "unnecessary exhibition of acceleration" it does not necessarily require wheel spinning as occurred in this case. Furthermore, to meet the intention of Parliament it seems to me that the driving must be viewed as one continuum.
[16] Mr Collins submitted that the reasoning of John Hansen J indicated that an “unnecessary exhibition of acceleration” does not as a matter of statutory interpretation require wheels to spin. It follows that neither should the concept of “sustained loss of traction” require such an action. Reference was also made to the case of Whitburn v Police HC WHA CRN2088020930 29 June 2004. There, Laurenson J was concerned with the meaning of the word “sustained”.
[17] Next, reference was made to McKinley v Police HC HAM CRI 2006-419-22
24 May 2006 where Ellen France J on appeal adopted the reasoning of John Hansen J in the Whelan case. She implicitly endorsed the view of John Hansen J that the Act had to be interpreted on a purposive basis.
[18] Finally, reference was made to Heyder v Police HC ROT CRI 2008-463-68
16 October 2008. There, Keane J was dealing with a sentencing appeal involving operating a vehicle resulting in sustained loss of traction. In [4] of the judgment he stated:
On 1 September 2007, the first of the occasions on which Mr Heyder drove while disqualified, he twice that day or that night drove deliberately in a way intending to lose traction, drifting the car by turning it on the handbrake. Each was an instance of driving that was potentially dangerous, as well as an infringement of the law.
[19] Because it was a sentence appeal only, the Judge was not confronted directly with the issue of whether a handbrake slide amounted to a sustained loss of traction. However, it seems clear that the Judge took no issue with the fact that Mr Heyder had been properly convicted.
Discussion
[20] The starting point when interpreting legislation must be the words of the statute. A charge under s 22A(3) of the Act involves two elements. The first is whether the vehicle was operated on a road in a manner that causes the vehicle to undergo a loss of traction. The second is whether such loss of traction as occurred was “sustained”. The section does not contain any definition or description of what is required to be proved to amount to a loss of traction. This must depend on the facts of each case. The critical issue with the first element will be: was there in fact a loss of traction?
[21] Moreover, interpreting the section purposively and considering the contents of the purpose section, s 3A, the problems that the legislation seeks to address include unauthorised street racing, drag racing, wheel spinning and other stunts involving motor vehicles on road. In the latter category, there is no limit placed on the types of “stunts” concerned.
[22] When considering the no case submission, the Judge approached the interpretation of s 22A(3) of the Act in a common sense way. He concluded, correctly in my view, that it did not matter whether the wheels are spun or smoke is caused to emanate from them. What matters is whether there was a loss of traction.
[23] The Judge carefully considered the facts and determined that the application of the handbrake and consequent locking of the rear wheels caused a loss of traction. Once that finding had been made the only question then was whether the loss of traction was “sustained”. As the Judge noted, effectively this aspect was not challenged.
[24] I am satisfied that activities in the nature of a handbrake slide or drifting, as demonstrated in the facts of this case, fall within the provisions of s 22A(3) of the Act. Accordingly, despite the careful and comprehensive submissions by Mr Sceats, I am not satisfied with the interpretation which he, on behalf of the appellant, advocated can be sustained.
Result
[25] The appeal cannot succeed and is accordingly dismissed.
[26] A consequence of the dismissal of the appeal is that the Judge’s decision on sentencing will now take effect. The appellant was convicted and fined. In addition he was disqualified from holding or obtaining a driver’s licence for six months. That sentence has been in abeyance pending the disposition of the appeal.
[27] Mr Sceats has urged that I suspend the operation of the disqualification until a commencement date of 19 December 2008. In the exercise of my discretion, I so
direct.
Stevens J
0
0
0