W v New Zealand Police HC Palmerston North CRI 2005 454 64

[2006] NZHC 46

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2005 454 64

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 February 2006

Appearances: Appellant in person

C A Patterson for Respondent

Judgment:      8 February 2006

ORAL JUDGMENT OF RONALD YOUNG J

[1]      Mr W   was convicted by Justices of the Peace of driving a motor vehicle at an excess speed.  The speed of his car ascertained by a speed camera was said to be 72 km/ph in a 50 km/ph zone in Palmerston North.

[2]      Mr W   accepted the car was his but has always said that he was not driving at the time.   However, the Justices of the Peace concluded that he was

responsible and convicted him.

W V NZ POLICE HC PMN CRI 2005 454 64  8 February 2006

[3]      Mr W   on appeal says he made every effort to find out who was driving on the day but was unable to do so and so he says he was unfairly convicted because he complied with s 133 of the Land Transport Act 1998.

[4]      Dealing firstly then with the facts.  On 7 February 2005 at about 2.30 p.m. Mr W  ’  motor  vehicle  was  being  driven  along  Fitzherbert  Street,  Palmerston North when a speed camera calculated its speed was 72 km/ph.   When Mr W   received a speeding ticket it came with advice based on s 41A(2) of the Transport Act 1982 and s 133 Land Transport Act 1998.  He understood that if someone else was driving a vehicle at the time and that he did all he could to discover who was the driver then as long as he could prove these propositions and the fact that he was unable in the circumstances to identify the driver then he would have essentially an absolute defence to the charge.  After Mr W   received the ticket he wrote back to the enforcement agency asking for a photograph of his vehicle at the time.   The photograph was sent but the driver could not be identified, the camera taking a photograph of the car as it was going away from the speed camera.  He then wrote immediately to the issuing authority enclosing what is a pre-printed form headed, “Statutory  declaration  in  respect  of  a  moving  vehicle”  which  Mr  W    had completed explaining as I have said that he could not identify the driver and what efforts he had made to do so.  Unfortunately, the witness to the declaration was not someone authorised to make a declaration under the Oaths and Declarations Act.  It is accepted that this was an oversight corrected at the hearing on 5 October 2005.  In any event, the New Zealand Police Infringement Bureau received the declaration on

6 April shortly after the photograph was sent to Mr W  .  In other words, Mr W   responded essentially immediately he received notice of the ticket and the photograph.

[5]      The prosecuting authority decided to proceed with the case and Mr W   was served with the relevant information.  When the case came to hearing Mr W   gave evidence explaining all that happened including his explanation as to why he could  not  identify  the  driver  and  why  he  should  be  excused.     He  was  not cross-examined.  Regretfully, the Justices of the Peace did not deal at all with Mr W  ’ defence.  They chose to ignore the proposed defence and simply convicted him.    In  this,  it  seems,  they may have  followed  the  advice  of  the  prosecuting

Sergeant who was either not aware of or did not understand s 133 Land Transport

Act.

[6]      Section 133 Land Transport Act provides as follows:

133     Owner liability for moving vehicle offences

(1)Proceedings  for  a  moving  vehicle  offence  may  be  taken against any 1 or more of the following persons:

(a)       The person who allegedly committed the offence:

(b)A person who, at the time of the alleged offence, was registered as the owner, or 1 of the owners, of the vehicle involved in the offence in a register kept under  section  18  of  the  Transport  (Vehicle  and Driver Registration and Licensing) Act 1986:

(c)A person who, at the time of the alleged offence, was lawfully entitled to possession of the vehicle involved in the offence (whether jointly with any other person or not);—

whether or not (in the case of a person referred to in paragraph (b) or paragraph (c)) the person is an individual or was the driver or person in charge of the vehicle at the time the alleged offence was committed.

(2)In proceedings taken against a person under paragraph (b) or paragraph (c) of subsection (1), it is to be conclusively presumed that—

(a)The defendant was the driver or person in charge of the  vehicle  at  the  time  of  the  alleged  offence (whether or not the  person  is an individual); and accordingly

(b)The acts  or  omissions  of  the  driver  or  person  in charge of the vehicle at that time were the acts or omissions of the defendant.

(3)It is a defence to proceedings against a person for a moving vehicle offence if another person has, by virtue of an order under the Summary Proceedings Act 1957, become liable to pay a fine or costs, or both, in respect of the offence.

(4)It  is  a  defence  to  proceedings  against  a  person  under paragraph (b) or paragraph (c) of subsection (1) if,—

(a)       At the time the alleged offence was committed,—

(i)The person was not lawfully entitled to possession of the vehicle (either jointly with any other person or severally); or

(ii)      Another person was driving the vehicle; and

(b)Immediately after becoming aware of the alleged offence,   the   person   advised   the   enforcement authority in writing that, at the time the offence was committed, he or she was not lawfully entitled to possession of the vehicle or another person was driving the vehicle (as the case may be); and

(c)The person has given the enforcement authority a statutory declaration—

(i)Identifying the driver, by giving the name and address of the driver or such other particulars within the person's knowledge as may lead to the identification of the driver; or

(ii)      Establishing   that   the   person   could   not identify  the  driver,  after  taking  all reasonable steps to do so.

(5)In proceedings for a moving vehicle offence, a statutory declaration given under subsection (4) is, in the absence of proof  to  the  contrary,  sufficient  evidence  of  the  matters stated in the declaration; and it is admissible for all purposes of any proceedings under this section.

[7]      The  ingredients  to  be  established  if  a  defence  under  s 133(3)  is  to  be successful are:

(1)That the appellant has been charged as the registered owner or as someone lawfully entitled to possession of the vehicle.

(2)       That another was driving the vehicle at the time of the offence.

(3)The appellant had advised the police he was not the driver of the vehicle immediately becoming aware of the alleged offence and in writing.

(4)That he gave the police a statutory declaration establishing he could not identify the driver after taking all reasonable steps to do so.

(5)       That matters in the declaration were not disproved by the police.

[8]      Points (2), (3), (4) and (5) were clearly established here.  The reasons will be obvious from my description of the events.   Mr W   says another person was driving the vehicle, he advised the police immediately he was not the driver of the vehicle in writing, and he gave a statutory declaration establishing he could not identify the driver after identified steps to do so.   Given the police chose not to cross-examine him then the police made no attempt to disprove what Mr W   had alleged.

[9]      As to point (1) (para [7] of this judgment) was Mr W   charged as the registered owner of a vehicle or was the person otherwise lawfully entitled to possession of the vehicle.  The charge itself alleges that the defendant committed an offence under s133(1) Land Transport Act and s 452(1)(A) Transport Act 1962:

. . . in that the defendant DROVE A MOTOR VEHICLE SI27 ON A ROAD FITZHERBERT AVENUE . . .

[10]     It is not clear in fact whether the prosecution was charging Mr W   as being the actual driver of the vehicle or as the registered owner.  If the former, then there is simply no evidence to prove he was ever the actual driver and therefore no proof of an essential element of the charge.  He was entitled to have the charge dismissed on that basis.  As to the latter, that he was charged as the registered owner and therefore the person responsible then he comes within s 133(3) and for the reasons given has established each of the elements set out in s 133(3).   Either way, therefore, the Justices of the Peace clearly erred in law in convicting the appellant.  He was either clearly not guilty because it could not be proved he was the driver of the vehicle, or he was not guilty because he had positively established the defences available under s 133(3).

[11]     For those reasons, therefore, the appeal will be allowed and the conviction quashed.  It is not an appropriate occasion to send the matter back for hearing.  This is a matter that has gone on long enough.  Given its modest seriousness a rehearing would be inappropriate.

[12]     Mr W   should have some travel costs for today.  I allow the sum of $100 as a contribution towards his travel costs for attending from Wellington.

“Ronald Young J”

Solicitors:
Crown Solicitor, Palmerston North