W v Police HC Auckland Cri-2009-404-184

[2010] NZHC 388

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000184

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 March 2010

Appearances: R A W   for Appellant

R S Reed for Respondent

Judgment:      9 March 2010 at 3:00 pm

RESERVED JUDGMENT OF COURTNEY J

ON APPEAL AGAINST CONVICTION AND SENTENCE

This judgment was delivered by Justice Courtney on 9 March 2010 at 3:00 pm

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date……………………….

Solicitors:           Meredith Connell, P O Box 2213, Auckland

Fax: [phone] –

Simpson Dowsett Mackie, P O Box 27240, Mount Roskill, Auckland 1440

Fax: [phone]

Counsel:             R A W  , 73 Onetangi Road, Onetangi, Waiheke Island

Fax: [phone]

W V NZ POLICE HC AK CRI-2009-404-000184  9 March 2010

[1]      Mr W   was convicted in the District Court at Auckland on one charge of failing to ensure that the load carried in or on the vehicle he was driving was secured and contained in such a manner that it could not fall or escape from the vehicle in breach of s 42 Land Transport Act 1998.

[2]      The evidence showed that Police Constable Cleland noticed debris in the form of particle or asbestos board on Onetangi Road on Waiheke Island.  He noticed Mr W  ’s truck nearby and subsequently stopped Mr W  .   The officer did not actually see the debris come off the truck.  However, his evidence was that when he told Mr W   that he had reason to believe Mr W   had shed part of his load Mr W   accepted that he had but said that he had cleaned most of it up.

[3]      The evidence is unsatisfactory as to exactly what Mr W  ’s load was. There is evidence that he was carrying an old caravan secured on the back of his truck. However, there is no evidence as to whether the debris was said to be part of a caravan or additional material.  In the District Court Mr W  ’s defence was that the load had been adequately secured and any debris that fell off had come off without fault on his part.

[4]      Mr W   (counsel being of the same name as the appellant) made three points on appeal.  The first, that the transcript was incomplete, was abandoned at the outset of the appeal.   That left two issues.   Mr W   submitted that, first, the evidence did not support a finding that the debris had come from the appellant’s vehicle and, secondly, that there was evidence that the load had been secured in accordance with the truck loading code, thereby constituting evidence that there was no fault on the appellant’s part.

[5]      I do not need to spend much time on the first point.   It is absolutely clear from the evidence that the debris came from the appellant’s truck.   In cross- examination, the appellant said:

Q:       But bits of the caravan [fell off] didn’t it?  Something fell off your truck didn’t it?

A:       I became aware as I was driving along the road of a sheet of asbestos on the road and I stopped to collect it and pick it up, it was a road hazard.

Q:       And that came off the caravan though didn’t it?

A:       Well it is likely that it fell from the caravan.  In saying so, sir, it was secured underneath one of these load binders, appropriately fastened down in accordance with the truck loading code.

Q:       But it did fall from your truck though didn’t it? A: Through no fault of my own.

Q:       Had  you  secured  it in  a more  satisfactory manner,  then  nothing would have fallen from the truck would it?

A:I again state that it was through no fault of my own, that the load was adequately secured in accordance with the truck loading code and in my experience of about 15 years of driving heavy vehicles the load securing device was more than appropriate and adequate for the load that was being carried…

[6]      There can be no doubt on the basis of that evidence that the debris that the appellant stopped to pick up was material that he had previously secured on to his truck.  In light of that evidence the first ground of appeal fails.

[7]      This leaves the second point on appeal which is that the appellant had secured the load in accordance with the truck loading code (which was unchallenged).  In the District Court the Justices of the Peace had identified the fact that s 134 Land Transport Act 1998 imposed strict liability for offences committed under s 42, with the only defence being that provided under s 134(2) being that:

a)        The load was secured on or contained in the vehicle; and

b)A failure to ensure that the securing or containing of the load was in such  a  manner  that  it  could  not  fall  or  escape  from  the  vehicle occurred without fault on the defendant’s part.

[8]      The appellant had given evidence about the manner in which the load had been secured and the Justices of the Peace had accepted that the straps were strong enough to secure the weight of the caravan to the truck.  However, they found that in order to satisfy s 134(2) the appellant also had to prove that the load was adequately contained in the vehicle, which he had not done.

[9]      Mr  W    submitted  that  the  appellant  was  only required  to  prove  the balance of probabilities that the offence occurred through no fault of his own.1    He relied on s 134(4) which provides that:

In proceedings for an offence against s 42, the court must, in determining whether or not the operator of a vehicle has been at fault, have regard to any of the following provisions if the court considers the operator was or should have been aware of them:

(a)… the provisions of any code of practice issued by the [Agency (or any amendment or addition to any such code)]…

[10]     Mr   W     referred   me   to   the   commentary   in   Brookers   Law   of Transportation where, at LT134.04, the learned author states that “proof of compliance with the truck loading code promulgated by the LTSA or with any applicable rules will be evidence that the operator was without fault”.  However, that seems to be a rather broad statement.  Section 134(4) simply requires the Court to have regard to compliance with any code of practice in determining whether the operator has been at fault.  The Justices of the Peace’s finding was based, not on the manner in which the load was secured but the apparent failure to contain the load. That aspect was not addressed at all by the appellant in his evidence so there was no basis on which the Justices of the Peace could properly have found that the escape of the debris occurred through no fault of the appellant.

[11]     The appeal is accordingly dismissed.

P Courtney J

1 Civil Aviation Department v McKenzie [1983] NZLR 78, 85