W v Police HC Hamilton CRI 2008-419-81

[2008] NZHC 2074

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2008-419-81

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 December 2008

Appearances: Appellant in person

J M O'Sullivan for Respondent

Judgment:      17 December 2008

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Hamilton

Copy to:

T J W  , 6 Morningside Road, Whangarei

W V POLICE HC HAM CRI 2008-419-81  17 December 2008

[1]      On 25 August 2008 Justices of the Peace at Te Kuiti found that Tony W   had driven on 27 December 2007 a private vehicle on a road, not displaying current evidence of vehicle inspection, contrary to s 34(1)(b) of the Land Transport Act

1998.

[2]      The Justices, to reach that conclusion, were satisfied first as to the fact that the vehicle was not displaying a current warrant of fitness. The warrant had expired in August 2007, or even two months earlier. As to that Mr W   took no issue.

[3]      The  Justices  found,  furthermore,  that  Mr  W    could  not  rely  on  the exemption  from  liability conferred  by Rule  10.22  of  the  Land  Transport  Rules Vehicles Standards Compliance 2002 which exempts:

Where the vehicle is being operated solely for the purpose of bringing it into compliance, and it is safe to be operated for that purpose.

The Justices held that there was an onus on Mr W   to satisfy them, firstly, that the vehicle was safe and, secondly, that he was driving solely to bring it into a state of compliance. They considered that his word as to those two issues did not suffice.

[4]      The Justices had some sympathy for Mr W   and accepted that he drove from Palmerston North, through Te Kuiti, to his home in Whangarei, honestly believing that he was entitled to do so. They imposed what they described as a minimum fine, $150. They imposed $35 costs.

[5]      On this appeal Mr W   contends that the Justices misunderstood where the burden of proof lay. It lay on the police, he contends, to prove the offence beyond reasonable doubt. That extended to a duty, he contends, to rebut his evidence that the car was safe and that his sole purpose in driving it was to obtain a warrant of fitness.

[6]      On this appeal, as I have explained to Mr W  , my task is not to rehear the case afresh. It is to decide whether the Justices made any error in their understanding of law or reached any conclusion of fact not open to them on the evidence and whether the penalty may have been disproportionate.

Context

[7]      This appeal has proceeded in the absence of the notes of evidence. Mr W   has come from Whangarei. To put him to the cost of returning another time when the notes had been transcribed would be disproportionate. Furthermore, the decision under appeal rests on evidence that, as the Justices said, was largely uncontested.

[8]      Mr  W    has  explained  to  me,  and  it  appears  quite  consistent  with  the Justices’ findings of fact, that on 27 December 2007 he travelled from Whangarei to Palmerston North to pick up a car for his son that he had purchased for $1,000 on Trade Me. He knew that it did not have a warrant of fitness. He knew there was an issue about one of the rear tyres. He intended to remedy both.

[9]      Unfortunately, he arrived at Palmerston North too late to obtain a warrant of fitness. He did not have money to stay overnight. He elected to return to Whangarei, intending to obtain a warrant there. In Te Kuiti the officer issued him with the infringement notice. The officer inspected his car, as the officer’s contemporary note confirms. The officer noted that the tyres were above minimum tread depth. The infringement was confined to the want of a warrant. Mr W   continued to Whangarei.

[10]     Mr W   slept in his car overnight, he says. In Whangarei he first drove to the service station he normally uses. It was 28 December. That garage was closed. He was not able to obtain a warrant until 9 January. When he did so the only thing he had to do was to replace the defective tyre. At the date the warrant was issued the tyre had a sufficient depth, as the officer had said. Mr W   had to replace it because it would not have lasted the full six months.

Principles of law applying

[11]     Section 34(1)(b) of the Land Transport Act 1998 makes it an offence to operate  a  vehicle  on  a  road  without  displaying  current  evidence  of  vehicle inspection. That is an offence that can be committed even where a car is stationary: R v De Montalk CA 157/03, 7 March 2005.

[12]     There is then the exemption that I have described conferred by Rule 10.22 of the Land Transport Rules 2002. It requires it to be established that the vehicle is safe at the time that it is being driven. But, as significantly, that the purpose for which it is being driven, the sole purpose, is to bring it into a state of compliance.

[13]     The burden of proof as to that rested on Mr W   as the one claiming the exemption under s 67(8) of the Summary Proceedings Act. He had to do so to the balance of probabilities. It was not incumbent on the prosecutor to anticipate that exemption and rebut it in advance or afterwards. The onus rested on Mr W  .

[14]     The Justices in their careful decision accurately stated that to be the effect of the law, referring to two cases confirming those principles: Terry v New Zealand Police (HC GRY, AP 1/03, 17 July 2003), Panckhurst J and Prescott v New Zealand Police (HC AK, CRI 2005-404-000082, 4 July 2005), Winkelmann J.

[15]     The question then became, as the Justices said, whether Mr W  , fixed with the absence of a warrant but for the exemption, had discharged the onus resting on him sufficiently. They found that he had not.

Safety issue

[16]     At the hearing before the Justices Mr W   gave evidence as to the state of the car on the day and as to the result of the warrant of fitness inspection on 9

January 2007. The Justices accepted that Mr W   was truthful. However, they considered that, even if he were, he still had to bring objective evidence to show that the car was safe on the day and, in truth, worthy of a warrant subject to the potential lack of depth in the tyre.

[17]     That conclusion, I think, was open to the Justices subject to this. The officer, who stopped Mr W  , did inspect the car. His evidence I gather from Mr W   was too general to assist him greatly. But the officer was clear, in the note he made at the time, that the state of the tyres was not of concern. The reason the Justices may not have thought this enough may have been that Mr W   had not excluded the possibility of other problems. They looked for a more complete objective appraisal.

[18]     For my part I do have sympathy for Mr W  ’s contention today that the car was actually safe on the day and when a warrant was obtained. But the Justices were entitled to better evidence than his to decide that to be so more probably than not.

Purpose of driving

[19]     The other question was what the Justices were to make of Mr W  ’s choice to drive from Palmerston North to Whangarei. Could that be described as doing so solely for the purpose of bringing the car into compliance? The Justices held that it could not be, that Mr W   made a choice to return home and to obtain a warrant once he did so.

[20]     To do that, as the Justices said, Mr W   had to travel from Palmerston North to Whangarei, a distance of some 700 kilometres, I understand, when he could have obtained a warrant, if not in Palmerston North on 27 December, then the following day, or at points closer than Whangarei.

[21]     Mr W  ’s primary or equal purpose, the Justices found, was to travel home and then to obtain a warrant. He could not, therefore, show to the balance of probabilities that he only travelled to Whangarei to bring the car into compliance. Again that conclusion was fully open to the Justices. It is not one with which I am able to interfere.

Penalty imposed

[22]     The consequence is that the Justices found the offence proved. But because this was an infringement offence, Mr W   did not attract a conviction. The sole consequence was the fine imposed and costs. The issue then becomes whether the fine was disproportionate.

[23]     The maximum fine able to be imposed, the Justices pointed out, is $2,000. The fine they imposed, $150, was as they said, minimal. Mr W   cannot say it was disproportionate. It was not. However, the Justices could have chosen, having found

that Mr W   had made an honest miscalculation, and because there was no evidence that the safety of the public was compromised, not to impose any fine. That would have been an exercise of mercy. It was open.

[24]     On this appeal I have decided that, though in principle the fine was not disproportionate, nevertheless, and especially because in good faith and at some cost Mr W   has travelled from Whangarei to Hamilton to pursue this appeal, just as he travelled to Te Kuiti to contest the infringement, my decision vindicating the Justices

will suffice. I propose on that exceptional basis to set aside the fine and the costs.

P.J. Keane  J