Watt v Auckland Transport - [2012] NZHC 1248

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-109 [2012] NZHC 1248

HUON JAMES WATT
Appellant

v

AUCKLAND TRANSPORT
Respondent

Hearing: 5 June 2012

Appearances: Appellant in Person
N Miller for Respondent

Judgment: 5 June 2012

ORAL JUDGMENT OF TOOGOOD J

HJ Watt, 16 Cromwell Street, Mt Eden, Auckland 1024.
R Gapes/N Miller, Simpson Grierson, Auckland: Robert.gapes@simpsongrierson.com
Natalie.miller@simpsongrierson.com

WATT V AUCKLAND TRANSPORT HC AK CRI-2012-404-109 [5 June 2012]

[1] Huon James Watt has appealed against the refusal of Justices of the Peace to award costs in his favour after an infringement offence to which he had pleaded not guilty in the District Court at Auckland was dismissed by the prosecution during the hearing.

[2] The infringement notice alleged that on 17 March 2011 at 11:07 am, the appellant operated a heavy vehicle on a road when that vehicle was not displaying current evidence of vehicle inspection, an offence against s 34(1)(b) Land Transport Act 1998. This is an offence of strict liability.[1] The evidence of vehicle inspection displayed on the appellant’s vehicle had expired the previous day, 16 March 2011.

[1] R v de Montalk CA157/03, 7 March 2005

[3] During the defended hearing, a witness called by the prosecution gave incorrect evidence as to the policy adopted by Auckland Transport, the prosecuting authority, in relation to periods of grace for such offences, and it was on that basis that the prosecution was withdrawn. After the dismissal of the information, Mr Watt applied to the Justices for an award of costs in his favour, saying that he understood that he had not committed an offence by displaying an expired certificate of fitness only some 11 or so hours after expiry. He had other defences which he had wished to run and he argued that the prosecution against him was malicious.

[4] Mr Watt sought costs of $600, but his claim was rejected by the Justices of the Peace. In giving their reasons for declining to make an award of costs, the Justices said they had considered s 5(2) of the Costs in Criminal Cases Act 1967 (“the Act”) and had decided that the prosecution had been properly brought. In coming to this view, they noted that the appellant had admitted that he had operated the vehicle without a current certificate of fitness.

[5] On appeal, Mr Watt protests both the nature of the prosecution in the District Court and the way it was handled, and also the finding of the Justices that he had in fact committed the offence without properly considering the evidence or giving him
an opportunity to run his defences. He said an award of $536.25 would reflect the

nine hours and 45 minutes he spent defending the case, based on his charge-out rate as a builder of $55 an hour. Mr Watt acknowledged that his claim was based primarily on what he considered was the discretion available under the Act.

Discussion

[6] I am satisfied in reading the Justices’ reasons for declining to award costs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 1248
Decision Date: 5 June 2012

CaseChat Overview and Summary

Huon James Watt has appealed against the refusal of Justices of the Peace to award him costs in his favour after an infringement offence, to which he had pleaded not guilty in the District Court at Auckland, was dismissed by the prosecution during the hearing. The infringement notice alleged that on 17 March 2011, at 11:07 am, the appellant operated a heavy vehicle on a road when that vehicle was not displaying current evidence of vehicle inspection, an offence under s 34(1)(b) of the Land Transport Act 1998. The evidence of vehicle inspection displayed on the appellant's vehicle had expired the previous day, 16 March 2011. During the defended hearing, a witness called by the prosecution gave incorrect evidence as to the policy adopted by Auckland Transport, the prosecuting authority, in relation to periods of grace for such offences, and it was on that basis that the prosecution was withdrawn. After the dismissal of the information, Mr Watt applied to the Justices for an award of costs in his favour, saying that he understood that he had not committed an offence by displaying an expired certificate of fitness only some 11 or so hours after expiry. He had other defences which he had wished to run and he argued that the prosecution against him was malicious.

The court considered whether it had jurisdiction to make an award of costs in Mr Watt's favour, as he was self-represented. It noted that under the Costs in Criminal Cases Act 1967, a successful self-represented litigant may be awarded disbursements but not costs. The court further found that there was no jurisdiction under the Act to make an award of costs in favour of a successful defendant who is self-represented. The court held that the prosecution was properly brought in the sense that the offence was undeniable, being one of strict liability, and that an award of costs under the Act would in any event have been inappropriate. For these reasons, the appeal was dismissed. The court declined to award costs on the appeal as Mr Watt had a genuine sense of grievance about these issues, albeit one founded on a misunderstanding of the law.

Orders