Wellington City Council v McCrone HC Wellington CRI 2010-485-78

[2010] NZHC 2161

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-78

WELLINGTON CITY COUNCIL

Appellant

v

DAVID GEORGE MCCRONE

Respondent

Hearing:         7 December 2010

Counsel:         S F Quinn for Appellant

Respondent in Person

Judgment:      7 December 2010

ORAL JUDGMENT OF RONALD YOUNG J (Notice of Appeal by way of case stated)

Introduction

[1]      Mr McCrone was charged with parking his Vespa on a footpath contrary to r 6.14(1)  of  the  Land  Transport  (Road  User)  Rule 2004.    Prosecution  evidence showed that Mr McCrone’s scooter was parked on a paved area next to a pushbike stand.  Mr McCrone did dispute initially that he had parked on a footpath.  He said that he had parked so as not to impede pedestrians and he thought it was reasonable for him to park there.  He had not heard of the idea of an extended footpath.  He said

he did not intend to commit an offence.

WELLINGTON CITY COUNCIL V DAVID GEORGE MCCRONE HC WN CRI 2010-485-78  7 December

2010

[2]      At the end of the case the two Justices of the Peace said:

[6]       We understand what the law says, that a vehicle may not stop stand or park on a footpath, however, in the circumstances, we extend commonsense  and  leniency.    We  accept  that  you  had  no  intention  of breaking the law and that you did what you thought was reasonable in the circumstances.  Because of that, the charge is dismissed.

[3]      This appeal by way of case stated therefore followed.  The three questions for the opinion of the Court are:

a)Whether the defendant’s intention was a relevant element of the offence.

b)Whether   what   the   defendant   thought   was   reasonable   in   the circumstances was a relevant element of the offence.

c)Whether the Court had the discretion to dismiss the charge after finding that the offence had been committed.

[4]      Rule 6.14 of the Land Transport (Road User) Rules 2004 provides as follows:

(1)       A driver or person in charge of a vehicle must not stop, stand, or park the vehicle on a footpath or on a cycle path.

(2)       Subclause (1) does not apply to cycles if a road controlling authority indicates otherwise by means of signs or markings or if it installs facilities for the parking, standing, or storage of cycles on a footpath or cycle path.

(3)       Nothing in subclause (1) prevents a person from stopping, standing, or parking a cycle, mobility device, or wheeled recreational device on a footpath if doing so does not unreasonably obstruct any other user of the footpath.

[5]      It  is  common  ground  that  where  Mr McCrone  parked  his  Vespa  was  a footpath.  It is apparently classified as an “extended footpath”.  It is an area where there are seats, bike stands and the like.  It is also common ground that the area is not intended to be for parking for motor vehicles.  There can be no doubt therefore that the respondent did breach r 6.14 when he parked his Vespa on a footpath.

[6]      To return to the relevance of the respondent’s intention.  Is this offence one of strict liability?

[7]      I  agree  with  the  appellant  that  there  are  only  two  elements  that  the prosecution had to prove beyond reasonable doubt if they are to prove this charge. They are:

a)        that the Vespa was parked in an area that falls within the definition of a road; and

b)        that  the  Vespa  was  parked  in  breach  of  r 6.14(1)  of  the  Land

Transport (Road User) Rules in that it was parked on a footpath.

[8]      The definition of a road is wide (Land Transport Act 1998, s 2).  It includes a place to which the public have access whether as of right or not.  Clearly the footpath is an area where the public have access as of right and it is common ground clearly that the Vespa was parked on a footpath in this case albeit an extended footpath.

[9]      There is no reason to impute any requirement of intention or reasonableness that the informant has to prove or as a “defence” in law with respect to this offence. The nature and language of the prohibiting section (6.14) is regulatory.   Statutory exceptions and defences are available.  This all points towards an offence of strict

liability.[1]   In any event there is no doubt the respondent did intentionally park on the

footpath.  His defence of “no intention” is really an assertion that he did not know he was breaking the law, not a defence in any event in this context.   Thus the respondent’s intention and his belief as to the reasonableness of his own behaviour are irrelevant in determining whether or not the charge is proved.  Indeed it seems clear that the Justices in fact appreciated that.

[1] See Millar v Ministry of Transport [1986] 1 NZLR 660.

[10]     The  Justices  regretfully  did  not  have  authority  in  such  circumstances  to dismiss a charge because of their views of common sense or leniency.

[11]     Section 21(9) of the Summary Proceedings Act is also relevant.  It provides as follows:

21       Summary procedure for infringement offences

...

(9)      Where a defendant is found guilty of, or pleads guilty to, an infringement offence for which an infringement notice has been issued, the Court shall order the defendant to pay costs of the prescribed amount in addition to the fine (if any) and other costs (if any) ordered by the Court.

[12]     This section is concerned with a finding or plea of guilty.  Here the Justices understood the respondent was guilty.  Section 21(9) mandatorily requires a Judge in the relevant circumstances to order payment of a fine and costs.  The Justices were obliged to follow s 21(9).  They did not.

[13]     The answer to the questions are therefore as follows:

a)        the defendants intention was irrelevant and not  an element of the offence;

b)what  the  defendant  thought  was  reasonable  was  not  an  relevant element of the offence;

c)        the Court had no discretion to dismiss the charge after finding it had been committed.

[14]     In  the  circumstances  given  the  minor  nature  of  the  offence  other  than answering the questions I propose to make no further order.

[15]     Finally I wish to say this.  I am sure Mr McCrone did think it was reasonable for him to park where he did and that I am sure that he did not intend to commit any offence.  I am sure that he did not understand or know the definition of an extended footpath.  All of this was perfectly understandable.  I encourage, therefore, the local authority to place signs in the area and similar areas which will identify for those

users of motor vehicles, particularly scooters or motorbikes that they cannot park in

that area.

Ronald Young J

Solicitors:

S F Quinn, DLA Phillips Fox, PO Box 2791, Wellington 6140,

email:  stephe[email protected]
Respondent in Person