Young v Wellington City Council HC Wellington CRI 2010-485-98

[2010] NZHC 2175

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-98

BETWEEN  PETER JAMES YOUNG Appellant

ANDWELLINGTON CITY COUNCIL Respondent

Hearing:         16 November 2010

Counsel:         Appellant in Person

Ms A White for Respondent

Judgment:      7 December 2010 at 2.15 pmat 2.15 pm

JUDGMENT OF MALLON J

Introduction

[1]      Mr Young appeals against an order that he pay a $40 infringement fee and

$30 costs.  The infringement fee was for failing to display a parking receipt on his car when parked in the Civic Centre car park under the Wellington City Library on

13 April 2010.

[2]      Under the Wellington Consolidated Bylaw 2008, together with s 72 of the Transport Act 1962, it is an offence to park a vehicle in a park controlled by a parking meter without complying with the directions indicated by the meter.  In this case there is no dispute that the car park in the Civic Centre was a “pay and display” park which required a parking receipt to be displayed.  The issue is whether it was proven to the beyond reasonable doubt standard that his car was parked in that park without a ticket at the relevant time.   Mr Young contends that the evidence was

inadequate such that this burden was not discharged by the informant.

YOUNG V WELLINGTON CITY COUNCIL HC WN CRI-2010-485-98  7 December 2010

Evidence

[3]      The  informant  called  evidence  from  a  parking  warden  (Ms  Thomas). Ms Thomas gave evidence of having issued the parking ticket.  Her evidence of what had occurred was based on what was recorded on the informant’s “ticket information sheet”.  At the outset of her evidence leave was granted for Ms Thomas to refer to this sheet.  From that sheet she was able to say that on 13 April 2010 a BMW car, registration EMS310 was parked in the end section of the Civic Centre carpark; that her first chalk mark was at 1938; that the ticket was issued at 1944; and that she had attached the infringement notice to the car.   In giving that evidence she explained what various abbreviations on the ticket information sheet meant.

[4]      Ms Thomas was asked in cross-examination whether she had any memory of issuing the ticket and, not surprisingly (as she issues around 20 to 50 tickets a day), she said “none whatsoever”.    She was cross-examined about how the details were entered on her machine.  She said that all the details were entered on the spot.  She was asked where the information on the informant’s record came from.  She said that the top part of this was a copy of the ticket.   She said that the bottom part which came under the heading “additional information” included the information the Council required that she put into her machine at the time.

[5]      Ms Thomas explained that the additional information was retrieved by the Council when further information about the ticket was needed.   She explained the details in this section which had come from information she was required to input at the time.  This included that “Issue mode A attached” meant that she had attached the ticket to the car.  She was asked if she had made any additional notes, to which she said that her notes were the information she put into the machine at the time. She said that she had a discretion whether to take a photograph of the car and she had not taken any such photograph in this case.

[6]      Ms  Thomas  was  cross-examined  about  whether  she  might  have  made  a mistake in  entering the  registration  number  of  the car.    She  explained  that  the machine required that the registration number be entered twice.   She said that the machine would not let you print a ticket if the same registration number was not

entered both times.  She thought it “highly unlikely” that the same wrong registration number would be entered twice.    She explained that when the registration number was entered the database on the machine would bring up whether the licence label and warrant of fitness had been done within a calendar month.   She said that the make of the car had to be entered into the machine as well.   She said that in 12 years as a parking warden no-one had contended that she had got the car registration number wrong.

[7]      In re-examination Ms Thomas said that once she is finished duty the machine she has used is downloaded into the main machine.   She confirmed that “Record created” on the ticket information sheet (which Mr Young had asked her about) related to this process.

[8]      The informant also called evidence from a trainer and auditor of parking wardens (Mr Wairau).  Mr Wairau gave evidence as to the type of machine used by the parking wardens as at 13 April 2010.   He said that the machines had menus which the warden had to follow to enable them to issue a ticket. He said that once a parking warden had finished duty they log off their warden number and load the machines into a port.   He said that the next day the administration supervisor downloads all the information onto his computer.   He  explained that  the ticket information sheet in this case showed that the machines had been downloaded on 14

April 2010 at 5.15.52 (ie early in the morning).   He said that once a machine had been signed off and before it is downloaded, no other person had access to the information on the machine.  He said that the top part of the ticket information sheet was the ticket information that wardens enter to print the ticket.  He said that once they had printed the ticket, the additional information was what they enter after they have printed the ticket.

[9]      Mr  Wairau  was  cross-examined  about  whether  the  registration  could  be entered incorrectly.  He said that it would be “very rare” because of the requirement to enter the number twice.  He also said that the wardens are taught to also read the ticket before they attach it to the car.  He said that he had never heard of a warden entering the  wrong registration  number.    He  noted  that  he  could  not speak  for wardens before his time and so he was not able to say that there had never been an

error of this kind.  He said that he was aware of “mistakes” occurring and that he had made mistakes before.  He said that he had entered the wrong registration number before (he does not say whether he entered the same wrong number twice).  He said that  it  was  because  mistakes  could  be  made  that  they had  procedures  in  place (requiring the registration number to be entered twice and the checking of the ticket once printed).  Mr Wairau confirmed Ms Thomas’ evidence that the warden has to enter the make of the car and that this information is not available from the warden’s machine when the registration number is entered.

[10]     It was put to Mr Wairau that one way an error could occur is if the warden had entered the ticket details at the time of the first chalk mark (when the owner might have been at the machine getting the ticket) and then failed to see the ticket when the warden came back the second time.  Mr Wairau said that was possible, but the ticket advises that if the driver had a valid receipt at the time they can send it in with the ticket.  Mr Young put it to Mr Wairau that this would not be possible if the person had not received the ticket.  Mr Wairau said that there can be many reasons why a person does not see that they have a ticket.  He said for example that a driver might not notice the ticket and then the ticket might blow off or the wipers might be used.

[11]     Mr Young gave evidence in his defence.  He said that he never received the ticket.  He said he always remembered when he received a ticket and he could not understand what had happened here.   He said that he went to the library in the evenings at most about twice a year and he knows he used the library at some point probably in the first few months of the year.  He said that he was always careful to read the parking signs because he was never sure of when “they’re running the meters”.   He said he was very wary of getting tickets.  He suggested that perhaps in this case the warden had attached the ticket to the wrong car or that the warden had entered the wrong details.

Decision of the Justices of the Peace

[12]     At the conclusion of the evidence Mr Young said “my only legal submission sir, is that this is a case where the prosecution must prove their case beyond reasonable doubt”.

[13]     The key parts of the decision finding that proof to this standard had been met were as follows:

[7]       In her evidence, Ms Thomas stated that she did attach it to the vehicle in question.  She has been a parking warden for some 12 years and outlined the procedures she followed when issuing infringement notices such as this one.  She was a very credible witness who gave detailed commentary and explanation on the details that she had written when issuing the infringement notice.  She also explained the additional data generated by her auto site machine.

[8]       Mr   Wairau,   the   trainer   of   enforcement   offices,   and   auditor, explained the background to the downloading and uploading of information with respect to the auto site machines.  He explained, as did Ms Thomas, that it was not mandatory to take a photograph.

[9]       Mr Young gave evidence confirming that he did not receive the original infringement notice, and assumed something had gone wrong with the procedure.  He raised many possible hypothetical situations as to how he thought errors might have been made, or could occur.   Under cross- examination from Mr Carmichael, he confirmed he had not read any of the related transport law.

[10]      We find that the evidence of Ms Thomas was clear and informative. She followed her procedures as she has always done.   Written evidence produced gives weight to the fact that an infringement notice was issued on failure to observe a parking fee receipt, which was required to be clearly visible in the car.   We give weight to this evidence and we find that the prosecution has proved beyond a reasonable doubt all the elements relating to this charge.

Issue 1: No copy of the ticket in evidence

[14]     Mr Young says that he did not realise at the time of the defended hearing that the ticket information sheet was not a copy of the actual ticket that was issued.  He says that the ticket was not formally produced.  He submits that this meant that all relevant evidence was not before the Court and that this breached “the best evidence rule”.

[15]     I reject this submission.   The Evidence Act 2006 does not contain a “best evidence rule”.   There is no requirement to produce a copy of the actual ticket issued.  The informant must simply prove the elements of the offence on the basis of the relevant evidence adduced to the Court.   That could be done, as here, by the warden refreshing her memory of what she had seen and done from a document (or record of a document) made at a time when her memory was fresh (s 90(5) of the Evidence Act and the definition of “document” in s 4 of that Act).

[16]     The evidence at the hearing explained how  Ms Thomas had  entered  the information on her machine and how that in turn was downloaded into the computer. The ticket information sheet recorded the information she had noted at a time when her memory was fresh.  The Court granted leave for her to refer to this sheet.  There was no objection from Mr Young about this.  It is now too late for him to say that he did not realise that the top portion of the ticket information sheet was not a copy of the actual ticket.  But in any event it did not have to be.  It contained the details she had recorded for the ticket and therefore provided the relevant information.

Issue 2: deficiencies in the prosecution case?

[17]     Mr Young submits that Ms Thomas’ evidence was no more than her coming along to sit in the witness box to read out to the Court what was on the ticket information sheet.  He submits that in these circumstances it was necessary for the informant to present evidence of the procedure that was actually followed in this case to produce the ticket information sheet and that the evidence of the general procedures was insufficient proof.

[18]     I reject this submission.  There was evidence of how the ticket information sheet was produced.   Ms Thomas gave evidence of what she does when issuing tickets.  This included her evidence that she downloads her machine at the end of the day.  This was supported by Mr Wairau, who gave further detail as to what occurred. He gave evidence, amongst other things, as to the type of machine used, that no-one had  access  to  the  machine  from  the  time  the  warden  had  logged  off  until  the download took place  and he specifically noted that the ticket information sheet showed that the download in this case had occurred at 5.15 am the next day.

[19]     All of this evidence, in the absence of any evidence that Ms Thomas did something different on this particular occasion, or that the machine did not work as it was meant to or that there was some error in the downloading or retrieval process, was sufficient proof of what had occurred on the particular occasion.

[20]     Moreover s 137 of the Evidence Act provides:

Evidence produced by machine, device, or technical process

(1)If a party offers evidence that was produced wholly or partly by a machine, device, or technical process (for example, scanning) and the machine, device, or technical process is of a kind that ordinarily does what a party asserts it to have done, it is presumed that on a particular occasion the machine, device, or technical process did what that party asserts it to have done, in the absence of evidence to the contrary.

(2)If information or other matter is stored in such a way that it cannot be used by the court unless a machine, device, or technical process is used to display, retrieve, produce, or collate it, a party may offer a document that was or purports to have been displayed, retrieved, or collated by use of the machine, device, or technical process.

[21]     There was no evidence to the contrary about the machine used or how the information was stored.  There was no reason for the Court to find anything other than that  the ticket  information sheet  correctly recorded  what  Ms  Thomas’  had inputted.

Issue 3: Possibilities of human error?

[22]     Mr Young submits that evidence showed that it was possible for human error to have occurred.   Mr Young contrasts Ms Thomas’ evidence about whether she could  have  made  a  mistake  entering  the  registration  number  with  Mr Wairau’s evidence on that point.   He also refers to the evidence about the possibility of a warden entering details at the time of the first chalk mark and not seeing the ticket on her return.  He refers to his own evidence that he did not receive a ticket.  He submits that in these circumstances the prosecution case was not proved beyond reasonable doubt.

[23]     I reject this submission.  Beyond reasonable doubt does not require that the informant proves that there is no possibility of error.  Mr Young needed to raise a reasonable doubt on the evidence.  He did not do so.

[24]   The informant’s evidence explained why the possibility of the wrong registration number was “highly unlikely” (Ms Thomas) or would be “very rare” (Mr Wairau).  Contrary to Mr Young’s submission I do not view their evidence as inconsistent on this.  Mr Wairau said that he could not speak for people before his time.   He also said he had made the mistake of entering the wrong registration number, but he did not say that he had done that twice and then proceeded to issue a ticket to the wrong car because of that.  He did say that because of the possibility of human error they had the system of entering the number twice and training the warden to look at the ticket before attaching it to the car.

[25]     Further, the evidence was that the make of the car also had to be entered into the machine.  Therefore if Ms Thomas entered the wrong registration number twice (which she says would be “highly unlikely”) then she also entered a make of car that happened to match the registration number she had entered.   That seems a highly unlikely coincidence.  That Mr Young said he did not receive a ticket does not raise a reasonable doubt.  There are possible explanations for that.  In particular, he may not have noticed the ticket before it fell off, blew away or was removed by someone other than himself.

[26]     There may be other possibilities causing an error, but they are just that. There is no evidence which makes them sufficiently plausible so as to cast a reasonable (rather than hypothetical) doubt.

Issue 4: Failure to make crucial finding of fact

[27]     Mr Young submits that the Court failed to make a finding of fact as to whether he received a ticket.  He submits that the Court also failed to appreciate that Ms Thomas had no memory of the event.

[28]     I reject this submission.  The first point is that the informant was not required to prove that Mr Young had received the ticket.  It was required only to prove that the ticket was attached to the car (see s 42A(5) of the Transport Act).

[29]     The second point is that the Court was entitled to find that Ms Thomas was “a very credible witness”, that her evidence was “clear and informative” and that her evidence was entitled to weight.  She did not need to be able to recall issuing the ticket (and the Court might have been sceptical of a claim, had it been made, that she could recall it).  Her evidence was as to how she issued tickets using her machine. She was clear and informative about that.  The court was entitled to view her as a credible witness, to place weight on that and to find that the informant had proved its case to the beyond reasonable doubt standard even though Mr Young may usually be careful about complying with parking restrictions and did not recall receiving a ticket.

Result

[30]     The appeal is dismissed.

Costs

[31] The informant seeks costs under the Costs in Criminal Cases Act 1967. Mr Young did not make submissions opposing that. I order costs against Mr Young in accordance with the scale.

Mallon J

Solicitors:

DLA Phillips Fox, Wellington for Respondent,  alei[email protected]