C v Police HC Christchurch CRI-2009-409-38 [2009] NZHC 1883 (29 June 2009)

Last Updated: 18 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CRI-2009-409-000038}

C

v

POLICE

Hearing: 18 June 2009

24 June 2009

Appearances: Appellant in person

S L Jamieson for Police

Judgment: 29 June 2009

_{RESERVED JUDGMENT OF HON. JUSTICE FRENCH}

[1] This is an appeal against an order of the District Court finding an infringement offence proved.

[2] The appellant Mr C was charged with a breach of 7.1.0 of the Road User Rules in that on 30 August 2008, he occupied a seat in a motor vehicle which was fitted with a seat belt and did not wear that seat belt.

[3] After a defended hearing before two Justices of the Peace, the offence was found proven and Mr C ordered to pay an abated infringement fee of $100 with

_{court costs of $130.}

C V POLICE HC CHCH CRI-2009-409-000038 29 June 2009

[4] Rule 7.1.0 provides

7.10 Persons of or over 15 years must wear seat belt and keep it fastened

A person of or over the age of 15 years who is in a motor vehicle in motion on a road and who is occupying a seat that is fitted with a seat belt (whether that seat belt is an approved seat belt or not) must wear the seat belt and must ensure that it is securely fastened.

[5] At the hearing, evidence was given by a police constable and by Mr C .

[6] The constable read a written brief of evidence to the Court in which he stated

I was a passenger in a marked Police patrol car. Traffic at the time was very light and visibility was excellent.

We turned from Hargood Street, left onto Clydesdale Street at which point I observed a Holden Station wagon travelling North east on Clydesdale Street towards Hargood Street.

The driver was the only person in that vehicle at the time.

I clearly noticed that the driver was not wearing a seatbelt.

Constable GREEN turned the vehicle around so we could pull the vehicle over. We turned around just before the Holden turned right onto Hargood Street.

It was clear to me that the driver was still not wearing his seatbelt as the seatbelt was hanging from its hook

[7] Mr C did not dispute he was the driver in question. However, he claimed that because he had arthritis and a broken collar bone he sometimes wore his seat belt in a manner that might give the appearance it was not fastened when in fact it was. He produced some photos showing himself with a seat belt draped very loosely down his arm and across his waist as opposed to what is usually regarded as the correct method of wearing it diagonally across the shoulder and torso. Mr C testified that the photos depicted how he was wearing the seat belt on the day in question. Mr C also testified that his understanding of the law was that so long as the seat belt was buckled that was sufficient, no matter how loose or ineffective as a restraint it might be.

[8] In finding the charge proved, the Justices accepted the evidence of the police constable and found that Mr C did not have his seat belt fastened. They stated

[3] ... There was some difference of opinion as to whether the seat belt had been hanging from a hook but it probably was that the constable saw the seat belt, the buckle perhaps of the seat belt, hanging by the side of the pillar.

[4] Constable McHugh is an experienced police officer and in this particular vehicle was a passenger which obviously gave him more time to observe the incident and he was very clear that he observed the seat belt hanging and not coming in any way across Mr C ’ body and hence the reason for turning the police car and pursuing him to issue an infringement notice

[9] Because of the view the Justices took of the facts, it was not necessary for them to consider whether Mr Coutt’s interpretation of the rule was correct. They did however observe that his method of wearing a seat belt would defeat the purpose of having one because worn that way it would not provide him with any protection in the event of an accident.

[10] On appeal, Mr C produced a letter from a doctor as well as a letter from a local Holden dealer.

[11] Both letters were admitted by consent.

[12] The letter from the doctor confirms that Mr Coutt does have a distorted clavicle and that there is tenderness in the area where a seat belt would normally be worn.

[13] In itself the letter does not take things much further because while it may support Mr Coutt’s general claims, it does not necessarily follow that on the day in question his seat belt was fastened.

[14] The letter from the car dealer is of more moment. It reads

TO WHOM IT MAY CONCERN HOLDEN COMMODORE

Registration UZ 4297

Seat Belt Buckle Retainer

When the R/F seat belt on this vehicle is in the disused position the seat belt buckle will retract with the belt as a button is placed in the centre of the webbing which will not allow the buckle to slide down the belt.

This means when the belt is in the retracted position the buckle will sit

300mm below the anchorage position of the seat belt on the inside of the vehicles right side centre B Pillar.

[15] What this letter means is that if by his reference to seeing a hook, the constable meant the buckle or the fastening end of the seat belt, he must be wrong. It would have been impossible for him to have seen that even if the seat belt were not fastened.

[16] Equally, if by hook the constable meant a hook on the car door on which the seat belt was hanging, that too would be wrong because there is no hook on the door.

[17] Ms Jameison submits that although the officer may have been wrong about seeing a hook, that should not detract from the rest of his evidence which the Justices clearly accepted. That included testimony that what he saw on the day and what was depicted in the photos were very different.

[18] In my view, it is however conceivable the Justices might have taken a different view had they known it was impossible for the officer to have seen a hook. The claim about seeing a hook was contained in the written brief so it was a considered statement.

[19] I simply cannot be sure and in those circumstances consider it unsafe for the decision to stand in light of this new evidence.

[20] Normally, the appropriate course in such circumstances would be to remit the matter for re-hearing by the Justices. However, given the charge is a relatively minor one, I do not consider that is appropriate.

[21] The appeal is accordingly allowed. The decision of the Justices and the infringement fee and costs are quashed.

[22] Finally, I note that while Mr C has won this appeal, he should be aware I consider his interpretation of the rule questionable. I did not hear argument on this point, the police disavowing any reliance on it for the purposes of the appeal. I therefore express no concluded view. However, it seems to me that if Mr Coutt’s interpretation were correct, rule 7.1.0 would only have required the seat belt to be fastened. However, it does not. The rule requires it not only to be fastened but also worn. A Court is likely to give the phrase “must wear” a purposive interpretation, so as to require the mode of wearing to be such as to serve the purpose of a seat belt.

[23] If I am correct in this interpretation, it would mean that even on his own version of events, Mr C did breach the rule on 30 August 2008 and will be in jeopardy of being prosecuted again if he continues to wear his seat belt in that fashion.

Solicitors:

Crown Solicitor’s Office, Christchurch

Copy to Appellant