PALMER v R [2005] NZCA 53 (18 March 2005)

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PALMER v R [2005] NZCA 53 (18 March 2005)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA450/04

THE QUEEN



v



THOMAS GODFREY PALMER

Hearing: 14 March 2005

Court: McGrath, Hammond and O'Regan JJ

Counsel: J C Hughson for Applicant
M D Downs for Crown

Judgment: 18 March 2005

JUDGMENT OF THE COURT

The application for special leave to appeal is declined.

REASONS
(Given by Hammond J)

Table of Contents
	Para No
Introduction	[1]
Background	[4]
The legislation	[9]
The proceeding in the District Court	[11]
A case stated to the High Court	[14]
Mr Palmer applies for leave to appeal to this Court	[17]
The application for special leave	[21]
Conclusion	[25]

Introduction

[1]	We have before us an application for special leave to hear an appeal in relation to the interpretation of the (now repealed) s 203(2) of the Crimes Act 1961.
[2]	Mr Palmer contends that the case raises a point of law of general or public importance, or that the point is one which should be submitted to this Court for decision.
[3]	The Crown concedes that the case involves a question of law, but it maintains that, in the particular circumstances of the case, it is not one which meets the criteria for special leave.

Background

[4]	Mr Palmer is charged with the offence of endangering transport under s 203(2) of the Crimes Act 1961.
[5]	It is alleged that in early 2003 Mr Palmer allowed a crane to remain on a public road for a number of days, and by so doing, endangered the safety of other road users in that he created the risk of harm.
[6]	Mr Palmer was engaged on a project which involved the replacement of a bridge, and the maintenance of a river channel, near Feilding. Amongst the equipment being used at this site was a 28-ton mobile crane, which the Crown alleged Mr Palmer caused to be parked on what has been described as a "moderately sweeping corner".
[7]	The Crown case is that any reasonable person should have been able to clearly see the risk created to both north and south-bound traffic on that road by parking the crane in the position it was in fact parked - especially at night, without any form of lighting.
[8]	The Crown case is that the risk posed by the way the crane was parked was tragically demonstrated on 2 February 2003 when a vehicle driven by a 19-year-old woman collided with the rear of the crane. She died a short time later as a result of the injuries she sustained from the accident. The Crown concedes that the deceased’s own driving contributed - perhaps significantly - to the accident. But the Crown also maintains that parking the crane in the position it was in fact parked contravened the section, and contributed to the fatality.

The legislation

[9]	Section 203, under which Mr Palmer was charged, provides as follows:

Endangering transport

(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to injure or to endanger the safety of any person,-

(a) Removes anything from or places anything on, in, over, or under any place, or any area of water, that is used for or in connection with the carriage of persons or of goods by land, water, or air; or
(b) Does anything to any property that is used for or in connection with the carriage of persons or of goods by land, water, or air; or
(c) Shoots or throws anything at, into, or upon any vehicle, ship, or aircraft; or
(d) Causes anything to come in contact with any vehicle, ship, or aircraft; or
(e) Does any other unlawful act, or wilfully omits to do any act which it is his duty to do, in respect of any such place, area of water, or property as aforesaid, or in respect of any vehicle, ship, or aircraft.

(2) Every one is liable to imprisonment for a term not exceeding 5 years who, intentionally and in a manner likely to injure or endanger the safety of any person, does any of the acts referred to in subsection (1) of this section.

[10]	That provision was repealed on 1 October 2003, and replaced by a provision which is now s 270 of the Crimes Act 1961. It provides as follows:

Endangering transport

(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause danger to persons or property or with reckless disregard for the safety of persons or property,--

(a) interferes with any transport facility; or

(b) does anything to any transport facility that is likely to cause danger to persons or property.

(2) For the purposes of this section, transport facility means any vehicle, ship, or aircraft, and any property used in connection with the transportation of persons or goods; and includes equipment of any kind used in navigation or for the guidance of any vehicle, ship, or aircraft.

The proceeding in the District Court

[11]	Mr Palmer entered a plea of not guilty.
[12]	The matter came on for trial. However, at the outset of the trial, Mr Palmer took a preliminary point that the information did not disclose an offence at law.
[13]	The trial judge, Judge A P Walsh, upheld that submission. He dismissed the information. The Judge’s reasoning was that the word "acts" as used in s 203(2) to describe the actus reus of the offence, did not include "omissions".

A case stated to the High Court

[14]	A case was then stated for the opinion of the High Court on this issue.
[15]	Miller J considered the matter (see CIV-2004-454-01 PMN 3 August 2004) and concluded that:

[37] In my view, the construction of s.203 lends itself strongly to the conclusion that the drafter intended to include in the actus reus of the offence created by ss(2) any of the behaviours listed in ss(1)(a) to (e). On its face, the drafter simply adopted the actus reus of the first offence when defining the second offence, the distinguishing feature of which lies in the mental element. The second offence is the lesser of the two, and there is no apparent reason why an omission should found criminal responsibility in ss(1) but not ss(2). I do not accept that the statute establishes a dichotomy between act and omission such that the word 'acts' in ss(2) necessarily excludes a wilful omission to act when the offender was under a duty to do so. As a matter of both law and normal usage, such an omission is capable of being characterised as an act.
[38] I conclude that the phrase 'any of the acts' in ss(2) of s203 extends to all of the behaviours in ss(1)(a) to (e). Specifically, it includes a wilful omission to do any act which it is the accused's duty to do. The question in the case stated will be answered accordingly.

[16]	By a minute of 9 August 2004, Miller J remitted the case to the District Court with his opinion, as required by s 112(b) of the Summary Proceedings Act 1957.

Mr Palmer applies for leave to appeal to this Court

[17]	Mr Palmer then applied under s 144 of the Summary Proceedings Act 1957 to the High Court, for leave to appeal to this Court.
[18]	Miller J declined that application on 26 October 2004.
[19]	The Judge took the view that as s 203(2) was repealed and substituted by the new s 270 on 1 October 2003, "the immediate significance of the issue is confined to [Mr Palmer], whose prosecution under the former section depends on it". His Honour was of the view that the case did not therefore raise a question of general or public importance so as to satisfy the test laid down by this Court in R v Slater [1997] 1 NZLR 211 at 215, viz:

There must be:
(i) A question of law;

(ii) The question must be one which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal; and
(iii) The Court must be of the opinion that it ought to be so submitted ... [that is] the Court has a residual discretion to refuse to grant special leave even though there is a question of law involved and that question is a question of general or public importance.

[20]	It was then, in this general context, that Mr Palmer applied for special leave from this Court to appeal the question determined by Miller J, to it, for consideration.

The application for special leave

[21]	The application to this Court is based on the same arguments which were advanced to Miller J in seeking leave. First, it is said that there is a need for the meaning of s 203(2) to be clarified in the event that other persons might have been charged with offences against this section. Secondly, it is said that the allegations raised against Mr Palmer are serious, and expose him to a maximum penalty of five years imprisonment. He should not, it is argued, be exposed to the possibility of a penalty of that character if there is any doubt as to whether an offence was created.
[22]	We are not disposed to grant the application, for these reasons.
[23]	First, the question raised by the case cannot be said to be one of general or public importance, such as to justify the grant of special leave. As we have already noted, s 203 has been repealed and replaced by a provision with materially different wording. We think the Crown was therefore right to contend, and the Judge correctly accepted, that any appeal could have relevance solely to Mr Palmer’s case. In short terms, this appears to be a "one off" case brought under a statutory provision which is historic.
[24]	Secondly, Ms Hughson suggested that the seriousness of the offending and the consequences of a conviction are such as to bring this issue within the words "or any other reason" in s 144(2) of the Summary Proceedings Act 1957. We are not persuaded that this consideration warrants giving leave for a second appeal under this residual category. There are many offences under the transport legislation which carry potential penalties of imprisonment. But the door to a second appeal should not readily be prised open on that footing: on this argument, all such cases could be amenable to a second appeal. In any event, this kind of justification for a second appeal was specifically rejected by this Court in Slater, which made it apparent that s 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act 1957, and that there is no jurisdiction to grant leave to address what is sometimes termed "residual injustice". This Court further made it plain in Slater that the strict tests laid down by it for s 144 applications are not to be diluted.

Conclusion

[25]	In the result, the application for special leave to appeal to this Court is declined.

Solicitors:
Peter S Coles, Palmerston North for Applicant
Crown Law Office, Wellington