Wellington City Council v Linger [2021] NZDC 5564 (13 January 2021)

Last Updated: 22 September 2021

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT WELLINGTON I TE KŌTI-Ā-ROHE KI TE WHANGANUI-A-TARA

CRI-2020-085-002193 [2021] NZDC 5564

WELLINGTON CITY COUNCIL Prosecutor

v

[JACOB LINGER] Defendant

Date of Ruling:	13 January 2021
Appearances:	E Higbee for the Prosecutor Defendant appears in Person
Judgment:	13 January 2021

ORAL DECISION OF JUDGE B DAVIDSON:

[Appeal under s 232 Criminal Procedure Act 2011]

Appeal

[1] This is an appeal under s 232 of the Criminal Procedure Act 2011 against a finding of Justices of the Peace on 22 March 2019 that the appellant had operated a vehicle on 4 December 2018 without displaying a current warrant of fitness.

[2] The appellant says a miscarriage of justice has occurred because the Justices erred in their assessment of his evidence, in particular completely failing to assess whether he had shown on the balance of probabilities a total absence of fault.

WELLINGTON CITY COUNCIL v [JACOB LINGER] [2021] NZDC 5564 [13 January 2021]

[3] The current appeal notice was filed on 24 September 2020, some 17 months out of date. The appellant says that he had first filed a notice on 15 April 2019, within the requisite period, but the notice has vanished. I am in no position to contradict what the appellant says. More than that, the respondent seemingly does not oppose the granting of leave out of time; and it is given.

Background

[4] The evidence at the hearing before the Justices on 22 March 2019 was brief and uncontested.

[5] On 4 December 2018, [name deleted], a parking warden, saw a Mazda motor vehicle, registration [deleted], parked on Hornsey Road in Wellington. A check revealed the warrant of fitness for the vehicle had expired on 19 October 2018. The parking warden left a copy of the ticket with the car.

[6] The defendant said that he lived at [number deleted] Hornsey Road. He said the vehicle belonged to his lodger who had left New Zealand in late October 2018 to travel to India to get married. The defendant said he also went to India, leaving on 30 October and returning on 25 November 2018. He said the lodger’s car was blocking access to his garage, which was on a driveway which doubles as a road reserve. The lodger had left the keys at the house, so the appellant moved it to the roadside to provide access to his garage.

The charge

[7] As a result, the appellant was charged under s 34(1)(b) of the Land Transport Act 1998 with operating a vehicle on a road without displaying current evidence of vehicle inspection. “Operating” means to drive or use a motor vehicle or cause or permit the vehicle to be on a road.

Decision

[8] In written submissions, the respondent submits that this is not a strict liability offence and it (the respondent), needed to prove, as it had, that the appellant had intentionally operated the vehicle.

[9] But to my mind, that is not the end of the matter.

[10] There was also material placed before the Justices suggesting that the vehicle, when obstructing the appellant’s garage, was on a road reserve, still legally a road, but not on the area where parking wardens, perhaps for other operational reasons, would enforce the law.

[11] All the defendant did was to move the vehicle to the roadside to allow access to his garage. His only fault was not putting the car back to the position from where he had moved it.

[12] In my view, this must be as close to a total absence of fault as possible. A total absence of fault, if proven by the appellant on the balance of probabilities, would amount to a complete defence if this is a strict liability offence.

[13] The Court of Appeal in R v de Montalk examined the history of s 34(1)(b) of the Land Transport Act 1998, noting that this had been a replacement for earlier provisions of the 1962 Transport Act.1 The Court of Appeal concluded that this was a stationary vehicle offence and there was no need for the prosecution to prove that the person was actually operating the vehicle at the relevant time.

[14] It follows from that, it seems to me, that given that the offence date was 4 December 2018 when the vehicle was parked on the side of the road, this must amount to a stationary vehicle offence. A total of absence of fault on the part of the appellant, if shown on the balance of probabilities, would amount to a total defence.

1 R v de Montalk CA 157-03, 7 March 2005.

[15] I have to say that failing to put the car back from where he had moved it, to my mind, is so close to a total absence of fault that by application of a de minimis principle it would seem wrong to deprive the appellant of the full opportunity of that being assessed.

[16] Because the Justices did not really engage in that assessment of the evidence in the way I have described, it seems to me that a miscarriage of justice may have occurred and the appeal should be allowed.

[17] The only issue is whether I should direct a new hearing. Given the very minor nature of the alleged offence itself, the penalty imposed and the time since, it seems to me it would be inappropriate for a new hearing to be directed.

[18] Accordingly, the appeal is allowed. I direct that an acquittal be entered and the fine and costs are set aside.

Judge B Davidson

District Court Judge

Date of authentication: 31/03/2021

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.