E v Police HC Auckland CRI 2007-404-280 [2008] NZHC 500 (14 April 2008)

Last Updated: 17 July 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-280
_{CRI 2007-404-281}

E

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 14 April 2008

Appearances: Appellant in Person

M Wright for Respondent

Judgment: 14 April 2008

_{ORAL JUDGMENT OF RANDERSON J}

Copy To: P E , 22 Formby Avenue, Pt Chevalier, Auckland

Meredith Connell, PO Box 2213, Auckland

E V POLICE HC AK CRI 2007-404-280 14 April 2008

Introduction

[1] The appellant appeals against his conviction in the District Court on four charges arising out of two separate incidents in 2006. The first two charges relate to an incident at Waterview on 11 July 2006 when the appellant was driving a motor vehicle which did not display current evidence of vehicle inspection (warrant of fitness) and which was unlicensed.

[2] The second set of charges related to an incident at Sandringham on 25 July

2006 when the appellant was stopped while driving another motor vehicle. On this occasion he was charged with operating a vehicle without displaying the current evidence of vehicle inspection (warrant of fitness) and with providing information to the enforcement officer which he knew to be false or misleading.

Waterview Offences

[3] In relation to the Waterview offences, the appellant (who has represented himself today as he did before the Justices of the Peace in the District Court) has submitted that the Justices of the Peace were wrong to convict him because he was on his way, at the time, to obtain a warrant of fitness which he in fact obtained later that day. He also says that he should not have been convicted on the charge of driving an unlicensed vehicle because the vehicle could not be licensed until the warrant of fitness had been obtained.

[4] The police officer who stopped the appellant’s vehicle on this occasion gave evidence that the warrant of fitness had expired some two months previously and the vehicle licensing three months previously. The officer also stated in evidence that the appellant had told him he was on his way to get the licensing attended to and also to obtain the warrant of fitness. However, the appellant was unable to say where he was taking the vehicle.

[5] Before the Justices of the Peace the appellant and his son both gave evidence that they were travelling to get the warrant of fitness at the time. For that purpose

they were heading on the north-western motorway to Massey where the appellant knew of a garage since he had lived in that area previously. The appellant said in evidence that he did in fact obtain the warrant but only after the vehicle had some welding work done to it. In explanation today the appellant told the Court there was some rust in the back guard of a structural nature and that had to be repaired.

[6] The Justices of the Peace gave a somewhat ambiguous ruling. It was not in dispute that the appellant was operating the vehicle at the time, that it was unlicensed, and that it was not displaying a current warrant of fitness. The Justices of the Peace then stated in their decision it was coincidental that the appellant was picked up on that particular day when he was going for his warrant of fitness. They accepted however that he was in fact going for his warrant of fitness that day. They added that no evidence was given regarding the relicensing except that the warrant was required before that could occur. They found the offences proved and imposed fines.

[7] In response to the points raised by the appellant, Mr Wright for the Crown drew my attention to the decision of Winkelmann J in Prescott v Police HC AKCRI

2005- 404-082 4 July 2005. Her Honour held in that case that there was a defence available to a charge laid under s 34(1)(b) Land Transport Act 1988 by virtue of r 10.2(2) of the Land Transport Rules: Vehicle Standards Compliance 2002. Under that provision it is not necessary to display a current warrant of fitness if the vehicle is being operated “solely for the purpose of bringing it into compliance and it is safe to be operated for that purpose”.

[8] In the circumstances of the case before Winkelmann J, the appellant had not demonstrated that the vehicle was safe in that it required work to be done on it before it could obtain a warrant of fitness. As Winkelmann J found, the onus of proof on the balance of probabilities under r 10.2(2) was on the appellant.

[9] In the present case, this Court is bound by the finding of the Justices of Peace that the appellant was indeed driving to obtain his warrant of fitness at the time he was stopped. However, on the appellant’s own evidence welding work of a

structural nature was required before the warrant could be issued. That was the state of the vehicle at the time of the offences with which the appellant was charged.

[10] On that footing I am satisfied that the appellant has not shown that the vehicle in question was safe for the purpose for which it was being operated at the time (travelling to obtain the warrant) and that he was rightly convicted in those circumstances on both charges.

[11] In relation to the unlicensed motor vehicle charge (laid under s 5(1)(b) of the Transport (Vehicle and Driver Registration Licensing) Act 1986), the offence is one of strict liability and all the relevant ingredients of that charge were properly proved.

Sandringham Offences

[12] The other two charges arose from the Sandringham incident. A police constable gave evidence that he stopped a yellow Honda City motor vehicle being driven by the appellant at the corner of Sandringham Road and O’Donnell Avenue. The appellant was initially charged with failing to stop at a stop sign although that charge was later withdrawn.

[13] In respect of the charge of failing to display the warrant of fitness, the officer gave evidence that the warrant was 10 months overdue as was the licensing sticker for the vehicle.

[14] There was disputed evidence about the appellant’s address which gave rise to the second charge of knowingly providing false information. The police officer’s evidence, which he did not resile from in cross-examination, was that the appellant gave the officer the address of 18 Calgary Road, Balmoral. Subsequent enquiries established that the correct address was Unit 18, 23 Calgary Road, Balmoral.

[15] The appellant maintained in evidence that he had given the correct address but the officer had written it down incorrectly. In his evidence the appellant also stated that the car had a new windscreen and that the warrant on it had come with that windscreen. He also stated that he had only just purchased the vehicle and it

was not then registered in his name. He stated that the car had been in storage and that he had taken it out for the purpose of obtaining a warrant of fitness. The officer confirmed that he was told that by the appellant when he stopped the vehicle. In this case, the appellant did not produce evidence to the Justices of the Peace that he had in fact obtained the warrant.

[16] The decision of the Justices of Peace sets out the essential features of the evidence including the appellant’s own evidence and that of his son. The Justices of the Peace then found:

We find that your responses in Court today amount to a sustained litany of deception and misinformation which is designed to confuse, and we find the charge of giving false or misleading information proven. On the vehicle inspection charge we find the case proven, your warrant of fitness was ten months out of date, and it was once against coincidental that the breach was found.

[17] On the charge arising from the Sandringham incident of operating a vehicle on the road while not displaying a current warrant of fitness, the appellant raised the same point as he had on the similar charge in relation to the Waterview offences.

[18] For the reasons already given in relation to those offences I am satisfied the conviction on that charge was properly entered. The appellant did not discharge the onus of proof in relation to r 10.2(2) Land Transport Rules (Vehicle Standards Compliance) 2002.

[19] First of all, the Justices of Peace rejected his evidence apparently in its entirety and made no finding that he was in fact on his way to obtain the warrant at the time. Secondly, there was no evidence that the vehicle was safe for the purpose for which it was being operated at the time. Mr E told me today that the vehicle in fact needed work on the lower ball joint suspension and on the wiper blades before the warrant could be obtained.

[20] In those circumstances, the onus on the appellant was not discharged and he was rightly convicted on that count.

[21] In relation to the second charge arising from the Sandringham incident, of knowingly providing false or misleading information under s 44 Land Transport Act

1988, the Justices of the Peace accepted the evidence of the police officer as to the address in preference to that of the appellant. Plainly, there was a conflict of evidence on this point but it was entirely open to the Justices of the Peace to prefer the evidence of the police officer, to the evidence given by the appellant and his son. These findings were based on credibility and there is no basis on which this Court could or should intervene with them.

Result

[22] Accordingly, the appeals against conviction will be dismissed in relation to all four charges. The appellant does not challenge the sentences of the Court in

_{relation to any of the charges.}

A P Randerson, J Chief High Court Judge