O'Connor v Police HC Wellington CRI-2010-485-000126 [2011] NZHC 140 (15 February 2011)

Last Updated: 26 May 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI-2010-485-000126}

BETWEEN ALWYN O'CONNOR Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 15 February 2011

Counsel: Appellant in person

S K Barr for Respondent

Judgment: 15 February 2011

Reasons: 18 February 2011

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 11.00am on the 18th day of February 2011.

_{REASONS FOR JUDGMENT OF GENDALL J}

[1] Two Justices of the Peace sitting in the District Court at Lower Hutt on 3

December 2010 found proved against the appellant two charges of exceeding a speed limit of 50kph. This was on two separate occasions near schools, the first in Days Bay on 20 April 2010 and the second in Randwick Road, Moera on 5 May

2010. Fines of $30 (being the prescribed infringement fees), were imposed for each offence and on one matter court costs of $132.89 was imposed.

[2] At the conclusion of the hearing at which Mr O’Connor represented himself,

I allowed the appeal, quashed the fines and order for costs and I now provide brief reasons in writing.

O'CONNOR V NEW ZEALAND POLICE HC WN CRI-2010-485-000126 15 February 2011

[3] On both occasions the excess speed limit was checked by an approved speed camera and assessed at 55kph on one occasion and 56kph on the other occasion. The registered owner of the motor vehicle was the appellant. It seems that his wife was the driver.

[4] The appellant received the infringement notice and accepted the facts as alleged by the police. At the hearing he presented material, which indicated his wife had driven the vehicle. He was not able to do so if the conclusive presumption in s

133(2) of the Land Transport Act applied. He sought to advance a defence of absence of fault (being entitled he said, to rely on the absence of fault of his wife) because she believed that the “police tolerance” or discretion not to prosecute always existed in respect of someone exceeding the limit by only 4-5kph. Such belief was incorrect. It did not afford a legal or factual defence to the appellant, or for that matter to the appellant’s wife had she been the subject of the infringement notice.

That type of defence was rejected by the District Court in Police v Pomeroy[1] and by

this Court, in that case on appeal Pomeroy v Police.[2] The Court of Appeal declined to grant to Mr Pomeroy special leave to appeal on the basis that any “belief that there was a tolerance which gave him a defence to the charge was mistaken in law, and ignorance of the law is no defence”.[3]

[5] On the only material properly in evidence before the Justices, the conclusive presumption that Mr Pomeroy was the driver of the vehicle existed. It was not then sufficient for him to tender his wife’s affidavit. That is because s 133 of the Land Transport Act 1998 provides that in any proceedings for moving vehicle offences taken against a person who was registered as the owner of or one of the owners of the vehicle, or was a person who at the time of the offence was lawfully entitled to

be in possession of the vehicle it is conclusively presumed:[4]

(a) the defendant was the driver or person in charge of the vehicle at the time of the alleged offence (whether or not the person is an individual); and accordingly

(b) the acts or omissions of the driver or person in charge of the vehicle at that time were the acts or omissions of the defendant.

[6] And it will be a defence to proceedings against such a person, in terms of s 133(4), if at the time of the alleged offence the driver was not lawfully entitled to the possession, or another person was driving the vehicle and (crucially):

(b) Immediately after becoming aware of the alleged offence, the person advised the enforcement authority in writing that, at the time the offence was committed, he or she was not lawfully entitled to possession of the vehicle or another person was driving the vehicle (as the case may be) ....

and that the owner has given a statutory declaration to the enforcement

authority to identify the driver or establish the driver’s identity.

[7] In this case no such statutory declaration was given to the enforcement authority. The matter proceeded before the Justices on the basis that the appellant sought to avail himself of the factual, but unsustainable in law, claims of his wife.

[8] The appellant’s submissions on appeal as originally presented in writing were

thorough, but proceeded solely on the basis that the Justices erred in law by:

Failing to apply the total absence of fault defence and confusing the concept of ignorance of the law or wilful blindness with a mistaken set of facts relating to something which is not law.

[9] Extensive, careful and detailed submissions were presented by Mr O’Connor involving commonwealth authorities, and academic writings and opinions, expressed as to “police tolerance”. None of this would have availed the appellant on the fundamental question of law.

[10] However, when the matter came on for argument before me, Mr O’Connor

tendered copies of letters written both by his wife and himself as owner, dated

20 May 2010. That is, within 15 days of the second infringement notice. Those are recorded as having been received on3 June and 23 June 2010 by the New Zealand Police Infringement Bureau. The letters ask that the infringements be waived because of the beliefs of the driver but they nevertheless identified the driver not only by the advice given by Mr O’Connor, the owner, but by acknowledgement also

of his wife the driver. This led, in my view, to a fundamental defect in the prosecution against Mr O’Connor. It is really something that should have been presented to the Justices. It is somewhat similar to the situation that arose in Willis v New Zealand Police,[5] where the appellant contended he was not driving at the time and responded to the authorities immediately he received the infringement notice and whilst providing a declaration in respect of the moving vehicle, it was not taken

before someone authorised for that purpose, being simply an oversight. Ronald Young J allowed the appeal on the basis that the appellant was clearly not guilty if he could not be proved to be the driver of the vehicle, or because he had positively established the defences available under s 133(3).

[11] In the present case a statutory declaration provided to the authorities, in advance of the original infringement notice proceeding, whilst a formal or technical requirement under s 133(4)(c) such is only necessary to identify the driver by giving particulars of the name and address. Yet in the present case that was clearly given, not only by the appellant, but by the driver herself. I do not accept that the absence of the statutory declaration, in those circumstances, entitled the prosecuting authorities to proceed to issue a notice of hearing in respect of an infringement offence against the appellant alleging him to be the driver. That was contained in the original infringement notice, but the authorities had been told not only that he was not the driver but that his wife was, which followed in response to receipt of the infringement notice. The prosecution in those circumstances could and should then have proceeded as against Mrs O’Connor through the issue of an infringement notice to her. That it did not and that the police proceeded to the hearing as against the appellant was in my view fatal to the requirements of justice. Although the point was not specifically taken at the hearing before the Justices, it was squarely before them in submission of the self-represented appellant that he was not the driver of the vehicle, and the driver was known to the police, both facts known at an early stage to them. It would be unjust for any “conviction” based upon that infringement notice to

_{be entered.}

[12] It follows that the appeal is allowed and the fines of $30 on each charge

_{quashed as is the order for costs.}

_{J W Gendall J}

Solicitors:

Crown Solicitor, Wellington

Copy to: Mr A O’Connor, P O Box 33-320, Petone, Wellington

---

[1] _{Police v Pomeroy DC Lower Hutt CRI 2009-032-1749, 13 July 2009.}
[2] _{Pomeroy v Police HC Wellington CRI 2009-485-112, 8 September 2009.}
[3] _{Pomeroy v Police [2010] NZCA 70 at [2].}
[4] Section 133(2).

[5] Willis v New Zealand Police HC PN CRI 2005-454-64, 8 February 2006.