Waterhouse v Police HC Whangarei CRI-2010-488-000061 [2011] NZHC 224 (17 March 2011)

Last Updated: 4 June 2011

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI-2010-488-000061}

GODFREY WATERHOUSE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 17 March 2011

Appearances: Appellant in person

Ms M A Jarman-Taylor for Respondent

Judgment: 17 March 2011

(ORAL) JUDGMENT OF LANG L

_{[on appeal against conviction and sentence]}

WATERHOUSE V NEW ZEALAND POLICE HC WHA CRI-2010-488-000061 17 March 2011

[1] The Justices of the Peace convicted Mr Waterhouse on a charge of failing to produce his logbook upon demand and without dely. They fined him $500 and ordered him to pay Court costs of $130. He now appeals to this Court against conviction and sentence.

The facts

[2] The incident that led to the charge occurred on 8 January 2010. On that date Mr Waterhouse was driving his van and carrying passengers for reward within it. As a result, he was required by s 30ZH of the Land Transport Act 1998 to carry a logbook and to produce it on demand and without delay when required to do so by a police officer. The Act requires the logbook to contain the following information:

(a) The date of the driver’s last rest time of at least 24 hours; and

(b) All the days since that rest time.

[3] Whilst he was stopped in Marsden Road, Paihia, Mr Waterhouse was approached by Constable Bestwick, who asked him to produce his logbook. Mr Waterhouse duly produced his logbook, but it only related to his driving activities on

8 January 2010. This was because Mr Waterhouse had completely filled his earlier logbook. As a result, the logbook that he produced to the constable did not contain any information about the last date upon which he had had a rest time of at least 24 hours.

[4] When the constable raised this issue, Mr Waterhouse advised her that he had inadvertently left his previous logbook at home. He offered to call his wife and have her bring the logbook to the scene. He said that she could be there within ten minutes, but the officer declined that request. The officer subsequently issued an infringement notice alleging that Mr Waterhouse had breached his obligations under s 30ZH of the Act.

Issue on appeal

[5] The sole issue on appeal is whether Mr Waterhouse failed to carry with him and to produce on demand and without delay a logbook complying with s 30ZH of the Act. He argues that he did carry his current logbook, and that the evidence discloses that his wife could have brought his previous logbook to the scene within ten minutes. On that basis he argues that he did not fail to produce his logbook without delay.

What constitutes “without delay” in this context?

[6] There appears to be no case law regarding the interpretation to be given to “without delay” as that term is used in s 30ZH of the Act. I do not consider, however, that it has any material difference from the phrase used in the predecessor to s 30ZH, s 70C of the Transport Act 1962. That section required a driver to “forthwith” produce a logbook complying with the requirements prescribed by the legislation.

[7] In True v Police[1] Williams J held (applying the judgment of the Court of Appeal in Scott v Ministry of Transport[2] that “forthwith” was to be interpreted as meaning “as soon as reasonably practicable”. It was not synonymous with “instantly” and allowed a degree of elasticity, but required that there be no

significant delay.

[8] I consider that a similar interpretation should be applied in respect of the words “without delay” in s 30ZH. The extent to which a degree of elasticity may be allowed will depend upon the circumstances of the case, and will always be a matter of fact and degree. Reaching into the back seat of a vehicle to produce a logbook would plainly come within the words of the section, as would retrieving the logbook from the boot of a vehicle. Whether or not it would also extend to walking to a

_{nearby building to retrieve a logbook from the defendant’s office or home is dubious,}

because that would defeat the requirement that the logbook be both carried and produced on demand and without delay.

[9] The meaning to be given to the word is informed by the purpose for which the words are inserted in the section. Clearly they are inserted to avoid the possibility that a driver (or somebody else at his or request) might endeavour to falsify a logbook if given the opportunity to do so. That conclusion accords with the reasoning that Salmon J adopted in Police v Turner. [3] In that case a driver who was required to produce his logbook began writing in it before he handed it over. Salmon J considered that the purpose of the provision would be frustrated if the word “forthwith” was to be interpreted so as to permit a driver to make entries in a

logbook before producing it to the police officer who has requested it.

[10] Such an opportunity was potentially available in the present case, because a delay of some ten minutes would occur before the logbook could be brought to the scene. That would theoretically have given Mr Waterhouse’s wife the opportunity to falsify the logbook had she been so inclined. In saying that, I do not suggest for a moment that she would have been of that inclination.

[11] No delay that provides an opportunity for a logbook to be altered can be permitted. For that reason I consider that a delay of ten minutes caused by the need to bring the logbook from Mr Waterhouse’s home was not acceptable. It meant that Mr Waterhouse was unable to produce the logbook to the officer without delay. For that reason I am satisfied that the Justices were correct to find the charge proved.

[12] I have some sympathy, however, with Mr Waterhouse in relation to the issue of penalty. I accept without reservation his assurance that he keeps his logbooks scrupulously and that his previous logbook showed the 24 hour rest period as it was required to do. The evidence also discloses that Constable Bestwick recalls that he

_{offered to have the logbook brought to the scene.}

[13] In those circumstances, I consider that justice will be done if Mr Waterhouse is convicted and discharged. The appeal against conviction is therefore dismissed, but the appeal against sentence is allowed. I quash the fine and order for Court costs

_{that the Justices imposed.}

Lang J

Solicitors:

Crown Solicitor, Whangarei

Copy to:

Mr G Waterhouse

---

[1] _{HC Auckland CRI-2004-404-254, 30 August 2004}
[2] [1983] NZCA 16; [1983] NZLR 234 at 236

[3] HC Whangarei AP 26/95, 20 June 2006